Request By:
Hon. Harry J. Rothgerber, Jr.
Chief Juvenile Defender
Jefferson District Public Defender
200 Civic Plaza
701 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan III, Assistant Deputy Attorney General
In response to your letter of September 8, 1978, requesting an opinion regarding the necessity of a detention hearing pursuant to KRS 208.192, please accept the following as my reply. Specifically you asked:
(1) Does a district court judge have the authority to place a child on house arrest or under a curfew without a detention hearing?
(2) Does the judge have the authority to place a child under these restrictions at the arraignment, when the child is not yet represented by counsel?
KRS 208.192(2) provides "when a child is detained for the alleged commission of an offense as provided in KRS 208.020(1)(a), (b), and (c) and not released, a hearing shall be held as soon as practical, but not to exceed seventy-two hours . . . of the commencement of detention." This statute clearly dictates that the juvenile court must promptly hold a detention hearing if the juvenile offender is to be detained in custody. In addition, section (6) of the statute in question makes it clear that if the detention hearing is not held, the juvenile is to be released to the custody of his parents.
KRS 208.192(6) also provides that, "a child shall have a right to counsel at any hearing determining its right to freedom . . ." As such, when the court is taking action which would effect the freedom of the child in question, the child must be given the opportunity to have counsel present during these proceedings. The provisions of KRS 208.192 are in line with the constitutional requirements of due process of law. In Cox v. Farley, 506 F.2d 1347 (6th Cir. 1974), the Sixth Circuit, in dealing with another section of Chapter 208, held that a juvenile is deprived of his due process rights when incarcerated without first being given a detention hearing.
In the situation related to this office in your letter, the juvenile in question was placed under "house arrest" rather than incarcerated. However, even though the juvenile was thus in the custody of his parents, I believe that this is a distinction without a difference. The situation of "house arrest" would nevertheless be an attempt by the juvenile court to exercise control over the juvenile and would be a deprivation of his liberty interests. As such, the requirements of due process mandated in KRS 208.192(2), (2), (3), (4), and (6) must be met by the juvenile court.
In conclusion, it is the opinion of this office that where the juvenile court acts to place a juvenile under "house arrest, " the detention hearing requirement of KRS 208.192(2) must be met. In addition, the juvenile must be afforded all constitutionally guaranteed rights at every stage, including the right of counsel at such a hearing.