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R.S. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

September 29, 2017

R.S. AND A.S. APPELLANTS
v.
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.S., A MINOR CHILD APPELLEES AND R.S. AND A.S. APPELLANTS
v.
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.S., A MINOR CHILD APPELLEES

         APPEAL FROM CLARK CIRCUIT COURT HONORABLE NORA J. SHEPHERD, JUDGE ACTION NOS. 15-J-00102, 15-J-00139

          BRIEF FOR APPELLANTS: Dodd Dixon Winchester, Kentucky

          BRIEF FOR APPELLEE: No brief filed.

          BEFORE: KRAMER, CHIEF JUDGE; DIXON, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE:

         R.S.[1] (father) and his wife, A.S. (mother) (collectively parents), challenge two disposition orders entered by the Clark Circuit Court, Family Division, [2] 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.

         No 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 now summarize.

         In 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.

         As a 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.[3]

         Father 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 County case.

         Father 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.

         According 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;[4] 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 sex offender.[5]

         Father 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.

         CHFS 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.

         CHFS's 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.

         Father 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 supervised.[6]

         In June 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.

         The 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" for re-offending.

         CHFS 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.

         While 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 ...


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