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

Supreme Court of Kentucky

December 13, 2018

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY ON BEHALF OF THE MINOR CHILDREN, E.S. AND K.S., APPELLANT
v.
R.S., AND A.S., APPELLEES

          ON REVIEW FROM COURT OF APPEALS CASE NOS. 2016-CA-0001763-MR AND 2016-CA-001764-MR CLARK CIRCUIT COURT NOS. 15-J-00139 AND 15-J-00139-001.

          COUNSEL FOR APPELLANT: Brian Neal Thomas Grant, Rose & Pumphrey.

          COUNSEL FOR APPELLEES: Dodd Douglas Dixon, Dixon & Juett.

          COUNSEL FOR AMICUS CURIAE: KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: James David Niehaus, David Michael Ward, Kentucky Association of Criminal Defense Lawyers.

          OPINION

          MINTON, CHIEF JUSTICE.

         Under Kentucky's Unified Juvenile Code, a neglected child is one whose parent "[c]reates or allows to be created a risk of physical or emotional injury ... by other than accidental means"[1] or "[c]reates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child . . . ."[2] Deciding whether a child is a neglected child under the Code is a judicial function, requiring proof by a preponderance of the evidence. And, when we review these trial court determinations on appeal, we do so for abuse of discretion, affording these decisions a high degree of insulation from appellate revision because, in addition to the written record, the trial court has experienced the proceedings directly and observed the litigants first-hand.[3]

         We granted discretionary review to consider whether the trial court abused its discretion when it found the two children in the present case to be neglected children under the Code and in its dispositional order required in-home supervision by their mother of all contact with them by their father, who has a history of criminal convictions for sexually abusing his underage half-brother and a failure to comply with conditions of probation. Upon our review of the record, we hold that the trial court did not abuse its discretion. We reverse the contrary decision of the Court of Appeals and reinstate the trial court's order.

         I. BACKGROUND.

         In 2003, as an eighteen-year-old high school student, Robert[4] performed oral sex upon and received oral sex from his twelve-year-old half-brother. Again, in 2006, Robert engaged in the same abusive behavior with the same half-brother. At the time of the second act of sexual abuse, the two were twenty-one and fifteen-years-old.

         In February 2007, Robert pleaded guilty to third-degree sodomy for the 2006 act of sexual abuse. He was sentenced to two years in prison, with the entire sentence probated for three years. As a condition of his probation, Robert was ordered to complete the Sex Offender Treatment Program (SOTP) and was prohibited from living in the same household as minor children.[5]

         In March 2007, Robert pleaded guilty to first-degree sexual abuse stemming from the 2003 act of sexual abuse. He was sentenced to one-year imprisonment, probated on the conditions that he live outside Clark County, Kentucky, have no contact with his victim, have no unsupervised contact with minors, and that he complete SOTP.[6]

         Because of Robert's convictions for two sex crimes against a minor victim, he is required to register as a sex offender for the remainder of his life.[7]

         As required by the conditions of his probation, Robert entered SOTP in June 2007. But he was terminated from the program in August 2009 after allowing a family with two minor sons to live with him for a week and a half in violation of his probation. He admitted to this violation and served 27 days in jail as a result.

         Robert re-entered SOTP in March 2010 but was discharged from the program in April 2011. His discharge summary indicates that Robert was "[u]nable to complete all phases of treatment due to [the] [e]xpiration of [his] sentence." The summary specifies "[g]iven that [Robert]'s probation sentence expired on April 2, 2011, he is being discharged from the SOTP effective April 19, 2011." Although Robert did not complete the program, he did complete "the autobiography, ownership, a basic relapse prevention plan, and portions of the sexuality and victim awareness modules." The discharge summary notes that Robert "put forth some effort at improving" during the program "by processing his issues ... in group." The discharge summary also notes that Robert, while in the SOTP, had been grouped with special-needs individuals because of his literacy and maturity deficits. Finally, the discharge summary notes that Robert's "primary risk factors appear to involve his emotional immaturity, passivity, esteem deficits, and isolation."

         Robert's discharge summary contained three conditions: (1) have no contact with children unless approved by his probation or parole officer; (2) not reside with children without the permission of probation or parole; and (3) submit to a polygraph examination. The discharge summary indicated that Robert scored in the low-moderate category for re-offending based on the "Static 99" risk assessment.

         In June 2011, Robert pleaded guilty to failing to register as a sex offender.

         Robert met Alice in 2011 and told her of his criminal record early in their relationship. The two married in 2012 and had their first son that year. Robert and Alice had their second son in 2015.

