F. (K. K.) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000478-ME
K.F., A CHILD UNDER EIGHTEEN
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 96-J-00437
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: STUMBO AND THOMPSON, JUDGES; GUIDUGLI,1 SENIOR
JUDGE.
STUMBO, JUDGE: This appeal arises from the Fayette Family Court’s
commitment of K.F. to the Cabinet for Families and Children (hereinafter
“Cabinet”) after she was found in contempt for not following the orders of the
court. She was originally adjudicated a status offender for being “beyond control
1
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
of parent.” K.F. argues that her commitment must be vacated because she was
never charged with contempt or given notice of contempt proceedings, was refused
two hearings guaranteed to her under Kentucky Revised Statutes (KRS) 610.080,
that her commitment was not the least restrictive alternative, and that commitment
is not a possible disposition for contempt. We find that some of her arguments
have merit and her commitment must be vacated.
On June 20, 2007, K.F. was charged with fourth-degree assault after
hitting her mother during a domestic dispute. K.F. later stipulated to an amended
charge of beyond control of parent. Orders were entered in which K.F. was
restricted in her activities and was told to follow the rules set forth by her mother,
her school, and the Cabinet. The last such order was a Dispositional Report made
by the Cabinet which the judge adopted and signed as an order. This was entered
into the record on January 2, 2008.
On February 20, 2008, K.F. and her counsel went to court for what
they believed was a review, but turned out to be a probable cause and custody
hearing. The hearing was called because K.F. had missed a number of days at
school in violation of the January 2, 2008, order. The hearing was to determine if
K.F. was in contempt of court. The court questioned K.F. about her absences and
found probable cause that she was in contempt of court and set another hearing for
February 27, 2008.
K.F. argues that no motion, report, or custody order regarding
contempt had been filed prior to the February 20, 2008, hearing. She is correct. A
3
social worker for the Cabinet present at the hearing apologized for not giving
K.F.’s counsel any notice of the true purpose of the hearing. Additionally, there is
nothing in the record indicating the Cabinet was seeking to put K.F. into custody or
hold her in contempt of the court’s order.
In order for any defendant to prepare and defend against allegations of
contempt, proper notice must be given. Failure to give proper notice of these
proceedings necessitates vacating K.F.’s commitment to the Cabinet and
remanding the case to the trial court. Q.C. v. Commonwealth, 164 S.W.3d 515
(Ky. App. 2005); Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996).
K.F. also argues that her commitment should be vacated because the
trial court denied her separate adjudication and disposition hearings. She is again
correct. KRS 610.080 states:
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. However, if the
disposition is to be commitment, the child’s waiver shall
not be valid without the consent of the Department of
Juvenile Justice or the cabinet.
The February 20, 2008, hearing was only a probable cause hearing,
not an adjudication. On February, 27, 2008, there was a hearing to determine an
appropriate placement for K.F. At the beginning of the hearing, the
Commonwealth waived the separate KRS 610.080 hearings and moved for the
commitment of K.F. to the Cabinet. Defense counsel objected and stated that it
4
was only the juvenile who could waive the separate hearings. The trial court
overruled the objection.
Defense counsel is correct that KRS 610.080 unmistakably mandates
that only the juvenile can waive separate hearings. It also states that if the
disposition is to be commitment, as it was here, then the waiver must be approved
by the Department of Juvenile Justice or the Cabinet. While the Cabinet might
have effectively approved of the waiver, since the Cabinet’s counsel is the
Commonwealth, only the child can waive his or her rights. We therefore find that
there should have been both an adjudication hearing and disposition hearing. This
too is reason enough to vacate the commitment and remand the case to the trial
court.
K.F. also claims that the court erred because commitment was not the
least restrictive alternative because an aunt was willing to take K.F. Additionally,
K.F. states that the court should have made findings as to why commitment was
the only option. KRS 600.010(2)(c) states that “[t]he court shall show that other
less restrictive alternatives have been attempted or are not feasible in order to
insure that children are not removed from families except when absolutely
necessary.”
KRS 600.020(35) states:
“Least restrictive alternative” means, except for purposes
of KRS Chapter 645, that the program developed on the
child’s behalf is no more harsh, hazardous, or intrusive
than necessary; or involves no restrictions on physical
movements nor requirements for residential care except
5
as reasonably necessary for the protection of the child
from physical injury; or protection of the community, and
is conducted at the suitable available facility closest to
the child’s place of residence.
Here, the trial court did not make any written findings or state during the hearings
what alternatives had been tried. While the trial court should have done so, X.B. v.
Commonwealth, 105 S.W.3d 459, 461 (Ky. App. 2003), this is not fatal to the
commitment.
In X.B., supra, this Court vacated a commitment because the lower
court did not affirmatively state why it felt commitment was the only recourse or
what less restrictive alternatives had been tried. This Court stated: “[h]ad the
record clearly indicated that X.B. had been before the court on previous occasions
and that the court had attempted lesser restrictive alternatives, then the result herein
may have been different.” X.B. at 461. Such was the case here. The record is full
of second chances, house confinement, foster care, and other alternatives the
Cabinet and court tried in order to help K.F. The court tried less restrictive
alternatives and the record shows why commitment was the only option left for
K.F. However, since we are vacating the commitment and remanding the case to
the trial court, this argument is moot.
K.F.’s final argument for vacating her commitment is that
commitment is not a possible disposition for contempt. We find the unpublished
cases of K.M. v. Commonwealth, 2006 WL 1719752 (Ky. App. 2006), and K.A.C.
6
v. Commonwealth, 2006 WL 2034300 (Ky. App. 2006), to be helpful2 in resolving
this issue. In both cases, the juvenile argued that commitment is not a permitted
disposition for a finding of contempt. In both cases this Court held “[w]e do not
construe the family court’s decision to commit [the child] to the Cabinet as based
merely upon its finding of contempt. We, rather, construe the disposition as
having been made in light of [the child’s] continuing out of control conduct, the
entire record, and all of the circumstances involved.” K.A.C. at 6. If, on remand,
the family court makes appropriate findings after properly conducted proceedings,
we see no bar to commitment as an appropriate disposition on a finding of
contempt.
For the above reasons we hold that K.F.’s commitment to the Cabinet
must be vacated and the case remanded back to the trial court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gail Robinson
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
M. Lee Turpin
Special Assistant Attorney General
Lexington, Kentucky
2
Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) allows us to consider unpublished cases
that address an issue not found in published cases.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.