Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. H. K.

Court of Appeals of Kentucky

December 20, 2019

COMMONWEALTH OF KENTUCKY APPELLANT
v.
H. K., THE JUVENILE'S LEGAL MOTHER AND CUSTODIAN; AND R.K., A CHILD APPELLEES

          APPEAL FROM KENTON FAMILY COURT HONORABLE DAWN M. GENTRY, JUDGE ACTION NO. 19-J-00340-001

          BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Christopher S. Nordloh Amanda Johnson Special Assistant Attorneys General Covington, Kentucky.

          BRIEF FOR APPELLEE: Justin D. Durstock Ft. Mitchell, Kentucky.

          BEFORE: LAMBERT, NICKELL, [1] AND K. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE

         The Commonwealth of Kentucky appeals from the Kenton Family Court's April 30, 2019 summary dismissal of a dependency, neglect and abuse (DNA) petition filed due to excessive absenteeism from school by a kindergartener on the basis that the facts presented did not meet the statutory requirements for abuse or neglect. We affirm. There can be no educational neglect of a child for excessive absenteeism who is not required by law to attend school.

         On April 22, 2019, Covington School District Pupil Personnel Compliance Director Ray Finke filed a DNA petition and affidavit in the Kenton Family Court. Finke alleged that R.K. (child) was neglected or abused by H.K. (mother) on the following grounds:

[Child] is in kindergarten at [a public elementary school]. She has just begun receiving Special Education Services and is taking medication for ADHD. Her attendance is poor as she has missed 21.5 days of school, sixteen unexcused. Her academic performance is well below expectations and is being exacerbated by her attendance.

         According to the information provided on the petition, child was enrolled in kindergarten as a five-year-old and her absences occurred before she turned six.

         At the initial court appearance, the Commonwealth read the contents of the petition into the record and defense counsel moved for dismissal, asserting that mother had been working with the school district to resolve the matter. The family court inquired of a worker from the Cabinet for Health and Family Services (Cabinet) whether an active case existed regarding the parties. The worker indicated the Cabinet had not opened an active case but, instead, referred child and mother back to the school to receive services, indicating "it was a resource thing." Over the Commonwealth's objection, the family court dismissed the petition, finding it did not meet the prima facie burden for abuse or neglect, noting same on the docket sheet.

         The Commonwealth argues that the family court erred in summarily dismissing its neglect action where it made a prima facie case for educational neglect based on excessive absences. We disagree.

         Kentucky Revised Statutes (KRS) 600.020(1)(a)8. includes in its definition of an "[a]bused or neglected child" one "whose health or welfare is harmed or threatened with harm when" a parent or guardian "[d]oes not provide the child with adequate . . . education . . . necessary for the child's well-being." (Emphasis added). See M.C. v. Commonwealth, 347 S.W.3d 471, 472-73 (Ky.App. 2011) (determining that a parent allowing a child to have excessive school absences can constitute educational neglect).

         Pursuant to our education laws, "[b]eginning with the 2017-2018 school year, any child who is six (6) years of age, or who may become six (6) years of age by August 1, shall attend public school[.]" KRS 158.030(2). A child who is five years of age by August 1, "may enter a primary school program[.]" Id. (Emphasis added). This gives parents of a five-year-old the discretion to decide whether the child will attend.

         Child was only five years old when she was enrolled in kindergarten and incurred the absences which provided the basis for the temporary removal petition. Pursuant to KRS ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.