Request By:
Mr. Ryan M. Halloran, General Counsel
Office of the Counsel
Cabinet for Human Resources
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Elizabeth P. Harvey, Assistant Attorney General
You have requested an opinion of this Office as to whether KRS 620.060, 620.090, 620.140 and 610.050 comply with 42 U.S.C. 672(a)(1), which requires a judicial determination prior to the removal of a child from the home that continuation in the home is contrary to the best interests of the child. It is the opinion of this Office that the statutes in question comply with 42 U.S.C. 672(a)(1).
KRS 620.060 and 620.090 establish the conditions which must be proven in order for the court to remove a child on a petition for emergency custody and temporary custody, respectively. KRS 620.060 pertaining to emergency custody orders reads, in pertinent part, as follows:
(1) The court for the county where the child is present may issue an ex parte emergency custody order when it appears to the court that there are reasonable grounds to believe, as supported by affidavit or by recorded sworn testimony, that the child is in danger of imminent death or serious physical injury or is being sexually abused and that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child. Custody may be placed with a relative taking into account the wishes of the custodial parent or any other appropriate person or agency including the cabinet.
KRS 620.060(1) authorizes the court to issue an ex parte emergency custody order upon a finding that one or more of three alternative conditions apply to the child's circumstances: the child is 1) in danger of imminent death, or 2) in danger of serious physical injury, or 3) is being sexually abused. In all cases it must be found that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child. Clearly such findings indicate a serious danger to the welfare of the child in question and comply with the requirement of 42 U.S.C. 672(a)(1) that continuation in such circumstances is contrary to the best interests of the child.
KRS 620.090, which pertains to temporary removal orders reads, in pertinent part, as follows:
(1) If, after completion of the temporary removal hearing, the court finds there are reasonable grounds to believe the child is dependent, neglected or abused, the court shall issue an order for temporary removal and shall grant temporary custody to the cabinet or other appropriate person or agency. Preference shall be given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known. The order shall state the specific reasons for removal and show that alternative less restrictive placements and services have been considered. The court may recommend a placement for the child.
KRS 620.090(1) references the definitions of an abused or neglected child and a dependent child. The definition of an abused or neglected child is found at KRS 600.020(1) and reads as follows:
(1) "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: inflicts or allows to be inflicted upon the child physical or emotional injury by other than accidental means; creates or allows to be created a risk of physical or emotional injury to the child by other than accidental means; 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 such child; does not provide the child with adequate care, supervision, food, 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 legitimately practicing his religious beliefs shall not be considered a negligent parent solely because he fails 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;
The definition of a dependent child is found at KRS 600.020(15) and reads as follows:
(15) "Dependent child" means any child, other than an abused or neglected child, who is under improper care, custody, control, or guardianship that is not due to an intentional act of the parent, guardian, or person exercising custodial control or supervision of the child;
Both definitions describe circumstances which are detrimental to the well-being of a child so found. KRS 620.090(1) directs the court to state the specific reasons for granting the temporary removal order and show that less restrictive placements and services have been considered.
All of these findings are required to be judicially determined prior to the court's order to remove the child. Language requiring that judicial determination be made prior to removal of the child is found in KRS 620.130(1) and 620.140(1)(c). Applicable parts of these statutes follow:
630.130
(1) In any proceeding under this chapter, when the court is petitioned to remove or continue the removal of a child from the custody of his parent or other person exercising custodial control or supervision, the court shall first consider whether the child may be reasonably protected against the alleged dependency, neglect or abuse, by alternatives less restrictive than removal. Such alternatives may include, but shall not be limited to, the provision of medical, educational, psychiatric, psychological, social work, counseling, day care, or homemaking services with monitoring wherever necessary by the cabinet or other appropriate agency. Where the court specifically finds that such alternatives are adequate to reasonably protect the child against the alleged dependency, neglect or abuse, the court shall not order the removal or continued removal of the child.
[Emphasis added.]
620.140
(1) In determining the disposition of all cases brought on behalf of dependent, neglected or abused children, the juvenile session of the district court, in the best interest of the child, shall have, but shall not be limited to, the following dispositional alternatives:
* * *
3.(c) Removal of the child to the custody of an adult relative, other person, or child-caring facility or child-placing agency, taking into consideration the wishes of the parent or other person exercising custodial control or supervision. Before any child is committed to the cabinet or placed out of his home under the supervision of the cabinet, the court shall determine that reasonable efforts have been made by the court or the cabinet to prevent or eliminate the need for removal and that continuation in the home would be contrary to the welfare of the child; . . . [Emphasis added.]
The directive language in both statutes is in the mandatory language "shall" which has the ordinary meaning of being compulsory or imperative.
Stanfield v. Willoughby, Ky., 286 S.W.2d 909 (1956). Thus, the court is required to consider alternatives to removal (KRS 620.130) and reasonable efforts to prevent removal (KRS 620.140) before removing a child.
In all cases involving a child alleged to be dependent, neglected or abused, the provisions of KRS Chapter 620 as outlined above are to be followed. This requirement is issued in KRS 610.050. KRS 610.050 reads as follows:
If it appears to the court, by affidavit or by sworn testimony, that the child is a danger to himself or the community, or is in such condition or surroundings that his welfare is being harmed or threatened with harm to such a degree that his best interest requires that his custody be immediately changed by the court from the original custodian to another, the judge may sign an order giving temporary custody of the child to a suitable custodian. However, if this case involves allegations of dependency, neglect or abuse, no emergency removal or temporary custody orders shall be effective unless the provisions of KRS Chapter 620 are followed; and, if the case involves allegations of mental illness, the provisions of KRS Chapter 645 shall be followed. As a part of such order, the court may direct that the child shall be taken into custody by the peace officer serving the summons or by any other peace officer and placed as directed by the court. In any event, a copy of the temporary custody order shall be served on the parent, guardian or other person exercising custodial control or supervision of the child when the summons is served. The temporary custody order shall be effective until the case is heard on its merits or until modified by the court. As a result of such order, the child shall be placed in custody and care in a home or other suitable facility.
In summary, KRS 620.060, 620.090, 620.140 and 610.050, in conjunction with 620.130, combine to comply with 42 U.S.C. 672(a)(1). The circumstances under which a child may be removed from the home are specified, and are unquestionably circumstances which pose a danger or a threat of danger to a child so found. Upon a finding that such conditions exist, the court is required to find, prior to removal of the child, that no alternatives are available to protect the child from the stated harm and that reasonable efforts have been made to prevent removal.