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M.S.C. v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Nov 4, 2016
NO. 2015-CA-001366-ME (Ky. Ct. App. Nov. 4, 2016)

Opinion

NO. 2015-CA-001366-ME NO. 2015-CA-001367-ME

11-04-2016

M.S.C. APPELLANT v. COMMONWEALTH OF KENTUCKY; A.K.A., A CHILD; AND A.B.A., A CHILD APPELLEES

BRIEF FOR APPELLANT: Robert W. Miller Grayson, Kentucky BRIEF FOR APPELLEE: Justin Criswell Grayson, Kentucky


NOT TO BE PUBLISHED APPEALS FROM CARTER CIRCUIT COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NOS. 15-J-00123 & 15-J-00124 OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, MAZE, AND NICKELL, JUDGES. JONES, JUDGE: This consolidated appeal arises out of a dependency, neglect, and abuse ("DNA") proceeding in the Carter Circuit Court's Family Division. The Appellant, M.S.C. ("Father"), asserts that the family court erred in finding that he abused his minor son. For the reasons more fully explained below, we affirm.

I. Background

On or about July 5, 2015, the Cabinet for Health and Family Services (hereafter "the Cabinet") received a report of possible child abuse. One of the Cabinet's social workers, Peggy Rister, contacted the Kentucky State Police and requested assistance in conducting a home investigation. Trooper Forest Newsome accompanied Ms. Rister to the home in question where Father, Mother, and two minor children ages seven and two were residing. Ms. Rister spoke with both Father and Mother as well as the older child.

Father admitted that the previous day he had struck the older child several times with a belt after he observed him push the younger child. Father stated that after striking the child, he sent him to his room. Father then left both children alone in the home for a brief period to retrieve Mother from a relative's house. Father stated that after Mother returned home, he was still very upset so he left the home. Father also told Ms. Rister and Trooper Newsome that he had recently "fallen off the wagon" and was using drugs. However, he denied that he was under the influence of any substances when he disciplined his son.

Ms. Rister and Trooper Newsome observed fairly substantial bruising on the older child's upper legs and buttocks. Ms. Rister photographed the bruising. As a result of the investigation, Trooper Newsome charged Father with Criminal Abuse in the Third Degree. Father was taken to the police station where he underwent a drug screen. The screen was positive for several illegal substances.

On July 10, 2015, the Cabinet filed a Juvenile Dependency, Neglect and Abuse Petition (DNA). The affidavit accompanying the petition alleges as follows:

It was reported that [Appellant] "got wild" and whipped [K.A.C.] age 7 with a belt on Saturday, July 4, 2015, and left several marks and bruises on him. It was reported that the dad was under the influence of drugs and alcohol and 'just swung away hitting whatever he could.' There is another child in the home [B.A.] age 2. It was reported that [Appellant] uses cocaine, Percocet, nerve pills and alcohol in the home with the children present. It was reported that [Appellant] recently overdosed while the children were present while on vacation in Florida. He took cocaine, alcohol, and nerve pills. It was reported that [Appellant] packs a gun around and pulls it out when he is "wild" or high. The [Appellant] admitted to "whipping" the child with a belt and leaving marks on the child. SSW & KSP Trooper Newsome arrived at the home and bruises were found on the child. The father admitted to using illegal drugs and "whipping" the child on Saturday but didn't realize he had left bruises although admitted there had been red marks after the "whipping". There were concerns for the welfare of the children when the [Appellant] is home.

Following the filing of the DNA petition, a preliminary hearing was scheduled for July 14, 2015. At that time, the family court appointed counsel for the parties. It also directed that the children were to remain in the home with Mother only pending a final determination. The court also directed Father to submit to a drug test that day. The test was positive for Benzodiazepines and Oxycodone.

The family court conducted a hearing on August 4, 2015. The Commonwealth called Ms. Rister and Trooper Newsome to testify on its behalf. Both witnesses testified consistent with the allegations set forth in the affidavit. Additionally, the photographs taken by Ms. Rister were introduced into evidence. Father did not call any witnesses.

