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RENDERED: DECEMBER 20, 2019; 10:00 A.M. TO BE PUBLISHED Conunomvealth of Kentucky Court of Appeals ‘NO. 2019-CA-000775-ME COMMONWEALTH OF KENTUCKY APPELLANT APPEAL FROM KENTON FAMILY COURT ve HONORABLE DAWN M. GENTRY, JUDGE ACTION NO. 19-J-00340-001 H. K., THE JUVENILE’S LEGAL MOTHER . AND CUSTODIAN; AND R.K., A CHILD APPELLEES OPINION AFFIRMING sea ae en ee BEFORE: LAMBERT, NICKELL,' AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: The Commonwealth of Kentucky appeals from the Kenton Family Court’s April 30, 2019 summary dismissal of a dependency, neglect and abuse (DNA) petition filed due to excessive absenteeism from school * Judge C. Shea Nickell dissented in this opinion prior to being sworn in as a Justice with the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling. EXHIBIT Gearey by a kindergartener on the basis that the facts presented did not meet the statutory requirements for abuse or neglect. We affirm. There can be no educational neglect of a child for excessive absenteeism who is not required by law to attend school. On April 22, 2019, Covington School District Pupil Personnel Compliance Director Ray Finke filed a DNA petition and affidavit in the Kenton Family Court. Finke alleged that R.K. (child) was neglected or abused by H.K. (mother) on the following grounds: [Child] is in kindergarten at [a public elementary school]. She has just begun receiving Special Education Services and is taking medication for ADHD. Her attendance is poor as she has missed 21.5 days of school, sixteen unexcused. Her academic performance is well below expectations and is being exacerbated by her attendance. According to the information provided on the petition, child was enrolled in kindergarten as a five-year-old and her absences occurred before she turned six. At the initial court appearance, the Commonwealth read the contents of the petition into the record and defense counsel moved for dismissal, asserting that mother had been working with the school district to resolve the matter. The family court inquired of a worker from the Cabinet for Health and Family Services (Cabinet) whether an active case existed regarding the parties. The worker indicated the Cabinet had not opened an active case but, instead, referred child and mother back to the school to receive services, indicating “it was a resource thing.” 2- Over the Commonwealth’s objection, the family court dismissed the petition, finding it did not meet the prima facie burden for abuse or neglect, noting same on the docket sheet. The Commonwealth argues that the family court erred in summarily dismissing its neglect action where it made a prima facie case for educational neglect based on excessive absences. We disagree. Kentucky Revised Statutes (KRS) 600.020(1)(a)8. includes in its definition of an “[a]bused or neglected child” one “whose health or welfare is harmed or threatened with harm when” a parent or guardian “[d]oes not provide the child with adequate . .. education . . . necessary for the child’s well-being.” (Emphasis added). See M.C. v. Commonwealth, 347 S.W.3d 471, 472-73 (Ky. App. 2011) (determining that a parent allowing a child to have excessive school absences can constitute educational neglect). Pursuant to our education laws, “[bJeginning with the 2017-2018 school year, any child who is six (6) years of age, or who may become six (6) years of age by August 1, shall attend public schoolf.]” KRS 158.030(2). A child who is five years of age by August 1, “may enter a primary school program[.]” Id. (Emphasis added). This gives parents of a five-year-old the discretion to decide whether the child will attend. 3- Child was only five years old when she was enrolled in kindergarten and incurred the absences which provided the basis for the temporary removal petition. Pursuant to KRS 158.030(2), her enrollment and attendance was optional. While KRS 159.010(1)(a) requires that parents of “any child who has entered the primary school program . . . shall send the child to a regular public day school for the full term that the public school of the district in which the child resides is in session[,]”? because it was not initially mandatory, it cannot be educational neglect to fail to send a five-year-old to kindergarten every day when an identically situated five-year-old is not sent to school, nor required to be sent. See In re B.B., 2019 VT 12, $ 10, 208 A.3d 244, 248-49 (Vt. 2019) (finding that risk of harm for educational neglect could not be demonstrated for a preschooler and kindergartener who were not required by law to attend school; even if they would have benefitted from attending and qualified for individual education plans, these services were voluntary). The General Assembly recognizes that there is a difference between children who are mandatorily required to attend school at age six and children who may optionally attend school at age five. While a six-year-old child may be a ? According to the regulations, the voluntary enrollment of a five-year-old becomes irrevocable after the first two school calendar months. 