RENDERED: MARCH 6, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-1133-ME
C.B. AND W.J. APPELLANTS
APPEAL FROM HARDIN FAMILY COURT v. HONORABLE M. BRENT HALL, JUDGE ACTION NO. 23-J-00238-001
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; HARDIN COUNTY ATTORNEY; AND Z.A.J., A MINOR CHILD APPELLEES
AND
NO. 2024-CA-1134-ME
APPEAL FROM HARDIN FAMILY COURT v. HONORABLE M. BRENT HALL, JUDGE ACTION NO. 23-J-00236-001 CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; HARDIN COUNTY ATTORNEY; AND Y.J.J., A MINOR CHILD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: C.B. (Mother) and W.J. (Father), pro se, appeal findings of
the Hardin Family Court’s orders entered July 3, 2024, and July 15, 2024, finding
that Mother and Father had abused and neglected their minor children (Z.A.J. and
Y.J.J.).1 Upon review, we affirm.
BACKGROUND
On June 18, 2023, Z.A.J., who was at the time one month and four
days old, presented at Norton Children’s Hospital (NCH) with respiratory distress,
rib fractures, a lacerated or bruised liver, bilateral subconjunctival hemorrhages
(bleeding to the white portion of the eyes), and what NCH’s radiologist identified
as leg bone fractures and a transverse (back of the head) occipital skull fracture.
1 The family court heard the cases involving both children together. The adjudication orders in the dependency, neglect, and abuse proceedings were entered on July 3, 2024, and the final depositional orders were entered on July 15, 2024. On appeal, the cases have been considered together by this Court.
-2- Mother and Father, who identified themselves as Z.A.J.’s sole caregivers at all
relevant times, offered no explanation for Z.A.J.’s injuries. Suspecting physical
abuse as the cause, NCH reported the matter to the Cabinet for Health and Family
Services (CHFS). Following an investigation, CHFS initiated dependency,
neglect, and abuse (DNA) proceedings in Hardin Family Court and petitioned for
custody of Z.A.J. on June 21, 2023. While Z.A.J. was in the hospital and out of
concern for Y.J.J. (Z.A.J.’s older sibling by approximately one year), CHFS also
petitioned for custody of Y.J.J. on grounds of abuse and/or environmental neglect.2
The family court subsequently granted CHFS’s petitions, and CHFS
has had custody of both children since June 21, 2023. Following an adjudication
hearing, the family court found Z.A.J. and Y.J.J. to be abused or neglected
children; and following a disposition hearing, the family court committed both
children to the custody of CHFS. Mother and Father now appeal. Their arguments
primarily contest the family court’s findings of abuse of Z.A.J.3 The substance of
their arguments and additional facts will be discussed in our analysis.
2 C.B. (Mother) and W.J. (Father) had taken urine screens that demonstrated positive for THC. An analysis of a hair sample from Y.J.J. was also positive for THC. 3 The Court notes that appellant’s briefs for both cases fail to comply with the Kentucky Rules of Appellate Procedure. Frankly, the Court could strike both briefs and dismiss the appeal. However, given appellants are proceeding pro se, and the case looks to the abuse and neglect of young children, the Court has declined to impose sanctions and has elected to address the merits of both cases upon a de novo review of the record below.
-3- STANDARD OF REVIEW
DNA proceedings are governed by Kentucky Revised Statutes (KRS)
Chapter 620. KRS 620.010 mandates that:
[T]his chapter shall be interpreted to effectuate the following express legislative purposes regarding the treatment of dependent, neglected and abused children. Children have certain fundamental rights which must be protected and preserved, including but not limited to, the rights to adequate food, clothing and shelter; the right to be free from physical, sexual or emotional injury or exploitation; the right to develop physically, mentally, and emotionally to their potential; and the right to educational instruction and the right to a secure, stable family. It is further recognized that upon some occasions, in order to protect and preserve the rights and needs of children, it is necessary to remove a child from his or her parents.
