Request By:
Mr. Ray Burns
Sheriff of Montgomery County
Courthouse
Mt. Sterling, Kentucky 40353
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
You wrote to ask whether your office was required to assist the Department for Human Resources in picking up neglected children based on a phone call from the Department for Human Resources or whether your assistance in these instances would be on a voluntary basis.
KRS 199.335 provides that a search warrant may be issued on a showing of probable cause that a child is being abused or neglected. If, pursuant to a search under the warrant, it appears that the child is in imminent danger, the law enforcement officer is authorized to remove the child. Where there is a search warrant which you are required to execute, you must, of course, act.
In the 1978 session of the Legislature, KRS 199.335 was amended to provide that someone who is reporting an abused or neglected child shall also make an oral report to the law enforcement agency where they have reason to believe that immediate protection for the child is advisable. If, after investigating the report the law enforcement officer has reasonable cause to believe that there exists an imminent danger to the child's life or health, he is authorized to take the child into protective custody immediately without consent of the parents. Pursuant to this provision, you would be required to investigate and pick up a child on the basis of a phone call from the Department for Human Resources if that call advised you that the child was in danger of imminent harm.
As you can see, these provisions track the provisions in any other criminal action. Where time allows, which in this case means where the danger to the child is not so immediate that instant action is required, it is constitutionally preferable to get a warrant and pick up the neglected child pursuant to that warrant. But, where there is a threat of immediate harm you must, on the basis of an oral report alone, investigate the situation and bring the child in if your investigation shows it to be necessary.