704 Kentucky Administrative Regulations (KAR) 5:060 § 1. truant for missing school, a five-year-old cannot be a truant. KRS 159.150(1) provides: “Any student who has attained the age of six (6) years, but has not reached his or her eighteenth birthday, who has been absent from school without valid excuse for three (3) or more days, or tardy without valid excuse on three (3) or more days, is a truant.” KRS 159.150(3) further provides: “Any student who has been reported as a truant two (2) or more times is an habitual truant.” Because a five-year-old cannot be a truant, any court action regarding child’s attendance can only be pursued as a neglect action.? However, because it is 3 This has the unfortunate unintended consequence that the additional mechanisms to keep a ‘truancy case out of the court system do not apply to an educational neglect case. Ifa status offense, which includes habitual truancy, KRS 600.020(65)(a)3, is alleged against a child, there are a number of procedures in place to help remedy the situation by getting the child and the child’s family needed services and avoiding court proceedings. KRS 630.010(2) provides that as to status offenders “[i]t shall be declared to be the policy of this Commonwealth that all its efforts and resources be directed at involving the child and the family in remedying the problem for which they have been referred[.]” These resources include documenting what interventions have been attempted and the involvement of a court-designated worker (CDW) and the involvement of the family accountability, intervention, and response (FAIR) team. KRS 159.140(1)(c), (d), (e) and (£) require the director of pupil personnel or an assistant to find out about the home conditions of the habitual truant and acquaint those in the home with the advantages of school, find out the causes of irregular attendance and truaney through documented contact with the custodian, “seek the elimination of these causes[,]” secure enrollment and attendance, and attempt to visit the homes of students “reported to be in need of books, clothing, or parental care[.]” KRS 159.140(3) provides that “[i]n any action brought to enforce compulsory attendance laws, the director of pupil personnel or an assistant shall document the home conditions of the student and the intervention strategies attempted and may, after consultation with the [CDW], refer the case to the [FAIR] team.” KRS 630,050 mandates a conference with the CDW and requires under (2) that the CDW “shall make reasonable efforts to refer the child and his family to [a public or private social service] agency before referring the matter to court{.]” KRS 610.030 sets out actions a CDW can take including (5) that “[t}he preliminary intake inquiry shall include the administration of an evidence-based screening tool and, if appropriate and available, a validated risk and needs assessment, in order to identify whether the child and his or her family are in need of services and the level of intervention needed” and (6)(a) that “[u]pon the completion of the preliminary intake inquiry, the [CDW] optional to send a five-year-old to school, mother could not educationally neglect child because child was only five years old when she was excessively absent. While it may be prudent for child to be enrolled in school, attend faithfully and obtain the maximum educational services such enrollment and attendance allows, mother could not educationally neglect child when child’s school enrollment in the first place was not compulsory but optional. A parent who wants her child to attend school before it is compulsory should be lauded for seeking out education for her child and given assistance where needed to fulfill such a goal, not charged with neglect if the child’s attendance is less than stellar. This does not mean that school personnel should ignore when a child of any age has attendance problems. School attendance problems are often a symptom of a larger problem and merit investigation and intervention as mandated by statute even when the child is too young to be required to attend school or to be classified as a truant. KRS 159.140 provides in relevant part: (1) The director of pupil personnel, or an assistant appointed under KRS 159.080, shall: (d) Ascertain the causes of irregular attendance . . . through documented contact with the custodian of may . ..[i]f the complaint alleges a status offense, determine that no further action be taken subject to review by the [FAIR] team[.]” KRS 630.060(2) states that “[nJo complaint shall be received by the [CDW] alleging habitual truancy unless an adequate assessment of the child has been performed pursuant to KRS 159.140(1)(c), (d), and (£), unless it can be shown that the assessment could not be performed due to the child’s failure to participate.” 