COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES, NEXT FRIEND OF M.H., AN INFANT v. R.H.; K.H; AND M.H., A CHILD
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RENDERED:
July 7, 2006; 10:00 A.M.
ORDERED PUBLISHED:
MODIFIED:
AUGUST 11, 2006; 2:00 P.M.
AUGUST 18, 2006; 10:00 A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002315-ME
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH & FAMILY SERVICES,
NEXT FRIEND OF M.H., AN INFANT
v.
APPELLANT
APPEAL FROM FLOYD FAMILY COURT
HONORABLE LARRY THOMPSON, SPECIAL JUDGE
ACTION NO. 05-J-00005-001
R.H.; K.H; AND M.H., A CHILD
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; MINTON; JUDGE, HUDDLESTON, SENIOR
COMBS, CHIEF JUDGE:
The Cabinet for Families and Children
appeals from the October 18, 2005, order of the Floyd Family
Court dismissing its dependency, neglect, and abuse petition.
The Cabinet also appeals from an August 25, 2005, pre-trial
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Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
order that prohibited the Cabinet from introducing evidence
related to the seven siblings of M.A.H. -- all of whom have been
removed from their parents’ custody.
K.H., M.A.H.’s biological parents.
The appellees are R.H. and
After careful review, we
vacate the order and remand for proceedings consistent with this
opinion.
On January 5, 2005, Jaime Welch, a social worker with
the Cabinet for Families and Children, filed a juvenile
dependency, neglect, and abuse petition in the Floyd Family
Court on behalf of M.A.H., an infant.
The petition recited that
the infant was believed to be at risk of harm because of a
history of “substantiated sexual abuse, physical abuse and
neglect as well as . . . domestic violence.”
The petition also
stated:
The seven siblings of the aboved (sic) named
child have been removed from the custody of
the parents and are currently committed to
CHFS/DPP with a goal of adoption. At the
time of the aboved (sic) named child’s
birth, the mother provided Cabell Huntington
Hospital with a West Virginia address. West
Virginia Department of Health and Human
Resources (sic) filed a petition obtaining
custody of aboved (sic) named child,
however, child could not be located and the
father notified West Virginia Department of
Health and Human Services that the family
was returning to Kentucky to their previous
address.
On the same date as the filing of the petition, the court
entered an emergency custody order temporarily placing M.A.H. in
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the custody of the Cabinet.
However, K.H. never relinquished
custody of the child, and she was permitted by the court to
reside with the child at the home of a local pastor.
On February 28, 2005, at a temporary removal hearing,
the family court entered an order permitting K.H. to return with
the child to live with R.H.
Both the Cabinet and the child’s
guardian ad litem objected.
On March 4, 2005, the Cabinet filed a notice of its
intent to introduce evidence at the upcoming adjudication
hearing concerning the removal of M.A.H.’s seven siblings from
their parents’ custody.
In a responsive memorandum, K.H. and
R.H. conceded that the family history of abuse and neglect was
relevant to the court’s determination of whether M.A.H. was at
risk for harm.
Nonetheless, they argued that the Cabinet was
barred by the doctrine of res judicata from introducing any
evidence related to the prior sexual abuse of M.A.H.’s siblings.
The family court agreed and entered an order
prohibiting the Cabinet from introducing evidence of “sexual
abuse against the siblings of [M.A.H.] perpetrated by the
parents, [R.H. and K.H.].”
Following an adjudication hearing,
the family court concluded that the Cabinet had failed to prove
-- by a preponderance of the evidence -- the truth of the
allegations contained in its petition.
dismissed, and this appeal followed.
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The action was
The Cabinet argues that the family court erred by
excluding evidence related to the removal of M.A.H.’s siblings
following a substantiated claim of sexual abuse perpetrated
against at least one of them.
We agree.
The Cabinet has been involved with the protection of
the appellees’ children for many years.
Its history with the
family began in late 1999 when it learned that R.H. had
padlocked K.H. and his three daughters inside the family’s
trailer home and left them for two days.
K.H. was subsequently
arrested on a bench warrant issued because she had allowed R.H.
back into the home with the children.
The Cabinet was ultimately granted permanent custody
of M.A.H.’s seven siblings in dispositional proceedings
concluded in February 2004.
The Johnson Family Court’s 2001
adjudication order in favor of the Cabinet was based upon a
finding that some of the children had been severely physically
abused; that domestic violence had occurred in the home; and
that acts of sexual abuse had occurred.
The court’s
dispositional order was affirmed by this court in an October
2005 opinion that catalogued the extensive evidence of abuse
perpetrated against the appellees’ children.
