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