NAVIGATING INTOXICATED PARENTING: A CALL FOR CLEAR GUIDELINES IN KENTUCKY LAW

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Navigating Intoxicated Parenting: A Call for Clear Guidelines in Kentucky Law

Emily Prince*

Introduction

While no specific age is provided in Kentucky law for when a child may stay home alone, in certain circumstances, Child Protective Services (CPS) will substantiate neglect against parents who leave their child unattended.[2] This occurs if the child is, for whatever reason, incapable of meeting their immediate needs while unattended in such a way “that the physical health and safety of the child is negatively affected.”[3] Similarly, if the child is of sufficient age and mental capacity so that the child is not placed at risk of harm by being alone, CPS will not substantiate a finding of supervision neglect against the parents or legal guardians.[4] CPS social workers often piggyback off of supervision neglect to substantiate findings of neglect against parents who are physically present but too intoxicated to care for the basic needs of their children, thereby negatively affecting the physical health and safety of the child.

An interesting conundrum occurs when the child is sufficiently capable of providing for their own immediate needs, yet the parent is physically present and intoxicated. In instances such as these, I, a former Kentucky CPS social worker from 2021 to 2022, was advised by different supervisors in different cases to do different things. In the first case, I was advised to unsubstantiate the allegation of neglect because there was no proof that the parental substance use affected the child. In the second case, I was advised to substantiate the allegation of neglect because the parental substance use alone does negatively affect the child. The reasons given were that in the case of an emergency, a parent would be unable to transport the child to a hospital or give consent to treatment, parental substance abuse places the child at greater risk of other abuse and neglect, and it places the child at risk of accidental ingestion or other exposure to drugs and drug paraphernalia. In both cases, the children were sufficiently competent such that a finding of supervision neglect would have been unsubstantiated should the child have been alone for the same amount of time.

Currently, Kentucky leaves significant room open for CPS and trial courts to find supervision neglect against a parent solely due to a parent’s misuse of substances, even though the parent did not expose the child to increased risk in other ways. Such a finding of neglect can lead to the child being removed from the home and placed with relatives or in foster care. While parental substance abuse may increase the risk of environmental hazards[5] and is correlated with negative social-psychological effects,[6] when these risks are not present or are minimized, the child’s interest in stability and maintaining family bonds and the state’s interest in preserving resources should be predominant. Unfortunately, the ambiguities in Kentucky’s statutory and administrative guidelines have proven ripe for CPS social worker discretion and inconsistency in finding parental substance misuse as child neglect. In response, Kentucky rule–makers should amend statutory and administrative guidelines to make clear that parental substance abuse alone, without more, is not grounds for substantiating neglect, but may be grounds for other interventions aimed at strengthening families and reducing the associated risks. 

     I.         Current Kentucky Law Leaves Too Much Room for Inconsistent Application 

A.     Existing Kentucky Legislation Leaves Significant Discretion for the Cabinet 

Kentucky Revised Statutes defines “abused or neglected child” in relevant part as:

(1) [A] child whose health or welfare is harmed or threatened with harm when:

(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child: . . .

2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;

3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005;

4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child; . . .

8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being when financially able to do so or offered financial or other means to do so . . .  [.][7]

Three points are noteworthy. First, parental substance abuse is mentioned only in subsection three. Second, to satisfy subsection three, the phrase, “[e]ngages in a pattern of conduct . . .” indicates that abuse or neglect in this instance requires a pattern of offenses, not just an isolated incident. Third, substance use disorder alone is insufficient to meet the criteria of abuse or neglect—the parent must also be incapable of meeting the child’s needs. In other words, the parent’s substance use must have an effect on the child.  

B.     Administrative Regulations Leave Significant Discretion for Worker 

922 KAR 1:330(2)(4) provides, in relevant part, that the Cabinet for Health and Family Services (Cabinet) shall: 

(b) Investigate or conduct an assessment upon receipt of a report that alleges neglect of a child perpetrated by a caretaker that may result in harm to the health and safety of a child in the following areas: . . .

2. Supervision neglect if the individual reporting has reason to believe that the physical health and safety of the child is negatively affected by lack of necessary and appropriate supervision; . . .