“The burden of proof shall be upon the complainant, and a
determination of dependency, neglect, and abuse shall be made by a preponderance
of the evidence.” KRS 620.100(3). The preponderance of the evidence standard is
satisfied if it can be proven that the child was “more likely than not” abused or
neglected. Ashley v. Ashley, 520 S.W.3d 400, 404 (Ky. App. 2017). Further:
This Court’s standard of review of a family court’s award of child custody in a dependency, abuse and neglect action is limited to whether the factual findings of the lower court are clearly erroneous. Whether or not the findings are clearly erroneous depends on whether there is substantial evidence in the record to support them. If the findings are supported by substantial evidence, then appellate review is limited to whether the facts support
-4- the legal conclusions made by the finder of fact. The legal conclusions are reviewed de novo.
L.D. v. J.H., 350 S.W.3d 828, 829-30 (Ky. App. 2011) (citations omitted).
ANALYSIS
The family court based its findings of abuse and/or neglect regarding
Z.A.J. upon KRS 600.020(1)(a)1., 2., 3., 4., and 8. With respect to Y.J.J., it based
its findings upon KRS 600.020(1)(a)2., 3., 4., and 8. Those provisions state in
relevant part as follows:
(1) “Abused or neglected child” means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent . . . . :
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005;
4. Continuously or repeatedly fails or refuses to provide essential parental care and
-5- protection for the child, considering the age of the child;
....
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child’s well-being when financially able to do so or offered financial or other means to do so. . . .
1. Mother and Father do not challenge the family court’s finding of environmental neglect.
In their briefs, Mother and Father do not address one of the primary
grounds upon which the family court found both children to be neglected, i.e., its
finding relative to KRS 600.020(1)(a)3. Specifically, the family court determined
the results of Mother’s and Father’s June 21, 2023, urine drug screens and Y.J.J.’s
hair analysis demonstrated Mother and Father had a history of drug use, had been
using drugs at or near the time frame of Z.A.J.’s injuries, and that their drug use
around their children had been extensive enough to cause Y.J.J., who was little
over one year of age at the time, to metabolize THC. The family court also relied
on the testimony of CHFS’s expert, Dr. Melissa Currie, who testified that Z.A.J.
was not tested because his hair was not long enough and there was also a chance
that any positive result in a child less than a year old could have derived from in
utero exposure. However, Dr. Currie concluded that if one of the children in the
same environment tested positive for THC, it would cause her to be concerned for
-6- both children. By failing to address this finding of neglect, Mother and Father
have abandoned any contention that it was erroneous. See CSX Transp., Inc. v.
Moody, 313 S.W.3d 72, 88 (Ky. 2010) (explaining a party’s failure to address an
issue in an appellate brief results in the abandonment of that issue). Accordingly,
the findings of environmental neglect for both children are affirmed.
Notwithstanding, we shall still review the family court’s remaining findings of
abuse and/or neglect for both children.
2. The family court’s remaining findings of abuse and/or neglect are not clearly erroneous.
In the family court’s view, it was more likely than not that: (1) the
cause of Z.A.J.’s extensive injuries was repeated abuse (at least two episodes) from
Mother and/or Father; (2) because Mother and/or father had inflicted Z.A.J.’s
injuries, at least one of the parents knew when and how Z.A.J.’s injuries occurred,
and that parent did not seek immediate care for Z.A.J.’s injuries despite indications
that Z.A.J. was subsequently in pain;4 and (3) the prior two factors in combination
demonstrated abuse, improper parenting, and medical neglect. The court further
4 With the exception of his bilateral subconjunctival hemorrhages, the remainder of Z.A.J.’s injuries were not outwardly visible. However, the Cabinet for Health and Family Services’ (CHFS) medical expert, Dr. Melissa Currie, opined that the (at least) two episodes of physical abuse to Z.A.J. caused him prolonged physical pain, particularly considering the extent of his injuries. As further discussed herein, emergency room staff also documented Z.A.J.’s fussiness when they examined him on June 18, 2023, and documented that Mother indicated she noticed changes in Z.A.J.’s behavior (increased “fussiness”) along with the subconjunctival hemorrhages a few days before taking him to Norton Children’s Hospital (NCH).
