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
Geareyby 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.”
6the 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
7the 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
leinterpret 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
1212/12/2019 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 2AFFIDAVIT
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: 859-431-1003AFFIDAVIT
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 |32From: 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