C.H. v. COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN; J.R.H. (A MINOR); K.I.H. (A MINOR); O.S.H. (A MINOR)
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RENDERED:
OCTOBER 7, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-002547-ME
C.H.
v.
APPELLANT
APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NOS. 03-J-00691-002; 04-J-00663-001;
AND 04-J-00665-001
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND
CHILDREN; J.R.H. (A MINOR);
K.I.H. (A MINOR); O.S.H. (A MINOR)
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND
REMANDING
** ** ** ** ** ** ** **
BEFORE: DYCHE AND SCHRODER, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
C.H. appeals from orders of the Hardin
family court determining that he had abused his two biological
children, K.H. and J.H., and his stepdaughter, O.H., and
removing the children from his custody.
For the reasons stated
below, we affirm the trial court’s finding of abuse and the
removal order with regard to K.H., and vacate and remand with
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statute 21.580.
regard to J.H. and O.H. for a determination of whether they are
at risk of emotional injury or sexual abuse.
C.H. is the biological father of K.H. (born December
11, 1992) and J.H. (born November 8, 1995).
mother, T.H. died in December 2003.
Their biological
T.H. is the biological
mother, and C.H. is the stepfather, of O.H. (born April 10,
1997), who was in C.H. and T.H.’s custody at the time of T.H.’s
death.
Following T.H.’s death, C.H. retained custody of O.H.,
and, hence, following T.H.’s death the H. household consisted of
C.H., K.H., J.H. and O.H.
A.G. (who was six at the time of the November 3, 2004
adjudication hearing) is a friend of O.H. and visited
occasionally at the H. residence.
In September 2004 the Cabinet
received a referral containing allegations of sexual abuse
perpetrated by C.H. involving K.H., O.H., and A.G. (but not
J.H.).
The allegations were investigated by Elizabethtown
Police Department Detective Kelly Sloan and Cabinet for Families
and Children (Cabinet) social worker Cynthia Little.
On September 23, 2004, the Cabinet filed Dependency,
Neglect, and Abuse Petitions pursuant to Kentucky Revised
Statutes (KRS) Chapter 620 in Hardin Family Court relating to
K.H. (Case No. 04-J-00665-001), J.H. (Case No. 04-J-00663-001),
and O.H. (Case No. 03-J-00691-002).
The petitions alleged that
C.H. “touches [K.H.’s] breast and vaginal area”; that C.H.
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“touches [O.H.] in a ‘touching game’”; and that “[J.H.] is at
risk for sexual abuse due to the allegations of his siblings.”
On October 7, 2004, the family court entered orders placing the
three children in the temporary custody of the maternal
grandmother.
An adjudication hearing was conducted on November 3,
2004.
At the conclusion of the hearing the family court entered
adjudication hearing orders finding that it had been shown by a
preponderance of the evidence that C.H. inappropriately touched
K.H. and O.H., and that the matter was currently under
investigation by the police.
On November 10, 2004, a disposition hearing was held.
On November 24, 2004, the family court entered disposition
hearing orders finding that the children had been abused; that
the children should continue in the custody of their maternal
grandmother; and that C.H. should not be permitted to have any
contact with the children.
This appeal followed.
First, C.H. contends that the family court erred by
failing to determine the competency of the children and to
administer an oath prior to its interviewing of them at the
November 3, 2004, adjudication hearing.
A.G., O.H., K.H., and
J.H. were interviewed in camera by the family court at the
November 3, 2004, adjudication hearing.
Our review of the video
tape of the interviews discloses that the family court did not
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formally determine the competency of the children, and that none
of the four children were administered a formal oath prior to
being interviewed.
Before a young child is permitted to testify, the
trial court should test the child to determine whether she (or
he) is sufficiently intelligent to observe, recollect and
narrate the facts and has a moral sense of obligation to speak
the truth.
Gaines v. Commonwealth, 728 S.W.2d 525, 526 (Ky.
1987); Moore v. Commonwealth, 384 S.W.2d 498, 500 (Ky. 1964);
Capps v. Commonwealth, 560 S.W.2d 559, 560 (Ky. 1977);
Pendleton v. Commonwealth, 83 S.W.3d 522, 525-526 (Ky. 2002).
Moreover, it is fundamental to our system of
jurisprudence that a witness in a case not be permitted to
testify unless the proffered witness shall first undertake a
solemn obligation to tell the truth.
oath or affirmation Gaines at 526.
This ordinarily will be by
However, in the case of very
young children, after a determination by the trial court that
the child is competent to testify, it is within the discretion
of the court whether it is appropriate, in addition, to
administer a formal oath.
Id.
At the time of the November 3, 2004, adjudication
hearing K.H. was almost 12, J.H. was almost nine, O.H. was
seven-years and seven-months old, and A.G. was six.
Thus, we
believe that the family court should have preliminarily inquired
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into the competency of the children, and, upon being satisfied
of their competency, then exercised its discretion concerning
whether to administer a formal oath.
However, as further
discussed below, we believe the family court’s failure to engage
in a competency determination or to administer a formal oath was
harmless error.
First, A.G., O.H., and J.H. made no disclosures to the
family court which implicated C.H. in improper conduct.
