J.H. v. Commonwealth, Cabinet for Human Resources

767 S.W.2d 330, 1988 Ky. App. LEXIS 204, 1988 WL 142787
CourtCourt of Appeals of Kentucky
DecidedDecember 29, 1988
DocketNo. 88-CA-399-D
StatusPublished
Cited by3 cases

This text of 767 S.W.2d 330 (J.H. v. Commonwealth, Cabinet for Human Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.H. v. Commonwealth, Cabinet for Human Resources, 767 S.W.2d 330, 1988 Ky. App. LEXIS 204, 1988 WL 142787 (Ky. Ct. App. 1988).

Opinion

COMBS, Judge.

This appeal is from the Bell District Court and it concerns the removal of two children from the custody of their natural parent and movant, J.H., by the respondent. Commonwealth of Kentucky. The children were adjudged to be dependent, neglected or abused by the Bell District Court. That judgment was upheld by the Bell Circuit Court.

There is a lengthy history of state involvement with the family. The movant and his estranged wife gave birth to two boys during their marriage; C.H., age five, and T.H., age two. The couple separated in November of 1986, at which time the movant's wife left him and took their sons with her. Kentucky’s Cabinet for Human Resources was already involved with the children by then. The movant petitioned the Bell Circuit Court for temporary custody of his sons and the petition was granted.

The event which led to the state removal of both children from their father occurred on May 27, 1987, and involved only the older child, C.H. He had walked about one hundred and fifty yards from home and been kicked in the head by a horse. The child was rushed to a hospital where he was diagnosed as having suffered a fractured skull. The movant stayed beside C.H. during the hospitalization, and T.H. stayed at home with the movant’s mother.

The Commonwealth instigated proceedings in district court to remove both children from the custody of the movant. The court ordered that the children be committed to the care, custody and control of the Cabinet for Human Resources. The mov-ant appealed to the circuit court and it dismissed the appeal. We granted discretionary review.

The evidence presented below was provided through five social workers, a police officer, the movant’s estranged wife, and his mother.

Social workers Ron Redmond and Karen Jones visited the movant’s mother’s home on separate occasions during the time when movant was with C.H. at the hospital. Neither worker found intervention necessary for the sake of the younger child. Mov-ant’s mother is blind, but Redmond testified that he did not regard her blindness as an impediment to her ability to care for the children, and he himself was unable to even detect her blindness after he had visited her several times. He believed T.H. was receiving proper care from his grandmother. He testified that he had visited the family fifteen times when it resided with the grandmother, and never saw any need for removal of either child.

The hospital’s social worker, Jane Harris, testified that she was concerned about a lack of interaction between movant and C.H. at the hospital. However, this observation is incompatible with her further testimony indicating that movant obviously cared enough for C.H.’s well-being to bathe the child and give him a haircut. The child was said to have cried on these occasions, but the record is silent as to why.

Social worker Noble York filed the petitions that led to removal. Redmond by that time had discontinued his involvement with the family. York interviewed the grandmother once, on the night of the accident. He interviewed the movant and testified that his findings included that the movant was attending to T.H., and had understood that C.H. was visiting with a friend at the time of the accident with the horse. York testified that he had substan[332]*332tiated in his report that C.H.’s injury “was an accident.”

Social worker, Sara Risner, investigated the family in 1986, prior to movant’s separation from his wife, and long before C.H.’s accident. She testified that at that time C.H. had bruises. Movant explained that C.H. had fallen while in the care of his uncle. Risner concluded there was no uncle, but her testimony is dubious at best because the record contains evidence that both movant and his wife have at least one brother.

Social worker Karen Jones testified that in the middle of 1986, the family had been evicted and was temporarily without adequate shelter.

Middlesboro Police Officer Garrett Russell testified that a year and a half before C.H.’s accident he had seen C.H. unattended in Middlesboro, and returned the child to his parents. The officer saw movant on the couch, his wife in bed, an open pill bottle on the television set, and dirty dishes. He testified that one other time he saw C.H. unattended outdoors.

Movant’s wife testified that during their marriage C.H. was sometimes left unattended.

Movant moved to dismiss the petitions at the close of the Commonwealth’s evidence on grounds of insufficient evidence of dependency, neglect or abuse as to C.H., and total lack of evidence as to dependency, neglect or abuse as to T.H. Both motions were denied. The court adjudged the children “dependent, neglected or abused.” The court instructed the Commonwealth to consider the grandmother’s home as a relative placement alternative to foster care. However, at the dispositional hearing the Commonwealth failed to produce any home study of the grandmother’s home as had been ordered, and called no witnesses.

Kentucky’s Juvenile Code provides at KRS 620.100(3) that the Commonwealth bear the burden of proving dependency, neglect or abuse of a child by a preponderance of the evidence.

An “abused or neglected child” is defined by KRS 600.020(1) which in pertinent part reads:

“Abused or neglected child” means a child whose health or welfare is harmed or threatened with harm when his parent ... inflicts or allows to be inflicted upon the child physical or emotional injury by other than accidental means; creates or allows to be created a risk of physical or emotional injury to the child by other than accidental means ...

A “dependent child” is defined by KRS 600.020(15) which in pertinent part reads:

“Dependent child” means any child, other than an abused or neglected child, who is under improper care, custody, control, or guardianship that is not due to an intentional act of the parent ...

Our review of the district court’s judgment as to C.H. is impossible. The juvenile petitions filed in the interest of both children are preprinted forms that were supplied by the Administrative Office of the Courts (AOC) in 1984. Then, the former law on the subject was in effect, KRS Chapter 208, and all that can be gleaned from the forms is that the children were allegedly “dependent, neglected or abused.”

The dispositional form used in C.H.’s and T.H.’s cases was also supplied by the AOC (AOC-JV-20; G-87). It pertains to the new Juvenile Code but is not entirely faithful to the statutory scheme. That form simply allows the courts to indicate by filling one of two blank boxes whether the child “is [or] is not a dependent, neglected or abused child....” As has already been seen in this opinion, the legislative definition of a “dependent child” explicitly means that he or she is not an “abused or neglected child.” It is statutorily forbidden for any one child to be adjudged both dependent and abused or neglected in the same disposition, but this is exactly what the form allows. This paradox could be resolved in two ways.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Zt v. Mt
258 S.W.3d 31 (Court of Appeals of Kentucky, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
767 S.W.2d 330, 1988 Ky. App. LEXIS 204, 1988 WL 142787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jh-v-commonwealth-cabinet-for-human-resources-kyctapp-1988.