Request By:
Honorable Robert W. Riley
General Counsel
Department for Human Resources
East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As General Counsel for the Department for Human Resources you have asked the Office of the Attorney General to consider what you stated appears to be a conflict in certain juvenile court statutes pertaining to commitments to the Department for Human Resources. You have asked this office to consider KRS 208.020(1) as amended by House Bill 122 in the 1978 General Assembly; KRS 208.194 passed by the 1976 Regular Session of the General Assembly, and KRS 208.200(1)(b) as amended by the 1976 Special Session of the General Assembly, effective January 1, 1978. These statutes, in relevant part, read as follows:
208.020. Jurisdiction of juvenile court; causing child to become delinquent, needy or dependent; jury trial
(1) The juvenile session of the district court of each county shall have exclusive jurisdiction in proceedings concerning any child living, or found within the county who has not reached his eighteenth birthday or of any person who at the time of committing a public offense was under the age of eighteen (18) years:
208.194. Adjudication of felony offense; institutionalization; shock probation
(1) If a child is sixteen (16) years of age or older, and is adjudicated delinquent in the commission of a Class A felony, Class B felony, or capital offense or found guilty of a Class A felony, Class B felony, or capital offense, the sentencing court in its discretion may commit the child to the department for purposes of institutionalization for an indeterminate period of time of not less than six (6) months.
(2) If a child is sixteen (16) years of age or older, and is adjudicated delinquent in the commission of a felony offense or found guilty of a felony offense and has previously been adjudicated delinquent of a felony offense or found guilty of a felony offense in two or more separate adjudications, the sentencing court in its discretion may commit the child to the department for purposes of institutionalization for an indeterminate period of time of not less than six (6) months.
(3) The department shall maintain jurisdiction over the child during the period of the commitment.
208.200. Probation or commitment of child convicted of public offense, or who is delinquent, neglected, needy or dependent
(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:
(b) Commit the child to the custody or guardianship of the department or of a private institution or public agency authorized to care for such children, or place the child under the custody and the supervision of a suitable person. All orders of commitment may include such advisory recommendations as the court may deem proper in the best interests of the child and of the public. Such commitment or placement shall be until the age of eighteen (18) subject to the power of the court to terminate the order and discharge the child prior thereto. The governing authorities of said department, agency or institution may likewise discharge the child unless the court directs otherwise. Prior to said discharge two weeks' notice must be given to the committing court, to the legal representative of the child and to the county attorney of the county in which committing court presides. During the period of commitment or placement, the court may review a dispositional order and may modify or terminate such order as the court deems essential to the best interests of the child. In committing a child to a private institution or agency the court shall select one that is approved by the department for human resources and children committed to such an institution or agency shall be subject to the visitation and superivision of a probation officer or child welfare worker.
For a thorough consideration of this issue we believe KRS 208.180 must also be reviewed. This provision of Kentucky juvenile court statutes reads:
208.180. Disposition of child convicted of felony or misdemeanor
(1) If a child tried on a felony charge in the circuit court, under paragraph (c) of subsection (5) of KRS 208.170 is convicted of a felony, and sentenced to imprisonment, he shall be committed to the custody of the bureau of corrections, except that in the case of a child who is under eighteen (18) years of age at the time of sentencing, the court in its discretion may commit the child to the department. In such case, if the period of the sentence imposed by the verdict would expire before the child reaches twenty-one (21) years of age, the commitment to the department shall be for an indeterminate period not to exceed the age of twenty-one (21). If the period of the sentence imposed by the verdict would extend beyond the age of twenty-one (21), the commitment shall be to the department until the age of twenty-one (21), and thereafter to the custody of the bureau of corrections. In the latter case, if the child is out on parole at the time he becomes twenty-one (21), he may be transferred to supervision of adult parole officers. However, if the parole is revoked he shall be returned to the custody of the bureau of corrections and shall thereafter be dealt with the same as an adult sentenced to the penitentiary.
(2) If a child tried on a felony charge in the circuit court, under paragraph (c) of subsection (5) of KRS 208.170 is convicted of a misdemeanor, and sentenced to imprisonment, he shall be committed to the county jail, except that in the case of a child who is under eighteen (18) years of age at the time of sentencing, the court in its discretion may commit the child to the department, for an indeterminate period not to exceed the age of twenty-one (21) years.
The basic question you have asked with respect to the above statutes is whether the court may commit a child to the Department for Human Resources only until the child reaches age eighteen, or due to the inconsistent language found in the statutes, may the commitment, depending upon the circumstances involved, be until the child reaches age twenty-one.
With only a casual review of the above statutes, it is obvious the General Assembly has presented a ridiculous conundrum to the juvenile courts and to the Department for Human Resources. This predicament has evolved through piecemeal amendments to our juvenile statutes. No amount of application of the canons of statutory construction are of any assistance in considering this quandary the General Assembly has created regarding possible duration of juvenile commitments to the Department for Human Resources.
