R.S. AND A.S. APPELLANTS
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.S., A MINOR CHILD APPELLEES AND R.S. AND A.S. APPELLANTS
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.S., A MINOR CHILD APPELLEES
FROM CLARK CIRCUIT COURT HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NOS. 15-J-00102, 15-J-00139
FOR APPELLANTS: Dodd Dixon Winchester, Kentucky
FOR APPELLEE: No brief filed.
BEFORE: KRAMER, CHIEF JUDGE; DIXON, AND NICKELL, JUDGES.
R.S. (father) and his wife, A.S.
(mother) (collectively parents), challenge two disposition
orders entered by the Clark Circuit Court, Family Division,
allowing their two biological sons-born in 2012 and 2015-to
remain in the family home, but requiring all of father's
contact with them to be supervised. As proof their sons are
not at risk of harm for neglect due to father having pled
guilty more than a decade ago to two sex crimes committed
upon his underage half-brother, parents emphasize a recent
psychosexual assessment placing father in the "low
risk" category to re-offend-the lowest statutory
category recognized. Upon review of the record and the
parent's briefs, we reverse and remand for an order
consistent with this Opinion.
witnesses were ever sworn in this case; no testimony was ever
heard. The uncontested facts were recited in twenty-five
joint stipulations reached by the parents and CHFS which we
Clark County in 2003, while an eighteen-year-old high school
student, father performed upon and received oral sex from his
twelve-year-old half-brother. In 2006 in Montgomery County,
at the age of twenty-one, father performed upon and received
oral sex from the same half-brother, who was then fifteen
years of age.
result of the second act, in February 2007, father pled
guilty to third-degree sodomy in Montgomery County for which
he received no jail time. As part of court-ordered probation,
he was to complete the sex offender treatment program (SOTP)
and children under eighteen years of age were prohibited from
living with him. As a result of the first act, in March 2007,
father pled guilty to first-degree sexual abuse in Clark
County, again receiving no jail time. As part of
court-ordered probation, he was to live outside Clark County,
have no contact with his victim, have no contact with minors
unless supervised by a responsible adult, and complete SOTP.
Father is designated a lifetime registrant on Kentucky's
Sex Offender Registry.
entered SOTP on June 14, 2007. He was terminated from the
program on August 10, 2009, after allowing a family with two
young boys to live with him more than one week. On October 6,
2009, father pled guilty to violating probation in the Clark
re-entered SOTP on March 23, 2010, being discharged on or
about April 2, 2011, when his probation formally ended. While
in SOTP, father completed only the first of three phases
entitled Assessment and Orientation. His discharge summary
contained these three probation/parole conditions:
no contact with children unless approved by probation/parole
officer; no residing with children without permission by
probation/parole officer; and polygraph.
to the discharge summary, father had been placed with special
needs individuals due to literacy and maturity deficits; he
scored in the low/moderate category for re-offending based
upon the "Static 99" risk assessment; and, he
satisfactorily completed a maintenance polygraph exam on
February 24, 2011. On June 29, 2011, he pled guilty in Clark
District Court to criminal attempt-failure to register as a
met mother in March 2011, telling her of his criminal record
soon after they met. Father and mother married in March 2012.
Their first son, E.S., was born in July 2012. A second son,
K.S., was born in April 2015.
filed a petition on behalf of E.S. on April 30, 2015,
alleging he is "at risk of harm" due to
father's "past history of sexual offenses and
placement on the sex offender registry." A petition
concerning K.S. was filed on May 8, 2015, alleging he is
"at risk of harm" because father "resides in
the home and is a registered sex offender." Both
petitions alleged mother is aware of father's convictions
for sex crimes and his status as a registered sex offender.
interest in this family resulted entirely from father being
on the sex offender registry. No new illegal activity has
been alleged. Precisely how CHFS became aware of the family
is unclear from the record.
is now more than thirty years old. He and mother live
together with their two boys. Both have cooperated with CHFS.
Mother's parents live across the street. The CHFS
prevention plan in effect throughout this litigation requires
all contact between father and sons to be
2015, mother completed the Adult-Adolescent Parenting
Inventory. On a ten-point scale, with "ten" being
the best, she scored an "eight" on Appropriate
Expectations; a "seven" on both Empathy and Values
Related to Corporal Punishment; a "five" on Power
and Independence; and a "four" on Family Roles.
Scores of eight to ten are considered "low risk"
for abuse and neglect; scores of four to seven are within the
normal range indicating a "moderate risk"; and
scores of one to three are considered "high risk."
Four of mother's scores fell within the normal range. As
a result of her assessment, it was recommended mother attend
sex offender classes with father-if he were required to
repeat them. Alternatively, she should participate in two or
three psychoeducational sessions with a certified sexual
offender counselor focusing on warning signs of sexual abuse
in children and safety techniques for families with children.
joint stipulations outlined above were finally entered into
the record on April 14, 2016. That day, counsel argued their
interpretations of the stipulated facts to Judge Jeffrey M.
Walson. Counsel for parents characterized the question as
whether a convicted sex offender may raise his own children.
In support of his request for dismissal of the petitions he
argued: no proof exists of any statutory factor listed in KRS
600.020(1); the petitions were based entirely on father's
prior convictions for sex crimes requiring him to be listed
on the sex offender registry; parents have complied with the
CHFS prevention plan since January 2015; during those
eighteen months, nothing improper has happened; and, at the
end of SOTP in 2011, father was deemed "low risk"
saw things differently, maintaining the two boys are at risk
of harm as alleged in the petitions because: the only
criminals required to register are sex offenders-not
arsonists, not thieves, not even murderers; father's
crimes were unique because as an adult he twice preyed upon
an underage male family member; and, while no one can predict
the future, past performance strongly suggests future
behavior. The Commonwealth argued father's conduct
indicates a strong potential to re-offend because he has
twice demonstrated an unwillingness or inability to follow
rules by violating the terms of probation.
the Commonwealth's comments focused mainly on father,
mother was taken to task for choosing him as her mate and
starting a family with a known lifetime registered sex
offender. In light of father's history, the Commonwealth
argued mother is the person who must protect the two boys-a
difficult task because she scored lowest on the parenting
assessment in "Family Roles" and "Power and
Independence." The Commonwealth ...