-7- concluded that permitting Z.A.J. and Y.J.J. to continue residing with Mother and
Father presented a further risk of harm to both children.
Most of Mother’s and Father’s appellate arguments take issue with the
first point of the court’s ruling stated above regarding Z.A.J.’s injuries. We will
summarize what the family court deemed persuasive in that regard, beginning with
the family court’s determination that, more probable than not, the only persons
capable of inflicting Z.A.J.’s injuries during the relevant time frame were Mother
and Father. There is no dispute that Z.A.J., at the time of his injuries, was
incapable of injuring himself; he could not ambulate or roll over. Mother and
Father made no mention to any medical professional or CHFS that Z.A.J. was
dropped or sustained a fall. There is no suggestion that Y.J.J. caused Z.A.J.’s
injuries or could do so. According to CHFS’s investigating caseworker, Brittany
Bowling, Mother and Father also related that Z.A.J. was not around any other
adults during the ten-day period preceding Z.A.J.’s hospitalization on June 18,
2023,5 except for a period of a few hours on June 17, 2023, when an aunt was
present at their home for a birthday party. The aunt, who was interviewed, stated
Mother and Father did not want other people taking care of the children. The only
other indication that other adults were in Z.A.J.’s presence during the relevant time
5 Z.A.J. was also hospitalized at NCH from June 5 through June 8, 2023, for respiratory distress. On June 5 and 6, 2023, Z.A.J. received x-rays of his skeleton which NCH’s radiologist deemed normal, and which CHFS’s expert, Dr. Currie, later interpreted as not indicative of any fractures.
-8- frame was Mother’s and Father’s recollection that a grandfather, one of the
parents’ stepmothers, and Mother’s niece had briefly visited them in mid-June of
2023. However, Mother and Father never provided Bowling contact information
for these individuals.
Next, we proceed to the evidence supporting the family court’s
determination that, more probable than not, physical abuse was the cause of
Z.A.J.’s injuries. Because Mother and Father offered no direct explanation and
chose not to testify at the adjudication hearing, the family court relied upon the
medical evidence presented at the adjudication hearing and the opinions of CHFS’s
expert, Dr. Melissa Currie. As stated, Z.A.J. presented at NCH on June 18, 2023,
with rib fractures, a lacerated or bruised liver, bilateral subconjunctival
hemorrhages, and what NCH’s radiologist identified as leg bone fractures and an
occipital skull fracture. Dr. Currie, NCH’s Chief of Pediatric Forensic Medicine,
was consulted shortly thereafter. She is board-certified in Pediatrics and Child
Abuse Pediatrics, and she rendered opinions in her September 15, 2023, final
report and later in her testimony at the June 27, 2024, adjudication hearing.
With respect to Z.A.J.’s rib fractures, Dr. Currie reviewed the initial
x-rays of Z.A.J.’s skeleton taken on June 18, 2023, and agreed with NCH’s
radiologist that they demonstrated Z.A.J. had lateral rib fractures (two fractures on
the right side and one on the left side without callus; another on the left side with
-9- callus) and posterior rib fractures (three fractures on the back right side and four
fractures on the back left side, all with callus). She also reviewed the July 6, 2023,
follow-up x-rays of Z.A.J.’s skeleton and agreed with NCH’s radiologist that they
demonstrated Z.A.J. had developed new callus formations in the fractures
previously without callus, and also in additional locations in the left and right
lateral and posterior sides of his ribs – indicating Z.A.J. had sustained fractures in
those areas as well. Dr. Currie explained that posterior rib fractures are generally
difficult to cause because the posterior is protected by the spine; and they are
particularly difficult to cause in babies because a baby’s ribs are more flexible and
bend a great deal before breaking. Based upon the extent and locations of the
fractures, she opined they were not caused by a direct blow to Z.A.J.’s front or
back and could only have been caused by violent squeezing forces very specific for
abuse.
