Opinion
NO. 2020-CA-1396-ME NO. 2020-CA-1397-ME NO. 2020-CA-1398-ME
05-07-2021
M.G. APPELLANT v. COMMONWEALTH OF KENTUCKY/CABINET FOR FAMILIES AND PROTECTIVE SERVICES; AND C.G., MINOR CHILD APPELLEES AND M.G. APPELLANT v. COMMONWEALTH OF KENTUCKY/CABINET FOR FAMILIES AND PROTECTIVE SERVICES AND L.G., MINOR CHILD APPELLEES AND M.G. APPELLANT v. COMMONWEALTH OF KENTUCKY/CABINET FOR FAMILIES; AND PROTECTIVE SERVICES AND L.G., MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Jonathan O. Wells LaGrange, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY/CABINET FOR FAMILIES AND PROTECTIVE SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 20-J-00044-001 APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 20-J-00045-001 APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 20-J-00046-001 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. DIXON, JUDGE: M.G. (Mother) appeals the order of the Oldham Circuit Court entered on October 2, 2020, holding that her three children were neglected. After careful review of the briefs, record, and law, we reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
Mother has three children who are the subjects of the underlying dependency, neglect, and abuse (DNA) actions. On April 2, 2020, the Cabinet for Health and Family Services (Cabinet) filed petitions alleging that the children were neglected or abused by Mother when she permitted the maternal great uncle, J.G., ("Uncle") to provide unsupervised care for them.
In lieu of an adjudication hearing, the parties entered the following agreed stipulations:
1. At the time of the Petition, male children, [C.G.], age 7; [L.G.], age 4; and [L.G.], age 4[,] had been recently left with [Uncle] in a caretaker role including watching the children and picking them up for school. [Uncle] is their maternal uncle. [Uncle] was living with his mother and brother in Oldham County where the children's mother was also residing. [Uncle] helps to care for his mother in exchange for housing. [Mother], [Uncle's] niece also lived with [sic] in the home with her children. All other allegations in the petition are not a concern for the Cabinet.
2. Prior to the petition, in 2017, [Uncle] was charged with 6 Counts of Sex Abuse in the First Degree against a female teenager. Those charges were DISMISSED by the Commonwealth in 2019 with an "Alford plea" to one misdemeanor count of Wanton Endangerment Second Degree. The resolution of the case in Henry Circuit Court did not prohibit [Uncle] from contact with
children. He was only prohibited from contact with the victim and her family. The children involved here are male and had not been the victims of any criminal allegations by [Uncle].
3. During the time that the criminal case was pending the Cabinet entered an administrative finding of Neglect against [Uncle] for risk of harm. [Uncle] chose not to defend himself to the Cabinet or effectively appeal the matter due to his pending criminal charges at that time. [Uncle] is not a convicted felon or a sex offender. His sole criminal record is the one misdemeanor.
4. In 2019, while the Cabinet was investigating this matter, the Mother agreed to an aftercare plan to choose appropriate care givers for the children. She subsequently permitted [Uncle] to be in an unsupervised setting with the children, after signing the aftercare plan. [Mother] was aware of [Uncle's] Henry County charges. The petition followed. There has been no professional assessment made of risk by a sex offender treatment provider with respect to [Uncle].
Kentucky Revised Statutes (KRS) 510.110.
We presume this portion of the stipulation refers to Mother and that the discrepancy in the original stating a different first name was a typographical error.
Record on Appeal (R.O.A.) 20-J-0044-001 at 22-23; R.O.A. 20-J-00045-001 at 24-25; R.O.A. 20-J-00046-001 at 24-25.
Thereafter, the court found that "[Mother] permitted children to be in the primary care of relative with pending sex abuse charges involving a minor, placing them at risk." On the docket sheet, the court noted that "a plea to a lesser charge does not necessarily equate to not guilty as charged[.]" Using the standard adjudication form order, the court concluded the children were neglected, pursuant to KRS 600.020(1)(a)4, by Mother's "continuous or repeated failure or refusal to provide essential parental care and protection for the children, considering their age." The court added "placing the child at risk of harm" to the form order language. Disposition orders prohibiting Uncle from residing in the same residence or being unsupervised with the children were entered on the same date. Mother timely appealed.