As
such, the testimony of these children was not prejudicial to
C.H.
It follows that the trial court’s failure to qualify the
children as competent to testify or to administer a formal oath
was, if error, harmless error.
See CR 61.01 (No error in either
the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new
trial or for setting aside a verdict or for vacating, modifying,
or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with
substantial justice.
The court at every stage of the proceeding
must disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties).
K.H. did make one inculpatory statement implicating
C.H. in misconduct.
K.H. stated that C.H. touched her on her
breasts and vaginal area, but attributed this to examinations
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for medical purposes.
While this statement implicated C.H. in
misconduct, nevertheless, we are persuaded that any error by the
family court in failing to qualify the competency of, or
administer an oath to, K.H. was harmless error because the
statement was cumulative to testimony provided by Detective
Sloan.
See, e.g. Hazelwood v. Woodward, 277 Ky. 447, 126 S.W.2d
857 (1939) (Error in admission of witness' testimony concerning
value of an estate, though witness had not qualified himself to
speak on matter, was not reversible error, where there was other
competent evidence on the subject.)
Thus, as further discussed
below, even if the testimony of K.H. is disregarded, there is
nevertheless substantial evidence, i.e., Detective Sloan’s
testimony, to support the family court’s finding that K.H. was
abused by C.H.
Thus, any error by the family court in failing
to determine the competency of, or administer an oath to, K.H.
was harmless error.
CR 61.01.
C.H. also contends that the family court erred by
determining that the children were abused children by a
preponderance of the evidence.
KRS 620.100(3) provides that the Commonwealth bears
the burden of proving dependency, neglect or abuse of a child by
a preponderance of the evidence.
KRS 600.020(1) defines an
"abused or neglected child" as follows:
(1)
"Abused or neglected child" means a
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child whose health or welfare is harmed
or threatened with harm when his
parent, guardian, or other person
exercising custodial control or
supervision of the child:
(a) Inflicts or allows to be inflicted upon
the child physical or emotional injury
as defined in this section by other than
accidental means;
(b) 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;
(c) 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 and
other drug abuse as defined in KRS
222.005;
(d) Continuously or repeatedly fails or
refuses to provide essential parental
care and protection for the child,
considering the age of the child;
(e) Commits or allows to be committed an act
of sexual abuse, sexual exploitation, or
prostitution upon the child;
(f) Creates or allows to be created a risk
that an act of sexual abuse, sexual
exploitation, or prostitution will be
committed upon the child;
(g) Abandons or exploits the child;
or
(h) Does not provide the child with adequate
care, supervision, food, clothing,
shelter, and education or medical care
necessary for the child's well-being. A
parent or other person exercising
custodial control or supervision of the
child legitimately practicing the
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person's religious beliefs shall not be
considered a negligent parent solely
because of failure to provide specified
medical treatment for a child for that
reason alone. This exception shall not
preclude a court from ordering necessary
medical services for a child; or
(i) Fails to make sufficient progress toward
identified goals as set forth in the
court-approved case plan to allow for
the safe return of the child to the
parent that results in the child
remaining committed to the cabinet and
remaining in foster care for fifteen
(15) of the most recent twenty-two (22)
months;
KRS 600.020(54) defines sexual abuse as follows:
(54) "Sexual abuse" includes, but is not
necessarily limited to, any contacts or
interactions in which the parent,
guardian, or other person having
custodial control or supervision of the
child or responsibility for his
welfare, uses or allows, permits, or
encourages the use of the child for the
purposes of the sexual stimulation of
the perpetrator or another person;
The adjudication orders entered on November 3, 2004,
each contain the following findings and determinations:
FINDINGS OF FACT / CONCLUSIONS OF LAW
The Court, having considered the sworn
testimony and evidence, and being otherwise
sufficiently advised, hereby finds and
concludes the rights provided in KRS 620.100
have been extended to the child and the
adult(s) responsible for the child; and all
due process rights have been observed, and
further finds:
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1. The allegations contained in the
Petition . . . have . . . been proven by a
preponderance of the evidence, and hereby
makes the following specific findings of
fact: Allegations made that Mr. Charles
Hall was touching [K.H.] and [O.H.]
inappropriately and he is currently under
investigation by the police.
The family court also determined that the children
were abused, that reasonable efforts had been made to prevent
the children’s removal from the home, and that the children’s
best interest required a change of custody.
Findings of fact shall not be set aside unless they
are clearly erroneous, and due regard shall be given to the
opportunity of the court to judge the credibility of witnesses.
CR 52.01.
Findings of fact are not clearly erroneous if
supported by substantial evidence.
The test for substantiality
of evidence is whether when taken alone, or in the light of all
the evidence, it has sufficient probative value to induce
conviction in the minds of reasonable men.
Janakakis-Kostun v.
Janakakis, 6 S.W.3d 843 (Ky.App. 1999).
Detective Sloan testified regarding statements made by
the children during interviews she had conducted with them
during the course of her investigation.
The statements made by
the children, as recounted by Detective Sloan at the
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adjudication hearing, 2 implicate Charles in the sexual abuse of
K.H., but not J.H. and O.H.
