1. Senate Bill 200: Part 3 2015 Annual Conference Tim Arnold Glenda Edwards

2. SB 200 Created FAIR teams, which were intended to divert offenders, including status offenders, from the court process. No change to status offense statutes, or to valid court orders.

3. SB 200 Change to preliminary inquiry process – no status offense case can be referred to court unless: The child is on their fourth status or nonfelony public offense The child demands it (and FAIR team approves) The child fails diversion (and FAIR team approves) The court, after conducting a case specific review, orders the case referred to court.

4. FAIR Teams Family Accountability Intervention and Response Established by KRS 605.035

5. Members of the FAIR team CDW or CDS Counsel member Cabinet rep County Attorney rep DPA rep Public School rep Law enforcement rep “other persons interested in juvenile justice issues” who are “necessary for a complete representation of resources.”

6. FAIR Teams CDW or CDS responsible for leading the team. KRS 605.035(3). Required to adopt a “case management approach and process” for reviewing cases. KRS 605.035(4). May refer case either to CDW for diversion, or county attorney for prosecution. KRS 605.035(5).

7. FAIR Teams Under JCRPP 4 E., FAIR teams are expected to conduct “enhanced case management” upon referral by CDW, in the following cases: – GAIN instrument shows child is high risk – Child fails to appear to preliminary intake inquiry – Child declines diversion agreement – Child fails to complete diversion agreement – If appropriate, after consultation with the DPP, in cases where truancy or beyond control of school are alleged

8. Limitations on FAIR teams Generally, FAIR teams: – Cannot drug test the child, – Cannot put the child on probation, – Cannot put the child in custody, and – Cannot treat the process as a mini-court system.

9. Conflicts of Interest Rule 1.7(a) states: “... a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”

10. Conflicts of Interest Conflict of Interest. A FAIR Team member who has a conflict of interest should not participate in the review of a case. A conflict of interest includes circumstances in which the FAIR Team member is a member of the child’s family, or a neighbor, or a friend of the child or the child’s family; or is involved in any other relationship, whether professional, business, or personal, with the child or the child’s family that would make the FAIR Team member privy to information about the child or family that might influence the member’s perception of the case or of those involved in the case. – FAIR Team Guideline 4.2

11. Confidentiality Rule 1.6(a) states that “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [by a specific provision of the Rules of Professional Responsibility.]”

12. Confidentiality FAIR Team members are subject to applicable confidentiality disclosure, re-disclosure, and access restrictions imposed by federal or state law. Upon appointment to the FAIR Team, members shall be required to sign an agreement of confidentiality concerning information obtained by or disclosed to the FAIR Team, either written or verbal. – FAIR Team Guideline 4.1

13. What does DPA want from me? Participate Participate actively Report to your supervising attorney about successes and frustrations Be available to give input

14. Goal for status offenders: Protect diversion

15. Is the child eligible for diversion? KRS 610.030(6) does not include a provision permitting referral of status offender to Court at this stage. However, KRS 605.030(1)(e) states that the CDW may “Dispose of complaints limited to a total of three (3) status or nonfelony public offense complaints per child and, with written approval of the county attorney, one (1) felony complaint that does not involve the commission of a sexual offense or the use of a deadly weapon.”

16. New Process for Runaways – KRS 610.012 When child is picked up by law enforcement, the following rules apply: If child is from out of state, child may be detained under the terms of the interstate compact pending return to the home state. If law enforcement elects to return the child to the home, they can do that. – May charge with habitual runaway if the child qualifies If law enforcement does not wish to return the child to their home, then new process applies.

17. New Process for Runaways – KRS 610.012 If child is not an habitual runaway but return to home is not appropriate, cabinet may initiate an ex parte request for an “emergency custody order” pursuant to the D/N/A statutes. If child is an habitual runaway, the peace officer may request an ex parte “emergency protective custody order.” JCRPP 10 C.

18. New Process for Runaways – KRS 610.012 Order may be issued ex parte, and may: – Place child in non-secure setting for up to 72 hours, or – Place the child in a secure setting for up to 24 hours, based on a finding that no less restrictive alternatives are available. If child is an habitual runaway, the peace officer may request an ex parte “emergency protective custody order.” JCRPP 10 C.

19. New Process for Runaways – KRS 610.012 Prior to the expiration of the detention time, the court must have a hearing. At the hearing, the court can either – Order the child returned home, and CDW to file a complaint for habitual runaway, or – Issue an emergency custody order under KRS Ch. 620 as a D/N/A case. Statute does not provide for an ex parte hearing, only an ex parte request for an EPCO.

