Orders Finding Children Neglected Vacated – Published Opinion from Supreme Court of Ky.

Power of Attorney

M.C. v. Com., Cabinet for Health and Fam. Servs.

Calloway Circuit Court

Questions Presented: KRS 600.020(1). Abused or Neglected Child. Sufficiency of Evidence. Evidence of parent’s consumption of alcohol was not sufficient to support a finding that the children were abused or neglected under the statute and did not warrant removal.

Father is the biological father of three children: B.C, S.C., and C.C. Mother passed away during the pendency of the action. The Cabinet for Health and Family Services (“the Cabinet”) became involved when it filed a dependency, neglect, and abuse (“DNA”) petition again Mother. Mother had custody of the children when the Cabinet received reports that Mother was drinking alcohol while caring for the children. The Cabinet removed the children and placed them with Father. Father agreed to a case plan with the Cabinet in which he would not allow unsupervised visitation with Mother, and he would abstain from alcohol consumption. Subsequently, the Cabinet removed the children from Father’s care, alleging he allowed unsupervised visitation with Mother and consumed alcohol with the children in the home. The Cabinet then placed the children with Grandmother, who agreed not to allow unsupervised visitation between the children and the parents. The Cabinet then removed the children from Grandmother’s care for allowing unsupervised visitation with Father. The children were then placed in the Cabinet’s custody and with a foster family. After the children were placed in the Cabinet’s custody, Mother and Father began working their case plans. Mother’s working of her plan became sporadic and then ceased. However, Father cooperated and made significant progress on his case plan. The children were eventually returned to Father. The DNA cases were closed with the condition that Father would cooperate with the Cabinet, would attend A.A., would not allow unsupervised visitation between the children and Grandmother, and would not be under the influence of alcohol while caring for the children or in their presence.

Subsequently, Social Worker was contacted by either the CASA worker or the children’s former foster mother that Father was possibly drinking around the children. Social Worker went to the home to speak with Father, who told Social Worker he was struggling with his sobriety. Social Worker told Father to stop drinking and attend an intensive outpatient program (“IOP”), or she would file a new DNA petition to have the children removed with a permanency goal of adoption. Father refused to attend the IOP and stated that when he drinks, it does not alter his ability to care for the children. Social Worker then filed a DNA petition, and the children were removed from the home. Father’s visitation was suspended by the Cabinet because he denied neglect and refused to sign a prevention plan. The children were placed in the same foster home they were previously in.

At the adjudication hearing, the Cabinet called B.C. to testify. He testified that he was glad to be placed back with Father; he was unsure when Father began drinking again; he did not know if Father drank every night; he never saw Father drink; Father had no trouble walking when he was drinking; Father never drank in the morning, during the day, nor inside the home; Father only drank after dinner on the back deck; Father cooked dinner for the children, went outside to drink, came inside, told the children good night, and went to bed; Father took the children to school in the mornings; the children had chores for which they were responsible; and that neither he nor C.C. cared that Father drank, but that S.C. got upset by it, which sometimes led to verbal arguments between the two. Social Worker testified that the children were not missing school; the children excelled in school; she had no academic concerns; she had no concerns about the children being properly fed, clothed, or provided for; she did not find the home dirty; and she did not observe anything in the home that was a threat to the children. Police Officer testified that she visited the home for a welfare check on the children; that she did not smell or see alcohol in the home; Father was not impaired; B.C. and C.C. were not in distress and had no concerns for their well-being; and the home was not cluttered or dirty. Following the hearing, Family Court issued its adjudication order finding the children to be neglected under KRS 600.020(1)(a)(2), (3), (4), and (8) and found there were no less restrictive means than removal. In the disposition order, Family Court changed the permanency goal to adoption and waived reasonable efforts by the Cabinet towards reunification. Father appealed, and the Court of Appeals affirmed. Father sought discretionary review, which was granted.

The Supreme Court of Kentucky held Family Court’s finding that Father neglected the children was an abuse of discretion. Father did not create or allow to be created a risk of physical or emotion injury to the children by non-accidental means under KRS 600.020(1)(a)(2). The risk of harm must be more than a mere theoretical possibility—it must be an actual and reasonable potential for harm. The only allegation was that Father continued to drink against the Cabinet’s wishes. There was no evidence to support a finding that his drinking subjected the children to an actual and reasonable potential for harm. The children were cared for and provided for by Father, and his drinking did not interfere with that.

Father did not engage in a pattern of conduct that rendered him incapable of caring for the immediate and ongoing need of the children, including but not limited to parental incapacity due to a substance use disorder under KRS 600.020(1)(a)(3). Family Court was required to consider substance use disorder that results in an incapacity by the parent to provide essential care and protection for the children. While there was evidence that Father had met the criteria for substance use disorder, it also had to find that the disorder resulted in the incapacity to provide for essential care and protection of the children. There was no evidence that Father’s substance use disorder rendered him incapable of caring for the children or meeting their needs, which the Cabinet conceded.

Father did not continuously or repeatedly fail or refuse to provide essential parental care and protection for the children and did provide the children with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the children’s well-being under KRS 600.020(1)(a)(4), (8). The evidence was uncontroverted that Father provided the kind of care discussed by the statutes. The only point of concern was Social Worker’s concern that the home was cluttered, but that does not mean dirty. She stated that there was nothing in the home that was a threat to the children’s health or well-being.

Digested by Nathan R. Hardymon

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