Opinion
NO. 2019-CA-000943-ME NO. 2019-CA-000944-ME NO. 2019-CA-000945-ME
04-03-2020
A.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, B.S.W., and B.J.C.W., a minor child APPELLEES AND A.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, B.S.W., and D.R.G.W., a minor child APPELLEES AND A.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, B.S.W., and W.B.W., a minor child APPELLEES
BRIEFS FOR APPELLANT: Christopher Reed Stanford, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Milissa Dilburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JANE VENTERS, JUDGE
ACTION NO. 16-AD-00008 APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JANE VENTERS, JUDGE
ACTION NO. 16-AD-00009 APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE JANE VENTERS, JUDGE
ACTION NO. 16-AD-00010 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. JONES, JUDGE: On December 5, 2017, the Lincoln Family Court ("family court") entered judgments terminating the parental rights of Appellant, A.G. ("Mother"), to her biological children, D.R.G.W., B.J.C.W., and W.B.W. (collectively referred to as "the Children"). Mother appealed the termination orders. However, her initial appeals were dismissed by this Court as untimely. Thereafter, Mother filed two motions to set aside the family court's judgments of termination pursuant to CR 60.02. Mother again appealed to our Court after the family court denied her motions. In her second set of appeals, which is now before this panel for decision, Mother challenges both the December 5, 2017, judgments of termination as well as the denial of her CR 60.02 motions.
Kentucky Rules of Civil Procedure.
Mother argues the termination orders are void and should be set aside because they failed to properly name the Children as party respondents/defendants. Having reviewed the record in conjunction with all applicable legal authority, we are confident the Cabinet for Health and Family Services ("Cabinet") complied with the statutory directives required to make the Children parties and bring them before the family court pursuant to KRS 625.050, KRS 625.060, and KRS 625.070. Accordingly, we AFFIRM the family court's denial of Mother's CR 60.02 motions.
Kentucky Revised Statutes.
I. BACKGROUND
The Children were born in 2011, 2012, and 2013. They entered the Cabinet's care on June 19, 2015, after Mother was arrested in her home on an outstanding warrant. All three Children were present at the time of Mother's arrest. Evidence of neglect was apparent from the outset. At the time of Mother's arrest, the Children's diapers were sodden indicating that no one had changed them for some time. Mother's home was unsanitary and in a state of disarray. In addition to the obvious problems in the home, Mother also displayed signs of being under the influence; she was behaving erratically and could not provide the dates of the Children's birthdays when prompted.
Having failed to locate a suitable family placement, the Cabinet placed the Children with a foster family. Mother stipulated to neglect on July 9, 2015, as part of the dependency, neglect and abuse ("DNA") action the Cabinet filed in this matter. The Children were ordered to remain in the Cabinet's custody. The Cabinet developed and assigned Mother a case plan that she was instructed she had to complete before the Children could be returned to her. Mother did not make satisfactory progress with her case plan. Mother's last visit with the Children was on December 11, 2015.
On July 16, 2016, the Cabinet filed petitions to terminate the parental rights of Mother and B.S.W., the Children's biological father. The petitions alleged issues of abandonment, substance abuse, lack of supervision, and environmental neglect. The petitions were captioned as follows: "In the Interest of: [B.J.C.W.], an Infant"; "In the Interest of: [D.R.G.W.], an Infant"; and "In the Interest of: [W.B.W.], an Infant." The Children were named within the petitions themselves and were appointed a guardian ad litem, who appeared on their behalves.
B.S.W. has not appealed the termination of his parental rights.
The matter first came before the family court for a hearing on April 20, 2017, but that hearing was subsequently continued to October 19, 2017, as related to the termination of Mother's parental rights. Acting with the assistance of privately retained counsel, Mother presented her testimony to the family court as part of the second hearing, and the matter was submitted to the family court for a decision. Findings of fact, conclusions of law, and orders of termination were entered by the family court on December 5, 2017. The Children's guardian ad litem was served a copy of the orders and findings.
