RENDERED: JANUARY 21, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0191-DE
M.C. APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. NO. 19-CA-1395
CALLOWAY CIRCUIT COURT NO. 17-J-0105-005
COMMONWEALTH OF KENTUCKY, APPELLEE
CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, CALLOWAY COUNTY; L.C.,
DECEASED MOTHER OF MINOR CHILD;
AND S.C., A MINOR CHILD
AND
NO. 2020-SC-0192-DE
M.C. APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. NO. 19-CA-1399
CALLOWAY CIRCUIT COURT NO. 17-J-0106-005
COMMONWEALTH OF KENTUCKY, APPELLEE
CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, CALLOWAY COUNTY; L.C.,
DECEASED MOTHER OF MINOR CHILD;
AND B.C., A MINOR CHILD
AND
NO. 2020-SC-0193-DE
C.C. APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 19-CA-1400
CALLOWAY CIRCUIT COURT NO. 17-J-0104-005
COMMONWEALTH OF KENTUCKY, APPELLEE
CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, CALLOWAY COUNTY; L.C.,
DECEASED MOTHER OF MINOR CHILD;
AND C.C., A MINOR CHILD
OPINION OF THE COURT BY JUSTICE LAMBERT
REVERSING AND VACATING
M.C. appeals a decision of the Court of Appeals that affirmed the
Calloway Family Court’s finding of neglect against M.C. regarding his three
teenaged children. After review, we reverse the Court of Appeals and vacate the
family court’s orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
The appellant in this case, M.C.,1 is the father of three children: twins
B.C. and S.C. who were born on October 31, 2005, and C.C. who was born on
December 1, 2003. Sadly, the children’s mother, L.C., passed away during the
1 This case is under a court order of confidentiality. The parents and children
will therefore be referred to by their initials.
2
pendency of this case at the Court of Appeals. M.C. and L.C. were divorced
during the relevant time periods discussed herein.
The Cabinet became involved with this family for the first time in July of
2017 with its filing of a petition against the mother. As we will discuss in more
detail below, that court case was ultimately closed and is therefore not at issue
here. But, because of our family court system’s “one judge one family” policy,
we feel a brief discussion of that case is important to the case at bar. The same
judge presided over both cases, and the prior case was certainly considered by
that judge when ruling in the case before us. While these cases have the 2017
case number, the parties did not designate the original cases as part of the
record here. Our information was gleaned from the Cabinet’s Dispositional
Report in this case, trailer number five for each child.
In July of 2017, L.C. had custody of the children. The Cabinet received
reports that L.C. was drinking alcohol while in a caregiving role for the
children. The Cabinet removed the children from L.C.’s care and placed them
with M.C. while it worked with L.C. to address her alcohol use.
M.C. agreed to a case plan with the Cabinet that prohibited the children
from having unsupervised visits with L.C. M.C. also agreed to abstain from
alcohol consumption. In December of 2017, the Cabinet removed the children
from M.C.’s care, asserting that M.C. had allowed unsupervised visitation
between the children and L.C. and had consumed alcohol in his home around
the children.
3
The Cabinet placed them with their paternal grandmother. Their
grandmother agreed not to allow any unsupervised visits between the children
and either parent. On March 28, 2018, the Cabinet removed the children from
their grandmother’s care after she allowed them to stay with M.C.,
unsupervised, for two nights. In addition, there was an incident during which
the grandmother told the children that she did not want them and smashed
B.C.’s cellphone with a hammer in the children’s presence. The children were
placed in the Cabinet’s custody on April 2, 2018 and placed with a foster
family.
After the children were placed in the Cabinet’s custody, L.C. and M.C.
began working their respective case plans with the Cabinet. L.C.’s progress
was minimal, and she eventually stopped cooperating with the Cabinet
altogether. L.C. refused to participate in an intensive outpatient program (IOP)
or an inpatient program to address her alcohol use and did not comply with
drug screens or breathalyzers requested by the Cabinet. She also failed to
meet with the social service worker (SSW) on the case from August 2018 to May
2019. She did not see the children in person from August 2018 to May 2019,
though she would call the children. The phone calls were reported to be
sporadic and strange, and L.C. would sometimes become emotional and say
things that did not make sense.