20. The New Pre-Petition Process Step 1: CDW Reviews Complaint, Determines Whether Action Required Step 2: CDW Meets with Complaining Witness Step 3: CDW Conducts Preliminary Intake Inquiry Step 4: CDW Decides to Take No Action or Refer to Formal Conference for Diversion Step 5: If referred to Formal Conference, diversion agreement created Step 6: If Diversion completed successful, case dismissed. If unsuccessful, graduated sanctions or referral to court. Step XXX: Court reviews CDW decisions and refers case to court

21. Step 1: CDW Reviews Complaint Complaint must “appear to be complete” before taking action. FCRPP 40 Requires Use of Appropriate AOC Form to Submit Complaint – Truancy: AOC-JV-41 – Beyond control of school: AOC-JV-38.1 – Beyond control of parent : AOC-JV-38 – Habitual runaway: AOC-JW-39

22. Step 1: CDW Reviews Complaint KRS 630.060(2) states that: “No complaint shall be received by the court designated worker alleging habitual truancy unless an adequate assessment of the child has been performed pursuant to KRS 159.140(1)(c), (d), and (f), unless it can be shown that the assessment could not be performed due to the child's failure to participate.”

23. Step 1: CDW Reviews Complaint Failure to comply with this requirement requires dismissal of the case. T.D. v. Commonwealth, 165 S.W.3d 480 (Ky. App. 2005); N.K. v. Commonwealth, 324 S.W.3d 438 (Ky.App. 2010); B.H. v. Commonwealth, 329 S.W.3d 360 (Ky.App. 2010). As of 7/1/15, these requirements will apply to any petition filed by the school. KRS 605.020(10).

24. Step 2: CDW Meets w/Complainant Before commencing any judicial proceedings on any complaint alleging the commission of a status offense, the party or parties seeking such court action shall meet for a conference with a court-designated worker for the express purpose of determining whether or not: (1) To refer the matter to the court by assisting in the filing of a petition under KRS 610.020; (2) To refer the child and his family to a public or private social service agency. The court-designated worker shall make reasonable efforts to refer the child and his family to an agency before referring the matter to court; or (3) To enter into a diversionary agreement. - KRS 630.050

25. Step 2: CDW Meets w/Complainant There is no specific timing requirement – so long as the meeting happens prior to a court referral, it is valid. Generally the meeting will happen when the complaint is received. Point of the meeting is to avoid a complaint.

26. Step 3: CDW Conducts Preliminary Intake Inquiry Child must be told that information given to CDW during diversion process is confidential. Counsel may be present for the hearing. Child may demand a formal court hearing. CDW required to give child a validated risk and needs assessment.

27. What if the child fails to appear? “If a child fails to appear for a preliminary intake inquiry, declines to enter into a diversion agreement, or fails to complete a diversion agreement, then:... For a status offense complaint, the court-designated worker shall refer the matter to the family accountability, intervention, and response team for review and further action.” KRS 610.020(9)(b)

28. Step 4: CDW Decides Whether to Divert If CDW decides to take no action, FAIR team must approve. If approved, case resolved. If CDW decides to divert, must refer for a “Formal Conference”. The terminology is new, and is confusing in light of formal statute’s use of the term “formal hearing,” meaning court.

29. Step 5: Referral for Formal Conference The diversion agreement: – Cannot exceed six (6) months – Must require the child to attend school – May include one or more of six possible requirements

30. Options for Diversion – KRS 610.030(8)(b) 1.Referral of the child, and family if appropriate, to a public or private entity or person for the provision of identified services to address the complaint or assessed needs; 2.Referral of the child, and family if appropriate, to a community service program within the limitations provided under KRS 635.080(2); 3.Restitution, limited to the actual pecuniary loss suffered by the victim, if the child has the means or ability to make restitution;

31. Options for Diversion – KRS 610.030(8)(b) 4.Notification that the court-designated worker may apply graduated sanctions for failure to comply with the diversion agreement; 5.Any other program or effort which reasonably benefits the community and the child; and 6.A plan for monitoring the child's progress and completion of the agreement.

32. Violations of Diversion AOC required to have a “graduated sanctions protocol”, which should require use of graduated sanctions prior to terminating the diversion agreement. KRS 605.020(7) CDW is permitted to use graduated sanctions, though may (should) be required to do so by the protocol. KRS 605.030(1)(m). Where the child fails diversion, the case is required to be referred to the FAIR team for review and further action.

33. Step XXX: Review by Judge FCRPP 39: “Pursuant to KRS 610.030, if the court designated worker determines that a status offense complaint meets the criteria for diversion and a diversion agreement is reached, a petition shall not be filed. Upon review of the diversion agreement, the court on its own motion, or upon written request to the court by the county attorney, may refer the complaint for formal hearing”

34. Step XXX: Review by Judge KRS 610.030(11) provides that throughout the process “the court or the county attorney may review any decision of the court-designated worker. The court upon its own motion or upon written request of the county attorney may refer any complaint for a formal hearing.”

35. Step XXX: Review by Judge Statutes and rules require individual review. Review is to occur after the diversion agreement is reached. As of July 1, 2015, most status offense complaints are not eligible to be referred to court initially. Any time a court requires a case to be referred to court without an order stating that he has reviewed the diversion agreement and orders the case referred, we should litigate.

36. Referral to Court Once referred to court, check to be sure that the pre- petition process was followed correctly. Where the process was not followed, argue that the court lacks jurisdiction to proceed, a la T.D. v. Commonwealth, 165 S.W.3d 480 (Ky. App. 2005). Especially where the court is short circuiting diversion, remember all defenses still apply. Make the court process difficult!