8. Neglect due to a caretaker's use of drugs or alcohol that results in:

a. A child born exposed to drugs or alcohol, as documented by a health care provider pursuant to:

(i) 42 U.S.C. 5106a(b)(2)(B)(ii); and

(ii) KRS 620.030(2);

b. A child's facilitated access to and use of drugs or alcohol that may result in a life-threatening situation for the child . . . [.][8] 

As substance abuse is only specifically mentioned regarding children’s access or exposure to drugs, social workers typically rely on supervision neglect when confronted with allegations of parental substance abuse.[9] The theory is that intoxication renders the parents unable to appropriately supervise their children. Although statutory and administrative guidance comes short in answering what constitutes “necessary and appropriate supervision,”[10] it nevertheless remains clear that the child must be detrimentally affected by the failure of the parents to supervise their child.[11] Inconsistency arises in practice concerning whether the “physical health and safety of the child is negatively affected” when the only potential for abuse arises from parental substance abuse in otherwise self–sufficient children. 

C.     Case Law Gives Rise to Unanswered Questions

M.C. v. Cabinet for Health and Family Services[12] almost squarely addresses the problem presented in the introduction.  Although the father regularly consumed alcohol around his three children, who were thirteen and fifteen at the time, he maintained that his drinking did not “have an effect on his ability to parent and care for his children” and refused to attend intensive outpatient treatment.[13] When he drank, the children observed a change in the appearance of his eyes and his words would be slurred.[14] He only drank at night and always drank away from the children on the deck.[15] When he drove the children to school in the morning, he was sober.[16] One child was bothered by his drinking and it sometimes led to arguments between the child and her father.[17] The children had good school attendance and were excelling in school.[18] The social worker had “no concerns about them being properly fed, clothed, or otherwise provided for.”[19] The home was described as “extremely cluttered” but not dirty, and there was no indication that anything in the home posed “a threat to the children’s health or well-being.”[20]

The trial court “found that the children were neglected under KRS 600.020(1)(a)2, 3, 4, and 8.”[21] Finding that there were no means available to leave the children inside the home due to the father’s refusal to stop drinking or attend intensive outpatient treatment, the trial court removed the children from the home.[22] The Cabinet changed the permanency goal of the family to adoption and abandoned reunification efforts.[23] The father, M.C., “appealed the family court’s decision to the Court of Appeals, which affirmed” the family court’s decision.[24]

M.C. appealed to the Supreme Court of Kentucky, and the Supreme Court overturned the trial court’s finding of neglect.[25] The Supreme Court acknowledged that KRS 600.020(1)(a)(2) allows a neglect finding where “a risk of abuse exists and does not require actual abuse prior to the child’s removal from the home or limitation on the contact with an abusive parent,”[26] but nevertheless held that “‘the risk of harm must be more than a mere theoretical possibility,’ it must be ‘an actual and reasonable potential for harm.’”[27] The Court relied on the children’s age and abilities in overturning the neglect finding but declined to create a categorical age in which a child cannot be subjected to neglect from a parent’s substance use.[28] The Court distinguished this case from one in which the child was a newborn and required care “nearly twenty-four hours a day.”[29] The Court also emphasized that the record was devoid of evidence indicating that the father’s alcoholism impacted the needs of the children in any detrimental way.[30] The Court stated that, while “M.C. would be well-advised to continue to seek substance use treatment,” his substance use had not rendered him neglectful of his children.[31]

The case of M.C. was somewhat unique in two respects. First, M.C.’s success can be attributed to his ability to appeal the trial court’s ruling and overcome the discretion afforded to trial courts’ determinations of fact. In neglect and abuse cases, the Cabinet must prove neglect or abuse only by a preponderance of the evidence.[32] “A family court’s finding of fact in [an abuse or neglect] action ‘shall not be set aside unless clearly erroneous.’”[33] Trial courts have broad discretion in finding whether a child has been neglected or abused[34] and significant leeway in safekeeping their determinations from being overturned on appeal.[35] M.C. went through two appeals before the Supreme Court of Kentucky overturned the trial court’s finding of neglect.[36] Not all parents deemed neglectful due to a substance abuse disorder will be fortunate enough to have the resources to appeal once, let alone twice.[37]

Second, in M.C., the father was using alcohol, not illegal substances. Although M.C. did not address the distinction, it leaves open the question of whether the illegal nature of other substances places the children at higher risk of not having their needs met. Whether through causation or correlation, parental alcohol use appears to have better outcomes for those in the child protection systems than parental use of illegal drugs.[38] The Court also leaves open the question of what abuse or neglect due to substance abuse would look like for children who are self–sufficient and able to be on their own without supervision for extended periods.

