Opinion
2021-CA-1028-ME
03-18-2022
G.M. APPELLANT v. S.S.; COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; L.S.; S.M.; AND X.S., A CHILD APPELLEES
BRIEF FOR APPELLANT: Donald L. Wilkerson, III. BRIEF FOR APPELLEES: Kevin S. Shearer.
NOT TO BE PUBLISHED
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE ACTION NO. 19-J-00118-002
BRIEF FOR APPELLANT: Donald L. Wilkerson, III.
BRIEF FOR APPELLEES: Kevin S. Shearer.
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
OPINION
COMBS, JUDGE:
Appellant, G.M., appeals the family court's determination of neglect against him in a dependency, neglect, and abuse (DNA) proceeding. Finding no error after our review, we affirm.
Appellant, G.M. (Father), is the biological father of X.S., a minor child who was born in 2018. On December 10, 2020, the Cabinet filed a juvenile DNA petition in Russell Family Court. According to the petition, on September 11, 2020, Father had taken the child to the doctor due to behavior concerns. The child had bruising, which Father stated resulted from the child's biting and hitting himself. There was also a bruise on his right leg that looked like a handprint as well as bruising on and behind the child's ear. A large bruise on the forehead was covered in make-up.
The medical provider reported that the bruises were not consistent with the child's hurting himself. The petition includes a summary of a forensic interview completed by the University of Kentucky, which indicates that the bruising was highly concerning and specific for child abuse. Moreover, the summary noted that ear bruising is highly specific for inflicted injury (and only rarely caused by accidental means) because of the ears' anatomically-protected position on the body.
On April 28, 2021, the family court conducted an adjudication hearing. By order entered April 28, 2021, the family court found that:
On 9/11/2020 [the child] had multiple bruise [sic] all over his body.
The bruises on and behind [the child's] right ear and a handprint-shaped bruise on his leg were diagnosed as non-accidental by Dr. Holly VonGruenigen [sic], Russell County Hospital and University of Kentucky forensics;
[The child] was in father['s] and paramour['s] . . . care when the bruises occurred, and both deny causing the injuries.
The Court cannot ascertain a specific and [sic] perpetrator of [the child's] injuries but finds the injuries occurred and were non-accidental.
The Court finds both [Father] and [paramour] neglected [the child] and created or allowed to be created the risk of physical injury by other than accidental means as [the child] was in their care when he sustained non-accidental bruising to and behind his ear.
The Court further finds the use of makeup to cover one of his facial bruises indicates an effort to conceal [the child's] injuries.
The family court concluded that the child is neglected as defined in KRS 600.020(1) in that "the child's parent(s), guardian(s) person(s) in a position of authority or special trust or . . . or other person(s) exercising custodial control or supervision of the child . . . [c]reated or allowed to be created a risk or physical or emotional injury by other than accidental means."
Kentucky Revised Statutes.
On July 22, 2021, the family court conducted a disposition hearing and entered an order finding that the facts supported continued removal of the child, who had "sustained multiple bruises on his ear, leg & face while in father & stepmother's care."
On August 30, 2021, Father filed a notice of appeal to this Court from the orders entered on April 28, 2021, and on July 22, 2021.
On appeal, Father argues that the family court abused its discretion in finding that he neglected the child. Father contends that the court could have found that he or his paramour had inflicted or allowed to be inflicted physical injury upon the child -- but that it did not. He also argues the finding of neglect for "creating or allowing to be created the risk of physical injury" is unreasonable and unfair. We cannot agree.
The family court has broad discretion in determining whether a child is neglected. G. P. v. Cabinet for Health and Family Services, 572 S.W.3d 484, 491 (Ky. App. 2019).
A family court's findings of fact in a DNA action shall not be set aside unless clearly erroneous. A finding of fact is clearly erroneous if it is not supported by substantial evidence . . . . Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.M.C. v. Cabinet for Health and Family Services, 614 S.W.3d 915, 921 (Ky. 2021) (internal quotation marks and citations omitted).
KRS 600.020 provides 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, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
. . .
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[.]
In Cabinet for Health and Family Services on behalf of C.R. v. C.B., 556 S.W.3d 568, 576 (Ky. 2018), our Supreme Court explained that:
[A] court can find neglect if an individual "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." "The statute, as written, permits the court's finding where a risk of abuse exists and does not require actual abuse prior to the child's removal from the home or limitation on the contact with an abusive parent." Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008) (emphasis added).
The identity of the perpetrator of the abuse is not material to a finding of neglect. Commonwealth, Cabinet for Health & Family Services ex rel. M.H. v. R.H., 199 S.W.3d 201, 204 (Ky. App. 2006).
Dr. Von Gruenigen was among the Cabinet's witnesses who testified at the adjudication hearing. She saw the child on September 11, 2020, when Father brought him in for behavioral concerns -- biting and hitting himself. The examination revealed that the child was covered in bruising. Dr. Von Gruenigen was concerned in particular about a bruise on the right ear, a bruise on the right forehead which had make-up on it, and a bruise on the right lower extremity. She testified that bruising on the ear is a "red-flag" because it is an unlikely place for a child just to fall or injure himself. The right lower extremity bruise appeared to be from an adult handprint. Dr. Von Gruenigen was concerned that the right forehead bruise had been camouflaged. When she talked to Father, he said that he did not know why there was make-up on it. But "it was clearly covered up." Dr. Von Gruenigen had to take an alcohol swab to remove the make-up.
We are satisfied from our review of the record that substantial evidence supports the family court's findings of fact and that the court correctly applied the law to the facts as found. Accordingly, we find no abuse of discretion. We affirm the order of the Russell Family Court.
ALL CONCUR.