37. Clicker time!

38. Enter Question Text 1.Eastern Region 2.Bluegrass Region 3.Western Region 4.Northern Region 5.Central Region 6.Louisville office

39. FAIR Team You show up to a FAIR team meeting to find that the room is packed with DPP’s, 8 in all, representing 4 districts. The county attorney is absent as usual. The first case is a truancy case involving a youth who appears to have significant mental health issues. The DPP’s want the child detained. You, a local psychologist, and the representative from the RIAC all believe that treatment options are available. The CDW puts it to a vote, and your side loses 8-3. The CDW, who appears to be very chummy with the DPP’s, appears pleased with the result.

40. The vote is improper because the district only gets one representative on the team. 1.True 2.False KRS 605.035(2) lists the members of the team, and only includes room for 1 member of a school district. While the list includes a provision to add additional people, those additional people must be “identified by” the FAIR team, and “necessary for complete representation of resources” not merely invited by the CDW.

41. If this happens, counsel should 1.Report the CDW to Glenda 2.Object to the improper procedure in the FAIR team meeting. 3.Object to the referral once the case is in court 4.All of the above

42. Jimmy Jimmy did not home until 1 a.m. again on July 15, 2015, and Jimmy’s mom, a single parent, is at her wits end. She speaks with a police officer who advises her to file a beyond control of parent petition. She goes to the CDW’s office, and completes the form. The CDW speaks with mom briefly to confirm the facts. The CDW sends a letter to the home requesting that Jimmy to come to the courthouse to speak. Jimmy and his mom fail to appear, and the matter is referred to court. In Court, you meet Jimmy and mom for the first time. Jimmy’s mom is concerned that they are in court. She only wanted him to get services, and doesn’t think her son should be in court. She claims that they never got the letter for the preliminary conference.

43. Counsel should investigate the following: 1.Whether the CDW’s conversation with the parent included a discussion of possible referrals. 2.What efforts the CDW made to avoid referral to Court. 3.Whether the FAIR team was consulted before a referral was made. 4.Whether the Court ordered the referral. 5.All of the above

44. You can file a motion to dismiss for lack of jurisdiction if... 1.The CDW did not discuss possible referrals with the mother. 2.The judge did not ask for a referral, and the CDW did not consult with the FAIR team before referring it to Court. 3.The judge referred the case without first seeing a diversionary agreement 4.All of the above

45. Rachel Correctional Industries Unified School District (motto: “we jail because we care”) has a policy of referring all truancy cases to court as soon as it is legally available. Rachel purchased a beat up AMC Gremlin with money she made at a fast food restaurant. Due to its temperamental nature, she has been late for school on 6 separate occasions during the 2015-2016 school year, for a total of 23 minutes. She has a B+ average and is viewed as a good student. The DPP files a petition which includes documentation showing that the school was aware of the fact that Rachel’s lateness has been due to car trouble. The DPP has met with the CDW and asked that the case be referred to court. Rachel meets with the CDW, who conducts the required assessment. After meeting with the FAIR team, the CDW decides to take no further action on the complaint. The judge, who has spoken with the DPP, then refers the case to court.

46. What motions can you file? 1.A motion to dismiss because the court cannot refer a case to court without seeing the diversion agreement. 2.A motion to dismiss because the judge had no basis to refer the case to court. 3.A motion to dismiss because the whole case is just too darned stupid to be in court 4.A motion to dismiss because the DPP failed to act on their knowledge of the cause of the truancy 5.All of the above

47. Joseph Joseph, who has no prior record, had 23 unexcused absences in the 2015-2016 school year when the DPP filed a truancy petition in late November, 2015. The Petition indicates that a home visit was attempted several times but nobody cooperated. During the preliminary inquiry process, the CDW gives an assessment and determines that Joseph has a strong indication of mental illness. Her conversations with Joseph indicates that he is missing school because he cannot follow along and feels “stupid.” The petition indicates that Joseph is not receiving special education services.

48. The CDW Can... 1.Without consulting the FAIR team, refuse to act on the complaint until the school evaluates Joseph for special education services 2.With FAIR team approval, refuse to act as described in #1. 3.Adopt a diversion agreement which includes referral for services related to school. 4.All of the above

49. Jane Jane had a diversion in 2014 for a felony shoplifting offense, which was successfully completed. She then had diversions for truancy and possession of marijuana in 2015, which were also completed succesfully. In January 2016, the DPP charges her again with truancy.

50. Jane is eligible for diversion 1.True 2.False

51. Michael Michael has had a diversion for truancy charges in 2013 and for beyond control of school in 2014. Both were completed succesfully. He then had a diversion for disorderly conduct in 2015 which was ultimately referred to court and resulted in an informal adjustment, which has also been completed. In early 2016, Michael is charged with truancy based legally sufficient petition showing 35 unexcused absences.

52. Should the CDW consider diversion? 1.Yes, diversion is required 2.Yes, but she does not have to divert. 3.No, Michael is not eligible for diversion.

53. Team Scores PointsTeamPointsTeam

54. Team MVP PointsTeamParticipant

55. “May I be excused? My brain is full.”