Detective Sloan testified that there had been a
previous referral to the Cabinet implicating C.H. in sexual
abuse of K.H. in January 1994, but as the children made no
disclosures implicating C.H. at that time, the allegations could
not be substantiated.
The current phase of allegations began in September
2004 when A.G. disclosed improper conduct by C.H. involving her.
A.G. disclosed to Detective Sloan that upon one of her visits to
the H. residence, C.H. had taken her to his bedroom and caused
her to strike her vaginal area against a bedpost.
According to
A.H., C.H. then took a stickhorse toy, put lotion on it, and
rubbed it on her vaginal area.
A.G. also stated to Detective
Sloan that C.H. got under the bedcovers with her while he was
nude, though she remained clothed; gave her a bath; and had her
watch him take a bath.
He then gave her $10.00 and told her not
to tell anyone.
In Detective Sloan’s interview with O.H., O.H.
corroborated that A.G. had gone to C.H.’s bedroom with the
appellant.
O.H. stated that on that occasion she observed C.H.
2
C.H. did not object at the adjudication hearing to Detective Sloan’s
recounting of the children’s out-of-court statements, nor does he challenge
her testimony in this regard on appeal. Issues not raised on appeal are
waived. Personnel Bd. v. Heck, 725 S.W.2d 13, 18 (Ky.App. 1986). We
accordingly do not review whether the children’s statements were admissible
through Detective Sloan under the relevant hearsay rules.
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and A.G. play what O.H. referred to as “the touching game.”
O.H., however, did not identify where C.H. touched A.G. in the
touching game.
O.H. also told Detective Sloan that C.H. played the
touching game with her.
O.H. described that the game was played
by C.H. looking away and then touching her.
Again, O.H. did not
tell Detective Sloan where C.H. would touch her when they played
the touching game, though Detective Sloan testified that she
inferred that the game was abusive.
O.H. also told Detective
Sloan that C.H. takes K.H. upstairs to his bedroom.
In Detective Sloan’s interview with J.H., J.H.
corroborated that C.H. had taken A.G. upstairs.
He also
corroborated O.H.’s statement that C.H. takes K.H. upstairs.
J.H. testified that on at least one occasion when C.H. had taken
K.H. upstairs, he heard K.H. say, “your nasty.”
During Sloan’s interview with K.H., K.H. stated to the
Detective that C.H. frequently touches her breasts and vaginal
area.
K.H. further stated, however, that C.H. told her that he
was doing this to check her for breast cancer and other
diseases; that he was educating her by teaching her about sex so
she would not be raped; and on one occasion because she had
shaved her vagina.
Detective Sloan’s testimony substantiates the family
court’s finding of sexual abuse regarding K.H.
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While K.H. did
indicate that C.H. told her he was engaging in this conduct for
the purpose of examining her for diseases and for “educational
purposes,” there is no indication that K.H. had ever experienced
symptoms of, or required medical attention for, diseases in her
breast and vaginal areas, and the excuse that C.H. engaged in
the sexual touching of K.H. for “educational purposes” is
patently implausible.
Sloan’s testimony with regard to K.H. is
substantial evidence supporting the family court’s finding of
abuse concerning K.H.
Neither the Cabinet nor the Guardian ad Litem cite us
to evidence presented at the adjudication hearing which directly
implicates Charles in abusive conduct directed toward J.H. or
O.H., and our review of the video proceedings fails to disclose
such evidence.
While O.H. testified that C.H. touches her in
the “touching game,” other than Detective Sloan’s speculative
inference, there was no evidence that the game involved
inappropriate sexual touching.
O.H. did not state to Detective
Sloan that the touching was directed to her private areas.
Moreover, there is no allegation whatsoever that C.H. ever
sexually abused J.H.
Hence we conclude that there is not substantial
evidence in the record to support the family court’s finding
that J.H. and O.H. were abused.
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Nevertheless, KRS 600.020(1)(b) and KRS 600.020(1)(f)
provide, respectively, that a child my be categorized as an
abused or neglected child if the child is at risk of emotional
injury or at risk of sexual abuse.
Because the family court’s
finding of abuse in regards to K.H. is supported by substantial
evidence, and such abuse of their sibling may subject J.H. and
O.H. to a risk of emotional injury or sexual abuse, we remand
for a determination of whether J.H. and O.H. are at risk of
emotional injury and/or sexual abuse.
Upon the entering of such
findings, the family court should reconsider its adjudication
and disposition concerning J.H. and O.H. in light of the
additional findings.
For the foregoing reasons the judgment of the Hardin
Circuit Court is affirmed in part, vacated in part, and remanded
for additional proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
Phyllis K. Lonneman
Elizabethtown, Kentucky
BRIEF FOR APPELLEE COMMOWEALTH
OF KENTUCKY, CABINET FOR
FAMILIES AND CHILDREN:
Jennifer R. Hall
Assistant Hardin County
Attorney
Elizabethtown, Kentucky
BRIEF OF GUARDIAN AD LITEM ON
BEHALF OF INFANTS:
Ferrell Adkins
Elizabethtown, Kentucky
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