RENDERED: NOVEMBER 30, 2012; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
D.L. AND K.L.
APPEAL FROM JEFFERSON CIRCUIT COURT
FAMILY COURT DIVISION NINE
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 10-J-500496
COMMONWEALTH OF KENTUCKY;
C.L., THE MINOR CHILD REPRESENTED BY HIS
GUARDIAN AD LITEM, JOSEPH ELDER II; AND
CABINET FOR HEALTH AND
** ** ** ** **
BEFORE: KELLER, TAYLOR AND VANMETER, JUDGES.
TAYLOR, JUDGE: D.L. and K.L. appeal from an order of the Jefferson Circuit
Court, Family Court Division Nine, entered October 4, 2011, finding that their
child, C.L., was abused.
C.L. was born on September 21, 2007. Appellants served as his foster
parents after he was removed from his mother shortly after his birth; her parental
rights were subsequently terminated, and appellants adopted him through a Cabinet
On March 19, 2010, an emergency custody order was entered placing
the child in the custody of the Cabinet for Health and Family Services (Cabinet).
The Cabinet filed a juvenile dependency, neglect and abuse (DNA) petition,
alleging that appellants had neglected and abused their son by using inappropriate
forms of discipline which included forcing him to drink apple cider vinegar
repeatedly until he vomited fourteen times and aspirated. The father, D.L.,
admitted that he went to Kroger to call poison control on the night of the incident
so that his phone number could not be traced. The child was ultimately admitted to
the hospital for treatment. On October 6, 2010, the assistant county attorney
assigned to the case entered into an informal adjustment agreement with
appellants. The family court judge entered the order adopting the agreement,
noting that it was entered over the objection of the child’s guardian ad litem.
On October 18, 2010, in-house counsel for the Cabinet filed a motion
to alter, amend or vacate the order, alleging that the assistant county attorney had
entered into the adjustment agreement without the Cabinet’s consent. The
Cabinet’s caseworker attached an affidavit stating that she had not received
appellants’ motion to informally adjust the petition until after the motion had
already been heard. She further swore that she had previously informed the
assistant county attorney that the Cabinet did not agree to an informal adjustment
of the DNA action, and that her request to have the case re-docketed to allow the
family court to consider her objection to the informal adjustment was denied by the
county attorney’s office.
At the hearing on the Cabinet’s motion, the assistant county attorney
admitted that the caseworker was not in court when the agreed order was entered,
and that her consent to the agreement had not been obtained. Over appellants’
objection, the trial court granted the Cabinet’s motion and vacated the order of
informal adjustment. Following an adjudication hearing, the trial court found that
the child was abused as a result of appellants continuing to administer cider
vinegar as a method of discipline. This appeal follows.
Appellants raise three allegations of errors: (1) that the trial court
erred in entertaining the Cabinet’s motion and setting aside the agreement; (2) that
the Commonwealth is bound by the terms of its agreement of informal adjustment;
and (3) that the Commonwealth failed to prove the statutory elements necessary for
a finding of abuse under Kentucky Revised Statutes (KRS) 600.020(1).
Appellants argue that in granting Cabinet counsel’s motion to alter,
amend or vacate, the trial court erroneously allowed the Cabinet to represent the
Commonwealth, when in fact the Commonwealth was already represented by the
county attorney. They argue that the trial court’s actions led to a dual
representation and lack of clarity as to who was prosecuting the action. They
contend that the Cabinet should not play a role in the formal litigation process, in
part because the Cabinet is not financially or logistically capable of such an
undertaking in every dependency proceeding. They equate the role of the Cabinet
personnel to that of the police in a criminal prosecution, that is, to serve primarily
as investigators and witnesses.
Our case law unequivocally states that the Cabinet is a party in
dependency proceedings, and that its role extends far beyond the initial filing of
the DNA petition. In Commonwealth, Cabinet for Health and Family Services v.
Byer, 173 S.W.3d 247 (Ky. App. 2005), this Court stated that “when the Cabinet
files a dependency action, ‘the Cabinet is in fact the plaintiff.’” Id. at 249 (quoting
Cabinet for Human Resources v. Howard, 705 S.W.2d 935, 937 (Ky. App. 1985)).
The Court noted that the Cabinet was required to have a representative at the
custody hearings, to monitor the child’s environment, to assess the parents’
parenting skills and to report to the court on the parties’ progress. It concluded that
the Cabinet was more than a “nominal” party. Id.
