Notes Dom Rel

CS-71 (R.
3/10 ) 921 KAR 1:400
Domestic Relations Fall, 2011 Professor Troy Demuth
1. 2. 3. 4. 5. 6. 7.
8-15-11 Reading for 8-17 pp. 1-27 Must go to family court and write a paragraph by October Drafting assignments Speakers Will read 20-30 pages per class Final exam
1. 8-17-11 2. John Melancamp finalized his divorce. Bert and Ernie have come out to say they are just friends. Grassroots push that they get married. Kentucky listed as high percentage of poor children??? Also couple charged with human trafficking in child sex scheme. (Family law in the news) 3. City of Ladue v. Horn pp. 1 a. Definition of family. Back to Property class, refers to City of Euclid case. 4. Braschi case about gay couple. Rent control case, defines family much more loosely. 5. Non marital couple notes on pp. 10, follow the law or else dont rent 6. Catholic Charities pp. 11 7. Marvin v. Marvin (I) pp. 21 a. Cant have a contract based upon sex or prostitution. 8-22-11 Observed Jefferson County Family Court Docket. Motion hour in Judge Joan Byers courtroom, division one. Specifically observed case 02-CI-502340. Had hearing scheduled for Wednesday. Respondent requesting continuance due to change in Petitioners expert witness testimony. Judge ordered pretrial conference with witness Wednesday, along with an immediate drug test of Respondent. Also, court going to verify attendance of child to school for last year and current year. Respondents attorney, among other things argued that this isnt fair. Also, Respondents attorney assured judge that Respondent would follow order to not use drugs, and get child to school on time. Judge told attorney not to put herself into that position, that she couldnt assure anything. Judge further told attorney in open court that her client was a pot addict and couldnt go a day without smoking. Other funny thing that happened. When I left the courtroom there was an attorney in the hall, a woman wearing a brown suit jacket, a matching MINI skirt that rose to her crotch. Even funnier was the tattoo that ran down her inner leg from her crotch to her knee.
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1. 8-22-11 2. Assignment for 8/24: Read 179-191, 194-202, 217-225 3. Write 1-2 paragraphs for the visit today to the family court motion hour docket. E-mail or print and turn in next class. 4. There are no no-fault states left as of 2010, but some states have fault statutes that can enhance divorce.
1. 8-24-11 2. Potential relationships a. Marriage b. Common law marriage c. Punitive spouse d. Domestic partnership e. Civil union f. Express and implied agreements g. Engagement 3. Kentucky adopted the Uniform Marriage and Divorce Act
1. 8-29-11 2. Read for Wednesday 324-343 & 350-355 3. Date of marriage to date of divorce is marital property in Kentucky. Anything a party owned prior to date of marriage is separate property. 4. Putative spouse doctrine. a. Innocent spouse (or both) must have a good faith belief b. Innocent spouse cannot ratify upon finding out c. Proper marriage ceremony was performed
1. 8-31-11 2. Reading for next Wednesday 356-383 3. Trammel v. US pp. 311