Dr. Currie further testified that considering the callus formations,
Z.A.J. had sustained his rib fractures by being violently squeezed on at least two
separate occasions prior to June 18, 2023. Thus, the presence of some fractures
with callus and others without it on the June 18, 2023, x-ray made it more probable
than not that those respective fractures were inflicted at different times. Both Dr.
Currie and Mother’s and Father’s expert, Dr. Daniel Cousin, testified that multiple
instances of physical trauma were indicative of abuse.
-10- Regarding the additional fractures detected in the July 6, 2023,
follow-up x-ray, Dr. Currie testified that rib fractures are typically very difficult if
not impossible to visualize on an x-ray until – as was observed in that latter x-ray –
they develop callus formations and begin to heal. No acute fractures were
identified on the July 6, 2023, follow-up x-ray, and nothing otherwise of record
indicates Z.A.J. sustained physical trauma between his admission to NCH on June
18, 2023, and his follow-up x-rays of July 6, 2023. Dr. Currie’s opinion was that
Z.A.J. had more likely than not sustained the entirety of his rib fractures prior to
his hospitalization on June 18, 2023, while Mother and Father were acting as his
sole caregivers.
With respect to Z.A.J.’s liver, NCH performed a CT scan on Z.A.J.’s
abdominal region on June 19, 2023, after lab results indicated his ALT liver
enzyme level was 170 (the upper limit of normal was 33). The CT scan revealed
either a liver tear or contusion. Dr. Currie noted the liver is fairly deep in the
abdomen and relatively protected by the ribs. As such, liver tears and contusions
result from intrusive, high-energy forces to that region and are commonly found in
older, mobile children who have been involved in serious accidents or fights.
Absent any indication Z.A.J. was mobile or was involved in an accident, Dr. Currie
opined Z.A.J.’s liver injury likely resulted from physical abuse. She testified
Z.A.J.’s liver injury was unrelated to his broken ribs because those had resulted
-11- from lateral and posterior injuries (squeezing), and Z.A.J.’s liver injury was an
anterior (front) injury likely caused by a direct blow. She further testified it likely
occurred prior to Z.A.J.’s hospitalization on June 18, 2023, while Mother and
Father were acting as his sole caregivers.
With respect to Z.A.J.’s legs, NCH’s radiologist identified six healing
metaphyseal fractures present on Z.A.J.’s right and left femurs and shin bones
evident on Z.A.J.’s June 18, 2023, x-ray. Dr. Currie agreed with those findings.
She added that any long bone fractures in a baby, such as Z.A.J., that is not up
walking around and doing things that could lead to a fall or accidental injury give
rise to concerns of physical abuse; and that the type of fractures Z.A.J. had
(“corner” or “bucket handle” fractures) are highly specific for inflicted child
physical abuse.
With respect to Z.A.J.’s skull injury, NCH’s radiologist identified a
transverse (on the back) occipital fracture, ruling out the potential that the fracture
may have instead been an otherwise naturally occurring “Wormian bone.”6 Dr.
Currie agreed with that finding, adding that a transverse fracture on a skull is not
normal and is a sign of physical trauma.
6 “Wormian bones,” explained Dr. Currie, are extra bone pieces that can naturally develop within the sutures of the skull.
-12- Lastly, with respect to Z.A.J.’s subconjunctival hemorrhages, Dr.
Currie explained on page 12 of her September 15, 2023, final report:
Subconjunctival hemorrhages can be caused with a direct blow to the face, strangulation, or increased intrathoracic or intrabdominal pressure such as squeezing. Subconjunctival hemorrhages can occur as a result of forcefully vomiting or coughing. However, it is unusual to have bilateral subconjunctival hemorrhages from vomiting or coughing mechanisms. Given [Z.A.J.’s] constellation of injuries, it is much more likely that the subconjunctival hemorrhages are a result of physical abuse.
