dissenting.
Respectfully, I must dissent. This Court has now done what it refused to do in Knox v. Commonwealth, Ky., 735 S.W.2d 711 (1987); that is, the Court has twisted the words of the'legislature and reshaped them into a form to its liking, in order to impose a legal duty that did not previously exist. At the time of Knox, we held that KRS 199.335, the predecessor to KRS 620.030, did not establish a legal duty to prevent the abuse of one’s child so as to confer criminal liability on that act. The new enactment, when considered with KRS 620.010, is used as the basis for finding this legal duty in order to convict Appellant of complicity to commit first-degree assault of her child.
In taking this step, the Court has utilized two different rationales, which conflict and will undoubtedly create uncertainty in the prosecution of eases of this type. The simplest method to resolve this appeal is to say that the Commonwealth erred in prosecuting this as a complicity ease. This should have been a charge of criminal abuse in the first degree, a violation of KRS 508.100. It would appear that the only reason for not using criminal abusé as the vehicle for prosecution was dissatisfaction with the penalty imposed for a conviction of that charge. Otherwise, the elements of criminal abuse in the first degree are precisely the same as those for complicity to commit assault, assuming the requisite legal duty could be imposed.
The Commonwealth argued that the legal duty which Appellant violated is created by the enactment of KRS 508.100-.120, the sections enacted by the legislature in 1982, which were not addressed by this court in Knox because they were not the law at the time the crimes prosecuted therein were committed. The plurality opinion by Justice Wintersheimer takes the combination of the duty of KRS Chapter 508 and the general duty toward children set forth in KRS 620.010 to find the legal duty upon which to base criminal responsibility. The duty imposed by KRS 620.030 is the duty to report dependency, neglect, or abuse and is imposed on “[a]ny person, including but not limited to a physician, osteopathic physician, nurse, teacher, school personnel, social worker, coroner, medical examiner, child-caring personnel, resident, intern, chiropractor, dentist, optometrist, emergency medical technician, paramedic, health professional, mental health professional, peace officer or any organization or agency for any of the above....” KRS 620.030(2). The duty is simply one of reporting, not preventing, as was the duty rejected as a basis for imposing criminal responsibility on the defendant in Knox, supra. To expand that duty is to place in jeopardy of possible criminal prosecution of complicity to murder, or other criminal sanction, any of those named in the statute. The concurring opinion notes this possibility and the unlikelihood of this being the legislature’s intent in passing KRS 620.010.
Justice Cooper’s concurrence then attempts to ground the duty on the “special relationship” concept recognized by the Kentucky courts in Fryman v. Harrison, Ky., 896 S.W.2d 908 (1995), and Ashby v. City of Louisville, Ky.App., 841 S.W.2d 184 (1992). This is a huge stretch of narrow rulings that were limited to the foreseeable injury to a person by a person under the control of the state. Further, neither of the cases involved the private parent-child relationship, nor did they involve child abuse. The federal case relied upon, DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), concerned *883a federal civil rights claim against a social agency for the failure of that agency to act upon gaining knowledge that the child was in the custody of an abusive father. The leap from the imposition of civü liability on the state for fañure to prevent a foreseeable injury by one under its custody or control to criminal sanction for the fañure to prevent a foreseeable injury by one under its custody or control to criminal sanction for the fañure to perform a legal duty that must be deduced from the interpretation of three civü cases is one I wül not make. It is the job of the Kentucky legislature to set forth and define legal duty, not this Court’s.
With these opinions, we are putting the overburdened educators and medical personnel who have daily contact with our ehfidren at risk of criminal charges arising from things that perhaps should have been noticed, but in the course of hectic schedules, were not. The actions of this defendant were morally reprehensible and repugnant to any responsible, empathetic person, but it is the legislature that defines what behavior constitutes criminal conduct and sets forth the mechanism of punishment, not the judiciary. Here, we are, in effect, legislating when we should be adjudicating.
STEPHENS, C.J., joins this dissenting opinion.