Opinion
NO. 2019-CA-000838-ME
03-06-2020
A.A. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, DEPARTMENT OF COMMUNITY BASED SERVICES; M.T.; J.T.; UNKNOWN FATHER; AND K.M.W., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Katherine Hicks Demps Hopkinsville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Katherine M. Foster Assistant County Attorney Hopkinsville, Kentucky BRIEF FOR APPELLEES M.T. AND J.T.: James G. Adams III Clayton D. Adams Hopkinsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JASON SHEA FLEMING, JUDGE
ACTION NO. 17-J-00200-001 OPINION
AFFIRMING
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BEFORE: ACREE AND DIXON, JUDGES; BUCKINGHAM, SPECIAL JUDGE. DIXON, JUDGE: A.A.—the biological mother of K.M.W.—challenges the orders awarding custody of K.M.W. to M.T. and J.T.—the aunt and uncle of K.M.W.—entered on April 29, 2019, by the Christian Circuit Court. Following review of the record, briefs, and law, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
FACTS AND PROCEDURAL BACKGROUND
This case began on May 17, 2017, when M.T. filed a juvenile DNA petition with emergency custody order ("ECO") affidavit after A.A. was imprisoned on drug-related offenses. The same day, the trial court entered an ECO placing K.M.W. in the emergency custody of M.T.
In Christian District Court, case number 17-M-00483, A.A. was charged with possession of drug paraphernalia in violation of Kentucky Revised Statutes ("KRS") 218A.500(2), a Class A misdemeanor. On April 19, 2017, the district court entered a pretrial diversion order which required A.A. to submit to drug testing and refrain from the use of illegal drugs. On April 21, 2017, A.A. tested positive for methamphetamine. On April 26, 2017, A.A. tested positive for methamphetamine and ecstasy. On May 3, 2017, A.A. tested positive for methamphetamine and amphetamine. Consequently, on May 10, 2017, the pretrial diversion order was vacated, A.A. was found in contempt of court, and A.A. was sentenced to six months' imprisonment.
A temporary removal hearing was held on May 18, 2017. The matter was set for adjudication on June 15, 2017. At that time, A.A. was in a drug treatment program and doing well. The adjudication was continued to October 19, 2017, at which time A.A. was out of drug treatment and still doing well. The adjudication was continued to November 16, 2017. At that time, the trial court was alerted to a pending custody case and continued the matter until after that case was scheduled to be heard.
In the interim, following numerous hearing continuances and positive drug screens for methamphetamine and/or amphetamine, the trial court ordered A.A. to intensive outpatient therapy, stating "[t]hat is the priority in this case over the job and housing at this point in the case."
On September 18, 2018, the Commonwealth of Kentucky, Cabinet for Health and Family Services, Department for Community Based Services ("Cabinet") filed its case plan with the trial court. On November 15, 2018, the trial court finally adjudicated the child dependent as to A.A. based upon her stipulation, and again, the matter was continued to January 17, 2019, for disposition. Prior to the hearing, the Cabinet filed its dispositional report, stating that A.A. had been noncompliant with her case plan and that it was in K.M.W.'s best interest to remain in the custody of M.T. and J.T.
On February 6, 2019, A.A. tested positive for extended opiates (hydrocodone). The Cabinet filed another dispositional report on March 18, 2019, similar in substance to its prior one.
On April 18, 2019, a dispositional hearing was held. The Cabinet recommended that K.M.W. be placed in the custody of M.T. and J.T., and the case be closed. Pursuant to KRS 620.140(1)(c), the trial court ultimately placed K.M.W. in the custody of M.T. and J.T, finding this disposition was in the best interest of K.M.W. This appeal followed.
M.T. and J.T. moved to dismiss the appeal because A.A. failed to timely file a designation of the record as required by Kentucky Rules of Civil Procedure ("CR") 75.01. A motion panel of our court denied this motion but held:
[A.A.'s] failure to file a timely designation of record limits this Court's review on appeal to claims that can be resolved solely on the clerk's record as defined by CR 75.01 and CR 98. See Oldfield v. Oldfield, 663 S.W.2d 211 (Ky. 1983); Gambrel v. Gambrel, 501 S.W.3d 900, 901 (Ky. App. 2016).
COMPLIANCE WITH RULES OF APPELLATE PRACTICE
We begin by commenting on the proper structure of an appellate brief and the importance of preservation. CR 76.12(4)(c)(v) requires each argument in the brief for the appellant to begin with a statement of preservation referencing "the record showing whether the issue was properly preserved for review and, if so, in what manner." A.A.'s briefs contain no statement of preservation for any issue raised. A.A.'s briefs contain many references to the record, as required by CR 76.12(4)(c)(iv); however, those references do not tell us where the trial court was given the opportunity to correct the errors of which she now complains, a critical piece of information because "a party may not raise an issue for the first time on appeal." Taylor v. Kentucky Unemployment Ins. Comm'n, 382 S.W.3d 826, 835 (Ky. 2012) (citation omitted). It is dangerous for counsel to ignore the rules of appellate procedure, especially when a client's parental rights hang in the balance.
