A.S. and T.S., Appellants v. COMMONWEALTH (2026)

OPINION

Joint Appellants, A.S. (“Mother”) and T.S. (“Father”), seek review of the August 25, 2025, adjudicative orders, and the September 10, 2025, dispositional orders issued by the Henry Family Court in Dependency, Neglect, and Abuse (“DNA”) cases involving Appellees, minor children C.S. (“Child”) and C.S. (“Brother”). After carefully reviewing the briefs filed, the record on appeal, and the relevant law, we reverse and remand for further action consistent with this Opinion.

BACKGROUND

Mother and Father are the biological parents to Child, who was born in 2019. Mother and Appellee, K.S., are the biological parents to Brother, who was born in 2015. At the time the underlying cases commenced, both Child and Brother resided with Mother and Father in Kentucky, while K.S. lived in North Carolina.

On January 21, 2025, Appellee, the Cabinet for Health and Family Services (“Cabinet”), received a report alleging that Mother and Father had sexually abused Child. The Cabinet created a safety plan and placed Child and Brother into the home of a maternal grandmother. Shortly afterward, the children engaged in forensic interviews at the Children's Advocacy Center of Kentucky (“CACK”), which will be discussed below in more detail.

On February 7, 2025, the Cabinet filed DNA petitions alleging that Mother and Father sexually abused Child and that Brother would be at risk of neglect if allowed to remain in the home based on Child's statements during the CACK interview. The Cabinet also raised concerns that the maternal grandmother had allowed contact between the parents and Child, despite the safety plan in place prohibiting contact. The Family Court entered an emergency custody order granting custody to the Cabinet, which subsequently placed the children with a paternal grandmother.

The Cabinet later contacted K.S., who then filed a motion for sole custody in a previous civil custody case involving Brother. The Family Court granted that motion, transferred custody of Brother from the Cabinet to K.S., and allowed Brother to move with K.S. to North Carolina.

Several months later, on July 17, 2025, the Family Court conducted an adjudicative hearing. Present in the Courtroom were the parents, representatives from the Cabinet, counsel for all parties, and the children's Guardian ad Litem (“GAL”). K.S. was also present via video conference. Outside of the Courtroom were the paternal grandmother, who had placement of Child, and Child, who was to be the first witness to testify. It was agreed that Child's testimony would be elicited, in-camera, from the Trial Judge's chambers, with only the Trial Judge, the GAL, and Child present. The GAL would ask Child a list of questions provided by counsel, with the video and audio feed from chambers being live streamed to the Courtroom.

In chambers, the Family Court began by asking Child a series of general questions about herself and her school. While adequately answering some of these questions, Child was visibly distracted and unable to give intelligible answers to other questions, including the date of her birthday. Eventually, both the Trial Judge and the GAL asked Child if she knew the difference between truths and lies; Child could not give an intelligible answer. Without attempting to administer the testamentary oath to swear Child in to testify,¹ the Trial Judge ceased the interview, allowed Child to leave with paternal grandmother, and returned to the Courtroom with the GAL. From the bench, the Family Court issued an oral ruling that it deemed Child incompetent to testify and allowed the Cabinet to call its next witness.

The Cabinet called John Bailey, a school resource officer involved with the initial investigation. He was also present at the CACK interviews for both children, but never talked directly with either of them. The resource officer stated that after the CACK interviews he interviewed Child's teachers and compiled reports but did not collect any other evidence. When asked about his knowledge of any criminal actions brought against Mother and Father, the school resource officer testified that he knew that criminal charges were not pursued, though he did not know the reasons behind that decision.

