Cabinet for Health & Family Servs. v. R.S.

570 S.W.3d 538
CourtMissouri Court of Appeals
DecidedDecember 13, 2018
Docket2017-SC-000587-DG
StatusPublished
Cited by7 cases

This text of 570 S.W.3d 538 (Cabinet for Health & Family Servs. v. R.S.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cabinet for Health & Family Servs. v. R.S., 570 S.W.3d 538 (Mo. Ct. App. 2018).

Opinions

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

Under Kentucky's Unified Juvenile Code, a neglected child is one whose parent "[c]reates or allows to be created a risk of physical or emotional injury ... by other than accidental means"1 or "[c]reates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child...."2 Deciding whether a child is a neglected child under the Code is a judicial function, requiring proof by a preponderance of the evidence. And, when we review these trial court determinations on appeal, *540we do so for abuse of discretion, affording these decisions a high degree of insulation from appellate revision because, in addition to the written record, the trial court has experienced the proceedings directly and observed the litigants first-hand.3

We granted discretionary review to consider whether the trial court abused its discretion when it found the two children in the present case to be neglected children under the Code and in its dispositional order required in-home supervision by their mother of all contact with them by their father, who has a history of criminal convictions for sexually abusing his underage half-brother and a failure to comply with conditions of probation. Upon our review of the record, we hold that the trial court did not abuse its discretion. We reverse the contrary decision of the Court of Appeals and reinstate the trial court's order.

I. BACKGROUND.

In 2003, as an eighteen-year-old high school student, Robert4 performed oral sex upon and received oral sex from his twelve-year-old half-brother. Again, in 2006, Robert engaged in the same abusive behavior with the same half-brother. At the time of the second act of sexual abuse, the two were twenty-one and fifteen-years-old.

In February 2007, Robert pleaded guilty to third-degree sodomy for the 2006 act of sexual abuse. He was sentenced to two years in prison, with the entire sentence probated for three years. As a condition of his probation, Robert was ordered to complete the Sex Offender Treatment Program (SOTP) and was prohibited from living in the same household as minor children.5

In March 2007, Robert pleaded guilty to first-degree sexual abuse stemming from the 2003 act of sexual abuse. He was sentenced to one-year imprisonment, probated on the conditions that he live outside Clark County, Kentucky, have no contact with his victim, have no unsupervised contact with minors, and that he complete SOTP.6

Because of Robert's convictions for two sex crimes against a minor victim, he is required to register as a sex offender for the remainder of his life.7

As required by the conditions of his probation, Robert entered SOTP in June 2007. But he was terminated from the program in August 2009 after allowing a family with two minor sons to live with him for a week and a half in violation of his *541probation. He admitted to this violation and served 27 days in jail as a result.

Robert re-entered SOTP in March 2010 but was discharged from the program in April 2011. His discharge summary indicates that Robert was "[u]nable to complete all phases of treatment due to [the] [e]xpiration of [his] sentence." The summary specifies "[g]iven that [Robert]'s probation sentence expired on April 2, 2011, he is being discharged from the SOTP effective April 19, 2011." Although Robert did not complete the program, he did complete "the autobiography, ownership, a basic relapse prevention plan, and portions of the sexuality and victim awareness modules." The discharge summary notes that Robert "put forth some effort at improving" during the program "by processing his issues ... in group." The discharge summary also notes that Robert, while in the SOTP, had been grouped with special-needs individuals because of his literacy and maturity deficits. Finally, the discharge summary notes that Robert's "primary risk factors appear to involve his emotional immaturity, passivity, esteem deficits, and isolation."

Robert's discharge summary contained three conditions: (1) have no contact with children unless approved by his probation or parole officer; (2) not reside with children without the permission of probation or parole; and (3) submit to a polygraph examination. The discharge summary indicated that Robert scored in the low-moderate category for re-offending based on the "Static 99" risk assessment.

In June 2011, Robert pleaded guilty to failing to register as a sex offender.

Robert met Alice in 2011 and told her of his criminal record early in their relationship. The two married in 2012 and had their first son that year. Robert and Alice had their second son in 2015.

While Alice was pregnant with the couple's younger son, the Cabinet for Health and Family Services (CHFS) opened an investigation into Robert and Alice's family and eventually filed in the family division of the circuit court a dependency, neglect, or abuse (DNA) petition regarding the parents' older son and a second petition regarding their younger son a month later. The first DNA action alleged the older son was "at risk of harm" due to Robert's "past history of sexual offenses and placement on the sex offender registry." The second DNA action alleged the younger son was "at risk of harm" because Robert "resides in the home and is a registered sex offender." CHFS's case history in its DNA dispositional report indicates that "CHFS became involved with the family on 1-12-15 when a report was received that a registered sex offender was living in the home with his 2-year-old son and that he was unsupervised with the child placing the child at risk of harm."

At all points during the CHFS investigation and DNA action, Robert and Alice complied with CHFS's recommendations. CHFS recommended that Robert submit to a sex-offender risk assessment, and the trial court ordered that he do so. CHFS provided Robert with a list of providers to conduct the assessment, and he chose Dr. Connor. Dr. Connor wrote a report based on his psychological and psychosexual evaluation of Robert. And the trial court considered his report in making its findings in the case.

In Dr. Connor's report, he first described the battery of tests, the results of which he considered in determining Robert's risk to reoffend.8 After discussing *542Robert's history at length,9 Dr. Connor's report explained the psychometric test results and evaluated the risk for sexual re-offense.

Dr. Connor noted that Robert scored favorably on the "Parenting Awareness Skills Survey" and the "Parenting Stress Inventory." Dr. Connor also administered the "Child Abuse Potential Inventory," where he found the following:

[T]he Child Abuse Potential Inventory ... is an instrument utilized to determine if a person has character traits typically found in those who are abusive toward children. On this instrument, [Robert] responded in a slightly guarded manner thus compromising the reliability and validity of the test results.

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Bluebook (online)
570 S.W.3d 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabinet-for-health-family-servs-v-rs-moctapp-2018.