In contrast, M.C. cooperated with the Cabinet and made significant
progress on his case plan. He had supervised visits with the children that
reportedly went well. He also attended substance use and mental health
4
counseling regularly at Four Rivers Behavioral Health (Four Rivers), and his
sessions there went well with few concerns from his therapist. The goal of
reunification was stalled when M.C. got a job in Georgia, but he returned to
Kentucky in December 2018, with hopes of regaining custody of his children.
M.C. continued to work his case plan, and the children were returned to him
on March 22, 2019.
This brings us to the case now before us. When the children were
returned to M.C. on March 22, 2019, the 2017 DNA2 case was closed with the
condition that M.C. cooperate with the Cabinet. The Cabinet left its case open
in order to continue working M.C.’s case plan. A copy of the case plan agreed
to by M.C. at that time was not included in the record, but it appears that it
imposed at least three conditions on M.C.: that he would attend A.A., that he
would not allow unsupervised visits between the children and their
grandmother, and that he would not be under the influence of alcohol while in
a caretaking role or in the presence of the children.
Andrea Fox, the SSW on the case, was contacted on the evening of April
17, 2019, by either the children’s CASA3 worker or the children’s former foster
mother about M.C. possibly drinking around the children. On April 19th, Ms.
Fox went to M.C.’s home to speak with him. According to Ms. Fox, M.C. told
her that he was struggling with his sobriety. At that point Ms. Fox gave M.C.
an ultimatum: either he stopped drinking and attend an IOP or she would file a
2 Dependency, neglect, or abuse.
3 Court Appointed Special Advocate.
5
petition to have the children removed. Ms. Fox also told him that it was very
likely the permanency goal for the children would be changed to adoption due
to their time in the Cabinet’s care. M.C. told her he would not attend an IOP as
he has always maintained that, while he drinks, it does not have an effect on
his ability to parent and care for his children.
Ms. Fox filed a DNA petition on April 23, 2019, and the children were
removed from M.C.’s home via an emergency custody petition filed the same
day. Additionally, because M.C. denied the neglect and refused to sign the
prevention plan, his visitation with the children was suspended by the Cabinet.
The family court granted the emergency custody petition on the grounds that
“[t]he [children were] in danger of imminent death or serious physical injury or
[were] being sexually abused.” The children were then placed with the same
foster family they had been with previously.
At the adjudication hearing on July 29, 2019, the Cabinet called one of
the twins, B.C., to testify regarding the children’s time in M.C.’s care prior to
their removal. B.C., then age thirteen, was the only child to testify. He said
that he was glad he was placed back with M.C. B.C. was unsure if M.C. began
drinking immediately after they were returned to him, but he knew M.C. was
drinking by about week two or three. He could not say whether M.C. was
drinking every night.
B.C. said that he never saw M.C. drink but knew when he was drinking
from the way his eyes looked and the slight slur he would get. B.C. said he
would also sometimes say strange things; the example B.C. gave was that M.C.
6
would talk about things that happened when B.C. was a baby. M.C. had no
trouble walking when he was drinking and did not stumble or fall down. In
addition, M.C. never drank in the morning or during the day and he did not
drink inside the home. M.C. would only drink in the evening after dinner on
the back deck. B.C. would get home late because he had track practice after
school and football practice after that. Because of his schedule, they typically
ate dinner late, between about 7 and 9 pm. M.C. would cook dinner for them,
and after they were done eating M.C. would go out on the back deck for about
an hour and drink standard sized cans of beer. B.C. did not know how many
beers M.C. drank, and M.C. always threw his beer cans away. When M.C. was
done on the back deck, he would come inside, say goodnight to the children,
and go to bed. On school days, M.C. would get the children up in the morning
for school, and M.C. would either drive them to school or they would walk. In
addition, each child had a household chore they were responsible for that
changed from time to time.
When B.C. was asked how the children felt about M.C.’s drinking, he
said that he and his older brother C.C. are not bothered by it. However, his
twin sister S.C. got upset by it. Occasionally, it led to verbal arguments
between S.C. and M.C.
