Opinion
NO. 2023-CA-0379-ME
10-13-2023
S.S., Appellant v. Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES and L.S., a Child, Appellees
BRIEF FOR APPELLANT: Paul J. Mullins, Louisville, Kentucky. BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Daniel Cameron, Attorney General of Kentucky, Frankfort, Kentucky, Michael J. O’Connell, Jefferson County Attorney, David A. Sexton, Assistant Jefferson County Attorney, Louisville, Kentucky.
APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE TARA HAGERTY, JUDGE, ACTION NOS. 21-J-502816-001 AND 21-J-502816-002
BRIEF FOR APPELLANT: Paul J. Mullins, Louisville, Kentucky.
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Daniel Cameron, Attorney General of Kentucky, Frankfort, Kentucky, Michael J. O’Connell, Jefferson County Attorney, David A. Sexton, Assistant Jefferson County Attorney, Louisville, Kentucky.
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND COMBS, JUDGES.
OPINION
THOMPSON, CHIEF JUDGE:
S.S. ("Mother") appeals from the trial court’s adjudication and disposition which found that L.S. ("Child") had been medically neglected by Mother. Mother argues she did not neglect Child. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
Child was born on October 19, 2018. Child was born prematurely and has had medical issues since birth. He has been diagnosed with eosinophilic esophagitis ("EoE") and failure to thrive. EoE is an inflammation of the esophagus which causes vomiting and difficulty in swallowing food. Failure to thrive is where a child fails to gain weight or height normally. In this case, Child was failing to gain weight.
Child has been diagnosed with other issues, but these are the primary medical problems focused on in the case below.
The Cabinet for Health and Family Services filed two neglect petitions in this case. The first was filed on May 5, 2021. That petition alleged that Child’s doctors were concerned for Child’s health because he was severely underweight. Doctors believed Child was not receiving appropriate nutrition and that Mother was not administering Child’s medications as prescribed. The petition also indicated that Child would gain weight appropriately while in the hospital, but not when in Mother’s care. Child was left in Mother’s custody at the time.
As Child’s EoE progressed, it caused a stricture in Child’s esophagus. This is a narrowing of the esophagus, again making it hard to swallow. Child had received a medical procedure called an esophagus dilation, which would stretch the narrowed part of the esophagus. This procedure was performed two times, but they were not successful. A third dilation procedure was ordered by Child’s doctors, but Mother did not want Child to have a third procedure and requested a second opinion. The hospital in which Child was being treated had no other doctor on staff experienced enough with Child’s conditions to be able to give a second opinion. In addition, Child was too ill to transfer to another medical facility; therefore, Mother was unable to get a second opinion and refused consent to perform the third dilation.
A second neglect petition was filed on July 1, 2021, due to Mother’s refusal to consent to the dilation procedure. After this petition was filed, Child was removed from Mother’s custody and emergency custody was granted to the Cabinet. The court also ordered that Child was to receive the third dilation procedure. This procedure was also unsuccessful. Eventually Child underwent a gastrostomy, or G-tube, procedure. This procedure consisted of surgically putting a feeding tube through the abdomen. The tube would then go into the stomach and provide a route for food to be delivered directly into the stomach. This procedure was successful and Child began to improve.
A two-day adjudication hearing on the two petitions was held on November 10, 2021, and March 16, 2022. Five people testified during the hearing: Elizabeth Adams, a Cabinet social worker; Parker Hall, another social worker; Dr. Melissa Curry, an expert in pediatric forensics whom the Cabinet hired to be involved with Child’s care while in the Cabinet’s custody; Child’s maternal grandmother; and Mother. The social workers and Dr. Curry testified as to Child’s medical conditions and Mother’s ability to care for Child. The social workers and doctor testified that Mother admitted to not always following the doctors’ orders regarding the administering of medication and nutrients. They also testified that Child always gained appropriate amounts of weight while in the hospital, but that his condition would worsen when returned to Mother. Mother and grandmother testified that Mother took appropriate care of Child, took him to medical appointments or the hospital over 100 times, and kept all doctors informed of Child’s condition. Mother admitted that she sometimes did not give Child his medications because they would make him vomit and she believed this was contributing to his weight loss. Mother also testified that she would sometimes receive conflicting advice on how to handle Child’s conditions due to the multiple doctors she had to interact with. She also testified that some of the doctors would dismiss her concerns that Child’s condition was getting worse and the medications were not helping.