6 the student, and seek the elimination of these causes; (e)... . keep all enrolled students in reasonably regular attendance; [and] (8 Attempt to visit the homes of students who are reported to be in need of books, clothing, or parental caref.] It is troubling that a DNA action was initiated when there was no indication that Finke or anyone else fulfilled any of the duties owed to child pursuant to KRS 159.140(1). Although a DNA petition could not properly be brought for educational neglect of child due to her age, we are concerned that DNA petitions are being pursued for educational neglect as a work-around for the statutorily mandated processes that must take place before a truancy petition may be filed. While KRS 630.060(2) requires compliance with KRS 159.140(1)(c), (4) and (f) for there to be subject matter jurisdiction over a delinquency petition for truancy, TD. v. Commonwealth, 165 $.W.3d 480, 482-83 (Ky.App. 2005), and other statutory interventions are inapplicable if a DNA petition is being pursued rather than a delinquency petition, this does not mean that the director of personnel should be able to ignore the applicable provisions of KRS 159.140(1) and take no mandated action if a DNA petition for educational neglect is pursued instead. Ata DNA hearing instituted by school district personnel based on educational neglect, it must be established that the director of personnel or designee has complied with 7 the statutory duties designed to remedy attendance problems before the matter proceeds any further. Providing support for the family, rather than immediately turning to the court system to request that child be removed from her home to make sure she attends school, is a more appropriate and efficacious use of limited resources. The court system should be the last resort for attendance problems or truancy. Parents have a “fundamental, basic, and constitutional right to raise, care for, and control their own children.” Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010). A finding of neglect for failure to educate a child who is below mandatory school age “would be to sanction state intrusion into the personal relationship between parent and child to an intolerable degree and would impermissibly impair the normal prerogatives of parenthood.” Doe v. G. D., 146 N.J. Super. 419, 431, 370 A.2d 27, 33 (App. Div. 1976), affirmed by Doe v. Downey, 74 N.J. 196, 377 A.2d 626 (1977). Accordingly, the family court acted properly in determining that the Commonwealth could not establish a prima facie case for educational neglect and dismissing the case. LAMBERT, JUDGE, CONCURS. NICKELL, JUDGE, DISSENTS AND FILES SEPARATE OPINION. NICKELL, JUDGE, DISSENTING: Respectfully, I dissent because I believe the majority's reasoning is contrary to the law. While I agree with the majority that school enrollment for a five-year- old is discretionary, I part ways with the assertion attendance following enrollment is optional. The majority’s position ignores the plain statutory language of KRS 159.010(1)(a). Although the majority correctly recites the mandatory attendance language contained in KRS 159.010(1)(a), it then holds the statute does not apply in this situation because school enrollment for five-year-olds is not required. While it is true mother did not have to enroll child in school, once she did so—and the decision became irrevocable by operation of 704 KAR 5:060 § 1-the provisions of KRS 159.010(1)(a) apply. That statute plainly mandates a parent “shall” send a child who has entered the primary school program to school on each day school is in session. Id. (emphasis added). KRS 446.080(4) states that “[a]ll words and phrases shall be construed according to the common and approved usage of language ....” “In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command and . . . must be given a compulsory meaning.” “If the words of the statute are plain and unambiguous, the statute must be applied to those terms without resort to any construction or interpretation.” Shall means shall. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 89 (Ky. 2018) (quoting Vandertoll v. Commonwealth, 110 8.W.3d 789, 795-96 (Ky. 2003)).. Here, child was enrolled in and had entered the primary school program; sufficient time had elapsed for mother’s decision to become irrevocable. Thus, child was required to attend school. ‘The majority incorrectly equates child to “identically situated” children of the same age who are not required to attend school. A five-year-old who has never been enrolled in school cannot, by definition, be “identically situated” to a five-year-old who has been enrolled and entered the primary school program. The majority’s reliance on In re B.B. is inapposite as Vermont law, unlike KRS 158.030(2), does not permit voluntary enrollment of a five-year-old. Nor does Vermont law contain a provision similar to KRS 159.010(1)(a) regarding compulsory attendance of children who have entered a primary school program. Rather, Vermont requires mandatory attendance of children aged six through sixteen, 16 Vermont Statutes Annotated §1121. Vermont does not require enrollment in kindergarten. Thus, the holding in Jn re B.B. is inapplicable to the issues raised in this Kentucky appeal. The majority proceeds to require expenditure of a school district’s limited resources to monitor and resolve attendance problems relating to an absent -10- child it has already determined to have no attendance obligation. As such, the majority’s holdings are internally inconsistent. For these reasons, I believe excessive absenteeism of a child properly enrolled in the primary school program, regardless of age, can serve as the basis of an educational neglect petition. Here, mother chose to enroll her five-year-old child in school. Upon making this choice, mother was required to comply with the clear legislative mandate to ensure her child was present on each day school was in session. Nowhere in the educational statutes of this Commonwealth do I find support for the majority’s resolution. Contrary to the majority’s holding, no mechanism exempts mother from application of KRS 159.010(1)(a). “The seminal duty of a court in construing a statute is to effectuate the intent of the legislature.” Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citing Commonwealth v. Harrelson, 14 $.W.3d 541 (Ky. 2000)). “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005) (citing Perrin v. United States, 444 USS. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979)). Thus, we are “to ascertain the intention of the legislature from words used in enacting statutes rather than surmising what may have been intended but was not expressed.” Stopher v. Conliffe, 170 8.W.3d 307, 309 (Ky. 2005), overruled on other grounds by Hodge v. Coleman, 244 $.W.3d 102 (Ky. 2008). Hall y. Hosp. Resources, Inc., 276 8.W.34.775, 784 (Ky. 2008). “In construing statutes, we are ‘not at liberty to add or subtract from the legislative enactment or le interpret it at variance from the language used.”” Kentucky Employees Retirement System v, Seven Counties Services, Inc., 580 S.W.3d 530, 539 (Ky. 2019) (quoting Johnson v. Branch Banking & Tr. Co., 313 S.W.3d 557, 559 (Ky. 2010)). As noted by the majority, the legislature enacted different rules for five-year-old children in relation to discretionary enrollment and truancy matters. While the General Assembly could have easily carved out an exception to the mandatory attendance statute for five-year-old enrollees, it did not. Tam convinced the majority has ignored the unequivocal mandatory statutory language enacted by the legislature and its construction of the statutory provisions leads to an absurd result. See Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky. 2004). I would reverse the trial court’s dismissal of the petition herein and remand for further proceedings. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Andy Beshear Justin D. Durstock Attorney General of Kentucky Ft. Mitchell, Kentucky Christopher S. Nordloh ‘Amanda Johnson Special Assistant Attomeys General Covington, Kentucky 12 12/12/2019 26:11 |a59410752 FEDEX OFFICE PAGE 92/02 [ RECEIVED | pec te 209 | wagg CT Subject Judicial conduct review of Dawn M. Gentry, Family Court Judge 16th Judicial irc, Family Division 5 To: Judicial Conduct Commission of Kentucky Members of the Commission: ‘The news reported, by the various news agencies, inthis matter, paint avery disturbing picture. ‘What | read in the news and in your list of charges against the judge Is not the Dawn Gentry that | know. With our current politica landscape, thats so filed with hatred between the two politcal parties, you ‘must wonder ifthe information in the news about Judge Gentry Is true orf this just a well-planned political hitjob? ‘These charges, about hot button issues that the news media loves to talk about, all happening to one person at the same time just seems too good to be true. Drinking on the job and illicit sex in the office are stories that the media will always sensationalize. This whole case has the earmarks of an intentional effort by someone that is out to get someone else, {hope that you demand, that only verifiable facts may be submitted as evidence and no second party hearsay or unverifiable “he said, “she said” will be allowed. 'm sure that the person or persons behind this issue know full well that once a public figure has been tarnished with the statements in the news, it is almost impossible to erase the stigma in the minds of the citizens / voters. The lst thing we need in the Commonwealth of Kentucky, is your commission getting caught up in using anonymous hearsay or half-truths as a bases for disciplinary action against a sitting judge. ! hope, when ‘You complete your investigation, that you can essure the people of Kentucky that your conclusions are based solely on non-refutable, verifiable evidence. ‘Whatever the outcome is, it does not change the fact that Dawn Gentry isa decent caring person. Thank you, John L Shields 2942 Observatory Kil Ct Villa Hills, KY 41017, > al lie Centey 2 AFFIDAVIT Having been first duly cautioned and sworn, Affiant states the correspondence dated December |7-2019 is written by Affiant, is true and correct to the best of Affiant’s knowledge and belief. FURTHER, AFFIANT SAITH NAUGHT. COMMONWEA! 