Request By:
Mr. Harry J. Rothgerber
Chief Juvenile Defender
Jefferson District Public Defender
200 Civic Plaza
701 W. Jefferson
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Chief Juvenile Defender in the Jefferson District Public Defender's Office you have requested the Office of the Attorney General to render an advisory opinion regarding KRS 208.060(3)(b). This subsection of our juvenile laws is a part of the juvenile court hearing provisions and reads as follows:
"(3) Before commencing a hearing and proceeding to determine the truth or falsity of the allegations in a petition filed with the court under KRS 208.020 (1)(a), (b), or (c), the court shall decide, on the or (c), the court shall decide, on the basis of a preliminary inquiry made by the court, whether or not the best interest of the child indicates that the petition should be dismissed and the child's case adjusted informally among the parties. An informal adjustment may be made at any time during the proceedings. All petitions brought under KRS 208.020(1)(a), (b), or (c), shall receive this consideration by the court. No petition shall be brought against the child as a result of information given to the court by the child as part of an informal adjustment. If the court finds it necessary to extend the discussion, during an informal adjustment, beyond the immediate subject matter of the complaint before it, the child and his parents, relative, guardian, or custodian shall be advised of all the rights under this subsection. If the court determines that a formal proceeding is required to determine the truth or falsity of the allegations against the child, a petition, sworn to by the complainant, shall be required pursuant to KRS 208.070(1) and (2), and the court shall, when the child is brought before the court:
(a) Explain to the child and his parents, relative, guardian, or custodian their respective rights to counsel and, if the child and his parents, relative, guardian or custodian are unable to obtain counsel, shall appoint counsel for the child and may appoint counsel for the parents, relative, guardian, or custodian;
(b) Explain the privilege against self-incrimination by saying that the child, parents, relative, guardian, or custodian may remain silent concerning the charges against the child, and that anything said may be used against the child and result in his commitment to the department or an institution for juvenile delinquents;
(c) Explain the right to confront anyone who has accused the child and to cross-examine that person on the allegations made against the child;
(d) Advise the child and his parents, relative, guardian, or custodian of the right to appeal from a determination of the court;
(e) Advise the child that these rights belong to him and may not be waived by his parents, relative, guardian, or custodian. "
Thus, when a formal petition has been filed regarding a child in the juvenile session of the district court, the court is required to explain the rights authorized by this statute and supported by constitutional requirements. Your question concerning this statutory provision is whether the juvenile session of the district court (juvenile court) has the legal authority to order a parent or guardian of a child who is before the court under KRS 208.020(1)(a), delinquency action, or KRS 208.020(1)(b), (c), status actions, to take the witness stand and testify against the child if the parent or guardian does not wish to do so. You have also asked whether the court has the legal authority to order the parent or guardian to testify in a juvenile's probation revocation hearing if that person is unwilling to testify.
As to your first question, we believe a juvenile court judge has no legal authority to order "parents, relative, guardian, or custodian" of a child before the court in either a delinquency action or status action to take the stand and testify against the child. KRS 208.060(3)(b) explicitly and clearly prohibits such compulsion.
KRS 208.060(5) refers to subsection (3) as "the rules of evidence and procedure." This office noted in OAG 72-838, copy attached, that the 1972 amendments to our juvenile laws "establish(ed) a fully procedural blueprint which juvenile courts are to follow in detaining, trying and sanctioning juveniles. " While one may rightfully ponder why the statute requires the judge to explain the "respective rights" to the child before the court on a petition and to the child's parents, et al, in both KRS 208.060(3)(a) as to the right to counsel, and in KRS 208.060(3)(b) as to the right to remain silent regarding charges against the child, the language is clear beyond equivocation that the child and the parents are each to be informed of such rights and likewise to exercise them.
Your second question as to whether a juvenile court has legal authority to order a parent or guardian to testify in a juvenile's probation revocation hearing if that person is unwilling to testify, causes us to look for statutory authority to revoke probation in the first place.
Probation as a disposition in juvenile court matters is set forth in KRS 208.200(1)(a), which reads as follows:
"(1) If in its decree the juvenile court finds that the child comes within the purview of subsections (1) or (2) of KRS 208.020, the court may, by order:
(a) Place the child on probation or under supervision in his own home or in a suitable family home or boarding home, upon such conditions as the court shall determine. Probation or supervision shall not be ordered or administered as a punishment, but as a measure for the protection, guidance and well-being of the child and his family. A child so placed on probation or supervision shall be subject to the visitation and supervision of a probation officer or a child welfare worker. Probation and supervision methods shall be directed to the discovery and correction of the basic causes of maladjustment and to the development of the child's personality and character, with the aid of the social resources of the community. A child so placed on probation or supervision shall remain subject to the jurisdiction of the court until he becomes eighteen (18) years of age, unless he is discharged prior thereto by the court."
Before the amendments to KRS 208.200 in the 1976 special session of the General Assembly, KRS 208.200(4) provided:
"(4) If a child is disposed of as provided in paragraph (a) or (b) of subsection (1) of this section the court may modify or set aside its order at any time, and direct that the child be otherwise disposed of, in accordance with this chapter, except that after a child has been disposed of as provided in paragraph (a) or (b) of subsection (1) of this section he may not then be transferred to the circuit court as provided for in KRS 208.170."
This provision placed in the court the authority to "modify or set aside" a probation order. However, in the 1976 special session, subsection (4) became subsection (3) and all that was not omitted was the language referring to the prohibition against a subsequent transfer to circuit court after a juvenile court probation or commitment disposition. Thus, we are faced with there no longer being statutory language referring to modifying or setting aside a probation order with the possibility of otherwise disposing of the child's case. Consequently, we are also faced with the very real question of whether the court still has the right to set aside or modify a probation order and direct another disposition even absent this former specific language which is not to be found elsewhere in the juvenile laws.
Although we do not understand why the above referred to amendment was made, we also do not believe one can ignore the legislative history of our juvenile law. Therefore, it is our opinion the General Assembly has stripped the juvenile court of any right to modify or set aside a probation order once entered as a disposition in a child's case. We must frankly state, however, that ignoring the legislature's amendment on this law, we believe a strong argument can be made that the long-standing language in KRS 208.200(1)(a) that "a child so placed on probation or supervision shall remain subject to the jurisdiction of the juvenile court until he becomes eighteen (18) years of age, unless he is discharged prior thereto by the court," is broad enough to serve as a statutory basis for the juvenile court to reconsider a child's probation order. Note OAG 78-681, copy attached. If the juvenile court still has the authority to reconsider a probation order, we do not believe the court has authority to order the parent or guardian to testify at a hearing on such a matter if that person is unwilling to testify. The support for this is found in KRS 208.060(2)(d), which reads as follows:
"(d) The disposition shall determine the action to be taken by the court on behalf of, and in the best interest of, the child. Unless the provisions of subsections (3) and (4) are observed by the court, the disposition shall be limited to an informal adjustment of the matter between the parties and the court. The provisions of subsections (3) and (4) shall be conditions precedent to any commitment, court-ordered probation, restitution, or other disposition enforceable by the authority of the court. No public or private agency or body, or party before the court, shall participate in any order of the court unless it receives from the court a verified statement, signed by the juvenile judge, that the rights enumerated in subsections (3) and (4) were granted to the child during the proceedings in juvenile court."
The rights discussed in response to your first question are contained in subsection (3) and thus are "conditions precedent" to a court-ordered probation, and we would think likewise are conditions precedent to modifying or setting aside court-ordered probation.