Child's guidance counselor, Taylor Daniel, was the next to testify. She explained that a teacher's aide, who was not identified, brought Child to speak with her. According to the guidance counselor, the teacher's aide claimed that Child had made statements about someone hurting her (Child). Initially, the guidance counselor testified that after being questioned, Child told her that Mother and Father hurt Child, but she later averred that when first speaking with Child in the hallway outside of her office with the teacher's aide, Child made unprompted comments that she had been hurt by Brother and the parents. The guidance counselor then took Child into her office to speak further alone. She testified that Child seemed “amped up” and a little angry at first, but calmed down during their conversation, which lasted approximately 20 minutes. Based on Child's alleged statements made to her during the conversation, the guidance counselor contacted the Cabinet.

Rebecca League (“League”), a licensed social worker and forensic interviewer with the CACK, followed in testimony at the hearing before the Trial Court. Significantly, she was not called as an expert witness. League explained that she generally gauges a child's ability to conduct an interview from initially observing and asking some foundational questions regarding the child's linguistic skills. Specifically regarding Child, League acknowledged that she was aware of some developmental delays,² but based on her observations, she did not believe the delays were so significant as to prevent her from conducting the forensic interview.

During the interview with the CACK,³ League claimed that Child disclosed instances of Mother and Father touching her genitalia and anus; however, Child was unable to state when those instances occurred, other than it being when she was five years old. League also testified that she was provided with some drawings that Child had made at some point prior to the interview, and at least one of them depicted, what Child related to be, Mother punching her. There were no instances of anything of a sexual nature in the drawings. While League stated that Child disclosed instances of abuse, she clarified that she could not offer her own opinion on whether she believed that Child was actually abused. During cross-examination, League admitted that Child made inconsistent statements about the alleged abuse, stating at least once that Father and Mother had not ever actually touched her genitalia or anus. League also clarified that she did not believe that her determination that Child was able to complete the forensic interview equated to legal competency, and that she did not explicitly ask Child if she knew the difference between truth and falsity. Instead, her questions on that topic were geared towards whether Child could respond accurately to simple questions about whether something happened.

The final witness to testify was Alexandria Payton, a social worker with the Cabinet. The Cabinet worker explained that, after speaking about the matter with her supervisors, she filed the DNA petitions based solely on the statements Child made and the violation of the safety plan in place. She indicated that she did not interview either child or the parents about Child's statements before filing of the DNA petitions. The Cabinet worker also attempted to testify about information about the family's past involvement with the Cabinet that she had obtained through The Workers Information System (“TWIST”);⁴ however, the Family Court excluded that testimony.

During the course of the hearing, counsel for Mother and Father made several objections to the admissibility of Child's prior hearsay statements allegedly made to League and the school guidance counselor. They argued that Child's statements could not be admitted because the Family Court had deemed Child to be incompetent to testify, and that incompetency extended to the Child's alleged prior, out-of-Court statements, as recounted by others during the hearing. The Family Court overruled the objections, relying on Kentucky Rules of Evidence (“KRE”) 804A. At the close of testimony, counsel for Mother and Father moved for the DNA cases to be dismissed, reiterating the previous objections and arguing that even if KRE 804A were applicable, no corroborative evidence existed to support Child's alleged statements. The Family Court was unpersuaded, stating that Child's statements corroborated each other; however, it allowed further briefing on the issue and took it under submission.

Over one month after the hearing, on August 25, 2025, the Family Court issued adjudication orders for both children, finding that Mother and Father had sexually abused Child. In separate orders, the Family Court further ruled that Child's prior statements were properly admitted into evidence as exceptions under KRE 804A and as excited utterances, and that Child was incompetent to testify, noting her ADHD diagnosis.

On September 10, 2025, the Family Court conducted a final dispositional hearing. Over Mother and Father's continued objections concerning the admissibility of Child's prior statements, the Family Court ruled that custody of Child was to remain with the Cabinet and that custody of Brother was to remain with K.S. pursuant to the order from the civil custody case.

