K.H. v. Cabinet for Health & Family Services, et al, Ky COA, Evidence Necessary to Support Finding of Neglect

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K.H. v. Cabinet for Health & Family Services, Commonwealth of

Kentucky, in the Interest of K.H., NO. 2011-CA-000896-ME


K.H. v. Cabinet for Health & Family Services, Commonwealth of

Kentucky, in the Interest of A.B.H., No. 2011-CA-000897-ME

Published:  Opinion Reversing

County: Morgan

K.H. and A.H. are the parents of two children, ABH and KSH.  K.H.’s twelve-year old cousin, AKY, alleged that A.H. had touched her inappropriately and made inappropriate comments of a sexual nature while she was staying at K.H. and A.H.’s house.  The Cabinet and Kentucky State Police concluded, after an investigation, that the allegation was substantiated.

While the investigation was pending, K.H. signed a Prevention Plan recommended by the Cabinet which provided that she would not leave the children alone with A.H.  After the investigation was complete, however, she refused to sign an Aftercare Plan, which further restricted A.H.’s interactions with his children.

The Cabinet filed petitions alleging that K.H. and A.H. had neglected the children and that K.H.’s refusal to sign the Aftercare Plan exposed the children to a risk of sexual abuse from A.H. and amounted to neglect.  The trial court held an evidentiary hearing and concluded that the children were neglected based on the allegations in the Cabinet’s petition.  The court directed that the children remain in the home, but A.H. could not live in the home or have unsupervised contact with his children and K.H. filed this appeal.

The sole issue on appeal is whether the Cabinet presented sufficient evidence to establish that K.H. has neglected ABH and KSH.  The Cabinet does not allege that the children have been subjected to direct acts of abuse or neglect, but rather K.H.’s refusal to sign the Aftercare Plan amounts to neglect by exposing them to risk of sexual abuse from A.H.

The Court of Appeals noted that while it did not doubt the Cabinet’s good faith and desire to protect the children, it was concerned about the breadth of authority the Cabinet asserts.  There is no allegation that A.H. ever sexually abused his children, and K.H. had no legal obligation to sign the Aftercare Plan.  State intervention between parent and child must be done with utmost caution.

It is insufficient for the Cabinet to show that K.H. would be well-advised to agree to the Aftercare Plan.  The statutory definition requires a finding that K.H. created or allowed to be created a risk of sexual abuse to her children. A “substantiated” allegation is simply an administrative determination and is not binding upon the court and has no preclusive effect in subsequent proceedings.  The risk of harm must be more than a mere theoretical possibility, but rather an actual and reasonable potential for harm.

There is no allegation K.H. has done anything improper in the care of her children.  The Cabinet concedes she is a good and fit mother and the children are well cared for and have never been abused.  At worst, she chose to believe in the innocence of her husband. The trial court’s finding of neglect was clearly erroneous as it applied to K.H., and the orders of the Morgan Family Court finding ABH and KSH to be neglected are reversed insofar as they apply to K.H.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

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