Opinion
NO. 2011-CA-001635-ME
01-18-2013
I.K.W., A CHILD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE John Wampler Assistant Public Advocate Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NOS. 09-J-00064 & 09-J-00064-00
OPINION
AFFIRMING
BEFORE: NICKELL, TAYLOR, AND VANMETER, JUDGES. NICKELL, JUDGE: This appeal is taken from an adjudication of the Boone Family Court finding I.K.W., a child, beyond the control of his parents. We affirm.
I.K.W. was placed on probation for six months under the supervision of the Cabinet for Health and Family Services after he admitted to being beyond the control of his parents. The probation expired on March 28, 2011. His parents filed another beyond control of parents petition shortly thereafter, on April 4, 2011. A hearing on the petition was held on July 26, 2011. I.K.W. was sixteen years of age at that time, and he was represented by counsel. Testimony was heard from I.K.W.'s parents. The trial court made the following findings:
[I.K.W.] has issues with drugs, violence, out of control behavior, destruction of property. Can't prove drug issue - found rolled papers, cigar, cigarettes, smell like tobacco. Since 3/11 - I.K.W. using dad's work phone to Facebook, punched walls, fought with dad physically. King's Island - punching and knocking back of Mom's seat - bent car seat. (7/16/11). Hit the back of her head seat in car - opened car door to jump out into interstate 60 mph. Punched dad in stomach and groin area - when had to clean car, I.K.W. was banging doors, throwing things. Suspended from school for using and selling marijuana at school.
The trial court's disposition was to order I.K.W. "probated" to his parents. He was ordered to follow their house rules and prohibited from possessing any illegal substances or tobacco products.
On appeal, I.K.W. argues that there was insufficient evidence that the events testified to by his parents occurred after the expiration of the prior supervision period, on March 28, 2011, and before the filing of their petition on April 4, 2011. He contends that the same events may have been used as evidence to support his placement on probation for six months on September 28, 2010. Although the alleged error is not preserved, he argues that it should be reviewed under the palpable error standard because it violated the prohibition against double jeopardy. See Kentucky Rules of Criminal Procedure (RCr) 10.26.
"Beyond the control of parents" is defined as follows:
a child who has repeatedly failed to follow the reasonable directives of his or her parents, legal guardian, or person exercising custodial control or supervision other than a state agency, which behavior results in danger to the child or others, and which behavior does not constitute behavior that would warrant the filing of a petition under KRS Chapter 645[.]KRS 600.020(3).
Juvenile proceedings are conducted in accordance with KRS 610.080, which states in relevant part:
Juvenile proceedings shall consist of two (2) distinct hearings, an adjudication and a disposition, which shall be held on separate days unless the child, after consultation with an attorney, waives the right to a formal predisposition investigation report and moves that the hearings be held the same day. . . .
(1) The adjudication shall determine the truth or falsity of the allegations in the petition and shall be made on the basis of an admission or confession of the child to the court or by the taking of evidence.
(2) Unless otherwise exempted, upon motion by any child brought before the court on a petition under KRS 610.010(1), or 610.010(2)(a), (b), or (c), the Rules of Criminal Procedure shall apply. All adjudications shall be supported by evidence beyond a reasonable doubt, unless specified to the contrary by other provisions of KRS Chapters 600 to 645. . . .
On review, we are required to show deference to the factual findings of the trial court:
The adjudication hearing is conducted by the court without a jury. Accordingly, under Kentucky Rules of Civil Procedure (CR) 52.01, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A trial court's factual finding is not clearly erroneous if supported by substantial evidence.W.D.B. v. Commonwealth, 246 S.W.3d 448, 452-453 (Ky. 2007).
When a juvenile challenges the sufficiency of the evidence, because the Commonwealth carries the same burden of proof as it does in an adult criminal case to show that a juvenile committed an offense, we borrow from the criminal law and apply the directed verdict standard of review. Thus, in the case of a juvenile adjudication, a reviewing court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth and determine if, under the evidence as a whole, it would be clearly unreasonable for the trial court to find guilt, only then the juvenile is entitled to a directed verdict of acquittal.
At the hearing, I.K.W.'s mother testified that the episode in which I.K.W. became angry and punched his father in the stomach and groin area occurred after March 28, 2011. The parents' petition of April 4, 2011, specifically described this episode in its allegations.
The mother also testified that I.K.W. had been suspended from school since March 28, 2011, for using marijuana on school property.
Therefore, as to at least two of the court's findings, that I.K.W. had punched his father in the stomach and groin area and that I.K.W. had been suspended from school for using marijuana, there was more than sufficient evidence that they occurred after the expiration of the prior period of probation and before the filing of the second petition. Under the directed verdict standard, it was not clearly unreasonable for the trial court to find that I.K.W. repeatedly failed to follow his parents' reasonable directives and posed a danger to himself and others during the relevant period.
The Boone Family Court's order finding I.K.W. beyond his parents' control is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE John Wampler
Assistant Public Advocate
Frankfort, Kentucky