Ms. Fox testified that the children were not missing any school while in
M.C.’s care, that they have always excelled in school, and she had no concerns
about how they were doing in school. She also had no concerns about them
being properly fed, clothed, or otherwise provided for. She said that when she
7
visited M.C. at his home on April 19 it was “extremely cluttered” but not dirty.
She did not observe anything in the home that was a threat to the children’s
health or well-being.
On April 16, three days prior to Ms. Fox’s visit to M.C.’s home, Murray
Police Officer Alyssa Finnegan went to the home at 9:10 p.m. to conduct a
welfare check on the children. There was no evidence as to who requested the
welfare check. M.C. let Ofc. Finnegan into the house and spoke with her for a
couple of minutes. Ofc. Finnegan testified that she did not smell or see any
alcohol, that M.C. did not appear impaired, and that he answered all of her
questions fully and appropriately. B.C. and C.C. were at home that evening,
but S.C. was at a friend’s house. Ofc. Finnegan spoke to B.C. and C.C. out of
M.C.’s presence. She said they were not in distress and she had no concerns
for their well-being. She did not recall the house being cluttered or dirty.
Ofc. Finnegan then went to speak with S.C. at her friend’s house. S.C.
was visibly upset and crying but other than that she was fine. S.C. told her
that M.C. had been drinking a beer and smoking, S.C. told him he was a bad
influence, and they got into a verbal argument. S.C. thereafter asked M.C. if
she could stay at a friend’s house and he agreed.
Following the adjudication hearing the family court issued its
adjudication order. In it, the court made the following findings of fact:
The Court finds reasonable cause to believe the
[children are] neglected based on father’s continued
alcohol use. The father signed a prevention plan with
the Cabinet that he would not be under the influence
of alcohol while in the care-giving role and the children
8
reported to the Cabinet worker that the father’s
drinking has continued to get worse.
In its conclusions of law, the court found that the children were neglected
under KRS4 600.020(1)(a)2, 3, 4, and 8, and found that there were no less
restrictive means than removal because “[t]he father has refused to stop
drinking and has refused to enter intensive out patient (sic) rehab as advised
by Four Rivers. The father is unwilling to address his substance abuse issues.”
In the family court’s subsequent disposition hearing order, it adopted the
recommendations of CASA and the Cabinet to change the permanency goal to
adoption and to waive reasonable efforts by the Cabinet towards reunification
with either parent. It found that there were no less restrictive alternatives to
removal because “[t]he Cabinet [had] worked with the parents since July 2017,
and little to no progress [had] been made by the parents.” Orders granting the
waiver of reasonable efforts by the Cabinet and changing the permanency goal
to adoption were entered the same day.
M.C. appealed the family court’s decision to the Court of Appeals, which
affirmed. After thorough review, we reverse and vacate the family court’s
finding of neglect.
Additional facts are discussed below as necessary.
4 Kentucky Revised Statute.
9
II. ANALYSIS
A. Preservation
Under KRS 610.080, DNA actions are bifurcated proceedings, i.e., they
involve two distinct hearings: adjudication and disposition. The adjudication
determines the truth or falsity of the allegations in the DNA petition,5 while the
disposition determines the action to be taken by the court on behalf of the child
or children.6 The rights of all parties to a DNA action are not fully adjudicated
for the purposes of appellate review until both the adjudication and disposition
hearings have been completed.7 Accordingly, “a disposition order, not an
adjudication order, is the final appealable order with regard to a decision of
whether a child is dependent, neglected, or abused.”8
In this case, M.C. initially filed his appeal from the adjudication order,
which would have otherwise rendered his appeal interlocutory and therefore
improper. However, as the Court of Appeals noted, M.C. subsequently filed a
curative notice of appeal to remedy his premature appeal.9 Because the
adjudication and disposition hearings were completed and because M.C. filed a
curative notice of appeal, we elect to proceed with review of this case. We
5 KRS 620.100(3).
6 KRS 620.100(4).
7 See J.E. v. Cabinet for Health & Fam. Servs., 553 S.W.3d 850, 852 (Ky. App.
2018).
8 Id. at 853. See also B.S.S. v. K.S., 599 S.W.3d 858, 864 (Ky. 2020).
9 M.C. v. Cabinet for Health & Fam. Servs., 2019-CA-001395-ME, 2020 WL
1815981, at *3 n.4 (Ky. App. Apr. 10, 2020).