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a. Spousal privilege case b. Holding: The witness spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. 4. Warren v State pp. 317 a. Husband raped and sodomized wife and was convicted for. Appealed and said that couldnt be convicted by the statute as rape was defined as forced intercourse with a woman not his wife Court said no, doesnt mean that. 5. Cladd v. State pp. 324 a. Can a husband be guilty of burglary when breaking into his wifes apartment (couple separated) and assaulting the wife? 6. Williams v. Marsh pp. 328 a. Wife beaten and hospitalized by her husband who was a professional boxer. Court denied protective order, because said act was unconstitutional in that it was ex parte. Supreme Court of Missouri said no, a temporary taking for the right reasons was ok.
1. 9-12-11 2. Divorce in general a. Look at controlling statute (KRS 403) b. Petition, answer & counter petition c. Financial info exchange d. Temporary orders e. Mediation f. Formal discovery g. Litigation h. Post trial issues 3. Williams cases on pp. 385 a. Two paramours left NC to NV, stayed 6 weeks to satisfy domicile, both got divorces and then married each other and moved back to NC. i. First case, says ex parte divorce ok ii. Second case, says one state doesnt have to recognize ruling of domiciliary question. Can reopen and set aside. 4. Sherrer v. Sherrer pp. 390 a. Wife left for vacation to Florida and filed for divorce b. Husband screwed up and went to Florida and appeared. 5. Sosna v. Iowa pp. 397 a. Iowa has a one year rule on residency, and petitioner argued rule wasnt fair. Went to Supreme Court. 6. Perrin v. Perrin pp. 402
CS-71 (R. 3/10 ) 921 KAR 1:400
a. New York marriage. Wife filed in Mexico and granted divorce. Then wife filed again in the Virgin Islands. Case about whether to permit comity. 7. Kazin v. Kazin pp. 406 a. Another Mexican divorce. Case about estoppel.
1. 9-14-11 2. Maintenance a. Usually ends upon death or remarriage of the recipient b. Can also change by cohabitation of recipient c. Can also change by change in circumstances, such as change in jobs or education. d. Parties can generally agree to a modification. 3. Other financial considerations a. Property settlement i. Real estate ii. Personal property iii. Retirement 1. 401k/403b/IRA 2. Defined benefit pension plan 3. Military a. QDRO b. ERISA iv. Bank accounts v. Social Security b. Debt i. Kentucky divides equitably 1. Equity a. Who can pay b. Who ran up debt c. Whos name is it in c. Insurance i. Health ii. Life iii. Other d. Taxs i. Deductions ii. Delinquency iii. Etc e. Investments
CS-71 (R. 3/10 ) 921 KAR 1:400
i. ii. iii. iv. v.
Rental property Insurance Stocks/bonds/etc. Stock options Other
1. 2. 3. 4.
9-19-11 Reading for next class. 493-520 KRS 403.160, 190, 200, 211-212, 220 Invade ex-spouses retirement account to cover alimony or child support. Assets to divide in divorce a. Things of value i. Airline points ii. Pre-paid items 5. Common-law division or community property 6. Ruggles v. Ruggles pp. 443 a. Case was really about giving wife portion of retirement starting immediately even before husband actually retired. b. In Kentucky; retirement divided 50/50 for marital time. 7. Murphy v. Murphy pp. 462 a. Cross appeal. Entire judgment upheld. 8. Pfohl v. Pfohl pp. 471 9. Attorney-Mediators pp. 477 a. Just solutions 10. Herndon v. Herndon pp. 479 a. Chiropractor who had osteoarthritis. b. One change, to reduce child support and alimony. Court refused to lower it again.
1. 2. 3. 4. 5. 6. 7. 8. 9.
9-21-11 403.160 very important for temporary support orders. Should always use. 403.190 Disposition of Property 403.200 Maintenance 403.250 Modification or termination of provisions for maintenance and property disposition 403.211- Action to establish or enforce child support 403.212 Child support guidelines 403.213 modification of child support orders 403.220 Cost of action and attorneys fees
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10. Mid-term week after next. Objective set of questions. Things like fault, no fault, putative spouse, etc. Worth 40 points. Cannot use statute book or anything for this exam. Might be able to use in final.
1. 2. 3. 4. 5.
9-26-11 Mid-term Monday if we have class on Wednesday. Mid-term on Wednesday if we dont have class. Reading for next class 586-595 / 638-647 / 660-665 OBrien v. OBrien pp. 504 Boggs v. Boggs pp. 537 a. Case about whether Federal Statute preempts State Law. 6. Voishan v. Palma pp. 549 a. Case discusses off guidelines chart (on the top end). Comes to the conclusion that the trial judge has discretion but doesnt have to extrapolate strictly from the table. 7. Nash v. Mulle pp. 559 a. Man had extra-marital sex and a child was born. Man paying child support. Man had HUGE increase in income and argument about increase of child support above guidelines.
1. 9-28-11 2. Multiple choice, fill in, etc. Will be statutes, so look at the ones that were assigned. Cases - ??? 3. 403.211 & 212 child support guidelines. a. Custodial & Non custodial parents 4. Test review study through table of contents a. Chapter 1 i. History and change in the family ii. Express vs. implied agreements iii. Marriage alternatives 1. Same sex 2. Common law 3. Equitable 4. Etc b. Chapter 2 i. History property v. equality ii. Procedures of marriage iii. Roles of husband and wives iv. Restraints on husbands and wives v. Change in spousal immunity c. Chapter 3
CS-71 (R. 3/10 ) 921 KAR 1:400
d. Chapter 4 most important about divorce KY chapter 403 i. Fault v. no fault ii. Grounds and defenses iii. Comity e. Chapter 5 i. Alimony ii. Maintenance iii. Property division iv. Child support
1. 10-05-11 2. Assign: JNR & JSR v. OReilly 2007-SC-000175-MR - & KRS 406.011, .021 3. Read ahead:
COMMONWEALTH OF KENTUCKY
WORKSHEET FOR MONTHLY CHILD SUPPORT OBLIGATION
CS-71 (R. 3/10 ) 921 KAR 1:400
INSTRUCTIONS FOR USE 1. Enter each parents gross monthly income [KRS 403.212(2)(a) through (d)]. Column A for custodial parent and Column B for noncustodial parent. 2. Enter the amount actually paid for court ordered maintenance for prior spouse(s) plus the amount of maintenance ordered in the current proceeding [KRS 403.212(2)(g)(1)] in the appropriate columns.. 3. For each column, as appropriate, enter the amount of child support that is: a. paid pursuant to a court/administrative order for prior-born children [KRS 403.212(2)(g)(2)]; b. paid, but not pursuant to a court/administrative order, for prior-born children for whom the parent is legally responsible [KRS 403.212(2)(g)(3)]; and c. imputed for prior-born children residing with the parent [KRS 403.212(2)(g)(3)]. 4. Subtract any amounts on lines 2 and 3 from the amounts on line 1,for each column, if the result is less than 0, enter 0. 5. Add the amounts on line 4 in columns A and B to obtain the combined monthly adjusted parental gross income. 6. Divide each of the amounts on line 4A and 4B by the total amount on line 5C. Enter the percentages. [NOTE: If the noncustodial parent (NCP) has 100% of the combined monthly adjusted parental gross income, use the CS71.1 to calculate the child support obligation. KRS 403.211(7)(b) provides a reduction in gross income for the entire amount of health insurance premiums incurred for the child(ren) when a parent has 100% of the combined monthly adjusted parental gross income.] 7. Determine the base support obligation by referring to the Guidelines Table at the end of the form, using the combined monthly adjusted parental gross income as entered on line 5C and the number of children for whom the parents share a joint legal responsibility [KRS 403.212(7)]. 8. Enter the monthly payment for child care costs [KRS 403.211(6)]. 9. Enter the monthly payment for the child(ren)s health insurance premium or cash medical support[KRS 403.211(7)(a)]. 10. Add lines 7, 8 and 9 in column C. This is the total monthly child support obligation. 11. Multiply line 10C by 6A and 6B for the monthly obligation of each parent. These amounts include each parents share of child care costs and health insurance premium costs if these costs were included on lines 8C or 9C. 12. If the NCP pays either of the amounts listed on lines 8C or 9C to the provider, enter that amount on line 12. If the NCP pays both of these amounts, add these amounts together and enter the total on line 12B. [NOTE: If the NCP is paying 100 percent of either or both of these costs, then the NCP subtracts this amount from his/her monthly obligation, which reduces the amount he/she pays to the custodial parent (CP). Subtracting 100 percent includes the NCPs percentage of these expenses and also compensates the NCP for paying the CPs percentage of these costs]. 13. Subtract line 12B from line 11B and enter the amount. This is the amount the NCP pays to the CP. To calculate a weekly amount, multiply line 13 by 12 and divide by 52.
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CASE NAME: _______________________________ FILE NUMBER: ___________________ COUNTY: ________________________
COMMONWEALTH OF KENTUCKY WORKSHEET FOR MONTHLY CHILD SUPPORT OBLIGATION A. Custodial Parent (CP) $ $ B. Noncustodial Parent (NCP) $ $ C. Both Parents
1. Monthly gross income 2. Deduction for maintenance payments 3. Deduction for other child support for prior-born children 4. Adjusted monthly income 5. Combined monthly adjusted parental gross income 6. Percentage of combined monthly adjusted parental gross income 7. Base monthly support 8. Child care costs
$ $
$ $
9. Child(ren)s health insurance premium or cash medical support 10. Total child support obligation 11. Each parents $ monthly child support obligation 12. Subtract child care costs or health
$ $
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insurance premiums paid by NCP to the provider 13. Amount the NCP pays to the CP
COMBINED MONTHLY ADJUSTED PARENTAL GROSS INCOME $0 100 200 300 400 500 600 700 800 900 1,000 1,100 1,200 1,300 1,400 1,500
SIX OR ONE TWO THREE FOUR FIVE MORE CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN
$ 60 60 70 80 90 100 120 140 160 180 195 212 229 246 262 277
$ 60 60 70 80 90 105 125 156 203 261 303 324 346 367 392 417
$ 60 60 70 80 90 110 130 161 208 266 325 384 433 460 491 522
$ 60 60 70 80 90 115 135 166 213 271 330 389 446 504 554 588
$ 60 60 70 80 90 120 140 171 218 276 335 394 451 510 576 642
$ 60 60 70 80 90 125 145 176 223 281 340 399 456 515 582 650
1,600 1,700 1,800 1,900 2,000 2,100 2,200 2,300 2,400 2,500 2,600 2,700 2,800 2,900 3,000 3,100 3,200 3,300 3,400 3,500 3,600 3,700 3,800 3,900
293 308 322 336 350 364 376 389 401 413 424 435 445 455 465 475 485 495 506 516 526 536 548 559
437 458 478 495 512 529 546 563 580 597 614 630 646 662 677 693 709 725 741 757 773 790 808 826
548 574 599 620 642 663 684 706 727 749 770 790 809 829 849 868 888 908 928 947 967 988 1,011 1,033
618 647 675 699 723 747 771 795 819 843 867 889 911 934 956 978 1,001 1,023 1,045 1,067 1,090 1,113 1,139 1,164
674 706 736 763 789 815 841 868 894 920 946 970 994 1,019 1,043 1,067 1,092 1,116 1,140 1,164 1,189 1,215 1,243 1,270
717 755 788 816 844 872 900 928 956 984 1,012 1,038 1,064 1,090 1,116 1,142 1,168 1,194 1,220 1,246 1,272 1,299 1,329 1,359
4,000 4,100 4,200 4,300 4,400 4,500 4,600 4,700 4,800 4,900 5,000 5,100 5,200 5,300 5,400 5,500 5,600 5,700 5,800 5,900 6,000 6,100 6,200 6,300
571 580 592 603 615 626 636 647 657 667 676 686 695 705 714 724 733 743 753 762 772 781 791 800
844 862 880 898 916 933 949 964 980 995 1,010 1,025 1,039 1,054 1,069 1,083 1,098 1,113 1,127 1,142 1,157 1,171 1,186 1,198
1,056 1,078 1,101 1,123 1,146 1,161 1,181 1,200 1,220 1,239 1,257 1,275 1,294 1,312 1,330 1,348 1,367 1,385 1,403 1,421 1,440 1,458 1,476 1,498
1,190 1,215 1,240 1,266 1,291 1,316 1,338 1,360 1,381 1,403 1,424 1,444 1,465 1,486 1,506 1,527 1,548 1,568 1,589 1,610 1,630 1,651 1,672 1,690
1,298 1,326 1,353 1,381 1,409 1,435 1,459 1,483 1,507 1,531 1,554 1,576 1,599 1,621 1,644 1,666 1,689 1,712 1,734 1,757 1,779 1,802 1,824 1,844
1,388 1,418 1,448 1,477 1,507 1,535 1,561 1,586 1,612 1,637 1,661 1,685 1,709 1,733 1,757 1,781 1,805 1,829 1,853 1,877 1,901 1,926 1,950 1,970
6,400 6,500 6,600 6,700 6,800 6,900 7,000 7,100 7,200 7,300 7,400 7,500 7,600 7,700 7,800 7,900 8,000 8,100 8,200 8,300 8,400 8,500 8,600 8,700
808 816 823 830 837 844 851 858 865 872 879 885 891 896 901 907 912 917 922 928 933 938 944 949
1,209 1,219 1,230 1,240 1,251 1,261 1,272 1,282 1,293 1,303 1,313 1,324 1,333 1,342 1,350 1,359 1,368 1,377 1,386 1,395 1,404 1,413 1,421 1,430
1,511 1,524 1,538 1,551 1,564 1,577 1,591 1,604 1,617 1,630 1,644 1,657 1,668 1,679 1,691 1,702 1,713 1,724 1,736 1,747 1,758 1,769 1,780 1,792
1,705 1,720 1,735 1,750 1,764 1,779 1,794 1,809 1,824 1,839 1,854 1,869 1,881 1,893 1,905 1,917 1,929 1,941 1,953 1,965 1,977 1,989 2,002 2,014
1,860 1,876 1,893 1,909 1,925 1,942 1,958 1,975 1,991 2,007 2,024 2,040 2,053 2,066 2,079 2,093 2,106 2,119 2,133 2,146 2,159 2,173 2,186 2,199
1,988 2,005 2,023 2,040 2,058 2,075 2,093 2,110 2,127 2,145 2,162 2,179 2,194 2,208 2,223 2,238 2,252 2,267 2,281 2,296 2,311 2,325 2,340 2,354
8,800 8,900 9,000 9,100 9,200 9,300 9,400 9,500 9,600 9,700 9,800 9,900 10,000 10,100 10,200 10,300 10,400 10,500 10,600 10,700 10,800 10,900 11,000 11,100
954 958 962 966 971 975 979 983 988 992 996 1,000 1,005 1,009 1,014 1,018 1,022 1,027 1,032 1,036 1,040 1,044 1,049 1,053
1,437 1,444 1,450 1,457 1,463 1,470 1,476 1,483 1,489 1,496 1,502 1,508 1,515 1,521 1,523 1,535 1,541 1,548 1,554 1,561 1,567 1,573 1,580 1,587
1,800 1,809 1,817 1,825 1,833 1,842 1,850 1,858 1,866 1,874 1,883 1,891 1,899 1,907 1,916 1,924 1,932 1,940 1,948 1,956 1,965 1,973 1,981 1,989
2,024 2,033 2,042 2,052 2,061 2,070 2,079 2,089 2,098 2,107 2,117 2,126 2,165 2,174 2,183 2,193 2,202 2,212 2,221 2,230 2,240 2,249 2,258 2,268
2,210 2,220 2,230 2,241 2,251 2,261 2,271 2,281 2,291 2,301 2,311 2,321 2,331 2,341 2,352 2,362 2,372 2,382 2,392 2,402 2,412 2,422 2,432 2,443
2,366 2,376 2,387 2,398 2,408 2,419 2,430 2,440 2,451 2,461 2,472 2,483 2,493 2,504 2,515 2,525 2,536 2,546 2,557 2,567 2,578 2,589 2,599 2,610
11,200 11,300 11,400 11,500 11,600 11,700 11,800 11,900 12,000 12,100 12,200 12,300 12,400 12,500 12,600 12,700 12,800 12,900 13,000 13,100 13,200 13,300 13,400 13,500
1,058 1,062 1,066 1,070 1,075 1,079 1,084 1,088 1,093 1,097 1,102 1,106 1,110 1,114 1,119 1,123 1,128 1,132 1,137 1,141 1,146 1,150 1,154 1,158
1,593 1,600 1,606 1,613 1,619 1,626 1,633 1,639 1,646 1,653 1,659 1,666 1,672 1,679 1,685 1,692 1,699 1,705 1,712 1,719 1,725 1,732 1,738 1,745
1,997 2,005 2,013 2,021 2,029 2,037 2,046 2,054 2,062 2,070 2,078 2,086 2,094 2,102 2,110 2,118 2,127 2,135 2,143 2,151 2,159 2,167 2,175 2,183
2,277 2,286 2,295 2,305 2,314 2,323 2,333 2,342 2,351 2,361 2,370 2,379 2,388 2,398 2,407 2,416 2,426 2,435 2,444 2,454 2,463 2,472 2,481 2,491
2,453 2,463 2,473 2,483 2,493 2,503 2,513 2,523 2,533 2,544 2,554 2,564 2,574 2,584 2,594 2,604 2,614 2,624 2,634 2,645 2,665 2,665 2,675 2,685
2,620 2,631 2,642 2,652 2,663 2,673 2,684 2,695 2,705 2,716 2,726 2,737 2,748 2,758 2,769 2,779 2,790 2,801 2,811 2,822 2,832 2,843 2,854 2,864
13,600 13,700 13,800 13,900 14,000 14,100 14,200 14,300 14,400 14,500 14,600 14,700 14,800 14,900 15,000
1,163 1,167 1,172 1,176 1,181 1,185 1,190 1,194 1,198 1,202 1,207 1,211 1,216 1,220 1,225
1,751 1,758 1,765 1,771 1,778 1,785 1,791 1,798 1,804 1,811 1,817 1,824 1,831 1,837 1,844
2,191 2,199 2,208 2,216 2,224 2,232 2,240 2,248 2,256 2,264 2,272 2,280 2,289 2,297 2,305
2,500 2,509 2,519 2,528 2,537 2,547 2,556 2,565 2,574 2,584 2,593 2,602 2,612 2,621 2,630
2,695 2,705 2,715 2,725 2,735 2,746 2,756 2,766 2,776 2,786 2,796 2,806 2,816 2,826 2,836
2,875 2,885 2,896 2,907 2,917 2,928 2,938 2,949 2,960 2,970 2,981 2,991 3,002 3,013 3,023
4. Supreme Court of Kentucky. 5. 6. J.N.R. and J.S.R., Appellants, 7. 8. v. 9. 10. Honorable Joseph O'REILLY, Judge, Jefferson Family Court; 11. in Interest, Appellees. 12. 13. No. 2007SC000175MR. 14. 15. April 24, 2008. 16. 17. Rehearing Denied Oct. 23, 2008. 18.
and J.G.R., Real Party
19. Background: Alleged father filed a petition for custody and support that alleged 20. he was the biological father of child, and mother moved to dismiss the petition 21. based on lack of standing. The Circuit Court, Jefferson County, refused to dismiss 22. the petition. Mother sought a writ of prohibition. The Court of Appeals denied the 23. writ. Mother appealed. 24. 25. Holding: The Supreme Court, Minton, J., held that family court lacked subject 26. matter jurisdiction to hear alleged father's petition to adjudicate paternity of 27. child under the Uniform Act on Paternity; overruling Montgomery v. McCracken, 802 28. S.W.2d 943. 29. 30. 31. Reversed and remanded. 32. 33. 34. 35. Cunningham, J., filed an opinion concurring in the result only. 36. 37. 38. 39. Scott, J., filed an opinion concurring in the result only in which Cunningham, 40. J., joined. 41. 42. 43. 44. Abramason, J., filed a dissenting opinion in which Schroder, J., joined. 45. 46. 47. 48. Noble, J., filed a dissenting opinion. 49. 50. West Headnotes 51. 52. [1] Prohibition 314 k 3(1) 53. 54. 55. 314 Prohibition 56. 57. 314I Nature and Grounds 58.
59. 314k3 Existence and Adequacy of Other Remedies 60. 61. 314k3(1) k. In general. Most Cited Cases 62. 63. (Formerly 314k3(2)) 64. 65. Prohibition 314 k 10(1) 66. 67. 314 Prohibition 68. 69. 314I Nature and Grounds 70. 71. 314k8 Grounds for Relief 72. 73. 314k10 Want or Excess of Jurisdiction 74. 75. 314k10(1) k. In general. Most Cited Cases 76. 77. (Formerly 314k3(2)) 78. 79. A court vested with supervisory control should grant a writ of prohibition when 80. the lower court is acting outside its jurisdiction and there is no remedy through 81. an application to an intermediate court. (Per Minton, J., with one judge 82. concurring and two judges concurring in the result). 83. 84. [2] Children Out-Of-Wedlock 76H k 36 85. 86. -Of-Wedlock76H Children Out-Of-Wedlock 87. 88. 76HV Paternity Proceedings 89. 90. 76Hk36 k. Jurisdiction. Most Cited Cases 91. 92. Family court lacked subject matter jurisdiction to hear alleged father's 93. petition to adjudicate paternity of child, who was born to mother during a valid 94. marriage to husband, under the Uniform Act on Paternity; child was not born out of 95. wedlock, as there was no evidence that mother and husband's marital relationship 96. ceased ten months before child's birth; overruling Montgomery v. McCracken, 802 97. S.W.2d 943. (Per Minton, J., with one judge concurring and two judges concurring 98. in the result). KRS 406.011, 406.021.
99. 100. [3] Courts 106 k 4 101. 102. 106 Courts 103. 104. 106I Nature, Extent, and Exercise of Jurisdiction in General 105. 106. 106k3 Jurisdiction of Cause of Action 107. 108. 106k4 k. In general. Most Cited Cases 109. 110. "Subject-matter jurisdiction" is defined as jurisdiction over the nature of the 111. case and the type of relief sought, the extent to which a court can rule on the 112. conduct of persons or the status of things. (Per Minton, J., with one judge 113. concurring and two judges concurring in the result). 114. 115. [4] Children Out-Of-Wedlock 76H k 36 116. 117. -Of-Wedlock76H Children Out-Of-Wedlock 118. 119. 76HV Paternity Proceedings 120. 121. 76Hk36 k. Jurisdiction. Most Cited Cases 122. 123. Family court lacked subject matter jurisdiction to hear alleged father's 124. petition to adjudicate paternity of child, who was born to mother during a valid 125. marriage to husband, under statute providing that a court should determine custody 126. in the child's best interests and that consideration should be given to "each 127. parent"; statute was in chapter governing the dissolution of marriages. (Per 128. Minton, J., with one judge concurring and two judges concurring in the result). 129. KRS 403.270. 130. 131. *587 Charles E. Ricketts, Jr., Ricketts & Platt, PLLC, Louis I. Waterman, Fore, 132. Miller & Schwartz, Louisville, KY, Counsel for Appellants. 133. 134. *588 Honorable Joseph W. O'Reilly, Jefferson Family Court, Division 7, Louisville, 135. KY, Counsel for Appellee, Joseph W. O'Reilly. 136.
137. Troy D. DeMuth, John H. Helmers, Jr., Helmers, DeMuth & Walton, PLC, Louisville, 138. KY, Counsel for Appellee, J.G.R., Real Party in Interest. 139. 140. 141. Opinion of the Court by Justice MINTON. 142. 143. The Court of Appeals denied relief to a wife and her husband who petitioned to 144. prohibit the family court from adjudicating the paternity of a man who claimed to 145. be the biological father of a baby born to the wife. On appeal, the principal 146. issue is whether Kentucky's courts have jurisdiction to decide a man's claim of 147. paternity of a child born to a woman who, at the time of the child's birth, was 148. married to another man. We hold that Kentucky's paternity statutes do not grant 149. subject-matter jurisdiction to our courts to determine paternity claims where, as 150. here, there is no evidence or allegation that the marital relationship ceased ten 151. months before the child's birth. Therefore, we conclude that the family court 152. was attempting to proceed without jurisdiction and that the Court of Appeals erred 153. when it failed to grant the writ of prohibition. 154. 155. I. FACTS. 156. 157. J.G.R. filed a Petition for Custody and Support in the family court, alleging 158. that DNA tests confirmed him to be the biological father of J.A.R (Child), a 159. three-month-old baby boy, who lived with his mother, J.N.R. (Wife). 160. 161. Wife moved to dismiss the petition, arguing that J.G.R. lacked standing to 162. bring it and that the family court had no jurisdiction to determine (1) custody of 163. Child because J.G.R. had not been lawfully adjudicated to be his father and (2) 164. paternity of Child because Child was not born out of wedlock since Wife was 165. married to J.S.R. (Husband) when Child was born and at the time the petition was 166. filed. Wife further asserted the continued vitality of the legal presumption 167. that a child born to a married woman is presumed to be the child of her husband. 168. She argued that the presumption could not be rebutted by "a stranger to the 169. marriage." The family court refused to dismiss J.G.R.'s petition. 170. 171. 172. Wife and Husband then sought a writ from the Court of Appeals to prohibit the 173. family court from proceeding on J.G.R.'s claims.FN1 The Court of Appeals denied 174. the writ, holding that Wife and Husband failed to show irreparable injury and lack 175. of adequate remedy by appeal. The Court of Appeals further stated that "the only
176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215.
decision made by the [family] court pertaining to J.G.R.' s petition is that it will go forward on the paternity docket" and noted the family court had not made any rulings adjudicating any claims. FN1. Husband and Wife had also requested a writ of prohibition forbidding the family court from ordering mediation regarding holiday visitation with Child. The Court of Appeals granted this request for relief, and the Court of Appeals' decision in regard to court-ordered mediation concerning holiday visitation is not a subject of this appeal. II. ANALYSIS. A. Court of Appeals Applied Wrong Standard to Writ of Prohibition Issue. [1] The Court of Appeals denied the writ of prohibition based upon Wife and Husband's failure to show irreparable injury and lack of adequate remedy by appeal. If the Wife and Husband had alleged only that the family court was acting erroneously within its jurisdiction, a showing of irreparable injury and lack of adequate remedy by appeal would have been required for the writ to issue. FN2 But recent case law has made clear that a showing of irreparable injury and lack of adequate *589 remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction.FN3 A court vested with supervisory control should grant a writ of prohibition when the lower court is acting outside its jurisdiction and "there is no remedy through an application to an intermediate court." Despite Wife and Husband's arguments that the family court lacked jurisdiction to hear the case, the Court of Appeals denied the writ on the erroneous grounds of Wife and Husband's failure to show irreparable injury and lack of adequate remedy by appeal. The Court of Appeals failed to analyze whether the family court had jurisdiction to hear and decide J.G.R.'s petition. FN2. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). FN3. Id. ("A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.")
216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255.
B. Family Court Lacked SubjectMatter Jurisdiction to Hear Case. [2][3] Since personal jurisdiction is not at issue, we focus on whether the family court had subject-matter jurisdiction over this case. Subject-matter jurisdiction is defined as "[j]urisdiction over the nature of the case and the type of relief sought[,] the extent to which a court can rule on the conduct of persons or the status of things." FN4 From the outset, Wife and Husband have disputed the family court's subject-matter jurisdiction to accept a petition in which the alleged biological father of a child, born to a woman who is married to another man, seeks to establish paternity, custody, support, and visitation of the child. FN4. BLACK'S LAW DICTIONARY (8th ed.2004). We must look to our statutes to see whether our trial courts have been granted subject-matter jurisdiction over a case like this one. We do not explore whether our statutes conferring subject-matter jurisdiction effectuate sound public policy, reflect the modern realities of DNA testing, or recognize the disappearance of ancient legal disabilities associated with being born out of wedlock. And we do not address the constitutionality of the statutes as written. Although the parties have debated whether an unmarried biological father has due process or equal protection rights to seek the relief J.G.R. seeks here, J.G.R. has not argued the unconstitutionality of the paternity statutes as written nor served Kentucky's Attorney General to challenge the constitutionality of any statute.FN5 So we are left to examine the words of our statutes to see whether the family *590 court had jurisdiction to hear and adjudicate J.N.R.'s paternity petition. FN5. KRS 418.075 states, in pertinent part, that: When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. (1) In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney
256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. as 277. 278. 279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294.
General of the state shall also be served with a copy of the petition and be entitled to be heard. (2) In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal appellate courts in any forum which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant's brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect. See also Kentucky Rules of Civil Procedure (CR) 24.03 ("When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General."). C. No SubjectMatter Jurisdiction Over This Case Under KRS Chapter 406. Subject-matter jurisdiction over paternity proceedings for all of our trial courts is governed by Kentucky Revised Statutes (KRS) Chapter 406, also known the Uniform Act on Paternity.FN6 KRS 406.051(1) provides the district court with subject-matter jurisdiction over "an action brought under this chapter" to establish support for "children born out of wedlock." KRS 406.051(2) states that the circuit court and district court share concurrent jurisdiction over custody and visitation issues "in cases where paternity is established as set forth in this chapter." And KRS 23A.100(2)(b) confers the general jurisdiction of the circuit court on a family court division of the circuit court for proceedings under the Uniform Act on Paternity. FN6. KRS 406.170 ("This chapter may be cited as the Uniform Act on Paternity."). Despite the fact that KRS 406.021 states that a paternity complaint may be filed by a "putative father," FN7 a term not defined in KRS Chapter 406, the instant case is not an action "under this chapter"; and KRS 406.021 does not allow for paternity to be established because KRS Chapter 406 limits its applicability to cases of children "born out of wedlock" and establishes a definition of "born out of wedlock" that the facts of this case do not satisfy.
295. KRS 406.180 (governing applicability of Chapter 406) states, in pertinent part, 296. that "[t]his chapter applies to all cases of birth out of wedlock: (1)[w]here 297. birth occurs within this state[.]" And KRS 406.011 defines who is included and 298. who is not included in the term "born out of wedlock:" 299. 300. FN7. An earlier version of KRS 406.021 did not mention any type of father as 301. a potential candidate for filing a paternity complaint despite expressly 302. providing that the mother, child, or state agency providing support for the 303. child could file such a paternity complaint. Under this earlier version, 304. we stated that "[t]he statute does not afford the father the right to come 305. into court to have his paternity determined" in Sweat v. Turner, 547 S.W.2d 306. 435, 436 (Ky.1976). But Sweat recognized the right of the biological 307. father to seek custody of his child (born to an unmarried mother who had 308. since passed away) without a previous judicial determination of paternity. 309. Id. at 437. In Cummins v. Cox, 799 S.W.2d 5 (Ky.1990), while stating that 310. "[t]here is no statutory means in this state by which an illegitimate father 311. can legitimatize a child born out of wedlock without the direct and active 312. cooperation of the mother", id. at 6-7, we noted in a footnote that KRS 313. 406.021 had been amended in 1990 to allow a putative father to file a 314. paternity complaint. Id. at 7, n. 1. Cummins recognized that the 315. biological father of a child born to an unmarried mother had standing to sue 316. for the child's wrongful death and could inherit from this child born out of 317. wedlock. Id. at 7. The children at issue in Sweat and Cummins were born 318. to mothers who were unmarried at the time of conception and birth, and we 319. did not consider in either case the rights of an alleged biological father 320. to file a paternity complaint concerning a child born to a mother married to 321. another man. 322. 323. A child born during lawful wedlock, or within ten (10) months thereafter, is 324. presumed to be the child of the husband and wife. However, a child born out of 325. wedlock includes a child born to a married woman by a man other than her husband 326. where evidence shows that the marital relationship between the husband and wife 327. ceased ten (10) months prior to the birth of the child. 328. 329. We note that the General Assembly chose to enact a narrow definition of an 330. out-of-wedlock birth that differs distinctively from the proposed definition of an 331. *591 out-of-wedlock birth proposed by the drafters in the 1960 Uniform Act on 332. Paternity. Section 1 of the Uniform Act on Paternity (1960) states that: "[a] 333. child born out of wedlock includes a child born to a married woman by a man other
334. than her husband." FN8 The official commentary to this section mentions 335. Kentucky's variation from the Uniform Act draft.FN9 336. 337. FN8. Unif. Act on Paternity s 1 (1960), ULA PATERNITY s 1 (2001 Main Volume, 338. 2007 Electronic Pocket Part Update). 339. 340. FN9. Id. 341. 342. By the plain language of Chapter 406, that chapter only applies to births out 343. of wedlock. And it defines births out of wedlock as including births to married 344. women where evidence shows that the husband and wife's "marital relationship" 345. ceased ten months before the child's birth.FN10 In the instant case, we have no 346. allegation that Wife and Husband's marital relationship had ceased ten months 347. before Child's birth. So Child does not meet the statutory definition of a child 348. born out of wedlock, and Chapter 406 does not grant the family court 349. subject-matter jurisdiction or give J.G.R. standing to seek a paternity 350. determination under Chapter 406.FN11 351. 352. FN10. KRS 406.011. 353. 354. FN11. We note that our predecessor-court recognized that "a biological 355. father of a child born out of wedlock would have the right of visitation 356. with his child" on constitutional grounds in Phillips v. Horlander, 535 357. S.W.2d 72, 74 (Ky.1975). But the child at issue there met KRS Chapter 358. 406's definition of a child born out of wedlock because his parents were 359. unmarried both at the time of the birth and at the time the court heard the 360. case. See id. at 73. Again, the child at issue in the instant case is 361. not a "child born out of wedlock" as defined by KRS Chapter 406. 362. 363. 364. We recognize that the Court of Appeals rejected an argument in Montgomery v. 365. McCrackenFN12 that "a child born to a married woman can be found to have been born 366. out of wedlock only if the spouses' marital relationship ended at least ten months 367. prior to the child's birth." FN13 But the holding in Montgomery depended in 368. large part upon the effect of a non-appealed judicial finding from an earlier 369. divorce proceeding to the effect that the woman's husband was not the father of 370. the child: 371.
372. FN12. 802 S.W.2d 943 (Ky.App.1990). 373. 374. FN13. Id. at 944. 375. 376. Here, although the spouses' marital relationship did not fall into the category 377. of having ceased ten months prior to the child's birth, it is uncontroverted 378. that the husband was found in an earlier circuit court proceeding to not be the 379. child's father. That finding is not before us on appeal. That being so, the 380. trial court certainly did not err by concluding that the presumption of 381. legitimacy had been overcome by evidence "so clear, distinct and convincing as 382. to remove the question from the realm of reasonable doubt." FN14 383. 384. FN14. Id. 385. 386. The Montgomery court then cited in support of this proposition two cases in 387. which the husband's paternity was successfully challenged despite the mother 388. having been married at the time of the child's birth.FN15 But, in both of the 389. cases cited, some evidence (albeit disputed) was presented that marital relations 390. ceased ten months before the child's birth-in fact, both cases involved the 391. separation of the spouses.FN16 392. 393. FN15. Id., citing Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky.1972); 394. Bartlett v. Com., ex rel. Calloway, 705 S.W.2d 470 (Ky.1986). 395. 396. FN16. See Simmons, 479 S.W.2d at 586 ("The wife contends and the husband 397. denies that they engaged in sexual relations during their separation[,]" 398. which occurred ten months before the child's birth); Bartlett, 705 S.W.2d 399. at 471 (conflicting testimony as to when spouses separated and whether they 400. engaged in sexual relations during their separation.). 401. 402. *592 The Montgomery court then stated that subject-matter jurisdiction to 403. determine paternity upon the mother's motion was proper because of the 404. overwhelming proof that the husband was not the father of the child: 405. 406. Since the child therefore by implication was found by the circuit court to have 407. been "born out of wedlock" to "a married woman by a man other than her husband," 408. the district court was clearly vested with subject matter jurisdiction to 409. determine paternity.FN17 410.
411. 412. 413. FN17. Montgomery, 802 S.W.2d at 944. 414. 415. To the extent that Montgomery v. McCracken and other Kentucky cases find 416. subject-matter jurisdiction to exist in any court of the Commonwealth over 417. paternity actions involving (1) a child born "to a married woman by a man other 418. than her husband" who cannot satisfy (2) the narrow definition embraced by the 419. General Assembly that a child born out wedlock includes one where the husband and 420. wife ceased marital relations ten months before the child's birth, Montgomery v. 421. McCracken and other authority to the contrary are overruled. 422. 423. Montgomery v. McCracken is inconsistent with the earlier holding in 424. Department of Economic Security v. Shanklin.FN18 In Shanklin, a state agency 425. sought to recoup support payments made for a child born eight months after her 426. mother's divorce from Shanklin. Shanklin filed a motion to dismiss the action, 427. stating that the action was time-barred, citing the then-existing statute of 428. limitations appearing in Chapter 406 for support of a child born out of wedlock. 429. The trial court granted Shanklin's motion. FN19 Our predecessor-court quoted the 430. presumption of legitimacy in KRS 406.011, as well as the language of KRS 406.180 431. -neither of which has been amended since ShanklinFN20-and then reversed, stating 432. that: 433. 434. FN18. 514 S.W.2d 682 (Ky.1974). 435. 436. FN19. Id. at 683. 437. 438. FN20. Id. at 683-84. 439. 440. The Uniform Act on Paternity was formulated in 1960. The Kentucky Legislature, 441. by a 1972 amendment, varied the language of the 1960 Uniform Act in two 442. instances: (1) In defining what was meant by the phrase "born out of wedlock" 443. by adopting the language of KRS 406.011, and (b) by substituting for a four-year 444. statute of limitations contained in the 1960 Uniform Act, the language of KRS 445. 406.031. [Omitted portion discusses how legislature tried to remedy uncertainty 446. in 1960 Uniform Act limitations provision through adoption of KRS 406.031.]
447. 448. We would be less than candid if we did not point out that the language used for 449. the clarification is surely no model of precision. According to KRS 406.011, a 450. child born during lawful wedlock or within ten months thereafter, is presumed to 451. be the child of the husband and wife. This is qualified by the provision that 452. a child born out of wedlock includes a child born to a married woman by a man 453. other than her husband where evidence shows that the marital relationship 454. between the husband and wife ceased ten months prior to the birth of the child. 455. 456. Under the Uniform Reciprocal Enforcement of Support Act,[FN21] the issue of 457. paternity may be raised by the defendant unless it has been previously 458. judicially determined. It is our conclusion that, despite the confusing 459. language, it *593 was not the intent of the legislature to bar such action 460. within three years of the date of birth of a child born with the presumption of 461. legitimacy.FN22 462. 463. 464. FN21. The Uniform Reciprocal Enforcement of Support Act (URESA) was then and 465. is now found in KRS Chapter 407. 466. 467. FN22. Id. at 684-85. 468. 469. In other words, the Shanklin court found Chapter 406 inapplicable to that case 470. because the child at issue was not a child "born out of wedlock" as defined by KRS 471. 406.011. Since the child was "born with the presumption of legitimacy," the 472. father was not barred from disputing paternity by the limitations provision in 473. Chapter 406; but the father could still dispute paternity because Chapter 407 474. (URESA) allowed him to challenge paternity so long as it had not been previously 475. established in court. Likewise, in the instant case, the child was not born out 476. of wedlock, as defined by Chapter 406, so Chapter 406 does not apply and does not 477. confer subject-matter jurisdiction on the family court or standing on J.G.R. to 478. have paternity determined and custody/visitation matters decided. 479. 480. We recognize that the General Assembly may have chosen to bar paternity suits 481. where there is no allegation of a cessation of marital relations for the ten-month 482. period in part because of difficulties in accurately determining the biological 483. father of a child at the time these statutes were enacted or amended to their 484. present form. In view of modern DNA testing, the legislature might reasonably 485. choose to amend the statutes again to recognize an alleged biological father's
486. right to have paternity determined in court of a child born to a mother married to 487. another man even where (as here) there is no evidence or allegation that marital 488. relations ceased ten months before the child's birth. FN23 But the choice is a 489. policy decision that belongs to the General Assembly. And since the General 490. Assembly has not yet chosen to amend KRS Chapter 406 in such a manner, we are 491. without authority to amend the law for them. 492. 493. FN23. J.G.R.'s counsel orally argued that there are "dueling presumptions" 494. in KRS Chapter 406: the presumption in KRS 406.011 versus the presumption 495. in KRS 406.111 (regarding an expert's conclusion as to paternity based on 496. genetic testing). But the applicability of Chapter 406 is limited to cases 497. in which children are born "out of wedlock." KRS Chapter 406.011 expressly 498. defines when a child born to a married woman is included as a child born 499. "out of wedlock"; KRS 406.111 does not expressly define the term "out of 500. wedlock" and, thus, does not impact the applicability of Chapter 406. 501. Rather, the child would have to be determined to be born "out of wedlock" 502. under KRS 406.011 for the court to have the authority to order genetic 503. testing under KRS 406.081 and to admit such test results in evidence under 504. KRS 406.091(3) before applying the rebuttable presumption concerning expert 505. conclusions on paternity based on genetic testing as found in KRS 406.111. 506. 507. 508. It is the absence of evidence or even allegations that the marital relationship 509. between Wife and Husband ceased ten months before Child's birth that bars J.G.R.'s 510. paternity action, not J.G.R.'s status as a "stranger to the marriage." We do not 511. reach the Wife and Husband's argument that only parties to the marriage can 512. challenge the presumption of legitimacy under KRS 406.011. We do note that the 513. plain language of KRS 406.011 does not say who may challenge the presumption of 514. legitimacy but only says under what circumstances a child born to a married woman 515. can be considered a child born out of wedlock. In fact, if the required 516. threshold is met, showing that marital relations ceased ten months before the 517. birth of the child, it would seem possible that the alleged biological father may 518. file a paternity complaint because KRS 406.021 specifically states that such a 519. complaint may be filed by the "putative father." The term "putative father" is 520. not defined by the statute, but it is defined by BLACK'S LAW *594 DICTIONARY (8th 521. ed.2004) as "[t]he alleged biological father of a child born out of wedlock."
522. 523. D. No Subject Matter Jurisdiction Under KRS 403.270. 524. 525. [4] Not relying solely on Chapter 406, J.G.R. also contends that as a 526. biological parent, he has standing to seek custody under KRS 403.270. KRS 403.270 527. (2) provides that a court shall determine custody in the child's best interests 528. and that "equal consideration shall be given to each parent." But nowhere in KRS 529. Chapter 403 is the word "parent" defined.FN24 530. 531. FN24. See also Boone v. Ballinger, 228 S.W.3d 1, 12, n. 7 (Ky.App.2007) 532. ("Unlike some states, Kentucky does not have statutory definitions that 533. describe 'legal' fatherhood. The Termination of Parental Rights chapter, 534. KRS Chapter 625, simply refers to 'biological parents' and the 'putative 535. father.' The UAP, KRS Chapter 406, refers to 'father' and 'alleged 536. father,' neither of which is defined. The Parent and Child chapter, KRS 537. Chapter 405, refers to 'father' without definition. KRS Chapter 403, 538. regarding Dissolution of Marriage-Child Custody, contains no definition of 539. 'father.' Case law supports the conclusion that in cases such as this a 540. child's legal father is the husband of the marriage into which the child was 541. born unless a different paternity has been formally adjudicated.") (Boone 542. addressed the question of whether, upon dissolution of a marriage, the wife 543. and the biological father of two children born during her marriage to her 544. husband were equitably estopped from asserting that the husband was not the 545. legal father of these two children.). 546. 547. We note that one other Kentucky family law-related statute (KRS 405.405) 548. expressly adopts the definitions provided in KRS 205.710 (applicable to 549. child support recovery actions in Public Assistance and Medicaid 550. Assistance actions) as applicable to KRS 405.430-KRS 405.530 551. (administrative process for child support), which includes the following 552. definition of parent: 553. 554. (14) "Parent" means a biological or adoptive mother or father of a child 555. born in wedlock or a father of a child born out of wedlock if paternity 556. has been established in a judicial proceeding or in any manner consistent 557. with the laws of this or any other state, whose child is entitled to 558. support, pursuant to court order, statute, or administrative 559. determination[.] 560.
561. 562. 563. 564. 565. 566. 567. 568. 569. 570. 571. 572. 573. 574. 575. 576. 577. 578. 579. and 580. 581. 582. 583. 584. 585. 586. 587. 588. 589. 590. 591. 592. 593. 594. 595. 596. 597. 598. 599.
However, KRS Chapter 403 (governing custody) does not expressly adopt this or any other specific definition of parent. Furthermore, KRS 403.270 does not govern whether a court has subject-matter jurisdiction over custody proceedings in this type of case or whether an alleged biological father has standing to pursue custody or visitation in this situation. KRS Chapter 403 is entitled "Dissolution of Marriage-Child Custody." The statutes in Chapter 403 generally give courts of general jurisdiction the power to grant dissolutions and annulments of marriages and decrees of legal separation-in general, the power to terminate marriages. FN25 As part of its jurisdiction to dissolve marriages, the family court may also divide property, order spousal maintenance, and order child support for any children born of the marriage.FN26 Also, when granting a divorce, the trial court must determine the custody of children born to the marriage in accordance with the standards enunciated in KRS 403.270. But KRS 403.270 does not govern whether a trial court has subject-matter jurisdiction to determine custody of children in cases not involving a dissolution of marriage. FN25. See, e.g., KRS 403.010, KRS 403.120, and KRS 403.140. KRS 403.041 KRS 403.042 also grant the power to annul divorces and legal separations. FN26. See generally KRS 403.160 to KRS 403.250. Where paternity has been established under Chapter 406, subject-matter jurisdiction regarding custody and visitation issues is governed by KRS 406.051, which states that: (1) The District Court has jurisdiction of an action brought under this *595 chapter and all remedies for the enforcement of judgments for expenses of pregnancy and confinement for a wife or for education, necessary support, or funeral expenses for children born out of wedlock. An appeal may be had to the Circuit Court if prosecuted within sixty (60) days from the date of judgment. The court has continuing jurisdiction to modify or revoke a judgment for future education. All remedies under the uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter. (2) The District Court may exercise jurisdiction, concurrent with that of the Circuit Court, to determine matters of child custody and visitation in cases where paternity is established as set forth in this chapter. The District
600. Court, in making these determinations, shall utilize the provisions of KRS 601. Chapter 403 relating to child custody and visitation. The District Court may 602. decline jurisdiction if it finds the circumstances of any case require a level 603. of proceedings more appropriate to the Circuit Court. 604. 605. Although KRS 406.051 states that the same standards provided in Chapter 403 for 606. divorce cases shall govern custody determinations conducted in conjunction with 607. paternity proceedings, KRS 406.051 and Chapter 406 as a whole govern 608. subject-matter jurisdiction in this type of case, not KRS 403.270 or any other 609. provision of Chapter 403. So KRS 406.051(2) grants the district court and 610. circuit court concurrent jurisdiction (and by implication, family court, which 611. combines district and circuit court jurisdiction) over custody and visitation 612. where paternity is determined under Chapter 406. But Chapter 406's applicability 613. is expressly limited to cases of children "born out of wedlock," and Child does 614. not meet the General Assembly's narrow definition of a child born out of wedlock. 615. FN27 616. 617. FN27. But see Denbow v. Harris, 583 A.2d 205 (Me.1990), where the Supreme 618. Judicial Court of Maine (Maine's highest court) held that a mother could 619. maintain a paternity action against the alleged biological father despite 620. the fact that the child was conceived during her marriage to another man and 621. despite the Maine legislature's omission of the definition of a child born 622. out of wedlock as found in the Uniform Act on Paternity (1960) while 623. otherwise following this Uniform Act. Id. at 206-07. The Maine court 624. rejected an argument that "the Maine Legislature intended to limit paternity 625. actions to instances to where children were born to an unmarried woman," 626. instead deciding that the legislature had simply left out "definitional 627. surplusage" since an "out of wedlock" birth was commonly defined as "with 628. the natural parents not married to each other." Id. at 207, citing 629. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 2592 (1986). We 630. note, however, that although Maine's legislature had omitted the 1960 631. Uniform Act draft definition of "out of wedlock," Maine's legislature did 632. not substitute another narrower definition of "out of wedlock" as Kentucky's 633. legislature did in KRS 406.011. 634. 635. From the plain language of our statutes, we hold that J.G.R. lacks standing and 636. the family court lacks jurisdiction to determine paternity, custody, and
637. visitation under the circumstances presented in this case. 638. 639. III. CONCLUSION. 640. 641. For the foregoing reasons, we reverse the decision of the Court of Appeals and 642. remand the case to the Court of Appeals for issuance of a writ of prohibition 643. consistent with this opinion. 644. 645. All sitting. LAMBERT, C.J., concurs. CUNNINGHAM, J., concurs in result only by 646. separate opinion in which SCOTT, J., joins. SCOTT, J., concurs in result only by 647. separate opinion in which *596 CUNNINGHAM, J., joins. ABRAMSON, J., dissents by 648. separate opinion in which SCHRODER, J., joins. NOBLE, J., dissents by separate 649. opinion. 650. 651. Opinion by Justice CUNNINGHAM Concurring in Result Only. 652. 653. I concur with Justice Scott's opinion in which he concurs in result only. I 654. am also certain that Justice Scott joins me in commending the very well-written 655. opinion of Justice Minton writing on behalf of the majority. Nor do I wish to 656. disparage in any way the very ably stated dissents of Justices Abramson and Noble, 657. whose opposing viewpoints I hold in high respect. 658. 659. Unlike the reasoning of the majority, Justice Scott and I are both of the 660. opinion that only parties to the marriage can challenge the presumption of 661. legitimacy under KRS 406.011. We hold this view as being inherent with the 662. long-standing legal status of marriage. 663. 664. This case is about something much larger than statutory interpretation. This 665. case is squarely about the legal status of marriage in the Commonwealth of 666. Kentucky today. 667. 668. Here, a married couple wishes to be left alone from the allegations of an 669. interloper who wishes to assert a claim of fatherhood to a child born during the 670. couple's marriage-a marriage which remains intact at this writing. 671. 672. While the legal status of marriage in this early 21st century appears to be on 673. life support, it is not dead. 674.
675. 676. 677. 678. 679. 680. 681. 682. 683. 684. 685. 686. 687. 688. 689. 690. 691. 692. 693. 694. 695. 696. 697. 698. 699. 700. 701. 702. 703. 704. 705. 706. 707. 708. 709. 710. 711. 712. 713. 714.
As I consider a claim made by an interloper to a marriage, I must pause to consider what rights, protections, benefits, and privileges the matrimonial covenant afford to those joined together in a relationship sanctioned by law. Beginning with the well-meaning legislation of no-fault divorce in 1972, the law has diluted the legal status of marriage. With the adoption of no-fault divorce, this grand historical contract has lost its consideration. Further, in Hoye v. Hoye, 824 S.W.2d 422 (Ky.1992), the Court eliminated the tort of intentional interference with the marital relation, also known as alienation of affections. This was done with a bow to the modernistic notions of morality. The Court reasoned that the innocent spouse was barred by the infidelity of the errant spouse from obtaining redress. With the abolition of the tort of alienation of affections, the innocent victim of betrayal has been left without recourse against the interloping adulterer. But not for the decision of the majority here today, a married couple, bound together in one accord, would be left without any ability to defend their marital relationship from the attacks of a third party interloper. FN1 In Hoye, we struck the lance from the hands of the offended partner to the marriage. Shall we now, as the dissent would have us do, divest the hapless of their shield as well? FN1. Were we to decide this case differently, any married couple with children would be subject to such a claim. Standing could not be limited only to those who possess DNA-test results before filing. Further, it has been suggested that frivolous claims could be dealt with through CR 11 sanctions. The interloper, in order to defend an allegation that the claim was frivolous, would be allowed to present evidence of the extramarital affair and his basis for making the claim. In short, we would be back to the very evidence we did away with when no-fault divorce was adopted. Exactly what does the term "marriage" mean today in Kentucky? Incredibly, we are offered little, if any, guidance when we turn to statutory law. KRS 402.005 defines it as "the civil status, condition or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose *597 association is founded on the distinction of sex." This statute, enacted in 1998, was the result of the legislature's desire to outlaw marriage between members of the same sex. It was followed by a constitutional amendment adopting that public policy. While meeting that public policy purpose, it is otherwise totally without substance as far as defining marriage itself-except to say what it is not. The statutory scheme set out in
715. KRS Chapter 402 is of a similar vein. It proclaims who may perform a valid 716. marriage, and outlines the requirements for licensing. But license to do what? 717. To marry. But what is marriage? Alas, we have come full circle once again and 718. are left wanting for statutory light. 719. 720. What constitutes "civil status" as mentioned in the statutory definition of 721. marriage under KRS 402.005? What is a "condition or relation"? What are the 722. "duties legally incumbent" upon the parties? More importantly, what does "united 723. in law" mean? Where is the law defining those privileges, protections, and 724. rights afforded a couple married under the statutory scheme set out in KRS Chapter 725. 402? In short, this Court is cast upon a vast sea bereft of any statutory 726. mooring. 727. 728. Yet the making of a marriage is governed by lawful requirements that have a 729. sealing affect upon this act of becoming "united in law." KRS 402.050 states who 730. may solemnize the marriage. The term "solemnize" is defined as "to enter into (a 731. marriage, contract, etc.) by a formal act, usually before witnesses." See 732. BLACK'S LAW DICTIONARY (8th ed.2004). The statute states that marriage may be 733. solemnized by the following: "ministers of the gospel or priests; justices and 734. judges of the Court of Justice, county judges/executives, justices of the peace 735. and fiscal court commissioners as authorized by the Governor or county 736. judge/executive; and a religious society, if either party belongs to the 737. society." See KRS 402.050. Likewise, the statutory scheme sets out licensing 738. requirements that must be met. See KRS 402.080 to KRS 402.110. Clearly then, 739. legal formalities are required before the Commonwealth affords a couple the status 740. of being "united in law." 741. 742. Yet, there is not any statutory guidance as to what "united in law" post 743. ceremony means, nor is the definition of marriage expanded upon anywhere by 744. legislative directive. Thus, absent any meaningful statutory direction, it falls 745. upon the courts-in particular, this one-to determine what legal rights, 746. protections, and immunities this ancient legal rite includes. For over one 747. hundred years, this Court recognized that the marriage contract afforded either 748. party redress from an interloper who invaded and disrupted the affectionate bond 749. between the parties. Then, in one stroke of the pen, we abolished that right in 750. Hoye. Here, we hold the line. We should state boldly that an interloper cannot 751. simply ignore the existence of the marriage contract and assert a claim of 752. fatherhood to a child born within the confines of the marital relationship. I 753. conclude that the family court had no jurisdiction to hear the claim of a
754. "stranger to the marriage" over the objection of the contracting pair. 755. 756. The severely wounded institution of marriage in Kentucky surely protects the 757. parties from unwanted interlopers claiming parenthood of a child conceived and 758. born during their coverture. If not, then I am left to wonder if marriage has 759. any legal meaning at all. I believe that it does. 760. 761. We all agree that the overriding concern in this case is the welfare of the 762. child. When considering the integrity of marriage, as we do here, we are not 763. only dealing with this particular child, but with all children born to married 764. couples. Marriage is an institutional umbrella under whose shade the protection, 765. support, and *598 nurturing of children looms vital. This critical protection 766. extends to the children born of the marriage, if not of the bodies of the 767. marriage. 768. 769. In Hoye, part of the same reasoning for abolishing the tort of alienation of 770. affections also serves as a reason to deny an interloper standing to sue a married 771. couple for parental rights to a child born during the couple's marriage. Said 772. Justice Stephens, "Such suits invite abuse.... Not only is a defendant in these 773. suits victim to vindictive or purely mercenary motives of the plaintiff, but such 774. suits are likely to expose 'minor children of the marriage to one of their 775. parent's extramarital activities, and may even require the children to testify to 776. details of the family relationship in open court.' " 824 S.W.2d at 427. 777. 778. Just as this Court held in Hoye that it had the authority to abolish the cause 779. of action of alienation of affections absent statutory direction to the contrary, 780. I submit that in light of the absence of statutory guidance as to the rights and 781. protections of a duly married couple, this Court has full power to find compelling 782. reasons to likewise protect those critical elements of the marriage contract. 783. 784. This is not the first time this Court has been called upon to flesh out the 785. legal parameters of marriage. In 1973, two women applied to the Jefferson County 786. Court Clerk's office for a marriage license. They were denied and their 787. complaint ended up in this state's highest court. See Jones v. Hallahan, 501 788. S.W.2d 588 (Ky.App.1973). At that time, there was no statutory definition of 789. marriage-not even the woefully ambiguous one we have today. Commissioner Vance, 790. speaking for a unanimous Court, stated that Kentucky statutes did not include a 791. definition of marriage, and therefore it had to be defined according to "common
792. 793. 794. 795. 796. 797. 798. 799. 800. 801. 802. 803. 804. 805. 806. 807. 808. 809. 810. 811. 812. 813. 814. 815. 816. 817. 818. 819. 820. 821. 822. 823. 824. 825. 826. 827. 828. 829. 830. 831.
usage." 501 S.W.2d at 589. In other words, marriage was what this Court said it was. And this Court said that marriage had to be between a man and a woman-twenty-five years before the legislature followed with codification of that rule. Nine years before Hallahan, and without a statutory definition of marriage, the Court struck a significant blow for the protection of marriage in Board of Education of Harrodsburg v. Bentley, 383 S.W.2d 677 (Ky.1964). A sixteen-year-old student at Harrodsburg High School married and was promptly booted from school. She had violated a school board regulation requiring any student who married to withdraw from school, subject to being readmitted after one year with permission of the principal and under special conditions. This Court invalidated both the rule and the dismissal as being an arbitrary infringement upon the marriage contract. 383 S.W.2d at 680-81. In essence, it barred the interloping school board from "punishing" the young citizen for entering into a marriage covenant. Also, it is clear to me that the purpose of the legislative scheme set out in KRS Chapter 406 was a means to compel parents to take care of their children. Adjudication of paternity is simply an essential prerequisite to the enforcement of that obligation. It was never intended to be a separate proceeding for a putative father to pursue other goals. In his separate concurring opinion, Justice Scott ably points to the litany of cases in other states which have held this view. Granted most, if not all, of those opinions are rooted in much stronger statutory authority than we have here. But the dearth of statutory treatment of the issue in this state only emphasizes the need for this Court to step into the void and give meaning to "united in law." It is clear that in the absence of statutory treatment of the matter, we are acting within our authority *599 when we limit standing to bring claims for paternity under the circumstances before this Court. The United States Supreme Court has provided a strong salute to this proposition. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), the Supreme Court of the United States confronted a factual situation very similar to the one we have before us. The nation's highest court stated that the California statute, which created a "conclusive" presumption that a child born to a married woman living with her husband is a child of the marriage, did not violate the substantive due process rights of the biological father who sought to demonstrate paternity. More pertinent to the question at hand, Justice Scalia noted that at the time of the opinion, four states had barred standing to interlopers to the marriage by
832. judicial decisions rather than by statute. 491 U.S. at 126, 109 S.Ct. at 2343. 833. Since that decision, in the absence of statutes directly or indirectly granting or 834. limiting standing to dispute the presumption of legitimacy of children conceived 835. or born during wedlock, some state courts have held that various persons lack 836. standing to dispute the presumption of legitimacy of the children. Donald M. 837. Zupanec, Annotation, Who May Dispute Presumption of Legitimacy of Child Conceived 838. or Born During Wedlock, 90 A.L.R.3d 1032 (1979). 839. 840. There is certainly much logic in the excellent writing of the dissent of 841. Justice Abramson. But this very important case goes well beyond the 842. interpretations and nuances of existing writings of the legislature. By 843. diverting our attention from what rights and protections a married couple has in 844. this state, we turn the focus away from what, I believe, is the main issue. We 845. are selling the pasture to buy the horse. The dissent gives no heed to what is 846. at the center of this controversy-that is, the marriage contract to which the 847. Appellants are parties, and all the rights, privileges, protections, and 848. immunities attached to this long-standing legal arrangement. 849. 850. Furthermore, I respectfully and strenuously take issue with two points stated 851. by Justice Abramson. First, I reject the notion that a "marriage" ceased to 852. exist when a "third party entered the picture." To hold to this view would wreak 853. havoc on the stability of what is considered to be the most endearing social 854. contract of our civilization. Furthermore, Justice Abramson's dissent suggests 855. that, by our decision today, we are turning our backs upon a "biological truth" 856. and denying truth its rightful place in our deliberations. I strongly disagree. 857. 858. The truth is a child was born during a couple's marriage. The truth is a 859. third party claims parenthood of that child through an adulterous relationship 860. with the child's mother. The truth is the couple remains married and wishes to 861. raise the child born during their marriage-a child legally presumed to be the 862. husband's under KRS 406.011-without the interference of the interloper. This 863. presumption is not new or unique to this case; it is applied equally to children 864. born of marriages every day in the Commonwealth. After all, we have not reached 865. the point where we require DNA-paternity testing on all children born in the 866. Commonwealth. This is true because the legislature has adopted a public policy 867. in the law that presumes a child born during a marriage is of that marriage. 868. Further, this presumption is recognized as one of the strongest known to law. 869. See Bartlett v. Com. ex. rel. Calloway, 705 S.W.2d 470, 472 (Ky.1986). Clearly 870. then, the "truth" as to who the biological father may be-a most personal and
871. 872. 873. 874. 875. 876. 877. 878. 879. 880. 881. 882. 883. 884. on 885. 886. 887. 888. 889. 890. 891. 892. 893. 894. 895. 896. in 897. 898. 899. 900. 901. 902. 903. 904. 905. 906. 907. 908.
intimate matter-is neither our right nor our responsibility to proclaim in these circumstances. I recognize that to a large degree this writing seeks the ideal, and that the real *600 state of matrimony in Kentucky-a state whose divorce rate is higher than the national average-falls way below the pedestal upon which I place it. But I also believe we are better off as a people following those standards we hold aloft, rather than those which we trample under foot. The facts of this case have presented a most difficult dilemma for this Court. We are sharply divided on an emotionally charged question. It is vital to recognize that all of these divergent views are being expressed from minds and hearts with the best intentions. And I, for one, recognize that there is no simple answer to what we all hope is a unique situation. But how unique it is, or how common it may become, depends much on what we say and do here today. As long as marriage is the books, it must mean something. And what it means should be proclaimed by this Court in forceful terms, so that the people of Kentucky may circumscribe their behavior accordingly. We are in need of a bold declaration that the marriage circle, even one with an errant partner, will be invaded at one's own legal risk. It has been my sad discovery as a judge that in many of life's baffling and painful problems there are no sure solutions, only less disastrous choices. Therefore, it would seem to me that if one accepts the inequities of our decision-which the dissent predicts as real possibilities-they pale in comparison to the disastrous precedent we will be setting if that viewpoint holds. It seems to me that the "broader community" spoken of by Justice Abramson is best served our society by holding fast and strengthening the mooring lines of marriage. The institution of marriage, slowly eroding from modern day notions of morality and personal freedoms, has for centuries been the anchor of the family unit. It has been the rock in the shadow of which children are born, shaded, protected, and nurtured. If children are born during the marriage, absent any abuse or neglect, they should stay within that marriage for as long as both partners wish to remain married, and for as long as the married couple wishes to nurture them. They should stay within the shadow of the rock. Therefore, I join Justice Scott in concurring with the majority in its result only.
909. 910. 911. 912. 913. 914. 915. 916. 917. 918. 919. 920. 921. 922. 923. 924. 925. 926. 927. into 928. 929. 930. 931. 932. 933. 934. 935. 936. 937. 938. 939. 940. 941. to 942. 943. 944. 945.
Opinion by Justice SCOTT Concurring in Result Only. I concur in result only for the reason that I believe J.G.R.'s status as a "stranger to the marriage" is the fundamental reason for the legislative language in KRS 406.011. Thus, I believe that only the "parties to the marriage" can challenge the presumption of legitimacy under KRS 406.011. Indeed, the presumption is one of the strongest known to law, Tackett v. Tackett, 508 S.W.2d 790, 792 (Ky.1974), and thus, the presumption is theirs alone to challenge. Although we have yet to address the question directly, many other courts have. See Ex parte C.A.P., 683 So.2d 1010 (Ala.1996) (petitioner lacked standing to bring action to have himself declared child's father, where child was conceived prior to, but born during mother's marriage to husband, thus making husband the presumed father); Lisa I. v. Superior Court, 133 Cal.App.4th 605, 34 Cal.Rptr.3d 927 (2005) (alleged biological father of child born out of wedlock lacked standing as presumed father under Family Code to pursue paternity action against mother, where child was conceived during mother's marriage while she was separated from her husband, child was born less than 300 days after her divorce became final, and child was being raised by mother and her ex-husband, who had welcomed child his home and held child out as his own); Tijerino v. Estrella, 843 So.2d 984 (Fla.Dist.Ct.App.2003) (holding that a putative father*601 does not have standing to seek to establish paternity of a child, where the child was born into an intact marriage, and where the married woman and her husband object to the paternity action); Callender v. Skiles, 591 N.W.2d 182 (Iowa 1999) (refusing to recognize any separate equitable parenting principles which would give a person outside a marriage the right to establish paternity); D.B.S. ex rel. P.S. v. M.S., 20 Kan.App.2d 438, 888 P.2d 875 (1995) (where child is born into extended marital family, putative father's opportunity of establishing relationship with child conflicts with similar opportunity of husband of the marriage and it is not unconstitutional for state to give categorical preference to the latter); In re Walter, 408 Mass. 584, 562 N.E.2d 474 (1990) (alleged biological father is precluded from challenging presumption that husband is father of child born to wife during marriage); B.H. v. K.D., 506 N.W.2d 368 (N.D.1993) (man claiming be father of child born during marriage of mother to another man lacked standing to rebut presumption of child's legitimacy); David V.R. v. Wanda J.D., 907 P.2d 1025 (Okla.1995) (putative father was barred from disputing presumption of legitimacy of child he asserted was product of his extra-marital affair with
946. child 947. LV, 948. 949. 950. 951. 952. 953. 954. 955. 956. 957. 958. 959. 960. 961. 962. 963. 964. 965. 966. 967. 968. 969. 970. 971. 972. J.A.R. 973. 974. 975. 976. 977. shows 978. 979. 980. 981.
mother, where child was born during marriage of mother and her husband, and was being reared by mother and her husband as member of their family); CW v. 788 A.2d 1002 (Pa.Super.Ct.2001) (third party should not be allowed to attack the integrity of a functioning marital unit when seeking to assert his own paternity as against the husband in an intact marriage); In re M.R.M., 807 S.W.2d 779 (Tex.App.1991) (only husband or wife is entitled to deny husband's paternity of child who is subject of suit and who is born or conceived during marriage of parties); Pearson v. Pearson, 134 P.3d 173 (Utah Ct.App.2006) (putative father of child who was born during wife's marriage lacked standing to challenge paternity of child). Moreover, there is no constitutional right of a "stranger to the marriage" to assert paternity under such circumstances. See Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). An intact family deserves no less protection. CUNNINGHAM, J., joins this opinion. Dissenting Opinion by Justice Abramson. I respectfully and firmly dissent. J.G.R. is entitled under Kentucky law to pursue a paternity action, as both the trial court and Court of Appeals properly concluded when confronted with this difficult case. This Court errs grievously in holding otherwise. The majority reasons that (1) Kentucky's Uniform Act on Paternity, KRS Chapter 406, applies only to children born out of wedlock (KRS 406.180); (2) young was not born out of wedlock as defined in KRS 406.011; and, consequently, (3) J.G.R. cannot pursue a paternity action even though DNA testing allegedly establishes his biological connection and his conduct evinces a strong desire to truly be a father to the child. In my view, the majority errs in finding that J.A.R. was not born out of wedlock, misconstruing the phrase "where evidence that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child." Properly construed, KRS 406.011 applies to situations such as the one now confronting us and expressly allows for J.G.R.'s paternity petition. Admittedly, some jurisdictions (including many of those
982. cited to by Justice Scott in his concurring opinion) have laws that reflect the 983. legislature's apparent desire to preserve a currently intact family, however 984. previously fractured, at all costs, including ignoring the biological truth in 985. matters of paternity. Kentucky is not one *602 of those states. Moreover, as 986. explained below, laws which allow for establishment of the biological truth as to 987. the paternity of a child do far more to advance society's interest in preserving 988. families than those which lock the courthouse doors to anyone but the mother and 989. her husband. 990. 991. KRS 406.021(1) allows paternity to be determined "upon the complaint of the 992. mother, putative father, child, person, or agency substantially contributing to 993. the support of the child." The term "putative father" is not defined in KRS 994. Chapter 406 but "putative" is defined as "generally considered or deemed such; 995. reputed." WEBSTER'S NEW COLLEGE DICTIONARY (1997). Is the father of a child 996. generally considered to be the man who provided half of the child's genetic makeup 997. or the man married to the mother who gave birth to the child? While I believe 998. the former is more generally considered the "father", reasonable minds could 999. certainly differ on this issue. Regardless, it is apparent that KRS 406.021(1) 1000. does not clearly rule in or rule out a petition by a man in J.G.R.'s position.FN1 1001. 1002. FN1. As the majority notes, BLACK'S LAW DICTIONARY defines "putative father" 1003. as "[t]he alleged biological father of a child born out of wedlock." Under 1004. this definition, J.G.R. is a putative father. 1005. 1006. KRS 406.180 does describe the general applicability of KRS Chapter 406 as 1007. follows: 1008. 1009. This chapter applies to all cases of birth out of wedlock: 1010. 1011. (1) Where birth occurs within this state; 1012. 1013. (2) When birth occurs out of this state at the time the mother is a resident of 1014. this state after June 18, 1964; or 1015. 1016. (3) When birth occurs out of this state and at some time following the birth 1017. the mother becomes a resident of this state after June 18, 1964. 1018. 1019. KRS 406.011 provides the only description of a birth "out of wedlock":
1020. 1021. 1022. 1023. 1024. 1025. 1026. 1027. 1028. 1029. 1030. 1031. 1032. 1033. 1034. 1035. 1036. 1037. 1038. 1039. 1040. 1041. 1042. would 1043. 1044. 1045. 1046. 1047. 1048. 1049. 1050. the 1051. 1052. wife 1053. 1054. 1055.
The father of a child which is or may be born out of wedlock is liable to the same extent as the father of a child born in wedlock, whether or not the child is born alive, for the reasonable expense of the mother's pregnancy and confinement and for the education, necessary support and funeral expenses of the child. A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child. (Emphasis supplied). After citing these two provisions, the majority notes that Kentucky did not simply adopt section 1 of the Uniform Act on Paternity (1960) which states that: "a child born out of wedlock includes a child born to a married woman by a man other than her husband." In fact, Kentucky adopted that precise language and then added the phrase emphasized above. The majority believes that by doing so the Kentucky General Assembly chose a "distinctively" different definition for birth out of wedlock, i.e., if the married couple had "marital relations" within ten months prior to the birth of a child, that child is not born out of wedlock but is a child of the marriage. Under this interpretation, a wife could have one sexual encounter with her husband in the ten months preceding her child's birth and have multiple sexual encounters with another man (or men) but the child still be born in wedlock to the mother and the man named on her *603 marriage certificate. This is not what our legislature intended. KRS 406.011 does not speak to "marital relations", a polite reference to the sexual aspect of marriage, but rather to the "marital relationship", that broader, more meaningful aspect of married life that clergy and judges speak of when joining two lives as one. A marital relationship has emotional, physical, social and, yes, moral dimensions and is characterized by a monogamous bond between two parties to the relationship. The "marital relationship between the husband and wife" referenced in KRS 406.011 can certainly be said to "cease" when the is having sexual intercourse with another man. The "marriage" may still exist as a matter of law and "marital relations" (i.e., sexual intercourse) may still occur between the husband and wife on occasion, or even with regularity, but the
1056. monogamous "marital relationship" on which our society is based "ceased" when that 1057. third party entered the picture. If we focus on the words actually used by the 1058. Kentucky General Assembly, "marital relationship", as opposed to substituting 1059. "marital relations" (and therefore sexual intercourse) as the operative concern, 1060. then it is apparent that a child born under the circumstances of this case is 1061. indeed born out of wedlock. This interpretation has the added advantage of 1062. comporting with common sense because few people would question that a child born 1063. to a married woman and a lover who is not her husband is indeed born out of 1064. wedlock. 1065. 1066. If our General Assembly intended this interpretation, some might question why 1067. they bothered to add the phrase "where evidence shows that the marital 1068. relationship between the husband and wife ceased ten (10) months prior to the 1069. birth of the child." Why did they not simply adopt the UPA's standard 1070. definition-"a child born out of wedlock includes a child born to a married woman 1071. by a man other than her husband"? If the General Assembly had done so, any man 1072. claiming to be the father of a child could bring a petition and set in motion 1073. paternity testing and proceedings with little more than a bare allegation. The 1074. language added by our legislature requires a preliminary showing of evidence that 1075. the marital relationship "ceased" in the relevant timeframe. In other words, the 1076. putative father must have some evidence to proffer that shows he is not merely on 1077. a fishing expedition or out to create havoc in a marriage. The evidence which 1078. would show a cessation of the marital relationship must inevitably be assessed on 1079. a case-by-case basis but it would undoubtedly encompass a situation where the 1080. putative father has had access to the child through cooperation by the mother and 1081. has secured DNA testing that establishes his biological fatherhood. There is no 1082. more telling proof that "the marital relationship between the husband and wife 1083. ceased ten (10) months prior to the birth of the child." 1084. 1085. For those who believe that KRS 406.011 is just as readily susceptible to the 1086. interpretation advanced in the majority opinion and who believe that particular 1087. interpretation does more to advance the Commonwealth's interest in the integrity 1088. of the family, three points should be considered. First, how is the family 1089. strengthened when a mother can conceive a child outside of marriage and be assured 1090. that she alone knows the child's biological origins and can control their 1091. discovery? She can harbor this secret until divorce, revealing the truth at that
1092. 1093. 1094. 1095. hand, 1096. 1097. 1098. 1099. 1100. 1101. 1102. 1103. 1104. 1105. 1106. 1107. 1108. 1109. 1110. 1111. 1112. 1113. 1114. 1115. 1116. 1117. 1118. 1119. 1120. 1121. 1122. 1123. 1124. 1125. 1126. 1127. 1128. 1129. 1130.
juncture if it serves her purposes. See, e.g. Boone v. Ballinger, 228 S.W.3d 1 (Ky.App.2007). With this interpretation, there are no societal disincentives to conceiving a child outside the bounds of her marriage. Construing "marital relationship" as the more encompassing monogamous relationship, on the other leaves no doubt that if she *604 engages in an extramarital affair, the man will have a legal right to claim a place in the child's life. Second, for those who think it places the child in an untenable position vis-a-vis his or her in-home father and perhaps other siblings, there are tens of thousands of blended families all across Kentucky who deal with those types of issues daily. Many marriages include children who are "yours and mine" or "yours, mine and ours" and those families cope with weekend and summer visitation, shared holidays and other aspects of blended families. In situations such as the one in this case, the only variable is that the child or children who have a parent outside the home are the younger as opposed to the older children in the family residence. Third, knowing the truth about one's genetic background has both medical and psychological consequences. Is it appropriate to leave a child without such genetic knowledge that could be crucial in the course of his or her life in medical situations? As for the psychological component, it is commonplace that adoptive parents are encouraged to share with their children the fact of their adoption at an appropriate time. Why should children like J.A.R. not have a similar right to know? In short, hiding the truth does not support the integrity of the family or advance the best interests of the child.
Justice Scott's concurring opinion cites cases from several jurisdictions that similarly leave the biological father without recourse where the mother is married to another man. Each of these cases is decided as a matter of that individual state's law and none is binding on this Court. The United States Supreme Court has held that states may properly adopt presumptions and limit paternity actions as a matter of state law. Specifically, in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), the Supreme Court held that a biological father's procedural and substantive due process rights were not violated by a California statute creating a conclusive presumption that a child born during a marriage was a child of the marriage. Only the husband or wife could challenge the presumption and, even then, only if the challenge was raised within two years of the child's birth. In this context, the Supreme Court stated: Where ... the child is born into an extant marital family, the natural father's
1131. unique opportunity (to develop a relationship with his offspring) conflicts with 1132. the similarly unique opportunity of the husband of the marriage; and it is not 1133. unconstitutional for the State to give categorical preference to the latter. 1134. 1135. Id. at 129, 109 S.Ct. at 2333. 1136. 1137. Thus, states can and do give clear "categorical preference" to the rights of 1138. the husband of the marriage. For example, in David V.R. v. Wanda J.D., 907 P.2d 1139. 1025 (Okl.1995), the Oklahoma statutory scheme provided that "all children born 1140. during wedlock are legitimate" and the presumption was irrebuttable except by the 1141. husband or wife or the descendant of one or both of them. In other states, there 1142. are several ways a man can be a "presumed father" and once a child has a presumed 1143. father under the statute, the issue of his or her paternity cannot be raised 1144. except by the mother, the presumed father, the child or an agency of the state if 1145. the child is receiving public assistance. See, e.g., Ex parte C.A.P., W.H.P and 1146. A.C.P., 683 So.2d 1010 (Ala.1996). 1147. 1148. Kentucky has not expressed a "categorical preference" for the interest of the 1149. husband to the marriage. Unlike states with presumptions that expressly state 1150. that only the husband or wife can challenge the "born during the marriage and 1151. therefore child of the marriage" presumption, KRS 406.011 does not preclude a 1152. challenge by parties outside the marriage. Indeed, such challenges have been 1153. allowed as evidenced by *605Montgomery v. McCracken, 802 S.W.2d 943 (1990), 1154. discussed in the majority opinion and Bartlett v. Commonwealth, 705 S.W.2d 470 1155. (Ky.1986). In the latter case, a child born in May, 1975 was deemed not to be 1156. the child of his mother's marriage even though she was married at the time of the 1157. birth. There was conflicting testimony about whether she and her husband were 1158. separated or in any type of marital relationship at the time the child was 1159. conceived but HLA testing established that another man was the father. The case 1160. was apparently brought by the Commonwealth to determine the child's real father. 1161. 1162. 1163. The mother's testimony, if believed, was sufficient to establish "that the 1164. marital relationship between the husband and wife ceased ten (10) months prior 1165. to the birth of the child." KRS 406.011, supra. We need not decide whether 1166. the HLA testing standing alone would be sufficient to overcome the presumption 1167. of legitimacy and establish the appellant's paternity. Certainly, the HLA
1168. testing when corroborated by the evidence of access, the contribution toward 1169. support, and a similar genetic characteristic, is so overwhelming as to 1170. constitute proof beyond a reasonable doubt. 1171. 1172. By this opinion we acknowledge the importance of HLA blood testing in supplying 1173. evidence as necessary to overcome the presumption of legitimacy and the 1174. requirement of proof beyond a reasonable doubt. Truth and justice are 1175. irrevocably bound. They are Siamese twins sharing a single heart beat. 1176. Neither can survive very long without the other. When the advances of science 1177. serve to assist in the discovery of the truth, the law must accommodate them. 1178. The law cannot pick and choose when truth will prevail. 1179. 1180. Id. at 472-73. 1181. 1182. In Montgomery it appears the Commonwealth was again the moving party but it is 1183. also clear that the Court of Appeals concluded that a child could be deemed born 1184. out of wedlock even where the parties to the marriage had maintained "marital 1185. relations" if there was clear evidence the husband was not the child's father. 1186. 1187. Contrary to appellant's assertions, we are not persuaded that this provision 1188. indicates that a child born to a married woman can be found to have been born 1189. out of wedlock only if the spouses' marital relationship ended at least ten 1190. months prior to the child's birth. Here, although the spouses' marital 1191. relationship did not fall into the category of having ceased ten months prior to 1192. the child's birth, it is uncontroverted that the husband was found in an earlier 1193. circuit court proceeding to not be the child's father. That finding is not 1194. before us on appeal. That being so, the trial court certainly did not err by 1195. concluding that the presumption of legitimacy had been overcome by evidence "so 1196. clear, distinct and convincing as to remove the question from the realm of 1197. reasonable doubt." See Simmons v. Simmons, Ky., 479 S.W.2d 585, 587 (1972) . 1198. 1199. 802 S.W.2d at 944 (emphasis in original). The majority, in my view, errs in 1200. overruling cases such as Montgomery which allow rebuttal of the presumption. 1201. 1202. Finally and notably, many states have dealt with parentage in cases such as 1203. this one by adopting the Uniform Parentage Act. The 2000 version of the Uniform 1204. Parentage Act would allow standing to a man in J.G.R.'s position provided he
1205. 1206. 1207. 1208. 1209. 1210. 1211. 1212. 1213. 1214. 1215. 1216. 1217. 1218. 1219. 1220. 1221. 1222. 1223. 1224. 1225. 1226. 1227. 1228. 1229. 1230. 1231. 1232. 1233. 1234. 1235. 1236. 1237. 1238. 1239. 1240. 1241. 1242. 1243. 1244.
sought adjudication of parentage not later than two years after the child's birth. See, s 607 Uniform Parentage Act (2000). The commentary to s 607 reflects the variance among states in dealing with the issue as of 2000 and the middle ground adopted in the Uniform Parentage Act:
*606 As of the year 2000, the right of an "outsider" to claim paternity of a child born to a married woman varies considerably among the States. Thirty-three States allow a man alleging himself to be the father of a child with a presumed father to rebut the marital presumption. Some States have granted this right through legislation, while in other States case law has recognized the alleged father's right to rebut the presumption and establish his paternity. In some States, there is both statutory and common law support for the standing of a man alleging himself to be the father to assert his paternity of a child born to a married woman. Finally, some States, such as California, absolutely bar a man from commencing a proceeding to establish his paternity if state law provides a statutory presumption of the paternity of another man, see West's Ann. Cal. Evid.Code s 621, upheld in Michael H. and Victoria D. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91(1989). UPA (2000) attempts to establish a middle ground on these exceedingly complex issues. Subsection (a) establishes a two-year limitation for rebutting the presumption of paternity established under Section 204 if the mother and presumed father were cohabiting at the time of conception. The presumption of paternity may be attacked by the mother, the presumed father, or a third-party male during this limited period; thereafter, the presumption is immune from attack by any of those individuals. 9B Uniform Laws Annotated, s 607 Uniform Parentage Act (2000) at p. 342. Certainly Kentucky's stance on this issue would be clearer and the issue of paternity would be fairly and finally adjudicated in a timely manner if the General Assembly simply adopted the 2000 version of the Uniform Parentage Act. Nonetheless, even without this model legislation, Kentucky law allows a paternity action to be filed by J.G.R. under the circumstances of this case. In short, our world is full of inconvenient truths. We accomplish nothing for families, the broader community and our justice system when we deny those truths, especially when Kentucky law does not require that result. J.G.R. should be allowed to pursue a paternity action because J.A.R. was born out of wedlock, in both the common understanding of that term and as provided in KRS 406.011. The
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family court had jurisdiction and the Kentucky Court of Appeals was correct in denying the writ of prohibition. SCHRODER, J., joins. Dissenting Opinion by Justice NOBLE. Respectfully, I dissent. The parties to this writ petition and the majority of this Court have confused a statutory element of proof as a requirement for standing. In the paternity chapter, standing must be determined pursuant to KRS 406.021. If a party has standing, then and only then, does the presumption statute, KRS 406.011, have relevance as setting forth certain elements of proof that must be established to rebut the presumption that a child born during a marriage is the child of the husband. Specifically, the one making the claim of paternity who is not a husband must establish that the child is born out of wedlock. One does not have to prove an element in order to have the right to plead it. The right to make a claim is a great deal broader than what one must prove to establish that claim. Standing requires a personal interest, often referred to as a "substantial" interest in the subject matter of the suit, not a "mere expectancy." For this reason, substantiality of an interest must be determined by its direct relationship to the *607 claimant. Ashland v. Ashland F.O.P. # 3, 888 S.W.2d 667, 668 (Ky.1994). "Standing to sue" means that a party has "a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy...." Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). "Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court; it is the right to take the initial step that frames legal issues for ultimate adjudication by judge or jury." Black's Law Dictionary 1405 (6th ed.1990). Further, standing must be viewed as the power to hear and decide cases, and "does not concern the ultimate merits of substantive claims involved in the action." Weiner v. Bank of King of Prussia, 358 F.Supp. 684 (E.D.Pa.1973); see also Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968) (The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a ... court and not on the issues he wishes to have adjudicated.... In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is
1285. justiciable.). A plaintiff must have "alleged such a personal stake in the outcome 1286. to ensure concrete adverseness." Black's Law Dictionary 1405 (6th ed.1990). 1287. 1288. In Kraus v. Kentucky State Senate, 872 S.W.2d 433, 439 (Ky.1993), this Court 1289. opined, "We believe that standing to sue means that a party has a sufficient legal 1290. interest in an otherwise justiciable controversy to obtain some judicial decision 1291. in the controversy. As noted by the Court of Appeals, it is the right to take 1292. the initial step that frames legal issues for ultimate adjudication." Likewise, 1293. in Stevens v. Stevens, 798 S.W.2d 136, 139 (Ky.1990), we stated, "The requirement 1294. of standing is satisfied if it can be said that the plaintiff has a real and 1295. substantial interest in the subject matter of the litigation." 1296. 1297. Beyond doubt, JGR has shown that in the Family Court case. He alleged that he 1298. was the father of the child and claimed that a genetic test proved this. This is 1299. a personal claim about his fatherhood showing a substantial interest in the 1300. controversy. He also cited KRS 406.051 as conferring jurisdiction, which 1301. specifically references children "born out of wedlock." "It is axiomatic that in 1302. such circumstances, every well-pleaded allegation of the complaint must be taken 1303. as true and construed in the light most favorable to the party against whom the 1304. motion is made." Gall v. Scroggy, 725 S.W.2d 867 (Ky.App.1987). As Chief 1305. Justice Lambert wrote previously in City of Louisville v. Stock Yards Bank & 1306. Trust Co., 843 S.W.2d 327 (Ky.1992), 1307. 1308. [I]t is neither the province of the trial court nor of this Court to consider 1309. whether Appellant may be able to prove its allegations or ultimately prevail. 1310. On review, this Court will confine itself to a determination of whether the 1311. matters alleged in the complaint establish appellant's standing to bring the 1312. action or whether it is without a "substantial interest" in the subject matter 1313. of the controversy. 1314. 1315. Id. at 328 (citations omitted). 1316. 1317. Because feelings about the issue of paternity and marriage run strong among the 1318. members of the Court, we have jumped over the hurdle of proper pleading and 1319. procedure to the evidentiary merits of this case when we have no business doing 1320. so. We, as an appellate court, even on writ procedures appealed from the Court 1321. of Appeals, are not finders of fact. 1322. 1323. JGR filed the petition in this case under various statutory provisions,
1324. including KRS 403.150, the divorce statute, and the *608 child custody statutes he 1325. references, KRS 403.400 and KRS 403.620 (the UCCJA), which have been repealed and 1326. replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 1327. However, he also alleged paternity court jurisdiction over this case by citing KRS 1328. 406.051, which specifically refers to "children born out of wedlock" and which 1329. incorporates the entire paternity chapter. He further specifically alleged, 1330. "Paternity has not yet been established, however, DNA test results confirm the 1331. paternity of the Petitioner." 1332. 1333. The Motion to Dismiss which is the basis for this writ petition is framed 1334. around the issue of whether JGR has standing to bring this action. The 1335. Memorandum in Support states two standing issues: that JGR has no standing to 1336. seek custody and support; and that he has no standing to seek a determination of 1337. paternity. It should be noted, however, that this petition was filed in a Family 1338. Court jurisdiction. The guiding concept of Family Court is "One judge, one 1339. family." Both custody and paternity are included in Family Court subject matter 1340. jurisdiction. Consequently, all issues to be heard may be filed in one petition, 1341. as JGR did here. 1342. 1343. As to JGR's custody and support claims, they clearly are premature. At the 1344. point of pleading, there was no legal determination that he is the father of the 1345. child, which is required as he was not married to the mother when the child was 1346. born. On the other hand, his right to proceed under the paternity statutes is 1347. ripe. If JGR were found to be the father under the paternity statutes, the 1348. Family Court could address the custody and support claims seriatum. In the 1349. Family Court jurisdictions, there is nothing inappropriate about pleading all 1350. possible claims in one petition. Indeed, it may be necessary to avoid res 1351. judicata. 1352. 1353. This is but one example of evolving legal questions that arise when a new type 1354. of court is instituted. At present in Kentucky, Circuit Courts hear custody and 1355. support actions, District Courts hear paternity and dependency/neglect actions, 1356. and Family Courts hear all these areas. The paternity statutes allow District 1357. Courts to determine custody and support in a paternity case. Of necessity, a 1358. petition in Family Court must cover all possible claims, though the various claims 1359. may be decided in the order required by law, which would clearly help avoid 1360. piecemeal litigation in Family Court jurisdictions. JGR's petition may be 1361. understood more clearly in this light.
1362. 1363. 1364. 1365. 1366. 1367. 1368. 1369. 1370. 1371. 1372. 1373. 1374. 1375. 1376. 1377. 1378. 1379. 1380. 1381. 1382. 1383. 1384. 1385. 1386. 1387. 1388. 1389. 1390. 1391. 1392. 1393. 1394. 1395. 1396. 1397. 1398. 1399. 1400. 1401.
Since standing is determined solely from the allegations of the petition, with all factual assertions taken as true and construed in the light most favorable to the party against whom a motion to dismiss is made, the only relevant question is whether JGR has alleged matters in the complaint sufficient to establish his standing in paternity, since his standing as to custody and support cannot ripen unless he is the legal father of the child. Whether he could prevail is not the question before us, and would indeed be impermissible fact-finding. "In regard to pleadings, Kentucky has always followed the notice pleading theory which only requires a short and plain statement of claim demonstrating that relief is warranted and necessary." Equitania Ins. Co. v. Slone & Garrett, P.S.C., 191 S.W.3d 552, 556 (Ky.2006). In scrutinizing whether a pleading yields standing, "We no longer approach pleadings searching for a flaw, a technicality upon which to strike down a claim or defense, as was formerly the case at common law. Whereas the old common law demur searched the pleadings for a reason to dismiss, now a Motion to Dismiss is directed at the substance of the *609 pleading." Smith v. Isaacs, 777 S.W.2d 912, 915 (Ky.1989) (citations omitted). In McCollum v. Garrett, 880 S.W.2d 530 (Ky.1994), this Court affirmed that the sufficiency of the pleadings should be resolved by a commonsense reading so as to do substantial justice. To that end, all that is necessary is that a pleading sufficiently identify the basis of the claim. Natural Resources and Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 51 (Ky.1989). Without addressing the fact that the pleadings alone must be considered to determine standing, JNR jumps straight to the evidentiary merits of the claim, as has the majority. In the paternity chapter, standing must be determined pursuant to KRS 406.021, which defines who may bring a paternity action and lists a "putative father." Cf. Moore v. Asente, 110 S.W.3d 336, 355-56 (Ky.2003) (determining standing by reference to the statute announcing who may bring a custody action). "Putative father" is not defined in the statutes, but is defined in Black's Law Dictionary 1237 (6th ed.1990) as "[t]he alleged or reputed father of a child born out of wedlock." JGR has alleged that he is the father of a child born out of wedlock in his jurisdictional claim, and specifically asserts his personal, substantial interest in the case. He thus has standing.
If a party has standing, then and only then, does KRS 406.011 require certain elements of proof that must be established to rebut the presumption that a child born during the marriage is the child of the husband. Obviously, the right to
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make a claim is a great deal broader than what one must prove to establish the claim. One does not have to prove an element of a claim to have the right to plead it. Discovery and subsequent motions can address the evidentiary sufficiency of the claim. Doing anything else is to "use standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 159, 90 S.Ct. 838, 25 L.Ed.2d 192 (1970) (Brennan, J., Concurring in part and dissenting in part). In saying that JGR must specifically plead that the child in question is a child "born out of wedlock," the majority is mistaken, because he clearly gave adequate notice of such by citing KRS 406.051. In saying that he lacks standing because he did not specifically plead that the marital relationship between the wife and husband ceased ten months before the child's birth, the majority is requiring him to meet a standard of proof before he will be allowed to proceed. In saying that there is no evidence that the marital relationship ended ten months before the child's birth, this Court goes too far into the realm of advisory opinions. The stance of this case at the time the writ petition was filed is that no evidence of any kind had been admitted. The attachments to the writ pleadings and other supplements all go to evidentiary matters that are the province of the trial court, not an appellate court. Obviously, even if this Court takes the view that the pleadings are inadequate to establish standing, there is no evidence to consider and we should not be giving advisory opinions as to whether JGR could rebut the presumption. I do not subscribe to the majority view that JGR's pleading is so inadequate that it fails to identify the basis of his claim, and would find that he has standing to bring his paternity claim. Clearly, JNR understood that JGR was seeking a paternity determination as the court motions and this writ proceeding demonstrate. While it may be true that in order to be adjudicated the father of the child, he must prove either that marital relations between *610 the wife and husband ceased ten months prior to the birth of the child or provide other sufficient proof as was allowed in Montgomery v. McCracken, 802 S.W.2d 943 (Ky.App.1990), where a putative father was nonetheless declared the father of a child even though the mother married another man seven months before the child's birth; and in Bartlett v. Com. ex rel. Calloway, 705 S.W.2d 470 (Ky.1986), where the child was born during the marriage, but evidence of HLA testing, a similar genetic characteristic, providing support and other testimony was found sufficient to say that the putative father was the father, that is not relevant at this point in the proceedings. We do not know what that proof would be. These cases state
1442. 1443. 1444. 1445. 1446. 1447. 1448. 1449. 1450. 1451. 1452. 1453. 1454. 1455. 1456. 1457. 1458. 1459. 1460. 1461. 1462. 1463. 1464. 1465. 1466. 1467. 1468. 1469. 1470. 1471. 1472. 1473. 1474. 1475. 1476. 1477. 1478.
the status of the law as to access as it has been in Kentucky for over twenty years, and reflect as Justice Leibson wrote,
Truth and justice are irrevocably bound. They are Siamese twins sharing a single heartbeat. Neither can survive very long without the other. When the advances of science serve to assist in the discovery of the truth, the law must accommodate them. The law can not pick and choose when truth will prevail. Id. at 473. There is no need to reverse these common sense cases. Doing so is an affront to stare decisis, and is being done because the majority is addressing the propriety of proof rather than whether JGR has the right to offer it. Certainly, we do not know what JGR might be able to produce as evidence. It is conceivable that the mother might confirm that marital relations had in fact ceased ten months prior to the birth of the child when called to the stand, despite what may have been said earlier or what is being said now. Other proof is apparently available, specifically DNA testing. JGR clearly has a due process right to at least be heard, because he has standing. We must not advise as to whether he could succeed. Consequently, this case should be remanded to the trial court to allow JGR to proceed with the paternity action so that it may determine the sufficiency of his proof. Ky.,2008. J.N.R. v. O'Reilly 264 S.W.3d 587 END OF DOCUMENT
2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
1. 10-12-11 2. Read JAS v. Bushelman Court, 342 SW 3d 850, casebook 699-713, KRS 406
1. 10-19-11 2. Assignments a. 10/24 1039-1069 & KRS 403.270, 403.340 b. 10/26 1069-1099 & Troxel v. Granville case USSC (2000) c. 11/2 Judge Walker Fitzgerald coming in to speak d. 11/7 Judge Joan Byer coming in to speak 3. Cleo v. Rickie pp. 700 a. Parties cannot voluntarily terminate parental rights to avoid responsibilities. b. URESA Uniform Reciprocal Enforcement of Support Act c. Must always look to childs best interest d. Factors a court should look to when deciding when to allow a legal father to have a paternity test performed. See pp. 702 4. Little v. Streater pp. 705 a. Ct. Statute passed burden of proof to father to disprove paternity once mother attested to such. Statute also required that the father pay for the testing. This case involved an indigent client (in prison) who had no funds. Father argues that this was a violation of due process 5. Surrogate parenting v. Commonwealth pp. 786 a. KRS 199.590 prohibits the sale or purchase of any child. b. Commonwealth sued SPA to prevent this surrogate agency from operating to provide surrogacy services. c. The circuit court dismissed, COA reversed and KYSC reversed and affirmed 6. 7.
1. 10-24-11 2. Custody a. Parent v. Parent i. DNA

