Under the Immigration and Nationality Act, an undocumented juvenile immigrant may apply for permanent residency by obtaining special immigration status. To obtain special immigration status, the immigrant child must present findings to a state juvenile court that satisfy certain criteria.

A Family Court declined to make such special immigration status findings regarding a Guatemalan child residing in Kentucky on jurisdictional grounds. In its order, The Family Court stated that there was no Kentucky statute that expressly required the Family Court to make findings under the special immigration status statute.

The Court of Appeals held that the special immigration status findings fell within the Family Court’s jurisdiction as furthering the purpose of KRS 23A.100 by “assuring an adequate remedy for children adjudged to be dependent, abused, or neglected.” Furthermore, the Court found that requiring the family court to make special immigration status findings did not violate the anti-commandeering provisions of the Tenth Amendment of the United states Constitution because the statute does not impose any specific burden on state courts to comply with a federal scheme, but rather, only requires the family court to act in furtherance of the best interest of a child.

On appeal, the Kentucky Supreme Court reversed the Court of Appeals holding that “the Courts of Kentucky are not required to make additional findings related to special immigration status classification unless the Court first determines that the evidence to be gleaned from such a supplemental hearing is relevant to the child’s best interests.” The Court further held that “under proper circumstances, where such a placement of the child back into the country where he or she was abused, neglected, or abandoned is being considered by the state court, the Courts of Kentucky are empowered under KRS 620.023 and other statutes which grant authority to determine custody or placement of the child, to make additional findings to determine whether it would be in the child’s best interest to return to his or her native country.”

However, in this case, because the child was “in removal proceedings with DHS” and the fact that the child ran away from the home where she had been placed by immigration authorities, the state juvenile process should not be used to circumvent federal immigration law. In this case, the proper place for expert evidence is in federal immigration court, not state court. 

Digested by: Emily T. Cecconi

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“A court may only hold a child in contempt of court to enforce a valid court order previously issued by the court. KRS 610.010(11). It is manifestly unjust to subject a juvenile to sanctions for contempt, especially confinement in a detention facility, when the status offense case against her was effectively terminated without the entry of a valid written order regulating her future conduct. Additionally, the Breathitt Family Court found that C.S. committed “the public offense” of contempt of court even though the Juvenile Code is clear that contempt of court is not a public offense.”

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We don't usually cover truancy or status matters on this blog.  There was one published truancy case decided today, J.L. v. Commonwealth which is linked here, but which we will not digest.

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A.C. v. Com., 2009-CA-000714-ME  

Published:   Vacating, Remanding, and Denying Motion to Dismiss

County: JESSAMINE

Child appealed FC’s order finding her in contempt of court for violation of juvenile probation.

FACTS:

Parents filed “beyond control” juvenile complaint against Child in 2007, and Child requested formal hearing.  A proceeding occurred as a result of the Complaint, but evidence was not taken and the record does not reflect that Child admitted to being beyond control.  FC nonetheless found that Child was beyond control of her parents and entered a “Juvenile Status Offender Order” finding Child to be a status offender.  Child was ordered to serve 1 year of probation per the terms of the Order, which would end in June 2008.  During the probationary period, Cabinet filed a DNA petition with regard to Child, alleging physical and emotional abuse and neglect of Child by Mother and Stepfather.  During one of the early proceedings in the DNA case, Stepfather stated that Child needed to leave the home or he would.  In Child’s presence, FC asked Mother who she would choose.  When Mother failed to choose, FC placed Child with Father, ordered no contact with Stepfather, and allowed Mother supervised visitation.  At adjudication hearing, FC found Child to be abused and continued previous visitation orders.  DNA case was closed in September 2008.  Nonetheless, a March 2009 summons was issued to Father, requiring him to bring Child to court, and Cabinet filed a Motion to Review in the DNA action.  A hearing was heard on the Motion to Review, but FC focused on a contempt charge for alleged violations of her probation, despite the fact that the probationary period had expired.  Child had received no notice that the proceeding would address an alleged violation of her probation.  Child was not allowed counsel during this proceeding, despite the presence of all other counsel.  No evidence was introduced at this hearing and Child did not admit to the allegations against her.  FC admonished Child, revoked her probation, and order her placed with DCBS for no more than 30 days. 

ANALYSIS:

CA found that FC, amongst many other procedural irregularities, failed to hold a hearing on the original “beyond control” complaint as required for FC to find Child to be a Status Offender.  However, since no appeal was taken from that Order, CA was without jurisdiction to reverse the Order. 

CA further found that Child was not provided written notice of the specific grounds constituting her alleged probation violation prior to appearing in court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), FC erred when it heard arguments from the Cabinet, the County Attorney, the GAL, and the attorneys for Child’s parents for more than five minutes during the hearing without Child’s counsel being present to represent her. However, Child was given the opportunity to speak with her attorney prior to FC finding her in contempt for violating the terms of her probation. Nonetheless, no evidence was taken on the alleged violations, and Child did not admit to them. FC also failed to provide a written statement as to the “evidence” it relied upon in support of its finding of contempt and its decision to revoke her probation.  Accordingly, the proceeding which led to Child’s detention was replete with due process violations. The order of March 12, 2009, must be vacated because FC had no jurisdiction to hold her in contempt once the 2007 status offense action expired pursuant to the terms of Child’s probation. 

FC’s Order vacated.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

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Issue: Whether the circuit court erred in sua sponte dismissing an appeal based on untimely perfection of the appeal. The Court held yes, it was error because the juvenile lost his right of appeal solely due to his prior counsel’s negligence.

Facts:

A.M. v. Com., –S.W.3d—(Ky. App. 2007), 2007 WL 491160 (Ky.App) designated to be published.

Issue: Whether the circuit court erred in sua sponte dismissing an appeal based on untimely perfection of the appeal. The Court held yes, it was error because the juvenile lost his right of appeal solely due to his prior counsel’s negligence.

Facts:

A.M., a minor, was charged with being a habitual truant and being beyond control of his mother. After a detention hearing, the district court found A.M. in contempt and sentenced him to thirty days in detention. Later, the district court found A.M. in contempt again and sentenced him to two weeks in detention. Notice of appeal was filed, and the district court entered an order allowing A.M. to proceed in forma pauperis on appeal. A.M.’s case was assigned to an attorney, who entered his appearance. Counsel determined that he needed an extension of time, and drafted a request for a thirty day extension. Counsel then asked an attorney in the London DPA office to file said extension on November 22, 2004, the same day the statement of appeal was due. However, unbeknownst to counsel, the request was never filed. Counsel then filed his statement of appeal on December 22, 2004. In April 2005 counsel filed a motion to substitute counsel.
In November 2005, new counsel then filed a motion to review or reverse the district court’s contempt order, alleging that the Commonwealth’s failure to file a counterstatement should be deemed a confession of error. The Commonwealth did not respond or appear for the hearing. The circuit court sua sponte dismissed the appeal, ruling that the appeal was not timely perfected. A.M. then filed a motion to alter, amend, grant an enlargement of time, or grant belated appeal. The Commonwealth did not respond, and the circuit court denied the motion. The Court of Appeals granted discretionary review.

Analysis:

Wine v. Commonwealth, 694 S.W.2d 689 (Ky. 1985) is controlling and entitles A.M. to have his appeal reinstated. Since A.M’s right of appeal was lost solely due to the negligence of his prior counsel, he is entitled to a belated appeal.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com

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Same day. Same argument.