10
reiterate for the benefit of future litigants that parties to a DNA action should
file their notice of appeal from the disposition order, not the adjudication order.
B. Standard of Review
In this case, the Cabinet bore the burden of proving that the children
were neglected by M.C. by a preponderance of the evidence.10 In other words,
that it was more likely than not that they were neglected.11 A family court’s
findings of fact in a DNA action “shall not be set aside unless clearly
erroneous.”12 “A finding of fact is clearly erroneous if it is not supported by
substantial evidence, which is evidence sufficient to induce conviction in the
mind of a reasonable person.”13 If the family court’s findings of fact were
supported by substantial evidence, and it applied the correct law, its decision
will not be disturbed absent an abuse of discretion.14 An abuse of discretion
occurs when “the family court's decision is unreasonable or unfair.”15 “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.”16 As the facts of this case are largely
10 See KRS 620.100(3).
11 See, e.g., Ashley v. Ashley, 520 S.W.3d 400, 404 (Ky. App. 2017).
12 See Kentucky Rule of Civil Procedure (CR) 52.01.
13 B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
14 Id.
15 Id.
16 Id. at 219-20.
11
undisputed, we granted discretionary review to determine whether the trial
court abused its discretion when it found the children in this case to be
neglected.
As with any case involving state interference with a parent’s fundamental
constitutional right to raise their children,17 there are other considerations of
which we must also be mindful. Specifically, that “[w]hile the state has a
compelling interest to protect its youngest citizens, state intervention into the
family with the result of permanently severing the relationship between parent
and child must be done with utmost caution. It is a very serious matter.”18
The foundation of our Unified Juvenile Code is to serve the best interests of the
child.19 And it is the policy of this Commonwealth that the best interests of the
child are best served by keeping them with their biological parents, when
possible. To that end, KRS 600.010 provides in pertinent part:
(2) KRS Chapters 600 to 645 shall be interpreted to
effectuate the following express legislative purposes:
(a) The Commonwealth shall direct its efforts…
to the strengthening and encouragement of
family life for the protection and care of children;
to strengthening and maintaining the
biological family unit;
17 Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49
(2000) (“The liberty interest at issue in this case—the interest of parents in the care,
custody, and control of their children—is perhaps the oldest of the fundamental liberty
interests recognized by this Court.”).
18 M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254 S.W.3d 846,
851 (Ky. App. 2008) (citing V.S. v. Commonwealth, Cabinet for Fam. Servs., 194 S.W.3d
331, 335 (Ky.App.2006)).
19 See generally KRS Chapters 600 to 645.
12
(c) The court shall show that other less
restrictive alternatives have been attempted or
are not feasible in order to insure (sic) that
children are not removed from families except
when absolutely necessary[.]20
With these principles in mind, we now address the merits of this case.
C. The family court’s finding that M.C. neglected his children was an
abuse of discretion.
As mentioned previously, the family court found that the children were
neglected by M.C. under KRS 600.020(1)(a)2, 3, 4, and 8. Those statutory
provisions state:
(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;
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 a
substance use disorder 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;
20 (emphasis added).
13
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[.]
i.) KRS 600.020(1)(a)2
In order to find that a child was neglected under the first subsection at
issue, KRS 600.020(1)(a)2, the parent must create or allow to be created a risk
of physical or emotional injury to the child by non-accidental means. A
“physical injury,” is “substantial physical pain or any impairment of physical
condition.”21 An “emotional injury” is
an injury to the mental or psychological capacity or
emotional stability of a child as evidenced by a
substantial and observable impairment in the child's
ability to function within a normal range of
performance and behavior with due regard to his or
her age, development, culture, and environment as
testified to by a qualified mental health
professional[.]22
By its express terms, KRS 600.020(1)(a)2 allows a finding of neglect when
there has only been a risk of physical or emotional injury. It “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.”23 However, “the risk of harm must be more than a mere
21 KRS 600.020(49).
22 KRS 600.020(26).
23 Cabinet for Health & Fam. Servs. Ex rel. C.R. v. C.B., 556 S.W.3d 568, 576
(Ky. 2018) (quoting Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008)).