In Cabinet for Health and Family Services on behalf of C.R. v. C.B.,[39] which the appellate court heavily relied on and the Supreme Court of Kentucky distinguished in M.C.,[40] the Court found that substance use alone can be the basis of a neglect finding without additional finding of harm to the particular child when the substance use has been the basis for a prior involuntary termination of parental rights (TPR).[41] In C.B., the father of a newborn who tested positive for suboxone at birth due to the mother’s prenatal substance use “admitted to using heroin, Percocet, and off-street suboxone.”[42] The father had previously had his parental rights to other children involuntarily terminated.[43] In upholding the trial court’s finding of neglect and reversing the Court of Appeals, the Supreme Court of Kentucky stated that the father’s “prior history of drug abuse was found to have created a risk of harm in the prior TPR proceeding” and “the family court certainly does not have to wait for actual harm to occur before taking protective measures.”[44] The Court reiterated that “[KRS 600.020(1)(a)(2)], as written, permits the court’s finding where a risk of abuse exists and does not require actual abuse prior to the child’s removal from the home or limitation on the contact with an abusive parent.”[45] 

What exactly constitutes “a risk of abuse” is left undefined and subject to interpretation. The Court has insisted that “risk of harm must be more than a mere theoretical possibility” but “an actual and reasonable potential for harm.”[46] Surely, an alcoholic father of teenagers increases some risk of harm, yet M.C. found that it did not. While C.R. focused mostly on the prior TPR of the father,[47] the Court in M.C. made clear that the children’s ages were a predominant factor for the distinction.[48] M.C. also made clear that the fact that the children’s needs had not gone unmet was a motivating factor,[49] but no evidence was presented in C.R. that the newborn’s needs had gone unmet due to the father’s substance use.[50] What is left after these two cases is confusion, and confusion is a ripe breeding ground for inconsistent application of the law.

     II.         Supervision Neglect as a Basis for Finding Neglect Due to Parental Substance Abuse 

Given that no separate category of neglect exists for situations in which a parent is present but intoxicated, Cabinet workers must find that a case meets the criteria for supervision neglect before substantiating an allegation of neglect in such situations. The question becomes, then, whether, with all else being equal, the criteria for evaluating whether a child can be left unattended should be the same for when a child can be left alone with an intoxicated parent. Kentucky does not have a set age for when a child is permitted to stay alone.[51] Instead, Kentucky will accept a report for supervision neglect “if the individual reporting has reason to believe that the physical health and safety of the child is negatively affected by lack of necessary and appropriate supervision.”[52] Beyond this, workers are given a high level of discretion in how they determine whether a child may be left alone. One Cabinet worker, Misty, reported that she bases her discretion on “age, maturity, cognitive ability, etc.”[53] Misty assesses the child’s ability to respond appropriately in case of an emergency by providing the child with emergency scenarios and asking the child how they would respond, and also determining whether the child has access to emergency numbers.[54] Other workers will likely use similar criteria, but each worker will evaluate the information obtained differently.

Evaluating whether other factors should be considered beyond the age and abilities of the child when determining whether the child may be left with an intoxicated caregiver requires asking whether adding an intoxicated caregiver increases the risks that would otherwise exist if the child were left alone. The answer to this is in the affirmative—a present but intoxicated caregiver does pose potential risks to a child that would not be present if the child were alone.  A caretaker using substances exposes children to the risk of coming into contact with environmental hazards such as alcohol, drugs, or drug paraphernalia, which may lead to accidental overdose or physical injury to young children[55] and experimental drug use in older children.[56] These additional risks, however, fall under the Cabinet’s category of environmental neglect and could be charged as such if the parent exposes the child to a dangerous environment by leaving alcohol, drugs, and drug paraphernalia unsecured.[57]  These are distinct categories that must be separately satisfied. Fully or partially meeting the criteria for one does not substitute for fully meeting the criteria of another.

Another potentially added risk of an intoxicated parent versus an absent parent is that, in the case of an emergency, the parent would be unable to consent to treatment. Medical practitioners must gain the informed consent of a patient or their representative before providing treatment[58] and failure to do so can be considered malpractice.[59] Informed consent requires that the person giving the consent is able “to understand relevant medical information and the implications of treatment alternatives and to make an independent, voluntary decision.”[60] Depending on the level of intoxication, a parent may not have the requisite mental capacity to understand these risks and provide informed consent.[61] Fortunately, the Kentucky legislature has anticipated times when medical treatment should be given without pause.[62] In such cases, there is an exception to the requirement of informed consent for emergencies[63] and when “in the professional's judgment, the risk to the minor's life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.”[64]