Mother failed to appear on April 20, 2017, even though she was given the court date and time on a piece of paper at a case management conference in February. She testified that she had tried to call her attorney to confirm the time, but her calls were not returned. Mother reported that she called the Cabinet's local Lincoln County office and was told that the trial started at 1 p.m. on April 20, 2017. Mother testified that she arrived that day before 1 p.m. and stayed until 5 p.m. Father's case was completed that day, but Mother's private counsel filed a motion to re-open proof upon learning that Mother had been in the courthouse all afternoon.
Mother appealed the three termination orders on January 6, 2018. On February 21, 2018, this Court entered three identical show cause orders directing Mother to show why her appeals should not be dismissed as untimely filed. In the meantime, Mother became unable to pay her private counsel having become indigent. On October 4, 2018, we entered an order remanding the cases to the family court for the purpose of appointing mother appellate counsel. Once she was appointed appellate counsel, Mother responded to our show cause orders, providing her reasons for the late appeals. Our Court dismissed Mother's appeals on January 9, 2019, having found Mother failed to show sufficient cause.
Mother then filed two motions in the family court on February 8, 2019, and March 25, 2019, to set aside the findings of fact, conclusions of law, and orders terminating rights. She raised three arguments in her motions: (1) her first, hired attorney was negligent in representing her; (2) there was newly discovered evidence; and (3) the Cabinet had failed to name the Children in their respective cases as "respondents." The family court issued an order denying the motions on May 1, 2019. On May 29, 2019, Mother appealed the family court's May 1, 2019, order denying her motion to set aside, as well as its December 5, 2017, findings of facts and conclusions of law. The only error identified by Mother on appeal concerns the Cabinet's alleged failure to properly designate the Children as party respondents/defendants in its termination petitions.
Mother's first motion failed to cite any Civil Rule to support the relief sought therein. Once the family court imputed CR 60.02 to Mother's arguments, she filed a second motion incorporating CR 60.02.
II. ANALYSIS
At the outset, we acknowledge the Cabinet's argument that Mother's briefs should be stricken, and her appeals dismissed for failing to abide by the briefing requirements of CR 76.12(4)(c)(v) - namely, her failure to include a statement of preservation of error and her complete failure to cite to the family court record. CR 76.12(4)(c)(v).
We do not condone counsel's failure to abide by our briefing rules, especially as it concerns the failure to include a statement regarding preservation of error. This requirement is one of the most fundamental and important of all the briefing requirements. It "is intended 'to save the appellate court the time of canvassing the record in order to determine if the claimed error was properly preserved for appeal.'" Krugman v. CMI, Inc., 437 S.W.3d 167, 171 (Ky. App. 2014) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). We do not take lightly counsel's failure to include a statement of preservation with citations to the record in his briefs. It makes our task exceedingly more difficult and invites error and speculation.
In this matter, however, the record is relatively straightforward, and we are able to determine without much difficulty that the issue was properly preserved, at least with respect to the CR 60.02 motions. Moreover, because these actions involve not only Mother, but also the minor Children whose proper joinder has been questioned, we deem it necessary to review for manifest injustice instead of outright dismissing the appeals. If the Cabinet failed to properly include the Children as part of the termination actions, denial of Mother's CR 60.02 motions would be an error of manifest injustice because the underlying judgments of termination would be void.
When an appellant's advocate fails to abide by the rules our options are: "(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[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
Next, we address Mother's attempt to appeal the original termination orders. Mother previously tried to appeal the underlying judgments of termination. Those appeals were dismissed as untimely filed. Mother cannot use the denial of her CR 60.02 motions to unwind the clock. The time to file an appeal of the original termination orders expired long ago. The only matter properly before us is whether the family court's denial of Mother's CR 60.02 motions resulted in manifest injustice.
KRS 625.060 makes clear that the child is an indispensable party to an action to terminate parental rights. CR 10.01 states that in every complaint, "the style of the action shall include the names of all the parties[.]" A more specific statute, KRS 625.050, governs the style of actions to terminate parental rights. It requires: "(1) A petition for involuntary termination of parental rights shall be entitled 'In the interest of ..., a child.'" Additionally, KRS 625.050(4)(b) requires the body of the petition to contain the: "[n]ame, sex, date of birth and place of residence of the child[.]" These are the two fundamental requirements necessary to properly name a child in a termination proceeding. In turn, KRS 625.070 provides the proper mechanism for the family court to assume jurisdiction over a child who has been named in a termination petition. It provides: "Notwithstanding the provisions of the Kentucky Rules of Civil Procedure, appointment of a guardian ad litem for a child in an action for termination of parental rights, and service of the petition upon the guardian ad litem shall be sufficient for personal jurisdiction over the child in the action." KRS 625.070(3).