3.
4.
5. 6.
7.
ii. Divorce iii. DVO/EPO iv. Paternity b. Third party v. Parent i. Defacto 403.270/340 (elevating third party to parent status after certain time) c. State v. Parent i. DNA ii. Truancy iii. Termination of parental rights iv. Status. Psychological parent a. Defacto parent b. Step parent c. Day care provider d. Grandparents e. Step-parents Best interest of the child a. Environment b. Extended family c. Emotional ties d. Abuse / Neglect e. Opportunities f. Stability g. Conflict free h. Generally the best place for the child considering all the factors Custody is always modifiable / Support / Visitation Johnson v. Johnson pp. 1041 a. Tender years presumption i. Presumption that mother is proper parent b. Alaska Supreme Court determined that the most important factor was the best interest of the child and rejected the tender years presumption. They stated that the age of the children were to be used only as one factor in determining the best interests of the children. In re Marriage of Carney pp. 1046 a. Father was sole parent of two boys for five years. Mother had not visited or contributed to their support for over five years. Father was injured in military accident, and was quadriplegic. Judge gave kids to mother and imposed substantial financial burdens upon father with support, travel, attorneys fees, court costs, etc.
1. 10-26-11 2. NO CLASS NEXT MONDAY 10-31 3. Assignment for: a. November 2: 1099-1112 + 1202 1221 & KRS 600.020, 620, 625 (Judge Walker Fitzgerald teaching) b. November 7: 1114-1143 & KRS 403.320 (Judge Joan Byer teaching) 4. Assignment for missing class next Monday: Do outline and turn in before last class. 5. G.P. v. State pp. 710 a. Florida requires mother wanting to give up parental rights, were required to at least constructively notify the father or suspected father before doing so. b. In Kentucky 199.480 & 500 doesnt require this. If father isnt known or established than no notice required nor being named as party. 6. Custody in Kentucky a. Joint b. Sole c. Custody is a legal term and encompasses only big decisions such as medical, education, religion, etc. d. Real distinction is primary residence vs. parenting time. 7. Palmore v. Sidoti pp. 1057 a. Mother had custody of infant child. Mother remarries a man of a different race. (Mom white, step dad black) Court removes infant from mom and gives to biological dad. Appealed. b. USSC overturns on an equal protection basis. Even if the infant child were to realistically be subjected to racial discrimination because of the interracial marriage, that doesnt give justification for removal when the mother is a fit parent. 8. In Kentucky (and most states) you can file a writ for immediate appellate review in a matter that is critical such as a case involving child custody etc. 9. Kentucky 403.270 custodial statute (see for de facto custodian) 10. Painter v. Bannister pp. 1069 a. Wife and daughter killed in a car accident. Father falls into depression and places son with maternal grandparents. Year later, father asks for son back and grandparents refuse. b. Trial court gave child to father c. USSC overturned and gave son to grandparents. d. Post case, son decided he wanted to live with father and grandparents consented.
1. 2. 3. 4.
11-2-11 Judge Walker Fitzgerald Talking about dependency, abuse and neglect, and termination of parental rights. Supports opening the juvenile docket to the public. Many conferences and reports find it to be a non issue and the benefits are to hold the family and individuals more accountable along with lifting the veil of secrecy and showing the public why things happen in juvenile cases. 5. Estimate that about 80% of cases involving child abuse also involve substance abuse. Some rural parts of the State have higher percentages. 6. History of family court structure in Kentucky. (See yellow handout) a. Started with the two court system i. District 1. Paternity 2. DNA 3. Domestic Violence 4. Status ii. Circuit 1. Divorce 2. Adoption 3. Termination of parental rights 4. Grandparent visitation b. Started pilot program in 2002 in Jefferson County to merge these into a unified family court system. Succeeded and is being implemented into state. 7. Families in Transitions (FIT) 8. Court social workers assigned to each judge 9. Mandatory mediation in Jefferson County in divorce cases. 10. Case load in Jefferson County is about 17-20k per year among 10 judges so around 1700+ per year per judge. This really doesnt mean anything because about 80% of the cases heard are return of old cases. So the number heard per year per judge really are about 10k. 11. Juvenile law a. Dependency i. Historically children could be removed for virtually any reason. A child could be removed and placed into indentured servitude. From around 18001850 we started to place people into pour house. Starting in the mid 1800s there were cases that started recognizing liberty and due process rights into this area.
ii. Cannot be abusive or neglectful if your just poverty stricken, or mentally ill, etc. b. Abuse and Neglect i. Really werent much due process rights for abuse and neglect cases until the 1970s. ii. Receive about 76% of foster care money from federal programs. iii. In Kentucky in 1985 Kentucky began providing attorneys for neglect and abuse cases and termination of parental rights. iv. Parents have superior rights to children unless they are inflicting or allowing inflicting pain or detriment of physical condition, sexual abuse, failing to provide basic needs of the child. A true detriment to the health, safety or welfare of the child. v. Three pronged test: 1. No child is removed that can be safely kept at home a. If there are programs that can be put into place to assist, than that must happen. (Many traumatic psychological issues arise upon removal) 2. If removed, than reassociate with parent as soon as possible. a. Mandatory timelines to review to see if the child can go home safely. 3. If after a reasonable time (federal guideline 1 year), it is not possible to return the child to the parents than the court must proceed with termination of parental rights so that the child may move forward with their lives. vi. With abuse and neglect, often there are emergency orders required immediately when a child is brought into a hospital or doctors. vii. Biggest reason for rise in abuse and neglect cases is drug abuse and poverty. Other issue is personality disorders. viii. About 8000 abuse reports in Jefferson County. About 2000 of those go forward to court. Less than 1/3 of those become removals. 12. Practice tips: a. If the case is one of statutory construction you MUST understand the statute and apply it to your case. i. For example many evidence issues are altered by statute in some instances ii. Also, be very cognizant of burden shifting b. Make sure youre in the right court for your matter. i. For example the family court cannot hear grandparent rights in a paternity case. Even though the family court is unified, by statute the court cannot combine.
1. 2. 3. 4.
11-7-11 Judge Joan Byer speaking tonight Talking about trauma. See handout Bad, Mad, or Scared? which is a printout of her PowerPoint.
1. 11-9-11 2. Assignments: a. 11-2 - 1099 1112 (KRS 600.020, 620, 625) b. 11-7 - 1114 1117, 1131-1143 (KRS 403.270) c. 11-16 - 1264 1290 (KRS 199.470-550) (ADOPTION) d. Must turn in (e-mail) outline to Troy by 16th. e. Short notes about what youve gotten out of each guest speaker. 3. Guest speaker tonight Dr. Kelli Marvin, Ph. D. 4. Chimpanzee has an IQ of about 60, mildly mentally retarded people range from 60-70, minimum court adequate IQ to parent 71. Average IQ is 100. Average doctor or lawyer IQ 125 to 140.
IQ Scale
Over 140 - Genius or almost genius 120 - 140 - Very superior intelligence 110 - 119 - Superior intelligence 90 - 109 - Average or normal intelligence 80 - 89 - Dullness 70 - 79 - Borderline deficiency in intelligence Under 70 - Feeble-mindedness Normal Distribution of IQ Scores 50% of IQ scores fall between 90 and 110 70% of IQ scores fall between 85 and 115 95% of IQ scores fall between 70 and 130 99.5% of IQ scores fall between 60 and 140 Low IQ & Mental Retardation
An IQ under 70 is considered as "mental retardation" or limited mental ability. 5% of the population falls below 70 on IQ tests. The severity of the mental retardation is commonly broken into 4 levels: 50-70 - Mild mental retardation (85%) 35-50 - Moderate mental retardation (10%) 20-35 - Severe mental retardation (4%) IQ < 20 - Profound mental retardation (1%) High IQ & Genius IQ Genius or near-genius IQ is considered to start around 140 to 145. Less than 1/4 of 1 percent fall into this category. Here are some common designations on the IQ scale: 115-124 - Above average 125-134 - Gifted 135-144 - Very gifted 145-164 - Genius 165-179 - High genius 180-200 - Highest genius FORENSIC MENTAL HEALTH SERVICES DIVISION OF FORENSIC MEDICINE
NARRATIVE REPORT
**REDACTED** FOR TEACHING PURPOSES ONLY PRIVILEGED AND CONFIDENTIAL FORENSIC MENTAL HEALTH EVALUATION DKT/Case #: XXXXXXX EXAMINEE: XXXXXXX SUBJECT CHILDREN: XXXXXXX XXXXXXX CLINICIAN: Kelli Marvin, Ph.D. EXAM DATES: XXXXXX DATE OF BIRTH: XXXXXXX DATE OF BIRTH: XXXXXXX DATE OF BIRTH: XXXXXXX DATE OF REPORT: XXXXXXX
The information contained in this report was obtained for the purpose of a child protective services evaluation and should not be used or re-disclosed except as authorized by the child protective agency or under court order. If any of the information is HIV/AIDS-related, state law prohibits use or re-disclosure of that information without specific written consent of the individual(s) to whom the information pertains, unless permitted by federal or state law.
TABLE OF CONTENTS: Purpose of Evaluation