Record at 117.
Dr. Currie later amended her opinion during the adjudication hearing.
There, she testified that since rendering her final report, new research involving
thousands of hours of case studies demonstrated that forceful crying or forceful
vomiting was not a reasonable explanation for subconjunctival hemorrhages found
in infants.
Mother and Father contend the family court should have disregarded
Dr. Currie’s testimony because Dr. Currie: (1) admitted that the medical records
she reviewed did not include the records indicating Z.A.J. received CPR shortly
after he was born; (2) admitted the medical records she received did not include the
records indicating Mother had taken Z.A.J. to several pediatric appointments prior
to his June 18, 2023, hospitalization; and (3) relied upon “hearsay” to arrive at her
-13- opinion that Z.A.J. suffered prolonged physical pain prior to his June 18, 2023,
hospitalization.
At best, however, these points merely affected the weight of Dr.
Currie’s testimony. Dr. Currie explained that there was no medical evidence that
CPR administered to Z.A.J. after birth could have caused any of Z.A.J.’s injuries.
She opined that irrespective of how many times Z.A.J. might have been taken to
pediatric appointments prior to his June 18, 2023, hospitalization, Mother and/or
Father knew days before his hospitalization how and when Z.A.J. sustained his
injuries. Dr. Currie also opined that Z.A.J. had been in prolonged pain for days
prior to when he was hospitalized on June 18, 2023, relying upon Mother’s
statements to medical personnel and the statements of medical personnel set forth
in Z.A.J.’s June 18, 2023, emergency room records.
Even if Mother and Father had objected to the admission of this
evidence – which they did not – Mother’s statements were admissions, not hearsay;
and the statements of the medical personnel regarding their own observations of
Z.A.J.’s condition were admissible hearsay pursuant to Kentucky Rules of
Evidence (KRE) 803(4).
Mother and Father also contend the family court should have
disregarded Dr. Currie’s testimony because they presented contrary, compelling
evidence in support of their alternative theory of how Z.A.J. sustained most of his
-14- fractures. Their alternative theory was in line with the testimony provided by their
expert radiologist, Dr. Daniel Cousin, who conducted a review of Z.A.J.’s medical
records. His theory was that Z.A.J. suffered at all relevant times from a condition
that caused him to have fragile, “gracile” bones, perhaps osteogenesis imperfecta
(“OI”). This effectively was the cause of his injuries, not abuse.
However, virtually every aspect of their theory conflicts with other
evidence or is unsupported. We begin with the premise that Z.A.J. suffered at all
relevant times from a condition that caused him to have fragile bones. This was
the opinion of Mother’s and Father’s expert, but no objective medical evidence
supported it. To the contrary, testing revealed no abnormalities in Z.A.J.’s bones.
NCH assessed Z.A.J.’s calcium, phosphorous, and magnesium levels, all of which
were normal. Z.A.J. had a vitamin D insufficiency, not a deficiency; his vitamin D
levels were deemed to be only slightly low. Dr. Currie testified that a vitamin D
deficiency is not uncommon in newborns, but Z.A.J.’s levels were not low enough
to explain his fractures.
Additionally, NCH tested Z.A.J. for OI and conducted a bone fragility
panel, with the results being normal. Z.A.J.’s OI test did detect a variant of
unknown significance (VUS). However, a VUS is exactly that – of unknown
significance to OI, not demonstrative of it. If Z.A.J. did have OI, Dr. Currie
testified, then Z.A.J. would have continued suffering new fractures after he was
-15- discharged from the hospital and placed in foster care, given OI is a lifelong
genetic disorder. That did not happen. Z.A.J. was given another follow-up
skeletal x-ray at NCH on February 1, 2024, and his x-ray was completely normal.