14
theoretical possibility,” it must be “an actual and reasonable potential for
harm.”24
The Court of Appeals relied heavily on a recent case of this Court,
Cabinet for Health and Family Servs. on behalf of C.R. v. C.B.,25 to support its
holding that there was sufficient evidence of risk of physical or emotional injury
to support a finding of neglect in this case. But C.B. is readily distinguishable
from the case now before us.
In C.B., the Cabinet filed a DNA petition against a newborn’s mother and
father because the baby was born with Suboxone in its system and had several
birth defects.26 Two months before the baby’s birth the father began attending
a Suboxone clinic, and admitted to using heroin, Percocet, and off-street
Suboxone on his intake form.27 The father had previously had a termination of
parental rights (TPR) for other children due to his substance use.28
After the Cabinet filed its DNA petition, the father agreed to work a case
plan requiring that he call the Cabinet three times a week for random drug
screens and report at a designated time if required to take one, continue
attending his Suboxone clinic, and take all medications only as prescribed.29
At the adjudication hearing on the petition the Cabinet presented evidence that
24 K.H. v. Cabinet for Health and Family Servs., 358 S.W.3d 29, 32 (Ky. App.
2011).
25 556 S.W.3d at 568.
26 Id. at 570.
27 Id.
28 Id.
29 Id.
15
the father called the Cabinet as required during the early stages of his case
plan.30 However, he tested positive for Gabapentin (Neurontin) on three
separate occasions, a drug for which he did not have a prescription.31 He also
continued to test positive for Suboxone for which he likewise did not have a
prescription.32 In addition, he failed to call the Cabinet for testing on several
occasions and left before providing a sample on two occasions.33
The father testified that he had never taken Gabapentin and presented
drug screens from his Suboxone clinic taken on consecutive days to that of the
Cabinet’s that did not show the presence of Gabapentin.34 The father admitted
to “stretching out” his old Suboxone prescription to avoid withdrawal sickness,
but he did not have a prescription for Suboxone at that time.35 Finally, he
testified that the children from his previous termination of parental rights case
were not his, but the documents from that case noted no objection to the
paternity of the children.36 The circuit court found that the child was neglected
by the father due to the risk of harm associated with his substance use
issues.37 The Court of Appeals reversed and held, in pertinent part, that the
30 Id.
31 Id.
32 Id.
33 Id.
34 Id. at 570-71.
35 Id. at 571.
36 Id.
37 Id.
16
Cabinet’s evidence was speculative and did not rise to the level of a
preponderance of the evidence.38
This Court subsequently granted discretionary review and held that the
evidence was sufficient to support a finding of neglect via a risk of harm.39 In
particular, the Court pointed to the fact that the father’s “history of drug abuse
was found to have created a risk of harm in the prior TPR proceeding.”40 And,
that he continued to test positive for drugs for which he did not have a
prescription, which suggested his drug issues were still not resolved.41
Accordingly, it reversed the Court of Appeals and reinstated the circuit court’s
order.42
The first factor that distinguishes this case from C.B. was completely
overlooked by the Court of Appeals in its analysis: the age of the children. In
C.B., the child was a newborn. It goes without saying that newborns need a
parent’s undivided attention and care nearly twenty-four hours a day.
Consequently, the probability that harm may come to them due to a parent’s
substance use is automatically very high. But at the time of the underlying
facts in this case the twins B.C. and S.C. were thirteen years old, while the
oldest child C.C. was fifteen years old. And, as of the writing of this opinion,
they are fifteen and seventeen years old, respectively. They are all reportedly
38 Id.
39 Id. at 574.
40 Id. at 576.
41 Id.
42 Id.
17
very bright, academically successful and capable children. There was no
evidence that any of them have any special needs.
Further, the evidence was uncontroverted that M.C. was providing
appropriate care to his children. M.C. cooked them dinner frequently, if not
every night, made sure the children did their chores, and got them up for and
took them to school. The Cabinet worker in this case, Ms. Fox, testified that
she had no concerns about the children’s performance or attendance at school
and had no concerns about them being properly fed, clothed, or otherwise
provided for. She saw nothing in the home that was a threat to the children’s
health or well-being. There was no evidence that M.C. ever drank during the
day or to the point of stumbling around or passing out while the children were
in his care.
