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Cabinet for Health and Family Services v. C. B.

Supreme Court of Kentucky

September 27, 2018



          COUNSEL FOR APPELLANT: Brian Neal Thomas Grant, Rose 85 Pumphrey Erica Kemp Clark County Attorney's Office

          COUNSEL FOR APPELLEE: Adam Meyer Department of Public Advocacy Dodd Douglas Dixon Dixon 85 duett



         The Clark Circuit Court found C.B.'s[1] daughter to be a neglected child pursuant to the Kentucky Unified Juvenile Code. C.B. appealed and the Court of Appeals reversed. The Cabinet for Health and Family Services (Cabinet) petitioned this Court for discretionary review, which we granted. After our review of the record and the law, we reverse the Court of Appeals and reinstate the orders of the Clark Circuit Court.

         I. BACKGROUND

         C.B. and Mother[2] lived together but were never married. Mother had a previous case plan with the Cabinet regarding another child, and CB. had a previous involuntary termination of parental rights (TPR) case with the Cabinet, involving other children.

         In late June 2016, CB. began attending the suboxone clinic, Beall Recovery. CB.'s intake form at the clinic indicated that he admitted to using heroin, Percocet, and off-street suboxone. Mother also had a history of substance abuse problems. Child was born on August 5, 2016. Child tested positive for suboxone, had low oxygen intake, mild retractions and hip dysplasia.

         Also, in August 2016, social worker Roberta Mardis (Roberta) received a new investigation request relating to Child being born, positive for suboxone, referencing CB.'s and Mother's previous histories with the Cabinet and substance abuse. C.B. and Mother agreed to the Cabinet's Prevention Plan (case plan). Child was placed in the care of the maternal grandmother, C.R. C.R. was to supervise CB.'s and Mother's contact with Child.

         The case plan also required C.B. to call the Cabinet office three times per week for random drug tests. If required to test, C.B. would report to the office during a designated time. C.B. was also required to continue attending Beall Recovery, follow all treatment recommendations and take all medications as prescribed, and to have only supervised contact with Child until further notice.

         C.B. called the Cabinet office, as required, during the early stages of his case plan. At the adjudication hearing, however, the Commonwealth introduced drug tests showing that C.B. had tested positive for Gabapentin on three occasions. C.B. did not have a prescription for Gabapentin. C.B. also failed to call the Cabinet office for random testing on several occasions and even left the office prior to providing a testing sample on two occasions. C.B. also continued to test positive for suboxone, even though he was not currently receiving suboxone prescriptions.

         The Cabinet filed a petition on November 29, 2016, seeking a finding that the Child was dependent, neglected, or abused. The case was set for an adjudication hearing on April 13, 2017. The Commonwealth requested, and the court granted, that Mother's case be adjusted and continued for two months. The Commonwealth indicated its intention to dismiss the case against Mother so long as Mother continued to follow and make progress on her case plan.

         The above evidence was presented at the adjudication hearing. Roberta also testified regarding C.B.'s prior TPR proceeding. C.B. testified that he had never taken the drug Gabapentin and that he was willing to do a hair follicle test to show he had never taken the drug. There were also drug screens presented from Beall Recovery that did not show the presence of Gabapentin. These drug screens were taken on consecutive days to those from the Cabinet showing the presence of Gabapentin. In regard to the positive suboxone tests, C.B. indicated that he had "stretched" out his prescription to keep from getting sick. C.B. began working two jobs and did not think he would be able to see the doctor for a couple of months, so he had not been using suboxone according to his prescription in order to make it last longer.

         C.B. also testified about the TPR proceeding. He stated that the children from that case were not his biological children. The trial judge reviewed the TPR file finding that C.B. had held himself out as the father and made no objection in the case about not being the father. The trial judge indicated that his rights were terminated in that case because of his history of substance abuse.

         In the instant case, the trial judge found that the petition was proven by a preponderance of the evidence. Child was found to be a neglected child due to the risk of harm associated with C.B.'s substance abuse issues.

         C.B. appealed and the Court of Appeals reversed. Not only did the Court of Appeals find that the Cabinet's evidence was speculative and did not rise to the preponderance level, but the Court of Appeals also found that the Child could not be found to be neglected because C.B. had never exercised custodial control or supervision over the Child. This Court granted the Cabinet's motion for discretionary review. We now reverse the Court of Appeals.

         II. ANALYSIS

         A. Statutory Interpretation.

         This case primarily presents us with the task of interpreting Kentucky Revised Statute (KRS) 600.020. Statutory interpretation is an issue of law which we review de novo. Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007) (citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998)).

In construing statutes, our goal, of course, is to give effect to the intent of the General Assembly. We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration. We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes.

Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (internal citations omitted).

(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:

(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol ...

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