Commonwealth of Kentucky, Cabinet for Health and Family Services v. K.O.

CourtKentucky Supreme Court
DecidedFebruary 20, 2025
Docket2024-SC-0188
StatusPublished

This text of Commonwealth of Kentucky, Cabinet for Health and Family Services v. K.O. (Commonwealth of Kentucky, Cabinet for Health and Family Services v. K.O.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth of Kentucky, Cabinet for Health and Family Services v. K.O., (Ky. 2025).

Opinion

RENDERED: FEBRUARY 20, 2025 TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0188-DGE

COMMONWEALTH OF KENTUCKY, APPELLANTS CABINET FOR HEALTH AND FAMILY SERVICES, AND R.O., A MINOR CHILD

ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-0897 CALLOWAY CIRCUIT COURT NO. 22-J-00138-001

K.O. AND S.O. APPELLEES

OPINION OF THE COURT BY JUSTICE KELLER

REVERSING

The Calloway Circuit Court found K.O. (“Father”) to have neglected his

child, R.O. (“Child”), pursuant to the Kentucky Unified Juvenile Code. Father

appealed, and the Court of Appeals reversed. We thereafter granted the Cabinet

for Health and Family Services’s (“Cabinet”) petition for discretionary review.

After our review of the record and the law, we reverse the Court of Appeals and

reinstate the orders of the Calloway Circuit Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

S.O. (“Mother”) and Father are the biological parents of Child. Mother

and Father divorced approximately six years prior to the events giving rise to the instant action. Mother and Father had joint custody of Child with equal

timesharing before the incident at issue occurred.

School Resource Officer (“SRO”) Tim Fortner worked for Child’s

elementary school and routinely assisted in the school’s morning drop-off

routine by opening doors to parents’ vehicles to help the children exit the

vehicles and enter the school. On October 27, 2022, SRO Fortner opened the

passenger-side door to Father’s vehicle and smelled what he believed to be the

odor of marijuana emanating from the vehicle. He also observed smoke on the

driver’s side of the vehicle. After Child exited the vehicle, SRO Fortner

confronted Father, stating, “I know what this is. I know what you’re smoking . .

. . Don’t bring this [expletive] back on school property.” Father did not

immediately deny SRO Fortner’s allegation, but instead simply drove away.

SRO Fortner would later testify that while he had the authority to issue a

citation to Father, he did not do so because he did not have the equipment

necessary to issue a citation.

At the time of this incident, Child was six years old. SRO Fortner was

familiar with Child due to Child’s frequent behavioral issues at school. When

Child was having these issues, SRO Fortner would give him a break from class

and allow Child to walk around the school with him.

2 Following the incident in the school drop-off line, SRO Fortner filed a JC-

3 form 1 to inform the Cabinet of his concerns regarding Child. The Cabinet

then brought a dependency, neglect, or abuse (“DNA”) action against Father in

the family court division of the Calloway Circuit Court. In turn, the family court

ordered Father, Mother, and Child to each submit to drug tests.

On December 5, 2022, a Child Guard Exposure Test was performed on a

hair sample from Child to determine whether Child had been exposed to any

illicit drugs. Child tested positive for Native THC and its metabolite, carboxy-

THC. On December 19, 2022, nail samples were collected from Mother and

Father for their respective drug tests. Mother tested negative for any illicit

drugs. Father tested positive for Carboxy-Delta-9-THC, D-methamphetamine,

and oxycodone. Carboxy-Delta-9-THC is a metabolite of the illicit form of

marijuana. D-methamphetamine and oxycodone are also both illegal

substances without a valid prescription.

The family court then held an adjudicatory hearing on the Cabinet’s DNA

petition on March 29, 2023. At this hearing, the family court heard testimony

from six witnesses: SRO Fortner, social worker Brittany Taylor, Cabinet expert

witness Rosemarie Rios, defense expert witness Dr. Lewis Jackson, Mother,

and Father.

1 The JC-3 form is provided by the Justice and Public Safety Cabinet for a law

enforcement officer’s use when responding to a report of suspected child abuse. Kentucky Revised Statutes (“KRS”) 209A.120(5).

3 In addition to providing testimony regarding the incident in the school

drop-off line and his experience with Child’s behavioral issues, SRO Fortner

stated that he had smelled the odor of marijuana on Child’s clothing multiple

times prior to this incident. He testified that Child’s teachers had also noticed

the odor. While SRO Fortner did not personally contact Child’s parents

regarding this concern, he did inform the school’s principal.

Brittany Taylor, the Cabinet investigator assigned to the case, testified

that on October 28, 2022, she conducted an unplanned visit to Father’s home.

While the main door to the home was open, the screen door was closed. Taylor

stated that she could smell what she believed to be marijuana coming from the

home and also noticed Child sitting on a couch in the living room. However,

when she knocked on the door, no one answered. Taylor left her card at the

door before leaving Father’s residence.

Father later called Taylor and scheduled a home visit for November 3,

2022. During this visit, Taylor did not detect any odor of marijuana. Father

explained that he had not heard Taylor knock on her previous visit because he

had been in the back portion of his home. Taylor asked Father to submit to a

drug test, but Father declined. Father later testified that he declined the drug

test out of panic due to his past incarceration, where if he could not produce a

urine sample for a drug test within thirty-minutes, he would be sent to “the

hole.”

The remainder of Taylor’s testimony concerning her investigation

corroborated SRO Fortner’s testimony. Taylor similarly found Child to have

4 behavioral issues and confirmed that Child’s teachers had noticed the odor of

marijuana on Child’s clothes on multiple occasions prior to the incident in the

school drop-off line. Mother’s testimony, however, contradicted the accounts

given by SRO Fortner and Taylor. Mother testified that she had never smelled

marijuana on Child. Further, she stated that she never had any reason to

believe that Father had been using marijuana while supervising Child.

The family court also considered the results of the drug tests that it had

ordered for Mother, Father, and Child. Father testified, and it was not

disputed, that he has a prescription for oxycodone due to a previous car

accident, thereby justifying his positive test result for that substance.

Rosemarie Rios, the expert witness for the Cabinet, provided further analysis of

Father’s other test results. According to Rios, Father’s positive result for

Carboxy-Delta-9-THC suggested that he had ingested the substance between

four to six months before the nail sample was collected. Additionally, the

concentration of Carboxy-Delta-9-THC in Father’s system was so high that it

had exceeded the testing limits of the laboratory. Father’s positive test result

for methamphetamine only indicated exposure to the substance. Rios clarified

that while it was possible Father had ingested methamphetamine, the test

results could only definitively confirm exposure, not ingestion.

Father and Dr. Lewis Jackson, the defense’s expert witness, attempted to

justify Father’s positive test result for methamphetamine exposure by claiming

that the result was due to Father’s legal use of an over-the-counter medication.

Dr. Jackson testified that methamphetamine exists in two forms: D-

5 methamphetamine and L-methamphetamine. D-methamphetamine is a

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Commonwealth of Kentucky, Cabinet for Health and Family Services v. K.O., Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-of-kentucky-cabinet-for-health-and-family-services-v-ko-ky-2025.