In this case, the Cabinet's involuntary termination petitions were styled " In the interest of [] an infant." In addition, the style of the actions listed the Children's names under which the Cabinet included the following statement: "guardian ad litem to be appointed (Serve Guardian Ad Litem Pursuant to KRS 625.070 on behalf of infant by certified mail)." The body of the petitions listed the Children's names, genders, birthdates, birthplaces, and referenced their birth certificates by number. The first two paragraphs of the prayer for relief sections of the Cabinet's termination petitions requested appointment of a guardian ad litem "to represent said child when properly before the Court" and "that a summons be prepared and served with the petition upon the guardian ad litem on behalf of the infant [child]." A guardian ad litem, Hon. Jonathan Baker, was appointed to represent the Children by the family court. Counsel Baker received notice of the petition, appeared before the family court for the termination proceedings, and was served with a copy of the family court's termination orders. This satisfies the requirements of KRS 625.070 such that the Children were properly before the family court as represented parties to the action.
Having carefully reviewed the petitions for termination, we cannot find any deficiency with respect to naming the Children. Mother appears to believe that the Children should have been listed as respondents in the matter by the Cabinet, and that styling of the action as "In the interest of [] an infant" was improper. The statutes do not expressly require the Children to be designated as either respondents or petitioners. They do, however, require the action to be brought in the name of the minor child, that the petition contain identifying information about the child, and that a guardian ad litem be appointed to represent the child and provided with notice of the petition. The Cabinet complied with the statutory directives for naming the Children.
Having reviewed the cases cited by Mother, we believe she has confused the requirements necessary to make minor children proper parties to an appeal of a termination of parental rights decision with the requirements for making them parties in the lower court. With respect to the use of the phrase "In re: [child's name]," we have held that this phrase, when used on a notice of appeal, is insufficient to make the children parties to the appeal if the notice of appeal has not been served on the guardian ad litem. See A.M.W. v. Cabinet for Health & Family Servs., 356 S.W.3d 134, 135 (Ky. App. 2011). Our focus in A.M.W. was on lack of notice to counsel for the child. We held that simply including the child's name in the caption was insufficient where the guardian ad litem for the child had not been served with notice of the appeal.
Mother's reliance on S.B.P. v. R.L., 567 S.W.3d 142 (Ky. App. 2018), is also misplaced, and the family court properly distinguished it. S.B.P. centered on the fact the action was initiated as a parental termination by a person unauthorized to do so and was later amended incorrectly in an attempt to bring the action as an adoption without consent proceeding, which has different statutory requirements than a termination action. In S.B.P. we held that using the designation required by the termination statute, KRS 625.060, was not sufficient to name the child as a party defendant when the petitioner was seeking an adoption without consent as opposed to termination of parental rights.
At the time Mother made her motions, S.B.P. was not final, and this fact served as part of the Cabinet's basis for rejecting her reliance on it. However, the Cabinet also argued that S.B.P. was both factually and legally distinguishable. --------
In this case, unlike S.B.P., the petitions for termination were filed by an authorized party, the Cabinet. See KRS 625.050(3) ("Proceedings for involuntary termination of parental rights may be initiated upon petition by the cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth's attorney or parent."). In turn, as detailed above, the Cabinet followed the proper procedures for naming and noticing the Children through their court-appointed guardian ad litem. There was no error, manifest or otherwise.
III. CONCLUSION
In light of the foregoing, we AFFIRM the Lincoln Family Court's denial of Mother's CR 60.02 motions.
ALL CONCUR. BRIEFS FOR APPELLANT: Christopher Reed
Stanford, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Milissa Dilburn
Mayfield, Kentucky