Child was in foster care at the time of the hearing.
Dr. Curry testified that vomiting was a known side effect to the medication, but that Child still required it.
On July 20, 2022, the trial court entered an adjudication order finding that Mother had neglected Child by not following the doctors’ orders regarding the administering of Child’s medications and Child’s feeding guidelines regarding frequency and amount. The court noted that while Mother may have believed the medical care recommendations sometimes seemed counterintuitive, she should have continued to follow them. The court also found significant the fact that Child gained more weight while in the hospital than in Mother’s care. On March 8, 2023, the court entered a disposition order wherein Child was to remain in the custody of the Cabinet. This appeal followed.
STANDARD OF REVIEW
[1-7] This Court’s standard of review of a family court’s award of child custody in a dependency, abuse and neglect action is limited to whether the factual findings of the lower court are clearly erroneous. Whether or not the findings are clearly erroneous depends on whether there is substantial evidence in the record to support them. If the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions made by the finder of fact. The legal conclusions are reviewed [de novo].
L.D. v. J.H., 350 S.W.3d 828, 829-30 (Ky. App. 2011) (citations omitted).
Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court’s ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court’s decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.
B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005) (footnotes and citations omitted).
[8] When filing a dependency, neglect, or abuse petition, the burden of proof is on the Cabinet and the dependency, neglect, or abuse must be proven by a preponderance of the evidence. Kentucky Revised Statutes ("KRS") 620.100(3). The preponderance of the evidence standard is satisfied if it can be proven that the child was "more likely than not" abused or neglected. See Ashley v. Ashley, 520 S.W.3d 400, 404 (Ky. App. 2017). Failure to provide a child with adequate food and medical care is considered neglect or abuse. KRS 600.020(1)(a)8.
ANALYSIS
Mother’s first argument on appeal is that the court erred in finding that she neglected Child. She argues that she took Child to over 100 medical appointments during the first two years of Child’s life, provided food and medicine to try and help Child gain weight, and that it was the G-tube which ultimately proved successful in treating Child’s failure to thrive. On the other hand, testimony at the adjudication hearing indicated that Mother did not always follow doctors’ orders regarding feeding and medication, believed the medication and treatments were not helping Child’s condition, and did not want Child to undergo the doctor-recommended third dilation procedure.
[9] This Court reviewed all the testimony over the two-day hearing, as well as the paper record. It is clear from the testimony that Mother tried her best to care for Child, but became frustrated with Child’s treatment plan. She believed it was not improving his condition and sometimes caused him to vomit. It was when she began questioning the doctors’ treatment plan that the Cabinet became involved. The doctors treating Child wanted Mother to follow the treatment plan even though it would sometimes make Child vomit. Ultimately, the trial court weighed the evidence presented and felt the testimony of the social workers and doctor carried more weight. While another court may have found differently than this one, our standard of review requires us to ensure that this trial court’s decision was supported by substantial evidence. We conclude that it was. The Cabinet was able to prove by a preponderance of the evidence that Mother neglected Child by not following the directions of Child’s doctors. It is understandable that Mother may have balked at the idea of giving Child food and medicine that would cause him to vomit; however, the doctors treating Child wanted her to continue to do so. The trial court determined that the treatment plan provided by Child’s doctors was the correct course of action and we find no error based on our standard of review.
Mother’s other argument on appeal concerns the trial court’s disposition. As previously mentioned, the court kept Child in the Cabinet’s custody. Mother argues that the trial court should have allowed Child to return to her custody instead. Evidence at the disposition hearing indicated that Child’s EoE is in remission and Child is eating better. Mother believed the issues that got the Cabinet involved have been resolved and she should be allowed to parent Child. The Cabinet believed that Mother needed to undergo individual therapy and some parenting classes before Child could be returned to her care.
[10] We find no error. The Cabinet believed Mother needed to follow through with their recommendations and the court agreed. Following the Cabinet case plan is a requirement of all dependency, neglect, or abuse cases. While Mother may not agree that she needs to take parenting classes or have individual therapy, the Cabinet and trial court believe otherwise. This is a reasonable conclusion based on the evidence in the record.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Jefferson Circuit Court, Family Division.
ALL CONCUR.