         While Alice was pregnant with the couple's younger son, the Cabinet for Health and Family Services (CHFS) opened an investigation into Robert and Alice's family and eventually filed in the family division of the circuit court a dependency, neglect, or abuse (DNA) petition regarding the parents' older son and a second petition regarding their younger son a month later. The first DNA action alleged the older son was "at risk of harm" due to Robert's "past history of sexual offenses and placement on the sex offender registry." The second DNA action alleged the younger son was "at risk of harm" because Robert "resides in the home and is a registered sex offender." CHFS's case history in its DNA dispositional report indicates that "CHFS became involved with the family on 1-12-15 when a report was received that a registered sex offender was living in the home with his 2-year-old son and that he was unsupervised with the child placing the child at risk of harm."

         At all points during the CHFS investigation and DNA action, Robert and Alice complied with CHFS's recommendations. CHFS recommended that Robert submit to a sex-offender risk assessment, and the trial court ordered that he do so. CHFS provided Robert with a list of providers to conduct the assessment, and he chose Dr. Connor. Dr. Connor wrote a report based on his psychological and psychosexual evaluation of Robert. And the trial court considered his report in making its findings in the case.

         In Dr. Connor's report, he first described the battery of tests, the results of which he considered in determining Robert's risk to reoffend.[8] After discussing Robert's history at length, [9] Dr. Connor's report explained the psychometric test results and evaluated the risk for sexual re-offense.

         Dr. Connor noted that Robert scored favorably on the "Parenting Awareness Skills Survey" and the "Parenting Stress Inventory." Dr. Connor also administered the "Child Abuse Potential Inventory," where he found the following:

[T]he Child Abuse Potential Inventory ... is an instrument utilized to determine if a person has character traits typically found in those who are abusive toward children. On this instrument, [Robert] responded in a slightly guarded manner thus compromising the reliability and validity of the test results. [Robert] seems to have some difficulty acknowledging minor faults that he may have that others typically acknowledge. When his degree of guardedness is taken into consideration, it does not completely invalidate his profile. [Robert] does not appear to have overt character traits consistent with those who are abusive toward children based on the results of this instrument.

         Dr. Connor also administered the "Millon Clinical Multiaxial Inventory-Ill" test, which, according to his report, "is a psychometric based psychological assessment that identifies various severe psychiatric disorders as well as personality disorders." Dr. Connor noted that "[Robert] does not trust others and thus tends to withhold his emotions and thoughts for fear of being emotionally harmed." Dr. Connor also noted, "Over time, his pent-up emotions can predispose him to interpersonal and social withdrawal. Interpersonally, this can make him somewhat difficult to deal with over time." Finally, Dr. Connor noted, "[Robert's] tendency to isolate and withdraw exacerbates his interpersonal challenges."[10] Dr. Connor concluded, "however, there are no indications of severe psychopathology or character pathology that would warrant concern or further consideration at this time." We must note, however, that Dr. Connor, in the "Sexual Development" section earlier in his opinion, acknowledged that Robert stated that he "learned through [SOTP]" that the "'trigger' to his offense [committed against his half-brother] . . . was primarily loneliness, feeling left out from his peer group, and sexual curiosity."[11]

         Dr. Connor next discussed Robert's results upon taking the "Abel Assessment for sexual interest-3, which is a Visual Reaction Time assessment combined with his extensive sexual history questionnaire." Important to note are Dr. Connor's findings that "there are no indications that [Robert] has an interest in any of the paraphilias" and that "[t]here are no indications that [Robert] has any type of sexual interest in age inappropriate children, especially male children within the age range of his biological children."

         Dr. Connor discussed Robert's results from the STATIC 99R, "a risk assessment guideline that has identified . . . variables . . . that are predictive of a sexual re-offense." Dr. Connor used the assessment Robert was given upon his discharge from SOTP in April 2011 in coming to his conclusion that Robert was at low risk to reoffend. In the 2011 assessment, Robert was rated as low/moderate risk for reoffending. Since Robert had gone five years without any reoffending known to Dr. Connor, he concluded that Robert fell into the low-risk category.[12] Dr. Connor conducted the Sexual Violence Risk-20 assessment on Robert and concluded that under this test he was also in the low-risk category to commit another sexual offense in the future. Dr. Connor further determined Robert was at a low risk to reoffend based on the short version of the Hare Psychopathy Checklist.