Of course, should these provisions fail to accommodate the situation and the child be forced to go without medical care based on the parent’s inability to consent, this potentially could be considered medical neglect. However, the criterion for medical neglect makes this scenario unlikely if not impossible. Medical neglect requires that the child not receive treatment for injury, illness, or disability that may be life threatening, “result in permanent impairment,” “interfere with normal functioning and worsen,” or “be a serious threat to the child’s health due to the outbreak of a vaccine preventable disease, unless the child is granted an exception to immunization pursuant to [statute].”[65] The statutory exceptions to informed consent discussed above ensure that consent is not a hurdle to seeking treatment for the sorts of ailments that would be considered medical neglect if gone untreated. Transportation to the hospital in the case of an emergency could still be a barrier to treatment when the driver is too intoxicated to drive, but limited transportation is not always considered neglect, such as when it is due to poverty.[66] Ambulatory services are capable of transporting children to the hospital in situations such as these.  Therefore, although intoxicated parents do increase risks, these risks are either considered neglect under a separate category or are sufficiently minimized to not constitute neglect.
 

III.         Considerations and Competing Interests

Determining how to address parental substance abuse in a child abuse or neglect context requires a weighing of multiple factors including parental rights, the best interests of the child, and the state’s interests in conserving its resources.

A.     Preserving Parental Rights 

Parents have a long–established fundamental liberty interest in the care, custody, and control of their children,[67] meaning that “a parent has a basic and fundamental right to be free from governmental interference when parenting a child.”[68] This is true even if the parents “have not been model parents.”[69] The Court has recognized a parent’s “‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”[70]  Before a parent can be deprived of this fundamental liberty interest by the state, the parent is entitled to procedural safeguards.[71]

In state–initiated abuse or neglect proceedings, the Cabinet must prove abuse or neglect as defined in KRS 600.020[72] by a preponderance of the evidence.[73] In K.H. v. Cabinet for Health and Family Services, the Court of Appeals of Kentucky refused to uphold neglect findings where the risk of harm to the child was a “mere theoretical possibility” and where the conclusion was merely speculative and “based upon the compounding of inferences upon inferences.”[74] In so deciding, the court stressed the dangers of “wide-reaching intrusion by the state into the parent-child relationship” and warned that allowing the Cabinet to find neglect based on attenuated circumstances would give the state too much power in imposing its views about proper parenting.[75] A parent against whom neglect is found is placed on a registry and barred from working many jobs involving children and other vulnerable populations.[76] Given what a parent has at stake in abuse and neglect proceedings, it is crucial that a court ensure that the parent placed the child at risk of actual harm and not merely at risk of violating social norms.[77] 

B.     Preserving State Resources 

The state has “a fiscal and administrative interest in reducing the cost and burden” of neglect and abuse proceedings.[78] In 2016, Kentucky spent an estimated $560 million on child neglect and maltreatment.[79] It is nearly impossible to estimate how much money Kentucky spends on instances similar enough to the introductory scenario to be meaningful and thus determine how much Kentucky would save by constraining the criteria in which this sort of neglect is found. Nonetheless, a natural inference is that a narrower definition of abuse or neglect would result in fewer cases of neglect and less money expenditure by the state for investigating allegations and funding foster homes. Given that the state pays between $27 and $108.64 per day per child in foster care just to reimburse the foster parents, not factoring in other costs such as Medicaid coverage or food assistance[80], minimizing the number of children that go to foster care is a logical way to reduce financial expenditure by the state.

C.     Mitigating Harm to Children

Parental substance abuse poses dangers beyond inadequate supervision. CPS workers are highly aware that parental substance abuse is associated with an increased risk of child abuse and neglect.[81] Of course, correlation doesn’t necessarily mean causation. Many factors contribute to both substance abuse and child maltreatment, including parental mental illness, lower socioeconomic status, lower education, higher levels of stress in the home, and residential and caretaker instability.[82] Interestingly, child abuse rates are the same for parents with a current diagnosis of substance abuse as parents with a prior diagnosis of substance abuse, suggesting that sobriety does not mitigate the likelihood of committing abuse.[83] This implies that substance abuse itself is not the cause of child abuse but rather another symptom of a complex interplay between social, biological, and environmental factors.