This consolidated joint appeal of Mother and Father followed. On appeal, Mother and Father reiterate their arguments concerning the admissibility of Child's prior, out-of-Court statements. Markedly, the GAL agrees with Mother and Father in that Child's statements should not have been admitted and that it is not in the best interests of Child to continue to be separated from Mother and Father.⁵

STANDARD OF REVIEW

Generally, “[i]f the family court's findings of fact were supported by substantial evidence, and it applied the correct law, its decision will not be disturbed absent an abuse of discretion.” M.C. v. Cabinet for Health & Fam. Servs., 614 S.W.3d 915, 921 (Ky. 2021) (citations omitted). For the purposes of this consolidated appeal, the only matter at issue is the introduction of evidence, which is also reviewed for an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

ANALYSIS

As an initial matter, we begin by noting the abject lack of responsive briefs. After Mother's and Father's Appellate Brief, the GAL filed a brief on behalf of both of the children, which supports Appellants’ position. No other briefing occurred. K.S. and the Cabinet entirely failed to file any briefs in this appeal. Thus, no reply was filed because there was no response to initial briefing.

When an appellee fails to file a brief, our options are: “(a) accept the appellant's statement of the facts and issues as correct; (b) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (c) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.” Kentucky Rule of Appellate Procedure (“RAP”) 31(H)(3). “The decision as to how to proceed in imposing such penalties is a matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007).

Because these matters involve child welfare and custody, we shall not take the failure to file appellee briefs as a confession of error. Ellis v. Ellis, 420 S.W.3d 528, 528-29 (Ky. App. 2014). However, after reviewing the record on appeal and the briefs filed, we conclude that an appropriate sanction is to reverse, as Appellants’ brief reasonably appears to sustain such action. In doing so, this Court reiterates the importance of complying with its rules and directives, especially in cases involving the welfare of children. And once again, this Court specifically cautions the Cabinet and counsel that additional sanctions in future matters may be imposed if they continue to neglect filing briefs.⁶

Turning to the merits, Appellants first argue that the Family Court should not have admitted Child's alleged statement to the school guidance counselor because it was hearsay that did not fall within the cited exception for an excited utterance. Hearsay statements are generally excluded as inadmissible evidence unless specified and recognized as an exception. KRE 802. A hearsay exception is recognized for an excited utterance, which is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” KRE 803(2). Some points for Courts to consider in determining whether a hearsay statement qualifies as an excited utterance are:

(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.

Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986). Pertinent to the matter at hand, Souder also held that “the issues involved in deciding the admissibility of a spontaneous statement or excited utterance ․ do not relate to the competency of the declarant, or to the declarant's availability to testify.” Id. at 733-34. However, B.B. v. Commonwealth, explicitly overruled Souder to the extent “that testimonial incompetence of a declarant should be an obstacle to the admission of the declarant's out-of-court statements if the reason for the incompetence is one which would affect the reliability of the hearsay.” 226 S.W.3d 47, 51 (Ky. 2007) (emphasis added).

In the case at hand, we must first note that we agree with the Family Court's determination that Child was incompetent to testify at the time of the adjudication hearing. Child was visibly distracted during the in-camera interview, failing to respond to some questions and unable to remain seated despite the Trial Judge's and the GAL's encouragements to do so. She was unable to answer simple foundational questions or give rudimentary information, such as her birth date or birth month.⁷ And importantly, she was unable to give any intelligible answers to the questions posed by both the Trial Judge and the GAL concerning the difference between a truth and a lie. See KRE 601(b).

In admitting Child's statement to the guidance counselor, the Family Court relied on Souder in its August 25, 2025, evidentiary orders, stating that “[w]hile there was a lapse of time between the abuse and the statement, passage of time is just one of the relevant considerations, and it seems reasonable given the circumstances herein[,]” and that “[t]here was no evidence of any inducement to fabricate the testimony, the statement was volunteered by [Child] without any questioning, and [that] this statement was made during the school day. [Child] was amped up and somewhat angry.”

