K.H. v. Cabinet for Health & Family Services

358 S.W.3d 29, 2011 WL 6431128, 2011 Ky. App. LEXIS 248
CourtCourt of Appeals of Kentucky
DecidedDecember 22, 2011
DocketNos. 2011-CA-000896-ME, 2011-CA-000897-ME
StatusPublished
Cited by11 cases

This text of 358 S.W.3d 29 (K.H. v. Cabinet for Health & Family Services) 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
K.H. v. Cabinet for Health & Family Services, 358 S.W.3d 29, 2011 WL 6431128, 2011 Ky. App. LEXIS 248 (Ky. Ct. App. 2011).

Opinion

OPINION

WINE, Judge:

The underlying facts of this action are not in dispute. K.H. and A.H. are the mother and father, respectively, of two children, A.B.H. (born August, 2005) and K.S.H. (born October, 2009).1 On January 3, 2001, K.H.’s twelve-year old cousin (A.K.Y.) alleged that A.H. had touched her inappropriately and made inappropriate comments of a sexual nature while she was [30]*30staying at K.H. and A.H.’s house. Following an investigation, the Cabinet for Health and Family Services (the Cabinet) and the Kentucky State Police concluded that the allegation was substantiated.

While the investigation was pending, K.H. signed a Prevention Plan agreeing to the Cabinet’s recommendation that she not leave the children alone with A.H. Upon completion of the investigation, the Cabinet asked K.H. to sign an “Aftercare Plan” stating that she would not allow A.H. to be alone with the children or allow A.H. to bathe the children, or to change the children’s clothes or diapers. K.H. refused to sign the Aftercare Plan.

On March 11, 2011, the Cabinet filed separate petitions alleging that K.H. and A.H. had neglected the children. With regard to K.H., the Cabinet alleged that her refusal to sign the Aftercare Plan exposed the children to a risk of sexual abuse from A.H. and therefore amounted to neglect. On April 6, 2011, the tidal court entered orders directing that A.H. shall not reside in the home or have any contact with the children.

The trial court conducted an evidentiary hearing on the petitions on April 18, 2011. At the hearing, the Cabinet presented evidence from the school guidance counselor who initially heard and reported A.K.Y.’s allegations; and from the social worker and Kentucky State Trooper who investigated the allegations. However, the trial court declined to allow A.K.Y. to testify, concluding that the substance of her allegations was not relevant to determine whether A.B.H. and K.S.H. were neglected.

Social Worker Barry Frisby testified that A.H. was cooperative with the Cabinet while the investigation was ongoing, but refused to agree to any permanent restrictions after the allegations were substantiated. Likewise, K.H. testified that she had cooperated with the Cabinet and that she had complied with the trial court’s April 6, 2011, order directing that K.H. have no contact with the children. However, she testified that she had reasons to doubt A.K.Y.’s truthfulness and that she did not believe that A.H. was a danger to her children.

At the conclusion of the hearing, the trial court found that A.B.H. and K.S.H were neglected based on the allegations in the Cabinet’s petition. Specifically, the trial court found that the Cabinet had given K.H. information about a risk of harm to the children from A.H. and that she failed to protect the children from that risk of harm by refusing entering into the Aftercare Plan. The court directed that the children remain in the home, but that A.H. shall not reside in the home or have unsupervised contact with the children. The trial court scheduled a disposition hearing for June 20, 2011. However, K.H. filed her notice of appeal prior to that date. We find no indication that A.H. has appealed from the court’s order.

The sole issue on appeal is whether the Cabinet presented sufficient evidence to establish that K.H. has neglected A.B.H. and K.S.H. Kentucky Revised Statutes (KRS) 620.100(3) provides that the Commonwealth bears the burden of proving dependency, neglect, or abuse of a child by a preponderance of the evidence. The Cabinet does not allege that A.B.H. and K.S.H. have ever been subjected to any direct acts of abuse or neglect. Rather, the Cabinet contends that K.H.’s refusal to sign the Aftercare Plan amounts to neglect by exposing the children to a risk of sexual abuse from A.H. The trial court’s findings regarding the weight and credibility of the evidence shall not be set aside unless clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01. On the [31]*31other hand, the trial court’s application of the law to those facts is subject to de novo review. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.1999).

Since the facts of this case are not materially in dispute, this matter turns of the sufficiency of the evidence with respect to the statutory definition of neglect. In pertinent part, KRS 600.020(1) defines an “[a]bused or neglected child” to include “a child whose health or welfare is harmed or threatened with harm when his parent, guardian, or other person exercising custodial control or supervision of the child ... (f) Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child[.]”

The Cabinet urges that its restrictions on A.H. are necessary to protect the children against any risk that he may sexually abuse the children. We do not doubt the Cabinet’s good faith and genuine desire to protect the children. However, we are concerned about the breadth of the authority which the Cabinet is asserting. There is no allegation that A.H. has ever engaged in any act of sexual abuse directed toward his children. Furthermore, the Cabinet admits that K.H. had no legal obligation to sign the Aftercare Plan. Nevertheless, the Cabinet seeks to impose a legal obligation on K.H. by asserting that her failure to sign the Aftercare Plan amounts to neglect.

The Cabinet’s position opens the door to a potentially wide-reaching intrusion by the state into the parent-child relationship. If the Cabinet can show that K.H. neglected her children merely by refusing to follow the Cabinet’s recommendations, then it could also seek to enforce other views about proper parenting in a similar manner. While the state has a compelling interest to protect its youngest citizens, state intervention into the family between parent and child must be done with utmost caution. It is a very serious matter. See M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 851 (Ky.App.2008), and V.S. v. Commonwealth, Cabinet for Health and Family Services, 194 S.W.3d 331, 335 (Ky.App.2006). See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although these cases urge such caution in the context of termination of parental rights, the parents’ fundamental interest in the care, custody and management of their children is not diminished by lesser state intrusions into the parent-child relationship. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).

We must also be mindful that an adjudication of neglect carries long-reaching consequences. This finding may be used against K.H. in subsequent proceedings, including proceedings to remove the children from the home or to terminate her parental rights. A finding of neglect may also carry a personal or social stigma far beyond the limited circumstances involved in this case.

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358 S.W.3d 29, 2011 WL 6431128, 2011 Ky. App. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kh-v-cabinet-for-health-family-services-kyctapp-2011.