Looking at the above referred to statutes more closely, possibly the largest problem in this area is presented by the 1978 amendment to KRS 208.020(1) in House Bill 122. The clear effect of this statutor y amendment is now to give the exclusive jurisdiction of the juvenile session of the district court (juvenile court) to situations involving a delinquency offense committed by a child who has not yet reached his or her eighteenth birthday or who committed the delinquent act while not yet eighteen. The possibility authorized by the amendment of an individual who has committed a public offense while not yet eighteen but for any number of reasons is not charged with the offense until after reaching age eighteen, still being initially brought before the juvenile court, has already been realized. Admittedly, there were many problems trying to apply the Kentucky court's decisions in
Lowry v. Commonwealth, Ky., 424 S.W.2d 841 (1968),
Koonce v. Commonwealth, Ky., 452 S.W.2d 822 (1970),
Locke v. Commonwealth, Ky., 503 S.W.2d 729 (1974), and
Miller v. Anderson, Ky., 519 S.W.2d 826 (1975), along with the United States Supreme Court decision in
Breed v. Jones, 421 U.S. 519 (1975), to situations involving the nearly eighteen-year-old child at the time of the commission of a public offense brought before the juvenile court before reaching age eighteen who shortly thereafter turned eighteen; butt his amendment simply substitutes one dilemma for yet another and potentially one more serious, at that. It is not unreasonable to hypothecate and in fact such situations have already been informally presented to this office for consideration, that a seventeen-year, eleven and a half month-old child will commit a serious felony offense but will not be picked up by the police and charged until a month or so after reaching age eighteen. Under the provisions of KRS 208.020(1) mentioned above, it would make no difference if the "child" who committed a public offense while not yet eighteen was not charged with the crime until he or she was nineteen or twenty or older, the juvenile court still is to have exclusive jurisdiction over the case. Besides the commitment problem presented by such a situation, there is another problem we can see looming on the horizon. That is that the juvenile session of the district court is going to be too anxious to waive the individual because of having already reached age eighteen at the time of first coming before the juvenile court. However, it has to be remembered that in light of the amendment to KRS 208.020, the same procedures and the same careful consideration of the KRS 208.170 criteria must be followed for the individual over eighteen coming before the court because of having committed a public offense while not yet eighteen as is required for the child committing a public offense who has not as yet reached age eighteen. The predominant "reason" for waiving should not be the fact that the child has reached age eighteen.
The question still remains whether the juvenile court, rather than waiving a child who has already reached age eighteen when first brought before the court under the provisions of KRS 208.020, or even who is almost eighteen, could after adjudication, commit the child to the Department for Human Resources. The basic dispositional alternatives section of our juvenile laws, as you know, is KRS 208.200, supra. The plain, literal reading of this section is that a commitment to the Department for Human Resources may only be until the child reaches age eighteen. If the child is nearly eighteen, such disposition would only be for a short period of time, or, if already eighteen, impossible. However, we believe that when the several statutes referred to above are read together, there is authority for the juvenile court to reasonably exercise its power so as to commit a child to the Department for Human Resources until the child reaches age twenty-one. We can only too quickly say we hope this matter will be expeditiously tested in our appellate courts.
Support for our conclusion reached above is to be found, we believe, in the other two statutes first cited above. In KRS 208.194, applicable to children sixteen years of age or older, we believe the General Assembly intended to authorize a commitment to the Department for Human Resources for not less than six months no matter whether the child was just sixteen or was nearly eighteen when committed under this so-called "bridge" program provision. Even more persuasive to contemplating commitment to the Department for Human Resources until at least twenty-one is the provision of KRS 208.180. In this provision, the circuit court can, after a child not yet eighteen who has been waived to the circuit court for trial and who has been tried and convicted of a felony or misdemeanor, commit the child to the Department for Human Resources for an indeterminate period not to exceed age twenty-one. Thus, there are at least two provisions permitting the Department for Human Resources commitment past age eighteen, depending upon the circumstances involved. It is our opinion the language amending the juvenile court's exclusive jurisdiction should not be read, irrespective of the several basic problems presented by it, to require the juvenile court to take jurisdiction over the child already eighteen under the circumstances authorized by the statutes but yet be so out of harmony with the court's broad dispositional powers as to prohibit commitment to the Department for Human Resources. If the juvenile court did not feel waiver of the already eighteen-year-old was proper and could not commit to the Department for Human Resources, there would in fact, then, exist no real dispositional alternative available to the court. Consequently, and because of such illogicalness if we concluded otherwise, we believe under such circumstances, the juvenile session of the district court may commit a child already eighteen or about to reach eighteen to the Department for Human Resources for an indeterminate period not to extend beyond the child reaching age twenty-one.