Following the hearing, the family court found that the allegations in the petition were true "in that the father did discipline the child with a belt and left considerable marks for more than one day." The family court also observed on the record that it was likely that Father was under the influence of illegal substances when this discipline occurred. Based on its findings, the family court concluded that Father's conduct amounted to abuse in that he "inflicted or allowed to be inflicted upon the child physical or emotional injury by other than accidental means." The family court also determined that the younger child was at risk of abuse or neglect based on Father's conduct. The family court allowed Father to remain in the home, but ordered that Father should not be left alone with the children. The family court also ordered Father to continue with drug testing and to work with the Cabinet with respect to his substance abuse. This appeal followed.

II. Standard of Review

"A [family] court has broad discretion to determine whether a child has been either abused or neglected." C.J.M. v. Cabinet for Health & Family Servs., 389 S.W.3d 155, 160 (Ky. App. 2012). The family court's decision will not be disturbed unless the decision was not based upon substantial evidence. M.E.C. v. Comm., Cabinet for Health and Family Serv., 254 S.W.3d 846, 851 (Ky. App. 2008).

III. Analysis

The family court determined that Father's actions constituted abuse and neglect. The relevant statute, KRS 600.020(1)(a), provides 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:

1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;

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;

3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;

4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;

5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;

6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;

7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child;

9. Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months;

As he did before the family court, Father asserts that his conduct was privileged pursuant to KRS 503.110. This statute provides:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant is a parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person or when the defendant is a teacher or other person entrusted with the care and supervision of a minor, for a special purpose, and: (a) The defendant believes that the force used is necessary to promote the welfare of a minor or mentally disabled person or, if the defendant's responsibility for the minor or mentally disabled person is for a special purpose, to further that special purpose or maintain reasonable discipline in a school, class, or other group; and (b) The force that is used is not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress.
KRS 503.110. Based on this statute, Father submits that he "had every right and was privileged to use physical force upon the minor, whose care and supervision was entrusted to him, as long as the force was not designed to cause or create a substantial risk of death, serious physical injury, etc."

As a primary matter, KRS 503.110 is part of the penal code. It is a statutory defense to a criminal charge. This is a DNA proceeding; it is not criminal in nature. Therefore, we do not believe that KRS 503.110 has any direct application to this matter.

The relevant statute defines physical injury as: "substantial physical pain or any impairment of physical condition." KRS 600.020(28). In this case, the photographs showed fairly substantial bruising on the child's upper thighs. These photographs were taken a day after Father struck the child. Based on the photographs alone, we believe that the family court could properly conclude that Father inflicted substantial physical pain on his son when he struck him repeatedly with a belt. Additionally, Father's drug use is a compounding factor in this case. Father admitted that he had "fallen off the wagon" and tested positive for drugs following the incident (as well as at least one other time in early August). Based on these facts, the family court concluded that it was likely that Father was under the influence of drugs when the abuse occurred. Had Father not been under the influence of drugs, it is certainly possible his discipline would have not been so extreme as to injure the child. The fact remains, however, that Father's actions caused visible injuries to his son. Based on the record, we agree with the family court's determination that abuse and neglect were present in this case.

IV. Conclusion

For the reasons set forth above, we AFFIRM the Carter Circuit Court-Family Division.

ALL CONCUR BRIEF FOR APPELLANT: Robert W. Miller
Grayson, Kentucky BRIEF FOR APPELLEE: Justin Criswell
Grayson, Kentucky


Summaries of

M.S.C. v. Commonwealth

Commonwealth of Kentucky Court of Appeals
Nov 4, 2016
NO. 2015-CA-001366-ME (Ky. Ct. App. Nov. 4, 2016)
Case details for

M.S.C. v. Commonwealth

Case Details

Full title:M.S.C. APPELLANT v. COMMONWEALTH OF KENTUCKY; A.K.A., A CHILD; AND A.B.A.…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Nov 4, 2016

Citations

NO. 2015-CA-001366-ME (Ky. Ct. App. Nov. 4, 2016)