The remainder of Mother’s and Father’s argument also conflicts with
skeletal x-rays NCH took of Z.A.J. when Z.A.J. was hospitalized at NCH from
June 5 through June 8, 2023, for respiratory distress and pneumonia. Mother’s and
Father’s expert did not address those x-rays at all; and those x-rays were
interpreted by NCH’s radiologist and Dr. Currie as completely normal. Dr. Currie
did testify she was unaware that Z.A.J. had been given CPR shortly after being
born. But she added that if CPR or birth complications had fractured any of
Z.A.J.’s bones on May 15 or 16, 2023, those fractures would have developed callus
or would have otherwise been visible by x-ray during Z.A.J.’s June 5 through June
8, 2023, hospitalization. CPR also could not have caused the fractures to Z.A.J.’s
legs. In any case, the x-rays taken of Z.A.J. during his June 5 through June 8,
2023, hospitalization indicated his legbones and ribs were normal.
Dr. Currie also discounted the claim that CPR administered to Z.A.J.
on May 15, 2023, could have caused Z.A.J.’s liver injury. She testified no medical
studies have demonstrated CPR causes liver lacerations in infants. The family
court also explained from the bench, at the conclusion of the adjudication hearing,
that it did not believe the force of the CPR administered to Z.A.J. could have been
-16- sufficient to cause his liver injury. Again, Mother’s and Father’s argument was
that the force of the CPR Z.A.J. had received in May of 2023 had been enough to
cause Z.A.J.’s fractured ribs. But as Dr. Currie testified, Z.A.J. would have had
callus formations on any such fractures ten to fourteen days later. As noted by the
family court, Z.A.J. had no observed fractures or callus when he was x-rayed more
than twenty days after receiving CPR. Record at 254.
Overall, there was substantial evidence presented to support the
court’s findings of abuse and neglect. Dr. Currie’s testimony was not speculative
as Mother and Father argue but based upon reasonable inference from the medical
records. Mother’s and Father’s evidence to the contrary did not compel a different
result. Accordingly, the family court committed no error or abuse of discretion in
its assessment of the evidence and findings of abuse and neglect of Z.A.J.
3. Mother and Father identify no palpable error.
Before concluding our analysis, Mother and Father ask this Court for
palpable error review of several issues they admittedly7 failed to preserve below,
i.e., that in their view: (1) the family court should have exercised its gatekeeping
function and excluded some or all of Dr. Currie’s expert opinions; (2) Dr. Currie
should not have been permitted to opine, during the adjudication hearing and for
7 Mother and Father concede in their reply brief that these issues are unpreserved. The reply brief also provides appellants an opportunity to request palpable error review of otherwise unpreserved issues. See Commonwealth v. Jones, 283 S.W.3d 665, 670 (Ky. 2009).
-17- the first time, that forceful crying or forceful vomiting is not a reasonable
explanation for subconjunctival hemorrhages found in infants; (3) the family court,
by asking certain questions of the witnesses and making certain comments, evinced
bias in favor of CHFS during the adjudication hearing; (4) this Court should
consider on appeal certain evidence (i.e., a genetic report) that they never presented
below; and (5) a Brady8 violation occurred.
With respect to their first argument, “[w]e decline to speculate on the
outcome of an unrequested Daubert[9] hearing, or to hold that the failure to conduct
such a hearing sua sponte constitutes palpable error.” Tharp v. Commonwealth, 40
S.W.3d 356, 368 (Ky. 2000). With respect to their second argument, we discern
no manifest injustice. Dr. Currie’s opinion rendered months prior to the
adjudication hearing (as set forth in her September 15, 2023, report), stated that
Z.A.J.’s bilateral subconjunctival hemorrhages were more likely than not
indicative of physical abuse. Her testimony at the adjudication hearing supported
her position and did not equate to manifest injustice. More importantly, Mother
and Father had ample opportunity to cross-examine Dr. Currie at the hearing.