We further note that A.A.'s briefs do not comply with CR 76.12(4)(c)(vii) which provides that the index "shall set forth where the documents may be found in the record." The purpose of this rule is to ensure that only items in the record are appended to the brief and considered by our court during review. A.A. failed to do this. This rule also requires extruding tabs for items in the appendix. A.A., M.T., and J.T. failed to comply with that portion of the rule as well.
We have three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)." Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Because these errors were made by counsel, we will not punish the client. We will review the alleged deficiencies as best we can—but warn counsel the Court may not be so lenient in the future.
LEGAL ANALYSIS
"This Court's standard of review of a family court's award of child custody in a dependency, abuse and neglect action is limited to whether the factual findings of the lower court are clearly erroneous." L.D. v. J.H., 350 S.W.3d 828, 829 (Ky. App. 2011) (citing CR 52.01). An appellate court is "obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citation omitted). "Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Resources & Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citation omitted). With these standards in mind, we turn to the case at bar.
On appeal, A.A. first argues the trial court erred in finding that she waived her superior right to custody. She asserts that the record is devoid of evidence to support the trial court's finding; thus, the finding is clearly erroneous.
A.A. bore responsibility for ensuring that our court received a complete record. Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007), abrogated on other grounds by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012). She failed to carry her burden by not designating the April 18, 2019, hearing to be certified as part of the appellate record in a timely fashion. The designation was not filed within 10 days of filing the notice of appeal as required by CR 75.01; it was filed 18 days after the notice of appeal was filed. All parties involved in this appeal cited the hearing throughout their briefs, indicating they had access to it and believed it was relevant to their positions. In fact, this was the basis of M.T.'s and J.T.'s motion to dismiss pursuant to Oldfield v. Oldfield, 663 S.W.2d 211 (Ky. 1983).
The case herein differs somewhat from Oldfield in that A.A. did designate the "videotape of the proceedings (disposition hearing) held in this case on Thursday, April 18, 2019, to be included in the record on appeal"; however, such designation was still made in an impermissibly untimely manner. The instant case also differs somewhat from Gambrel v. Gambrel, 501 S.W.3d 900 (Ky. App. 2016)—another case in which the appellant failed to designate a recorded hearing—in that the subject recording was provided to our court in the record on appeal. Nonetheless, without the recorded hearing properly before us for review, we cannot review all of A.A.'s claims and must assume the content of the hearing supported the trial court's entry of its orders. King v. Commonwealth, 384 S.W.3d 193, 194-95 (Ky. App. 2012).
Turning back to the first issue raised by A.A., the Supreme Court of Kentucky has held:
Custody contests between a parent and a nonparent who does not fall within the statutory rule on 'de facto' custodians are determined under a standard requiring the nonparent to prove that the case falls within one of two exceptions to parental entitlement to custody. One exception to the parent's superior right to custody arises
if the parent is shown to be 'unfit' by clear and convincing evidence. A second exception arises if the parent has waived his or her superior right to custody.Moore v. Asente, 110 S.W.3d 336, 359 (Ky. 2003) (quotation marks and footnote omitted).
The factors a court considers when determining a waiver of parental rights are:
length of time the child has been away from the parent, circumstances of separation, age of the child when care was assumed by the non-parent, time elapsed before the parent sought to claim the child, and frequency and nature of contact, if any, between the parent and the child during the non-parent's custody.Vinson v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004) (footnote omitted).
The type of evidence that is necessary to show unfitness on the part of the mother in this custody battle with a third party is: (1) evidence of inflicting or allowing to be inflicted physical injury, emotional harm or sexual abuse; (2) moral delinquency; (3) abandonment; (4) emotional or mental illness; and (5) failure, for reasons other than poverty alone, to provide essential care for the children.Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989).
We here note, "the judgment of a lower court can be affirmed for any reason in the record." Fischer v. Fischer, 348 S.W.3d 582, 591 (Ky. 2011), as modified (Sept. 20, 2011), abrogated on other grounds by Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018) (citation omitted). Based on the record we have properly before us, there is ample evidence to support the trial court's determination that A.A. waived her superior rights concerning K.M.W. and/or was an unfit mother. We cannot say the trial court clearly erred; therefore, we must affirm.
A.A. next alleges that M.T. and J.T. lack standing to obtain custody. A.A. asserts that the trial court erred in finding M.T. and J.T. de facto custodians of K.M.W.