1F KENTUCKY COUNTY OF and The foregoing instrumenf was acknowledged before me this day of 1g-O by ie & Welds who swears and firms that thp facts contained therein are true and accurate to the best of her/his knowledge. RECEIVED DEC 41 2009 JUDICIAL COT co THE BERGER FIRM ATTORNEYS ASD COUNSELORS A LAW " ICT JORN A, BIRGER» BRYAN C. BERGER + J, ALEXANDAR BERGER WW WCTHEDBRGERFIRM.COM. December 10, 2019 Michael Sullivan, Chairman Kentucky Judicial Condiict Commission clo Ms. Jimmy Shaffer, Executive Secretary P.O. Box 4266 Frankfort, Kentucky 40604-3266 - Re: Honorable Dawn Gentry Greetings: By way of introduction, my name is John Berger and | am the senior partner at The Berger Firm in Covington, Kentucky. | am writing this letter in support of Honorable Dawn Gentry. As a lawyer who has been practicing in excess of 45 years, Judge Gentry’s election to the bench was an excellent choice of the voters. With many years of family court experience, | find Judge Gentry to be an outstanding Family Court Judge who listens to the evidence, makes timely rulings and respects the lawyers who appear before her, making ita pleasure for any of us to try a case in fer courtroom. The fact is, | have appeared before many circuit court judges and | consider Judge Gentry to be one of the most knoiwiedgeable and professional judges before whom Ihave presented a case. ‘have known the Judge since she began practicing law. She was highly intelligent, courteous and always prepared; which is exactly the way she conducts herself on the bench. : . {tis truly unfortunate that this case has already been tried in the press, (something which ‘embarrasses me as an attorney). | would encourage the commission to listen to the evidence that will be presented.” | sincerely believe that once she can present her evidence and the truth is tald, the allegations will be unfounded and she can continue her valued position as the Judge of the Kenton Family Court, Fifth Division, Ve uly yours, —_ JOHN A. BERGER 118 WEST FIFTH STREET » COVINGTON, KENTUCKY 41011 = P 859-431-1000 + 6: 859-431-1003 AFFIDAVIT Having been first duly cautioned and swom, Affiant states the correspondence dated December 10, 2019, is written by the Affiant, is true and correct to the best of . Shey JOHN A. BERGER Affiant’s knowledge and belief. Further, Affiant sayeth naught. COMMONWEALTH OF KENTUCKY COUNTY OF KENTON The foregoing instrument was acknowledged before me this 2" day of January, 2020, by John A. Berger, who swears and affirms that the facts contained therein are true and accurate to the best of his knowledge. My Commission Expires: 10.0l0,2020. NOTARY PUBLIC” ID#: AFFIDAVIT OF JAMES RI [ARD SCOTT Having been first duly cautioned and sworn, Affiant states the cotrespondence dated December 10, 2019, was written by the Affiant, and is true and correct to the best of the Affiant’s knowledge and belief. FURTHER AFFIANT SAYETH NAUGHT. Rd JAMES RI iCHARD SCOTT COMMONWEALTH OF KENTUCKY COUNTY OF KENTON The foregoing instrument was acknowledged before me this 2" day of January 2020 by JAMES RICHARD SCOTT, who swears and affirms the facts contained there are true and accurate to the best of his knowledge. RACHEL REIS NOTARY PUBLIC STATE AT LARGE, KENTUCKY LD. NO. 613811 My COMMISSION EXPIRES: IOTARY PUBLIC Registration No. My Commission expires: [21k |32 From: 12/12/2019 16:35 «#748 P.00z/002 Attorneys and Counsellors at Law DENNISON & ASSOCIATES Pe ' PRECEIVED | ) DEC 12 209 JUDICi.. GONDUCT COMMISSION December 12, 2019 Jadicial Conduet Commission P.O. Box 4266 Frankfort, Kentucky 40604 RE: Judge Dawn Gentry ‘To the Members of the Judicial Conduct Commission: This letter is being written not at the request of Judge Gentry, or anyone associated with defending her, or helping get her elected. Rather, it is being written because I wanted the Judicial Commission to know, without an agenda being connected to it, how I feel about her as a Judge. ‘When Dawn Gentry was appointed, out of it seemed like nowhere, as a political “outsider”, most of the bar was so happy—a no-name, fresh and qualified Judge now on the bench (based ‘upon my interactions with her as a family court attornej—known as being even-handed, fair with a great demeanor). From the moment she stepped on the bench, it was as if she had been there for years. 1 am speaking from what I havé personally observed about her--the comfort, and ease in which she ‘operates on the bench, her demeanor, respect for attomeys and the persons before her. And after having had case after case with her, her rulings are just as they should be, thought out, and in accordance with the law for a. change, regardless of who you are or who you represent. Often time, she comes back with so much common sense, I am embatrassed that that got lost in all of my. efforts to win. And if the decision she makes is not in my favor, itis said with such grace that you just don’t feel as bad, because of the kindness in her delivery, as opposed to a slap in the face in front of your client. She eliminated a wasteful motion docket and as a result, we are scheduled in for hearings far more quickly. And when your time is up, your hearing is rescheduled, so the next ccase set up starts on time. I just cannot say enough good things about her. After 33 years or s0 of practicing law, I traly believe she is the one of the very best Judges we have ever had in Kenton County for domestic relations, and one Kenton County should not lose. 524 Greenup Street Covington, Kentucky 41011 (859-491-3700, (859) 491-3088 Fax