Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G., 190 S.W.3d 338 (Ky. 2006)
Issues and Holdings:
1. Whether the evidence was sufficient to terminate parental rights. The Court held yes, the evidence was sufficient.
2. Whether out-of-court statements made by a child to a therapist and pediatrician describing sexual abuse were admissible under the hearsay exception for statements made for purposes of medical treatment or diagnosis. The Court held yes, that the statements were admissible under the hearsay exception.
3. Whether the Sixth Amendment right of confrontation, as outlined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied to termination of parental rights proceedings. The Court held no, the right of confrontation is not applicable in such proceedings because termination of parental rights proceedings are civil and not criminal.
A.G.G. and W.E.G., both mentally disabled, are the parents of two children, N.E.G. and A.E.G. The family lived at two residences, their own home and the home of the children’s paternal grandparents. The Cabinet found both residences to be unsafe and in poor condition and the children to have poor hygiene, missed school, and delayed learning. The parents ignored appointments with social workers. The Cabinet also learned that two paternal uncles, who lived primarily at the paternal grandparents’ residence, were possible sexual offenders. There was evidence that at least one of the uncles sexually abused N.E.G. at the paternal grandparents’ residence.
The Cabinet made numerous recommendations, which were adopted by the family court as a disposition order. The recommendations included regular school attendance, improved home sanitation and hygiene, and that the children have no contact with certain paternal relatives. The parents failed to comply and the children were removed to foster care. The foster mother later observed N.E.G. sexually acting out with A.E.G. and other children. After repeated failure of the parents to respond to family services, the Cabinet filed a petition to involuntarily terminate parental rights.
The family court terminated the parental rights of both parents after a two day trial. The Court of Appeals reversed and remanded for a new trial, holding that the family court admitted improper hearsay evidence in violation of the holding in Crawford v. Washington. The Supreme Court granted discretionary review.
First, the Court held that the evidence was sufficient to terminate parental rights. The Court found that the family court’s findings of fact were not clearly erroneous and were supported by clear and convincing evidence. The Court found that there was ample evidence that N.E.G. was sexually abused and that the parents created a risk that an act of sexual abuse would be committed on A.E.G.
Second, the Court held that the statements made by N.E.G. to his therapist and pediatrician were admissible at trial under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though the therapist was not a physician. N.E.G. made statements to the therapist regarding sexual abuse by his two uncles and father. Such statements were admissible, even though the therapist was not a physician, since the therapist testified that she intended to provide any needed therapy for the child’s mental health. N.E.G. made statements to the pediatrician regarding sexual abuse by one of his uncles. Such statements were admissible since the physician was diagnosing and treating the child for suspected abuse.
Finally, the Court rejected the Court of Appeals’ reliance on Crawford to exclude the above statements. The Court found that Crawford was not intended to apply where the Sixth Amendment does not apply, such as in civil proceedings. Since termination of parental rights proceedings are civil, not criminal, Crawford does not apply. The Court also rejected the Court of Appeals’ reliance on G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App. 1985), for the proposition that hearsay exceptions do not apply in termination of parental rights proceedings. The Court noted that it had narrowed the holding of G.E.Y to permit the introduction of portions of the Cabinet’s investigative file that would be admissible if the social worker testified in person. Thus, G.E.Y. did not preclude the introduction of the statements of N.E.G. to the therapist and pediatrician.
The Court reversed the Court of Appeals and reinstated the judgment of the family court.