R. (T.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM HARDIN FAMILY COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 04-J-00453
CABINET FOR HEALTH AND
FAMILY SERVICES, COMMONWEALTH
OF KENTUCKY; C.R., BY AND THROUGH
HER GUARDIAN AD LITEM,
** ** ** ** **
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES.
DIXON, JUDGE: Appellant, T.R., appeals from the Hardin Family Court’s
finding of medical neglect in this dependency, neglect and abuse action. Finding
no error, we affirm.
T.R. is the mother of C.R., a twelve-year-old minor. C.R. suffers
from nephritic syndrome which results in the buildup of protein in her kidneys.
C.R.’s condition requires daily monitoring of the protein levels in her urine, a
restricted diet, and a regimen of prescription drugs. In November 2007, C.R. was
hospitalized at Kosair Children’s Hospital in Louisville for two days. Upon
discharge, T.R. was instructed to schedule a follow-up visit for C.R. in one week.
After two months passed without a follow-up visit, one of C.R.’s treating kidney
specialists, Dr. McKinney, contacted the Cabinet for Health and Family Services to
report T.R.’s failure to comply with the discharge instructions. Apparently, a visit
was then scheduled by Lynda Kay Srna, a social worker with the Cabinet.
However, T.R. failed to show up for the appointment.
On February 11, 2008, the Cabinet filed a Juvenile Dependency,
Neglect and Abuse petition against T.R. in the Hardin Family Court. Following a
hearing, the family court made a finding of neglect based upon T.R.’s failure to
schedule a follow-up appointment for C.R. for over eleven weeks. The court’s
disposition allowed C.R. to remain in T.R.’s custody so long as T.R. agreed to
cooperate with the doctors and the Cabinet. T.R. thereafter appealed to this Court.
T.R. argues on appeal that the family court erred in admitting a report
by Dr. McKinney outlining his suspected neglect. Initially, the court sustained
T.R.’s hearsay objection, noting that it would allow the Cabinet’s social worker,
Lynda Kay Srna, to testify about the report for the limited purpose of showing why
the Cabinet opened the case, but adding that “[w]hatever Dr. McKinney might
have said will have to be proved by another manner.” However, later in the
hearing, the court ruled that because Dr. McKinney had a duty under Kentucky
Revised Statutes (KRS) 620.030 to report suspected neglect, the report was not
T.R. argues that because Dr. McKinney was not present at the
hearing, the contents of his report were inadmissible hearsay. T.R. analogizes this
case to the fact scenario presented in Prater v. Cabinet for Human Resources, 954
S.W.2d 954 (Ky. 1997), wherein our Supreme Court held that hearsay statements
in a social worker’s investigative reports were inadmissible. Moreover, T.R.
claims that the admission of the report was prejudicial because it was the only
evidence offered by the Cabinet.
No question exists that a doctor has a statutory duty to report any
suspected neglect or abuse. KRS 620.030. And pursuant to subsection (2) of the
statute, a doctor is required to make a written report detailing the identity of the
child, the nature and extent of the alleged neglect or abuse, the identity of the
person allegedly responsible, as well as any other pertinent information. However,
whether a doctor’s written report made pursuant to KRS 620.030 is admissible is
not specifically addressed by Prater, supra, and may indeed be a matter of first
impression. Nevertheless, we need not reach such issue because Dr. McKinney’s
report herein was not offered to prove the truth of its contents, but rather to show
why the Cabinet opened an investigation.
Contrary to T.R.’s assertion, Dr. McKinney’s report was not the only
evidence presented in this case. Ms. Srna testified concerning the history of T.R.’s
ongoing issue of medical neglect concerning C.R. In fact, there had been three
prior referrals, and two substantiated neglect actions for the same problem. In
addition, T.R. herself testified and admitted that she had a history of missing
C.R.’s doctors’ appointments, and that she had even permitted C.R. to selfmedicate.
We find compelling the family judge’s comments during the hearing.
The court noted that it considered the Cabinet’s case unpersuasive until T.R.
testified. Per her own testimony, T.R. acknowledged that she was to schedule a
follow-up appointment within one week of C.R.’s discharge from the hospital.
T.R. claimed that she did not make the follow-up appointment because her
insurance had lapsed, but that she had maintained telephonic contact with C.R.’s
family physician. However, the court determined that T.R.’s insurance did not
actually lapse until December 31, 2007, some six weeks after C.R. was already
overdue for her appointment. The family court further remarked that T.R.’s act of
permitting an eleven-year-old to self-medicate a potentially deadly medical
condition was “irresponsible at least – maybe criminal.”
The family court has a great deal of discretion in determining whether
a child fits within the abused or neglected category. Department for Human
Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977). A reviewing Court is
not permitted to substitute its judgment for that of the lower court unless its
findings are clearly erroneous. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.
1986). Factual findings are not clearly erroneous if they are supported by
substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky.
Contrary to T.R.’s assertions, the record is replete with substantial
evidence to support the family court's findings. The record is clear that T.R. has
had a history of neglecting to provide proper medical care for C.R. We agree with
the family court that T.R.’s testimony was sufficient to establish that she again
failed to follow proper medical instructions despite prior court orders directing her
to do so.
Accordingly, we affirm the Hardin Family Court’s finding of medical
neglect against Appellant, T.R.
VANMETER, JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS: I respectfully dissent. To
analyze the admissibility of the letter from Dr. McKenney, we must first look to
the issues to be adjudicated.
A review of the petition in this matter reveals allegations that, posthospitalization of C.R., T.R. failed to bring C.R. to medical visits and was noncompliant with C.R.’s medication needs. The petition does reference a history of
prior occurrences but states they were the subject of other court actions and, thus,
not the subject of this action.
History would obviously be useful to the judge at disposition, but of
little avail to the Commonwealth in proving a missed appointment in this one
instance. Therefore, as to the admission of the history to prove current neglect, I
Now we must examine the evidence at trial. First, we must look to
see if the admission of the letter to prove a missed appointment and the details
thereof is error. T.R. testified to the fact that she missed an appointment. Thus,
the letter when used as evidence of a missed appointment was repetitive of the
testimony of T.R. and, thus, harmless error.
Second, we must look to the remaining content of the letter. Therein
is expressed the opinion of Dr. McKenney as to the effect of the missed
appointment. While Dr. McKenney was under a statutory duty to report
dependency or neglect to the cabinet,1 I know of no evidentiary rule that would
allow admission of the letter, which is obvious hearsay, based upon the statutory
duty to report set forth in Kentucky Rules of Evidence (KRE) 803. The letter may
have been properly introduced as a business record or medical record, but there
was neither foundation nor certification of same in this instance, and no medical
expert to testify. Thus, admission under either of these hearsay exceptions fails.
Lastly, we must determine if the fact that an appointment was missed
is, in and of itself, medical neglect. I respectfully submit that without a medical
opinion as to the effects of the missed appointment that the evidence before the
trial court was insufficient to find neglect. I would vacate the judgment of the
court and remand for additional proceedings consistent herewith.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sherry Keith Kelley
No Brief for Appellee