With respect to their third argument, Mother and Father cite what they
view as two instances of bias. First, they believe the family court was biased when
8 Brady v. Maryland, 373 U.S. 83 (1963). 9 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
-18- it “assisted and answered opposing counsel” regarding the questions asked of Dr.
Currie. However, the portion of the record they take issue with does not show
bias. The record demonstrates Mother’s and Father’s counsel asking Dr. Currie
questions she had already answered,10 and the family court reminding their counsel
what Dr. Currie’s prior answers were. Second, appellants believe the family court
evinced bias when, in summarizing Dr. Currie’s testimony at the close of CHFS’s
case, it commented that it was “pretty complete.” However, the family court made
that comment when ruling on and denying Mother’s and Father’s motion to have
CHFS’s DNA case involuntarily dismissed for insufficient evidence. See
Kentucky Rules of Civil Procedure 41.02(2). Given this context, the family court
was not demonstrating bias but merely indicating CHFS had satisfied its burden to
present a prima facie case of abuse.
With respect to their fourth argument, as a court of review, we are not
permitted to consider evidence offered for the first time on appeal. See Naramore
v. Naramore, 611 S.W.3d 281, 289 (Ky. App. 2020); Oakley v. Oakley, 391
10 See June 27, 2023, hearing at 10:02-10:05 a.m. During this time, when Mother’s and Father’s counsel asked Dr. Currie a second time if she had received and reviewed Z.A.J.’s medical records from Elizabethtown Pediatrics, the family court stated, “She said she did,” immediately before Dr. Currie answered again in the affirmative. Their counsel then asked Dr. Currie to again clarify her opinion regarding medical neglect, and the family court stated: “She said that somebody knew, somebody in the caregiving role knew that the injuries had been inflicted and did not initially seek medical intervention because, on the 6/18 admission, there were acute fractures and callus present, which means multiple dates of inflicted injury, per her testimony and conclusions.” Dr. Currie then agreed with that statement.
-19- S.W.3d 377, 380 (Ky. App. 2012). Such a request is untimely and not permissible
by this Court.
With respect to their fifth argument (i.e., the purported Brady
violation), Mother and Father complain the family court’s opinion and order
overlooked certain medical evidence, including that on June 18, 2023, NCH’s
ophthalmologist noted Z.A.J. had “no retina hemorrhages on dilated fundus”; NCH
orthopedics noted Z.A.J. had “no ecchymosis” (bruising or bleeding under the
skin) in the area of his leg fractures; that Z.A.J.’s vitamin D level was noted as
being low; and that NCH determined Z.A.J. had the WNT3A gene. Appellant’s
Brief at 9 (Y.J.J.). However, that evidence was set forth in the medical records
admitted at trial, and it was discussed by Dr. Currie during her trial testimony. A
Brady violation occurs when material evidence is suppressed,11 and that
information was not suppressed.
Finally, as concerns Y.J.J., appellants’ brief presents a one-sentence
argument and fails to present any substantive basis to overcome the family court’s
detailed findings of abuse and/or neglect of Y.J.J. Appellant’s Brief at 3 (Y.J.J.).
As noted, appellants failed to address the environmental neglect finding of Y.J.J. in
their brief and there was substantial evidence that Y.J.J. was exposed to a serious
risk of physical harm if he remained with his parents. Given the extent of the
11 See Commonwealth v. Bussell, 226 S.W.3d 96, 99-100 (Ky. 2007).
-20- injuries to Z.A.J., we find no error in the court’s findings of abuse and/or neglect of
Y.J.J.
CONCLUSION
Based upon our thorough review of the record below regarding both
children, Mother and Father have failed to identify any reversible error, palpable or
otherwise by the family court, nor are the court’s findings clearly erroneous.
Accordingly, we affirm the adjudication and disposition orders in both cases.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEFS FOR APPELLEES:
C.B. and W.J., Pro Se Alison Tefft Radcliff, Kentucky Assistant Hardin County Attorney Elizabethtown, Kentucky
-21-