Request By:
Honorable Marvin R. O'Koon
Office of Jefferson County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have requested the Office of the Attorney General to review the opinion written by this attorney designated OAG 77-407 relating to the "Battered Child Act" and the requirements called for in KRS 199.335, the child abuse reporting statute. It is your feeling that the strict construction given of this statute is at odds with the "intention" of the General Assembly in amending KRS 199.335 and 199.011(6) in 1976.
We wish to assure you that there was no attempt to speculate on the intention of the General Assembly in amending these child abuse statutory provisions. What we did attempt to accomplish was to review the amended language against the language as it was before the amendment. As we attempted to show in OAG 77-407, the language of KRS 199.335 before amendment directs attention to "those responsible for their (children) care and protection." Also, before the 1976 amendment the definition of "neglected or dependent child" found at KRS 199.011(4) read "parental care and control or guardianship." In the 1976 amendment to KRS 199.335 the above-noted limiting language of KRS 199.335 was removed and the new definitional amendment for "abused or neglected child" was drafted to include "a child whose health or welfare is harmed or threatened with harm when his parent, guardian or any other person" inflicts or allows to be inflicted physical or mental injury. Thus, it is probably safe to say the General Assembly wanted to expand the scope of coverage of the child abuse statutes to include other individuals than just the parent, legal guardian or those legally responsible for a child's care and protection.
The problem that has been created by the 1976 amendment to the definition of "abused or neglected child" found at KRS 199.011(6) has been caused by the inclusion of the phrase, "any other person." You have suggested in your letter that the words "any other person" were placed in this statute to allow investigation and prosecution of child abuse against stepparents, boyfriends, baby sitters, and any other person that may have limited control over a child. We find no basis, however, from the plain language of this phrase that would support limiting the present scope of those covered by the statute to those having only "limited control over a child" in addition to the parent or guardian. If the General Assembly wanted to have the statute to only apply to those besides the parent or guardian having limited control over a child, language subservient to that end is readily available. See the federal "Child Abuse, Prevention and Treatment Act," 42 U.S.C., §§ 5101 - 5106.
As was, we think, poignantly written in OAG 77-407, the wording of the statute leaves a lot to be desired. But it is a reaffirmed principle of the appellate courts in this Commonwealth that the strict wording of a statute shall be considered to ascertain the purpose of that statute. See
Kavanaugh v. Daniels, Ky. App., 449 S.W.2d 526, 528 (1977).
We share your grave concern about the possibility of fulfilling the statutory requirements of the child abuse reporting statute in suspected or known child abuse cases as interpreted by our prior opinion. Nevertheless, until the General Assembly can meet and, we trust, be presented with satisfactory modifying amendments to the law to reflect the limiting aspects you and undoubtedly others desire, we can only advise you to make such child abuse reports and take such action on those reports as a situation may dictate. In this regard we note that in KRS 199.335(8), upon receipt of a report of child abuse, the Bureau for Social Services or its designated representative is to investigate and take the necessary action. We believe this section gives the Bureau reasonable latitude to discern and decide under the pertinent circumstances what will be in the best interest of the child.