S.B. v. Commonwealth, ___ S.W.3d___, 2012-CA-000868-ME (Ky.
App. 2013) (to be published) (not yet final)
The family court did not have subject matter jurisdiction
over habitual truancy case where Affidavit and Truancy Evaluation form
(required by FCRPP 40) was “virtually blank.” This form was created to
assist schools in documenting compliance KRS 159.140(1), which requires the
school to conduct a home visit and ascertain the causes of truancy before
filing a petition. At a hearing on trial counsel’s motion to dismiss, the
DPP testified that his assistant did a home visit but there was no testimony as
to what he found and the assistant did not testify. The Court reversed and
reaffirmed T.D. v. Comm; the intent of the legislature was to make it
“rigorous” to bring a juvenile to court on a status offense case.
Jessica Schulte from the LaGrange trial office did an
excellent job litigating and preserving this issue!
Practice Tip: scrutinize the forms required by the FCRPP in
all status offenses to make sure there has been substantial compliance.
The Commonwealth can call witnesses to testify as to what steps the school has
made to try and prove SMJ, but be sure to hone in on whether those steps were
made before or after the petition was filed. The statute and case law
makes clear that the school must make efforts before filing a
petition. See T.D. v. Comm., 165 S.W.3d 480 (Ky.App.2005); B.H.
v. Comm., 329 S.W.3d 360 (Ky. App. 2010); N.K. v. Comm.,
324 S.W.3d 438 (Ky. App. 2010).
Contributed by Renee VandenWallBake