Perhaps, then, the most efficient way to address child abuse through the lens of parental substance misuse is to broaden the scope of the inquiry to include other risk factors associated with parental substance misuse. In this vein, perhaps the state should consider making parental mental illness, lower socioeconomical status, lower education, higher levels of stress in the home, and residential and caretaker instability child abuse or neglect. Of course, this idea would shock the conscience of the average citizen, who would balk at the idea by saying that children are always exposed to risks, and such is part of life. There is some risk in giving a child a deadly weapon, yet school aged children all across the country are armed every year with bows and arrows in the name of archery. There is always a risk that a child will choke on solid foods, yet no pediatrician would advise the parents to maintain a liquid diet until the child is an adult. For that matter, parental cigarette smoking poses risks to children without benefiting them in any way, yet Kentucky does not make cigarette smoking by parents child abuse.[84]

This creates an interesting quandary about which risks society is willing to tolerate and which risks cross the line into abuse or neglect. The answer to this seems to focus not on the amount of risk but on the social acceptance of the act leading to the risk. For example, in my experience as a social worker and observing other workers, I noticed that the parent’s reasons for leaving a child unsupervised influenced whether the worker substantiated the neglect allegation. If the parents left the child home alone to go to work, the outcome would be more favorable to them than if they had left the child to visit a paramour. The risk to the child was the same but the outcomes of the cases were different. A similar bias seems to be at play regarding the “risk” of parental substance use and inadequate supervision. When discussing this topic with my former supervisor and coworkers, I was advised that if the parent is incapacitated due to drugs, this is neglect because the parent is unavailable should the child need medical treatment. At the same time, if the parent is sedated for surgery, this would not be neglect because it is for medical reasons. Again, the risk to the child is the same but the cases have different outcomes.

It is thus fair to conclude that, for better or for worse, in the abuse and neglect arena, the “risks” of parental substance abuse encompass more than just the risks to the child. The “risks” include at least some amount of social judgment of the proprieties of the parent’s actions. This is particularly relevant when contemplating whether to distinguish M.C. v. Cabinet for Health and Family Services[85] (discussed above) from the introductory scenario. M.C. involved parental alcohol abuse.[86] Studies estimate between 12% and 70% of child abusers are alcoholics.[87] This overlaps significantly with the estimated 40% to 80% increase in child abuse brought on by parental substance misuse other than alcohol.[88] This indicates that there may not be a meaningful distinction drawn between the effects of parental substance abuse and parental alcohol abuse regarding child abuse sufficient to justify differential treatment of them in the dependency, neglect, and abuse courts. 

D.     Preventing Further Harm to Children by Removal

When the Cabinet believes there is sufficient evidence for the court to find neglect or abuse and the court agrees, the child may be removed from their family home and either placed with relatives, fictive kin, or put in foster care.[89] While removing a child from an at–risk home may intuitively seem to be in the best interests of the child, it is often the case that removing the child from their parents causes more psychological trauma than if the child had been left in the home.[90] In addition to the trauma associated with removal, children are frequently exposed to abuse and neglect in their foster homes.[91]

IV.         Balancing Risk and Intervention: The Argument for ‘Services Needed’ Approach 

Kentucky implemented its juvenile code to protect children and maintain family bonds by adopting effective policies and practices that are supported by empirical evidence and “offering all available resources to any family in need of them.”[92] Clearly, parental substance abuse is a real issue of concern for those concerned about child safety and welfare. While this Note argues that the current state of the law does not call for a finding of neglect for parental substance use beyond what is appropriate for such a finding under supervision neglect (or the narrow circumstances defined in 922 KAR 1:330(2)(4)(b)(8)),[93] it would be naïve to ignore the increased risk that accompanies such behavior. Parents that use substances expose their children to an increased risk of educational delays; insufficient dental and medical attention; mental, behavioral, and emotional issues; injury due to dangerous home environment; and substance abuse issues for the child themselves as they grow older.[94] Even if these risks are not sufficient to justify classifying the root behavior as neglect or abuse, perhaps other routes can be taken to improve outcomes.

Instead of substantiating or unsubstantiating an allegation of abuse or neglect, the Cabinet can instead make a “services needed” finding.[95] This finding is appropriate when the family has high risk factors but “the child was found to be safe during the child protection intervention” and the risk factors are at an insufficient level to open a protection case.[96] The goal of such a finding is to reduce these risk factors and provide services to the family.[97] If the Cabinet makes a “services needed” finding, the Cabinet would open an ongoing case and work with the family to provide empirical and strengths based preventative services, such as substance abuse treatment and mental health counseling.[98] These services are voluntary and the family is free to refuse them.[99] Should the family refuse and the Cabinet lacks the evidence to make a finding of abuse or neglect, the case is closed without providing further services.[100]

This avenue is the appropriate avenue for the introductory scenario. It recognizes that substance abuse raises the risk of maltreatment but isn’t in itself maltreatment. It allows the family the opportunity to receive services before the issues turn into abuse but abstains from encroaching on the parents’ fundamental rights. It also allows the state to conserve its resources and spend them wisely by investing them in those willing to make meaningful changes. 

