Cabinet for Health and Family Services v. K.O.
2024-SC-0188-DGE
Calloway Circuit Court
Kentucky Supreme Court
Opinion by Justice Keller
Date Rendered: February 20, 2025
Issue: Whether the trial court relied on substantial evidence in holding a child was at risk of being harmed where the child was exposed to an illicit substance and the father operated a motor vehicle while under the influence with the child in the vehicle.
Mother and Father are the biological parents of a six-year-old child. After their divorce, they shared joint custody with equal parenting time. On October 27, 2022, during morning school drop-off, School Resource Office, Tim Fortner, smelled marijuana and saw smoke coming from Father’s vehicle. After Child exited, Fortner confronted Father, who did not deny the accusation and drove off. Fortner, familiar with Child’s behavioral issues, reported his concerns to the Cabinet for Health and Family Services (“the Cabinet”) via a JC-3 form.
The Cabinet initiated a dependency, neglect, and abuse (“DNA”) action. Drug tests were ordered for all parties. Child tested positive for marijuana exposure and ingestion. Father’s drug test revealed high levels of marijuana metabolites, as well as D-methamphetamine and oxycodone. He had a valid prescription only for the oxycodone.
At the adjudication hearing, Fortner and the Cabinet investigator testified that Child often smelled of marijuana and had behavioral problems. The investigator also testified to smelling marijuana at Father’s home. Mother denied ever smelling marijuana on Child or suspecting Father of using drugs while supervising him.
Experts for both sides testified about the drug test results. Father’s expert claimed the methamphetamine result could be from over-the-counter medication, but the Cabinet’s expert clarified that the result specifically showed the illicit form, D-methamphetamine.
The trial court found that Father neglected Child under KRS 600.020. It concluded that Child had ingested marijuana while in Father’s care, that Father’s substance abuse impaired his ability to meet Child’s needs, and that his behavior created a risk of harm. Temporary custody was granted to Mother, with visitation for Father at her discretion. The court emphasized reunification but required Father to address his substance abuse.
The Court of Appeals reversed, finding insufficient evidence of risk to Child. The Supreme Court granted discretionary review.
The Supreme Court emphasized that the goal of Kentucky’s DNA statutes is to protect the health and safety of children. Under KRS 600.020(1)(a)(2), a child is considered neglected if a parent creates a risk of physical or emotion injury, not just actual harm. The risk must be real and reasonable, not merely hypothetical.
In this case, the trial court found that Father created such a risk, supported by substantial evidence: Fortner saw and smelled marijuana coming from Father’s vehicle during school drop-ff and noticed smoke inside; Fortner and school staff previously smelled marijuana on Child’s clothes; a Cabinet investigator smelled marijuana at Father’s home during an unannounced visit; and Father’s drug test showed extremely high levels of THC and other substances, and Child also tested positive for marijuana exposure.
The Supreme Court agreed with the trial court’s inference that Father used marijuana while caring for Child, smoked in the car with Child present, and drove Child to school while impaired. This behavior, especially given Child’s young age, created an actual and reasonable risk of physical injury. The Supreme Court rejected Father’s argument that expert testimony was needed to prove injury, noting that the risk arose from impaired driving and drug exposure, not just ingestion.
The Court distinguished this case from M.C. v. Cabinet for Health and Family Services, where a father’s drinking did not rise to the level of neglect because the children were teenagers and there was no observable harm. Here, Child was six, needed close supervision, and was directly impacted by Father’s actions.
Ultimately, the Supreme Court concluded that the trial court’s findings were supported by substantial evidence and not clearly erroneous. It reinstated the neglect finding, reversing the Court of Appeals.
Digested by Nathan R. Hardymon