Background
Mother and Father are the biological parents of Child (born 2019), who resided with them in Kentucky along with Brother (born 2015), whose other biological parent, K.S., lived in North Carolina. In January 2025, the Cabinet for Health and Family Services received a report alleging sexual abuse of Child by Mother and Father. The Cabinet created a safety plan, placed the children temporarily with a maternal grandmother, and arranged forensic interviews at the Children’s Advocacy Center of Kentucky (CACK). In February 2025, the Cabinet filed Dependency, Neglect, and Abuse (DNA) petitions and obtained emergency custody, eventually placing the children with a paternal grandmother.
At the July 2025 adjudicative hearing, the Family Court conducted an in-camera interview of Child and found her incompetent to testify — she could not answer basic foundational questions, including the difference between truth and a lie, and exhibited significant distractibility consistent with her ADHD diagnosis. Despite that finding, the Family Court admitted out-of-court statements Child had allegedly made to a school guidance counselor (as excited utterances under KRE 803(2)) and to a CACK forensic interviewer (under KRE 804A). No physical evidence of abuse was presented, no corroborating witness testified, and the forensic interviewer herself acknowledged that Child made inconsistent statements during the interview — at one point denying any abuse occurred.
On August 25, 2025, the Family Court issued adjudication orders finding that Mother and Father had sexually abused Child, and on September 10, 2025, it entered dispositional orders leaving Child in Cabinet custody. Mother and Father appealed. Notably, the Cabinet and K.S. filed no briefs on appeal; the children’s Guardian ad Litem sided with the parents, agreeing the statements were inadmissible and that reunification was in Child’s best interests.
The Court’s Holding
The Kentucky Court of Appeals reversed both the adjudication and dispositional orders and remanded with instructions to dismiss the DNA cases and return Child to Mother and Father’s custody. The court held that the Family Court abused its discretion on two independent grounds. First, Child’s statement to the school guidance counselor did not qualify as an excited utterance under KRE 803(2) because the Family Court, having already found Child incompetent to testify, failed to consider that incompetency as an obstacle to admitting her out-of-court statements — as required by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007). The court further found the Family Court selectively relied on the guidance counselor’s description of Child being “amped up” while ignoring its own contemporaneous observations of Child’s ADHD-driven instability when ruling her incompetent.
Second, Child’s statements to the CACK forensic interviewer were improperly admitted under KRE 804A. The Family Court failed to conduct the required totality-of-the-circumstances reliability analysis under KRE 804A(a)(1) — it ignored the significant time lapse between the alleged abuse and the statements, Child’s contradictory denials during the interview, the absence of physical evidence, and the lack of a discernible timeline for the alleged abuse. The court also rejected the Family Court’s conclusion that Child’s statement to the guidance counselor constituted “corroborative evidence” under KRE 804A(a)(2)(B). Both statements were inadmissible hearsay; one piece of hearsay cannot corroborate another. As the court stated plainly: “More hearsay is not stronger evidence.”
Because the DNA adjudication rested entirely on inadmissible evidence — no first-hand witnesses, no physical evidence, no corroboration of any kind — the court found the Family Court had no legally sufficient basis for its finding of abuse or for removing Child from her parents’ home. The court left open the possibility that proceedings could be reinstituted if Child later becomes competent to testify or if admissible corroborating evidence is identified.
Key Takeaways
- Under B.B. v. Commonwealth, a trial court that finds a child declarant incompetent to testify must treat that incompetency as an obstacle to admitting the child’s out-of-court statements — it cannot find incompetency for purposes of live testimony while simultaneously ignoring it in the hearsay analysis.
- KRE 804A requires a genuine totality-of-the-circumstances reliability finding before admitting a child’s out-of-court statements; a cursory finding of spontaneity alone, especially in the face of internal inconsistencies and an incompetent declarant, does not satisfy the rule.
- Two separate hearsay statements by the same declarant cannot corroborate each other for purposes of KRE 804A(a)(2)(B) — corroborating evidence must be independent and distinct, not merely the same hearsay repeated to a different listener.
- The Cabinet’s and K.S.’s failure to file appellate briefs drew a formal rebuke from the court, which warned that additional sanctions may be imposed in future cases involving children’s welfare where briefing obligations are ignored.
Why It Matters
This decision reinforces strict evidentiary limits on child-abuse adjudications in Kentucky, particularly where the child victim is found incompetent to testify. Courts and the Cabinet cannot bootstrap a finding of abuse solely from unsworn, contradictory, second-hand accounts of a child’s out-of-court statements — no matter how concerning the underlying allegations — when no independent corroborating evidence exists. The ruling draws a clear line: the incompetency finding that bars a child from the stand must also weigh heavily against admitting that same child’s hearsay through the back door.
For practitioners, the case is a reminder that KRE 804A demands substantive analysis, not boilerplate. Family courts must work through each reliability factor on the record, engage with contradictory evidence, and identify genuinely independent corroboration before invoking the statute. The opinion also signals that appellate courts will not hesitate to reverse child-removal orders — even in sensitive abuse cases — when the evidentiary foundation is legally insufficient.