Conclusion 

Understandably, the Kentucky legislature has given room to the Cabinet to decide what constitutes abuse or neglect. Also understandably, the Cabinet has attempted to give its workers wide enough latitude to deal with real life situations as they arise. These situations are varied, complex, and hard to predict. It would be impossible to exhaustively anticipate and provide guidance on all potential scenarios. One scenario, nonetheless, is reoccurring and demands more thorough guidance: the situation in which a child that would otherwise be competent to be unsupervised is left to the sole care of an intoxicated parent and no other associated risk is present. The law as it stands seems to indicate that this situation would not encompass neglect, but experience indicates a variety of approaches by differing workers and supervisors and results in different outcomes for materially equal cases. To prevent such inconsistency, Kentucky lawmakers should provide more guidance about how to address this situation. The most logical approach is to unsubstantiate claims of neglect in such a scenario and instead offer a “services needed” finding. This approach recognizes that risks are present when parents abuse substances but honors the parent’s constitutional rights, considers the best interests of the child, and takes into account the state’s interest in ensuring stability for the child and familial unity while also managing state resources efficiently. Kentucky lawmakers should update relevant laws to reflect these goals and remove discretion inconsistent with this recommendation.

* J.D Expected 2025, University of Kentucky Rosenberg College of Law; BS Criminal Justice 2020, Eastern Kentucky University.

[2] Ana Rocío Álvarez Bríñez, At What Age Can You Leave Children Home Alone in Kentucky?, Louisville Courier J., https://www.courier-journal.com/story/news/2023/06/09/planning-on-leaving-your-kids-alone-this-summer-get-ready/70271092007/ [https://perma.cc/DT8M-ZV9X ] (June 10, 2023, 5:45 PM).

[3] See 922 Ky. Admin. Regs. 1:330 (2023).

[4] See id.

[5] Vincent C. Smith & Celeste R. Wilson, Families Affected by Parental Substance Use, 138 American Acad. of Pediatrics e2, e4 (Aug. 2016), http://publications.aap.org/pediatrics/article-pdf/138/2/e20161575/1507458/peds_20161575.pdf [permalink unavailable].

[6] See Jessica M. Solis, Julia M. Shadur, Alison R. Burns & Andrea M. Hussong, Understanding the Diverse Needs of Children Whose Parents Abuse Substances, 5 Current Drug Abuse Rev. 135, 135 (2012).

[7] Ky. Rev. Stat. Ann. § 600.020 (West 2022) (emphasis added).

[8] 922 Ky. Admin. Regs. 1:330(2)(4)(b) (2023).

[9] Email interview with Misty Adkins, Social Service Worker, Cabinet for Health & Fam. Servs. (Jan. 31, 2024, 8:49 AM EST) (on file with author).

[10] See Ky. Rev. Stat. Ann. § 600.020 (West 2022); Ky. Rev. Stat. Ann. § 620.020 (West 2019); 922 Ky. Admin. Regs. 1:330 (2023).

[11] 922 Ky. Admin. Regs. 1:330(2)(4)(b) (2023).

[12] M.C. v. Cabinet for Health & Fam. Servs., 614 S.W.3d 915 (Ky. 2021).

[13] Id. at 919.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 919–20.

[20] Id. at 920.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 917.

[26] Id. at 923 (citing Cabinet for Health & Fam. Servs. ex rel. C.R. v. C.B., 556 S.W.3d 568, 576 (Ky. 2018)).

[27] Id. (citing K.H. v. Cabinet for Health & Fam. Servs., 358 S.W.3d 29, 32 (Ky. Ct. App. 2011)).

[28] Id. at 924–25.

[29] Id. at 924 (distinguishing Cabinet for Health & Fam. Servs. ex rel. C.R. v. C.B., 556 S.W.3d 568, 573 (Ky. 2018)).

[30] Id.

[31] Id. at 929.

[32] Ky. Rev. Stat. Ann. § 620.100(3) (West 2021).