         Based on his psychometric testing, Dr. Connor opined that Robert did not raise any "red flags" for reoffending but noted that "he does tend to be somewhat guarded and defensive at times." Dr. Connor went on to state, "[i]n conclusion, it is my firm clinical opinion that [Robert] is at 'Low Risk' to sexually reoffend, especially his biological children." Finally, Dr. Connor opined that Robert "meet[s] the criteria for a Persistent Depressive Disorder," which he attributed to the cumulative trauma Robert suffered from of the experiences connected to his two convictions for sex-abuse crimes. Dr. Connor opined that Robert "would certainly benefit from brief individual psychotherapy to address persistent symptoms and an interpersonal level of mistrust which negatively impacts his everyday life."

         Finally, it appears that Dr. Connor's opinions and conclusions "are based solely on [Robert's] rendition of events, as well as the psychometric test results and surveys." Earlier in the report, Dr. Connor identified that the "Joint Stipulations document was reviewed," as well.[13]

         Throughout the CHFS investigation, the trial court adopted CHFS's recommendation that Robert have supervised contact with his sons, with whom he and Alice shared a home. As noted, following Robert's sex-offender assessment, neither CHFS nor the trial court recommended he undergo any further remedial steps to have unsupervised contact with his sons. In its dispositional report, CHFS acknowledged that Robert's sex-offender risk assessment "did not recommend any further treatment and he was rated as low risk to reoffend." The CHFS report went on to opine, however, that this low-risk rating was due to the fact his previous victim was an adolescent and that the risk to the children would increase as they matured.

         CHFS further indicated "[t]he parents have been cooperative with CHFS since the onset of the case." CHFS indicated that "the family has completed the services that would be recommended at Disposition" apart from Alice's completion of a seminar, which she subsequently completed. CHFS had also recommended that Alice attend sex-offender classes with Robert if he were required to repeat them. Because Robert was not required to repeat the classes, this recommendation was never implemented. CHFS's recommendations to the trial court were that "[d]espite completing services [Robert] still places the children at risk of harm and CHFS would continue recommending only supervised contact." Earlier in the report, CHFS had indicated that this risk of harm was due to the children "living in the home with a sex offender."

         It appears that CHFS never recommended third-party supervision in this home; rather, CHFS simply recommended the following:

Despite completing services[, ] [Robert] still places the children at risk of harm and CHFS would continue recommending only supervised contact. CHFS would look at closing this case but keep supervision orders in place regarding [Robert] and contact with his children. 1. [Robert] will have only supervised contact with the children and must always remain within sight and sound of the supervisor. 2. CHFS would continue to have concerns about the [Alice's] ability to supervise all contact at night when sleeping but CHFS recognizes that it is unrealistic to order that the [she] sleep in the same room with the children indefinitely. CHFS would recommend that [Alice] use her best judgment in safe supervision of the children and report any concerns of safety to CHFS.

         Following the adjudication hearing in the DNA action, the trial court found "[b]ased on prior history and even favorable, albeit inconsistent, evaluation that still labels Father at 'low (some) risk' the Court finds children to be at risk of harm." Based on that finding, the trial court concluded that Robert and Alice had neglected their children by creating or allowing to be created a risk of injury or sexual abuse.

         Robert and Alice filed a motion to alter, amend, or vacate, arguing that "[t]he court utilized the best possible finding for [Robert] [(a finding of low risk to re-offend)] into a finding of risk of harm to the children . . ." and attached a letter from Dr. Connor indicating that low risk is the most favorable rating one can achieve on the assessments because there is not a classification for "no risk." Robert and Alice also argued that the trial court's conclusion would be tantamount to a determination that "a prior sexual conviction equals neglect."

         The original trial judge retired, and the special judge assigned to the case denied the parents' motion to vacate, amend, or alter the trial court's order. In his denial, the special judge considered Robert's criminal convictions and violations of probation, in addition to the "tender age" of Robert's biological children. The special judge took issue with Dr. Connor's opinion that Robert is at low risk to reoffend, finding inconsistencies within the report. Specifically, the special judge noted that Dr. Connor's report was inconsistent as to the number of times Robert had sexually abused his half-brother-and that, based upon these inconsistencies, he was "unable to determine which facts Dr. Conner [sic] used to reach his final conclusion." More importantly, the special judge found:

[T]hat the children in this case are in danger of abuse as the father has shown on at least two occasions that he will not follow the guidelines as he violated his probation by living with minors and failed to follow the registry requirements of a sex offender.
Furthermore, the Court cannot ignore that the sex crimes committed by the father were ...

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