Page
Identification & Issue Page 2-3 Sources of Information Page 3-4 Record Review Page 4-11 Clinical Interview, Personal History Page 11-16 Clinical Interview, Account of CHFS Investigation Page 16-18 Clinical Interview, Factors Related to General Parental Capacity Page 16-21 Psychometric Testing Wechsler Abbreviate Scale of Intelligence (WASI) Page 21 Wechsler Individual Achievement Test-R (WAIS-R) Page 21 Child Abuse Potential Inventory (CAPI) Page 21 Table of Risk Factors for Future Acts of Abuse & Neglect Page 22 Mental Status Examination (MSE) Page 22 Diagnostic Impressions Page 23 Conclusions & Recommendations See Attached CONCLUSORY Report PURPOSE OF THE INSTANT EVALUATION:
The purpose of this evaluation is to provide this Court, as well as CHFS, with information about the mental health of the respondent. In no way is this report intended to determine if the respondent engaged in acts that may or may not constitute child abuse or neglect (as this is the role of the court). Rather, opinions will be offered as to whether or not the respondent suffers from psychopathology of a type and intensity so as to
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compromise the capacity to parent. In addition, the report will focus upon the respondents overall personality style and characteristic methods of coping with stress. This evaluation is not intended to address the issue of the best interests of the subject children, except with regard to evidence of gross psychopathology and/or intellectual limitations, as a result of which there is a corresponding inability to safely and adequately parent. It is recommended that the readers of this report consider the information provided in context of the totality of information available.
IDENTIFICATION & ISSUE:

XXXX XXXX, 22 year old respondent mother, was referred in connection with Cabinet-substantiated child abuse and neglect of the subject children, XXXX (DOB: XX/XX/2008) and XXXX (DOB: XX/XX/2006) XXXX. Specifically, the Cabinet determined that these subject children were at risk of harm by virtue of the trauma-based death of their infant sibling, XXXX. As best as this examiner could ascertain, there were no Court-based fact-findings of abuse and/or neglect at the time that the instant report was submitted. It should be noted that the record indicated that the respondent mother is the subject of concurrent criminal proceedings, seemingly pertaining to Cocaine possession and/or trafficking; There were no notations indicating that the respondent mother is the subject of criminal proceedings pertaining to the trauma-based death of the subject childrens infant sibling, XXXX. A Juvenile Dependency, Neglect, and Abuse petition, pertaining to the subject child XXXX and dated XX/XX/2011, alleged: "Child's sibling died on XX/XX/2010, due to non-accidental trauma. Deceased child was also medically neglected as mother had missed multiple hearing and cardiology appointments, Deceased child was observed to have a horrible diaper rash as well. NM has a recent neglect substantiation for lack of supervision of all 3 children in XX/2010. Lack of supervision appears to be an ongoing concern. Home was observed to be unkempt and unsafe for children of this age. Cocaine was found within reach of all children in a trash can and hidden in the baby's diaper. There was a loaded weapon found within reach of the children. NM has a history of DV with alleged NF. Child was found to have untreated ringworm." An identical petition was reviewed with regard to the subject child XXXX. Judicial notes, dated XX/XX/2011, cited that the putative father (XXXX XXXX, DOB: XX/XX /1987) of the subject children acknowledged paternity. Visitation was ordered to be supervised by CHFS; the respondent mother and putative father XXXX were to submit to random drug screens; and contact between the subject children and the respondent mothers then paramour (XXXX) was prohibited. Diluted or missed drug screens were slated to be considered positive by the Court. Cooperation with the Cabinet and attendance of parenting curricula were also ordered. Subsequent Cabinet notes indicated that the respondent mothers and putative father XXXXs supervised visitation was to occur separately. Subsequent Cabinet citations indicated that the respondent mother and putative father XXXX were to participate in a Parental Capacity Assessment. The putative father was also slated to participate in domestic violence offender treatment. By X/2011, putative father XXXX was cited to have been whereabouts unknown and/or could not be contacted. An Order, from a Temporary Removal Hearing, dated XX/XX/2011, cited that removal of the subject children was necessary for security of these children's welfare and protection. Citations also denoted that no less-restrictive alternatives were available. An Emergency Custody Order, also dated XX/XX/2011, and signed by the Honorable XXXX, denoted that CHFS testified that the following facts were true: "Children's 6 -month-old sibling died on this date due to non-accidental trauma. Siblings appear to have injuries. Mother has prior CPS reports. Lack of supervision is ongoing concern. Drugs were found in the home by LMPD on XX/XX/2011." A Facilitated Staffing Action Plan, prepared by CHFS/P&P and dated XX/XX/2011, alleged that the now deceased infant child XXXX "had Crack found in her diaper, the substance is being tested to confirm."
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An amended Juvenile Dependency, Neglect, and Abuse petition, dated XX/XX /2011, was reviewed and denoted the following additional allegations: "In addition to the petition dated XX/XX /2011, NM failed to make child's routine medical appointments (well child checks). Child (XXXX XXXX) was diagnosed with anemia and NM never filled iron prescription. NM created a risk of harm to child by exposing her to an individual (XXXX XXXX, paramour) who exhibits high-risk behaviors (i.e., guns, Cocaine, and a loaded weapon were located within reach of the child). Child was exposed to ongoing, severe, domestic violence with NF (XXXX XXXX). NM tested positive for Marijuana on XX/XX /2011. NF did not show for his drug screen scheduled XX/XX /2011. NM is non-cooperative and will not sign case plan, and other necessary paperwork to establish and provide services." A similar amended petition, also dated XX/XX/2011, pertaining to the subject child XXXX, alleged the following: "NM failed to make child's routine medical appointments and missed so many appointments that UCHS refused to call in any more prescriptions until child was seen. Child was being assessed for precocious puberty and was referred to a specialist in XX/2009. Upon removal, child was found to have untreated ringworm. NM created a risk of harm to child by exposing her to an individual (XXXX XXXX, paramour) who exhibits high-risk behaviors (i.e., guns, drugs, drug dealing) in the home and failing to make any efforts to ensure this child's safety within their own home. Cocaine and a loaded weapon were located within reach of the child. Child was exposed to ongoing severe domestic violence with NF (XXXX D. XXXX). NM tested positive for Marijuana on XX/XX /2011. A Court Report, dated 6/28/2011, prepared by CHFS, denoted autopsy results of the subject childrens deceased infant sibling, XXXX XXXX. Specifically, per Dr. XXXXX (County Coroner), Dr. XXXX (Chief, Division of Forensic Medicine), and nurses XXXX and XXXX, the infant XXXX died of "multiple inflicted (abusive) blunt force injuries to multiple body regions, traumatic closed head injuries, submental chin contusions, back and abdominal contusions, left flank and upper arm patterned injuries, and multiple healing abrasions of the face, neck." Further, there was cited to have been evidence of medical neglect. The subject children were cited to have consistently remained in the care and custody of CHFS since XX/XX /2011 onward. A Court Report, dated 6/28/2011, cited that the subject children were participating in weekly supervised visitation with the respondent mother. At that time, the subject children were estimated to have been doing very well." Indeed, both children were denoted that have been assigned a schedule for immunizations. Additionally, both subject children had been engaged in extracurricular activities such as dance and T-ball. The most recent information from the Cabinet, dated X/2011, indicated that, owing to the respondent mothers non-compliance with Court mandates and Cabinet recommendations, supervised visitation had been terminated. Additionally, after a prolonged period of refusal, the respondent mother was reported to have enrolled in individual mental health services.
SOURCES OF INFORMATION:
1. Clinical interview with the respondent mother, on XX/XX/2011, from 11:00 am 2:30 pm, in the offices of the undersigned and observed by XXXXX, FMHS Administrative Assistant. Psychometric testing of the respondent, on XX/XX/2011, spanning 2:30 3:30 pm, in the offices of the undersigned and observed by XXXXX, FMHS Administrative Assistant. Routine and related Court and Cabinet documents, contained within the complete agency file, as well as: a. DCBS/Court Reports, dated XX/XX/2011& XX/XX/2011. b. Facilitated Staffing Action Plan, CHFS/P&P, dated XX/XX/2011, pertaining to the respondent mother, including family members and multiple professional and administrative participants. c. AOC checks for the respondent mother; a XXXXX XXXXX aka XXXXX (DOB: XX/XX/1966); XXXXX (DOB: XX/XX/1995);putative father XXXXX; and paramour XXXXX XXXXX (DOB: XX/XX/1985). d. Substantiated abuse and neglect letter from CHFS to XXXXX XXXXX dated
2.
3.
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XX/XX/2011. e. Continuous Quality Assessment (CQA), dated XX/XX/2011. f. Fatality/Near fatality-related administrative paperwork. g. Binders of medical records, pertaining to the subject children and their deceased sibling XXXXX. Medical notations were consistent with those reflected in the CPS file. h. Service/Process/Visitation Notes, spanning the course of these proceedings. i. Dependency Calendar document, dated XX/XX/2011, noting that the respondent mother remains under consideration in relation to a criminal and CACU investigation of the infant XXXXXs death. j. CHFS compiled chart, detailing missed medical appointments and pertaining to the child XXXXX, spanning XX/XX/2010 and the date of death, XX/XX/2011. k. Louisville Metro EMS and PD Reports, reviewed in connection with the instant incident (resulting in the death of the subject childrens sibling XXXXX). l. Aftercare and Parenting Plans, signed by XXXXX XXXXX, dated XX/XX/2011. m. Pictures of subject children.
REVIEW OF RECORDS:
Behavioral History: No information was available. Educational History: The respondent mother was cited to have reported that she received a diploma from XXXX High School, in 2007. Indeed, XXXX was said to have partnered with XXXX High School for Pregnant Teens, which the respondent attended. [The respondent was denoted to have been 16 years of age when she produced the oldest subject XXXX]. The respondent mother was cited to have reported that she attended XXX in 2008. She was also said to have been enrolled in a nursing curriculum. At some juncture shortly following enrollment, the respondent terminated her educational pursuits owing to need to work to provide for the subject children. Family Developmental and Psychiatric History: Little to no information was available, with the exception of citations that family members reported that the respondent mother is a "good mother, works, and has benefits to support the family." Residential History: The respondent mother was cited to have reported that she established independent living at 18 years of age from wages earned through full-time employment at McDonalds. A Cabinet CQA, dated XX/XX/2011, denoted that the respondent mother was, at that time, residing with a paramour, XXXX XXXX. She was cited to have established this romantic union following the dissolution of her relationship with putative father XXXX. Citations suggested rapid cohabitation inasmuch as the respondent mother was noted to have established a joint residence with paramour XXXX only 3 weeks following a domestic violence incident with putative father XXXX. Occupational History, Financial Functioning, and Interpersonal Relationships (Peers): No information was available. Familial Relationships: With the exception of a citation describing verbal and a near physical altercation between maternal and paternal family members at a Court hearing, no information was available.
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Romantic Relationships: The record indicated that the respondent mother has maintained two romantic unions, one of which was with putative father XXXX. The respondent mother and putative father XXXX were cited to have been romantically involved since high school and cohabitated from the time XXXX was born. The respondent mother reported that she expulsed putative father XXXX from the home in December (seemingly, of 2010): "He was always beating me in front of the kids." She also was denoted to have alleged that putative father XXXX was unemployed, was spending time on the streets, was consuming Marijuana, had torn apart the home in an attempt to locate Marijuana, and attempted to steal from her. A Facilitated Staffing Action Plan, CHFS/P&P, dated XX/XX/2011, denoted that XXXX XXXX is the putative father of the subject children. Paternity was to be established. The respondent mothers relationship with putative father XXXX was denoted to have been, at minimum, punctuated with domestic violence. Indeed, documentation (dated XX/XX /2011) indicated that putative father XXXX was slated to attend a course of domestic violence offender treatment due to severe domestic violence that he allegedly perpetrated against the respondent mother. A Cabinet CQA, dated X/2011, denoted that putative father XXXX acknowledged domestic violence in the romantic union, purporting that the last incident of interpersonal violence had occurred 3-4 years ago. He was documented to have reported that he was previously ordered to complete an Anger Management curriculum. Per his self-reports, he successfully completed said course. Putative father XXXX was cited to have been the child victim of neglect (circa XX/XX/1998), Dismissed. Putative father XXXX was denoted to have the following criminal history: Criminal Trespass, Dismissed, 2005; Possession of Marijuana, Dismissed, 2009; Flagrant Non-Support, pending 2010; Possession of Marijuana, Guilty, XX/2010; Possession of Marijuana, Guilty, XX/2010; and XX/2010, Carrying a Concealed Deadly Weapon, Dismissed. Paramour XXXX (aka XXXX) XXXX was denoted to have been described by the respondent mother to be a friend who sometimes stayed overnight. During these stays, he was cited to have had access to the subject children. An extensive criminal history was reviewed, with the majority of allegations pertaining to drug-related offenses. Paramour XXXX was also cited to have a CPS history, with an open case with supervised visits ordered for contact with his own children. (Indeed, as of X/2011, the respondent mother was cited to have reported that paramour XXXX had recently been awarded either unsupervised visitation with or was returned custody of his minor children). Cabinet records consistently denoted that paramour XXXX was/is unstable, unemployed, and does not have his own housing: It appears he is a drug dealer a conclusion that was cited to have been evidenced by a persistent drug dealing criminal history. A notation indicated that paramour XXXX impressed as harboring affection for the subject children and appeared to be protective. However, concerns were noted that he lacked understanding of why he and the respondent mother are engaging in significant and repeated domestic violence in the children's presence. The respondent mother was cited to have described paramour XXXX as "a good guy." The couple was cited to have met in XXXXXX 2010. The respondent mother was cited to have been aware that paramour XXXX consumed Marijuana. Although she denied that she and paramour XXXX were cohabitating, she was cited to have acknowledged that he was in and out of the home that she shared with the subject children. The respondent mother was denoted to have stated that she allowed paramour XXXX access to the subject children although she had no knowledge of his background or legal history. [A later citation noted that she conceded at least some awareness that paramour XXXX had legal difficulties as she had previously attended court with paramour XXXX; She was also cited to have stated that she did not ask him about the underlying reason for the Court date as she did not want to "be in his business."] The respondent was further cited to have stated that she allowed paramour XXXX to bring a gun into her home as a response to the alleged threats of putative father XXXX. She denied awareness that paramour XXXX had brought Cocaine into the home. The respondent denied that paramour XXXX is/was a violent individual: "Wouldn't hurt the kids and he wasn't violent with me." The respondent denied that paramour XXXX was
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ever charged with the independent care of the subject children. Cabinet citations alleged that paramour XXXX has a 25-page criminal history and uses the alias XXXX XXXX. He was also alleged to use different dates of birth and socials. Per TWIST and AOC checks, paramour XXXX has a history of violence. APS denoted that paramour XXXX was listed as a perpetrator. The following citations were available: XX/XX /2007, XX/XX /2007, XX/XX /2009, XX/XX /2009, APS, CPS, CPS, APS, Perpetrator, Substantiated Services Not Needed Substantiated CPS Substantiated Perpetrator
Paramour XXXX was also listed as the child victim in an unsubstantiated CPS neglect report, 05/16/1999. XX/XX /2011, XX/XX /2010, XX/XX /2009, XX/XX /2009 XX/XX /2009, XX/XX /2007, XX/XX /2007, XX/XX /2007, Enhanced First Degree, TICS/Cocaine, First Offense Pending First Degree, TICS/Cocaine, First Offense, 2 counts Drug Paraphernalia/Possession Violation of Kentucky EPO/DVO, Guilty EPO filed by FemaleX, Dismissed Loitering, Guilty DUI, Guilty EPO filed FemaleX Tampering with Physical Evidence (Dismissed), Possession of Marijuana, Obscuring the Identity of a Machine Under $300, Fleeing or Evading Police, Second-Degree, Dismissed Possession of Marijuana, Use of Paraphernalia Possession of Marijuana, Dismissed Trafficking Marijuana (Dismissed), Tampering with Physical Evidence, Possession of Marijuana, and Loitering Trafficking in a Controlled Substance, First Offense
XX/XX /2006, XX/XX /2005, XX/XX /2003, XX/XX /2003
Several additional dismissed allegations and assorted traffic offenses were also denoted. Reproductive History: The respondent was cited to have produced the oldest subject child XXXX at the age of 16, the subject child XXXX at 19, and the now deceased child XXXX at the age of 21. No additional information was available. Medical History: There were no indications that the respondent mother is anything other than medically healthy. Psychiatric/Mental Health History: No information was available. Criminal History: AOC records indicated that the respondent mother sustained arrests in connection with: XX/XX /2009 XX/XX /2009 Robbery, Second Degree, Amended to Theft by Unlawful Taking Guilty Assault, Fourth Degree, Minor Injury, Guilty
The respondent mother was also cited to have sustained an arrest in connection with drug possession and/or trafficking charges (Cocaine) in XX/2011.
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Cabinet citations indicated that the respondent is the subject of an ongoing CACU investigation pertaining to the death by blunt force trauma of the subject childrens infant sibling, XXXX. Substance Abuse/Addiction: A Cabinet-generated Court Report, dated XX/XX/2011, denoted that the respondent mother completed JADAC basic education classes (substance abuse) and tested negative for substances on XX/XX /2011. Documentation from Accurate Drug & DNA cited that the respondent mother tested negative screens on XX/XX /2011, yet positive for Marijuana, on XX/XX /2011 and XX/XX /2011. The respondent mother was also cited to have failed to present for random drug screens on XX/XX /2011 and XX/XX /2011. Concerns were noted in Cabinet documents inasmuch as the respondent mother was cited to have lost 40 pounds in last 2 months. Hence, the records alluded to suspected drug use. Putative father XXXX was to attend a random drug screen on XX/XX /2011, yet did not show. No further information was available. Previous History of Child Welfare Investigations: In addition to the instant proceedings, the respondent mother was cited to have had the following CPS contacts (per TWIST): XX/XX/2010, XX/XX/2007, XX/XX/2007, Neglect, Lack of Supervision, Substantiated CPS, Risk of Physical Harm, No Services Needed APS DV, Putative Father XXXX (cited to have grabbed NM by hair in front of child); No Findings Specified
On XX/XX/2011, Officer XXXX, who w as cited to have been a collateral source from previous child welfare investigation, reported he responded to reports that the subject children had been left alone in XXXXX of 2010. When he arrived at the respondent mothers residence, the home was reported to have been a mess, strong smell of fresh Marijuana. Officer XXXX clarified that the smell was not one of Marijuana smoke, but of fresh Marijuana itself. Thus, it was Officer XXXXs opinion that Marijuana was being sold from the apartment however, he could not locate suspected Marijuana stores: "He said that with the condition of the home and NM's attitude, there was no way he was going to leave the children with NM. He said that he spoke with CPS Child Protective History and Current Allegations Related to the Subject Children: A Substantiated Abuse or Neglect letter, from CHFS to the respondent mother, dated XX/XX/2011, indicated that physical abuse of the subject childrens infant sibling, XXXX XXXX, by the respondent mother and paramour, XXXX XXXX "XXXX" XXXX, was substantiated. The substantiation was indicated to have been largely based upon the findings of the medical examiner that this child XXXX died as a result of multiple inflicted blunt force traumatic head injuries. Postmortem examination of the subject childrens infant sibling XXXX XXXX, signed by County Coroner, XXXX XXXXt, M.D., performed XX/XX/2011, report completed XX/XX /2011, indicated traumatic closed left head injuries, with additional notations of laceration of corpus callosum, cerebral edema, parietal skull fracture, scapular subgaleal hemorrhages representing impact sites, diffuse subdural and subarachnoid hemorrhages of the brain and spinal cord, multifocal cortical contusions and lacerations of right inferior frontal, left inferior frontal, left temporal, right inferior temporal, left occipital, and right cerebellar cortices. Also denoted were intraventricular hemorrhage (right temporal pole of lateral ventricle), multifocal axonal injuries, bilateral retinal and optic nerve hemorrhages with retinoschisis, and subconjunctival petechial hemorrhage of the right eye. Submental chin contusions and back/abdominal contusions were cited. Left flank and upper arm patterned injuries, as well as multiple abrasions of the face and neck were also present. Hence, the child XXXX was cited to have endured multiple inflicted abusive blunt force injuries to multiple body regions. Physical and circumstantial evidence of medical neglect included severe diaper rash, history of heart murmur, failed newborn hearing screens, multiple missed appointments rendering a lack of appropriate medical follow-up care, multiple missed well-child and
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sick-child pediatric appointments rendering a lack of appropriate medical care (per history from investigative and hospital reports), and the infant has been found and placed in supine position in playpen. Status post emergent resuscitative efforts was denoted to be full arrest. The infant XXXX was noted to have been pronounced dead within an hour of initial evaluation in the Emergency Department. The reviewed Death Certificate listed the immediate cause of death: "Multiple inflicted blunt force traumatic head injuries." Attached were neuropathology reports dated XX/XX/2011, synopsized within Dr. XXXXXs report, and prepared by XXXX XXXX, M.D., PhD. The respondent mother was cited to have denied that the infant XXXX died as a result of said medicallyestablished injuries and has provided no explanation for possible injuries. Paramour XXXX was denoted to have refused to cooperate with CHFS. The respondent mother and paramour XXXX were noted to have been the sole caretakers of the now deceased infant at the time of death. Hence, fatality-based physical abuse was substantiated against both the respondent and paramour XXXX. Additionally, it was found that both adults continuously or repeatedly failed or refused to provide parental care for protection of the infant XXXX and failed to seek medical treatment for this child (who undoubtedly suffered physically for some time prior to her subsequent death). Neglect of the subject children was also substantiated against the respondent mother as she was deemed to have created a risk of harm to these children by exposure to paramour XXXX. Indeed, paramour XXXX, by virtue of his CPS, APS, and criminal history was established to exhibit high-risk behaviors. Further allegations of neglect of the child XXXX XXXX and the subject children XXXX and XXXX XXXX were also substantiated against the respondent mother owing to deplorable physical conditions of the home that constituted health and safety hazards. Indeed, the subject children's beds were observed to have no sheets; the kitchen had rotted and old food lying about and within reach of the subject children; and the subject children were cited to have been allowed access to a loaded weapon and Cocaine (both of which were unsecured in the apartment). Medical Neglect was also substantiated against the respondent mother on behalf of the now deceased child XXXX. Specifically, this child was diagnosed (at birth) with a hearing deficiency and a heart murmur. The respondent mother was deemed by the Cabinet to have failed to attend audiology appointments and an echocardiogram with a total of 4 appointments missed. The child, XXXX, was also cited to have missed "nearly every appointment for routine well-child checks." The subject child XXXX was denoted to have missed nearly all routine medical well-child checks, as well as was diagnosed with anemia (for which the respondent mother was cited to have failed to fill a prescription for iron). The subject child XXXX also missed nearly all appointments for routine medical care. The subject child XXXX was also referred to an endocrinologist in XXXXX, 2009. The respondent mother was cited to have failed to follow-up on this referral. Medical records were denoted to have reflected there were several prescriptions for the subject children that were never filled by the respondent mother. A CPS home visit to the residence of the respondent mother was cited to have revealed unkempt conditions as well as health and safety hazards. The kitchen was denoted to have had several dirty dishes. The table and cabinets were allegedly covered with dirt, debris, and other old, molded food. There were no sheets on the beds of the infant child XXXX and the subject child XXXX. The respondent mother's bedroom was observed to be "impassible, as there were clothes strung about all over the floor." Additionally, one to two ounces of Cocaine were located in the trash can a can which was only 2 feet high and was well within reach of the subject children. Cocaine was also located in a diaper (in the trash can). There was a loaded gun found in the bottom dresser drawer within reach of the children. Old medication, dated XX/XX/2010, was also denoted to have been observed, as was an old nebulizer. A CQA, dated XX/XX /2011, indicated that the now deceased child XXXX was discovered by the respondent mother, per her self-reports, in the morning: "Stiff, cold, and not breathing." EMS was contacted and death was pronounced at 8:20 AM on XX/XX/2011. There was a bite mark on this child's body and a small abrasion on the upper left forehead. A CT scan was completed after the child's death, which was cited to have demonstrated multiple areas of bleeding in the brain that are consistent with being shaken.
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The respondent mother was cited to have stated that the now deceased child XXXX had been sick and throwing up since XX/XX/2011. In response, she was said to have taken the infant XXXX and the subject children to the doctor. XXXX was said to have been given Pedialite. However, medical records from this date reflected a no show for the alleged appointment. At such time the caseworker explained the allegations that would be listed in the petition, "XXXX became irate, belligerent, and continues to state that her child died at the hospital and that autopsy results are not back." She was described as belligerent and threatening. On XX/XX/2011, a hearing was held. Security was denoted to have had to break up several arguments and near physical altercations between maternal and paternal family members. Based upon putative father XXXX's behavior, Judge XXXX was cited to have informed the Cabinet that there was no obligation to consider Mr. XXXX for placement or visitation (until such time he established paternity). Subsequently, paternity was acknowledged. [It should be noted that, as best as the examiner could ascertain, acknowledgment of paternity was verbal and not based upon DNA analysis]. A Court Report, dated XX/XX/2011, denoted that the respondent mother "continues to state that her child, XXXX, died of an illness and not any type of inflicted injury." The subject child XXXX was denoted to have been interviewed by CPS and reportedly made multiple references to domestic violence in the home. This child was cited to have explained that her old daddy (putative father XXXX) hit her mom "real bad" and he hit her everywhere. This subject child was also cited to have stated that the respondent mother had been injured by putative father XXXX. The subject child XXXX also was cited to have reported that paramour XXXX and the respondent mother argue. This child denied having ever seen these parties physically fight. The subject child XXXX did, however, state that she has witnessed paramour XXXX hit the infant XXXX, as well as observed him throw the baby on the floor. This subject child was also stated to have stated that she and the subject child XXXX are left alone "with no big person." Physical inspection of the subject child XXXX resulted in the following notation: "Sick and had a horrible snotty, runny nose." This subject child was also cited to have had what appeared to be ringworm on an unspecified place on her head. Both female subject children were cited to have had unclean vaginal areas: "A horrible odor and they had not had a bath in at least several days." Daycare provider, XXXX XXXX, Director of XXXX XXXX Daycare, was cited to have reported that the subject children were enrolled XX/XX/2010 and withdrawn on XX/XX/2010. Ms. XXXX was cited to have alleged multiple problems with the respondent mother. For example, Ms. XXXX reported that the respondent mother did not supply documentation of immunization for the subject children. Indeed, the now deceased child XXXX was prohibited from returning to daycare until such time immunizations were current. The subject child XXXX was noted to have been sick with a high fever. Despite attempts, daycare workers could not contact the respondent mother. When she was located, the respondent mother allegedly denied that this child was sick with a fever: "If she comes home, she will just tear up the house." The respondent mother was cited to have been informed that she could not bring the child back to daycare unless a doctor's note was submitted regardless of said request, no note was produced. Ms. XXXX also alleged that the subject children were very often sick and the respondent mother would never take them to a doctor. Moldy bottles were alleged to have been brought into the Center by the respondent mother. Staff would reportedly clean the bottles. When this issue was discussed with the respondent mother, she denied that the substance was mold (alleging that said debris was cereal). The subject child XXXX was reported to have eaten as if she was "starved." The subject child XXXX was alleged to have stated to daycare workers that she saw her daddy beat her mother up. Prior to her death, the infant child XXXX was said to have had a severe diaper rash with blisters. The car seat was reported to have smelled and was mildewed. Additionally, the respondent mother was cited to have been never home when the van driver would arrive to collect the children for daycare. Rather, the respondent mother was alleged to have called the Center, requesting pick-up where she was, which was all over the place (beauty shop, grocery store, nail shop). It was also alleged that the respondent mother did not have a diaper bag for the now deceased child XXXX. The respondent mother was cited to have failed to
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regularly supply the Center with diapers for this child. It was Ms. XXXXs cited opinion that the respondent mothers functioning had declined in the months preceding the instant child welfare action. Specifically, Ms. XXXX suspected that the respondent mother may have been demonstrating symptoms of mental illness. A family member was cited to have contacted the homicide office alleging neglect on the part of the respondent mother in XXXXX, 2010. Specifically, said Reporting Source (RS) alleged that there was no food in the respondent mothers home and there was no formula for baby XXXX. Lending a degree of reliability to these reports were allegations that the respondent mother had failed to provide medical care (reports which were consistent with later findings of CPS based upon the subject childrens and the infant XXXXs medical records). The RS also alleged that the respondent mother maintained inappropriate expectations for the children; left the children home alone; left the children with teenage boys and other inappropriate caretakers; and abused drugs while providing care for the children. The most recent citations indicated that the respondent mother continued to express that she does not understand why the subject children have not been returned to her care. Compliance with Court Mandates and Cabinet Recommendations: Overall, the respondent mother was cited to have been non-compliant with Cabinet recommendations. Records indicated that the respondent mother has been marginally complaint with Court mandates. A Court Report, dated XX/XX/2011, denoted that the respondent mother has been unwilling to attend individual counseling services. [Verbal information provided by the Cabinet on or about XX/XX/2011, indicated that the respondent mother has recently enrolled in mental health treatment]. Regardless, an intake was scheduled for XX/XX/2011 with regard to the initiation of Seven Counties parenting and domestic violence curricula (Transitions Program). However, the respondent mother was denoted to have advised the CHFS worker, on XX/XX/2011, that she would not attend said appointment owing to lack of transportation and finances. The respondent was denoted to have refused to sign a parental plan on or about XX/XX/2011. This plan was cited to have denoted the need for JDAC assessment and follow recommendations, completion of parenting classes, maintenance of a clean and safe environment at all times, participation in scheduled visitation with the subject children, seeking employment, submission to random screens, attendance of individual counseling to address DV and victimization issues, refraining from drug and alcohol use, and cooperation with the Cabinet. Although the respondent mother presented to JADAC, she was cited to have refused to complete Jefferson Alcohol and Drug Abuse Center paperwork. On XX/XX/2011, the respondent mother was cited to have refused to attend a counseling intake at Transitions. Her objections included the geographical distance between her home and the program, a lack of funds for transportation, and an alleged stated belief that the Court will return the subject children regardless. Service Notes, spanning the course of these proceedings, reflected the above, as well as concerns that the respondent mother told the subject children they would be coming home on XX/XX/2011. Additional allegations of poor supervision were denoted inasmuch as the respondent was described to have redirected a subject child only after said child almost fell out of a chair while standing on it. The respondent mother was also consistently noted to have refused to sign paperwork: "Not going to sign anything she did not have to and she was not doing anything on her case or paying child support until Court-ordered to do so." The respondent was also cited to have refused to provide pictures of the subject children for their Life Books and would not do so until so ordered by the Court. Parent-Child Bonding: No qualitative information about bonding or attachment was available. One notation indicated that that the subject child XXXX appeared to be happy to see the respondent mother and greeted her with a hug.
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Status of the Subject Children: A Facilitated Staffing Action Plan, CHFS/P&P, dated XX/XX/2011, denoted that these siblings are positively bonded to each other. The subject child XXXX was cited to be developmentally on-target per First Steps assessment. This childs foster mother was cited to have reported that the child XXXX is sometimes a very angry child who growls when she is mad and has tantrums. The subject child XXXX was cited to be verbal, outgoing, and outspoken. She was also described as mature and prone to assume a maternal role for her sibling XXXX. Some concerns regarding possible mild speech delays were denoted.
CLINICAL INTERVIEW, PERSONAL HISTORY:

Prior to the initiation of the instant interview, the respondent stated her awareness of the limits of confidentiality. She also communicated an understanding that a report, based upon her self-reports, would be forwarded to this Court, counsel, and the Cabinet. The respondent presented as an adequately groomed adult female who comported herself in a superficially cooperative and covertly hostile (although, at times, overtly hostile) manner. Indeed, while she provided a response to the majority of the examiners queries, she provided a sanitized account of her background history as juxtaposed against the cumulative record and collateral information. In addition to these external inconsistencies, her spontaneous verbal account was rife with internal inconsistencies and, at times, was lacking in face-value. While the respondents reality boundaries were essentially intact and she did not endorse any symptoms of mental illness sufficient to allow for diagnostic impressions, her thinking was, at times, odd and quasi-delusional in quality. Without question, the respondent significantly minimized what were documented and self-reported to be significant difficulties in living. The respondent presented an idealized view of her parenting, failing to acknowledge what has been highly compromised personal and parental judgment. Parental and personal judgment have been abysmal. Owing to pathological narcissism, the respondents ability to empathize with the plight of the subject children (and the subject childrens deceased infant sibling XXXX) was impaired. The respondent lacked insight into self and did not acknowledge any parental weaknesses. Her stance indicated low frustration tolerance and a quickness to anger. She was deemed to be a reporter of poor reliability. It should be noted that, throughout the interview, the respondent would tangentially interject religious responses. The respondents references to religion were atypical as questions posed did not pull for such responses. Indeed, although the respondent did not impress as psychotic, some of her articulated thoughts had a delusional tinge. Concerns were noted regarding undiagnosed mental illness inasmuch as the respondent was markedly tangential and, at times, even circumstantial. Also present were mild loosening of associations and rambling thought processes. However, when diagnostic categories were explored, the respondent denied any and all symptoms. As such, a specific diagnosis could not be ascertained although there were indications of an underlying mental illness. Family of Origin & Childhood History: The respondent reported that she was born and raised in Louisville, a twin and one of her mothers 7 children. The respondent initially purported that she was unaware of why her mother did not function as her primary caregiver, although later noted that her mother was addicted to substances. Indeed, an internal inconsistency was revealed in the respondent's narrative when she later reported that her mother had been "clean and sober" for now 5 years. When queried if her mother's addiction had compromised her parenting, the respondent replied "not sure." The respondent reported that her great aunt and uncle ultimately became her adoptive parents and, per the respondent self-reports, it appears that, in all likelihood, her mother's parental rights were terminated. The respondent stated that although she has met her biological father, he has never played any active role in her life. When queried, the respondent stated that she was unaware of any of the factors that led her father to be a disinterested and/or inactive parent. When queried if she estimates that the lack of an invested and caring father has had any impact upon her life, the respondent tangentially replied: "God is my father."
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Family Medical/Psychiatric History: The respondent provided vague responses regarding a possible family history of psychiatric and/or medical anomalies. A history of asthma was acknowledged. Maternal family history is positive for addiction. Responses were similarly evasive regarding a possible family history of criminality or incarceration. Family Relationships: The respondent reported that she and her mother presently share an amicable relationship. When able, the respondents mother financially assists the respondent. The respondent's mother was said to have produced the respondent's half-brother approximately 5 years ago. The respondent reported emotionally close relationships with 3 of her sisters, including a twin. However, despite said emotionally close relationships, the respondent denied knowledge as to whether or not these individuals have a history of medical or psychiatric anomalies and/or any history of criminality. When queried, the respondent stated that the Cabinet/CPS had been involved with her twin sister (XXXX), but only as related to the respondent mother's contact with her nieces/nephews (XXXX's children). When queried, the respondent reported that XXXX is employed at McDonald s. The respondent reported that she is unaware of the employment status of her very close sister, XXXX. Similarly, she denied awareness if XXXX receives any monies for SSI and/or has been diagnosed with psychiatric illness. When the examiner noted that it is unusual that she would be unaware of such basic details regarding close members of her family, the respondent became truculent and indicated that she has little time to focus on the activities of her now adult siblings and family members: "I'm keeping up with me." Regardless, the respondent reported that she and her family members provide each other with emotional support when needed. Childhood & Adolescent Behavioral History: When queried, the respondent reported that she was a well-behaved and rule abiding youngster who was never the frequent subject of school and/or home-based discipline. Although overtly denied, the respondent's narrative was suggestive of an adolescent rebellion inasmuch as the respondent was said to have produced her first child at 16 years of age and was expulsed from her adoptive home as a result of failure to follow household rules and regulations. The respondent denied having ever run-away, engaged in fistfights, sustained school-based discipline in form of suspensions/expulsions, a history of arrest as a juvenile, having been disrespectful to adults, and/or having been truant or cut classes. [It should be noted that, at a later juncture in the interview, the respondent referenced a suspension which occurred at the age of 13 years, in connection with misconduct on the school bus]. The respondent denied any history of expulsion. Education: The respondent reported that she is intellectually intact, was consistently enrolled in a Regular Education curriculum, and graduated at the age of 17 years "with a 1-year-old." The respondent reported that she attended a specialized program (TAPP) for pregnant teens. Any history of learning difficulties was denied. The respondent reported that she achieved average grades in school and at the time of high school graduation, her GPA was a 2.8. The respondent reported that she enrolled in Junior College, at JCC, in 2008, and attended for 3 months before prematurely terminating the semester as she was overwhelmed with the responsibilities of maintaining a full-time job, providing childcare as a single parent, and attending college. The respondent stated that she has plans to pursue a degree in Nursing and noted that she has enrolled in a formal Nursing curriculum for the upcoming fall semester of 2011. Indeed, the respondent reported that she aspires to become a Registered Nurse and she was aware that she will need to earn a degree to do so. However, as explored, the respondent was unable to state any of the classes in which she had enrolled and was also unaware of the academic and a licensing rigors involved in achievement of said goal.
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The respondent also initially reported that she had completed a CNA curriculum. However, when pressed, the respondent conceded that she did not finish the curriculum nor sit for the examination. She externalized the blame for her failure to bring this goal to completion: "They were going to help me pay thereby projecting the onus for her onto Food Stamp workers and the Red Cross. When asked to estimate her reading level, the respondent reported that she reads on a college level. [As assessed by the examiner per a standardized test of reading, the respondent read at the 5 th grade, 9th month level]. Occupational Functioning: When queried if she had ever maintained a full-time or part-time position, the respondent defensively stated that she has had "plenty of jobs." Between the ages of 18 and 21 (at present) the respondent reported that she has had approximately 15 jobs. Exploration of the respondent's work history was markedly difficult owing to the presence of multiple internal inconsistencies. Indeed, when her narrative and dates were juxtaposed, it was clear that the respondent was either genuinely confused regarding her occupational history and functioning and/or was deliberately misleading the examiner. Regardless, as best as the examiner could ascertain the respondent has primarily worked at McDonalds, with her longest period of employment lasting 2-3 years. Across two different McDonald's locations were conflicts with coworkers and supervisors. As explored, the respondent projected the onus for any and all work related difficulties onto others and external circumstances beyond her control. The respondent reported that she was fired from a position at McDonald's because her employer refused to allow her to sit down when she was 6 months pregnant. Additionally, the respondent was said to have needed to sit down because a former coworker contacted her on the telephone and "threatened me." When pressed, the respondent reported that this individual threatened to do significant bodily harm to the respondent. The respondent was said to have ultimately determined that this individual was playing a prank of some sort. Regardless, the respondent reported that she perceived herself to have been genuinely threatened. When queried, the respondent reported that she did not contact the police. When asked why she would not do so when she felt genuinely threatened by an unprovoked individual, the respondent was unable to provide a viable rationale. The respondent reported several short term and holiday-based positions at various locations, including Kmart and at the Galt House. The respondent reported that she last worked approximately 6 months ago and is presently looking for employment. The respondent stated that her immediate future plans involve resumption of a Nursing curriculum at JCC and seeking employment. Financial Functioning: The respondent reported that she has significant financial stressors, although is financially assisted by both her sister and her mother. The respondent was also said to receive a Food Stamp allotment. The respondent also reported that she is currently receiving unemployment, initially indicating a misconception that there is no time limit for unemployment indeed, she indicated her understanding that she will be able to collect these funds indefinitely. However, with guided questioning provided by the examiner, the respondent impressed as having a dawning awareness that while there may be extensions available, ultimately, these funds will come to an end. The respondent stated that she anticipates that she will be eligible for rental monies/housing assistance from Child Protective Services. Indeed, the respondent reported that her twin, XXXX, received financial assistance from CPS in the form of 5-6 months of rent subsidies. As such, the respondent reported that she intends to talk with her current caseworker to secure similar assistance for herself. When the respondent was queried with regard to her previous reports that said XXXX assists the respondent financially when she herself has required financial assistance from CPS, the respondent had no viable rationale.
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Residential History: As self-described, the respondent has been able to establish independent living. However, residential history was, as self-described, remarkable for multiple relocations and chaos. The respondent reported that she resided with her great aunt and uncle until she was approximately 16 years of age and relocated to live with another adult residential supervisor. The respondent reported that as she was not following rules, her great-aunt and uncle were unable to maintain her in their household. When queried, the respondent reported that her sole violation was talking to and hosting boys in the house. The respondent was said to have resided with said residential supervisor/relative for approximately 2 years. The respondent reported amicable and emotionally close relationships with said individual. When the respondent was 18 years of age, she was said to have secured her own apartment (primarily subsidized by her salary from McDonald s). The respondents sister and mother were also said to have assisted the respondent mother in securing and maintaining said apartment. The respondent was said to have resided in this apartment for only 6 months prior to relocating. The respondents rationale for moving was said to have been an understandable objection to remaining in her apartment as an individual had been killed in front of her daughter in this neighborhood. The respondent stated that her concerns for her and her childs safety justified breaking the lease. The respondent acknowledged that she defaulted on monies owed to the landlord. The respondent was said to have then resided in an uncle's home for approximately 7 months prior to renting a home that she maintained with monies from her salary. The respondent remained in this home for but 5 months prior to relocating. The respondent reported that she was leasing on a month-to-month basis and that she vacated this home to seek a home in a better neighborhood. The respondent reported that she then maintained an apartment for one and one half years and relocated owing to her dislike of the negative neighborhood. The respondent was said to have relocated to her current home, at which she has resided for 2 months. She stated that she has no immediate plans to move. She stated that the home is owned by her sister and that she receives financial help for her mother to pay rent and/or expenses. When queried, the respondent reported that she does not receive a Public Housing supplement. The respondent reported that she has indeed applied for Public Housing and has been on a wait-list since 2007. The respondent reported that when she was in the hospital delivering the subject children's now deceased half-sibling XXXX, paperwork from Section 8/Public Housing came in the mail. As she did not immediately return said paperwork, she was placed at the bottom of the list. The respondent denied that the failure to return paperwork in a timely manner and/or attend a scheduled Section 8 appointment was in any way her fault as she was 2 days postpartum at the time the meeting was originally scheduled. Owing to this violation, the respondents Public Housing case was placed on hold and she was issued an extended time penalty (thereby rendering her ineligible in the foreseeable future). In summary, the examiner tallied that the respondent has relocated a minimum of 5 times in 3 years. In response to the examiner's question if such frequent relocation was chaotic, the respondent denied such. Interpersonal Functioning: Although the respondent sought to withhold information from the examiner, the respondents self -reports indicated that she has experienced strife with supervisors and co-workers, as well as maintained turbulent romantic unions characterized and/or punctuated by domestic violence. Although not directly acknowledged, the respondents narrative alluded to strained relationships with staff at the subject childrens former daycare and her current CPS caseworker. Romantic History: The respondent has never been married. The respondent described two serious romantic unions in her lifetime, the first of which was with putative father XXXX. The respondents most recent romantic union
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was with paramour XXXX. As both unions are temporally related to the underlying incident, the reader is respectfully referred below to ACCOUNT OF THE INSTANT ALLEGATIONS & CHFS INVESTIGATION. Reproductive History: The respondent reported that she has been pregnant on 3 occasions. Each pregnancy was said to have produced an essentially medically healthy child. The respondent reported that none of her pregnancies were planned. The respondent denied any history of abortion or miscarriage. The respondent reported that she produced the subject child XXXX, who is now 5 years of age, when she was 16 years of age. The almost 3 year old subject child XXXX was produced when the respondent was 19 years of age. The subject children's now deceased maternal half-sibling XXXX was cited to have been born when the respondent was 20-21 years of age. The respondent reported that she is currently using an internal/implanted form of birth control that she soon intends to have removed. The respondent stated that she does indeed plan to have additional children, perhaps after she marries. Medical History: The respondent denied any history of medical illness, noting that she is healthy. Psychiatric/Mental Health History: The respondent reported that her psychiatric history is uniformly negative. Specifically, the respondent reported that she has never been referred to a psychologist or psychiatrist; has never sustained a psychiatric hospitalization; and has never been prescribed psychotropic medications. When queried, the respondent stated that, to the best of her knowledge, others have never suspected that she has any form of mental illness. Similarly, the respondent reported that, in her estimation, she does not present with psychiatric features in any way. When queried if she has ever demonstrated violent behavior, the respondent initially denied any history of aggression or violence. However, she later reported that she did indeed sustain an arrest in connection with an assault at a Wal-Mart in 2008. [For additional information the reader is respectfully referred below to Criminal History]. Substance Abuse/Addiction: The respondent initially denied any history of substance use/abuse/addiction. However, she ultimately reported that she began what she characterized to be the occasional use of Marijuana at the age of 16 years. She stated that she last used Marijuana in xxxx of 2011 and has not used since. Although she was provided the opportunity, the respondent did not note the positive drug screens described above in RECORD REVIEW. The respondent denied that she ever sold drugs. History of Arrest, Incarceration & Criminal Behavior: The respondent reported that she has sustained 3 arrests in her lifetime all of which occurred at18 years older. The respondent reported that she was arrested at the age of 18 years in connection with allegations of assault at a Wal-Mart. In explanation, the respondent reported that her sister was shoplifting. When the respondent exited the store with her sister, a woman, for apparently unexplained reasons, "attacked me." When queried, the respondent conceded that this individual was a security employee: "Attacked me, ran up on me, pulled me." The respondent stated that her aggressive response was, in her estimation: "Selfdefense." The respondent was said to have been found guilty and received 2 years probation. When queried if she violated the terms and conditions of her probation, the respondent obfuscated and the examiner was ultimately unable to ascertain if the respondent was adjudicated to have engaged in a Violation of Probation. The respondent reported that her second arrest occurred in connection with allegations of drug trafficking. Specifically, in connection with the underlying incident, drugs were found in the respondent's trash can.
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The respondent attempted to minimize the significance of having been indicted by the Grand Jury and reported ignorance as to whether or not she has active charges pending. However, directed questioning ultimately revealed that the respondent was aware that she will have to present in Court to answer to said allegations. The respondent reported a third arrest, which was said to have also occurred in connection with the underlying incident: "They said the baby was murdered." To the best of the respondent's knowledge, she does not have criminal charges currently pending, and she is uncertain if she was formally arrested in connection with allegations of child abuse, neglect, wanton endangerment and/or murder/homicide/manslaughter.
ACCOUNT OF INSTANT ALLEGATIONS & CHFS INVESTIGATIONS:

Instant Allegations: Contrary to the reviewed records, the respondent reported that the instant proceedings represent her first contact with Child Protective Services. The respondent reported that she has maintained 2 serious romantic unions in her lifetime, the first of which was with the subject children's putative father, XXXX XXXX. The respondent's second serious romantic union was said to have occurred with an individual by the name of XXXX. The respondent reported that she maintained a romantic union with putative father XXXX between the ages of 15 and 21 years. She reported that putative father XXXX had "tried to be" a good father to the subject children. To her credit, the respondent acknowledged the presence of domestic violence, noting that the relationship was not characterized, but was punctuated, by domestic violence. The respondent reported that she remained in the romantic union because she was "scared to leave." The respondent reported that putative father XXXX does indeed have a criminal history, in connection with allegations relating to Marijuana use/abuse/addiction and/or distribution, child support violations, and acts of domestic violence. Additionally, when queried, the respondent reported that putative father XXXX did not financially contribute to the respondent's household/the support of the subject children to the contrary, he was said to have lived a parasitic existence. The respondent reported that the second individual with whom she has maintained a serious romantic union is paramour XXXX. The respondent denied that she and paramour XXXX cohabitated. The respondent reported that she met paramour XXXX in XXXX of 2010, underscoring that paramour XXXX did not begin to stay overnight with her in XXXX of 2011. The respondent reported that, in general, the relationship was healthy yet, regretfully, paramour XXXX dissolved the union owing to the chaos and stress surrounding the instant child welfare proceedings. In what was a later-stated internal inconsistency, the respondent stated that the romantic relationship came to an end, by her choosing, as she sought to emancipate paramour XXXX from the current stressors in relation to the instant incident and these child welfare proceedings. Indeed, she stated that she felt it was unfair to ask him to tolerate such suspicion and/or distress. As such, the respondent's narrative was lacking in face-value. When queried if paramour XXXX was an appropriate individual to allow to affiliate with the toddler-aged and young subject children, the respondent reported that the subject children were very fond of paramour XXXX. Given that these children had voiced no objections to paramour XXXX, the respondent was said to have felt confident that no harm could come from opening her home to paramour XXXX. When queried, the respondent reported that paramour XXXX does have a history of arrest(s), but underscored that other than his most recent arrest, which occurred in connection with the underlying offense, she was unaware of any specific (or even general) information pertaining to his criminal history. When asked if paramour XXXX has an alias or additional names, she stated that he does indeed utilize the last name of XXXX (as well as XXXX). When asked what the purpose of utilizing two names would be, the respondent, in the opinion of this examiner, feigned ignorance (and ultimately nodded in agreement when the examiner observed that criminals often use an alias as a means of thwarting law enforcement).
16
XXXXXXX Children
FMHS #: XXX
Dkt #: XXXXXXX
When asked if she was aware that paramour XXXX was a drug dealer, she reported that yes she was indeed aware that he had distributed drugs, as well as was aware of these activities prior to the infant child XXXX's death in XXXX of 2011. [Again, reports that constituted an internal inconsistency as juxtaposed against previous reports]. When asked if she has or had concerns that the presence of Cocaine in her apartment and/or a loaded gun within access of the subject children was a danger to the subject children's welfare, the respondent denied such. She further denied any anger at paramour XXXX for bringing said drugs and/or said gun into her home. Although the respondent denied that she brought drugs and/or the gun into the home, she would not concede that, in all likelihood, paramour XXXX was the individual who introduced these items to the home as he was the only adult living in and with access to the apartment at that time. [It should be noted that the respondents narrative suggested that paramour XXXX was indeed cohabitating with the respondent mother at the time of the infant XXXXs death]. The respondent was asked to describe the subject's children now deceased half-sibling, XXXX. The respondent mother reported that this child was frequently ill, as well as had cardiac and respiratory complications. When asked how this child died, the respondent stated: "Only the Lord knows." When asked what the doctors determined to be the cause of death, the respondent mother stated a head injury. When asked how this child sustained said head injury, the respondent then stated: "Head trauma." When specifically queried if this child was beaten or abused thereby causing the head trauma that led to death, the respondent stated that she was uncertain. When queried regarding the diaper rash noted in the coroners report, the respondent reported that this child did not have a diaper rash. Similarly, despite medical records to the contrary, the respondent denied that she failed to maintain adequate medical care for this child (or the subject children). The respondent reported that allegations of law enforcement, the Cabinet, and the subject childrens daycare center are false. The respondent also maintained that as the stance of the pediatricians office is that she did not present the subject children and the infant XXXX just prior to this childs death, the pediatrician was providing the Cabinet with incorrect or untruthful information. Additionally, the respondent denied that the now deceased infant XXXX was assaulted. The respondent also denied that she abused or neglected this deceased child or the subject children in any way. Indeed, even when the examiner underscored her self-reports that she allowed a drug dealer access to the home and subject children and, by virtue of such, introduced Cocaine and a loaded gun into her home she denied any and all personal responsibility, as well as noted that she did not perceive the need to alter her behavior in any way in the future. Compliance With Court Dictates: The respondent obfuscated with regard to compliance. She stated that she did indeed attend a Marijuana/Substance Abuse Assessment as ordered. She attended drug education classes, which she concluded were "useless." The respondent estimated that she did not learn anything or benefit from said coursework in any way. The respondent was unable to articulate any of the information imparted in these classes, noting that the sole bit of programming she could recall was that use of alcohol destroys ones lungs. When queried if she was instructed that abuse of alcohol destroys the liver versus lungs, the respondent stated that she was uncertain. Not surprisingly, the respondent was unable to recall the name of the group facilitator. Contrary to information contained in the reviewed records, the respondent reported that she has not been referred for parenting skills classes during the course of these proceedings. She noted that she did take several years of parenting programming through her high school (which was specialized for teen parents). When pressed, the respondent then reported that she may have been referred for a parenting skills curriculum, yet projected the blame for her failure to attend onto her current caseworker who she said has failed to give her information about the timing of said classes at Seven Counties. When asked if she had contacted the caseworker at Seven Counties to inquire, the respondent stated that she had not, indicating
17
XXXXXXX Children
FMHS #: XXX
Dkt #: XXXXXXX
that the coordination of class attendance was the sole responsibility of her caseworker. The respondent assumed no personal responsibility for such. She did underscore that, with regard to a parenting skills curriculum: "I could teach it." Dispositional Preferences: It is the respondents dispositional preference that the subject children be immediately returned to her care.
FACTORS RELATED TO GENERAL PARENTAL CAPACITY:

Fund of Parental Knowledge & Protocols of Safety: It should be noted that, prior to the assessment of parental knowledge, the respondent estimated that she would not benefit from attending a parent skills course, noting that she could teach such a skills course given her in-depth knowledge of parenting and the development of children. As assessed by this examiner, the respondent's fund of parental knowledge was markedly poor. For example, the respondent estimated the children walk at 8 months of age, babble at 1 month of age, produce single words at 5 months of age, and engage in conversations between 15 and 16 months of age. The respondent was unaware of any of the underlying psychological dynamics as to why 2-year-olds tantrum more frequently than children at other ages and appear to relish telling their parents "No!" Similarly, the respondent was unaware why some children bite between the ages of 1 and 3. The respondent's knowledge of disciplinary protocols per each developmental stage was similarly poor. For example, the respondent estimated that a 2-year-old should be allotted a 10-15 minute time-out. The respondent stated that an 8-year-old should receive a spanking for behavioral infractions. To her credit, the respondent stated that she would employee loss of privileges and behavioral restrictions with older children (although indicated that she would do so following corporal punishment). The respondent estimated that a 2-year-old's need for friends is the same as an 8-year-old's need. The respondent was unable to differentiate how parenting a 2-year-old differs from parenting a 5-year-old differs from parenting a 10-year-old differs from parenting a 14-year-old. The respondent was unable to indicate how meeting the needs of a 5- to 7-year-old may be, in some ways, more complex than meeting the needs of a 2-year-old. Highly concerning were the respondent's answers to hypothetical disciplinary scenarios. For example, when asked how she would contend with a tantrumming 2-year-old in a McDonald s, the respondent reported that she would pick up the rageful and tantrumming 2-year-old , wrap her arms around his child, and begin to pray for God's intervention. When queried if a 2 or 3-year-old would understand this disciplinary intervention, the respondent stated that, without question, a child would understand the purpose. The respondent failed to spontaneously identify the need to support academic endeavors in school-age children. The respondent was unaware of the normal adolescent striving for independence and, in response to hypothetical scenarios, indicated that she would respond in a way that would, in all likelihood, encouraged rebellion and resentment on the part of the child. Additionally, her stated behavioral response was representative of a failure to empathize with the strivings of adolescents for independence from parents. When the examiner attempted to provide a brief module of psychoeducation regarding the normalcy of said strivings, the respondent was dismissive, noting that, in her estimation, such strivings were in no way normal and would not be tolerated. The respondent was aware that preschool is advised for both pre-academic and social benefits. She correctly stated the ages at which children potty train. The respondent also stated an appreciation that it is ill advised to reward a child for tantrumming by giving them a desired object. Additionally, she was able to appreciate the children sometimes act-out behaviorally in response to psychological or emotional distress. Protocols of safety were intact.
18
XXXXXXX Children
FMHS #: XXX
Dkt #: XXXXXXX
Perception of the Subject Children: The respondent did not voice a markedly positive or negative perception of the subject children. Additionally, the respondent did not spontaneously state affection for her children at any juncture throughout the clinical interview. [It should be noted that this is an atypical stance for respondents involved in child protective proceedings]. Consistent with the reviewed records, the respondent reported that the subject children are developmentally on target. She stated that both have suffered from respiratory difficulties and/or asthma. For additional information regarding the ability of the respondent to perceive the subject children as unique individuals, separate from each other and herself, the reader is respectfully referred below to Capacity to Empathize. Personal & Parental Judgment: Examples of abysmal personal and parental judgment abound throughout the body of this report and include, but are not limited to, the respondents indifference to exposing the subject children to a paramour who was (by the respondents self-reports) a known drug dealer; the respondents empowered stance that she did not seek information about the criminal history of a paramour that she introduced to the family home; her continued stance, even with the benefit of retrospect, that she has no intention of seeking information about paramours in the future; her insistence that the gun found in the family home was of little to no concern (and was necessary for protection against paramour XXXX; the respondent assumed no responsibility for securing said firearm out of the subject childrens reach); subjection of the subject children to serial relocation; and her refusal to cooperate with the Cabinets parenting plan. When asked why she did not undertake any attempts to educate herself as to paramour XXXX criminal history prior to allowing him access to the family home, the subject children, and the now deceased child XXXX, the respondent reported that she does not view it to be her role to investigate another individual's background. Indeed, even with the benefit of retrospect and the self-acknowledged presence of Crack Cocaine and a loaded gun in the apartment, the respondent further estimated that paramour XXXX did not and does not, in any way, represent a theoretical and/or real risk to the subject children. The respondents serious and very firm perception that the very young subject children (and all young children) are excellent judges of character and are, in actuality, angels imbued with a special gift or power from heaven/God allowing them to intuit the motivations of adults was odd and highly concerning. Indeed, the respondent maintained that this superhuman gift of perception would have resulted in the subject childrens awareness that paramour XXXX was an inappropriate addition to the family home. As the subject children did not voice any objections to paramour XXXX, the respondent is confident paramour XXXX presents no risk of harm. [It should be noted that this stance allows the respondent to project the onus for protection of the now deceased infant XXXX and the subject children onto others and external forces outside of herself]. Yet another example of poor parental judgment was the respondents stated belief that the subject children's now deceased half-sibling XXXX was diagnosed with a heart murmur and possible deafness. The respondent spontaneously reported that she doubted the accuracy of the cardiologist's diagnosis that this child suffered from a heart murmur and may require open heart surgery. The respondent dismissed the concerns of the evaluating physician, indicating that it is incomprehensible that an infant would require any sort of heart-based surgical intervention. [It should be noted that this perception impressed as genuinely held, was odd in quality, and was incompatible with the respondents intact intellect]. Capacity to Empathize: The respondents ability to empathize with the subject children was markedly impaired. Indeed, highly concerning was the respondent's failure to appreciate that the subject children are unique individuals with individualized needs and wants separate from the respondent's and each others: "Just the age difference, that's it Other than that, they're both just like me." As explored, the respondent impressed as fundamentally unable to individuate or differentiate aspects of these children's personality that were not
19
XXXXXXX Children
FMHS #: XXX
Dkt #: XXXXXXX
identical. [Again, the examiner wishes to underscore that this stance is atypical for respondents in child protective proceedings; The basis of empathic parenting is an ability to appreciate children's unique and individual temperaments, personalities, and needs]. In a stance highly atypical for a respondent whose child has died as a result of what can only be assumed to be intentionally inflicted blunt force trauma (per the Coroners report), the respondent stated no regret or remorse regarding the injuries sustained by this infant. The results of the postmortem were reviewed with the respondent (which she reported that she had been previously made aware). The respondent denied the overwhelming likelihood that this child endured pain as a result of an unjust assault. In a testimonial to the respondents pathological narcissism, the respondent stated that she suffered the most as a result of this subject child's inflicted injuries: "Me mainly, I carried her and God gave her to me." Indeed, the respondent communicated no awareness whatsoever that the infant XXXX was a human being, who was capable of independently experiencing pain and suffering. [The respondents inability to appreciate the individuality of this child is highly relevant again, this ability is the cornerstone of the capacity to empathize with children]. Although the respondent stated that environmental stability is important to toddlers and young children, she denied that frequent moves from residence to residence could have a negative effect on the subject children: "I don't think it would." When asked if fathers are important to children or if children benefit from having an invested and prosocial father, the respondent reported: "No, they don't." When a hypothetical scenario was posed, the respondent indicated that she would discount and fail to validate the opinions of her children should these children express to her a desire to have a father involved in their lives. Indeed, when a hypothetical was posed that a child may blame her for the lack of an invested father, the respondent indicated that she would state to this child: "You can thank me a later... fathers don't do nothing." As explored, the respondent was indifferent to the likelihood that such a maternal stance could color the subject childrens future perceptions of men and fathers. When queried, the respondent reported that she does not view the selling of drugs to be reflective of a poor/marginal character. When limits were tested, the respondent reported that an individual's need to earn a livelihood justifies entrenchment in the drug dealing subculture. The respondent refused to concede that selling drugs is a morally wrong. She was further unwilling or unable to report the various reasons why they are legal prohibitions against the sale of drugs. When hypotheticals were posed, the respondent dismissed concerns that the distribution of drugs for financial profit exploits the addictions of others and seeks to exploit the vulnerabilities of others. Given the respondents inability to recognize this basic unpinning of drug dealing, it was not surprising that she could not extrapolate that drug dealing degrades the quality and safety of the community. Insight into Self & Parenting : The respondent was wholly lacking in insight into self and her rather glaring parental deficits. Examples abound throughout the body of this report. Additionally, when queried, the respondent denied that she has been ordered to or has attended a domestic violence curriculum. The respondent denied that there were any internal or psychological motivations that contributed to her willingness to establish and maintain violent relationships. The respondent was uncertain as to why she would have conceived the second subject child into a violent union. She lacked awareness of why exposure to domestic violence is particularly ill-advised for developing children. As explored by this examiner, the respondent was unaware of any domestic violence programming content, had never heard of the cycle of violence, and could not describe patterns of domestic violence in her relationship with putative father XXXX. The respondent estimated that she was not in need of and would not benefit from a domestic violence curriculum. The respondent's fund of parental knowledge was quite poor. It should be noted that the respondent estimated that she would not benefit from a parent skills course, noting that she could teach a parental skills course given her in depth knowledge of parenting and the development of children.
20
XXXXXXX Children
FMHS #: XXX
Dkt #: XXXXXXX
The respondent mother was also noted to have a pathological degree of narcissism that interferes with her ability to realistically self-appraise. For example, the respondent maintained that she reads on a college level (when, in actuality, she reads on a 5 th grade level); despite what was assessed to be a very poor fund of parent skills knowledge, she estimated that she could teach said course; and she maintained a superior stance that she had nothing to gain from domestic violence or drug and alcohol programming. Additionally, the respondent maintained that she will be able to easily contend with the stressors of attending a Nursing curriculum/college part time, working full-time, and assuming full-time care of the subject children. When asked how she will be able to adequately cope with these stressors given that she was unable to do so in the past, the respondent reported that as she will be attending school part time, this adjustment will ensure her success. The respondent estimated that the statistical odds are not against completion of this degree: "It's not difficult." The respondent denied that she has any areas of parental weakness upon which she could improve. Indeed, she denied that she has in any way failed to secure the welfare of her children and estimated that she falls in the very elite percentage of individuals with stellar parental skills.
PSYCHOMETRIC TESTING: Wechsler Abbreviated Scale of Intelligence (WASI):

Although the respondent impressed as cognitively intact, her odd beliefs and primitive inability to selfappraise suggested that she may have demonstrated intellectual compromise that the examiner was unable to informally appraise. As such, a brief, yet standardized, measure of intelligence (WASI) was administered. It should be noted that the respondents threshold for testing and frustration tolerance was quite low and, had the examiner initially administered a full intellectual battery, it is likely that the respondent would have balked and refused to participate. Regardless, results of the WASI demonstrated that the respondent is intellectually intact as she achieved low average scores on verbal and non-verbal subtests. Specifically, the respondent achieved a standard score of 98 (45th % ile) on Vocabulary; a standard score of 86 (18th %ile) on Matrix Reasoning; and an estimated full scale IQ of 90, at the 25 th percentile. Thus, it was suggested that her IQ falls in the average to low-average ranges.
Minnesota Multiphasic Personality Inventory-2 MMPI-2:

The MMPI-2 is a psychometrically robust psychometric inventory that has impressive reliability and validity. This test was not administered as the respondent was deemed to be unable to tolerate the demands of this comprehensive and 2-3 hour test.
Child Abuse Potential Inventory, CAPI:

The Child Abuse Potential Inventory (CAPI) is a self-report inventory designed to provide information about an individuals potential for physical child abuse. There are several subscales, three of which of which allow for detection of deception and response inconsistency. If deception is detected, the profile is considered invalid and should not be interpreted. Regretfully, the respondent invalidated her profile per elevations on the internal validity scale (Faking Good).
21
XXXXXXX Children
FMHS #: XXX
Dkt #: XXXXXXX
Risk Factors for Future Acts of Neglect and Abuse

The items below represent risk factors that have been identified by research to be predictive of neglect/abuse. Yes responses indicate that the risk factor is present. No responses indicate that the risk factor is not present. Unknown indicates that information was unavailable, contradictory, or from a questionable source.
DEMOGRAPHIC RISK FACTORS Large Family Size Low Income Low Paternal Education Low Maternal Education Parental Youth Single Parent Welfare Dependent Paternal History of Child Welfare Involvement Maternal History of Child Welfare Involvement Twins/Multiple Young Children in Current Household FAMILIAL RISK FACTORS Parental Conflict Poor Marital/Relationship Quality Domestic Violence PARENTING RISK FACTORS Low Paternal Involvement Low Paternal Warmth Low Paternal IQ w/ Corresponding Adaptive Deficits Low Maternal IQ w/Corresponding Adaptive Deficits Paternal Substance Addiction/Abuse Maternal Substance Addiction/Abuse Paternal Psychopathology Maternal Psychopathology XXXX CHILD-BASED RISK FACTORS ADHD Psychiatric Features Low Child Verbal IQ Special Needs XXXXX CHILD-BASED RISK FACTORS ADHD Psychiatric Features Low Child Verbal IQ Special Needs
Yes X
No X
Unknown
X X X X X X X X Yes X X X Yes X No Unknown
No
Unknown X X
X X X (per positive screen for Marijuana) X X Yes No X X X X No X X X X Unknown
Yes
Unknown
MENTAL STATUS EXAMINATION:

The respondent presented as adequately groomed female who appeared her chronological age. Physical appearance was essentially unremarkable. Psychomotor behavior was within normal limits and no odd or unusual mannerisms were noted. Speech was clear and coherent. Affect was constricted and was, at times, discordant to context and thought content. Thought content was typically goal-oriented without evidence of disorganization (although odd beliefs and tangential, and even circumstantial, forays were observed). Alert and fully oriented, the respondents reality boundaries impressed as basically intact with no auditory or visual hallucinations observed or reported. Odd beliefs, that were quasi-delusional in quality, were noted. Religious preoccupations were noted. When asked if she had any magic powers, the respondent stated that she does indeed inasmuch as she is "blessed and highly favored." When asked to clarify her statements, she was unable to do so. Frank paranoia was denied. Indications of suspiciousness were
22
denied. Mood was reported to be euthymic, but was observed to be labile (and reflective of hostility). Sleep disturbance was denied, as was terminal insomnia. Suicidal/homicidal ideation and intent were denied (at present and by history). Anxiety features were denied. Attention and concentration were minimally adequate. Recent and remote memory were intact. History of significant/traumatic brain injury was denied. By observation and per documented history, insight into self is grossly impaired. Judgment, including parental and retrospective, is critically compromised. Capacity to empathize is markedly impaired.
DIAGNOSTIC IMPRESSIONS:
AXIS I:
Psychiatric Disorders Conditions Warranting Clinical Attention
Unspecified Mental Disorder (The respondent was uncooperative inasmuch as she did not endorse symptoms of mental illness, although odd belief and quasidelusional thought content was elicited) Principal Diagnosis Personality Disorder NOS (with prominent Antisocial and Narcissistic Traits) Medically Healthy
AXIS II:
Intellectual Diagnoses Personality Disorders
AXIS III:
Clinically Important Medical Conditions
CONCLUSIONS & RECOMMENDATIONS:

For complete case conclusions and recommendations, the reader is respectfully referred to the attached CONCLUSORY Report.
Prepared by: * Original signed in blue ink
Kelli Marvin, Ph.D. Assistant Professor of Pediatrics Director, Forensic Mental Health Services (FMHS) Division of Forensic Medicine Department of Pediatrics University of Louisville KM/km; 8/23/2011
FORENSIC MENTAL HEALTH SERVICES DIVISION OF FORENSIC MEDICINE
CONCLUSORY REPORT
**REDACTED** FOR TEACHING PURPOSES ONLY
CS-71 (Rev. 3/10) Page 23 of
XXXXX Children XXXXXXXXXXX
FMHS #: XXXX
Dkt #:
PRIVILEGED AND CONFIDENTIAL FORENSIC MENTAL HEALTH EVALUATION DKT/Case #: XXXXXXXXXXXXXX EXAMINEE: XXXXXXXXXXXXXXX SUBJECT CHILDREN: XXXXXXXXXX XXXXXXXXXX CLINICIAN: Kelli Marvin, Ph.D. EXAM DATES: XXXXXXXXX DATE OF BIRTH: XXXXXXXX DATE OF BIRTH: XXXXXXXX DATE OF BIRTH: XXXXXXXX DATE OF REPORT: XXXXXXX
The information contained in this report was obtained for the purpose of a child protective services evaluation and should not be used or re-disclosed except as authorized by the child protective agency or under court order. If any of the information is HIV/AIDS-related, state law prohibits use or re-disclosure of that information without specific written consent of the individual(s) to whom the information pertains, unless permitted by federal or state law.
PURPOSE OF THE INSTANT EVALUATION:

The purpose of this evaluation is to provide this Court, as well as CHFS, with information about the mental health of the respondent. In no way is this report intended to determine if the respondent engaged in acts that may or may not constitute child abuse or neglect (as this is the role of the Court). Rather, opinions will be offered as to whether or not the respondent suffers from psychopathology of a type and intensity so as to compromise the capacity to parent. In addition, the report will focus upon the respondents overall personality style and characteristic methods of coping with stress. This evaluation is not intended to address the issue of the best interests of the subject children, except with regard to evidence of gross psychopathology or intellectual limitations, as a result of which there is a corresponding inability to safely and adequately parent. It is recommended that the readers of this report consider the information provided in context of the totality of information available.
IDENTIFICATION & ISSUE:

The reader is respectfully referred to the attached NARRATIVE report.
SOURCES OF INFORMATION:
4. Clinical interview with the respondent mother, on XX/XX/2011, from 11:00 am 2:30 pm, in the offices of the undersigned and observed by XXXXX, FMHS Administrative Assistant. Psychometric testing of the respondent, on XX/XX/2011, spanning 2:30 3:30 pm, in the offices of the undersigned and observed by XXXXX, FMHS Administrative Assistant.
5.
6.
Routine and related Court and Cabinet documents, contained within the complete agency file, as well as: a. DCBS/Court Reports, dated XX/XX/2011& XX/XX/2011. b. Facilitated Staffing Action Plan, CHFS/P&P, dated XX/XX/2011, pertaining to the respondent mother, including family members and multiple professional and administrative participants. c. AOC checks for the respondent mother; a XXXXX XXXXX aka XXXXX (DOB: XX/XX/1966); XXXXX (DOB: XX/XX/1995);putative father XXXXX; and paramour XXXXX XXXXX (DOB: XX/XX/1985). d. Substantiated abuse and neglect letter from CHFS to XXXXX XXXXX dated XX/XX/2011. e. Continuous Quality Assessment (CQA), dated XX/XX/2011. f. Fatality/Near fatality-related administrative paperwork. g. Binders of medical records, pertaining to the subject children and their deceased sibling
2 4
FMHS #: XXXX
Dkt #:
XXXXX. Medical notations were consistent with those reflected in the CPS file. h. Service/Process/Visitation Notes, spanning the course of these proceedings. i. Dependency Calendar document, dated XX/XX/2011, noting that the respondent mother remains under consideration in relation to a criminal and CACU investigation of the infant XXXXXs death. j. CHFS compiled chart, detailing missed medical appointments and pertaining to the child XXXXX, spanning XX/XX/2010 and the date of death, XX/XX/2011. k. Louisville Metro EMS and PD Reports, reviewed in connection with the instant incident (resulting in the death of the subject childrens sibling XXXXX). l. Aftercare and Parenting Plans, signed by XXXXX XXXXX, dated XX/XX/2011. m. Pictures of subject children.
REVIEW OF RECORDS:
FACTORS RELATED TO GENERAL PARENTAL CAPACITY:

PSYCHOMETRIC TESTING: Wechsler Abbreviated Scale of Intelligence (WASI):

Although the respondent impressed as cognitively intact, her odd beliefs and absolute inability to selfevaluate suggested that she may have intellectual compromise that the examiner was unable to informally appraise. As such, a brief, yet standardized, measure of intelligence (WASI) was administered. It should be noted that the respondents threshold for testing and frustration tolerance was quite low and, had the examiner administered a full intellectual battery, it is likely that the respondent would have balked and refused to participate. Regardless, results of the WASI demonstrated that the respondent is intellectually intact as she achieved low average a n d a v e r a g e scores on verbal and non-verbal subtests. Specifically, the respondent achieved a Standard Score of 98 (45th %ile) on Vocabulary; a standard score of 86 on Matrix Reasoning; and an estimated full scale IQ of 90, at the 25 th %ile. Thus, it was suggested that her IQ falls in the average to low-average ranges.
Minnesota Multiphasic Personality Inventory-2 MMPI-2:

The MMPI-2 is a psychometrically robust psychometric inventory that has impressive reliability and validity. This test was not administered as the respondent was deemed to be unable to tolerate the demands of this comprehensive and 2-3 hour test.
Child Abuse Potential Inventory, CAPI:

The Child Abuse Potential Inventory (CAPI) is a self-report inventory designed to provide information about an individuals potential for physical child abuse. There are several subscales, three of which allow for detection of deception and response inconsistency. If deception is detected, the profile is considered invalid and should not be interpreted. Regretfully, the respondent invalidated her profile per elevations on the internal validity scale (Faking Good).
TABLE OF RISK FACTORS FOR FUTURE ACTS OF NEGLECT & ABUSE:

The items below represent risk factors that have been identified by research to be predictive of neglect/abuse. Yes responses indicate that the risk factor is present. No responses indicate that the risk factor is not present. Unknown indicates that information was unavailable, contradictory, or from a questionable source.
2 5
XXXXX Children FMHS #: XXXX XXXXXXXXXXX DEMOGRAPHIC RISK FACTORS Large Family Size Low Income Low Paternal Education Low Maternal Education Parental Youth Single Parent Welfare Dependent Paternal History of Child Welfare Involvement Maternal History of Child Welfare Involvement Twins/Multiple Young Children in Current Household FAMILIAL RISK FACTORS Parental Conflict Poor Marital/Relationship Quality Domestic Violence PARENTING RISK FACTORS Low Paternal Involvement Low Paternal Warmth Low Paternal IQ w/ Corresponding Adaptive Deficits Low Maternal IQ w/Corresponding Adaptive Deficits Paternal Substance Addiction/Abuse Maternal Substance Addiction/Abuse Paternal Psychopathology Maternal Psychopathology XXXXX CHILD-BASED RISK FACTORS ADHD Psychiatric Features Low Child Verbal IQ Special Needs XXXXX CHILD-BASED RISK FACTORS ADHD Psychiatric Features Low Child Verbal IQ Special Needs
Dkt #: Yes X X X X X X X X X Yes X X X Yes X No Unknown No X Unknown
No
Unknown X X
X X X (per positive screen for Marijuana) X X Yes No X X X X No X X X X Unknown
Yes
Unknown
MENTAL STATUS EXAMINATION:

The respondent presented as adequately groomed female who appeared her chronological age. Physical appearance was essentially unremarkable. Psychomotor behavior was within normal limits and no odd or unusual mannerisms were noted. Speech was clear and coherent. Affect was constricted and was, at times, discordant to context and thought content. Thought content was typically goal-oriented without evidence of disorganization (although odd beliefs and tangential, and even circumstantial, forays were observed). Alert and fully oriented, the respondents reality boundaries impressed as basically intact with no auditory or visual hallucinations observed or reported. Odd beliefs and religious preoccupations, that were quasi-delusional in quality, were noted. When asked if she had any magic powers, the respondent stated that she does indeed inasmuch as she is "blessed and highly favored." When asked to clarify her statements, she was unable to do so. Frank paranoia was denied. Indications of suspiciousness were denied. Mood was reported to be euthymic, but was observed to be labile and hostile. Sleep disturbance was denied, as was terminal insomnia. Suicidal/homicidal ideation and intent were denied (at present and by history). Anxiety features were denied. Attention and concentration were minimally adequate. Recent and remote memory were intact. History of significant/traumatic brain injury was denied. By observation and per documented history, insight into self is grossly impaired. Judgment, including parental and retrospective, is critically compromised. Capacity to empathize is markedly impaired.
2 6
FMHS #: XXXX
Dkt #:
DIAGNOSTIC IMPRESSIONS:
AXIS I: Unspecified Mental Disorder quasiPsychiatric Disorders (The respondent was uncooperative inasmuch as she did not Conditions Warranting Clinical Attention endorse symptoms of mental illness, although odd beliefs and
delusional thought content was elicited) AXIS II:

Intellectual Diagnoses Personality Disorders
Principal Diagnosis Personality Disorder NOS (with Antisocial and Prominent Narcissistic Traits) Medically Healthy
AXIS III:
Clinically Important Medical Conditions
CONCLUSIONS:
XXXXX XXXXX, 22 year old respondent mother, was referred for Court-ordered mental health evaluation and parental capacity assessment in connection with Cabinet-substantiated child abuse and neglect of the subject children, XXXXX (DOB: XX/XX/2008) and XXXXX (DOB: XX/XX/2006) XXXXX. Specifically, the Cabinet determined that these subject children were at risk of harm by virtue of the trauma-based death of their infant sibling, XXXXX. As best as this examiner could ascertain, there were no Court-based fact-findings of abuse and/or neglect at the time that the instant report was submitted. However, documents were reviewed pertaining to the now deceased infant child and sibling of the subject children XXXXX, including a post-mortem report and Death Certificate. These records indicated that this child died as a result of inflicted blunt force trauma that resulted in massive brain injury (and hence, death). The respondent mother was consistently cited to have indicated that she and paramour XXXXX were the only adults present in the home at the time that this child sustained these terminal injuries. The referral petitions also alleged that a loaded gun and Crackcocaine were found in the home, within reach of the subject children. An amended petition denoted additional allegations of medical neglect, deplorable hygiene on the part of the subject children, and an unsanitary/hazardous home. It should be noted that the record indicated that the respondent mother is the subject of concurrent criminal proceedings, seemingly pertaining to Cocaine possession and/or trafficking; There were no notations indicating that the respondent mother is the subject of criminal proceedings pertaining to the trauma-based death of the subject childrens infant sibling, XXXXX. The examiner has little knowledge of the subject children in these proceedings, with the exception of citations indicating that these children are essentially developmentally on-target and medically healthy. The younger subject child XXXXX was reported to be a sometimes very angry child who growls when she is mad and has tantrums. The older subject child XXXXX was cited to be verbal, outgoing, and outspoken. She was also described as mature for age and prone to assume a maternal role for her sibling XXXXX. Some concerns regarding possible mild speech delays were denoted. The respondent mother presented as an adequately groomed adult female who comported herself in a superficially cooperative and covertly hostile (although, at times, overtly hostile) manner. Indeed, while she provided a response to the majority of the examiners queries, she provided a sanitized account of her background history as juxtaposed against the cumulative record and collateral information. In addition to these external inconsistencies, her spontaneous verbal account was rife with internal inconsistencies and, at times, was lacking in face-value. While the respondents reality boundaries were essentially intact and she did not endorse any symptoms of mental illness sufficient to allow for diagnostic impressions, her thinking was, at times, odd and quasi-delusional in quality. Without question, the respondent significantly minimized what were documented and self-reported to be significant difficulties in living. The respondent presented an idealized view of her parenting, failing to acknowledge what has been highly compromised personal and parental judgment. Parental and personal judgment have been abysmal. Owing to pathological narcissism, the respondents ability to empathize with the plight of the subject children (and the subject childrens deceased infant sibling XXXXX) was critically impaired. The respondent lacked insight into self and did not acknowledge any parental weaknesses. Her stance indicated low frustration
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XXXXX Children FMHS #: XXXX Dkt #: XXXXXXXXXXX tolerance and a quickness to anger. She was deemed to be a reporter of poor reliability. It should be noted that, throughout the interview, the respondent would tangentially interject odd religious responses. The respondents references to religion were atypical and questions posed did not pull for such responses. Indeed, although the respondent did not impress as psychotic, some of her articulated thoughts had a delusional tinge. For example, the respondents serious and very firm perception that the very young subject children (and all young children) are excellent judges of character and are, in actuality, angels imbued with a special gift or power from heaven/God allowing them to intuit the motivations of adults was odd and highly concerning. Indeed, the respondent maintained that this superhuman gift of perception would have resulted in the subject childrens awareness that paramour XXXXX was an inappropriate addition to the family home. As the subject children did not voice any objections to paramour XXXXX, the respondent is confident paramour XXXXX presented and continues to present no risk of harm. [It should be noted that this stance allows the respondent to project the onus for protection of the now deceased infant XXXXX and the subject children onto others and external forces outside of herself]. When asked if she had any magic powers, the respondent stated that she does indeed inasmuch as she is "blessed and highly favored." When asked to clarify her statements, she was unable to do so. The respondent was markedly tangential and, at times, even circumstantial. Also present were mild loosening of associations and rambling thought processes. Despite the above, the respondent did not endorse any symptoms of mental illness when diagnostic categories were explored. As such, a specific diagnosis could not be ascertained although there were indications of an underlying primary (AXIS I) mental illness. Regardless of the respondents ultimate AXIS I diagnosis, she presents as a woman whose adjustment and functioning is compromised by severe personality disorder. Indeed, she presents with prominent features both of Narcissistic and Antisocial Personality Disorders. A Personality Disorder is an enduring pattern of inner experience and behavior that deviates markedly from the individuals culture. These personality features emerge by late adolescence or early adulthood and are characterized by maladaptive behaviors that compromise ones overall adjustment and functioning. Per diagnostic criteria, the essential feature of Narcissistic Personality Disorder is a pervasive pattern of grandiosity, a sense of entitlement, and a lack of empathy for others. Indeed, the respondent has a grandiose sense of self, which results in her inability to realistically self-appraise: She estimated that she reads on a college level (when, in actuality, she reads on a 5 th grade level); despite a very poor fund of parent skills knowledge, she stated that she was not in need of a parent skills curriculum, had nothing to learn, and was well-poised to teach such a course owing to her in-depth knowledge of child development; she estimated that, despite previous failure, she would easily be able to attend a Nursing curriculum, parent the subject children, and maintain part-time work; and she estimated that she falls in the top percentage of parents who possesses stellar parenting skills indeed, she maintained a dismissive stance with regard to any suggestion that by virtue of her self-acknowledged failure to take into consideration paramour XXXXX lengthy criminal history and practice of drug-dealing, she exposed the subject children to even theoretical harm. To the contrary, the respondent remained confident that she is free from any parental weaknesses upon which she could improve. The respondents ability to empathize with the subject children was markedly impaired. Indeed, highly concerning was the respondent's failure to appreciate that the subject children are unique individuals with individualized needs and wants separate from the respondent's and each others: "Just the age difference, that's it Other than that, they're both just like me." As explored, the respondent impressed as fundamentally unable to individuate or differentiate aspects of these children's personality that were not identical. [The examiner wishes to underscore that this stance is atypical for respondents in child protective proceedings; The basis of empathic parenting is an ability to appreciate children's unique and individual temperaments, personalities, and needs]. In a stance highly atypical for a respondent whose child has died as a result of what can only be assumed to be intentionally inflicted blunt force trauma (per the Coroners report), the respondent stated no regret or remorse regarding the injuries sustained by this infant. The results of the postmortem were reviewed with the respondent (of which she reported that she had been previously made aware). The respondent denied the overwhelming likelihood that this child endured pain as a result of an unjust assault. In a testimonial to the respondents pathological narcissism, the respondent stated that she suffered the most as a result of this subject child's inflicted injuries: "Me mainly, I carried her and God gave her to me." Indeed, the respondent
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XXXXX Children FMHS #: XXXX Dkt #: XXXXXXXXXXX communicated no awareness whatsoever that the infant XXXXX was a human being, who was capable of independently experiencing pain and suffering. [The respondents inability to appreciate the individuality of this child is highly relevant again, this ability is the cornerstone of the capacity to empathize with ones children]. Although the respondent stated that environmental stability is important to toddlers and young children, she denied that her history of frequent relocations from residence to residence could have a negative effect on the subject children. When asked if fathers are important to children or if children benefit from having an invested and prosocial father, the respondent reported: "No, they don't." When a hypothetical scenario was posed, the respondent indicated that she would discount and fail to validate the opinions of her children should these children express to her a desire to have a father involved in their lives. Indeed, when a hypothetical was posed that a child may blame her for the lack of an invested father, the respondent indicated that she would state to this child: "You can thank me later... fathers don't do nothing." As explored, the respondent was indifferent or oblivious to the likelihood that such a maternal stance could color the subject childrens future perceptions of men and fathers. When queried, the respondent reported that she does not view the selling of drugs to be reflective of a poor/marginal character. When limits were tested, the respondent reported that an individual's need to earn a livelihood justifies entrenchment in the drug dealing subculture. She also refused to concede that selling drugs is a morally wrong. She was further unwilling or unable to report the various reasons why there are legal prohibitions against the sale of drugs. When hypotheticals were posed, the respondent dismissed concerns that the distribution of drugs for financial profit exploits the addictions of others and seeks to exploit the vulnerabilities of others. Given the respondents inability to recognize this basic unpinning of drug dealing, it was not surprising that she could not extrapolate that drug dealing degrades the quality and safety of the community. Also in keeping with a Narcissistic diagnosis, the respondent communicated a belief that she is special and unique. Indeed, she reported to this examiner that she is blessed and highly favored. This stance was not only highly egocentric, but odd in quality. Other Narcissistic features included a sense of entitlement and expectations that she is to be accommodated and the assumption of an arrogant/haughty attitude. Per diagnostic criteria, the essential feature of Antisocial Personality Disorder is a pervasive pattern of disregard for and violation of the rights of others. The respondent mothers legal history indicates that she has failed to conform to expected social norms by engaging in behaviors that are the grounds for arrest, as does her documented failure to fully comply with Court mandates and Cabinet recommendations. Other indications of an identification with an antisocial ethos include affiliation with criminally entrenched others, failure to maintain employment, a failure to honor financial obligations (and a lack of regret regarding having potentially caused others difficulty as a result), deceitfulness, and a lack of regret/remorse as indicated by indifference or rationalizing having hurt or mistreated another. Without question, should the respondent mother be adjudicated to have committed acts of Neglect and/or Abuse in connection with the underlying incident (i.e., the traumatic death of the infant child XXXXX and/or the additional allegations in the petitions), acts such as these stem from antisocial attitudes, beliefs, and values. The respondents personality pathology and, in this examiners opinion, undiagnosed AXIS I psychiatric illness, has eroded the respondents personal and parental judgment, as well as her ability to glean even a glimmer of insight into self. Examples of abysmal personal and parental judgment abound throughout the body of the NARRATIVE report and include, but are not limited to, the respondents indifference to exposing the subject children to a paramour who was (by the respondents self-reports) a known drug dealer; the respondents empowered stance that she did not seek information about the criminal history of a paramour that she introduced to the family home; her continued stance, even with the benefit of retrospect, that she has no intention of seeking such critical information about paramours in the future; her insistence that the gun found in the family home was of little to no concern (and was necessary for protection against paramour XXXXX; she failed to assume any responsibility for securing said firearm out of the subject childrens reach); subjection of the subject children to serial relocation; and her refusal to cooperate with the Cabinets parenting plan.
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XXXXX Children FMHS #: XXXX Dkt #: XXXXXXXXXXX When asked why she did not undertake any attempts to educate herself as to paramour XXXXX criminal history prior to allowing him access to the family home, the subject children, and the now deceased child XXXXX, the respondent reported that she does not view it to be her role to investigate another individual's background. Indeed, even with the benefit of retrospect and the self-acknowledged presence of Crack Cocaine and a loaded gun in the apartment, the respondent further estimated that paramour XXXXX did not and does not, in any way, represent a theoretical and/or real risk to the subject children. Yet another example of poor parental judgment was the respondents stated belief that the subject children's now deceased half-sibling XXXXX was diagnosed with a heart murmur and possible deafness. The respondent spontaneously reported that she doubted the accuracy of the cardiologist's diagnosis that this child suffered from a heart murmur and may require open heart surgery. The respondent dismissed the concerns of the evaluating physician, indicating that it is incomprehensible that an infant would require any sort of heart-based surgical intervention. [It should be noted that this perception impressed as genuinely held, was odd in quality, and was incompatible with the respondents intact intellect]. The respondent was wholly lacking in insight into self and her rather glaring parental deficits. Examples are too numerous to detail. However, when queried, the respondent denied that she has been ordered to or
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XXXXX Children
FMHS #: XXXX
Dkt #: XXXXXXXXXXX
has attended a domestic violence curriculum. The respondent denied that there were any internal or psychological motivations that contributed to her willingness to establish and maintain violent relationships. The respondent was uncertain as to why she would have conceived the second subject child into a violent union. She lacked awareness of why exposure to domestic violence is particularly ill-advised for developing children. As explored by this examiner, the respondent was unaware of any domestic violence programming content, had never heard of the cycle of violence, and could not describe patterns of domestic violence in her relationship with putative father XXXXX. The respondent estimated that she was not in need of and would not benefit from a domestic violence curriculum. Additionally, the respondent's fund of parental knowledge was markedly poor, yet she estimated that she would not benefit from a parent skills course, noting that she could teach a parental skills course given her in depth knowledge of parenting and the development of children. The respondent maintained that she will be able to easily contend with the stressors of attending a Nursing curriculum/college part time, working full-time, and assuming full-time care of the subject children. When asked how she will be able to adequately cope with these stressors given that she was unable to do so in the past, the respondent reported that as she will be attending school part time, this adjustment will ensure her success. The respondent estimated that the statistical odds are not against completion of this degree: "It's not difficult." And, in a most poignant testimonial to her absolute lack of awareness into the various ways in which her parenting has been compromised, the respondent denied that she has any areas of parental weakness upon which she could improve. Indeed, even when queried in light of the child XXXXXs post-mortem findings and her own selfreports that Crack Cocaine and a loaded gun were accessible to the subject children, she denied that she has in any way failed to secure the welfare of her children. As such, it is the very firm conclusion of this examiner that the respondent, as a result of severe personality disorder and an undiagnosed AXIS I mental illness, cannot safely and/or minimally adequately parent the subject children at this time. Indeed, should the subject children be returned to the respondent mother s care, these children would be at unacceptable risk of abuse and/or neglect. It should be noted that personality disorders are by their nature deeply entrenched and resistant to treatment. Indeed, prognosis regarding improvement in the respondents parental judgment and the capacity to empathize in these children s formative years is estimated to be very poor (as is the likelihood that the respondent will demonstrate necessary improvements in the ability to minimally adequately self- appraise and recognize parental deficiencies). The examiner is unable to speculate about prognosis for the respondents AXIS I mental illness as a specific diagnosis could not be elucidated (the respondent did not endorse any symptoms despite observable signs of odd thinking).
RECOMMENDATIONS:
1. The subject children would be, in the opinion of this examiner, at unacceptable risk of abuse and/or neglect should they be returned to the respondent mothers care. As such, this examiner defers recommendations regarding the nature of continuing placement to the Cabinet. 2. Visitation, if it occurs at all, should be supervised and monitored by sight and sound. Visitation should be contingent upon the respondent mothers FULL and GENUINE compliance with the parenting plan, Cabinet Recommendations, and Court mandates. 3. Given the degree of trauma to which these children have been exposed, care should be taken regarding reinstatement of the respondent mother s supervised visitation. It is recommended that visitation remain suspended until such time the respondent has demonstrated a minimum of 6 months of full compliance. The examiner assumes this stance as the respondent mother s prognosis indicates that it is very unlikely she will achieve the necessary parental improvements to assume these children s care during the formative years. 4. The respondent requires intensive psychotherapy, a minimum of 1-2 times weekly. Treatment should be cognitive behavioral in orientation and should be conducted by an appropriately credentialed provider skilled in the treatment of Narcissistic and Antisocial personality pathology. Monitoring for AXIS I mental illness should also be integrated into the treatment.
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XXXXX Children
FMHS #: XXXX
Dkt #: XXXXXXXXXXX
5. The respondent mothers therapist should be provided a copy of these reports for the purpose of informing treatment planning. However, the reports should be clearly marked COPY NOT FOR RERELEASE TO OTHERS OR RESPONDENT PARENT/PATIENT . Indeed, prior to the forwarding of the report, the respondent mother should sign a statement indicating her awareness that the therapist is prohibited from releasing the report to her or other agencies.
Prepared by: * Original signed in blue ink
Kelli Marvin, Ph.D. Assistant Professor of Pediatrics Director, Forensic Mental Health Services (FMHS) Division of Forensic Medicine Department of Pediatrics University of Louisville KM/km; 8/23/2011
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CS-71 (R.

3/10 ) 921 KAR 1:400

Domestic Relations Fall, 2011 Professor Troy Demuth

CS-71 (R. 3/10 ) 921 KAR 1:400

1. 8-31-11 2. Reading for next Wednesday 356-383 3. Trammel v. US pp. 311

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i. ii. iii. iv. v.

Rental property Insurance Stocks/bonds/etc. Stock options Other

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CASE NAME: _______________________________ FILE NUMBER: ___________________ COUNTY: ________________________

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and J.G.R., Real Party

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CASE NAME: _____________________ FILE NUMBER: _ COUNTY: ________________