[33] M.C., 614 S.W.3d at 921 (citing Ky. R. Civ. Proc. 52.01).

[34] Cabinet for Health & Fam. Servs. ex rel. C.R. v. C.B., 556 S.W.3d 568, 573 (Ky. 2018) (citing Dep’t for

Human Res. v. Moore, 552 S.W.2d 672, 675 (Ky. Ct. App. 1977)).

[35] See id. at 574.

[36] M.C., 614 S.W.3d at 920.

[37] See Maia Szalavitz, Addictions Are Harder to Kick When You’re Poor. Here’s Why, Guardian (June 1, 2016), https://www.theguardian.com/commentisfree/2016/jun/01/drug-addiction-income-inequality-impacts-recovery?CMP=share_btn_fb [https://perma.cc/HRN9-3NG8] (“addiction . . . is far less likely to hit people who have stable, structured lives and decent employment than it is those whose lives are marked by uncertainty and lack of work.”).  

[38] Child Welfare Info. Gateway, Parental Substance Use: A Primer for Child Welfare Professionals, 4 (2021), https://www.childwelfare.gov/resources/parental-substance-use-primer-child-welfare-professionals [permalink unavailable].

[39] C.B., 556 S.W.3d 568.

[40] M.C., 614 S.W.3d at 923–25.

[41] C.B., 556 S.W.3d at 576.

[42] Id. at 570.

[43] Id.

[44] Id. at 576.

[45] Id.

[46] M.C., 614 S.W.3d at 923.

[47] C.B., 556 S.W.3d at 575–76.

[48] M.C., 614 S.W.3d at 924–25.

[49] Id. at 924.

[50] See C.B., 556 S.W.3d at 576 (illustrating that the Court bases its holding on the father’s condition and drug use without evaluating whether the needs of the children were going unmet).

[51] Compare Md. Code Ann., Fam. Law § 5-801 (West 1986) (stating that a caretaker may not leave a child eight years of age in a building or vehicle unless someone thirteen years of age or older is with them), and Or. Rev. Stat. Ann. § 163.545 (West 1991) (stating that a custodian or caregiver may be charged with neglect if they leave a child under 10 years of age unattended), with Ky. Rev. Stat. Ann. § 600.020 (West 2022) (failing to include any age restriction on leaving children unattended under neglect parameters).

[52] 922 Ky. Admin. Regs. 1:330 (2023).

[53] Email interview with Misty Adkins, supra note 9.

[54] Id.

[55] See Sofie Kuppens, Simon C. Moore, Vanessa Gross, Emily Lowthian & Andy P. Siddaway, The Enduring Effects of Parental Alcohol, Tobacco, and Drug Use on Child Well–Being: A Multilevel Meta–Analysis, 32 Dev. Psychopathology 765, 765 (2019). For a discussion regarding the causes of accidental overdose in children, see Brian C. Kelly, Mike Vuolo, & Laura C. Frizzell, Pediatric Drug Overdose Mortality: Contextual and Policy Effects for Children Under 12, Pediatric Rsch. 1258, 1259 (May 21, 2021).

[56] How Do Teens Find Drugs?, Recovery Village, https://www.therecoveryvillage.com/teen-addiction/drug/how-teens-get-drugs/  [https://perma.cc/K3HU-3QRL] (Aug. 30, 2024).

[57] Cabinet for Health & Fam. Servs., Standards of Practice Manual: 2.3 Acceptance Criteria (effective Oct. 1, 2022), https://manuals-sp-chfs.ky.gov/chapter2/Pages/2-3.aspx [https://perma.cc/SBJ9-BNYL].

[58] Opinion 2.1.1: Informed Consent, AMA Code of Ethics, https://code-medical-ethics.ama-assn.org/ethics-opinions/informed-consent [https://perma.cc/7MR2-VWQP] (last visited Apr. 12, 2025).

[59] See Ky. Rev. Stat. Ann. § 411.167(4) (West 2019); Informed consent in Kentucky, Gray L., PLLC (Sept. 25, 2019), https://www.dgraylaw.com/blog/2019/09/informed-consent-in-kentucky/#:~:text=Physicians%20must%20get%20

informed%20consent,informed%20consent%20constitutes%20medical%20malpractice [permalink unavailable].

[60] Opinion 2.1.1: Informed Consent, supra note 58.

[61] See Catherine A. Marco, Does Patient Autonomy Outweigh Duty to Treat?, 5 Am. Med. Ass’n J. Ethics 37, 39 (2003).

