Request By:
Hon. Joseph F. Bamberger
District Judge
Fifty-Fourth Judicial District
Courthouse
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office relating to KRS 530.060, which reads:
"(1) A parent, guardian or other person legally charged with the care or custody of a minor is guilty of endangering the welfare of a minor when he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming a neglected, dependent or delinquent child.
(2) Endangering the welfare of a minor is a Class A misdemeanor. "
Your question reads:
"In a factual situation where a "volunteer" has the care and custody of a minor and does not exercise reasonable diligence in controlling the child and thus preventing negligence or dependency, is there a violation of KRS 530.060? If not, is there a violation of any statute?"
At the outset, the term "minor" means any person who has not reached the age of majority, as defined in KRS 2.015. See KRS 500.080(9). The age of majority in Kentucky is eighteen years of age, except for the purchase of alcoholic beverages and for the purposes of care and treatment of handicapped children, for which twenty-one years is the age of majority.
The statute in question imposes criminal liability upon a "person, legally charged with the care or custody of a minor," other than a parent or guardian, who is "guilty of endangering the welfare of a minor when he fails or refuses to exercise reasonable diligence in the control of such child to prevent him (or her) from becoming a neglected, dependent or delinquent child. " (Emphasis added.)
The thrust of the statute is that where the court or jury, as the case may be, finds that the person legally charged with the care or custody of the child for a substantial period of time endangered the welfare of the child (i.e., exposed the child to potential harm, injury, or liability), by failing or refusing to exercise reasonable diligence in controlling the child "to prevent him from becoming a neglected, dependent or delinquent child, " such person in charge of the child is guilty of a Class A misdemeanor.
Contrary to the 1974 commentary to KRS 530.060, that in order to sustain a conviction under KRS 530.060, there must be a prior judicial finding of neglect, dependency or delin-quency of the child, we take the view that under the literal wording of the statute the offense takes place where the person in charge endangers the welfare of the child through improper control (lack of reasonable diligence) such as to expose the child to the potential danger of "becoming a neglected, dependent or delinquent child. " (Emphasis added.) The obvious legislative policy is to encourage the proper and diligent raising of the child in order to prevent an ultimate or final social disaster, namely, the child's finally becoming a neglected, dependent or delinquent child. See OAG 77-520. "Endanger" means to expose to danger, to leave defenseless or unprotected, to put into jeopardy. Webster's New World Thesaurus, Charlton Laird, pages 194-195. It clearly means an exposure to potential harm, not the actual harm which may or may not take place. Brickey, in Kentucky Criminal Law, § 27.05, makes the same presumption as does the 1974 commentary. We believe both are in error, for the reasons assigned above. For the definition of "neglected, " see KRS 208.010(5) and 199.011(6). For a definition of "dependent," see KRS 208.010(6) and 199.011(5). For definition of "delinquent," see KRS 208.020(1)(a), 208.020(8), and 208.020(7).
Your narrow question is whether a person who has voluntarily been placed in control and care of the child by the parents for a substantial period, whether for permanent or temporary care, and who endangers the welfare of the child by not exercising reasonable diligence in the child's control to prevent him from becoming a neglected, dependent or delinquent child, is guilty of violating KRS 530.060. It is our opinion that, if the evidence is such as you state in the question, the person (the volunteer) would be guilty of a violation of KRS 530.060. The statute contains the words "other person legally charged with the care or custody of a minor." (Emphasis added.) That means some person other than a parent or guardian. Such "other person" may be legally charged with the care and custody of a child pursuant to an arrangement or agreement with the parents, formal or informal. Such a transfer of responsibility for the care of a child, whether of a temporary nature or longer, will be recognized as valid until such time as the custody question or related juvenile matters, are presented to the court for decision. Once such arrangements or agreements are presented to the court of jurisdiction, the welfare of the child becomes paramount. See this line of cases in support of the premise of transfer of custody by agreement:
Scott v. Kirkpatrick, 205 Ky. 700, 266 S.W. 390 (1924), pointing out that in the absence of contract, the father and mother have the joint custody of their child. In
Staggs v. Sparks, 286 Ky. 398, 150 S.W.2d 690 (1941) 693, the court, citing Scott v. Kirkpatrick, above, wrote that the court had expressly held that child custody agreements will be enforced as between the immediate parties thereto, but that their rights (once an issue over custody gets into the court) will be subordinated to the welfare of the child, even to the extent of superseding such agreements in some cases. The court, in
Smith v. Lloyd, 311 Ky. 863, 226 S.W.2d 32 (1950) 34, wrote this:
"A contract by which the parent releases the custody of a child to another, which contains an agreement that the parent will not reclaim the child, has been held valid only to the extent that the parent has surrendered the superior right to custody vested in her by the Statutes. But such a contract does not prevent the court from determining what is best for the welfare of the child, regardless of the contract.
Staggs v. Sparks, 286 Ky. 398, 150 S.W.2d 690;
Galilean Children's Home v. Ball, 308 Ky. 319, 214 S.W.2d 403."
Thus it is our opinion that the term "person legally charged with the care or custody of a minor" embraces not only a person, other than a parent or guardian, designated by the courts, but also embraces some person, other than a parent or quardian, to whom the parents have agreed to relinquish control and custody of their child, but not in conflict with an existing court order. Thus Kentucky is not one of those states holding that an agreement by parents to transfer custody of their child to another is against public policy. Cf. 67A C.J.S., Parent and Child, § 19. See also 42 Am. Jur., 2d, Infants, §§ 28-57 (custody) , especially § 43 (welfare and interests of child); and 59 Am. Jur. 2d, Parent and Child, § 25 (custody) .
Conclusion
A person, other than a parent or guardian, who voluntarily assumes the care and custody of a minor by an agreement, formal or informal, temporary or longer, with the parents of the child and prior to the court's having an opportunity to pass on a custody issue, may be found guilty of endangering the welfare of the child if he does not exercise reasonable diligence in controlling the child to prevent the child from becoming a neglected, dependent or delinquent child.