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KRS2 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:
“Abused or neglected child” means a 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)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
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Inflicts or allows to be inflicted upon
the child physical or emotional injury
as defined in this section by other
than accidental means;
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;
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;
Continuously or repeatedly fails or
refuses to provide essential parental
care and protection for the child,
considering the age of the child;
Commits or allows to be committed an
act of sexual abuse, sexual
exploitation, or prostitution upon the
child;
Creates or allows to be created a risk
that an act of sexual abuse, sexual
exploitation, or prostitution will be
committed upon the child;
Abandons or exploits the child; or
Does not provide the child with
adequate care, supervision, food,
Kentucky Revised Statutes.
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(i)
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 practicing the
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
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 the foster care for fifteen
(15) of the most recent twenty-two (22)
months.
The family’s lengthy history of abuse or neglect was
particularly relevant in this adjudication proceeding -- as the
appellees have acknowledged.
In light of the history of the
evidence in this case, it was critically important to weigh the
issue of whether either of the parents had created or had
allowed to be created a risk that an act of sexual abuse would
be committed upon M.A.H.
Accordingly, the pre-trial decision of
the court to prevent the Cabinet from introducing the relevant
evidence was highly relevant to the adjudication.
On appeal, we must decide whether the family court
erred in concluding that the Cabinet could not introduce the
evidence.
The court believed that res judicata bars its
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admission based on a 2001 finding of the Johnson Family Court
that an act of sexual abuse had been perpetrated against
M.A.H.’s older sibling and that such evidence cannot be used now
to determine whether M.A.H.’s welfare may be threatened by a
risk of similar sexual abuse.
The family court held that the evidence was “precluded
from admission by the doctrine of res judicata and the
subdoctrine of issue-preclusion.”
The court cited Yeoman v.
Commonwealth Health Policy Bd., 983 S.W.2d 459 (Ky. 1998).
In
Yeoman, the Supreme Court of Kentucky defined the doctrine of
res judicata to be the conclusive effect of an existing final
judgment rendered upon the merits by a court of competent
jurisdiction.
The court defined “issue preclusion” as a subpart
of the doctrine and explained as follows:
For issue preclusion to operate as a bar to
further litigation, certain elements must be
found to be present. First, the issue in
the second case must be the same as the
issue in the first case. Second, the issue
must have been actually litigated. Third,
even if an issue was actually litigated in a
prior action, issue preclusion will not bar
subsequent litigation unless the issue was
actually decided in that action. Fourth,
for issue preclusion to operate as a bar,
the decision on the issue in the prior
action must have been necessary to the
court’s judgment.
Yeoman, 983 S.W.2d at 465.
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The appellees contend that the failure of the Johnson
Family Court to make a finding (in its 2001 order) with respect
to the specific identity of the perpetrator of the sexual abuse
amounts to a determination that there was insufficient evidence
to conclude that R.H. was the abuser.
They argued that such an
inferred finding prevents the Cabinet from raising the issue of
the appellees’ sexual abuse of M.A.H.’s siblings (or any of
them) in the current proceedings.
We do not agree that the elements of issue preclusion
have been established.
It is worthy of argument to contend that
there was an identity of issues in both proceedings and that the
issue was litigated in the prior proceeding.
However, the issue
was not actually decided in that proceeding.
At the time of the February 2001 adjudicatory
proceedings, M.A.H.’s siblings identified both R.H. and K.H. as
perpetrators of the sexual abuse that they had suffered.
Following the hearing, the Johnson Family Court found that
physical abuse had occurred; that an act of sexual abuse had
occurred; and that domestic violence had occurred in the home.
As a result, the children were ordered to remain outside the
home, and a dispositional hearing was scheduled for March 2001.
In May 2002, M.A.H.’s siblings were eventually returned to K.H.
on the condition that R.H. be kept out of the house.
In
December 2002, emergency custody orders were entered removing
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the children from the home again because R.H. was present.
The
court also found specifically that one of the children had been
exposed to sexual abuse.
In October 2003, the case was
transferred from Johnson County to the Floyd Family Court.
M.A.H.’s seven siblings were permanently removed from the
appellees following the proceedings concluded in February 2004.
As the appellees have noted, the Johnson Family Court
declined to name the perpetrator of the sexual abuse in its 2001
order perhaps because it believed that the identity of the
offender was not essential or necessary to the proceedings.
In
order for the court to conclude that a child has been abused or
neglected, the statute requires a finding that a parent or
guardian has created or allowed to be created a risk that the
child will be the victim of sexual abuse or exploitation.
The
identity of the perpetrator of the abuse is not material to that
finding.
We cannot agree that the Cabinet is barred by the
doctrine of issue preclusion from introducing evidence that
might identify R.H. as the perpetrator of the prior sexual
abuse.
This evidence is highly relevant to establish whether
M.A.H. is an abused or neglected child.
We vacate both the pretrial order prohibiting the
introduction of the disputed evidence and the order dismissing
the original petition.
We remand this matter for an expedited
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adjudicatory hearing conducted pursuant to the provisions of KRS
620.100(3).
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Terry I. Morrison
Lexington, Kentucky
Stephen L. Marshall
Lexington, Kentucky
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