We believe the ages of the children are a key distinguishing factor against
a finding of risk of harm under the facts of this case. However, we feel it is
important to make clear that we are not holding that children of an advanced
age categorically cannot be subjected to a risk of harm or neglect due to a
parent’s substance use.
Another distinguishing factor in this case is that the child in C.B. had
already suffered real harm due to her parent’s substance use: she was born
with Suboxone in her system and was born with several birth defects that were
presumably due to her mother’s drug use during her pregnancy. Granted, it
was the mother’s drug use that caused this harm. But the mother and father
were in a relationship and both were drug users. This also supported the
18
circuit court’s finding in that case that the baby was at a risk of harm due to
her father’s substance use.
Here, there was no evidence of any kind that M.C.’s children were at a
risk of a physical or emotional injury. Regarding a risk of physical injury, it
was never alleged that he would become aggressive or violent toward his
children when he drank or that they ever suffered a physical injury due to
M.C.’s drinking. Regarding emotional injury, there was evidence that S.C.
would become upset by M.C.’s drinking and they would have verbal arguments.
But there was no suggestion that she “suffered an injury to [her] mental or
psychological capacity or emotional stability [as evidenced] by a substantial
and observable impairment of [her] ability to function.”43
Finally, the father in C.B. had previously had his parental rights to other
children terminated due to his substance use. M.C. has never had his parental
rights terminated due to his drinking, though we acknowledge the children had
previously been removed from his care for drinking and allowing the children to
have unsupervised visits with their mother.
Instead, we feel that K.H. v. Cabinet for Health and Family Services is
more applicable.44 In K.H., the biological mother and father lived together and
had two children, a four year old and an eight year old.45 Following an
investigation, the Cabinet and the Kentucky State Police substantiated a sexual
43 KRS 600.020(26) (defining “emotional injury”).
44 358 S.W.3d 29 (Ky. App. 2011).
45 Id. at 29.
19
abuse allegation by the children’s twelve year old cousin against their father.46
After the substantiation, the Cabinet wanted the mother to sign an aftercare
plan wherein she would agree not to allow the father to be alone with the
children or allow him to bathe the children or change their clothing or
diapers.47 The mother refused citing her skepticism of the cousin’s allegation
and her belief that the father was not a danger to the children.48
The Cabinet filed a DNA petition against the mother based solely on her
refusal to sign the aftercare plan.49 It argued that her refusal to sign the
aftercare plan exposed the children to a risk of sexual abuse from their father
which amounted to neglect.50 The family court agreed and affirmed the neglect
charges against the mother.51 In particular, the court found that the mother
had information about a risk of harm to the children from their father and
failed to protect the children from that risk by refusing to agree to the aftercare
plan.52 The court ordered that the children remain in the home, but that their
father could not live there or have unsupervised contact with the children.53
In the subsequent appeal, the sole issue addressed by the Court of
Appeals was whether the Cabinet presented sufficient evidence to show that
46 Id. at 30.
47 Id.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.
20
the mother neglected the children.54 It noted that it did not doubt the
Cabinet’s good-faith desire to protect the children from possible sexual abuse,
but that it was “concerned about the breadth of the authority which the
Cabinet [was] asserting.”55 Specifically, there had been no allegation that the
father ever sexually abused his children, and the Cabinet conceded that the
mother was a good and fit parent and that the children were cared for
properly.56 Yet the Cabinet asserted that the mother’s refusal to sign the
aftercare plan, alone, constituted neglect.57 Of particular interest to the case
now at bar, the court stated:
