Where parent never had exercised custodial control nor directly endangered the child it was error to find child was neglected

Published Opinion from Ky Court of Appeals:

 C.B. V. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL.

The trial court found that Child was neglected by the Father, although Father had sought drug treatment, ceased drug use, followed his case plan, and obtained employment.

Father appealed arguing that “the evidence against him was insufficient to demonstrate risk of harm of neglect” and that “it was impossible for the Cabinet to prove neglect because he had never exercised custodial control or supervision over the Child.” The Court of Appeals agreed reversing the trial court and holding that the “risk of harm must be more than a mere theoretical possibility, but an actual and reasonable potential for harm.” A finding of dependency, neglect, and abuse shall be made by a preponderance of the evidence. Father’s history of drug use alone was not enough to meet the Cabinet’s burden when he never directly endangered the child in any way and complied with all Cabinet recommendations.

Digested by Elizabeth M. Howell.