KRS 600.020(32) defines an “informal adjustment” as:
[A]n agreement reached among the parties, with
consultation, but not the consent, of the victim of the
crime or other persons specified in KRS 610.070 if the
victim chooses not to or is unable to participate, after a
petition has been filed, which is approved by the court,
that the best interest of the child would be served without
formal adjudication and disposition[.]
In this case, neither the Cabinet nor the guardian ad litem (who is also
indisputably a party) agreed to the terms of the informal adjustment before it was
presented to the court. The requirements of the statute were not met; under these
circumstances, the trial court did not err in vacating the earlier order.
Appellants further argue that the Commonwealth is “bound” by the
informal adjustment agreement, just as the Commonwealth would be held to the
terms of a plea bargain in a criminal case. An informal adjustment is neither an
adjudication nor disposition “[w]hile the conditions are pending, the matter is
simply in abeyance. . . . At no point is there a final action by the district court;
there is rather a decision not to act.” Com. v. C.J., 156 S.W.3d 296, 298 (Ky.
2005). In addition to the fact that the informal adjustment was invalid because the
statutory requirement of agreement amongst the parties had not been met, these
proceedings are a civil action in which the best interest of the child, not the
adjudication of guilt and determination of a penalty, remains the paramount issue.
Under these circumstances, the informal adjustment was not binding on the
Commonwealth or the trial court.
Finally, appellants argue that the Commonwealth failed to prove the
statutory elements necessary for a finding of abuse under KRS 600.020(1). That
statutory provision defines “abused or neglected child” as:
[A] child whose health or welfare is harmed or threatened
with harm when:
(a) His or her parent, guardian, person in a position of
authority or special trust, as defined in KRS 532.045, or
other person exercising 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 accidental
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
Physical injury is defined as “substantial physical pain or any
impairment of physical condition[.]” KRS 600.020(46).
“The trial court has broad discretion in determining whether a child
fits within the abused or neglected category[.]” C.R.G. v. Cabinet for Health and
Family Servs., 297 S.W.3d 914, 916 (Ky. App. 2009). “The burden of proof shall
be upon the complainant, and a determination of dependency, neglect, and abuse
shall be made by a preponderance of the evidence.” KRS 620.100(3).
The trial court found that the child was abused “as a result of the
parents’ actions of continuing to administer vinegar after the child vomits, and
ultimately [the] child had to go to the hospital to be treated for having aspirated the
Appellants do not deny that vinegar was administered to the child as a
means of discipline, but that the amounts of vinegar administered to the child were
greatly exaggerated and that the aspiration was simply an accident. They contend
that aspiration can happen to anyone if a fluid such as juice or water “goes down
the wrong way.” They assert that the Commonwealth failed to prove that the
health or welfare of the child was ever harmed or threatened with harm by his
The Cabinet’s investigative worker, Roy Hardy, testified that
appellants first took the child to his pediatrician, who determined that the child had
aspirated and referred them to Kosair Children’s Hospital, where he was
subsequently treated. Hardy testified that the medical records showed that
appellants told hospital staff that they had only administered .4 milliliters of
vinegar, whereas they told him they had administered the vinegar fourteen times
and that the child had vomited fourteen times. Hardy also testified that appellants
told him they went back to using vinegar to discipline the child a month after he
was taken to the hospital for its previous use. Hardy also testified that the medical
records showed the child was nineteen months old at the time and weighed twentyfour pounds.
“Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Kentucky Rules of Civil Procedure 52.01. Even
under the “clear and convincing” standard required for a termination of parental
rights, uncontradicted proof is not required. “It requires that there be proof of a
probative and substantial nature carrying the weight of evidence sufficient to
convince ordinary prudent-minded people.” C.R.G., 297 S.W.3d at 916 (Ky. App.
Hardy’s testimony that appellants administered vinegar repeatedly to a
very young child until he vomited, and continued the practice after he had to be
treated at the hospital for aspiration, provided more than sufficient evidence to
support the trial court’s finding of abuse.
For the foregoing reasons, the October 4, 2011, order of the Jefferson
Circuit Court, Family Court Division Nine, is affirmed.
BRIEF FOR APPELLANTS:
John H. Helmers, Jr.
BRIEF FOR APPELLEE,
David A. Sexton
Special Assistant Attorney General
BRIEF FOR APPELLEE, THE
MINOR CHILD, C.L.:
Joseph S. Elder II, Guardian Ad Litem
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
G. Thomas Mercer