[t]he 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 [the
mother] 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…when the Cabinet
seeks to compel a parent to comply with its directives,
the courts must be vigilant to protect against
overreaching of that authority. It is not enough for
the Cabinet to show that [the mother] would be
well-advised to agree to the terms of the Aftercare
Plan. The applicable statutory definition requires a
finding that [the mother] created or allowed to be
created a risk that an act of sexual abuse will be
committed upon the children.58
54 Id.
55 Id. at 31.
56 Id. at 31-33.
57 Id. at 31.
58 Id. (emphasis added).
21
And, as we have mentioned previously, that “risk of harm must be more than a
mere theoretical possibility, but an actual and reasonable potential for harm.”59
Without that requirement, “the Cabinet could subject [a parent to] a finding of
neglect based only on [his or her] refusal to comply with its
recommendations.”60 The Court of Appeals accordingly reversed the family
court’s finding of neglect against the mother.61
Here, the only allegation against M.C. is that he continued to drink
against the Cabinet’s wishes. But there was simply no evidence to support a
finding that his drinking subjected his children to “an actual and reasonable
potential for harm.”62 The children were by all accounts cared for and provided
for properly by M.C. and his drinking did not interfere with that care. We
therefore hold that the family court’s finding that M.C. neglected his children
under KRS 600.020(1)(a)2 was an abuse of discretion.
ii.) KRS 600.020(1)(a)3
Under the second subsection at issue, KRS 600.020(1)(a)3, a parent
neglects a child if he “[e]ngages 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 a substance use disorder as
59 Id. at 32.
60 Id.
61 Id. at 33.
62 Id. at 32.
22
defined in KRS 222.005.” And, under KRS 620.023(1)(c), the family court was
required to consider “[s]ubstance use disorder, as defined in KRS 222.005, that
results in an incapacity by the parent or caretaker to provide essential care and
protection for the child,” given its relevance in this case. Both statutes
reference KRS 222.005 for the definition of a substance use disorder. KRS
222.005(12), in turn, refers to “the most current edition of the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders
[DSM-V],” for the criteria of a substance use disorder.
As it relates to alcohol, the DSM-V’s diagnostic criteria for a substance
use disorder are:
A. A problematic pattern of alcohol use leading to
clinically significant impairment or distress, as
manifested by at least two of the following,
occurring within a 12-month period:
1. Alcohol is often taken in larger amounts or over
a longer period than was intended.
2. There is a persistent desire or unsuccessful
effects to cut down or control alcohol use.
3. A great deal of time is spent in activities
necessary to obtain alcohol, use alcohol, or
recover from its effects.
4. Craving, or a strong desire or urge to use
alcohol.
5. Recurrent alcohol use resulting in a failure to
fulfill major role obligations at work, school, or
home.
6. Continued alcohol use despite having persistent
or recurrent social or interpersonal problems
caused or exacerbated by the effects of alcohol.
23
7. Important social, occupational, or recreational
activities are given up or reduced because of
alcohol use.
8. Recurrent alcohol use in situations in which it
is physically hazardous.
9. Alcohol use is continued despite knowledge of
having a persistent or recurrent physical or
psychological problem that is likely to have
been caused or exacerbated by alcohol.
10. Tolerance, as defined by either of the following:
a. A need for markedly increased amounts of
alcohol to achieve intoxication or desired
effect.
b. A markedly diminished effect with
continued use of the same amount of
alcohol.
11. Withdrawal, as manifested by either of the
following:
a. The characteristic withdrawal syndrome for
alcohol (refer to Criteria A and B of the
criteria set for alcohol withdrawal, pp. 499-
500).
b. Alcohol (or a closely related substance,
such as a benzodiazepine) is taken to
relieve or avoid withdrawal symptoms.
The DSM-V then provides for a consideration of the severity of the alcohol use
disorder. The presence of two to three of the foregoing criteria is “mild,” four to
five is “moderate,” and the presence of six or more is “severe.”63
63 American Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders (5th Ed., 2013).
24
There was evidence presented at the adjudication hearing that M.C. had
recently met the criteria for substance use disorder. Reports from M.C.’s
counseling sessions at Four Rivers, dated from November 30, 2018, to May 3,
2019, were entered into evidence. One of those reports was an annual
psychosocial evaluation conducted on April 10, 2019, a little over three months
before the adjudication hearing on July 29, 2019. The evaluation states that
M.C.’s “presenting problem” was “SUD, based on reports of: spending a lot of
[time] on gaining [alcohol], cravings in the past and present, high tolerance,
[and] use despite negative consequences.” Therefore, the family court had
sufficient evidence to find that M.C. had a mild to moderate substance use
disorder. But that was only the first prong of what is necessarily a two-part
inquiry.
