CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY ON BEHALF OF THE MINOR CHILD C.R. APPELLANT
REVIEW FROM COURT OF APPEALS CASE NO. 2017-CA-001011-MR CLARK
CIRCUIT COURT NO. 16-J-00350-001
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
Clark Circuit Court found C.B.'s 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.
and Mother 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
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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
(a) His or her
person in a position of
authority or special
trust, as defined in KRS 532.045,
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
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 ...