[62] Ky. Rev. Stat. Ann. § 304.40–320 (West 1976).

[63] Id. § 304.40–320(3).

[64] Ky. Rev. Stat. Ann. § 214.185(5) (West 2021).

[65] Cabinet for Health & Fam. Servs., supra note 57.

[66] See Ky. Rev. Stat. Ann. § 600.020(1)(a)(8) (West 2022).

[67] Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Santosky v. Kramer, 455 U.S. 745, 753 (1982).

[68] Z.T. v. M.T., 258 S.W.3d 31, 33 (Ky, Ct. App. 2008).

[69] Santosky, 455 U.S. at 753.

[70] Id. at 758–59 (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981)).

[71] Id. at 753–54.

[72] Ky. Rev. Stat. Ann. § 600.020 (West 2022).

[73] K.H. v. Cabinet for Health & Fam. Servs., 358 S.W.3d 29, 30 (Ky. Ct. App. 2011).

[74] Id. at 32 (overturning neglect finding against mother who refused to keep her children away from their father who had substantiated sexual abuse findings against a different child because the risk of harm to her children was too attenuated to constitute neglect).

[75] Id. at 31.

[76] See National Background Check Program (NBCP), Cabinet for Health & Fam. Servs., https://www.chfs.ky.gov/agen

cies/dcbs/dcc/Pages/nationalbackgroundcheck.aspx [permalink unavailable] (last visited Apr. 12, 2025).

[77] See K.H., 358 S.W.3d at 31. (“It is not enough for the Cabinet to show that K.H. would be well–advised to agree to the terms of the Aftercare Plan. The applicable statutory definition requires a finding that K.H. created or allowed to be created a risk that an act of sexual abuse will be committed upon the children”).

[78] Santosky v. Kramer, 455 U.S. 745, 766 (1982).

[79] Prevent Child Abuse Kentucky, Primary Prevention of Child Abuse and Neglect, Prevent Child Abuse Am., https://apps.legislature.ky.gov/CommitteeDocuments/320/12791/7%2022%202020%20Primary%20Prevention%20KY.pdf [https://perma.cc/K83C-43WW ].

[80] Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 12.24 Per Diem rates (Including Specialized Foster Care) (effective Feb. 15, 2024), https://manuals-sp-chfs.ky.gov/chapter12/Pages/12-24.aspx#Practice_Guidance [https://perma.cc/GW3T-P3KY].

[81] See Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 7.4 CPS Prevention Planning (effective June 29, 2020), https://manuals-sp-chfs.ky.gov/chapter7/Pages/7-4.aspx [permalink unavailable]; Kuppens, Moore, Gross, Lowthian & Siddaway, supra note 55.

[82] Solis, Shadur, Burns & Hussong, supra note 6.

[83] Id.

[84] Id.

[85] M.C. v. Cabinet for Health & Fam. Servs., 614 S.W.3d 915 (Ky. 2021).

[86] Id. at 918.

[87] Effects of Parental Substance Abuse on Children and Families, Am. Acad. of Experts in Traumatic Stress, https://www.aaets.org/traumatic-stress-library/effects-of-parental-substance-abuse-on-children-and-families [https://perma.cc/4NNY-4S7D ] (last visited Apr. 12, 2025).

[88] Solis, Shadur, Burns & Hussong, supra note 6.

[89] See Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 5.1 Relative and Fictive Kin Placement Consideration (effective Oct. 4, 2023), https://manuals-sp-chfs.ky.gov/chapter5/Pages/5-1.aspx [https://perma.cc/63XK-8RCH]; Ct. Improvement Program State Team, Dependency, Neglect and Abuse Cases: Know Your Rights and Responsibilities 5–8 (Oct. 2020), https://apps.legislature.ky.gov/CommitteeDocuments/17/13364/July%207%

202021%20Vanover%20Dependency%20Neglect%20and%20Abuse%20Booklet.pdf [permalink unavailable].

[90] Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. of L. & Soc. Change 523, 527–41 (2019).

[91] Id. at 542–44.

[92] Ky. Rev. Stat. Ann. § 600.010(2)(a) (West 2014).

[93] 922 Ky. Admin. Regs. 1:330(2)(4)(b)(8) (2023).

[94] Solis, Shadur, Burns & Hussong, supra note 6.

[95] Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 2.22 Making a Finding, Notifications, and Court Involvement (effective Oct. 19, 2022), https://manuals-sp-chfs.ky.gov/chapter2/Pages/2-22.aspx [permalink unavailable].

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id.