FROM KENTON FAMILY COURT HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 19-J-00340-001
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Christopher S. Nordloh Amanda Johnson Special Assistant
Attorneys General Covington, Kentucky.
FOR APPELLEE: Justin D. Durstock Ft. Mitchell, Kentucky.
BEFORE: LAMBERT, NICKELL,  AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE
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.
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
[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.
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.
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.
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.
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
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.
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 ...