KRS 600.020(1)(a)4 requires that a parent’s substance use disorder
“renders the parent incapable of caring for the immediate and ongoing
needs of the child.”64 Likewise, the required consideration by the family court
under KRS 620.023(1)(c) is substance use disorder “that results in an
incapacity by the parent or caretaker to provide essential care and
protection for the child[.]”65 Therefore, by the express language of two
different statutes, it is not enough that M.C. had a substance use disorder.
That substance use disorder had to render him incapable of providing proper
64 (emphasis added).
65 (emphasis added).
25
care to his children in order for the family court to find that he neglected his
children under KRS 600.020(1)(a)3.
There was no evidence presented in this case that M.C.’s substance use
disorder rendered him incapable of caring for his children or meeting their
needs. As discussed supra, there was no evidence that M.C. was failing to
properly care for the children, and the Cabinet conceded it had no concerns
that M.C. was not meeting their needs or caring for them. The family court’s
finding of neglect against M.C. under KRS 600.020(1)(a)4 was therefore an
abuse of discretion.
iii. ) KRS 600.020(1)(a)4 and 8
Finally, due to the similarities of their language, we will address the final
subsections, KRS 600.020(1)(a)4 and 8, together. Those subsections allow for
a family court to find a parent has neglected a child if that parent either
“[c]ontinuously or repeatedly fails or refuses to provide essential parental care
and protection for the child, considering the age of the child,”66 or “does not
provide the child with adequate care, supervision, food, clothing, shelter, and
education or medical care necessary for the child's well-being.”67 Tellingly, the
Cabinet’s brief to this Court is entirely silent as to the family court’s findings
under these provisions. That omission is likely due to the fact that no
reasonable argument could be made that M.C. in any way neglected his
children under either provision.
66 KRS 600.020(1)(a)4.
67 KRS 600.020(1)(a)8.
26
As we have discussed, the children were thirteen and fifteen years old,
respectively, during the relevant period and were largely capable of looking
after themselves. Even so, the evidence was uncontroverted that M.C. provided
the kind of care discussed by the aforementioned statutory provisions. Again,
Ms. Fox testified that she was not concerned with how the children were doing
in school, they were not missing school, and continued to excel in school. In
that vein, B.C. testified that M.C. got the children up in the morning for school
and typically drove them there. Ms. Fox also stated that she had no concerns
about the children being properly clothed, fed, or otherwise provided for. Ms.
Fox’s only point of concern, apart from M.C.’s drinking, was that M.C.’s home
was “cluttered.” But cluttered, of course, does not necessarily mean dirty and
Ms. Fox could not say that the house was dirty. Indeed, she stated that she
did not see anything in the home that was a threat to the children’s health or
well-being. And Ofc. Finnegan, who was in the home just three days prior to
Ms. Fox, testified that she did not remember the home being cluttered or dirty.
Accordingly, the family court’s finding that M.C. neglected his children
under KRS 600.020(1)(a)4 and 8, respectively, was an abuse of discretion.
As a final point of discussion, no future appellant shall be permitted to
cite this Opinion to argue that parents are free to ignore or refuse to follow
their agreed upon case plans with the Cabinet. That is not our intention.
Rather, the basis for this decision is that, while substance use by a parent is
an extremely serious matter that we do not take lightly, we simply cannot
27
affirm a finding of neglect when there has been no harm or actual, reasonable
risk of harm to a child. We agree that M.C. would be well-advised to continue
to seek substance use treatment, but in the record before us there is no
justification to find that he neglected his children, let alone to waive reasonable
efforts at reunification with his children and change their permanency goal to
adoption. Every parent has the fundamental constitutional right to raise their
children, a right reflected in this Commonwealth’s policy of not removing
children from their biological parents “except when absolutely necessary[.]”68
This Court sees no such necessity in this case.
III. CONCLUSION
Based on the foregoing, the family court’s orders finding M.C. neglected
B.C., S.C, and C.C. are vacated, and the petitions are dismissed. The children
shall be immediately returned to the custody and care of M.C. absent the filing
of a new petition which alleges that he is presently unfit to care for them.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Christopher Earl Hendricks
Hendricks Law Office
COUNSEL FOR APPELLEE:
Casey Jon Naber
Assistant Calloway County Attorney
Whitney Schroeder Jones
68 KRS 600.010(2)(c).
28