Once the Family Court found Child incompetent to offer her own testimony, it should have also seen the problem with then allowing other people to testify about the Child's alleged out-of-Court statements. It did not. Rather, it is clear from the Family Court's rulings that it entirely failed to consider Child's incompetence to testify as an obstacle for the admittance of Child's hearsay statement despite clear objections on those grounds. B.B., 226 S.W.3d at 51. This problem is especially concerning here because the attributed statements lacked any timeframe for the occurrence of the alleged abuse, and timing is the first factor a Family Court must consider in this regard. Souder, 719 S.W.2d at 733.

Another factor relating to Child's incompetence that the Family Court neglected to consider adequately was Child's generally excitable emotional state. See Heard v. Commonwealth, 217 S.W.3d 240, 246 (Ky. 2007). Alternatively, the Family Court chose to focus on the guidance counselor's testimony that Child seemed “amped up” on the sole occasion when Child allegedly made her initial statement while excluding its own findings relating to Child's ADHD and its own observations of Child's demeanor when determining Child's incompetence. Considering the Family Court's failure to give proper weight to the Child's testimonial incompetence as an obstacle for her hearsay statements to the guidance counselor to be admitted, we agree with Appellants that those statements do not qualify as an excited utterance and should not have been admitted.

Appellants also argue that the Family Court erred in allowing Child's hearsay statements to League to be admitted because of Child's incompetence and because there was no corroborative evidence presented that would have allowed those statements to be admitted as a hearsay exception under KRE 804A.⁸

In pertinent part, KRE 804A provides:

(a) An out-of-court statement made by a child with a physical, mental, emotional, or developmental age of twelve (12) years or less at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under KRE 802 if all of the following apply:

(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental state of the child, the child's motive or lack of motive to fabricate, the child's use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement;

(2) Either:

(A) The child testifies but his or her testimony does not include information contained in the out-of-court statement; or

(B) The child's testimony is not reasonably obtainable by the proponent of the statement and there is corroborative evidence of the act that is the subject of the statement[.]

(Emphasis added.) Black's Law Dictionary defines corroborative and corroborating evidence as “[e]vidence that differs from but strengthens or confirms what other evidence shows (esp. that which needs support).” Corroborating evidence, Black’s Law Dictionary (12th ed. 2024). It follows that a statement made by a witness on two different occasions cannot serve as corroborating evidence to prove the truth of those statements. See Eubank v. Commonwealth, 210 Ky. 150, 275 S.W. 630, 633 (1925) (“As a general rule, a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony.”).

Regarding KRE 804A(a)(1), in its August 25, 2025, evidentiary orders, the Family Court stated “[i]n evaluating the reliability of [Child's] statements, the [Family] Court finds that [Child's] statements to the Forensic Interviewer are sufficiently trustworthy. Rebec[c]a League is a skillful and trained child forensic interviewer. The interview suggests that the Forensic Interviewer did not elicit or coerce the statements from [Child]. The [Family] Court finds that the statements were spontaneous and unsolicited.” We have several concerns with the Family Court's determination.

First, as League was a fact witness, she was thus unentitled to offer her opinion. She acknowledged that she was not called as an expert witness. Accordingly, any testimony regarding her views on Child's competency is not appropriate before the Trial Court, which is tasked with making this ultimate decision. Furthermore, while League is a trained professional, she is not a medical doctor. And significantly, she is not an expert on discerning the truth or judging credibility. Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky. 1993). Again, League herself clarified that she did not, and could not for that matter, express her own opinion on whether Child was legally competent or if she believed that abuse actually occurred based on her interactions with Child.

Second, the Family Court clearly failed to consider all of the circumstances surrounding the making of the statement. The internal consistency of Child's statements was plainly at issue; League confirmed that Child made conflicting statements about sexual abuse during the CACK interview, which the Family Court did not mention at all. And similarly to the discussion above, the Family Court neglected entirely to consider Child's emotional state and the lack of a certain timeframe between the alleged act and the statements. The Family Court did not discuss the Souder factors of “lapse of time between” the abuse and the supposed “declaration”; “the opportunity or likelihood of fabrication”; the “inducement” to lie; the “actual excitement” of the declarant Child; the location of the supposed statement; the lack of physical evidence; and whether “the declaration was against interest or self-serving.” 719 S.W.2d at 733. The Family Court's decision lacks this required analysis entirely.

Likewise, the necessary KRE 804A discussion is missing. Pursuant to that fundamental evidentiary rule, before admitting hearsay pursuant to an existing exception, the Family Court is mandated to “find[ ] that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness.” KRE 804A(a)(1). To make the requisite reliability determination, the Family Court must consider whether the alleged statement was spontaneous; whether it was consistent internally; whether it was spontaneous or solicited; the declarant's mental state; motives or lack thereof to fabricate; the use of terms unexpected from a similarly-aged child; and the passing of time between the alleged act and the alleged statement. Id. Here, the Family Court noted that the lapse of time was significant, but disregarded that factor, which weighed strongly against its decision. After conducting a hearing outside the presence of parents and their counsel, it ruled that Child's mental state prevented her from testifying in Court. It was aware of the inconsistency of Child's alleged statements: claiming abuse on the one hand and denying it on the other. It merely found that the alleged statements were spontaneous; that it had no evidence of fabrication (despite inherent inconsistency, lack of physical evidence, and absence of corroboration), and that the purported declaration was made during the school day. Spontaneity and daylight alone are hardly sufficient for admission into evidence, and adding in conflicting evidence of mendacity will not suffice. This decision to label Child's statements as trustworthy given the totality of the circumstances, despite League's own testimony and the Family Court's own determination of Child's incompetency to testify, constitutes an abuse of discretion.

Moreover, even if Child's statements to the CACK interviewer were sufficiently trustworthy, which we do not find and no party on appeal asserts, we have further concern that corroborative evidence was not presented as required by KRE 804A(a)(2)(B). Here, the Family Court determined that the other hearsay statement that Child allegedly made to the guidance counselor sufficiently corroborated the hearsay statement that Child allegedly made to League. As stated above, we have determined that the Family Court should not have admitted Child's statement to the guidance counselor as an excited utterance exception but rather should have excluded it as rank hearsay. Notwithstanding that holding, the alleged statement from Child to League, to be properly admitted, must be supported by sufficient corroborative evidence.

The problem here is that both of the alleged statements were made out-of-Court, offered for the truth of the matter asserted, and constituted unsworn hearsay; they were simply made to two different interviewers at two different times. That fact does not render them more admissible. Indeed, the alleged statements cannot serve to corroborate themselves, as they are both the same hearsay. Hearsay upon hearsay is still hearsay. It is inadmissible because it lacks sufficient indicia of reliability. No one has cited any law to us that holds that otherwise inadmissible hearsay becomes admissible when doubled. More hearsay is not stronger evidence. It is the same, and it is likewise inadmissible.

And from our thorough review of the record on appeal, no other evidence exists that corroborates Child's alleged statement to League. The Cabinet worker even conceded the lack of any reliable corroboration: she was unaware of any medical exams conducted of Child; no documentation exists of any kind of injury or sign of abuse sustained by Child; and no witness gave a statement pertaining to the alleged abuse. This type of evidence could have corroborated, confirmed, or verified otherwise second-hand word-of-mouth. But it does not exist.

And the Family Court did not permit Child to testify directly due to her incompetence. It stands to reason then that Child's unauthenticated, alleged, out-of-Court, hearsay statements, as told by third parties, if accurate, cannot be admitted into evidence either. They are simply not indicative on their own or together of the truth of the matter asserted. Rather, they both make the same uncorroborated, indirect claims. And yet the Family Court used them to serve as the only foundation for taking Child from her parents here.

Furthermore, none of the witnesses testified that they personally saw any signs of injury or abuse or that Child exhibited any sort of notable behavioral disturbances. The school counselor testified that Child seemed “amped up” when she first saw her, but that she quickly calmed down as they talked, and that Child seemed in good spirits when she next saw Child. Though there were allegations that Brother may have witnessed some sort of abuse in the home, no one called him or presented any evidence concerning his involvement. In sum, the Family Court heard no such admissible evidence. It is apparent from some of the confidential reports filed into the record that the Cabinet had some concerns with events in 2022, but none of those concerns formed the basis for the DNA petitions, and the Family Court properly excluded any testimony from the Cabinet about these prior and unsubstantiated concerns during the adjudication hearing.

Obviously, all victims of abuse do not have visible, physical signs. And corroborative evidence will not always be available. But a Court of law requires some admissible evidence to ground its important decisions. Here, there was none. No first-hand witness testified. No corroborating evidence was offered. No timeline exists for the allegations. All that the Family Court had were two supposed statements as retold by others. While all Trial Courts have general discretionary powers, they cannot base the removal of children from their homes entirely upon inadmissible evidence.

CONCLUSION

In the present case, this Court is compelled by Appellants’ and the GAL's arguments – to which no party filed a responsive brief – that the Family Court abused its discretion in allowing others to relay Child's alleged, and contradictory, statements about claimed abuse into admission on the record. The Family Court predicated entirely its finding of abuse for both children on someone else's uncorroborated version of Child's alleged prior statements. Because such information was inadmissible as evidence in a Court of law, we hold that it is necessary for the Adjudication Orders of August 25, 2025, and the Dispositional Orders of September 10, 2025, to be reversed. We further remand these matters to the Family Court with instructions to enter orders dismissing the DNA matters and returning Child to the custody of Mother and Father.⁹ In doing so, the Court notes the seriousness of allegations such as the ones brought in the underlying case, and we exhort all parties, counsel, and Court personnel involved to act in the children's best interests and welfare and encourage the utilization of any agreeable arrangements to ensure a healthy transition of custody that reasonably accommodates Child and her specific needs. We also note the changing and fluid nature of the evidence and rulings in these types of cases. Should Child become competent to testify, or should corroborating and admissible evidence be located, petitions can be reinstated. But of course, they will require legally sufficient proof, as does the current proceeding, to continue.

FOOTNOTES

1.   “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.” Kentucky Rules of Evidence (“KRE”) 603.

2.   Child was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and began taking medication during the pendency of the DNA matter.

3.   A recording of the CACK interview and League's summary of the interview were available to all counsel involved but were not introduced into the record.

4.   TWIST is an internal database utilized by the Cabinet to access confidential information relating to child welfare in the state of Kentucky. Notably, the Family Court took no judicial notice of any prior DNA cases involving this family, and from the record on appeal, there do not appear to be any that exist.

5.   The GAL does not comment on the best interests of Brother.

6.   See S.B. v. Cabinet for Health & Fam. Servs., No. 2025-CA-0562-ME, 2026 WL 479036, at *3 (Ky. App. Feb. 20, 2026). We cite this case for its illustrative value and not as authority. RAP 41(A).

7.   Child's specific answer to this question was “I'm tired.”

8.   We note that the Kentucky Supreme Court has declined to adopt KRE 804A, as enacted by the Kentucky Legislature in 2018, but we shall not address the question of whether the Family Court erred in applying KRE 804A as a matter of law, as that argument is not one brought by the Appellants in this case. In re Proposed Amend. of Kentucky Rules of Evidence, No. 2018-14, 2018 WL 6695918 (Ky. Sep. 21, 2018); see generally Commonwealth, Cabinet for Health & Fam. Servs. v. Chauvin, 316 S.W.3d 279 (Ky. 2010).

9.   The Court cannot address the effect of the separate order granting sole custody of Brother to K.S., as it was entered in the separate civil custody case between K.S. and Mother.

ECKERLE, JUDGE:

ALL CONCUR.