KRS 403.270(1)(a) provides:
"de facto custodian" means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
On November 16, 2017, after K.M.W. had been in the care of M.T. and J.T. for more than six months, it was brought to the trial court's attention that a custody case concerning the parties was pending. On January 18, 2018, A.A. moved the trial court to return the child. On March 15, 2018, it was noted that the "Court did not find [M.T. and J.T.] de facto custodians in the CI case." It appears the trial court did not exclude the period of time "after a legal proceeding has been commenced by a parent seeking to regain custody of the child" when it found "the child has been in [M.T.'s and J.T.'s] care since May 2017" and "by clear and convincing evidence that they have had the child for more than a year and they have been the primary caregiver and primary financial supporter of the child since that time." Nevertheless, although these findings by the trial court may have been erroneous, the error—if any—was harmless for the reasons discussed above. The Supreme Court of Kentucky, in Moore, 110 S.W.3d at 359, clearly contemplated "[c]ustody contests between a parent and a nonparent who does not fall within the statutory rule on 'de facto' custodians" but has physical custody of the child. This type of case, including the one at hand, is determined under the standard requiring the nonparent to prove the case falls within one of the two exceptions to parental entitlement to custody discussed above. Because this case falls within one, if not both, exceptions and M.T. and J.T. had physical custody of the child, they have standing in this action.
A.A. only made four child support payments prior to the final disposition hearing. --------
A.A. next argues that the trial court erred in awarding custody to M.T. and J.T. because J.T. was not a party to the action. The original DNA petition was filed only by M.T. A.A. claims that "[a]t no point in the proceedings did Appellee J.T. move to intervene in the proceedings, and no orders appear to have been entered allowing J.T. to intervene as a party." However, the record demonstrates involvement of J.T. throughout the proceedings. CR 21 provides, "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." (Emphasis added.) A specific motion or order is not required to join a party to an action. Review of the record indicates the trial court considered and included J.T. as a party and custodian throughout the proceedings. This was within its authority, and we find no error regarding this claim.
A.A. next argues that the trial court's failure to award specific visitation to A.A. was an abuse of discretion. This is unfounded. KRS 403.320(1) provides, "[u]pon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child." A.A. has not demonstrated that such a request was made; thus, this matter is not properly before us on appeal.
A.A.'s final argument is that the Cabinet failed to follow manual guidelines and statutes to reunite the child with her, resulting in a lack of reasonable efforts. This argument, too, is unfounded.
"Reasonable efforts" means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home[.]KRS 620.020(13).
The trial court found that the Cabinet made appropriate referrals for A.A., including substance abuse counseling, random drug screens, and supervised visitation. The trial court further found that A.A. did not comply with the services offered. She tested positive for drugs on at least eight occasions. A.A. only progressed to supervised visitation for six hours every two weeks. As the trial court noted, A.A.'s greatest stumbling block was her refusal to accept responsibility for her drug abuse problems.
A.A. now attempts to challenge the reasonable efforts made by the Cabinet because only one case plan and no case progress reports were filed. A.A. also takes issue with the permanency hearing order entered by the trial court on March 7, 2019, which stated the permanency plan was to return K.M.W. to A.A. per the Cabinet's recommendation. A.A. claims the Cabinet failed to move the trial court to change the permanency goal from return to parent to permanent relative placement. However, this assertion ignores the DNA dispositional reports filed by the Cabinet on January 15, 2019, and March 18, 2019, which clearly recommended permanent placement of K.M.W. with M.T. and J.T. A.A. also claims the Cabinet violated its own Standards of Practice (SOP) Manual. However, the SOPs to which A.A. refers concern out-of-home care services. This case, by contrast, was an "in home" case, as designated on the case plan. A.A. has failed to identify any "in home" SOPs that were violated.
Counter to A.A.'s assertions, the record properly before us demonstrates that the Cabinet made reasonable efforts to reunite the family. The Cabinet referred A.A. to drug rehabilitation programs and counseling. That is the extent of its responsibility under KRS 620.020(13).
The services that will be reasonable, and therefore required, depend on the facts and circumstances of each case. There may be a strong relationship between the definition of reasonable efforts and the court's findings with regard to parental attitude. If parents have made no attempt to comply with reunification plans initially developed by the Cabinet for Health and Family Services, it should not necessarily be incumbent upon the Cabinet to develop additional, proactive services for the family prior to termination of parental rights.LOUISE E. GRAHAM & JAMES E. KELLER, 16 KY. PRAC. DOMESTIC RELATIONS L. § 25:31. In the case at hand, A.A. had ample opportunities to comply with reunification plans offered by the Cabinet. A.A. failed to complete her case plan and repeatedly failed her drug screens. A.A.'s failures prevented the Cabinet from recommending reunification of the family. It was not clear error for the trial court to find the Cabinet made reasonable efforts to reunite the family.
Therefore, and for the foregoing reasons, the orders and judgments entered by the Christian Circuit Court are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Katherine Hicks Demps
Hopkinsville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND
FAMILY SERVICES: Katherine M. Foster
Assistant County Attorney
Hopkinsville, Kentucky BRIEF FOR APPELLEES M.T. AND
J.T.: James G. Adams III
Clayton D. Adams
Hopkinsville, Kentucky