R.O.A.20-J-0044-001 at 36; R.O.A. 20-J-00045-001 at 38; R.O.A. 20-J-00046-001 at 38.
Id.
R.O.A. 20-J-0044-001 at 33-34; R.O.A. 20-J-00045-001 at 35-36; R.O.A. 20-J-00046-001 at 35-36.
Id. --------
STANDARD OF REVIEW
"[A] determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 620.100(3). On appeal, Mother only challenges the court's determination, not the factual findings. Therefore, we review de novo the court's conclusions of law. D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012).
ANALYSIS
Mother argues the court erred in finding her children were neglected or abused and, in support, relies heavily upon this Court's analysis in K.H. v. Cabinet for Health and Family Services, 358 S.W.3d 29 (Ky. App. 2011). Analogous to this matter, K.H. involved an adjudication of neglect where the mother, over the Cabinet's objection, permitted her children unsupervised contact with a caretaker against whom the Cabinet had substantiated allegations of sexual abuse. Id. The Cabinet argues K.H. is distinguishable as the caretaker at issue therein was the father of the children. We find this to be a distinction without a difference as the father was not a party to K.H. and the finding of neglect turned solely on the mother's rights and conduct. We agree with Mother that K.H. is relevant and supports reversal.
In K.H., as in this case, there were no allegations that the caretaker had abused the children subject to the DNA actions. Id. at 31. Therefore, the Cabinet had the burden to prove the caretaker posed a risk of harm to the children and that the mother's refusal to prevent unsupervised contact exposed the children to such risk. Id. at 32. The Court noted that "the risk of harm must be more than a mere theoretical possibility, but an actual and reasonable potential for harm." Id. Ultimately, the K.H. Court reversed the finding of neglect, holding that the Cabinet's substantiation of charges had no preclusive effect in the court proceedings and that the lower court had impermissibly compounded inference upon inference in reaching its conclusion. Id. at 32-33.
The impermissible stacking of inferences is even more glaring in this action. The stipulation of facts provides no details for the court to weigh as to Uncle's alleged conduct or the factual basis supporting his plea to wanton endangerment, second degree. Further, unlike K.H., the criminal process has concluded, and the sexual abuse charges against Uncle have been dismissed. The court and the Cabinet infer Uncle's guilt, and thereby the risk he poses to the children, from the charges alone while wholly ignoring the disposition of those charges. This disregard was evidenced by the court's statement that the plea to a nonsexual offense does not mean Uncle was not guilty as charged, and the Cabinet's argument that the dismissal is meaningless as wanton endangerment is a "popular (albeit ill-advised) compromise for plea-bargaining[.]" While we do not hold that a risk of harm could never be sustained where criminal convictions are not made, here the risk of harm is intolerably attenuated to justify the Commonwealth's interference with Mother's fundamental interest in the care, custody, and management of her children. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000).
As a final issue, the Cabinet argues in passing that the conviction of wanton endangerment, second degree, is a serious offense which alone justifies the adjudication. Specifically, in its brief, the Cabinet asserts the conviction rendered its request for the court "to require Mother to protect her children" perfectly reasonable and further noted that if Mother had only cooperated with the Cabinet, this "matter would have never gone to court." From the petition, stipulations, final orders, and briefs, it is clear that the Cabinet and the court deemed the risk of harm to be sexual in nature. Any attempt at this juncture to rebrand the risk as one of a more generalized physical harm is hollow and would not be supported by the bare-bones stipulations.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Oldham Circuit Court is hereby REVERSED, and these matters are REMANDED to the court for further proceedings consistent with this Opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Jonathan O. Wells
LaGrange, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY/CABINET FOR
FAMILIES AND PROTECTIVE
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky