Opinion
2021-CA-0734-ME
01-14-2022
A.H. APPELLANT v. COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; AND J.G.E., A CHILD APPELLEES
BRIEF FOR APPELLANT: Valerie L. Shannon LaGrange, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM TRIMBLE CIRCUIT COURT HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NO. 20-AD-00007
BRIEF FOR APPELLANT: Valerie L. Shannon LaGrange, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND McNEILL, JUDGES.
OPINION
CETRULO, JUDGE:
The Trimble Circuit Court granted the Appellee Cabinet for Health and Family Services' (the "Cabinet") motion to involuntarily terminate the parental rights of Appellant A.H., who is the natural mother ("Mother") of J.E. ("Child"). This appeal followed.
The motion and subsequent termination of parental rights also applied to the child's putative father; however, he was not at the termination hearing nor is he a party to this appeal.
FACTUAL BACKGROUND
The Cabinet filed a petition for involuntary termination of parental rights against Mother and Child's putative father ("Father") on October 27, 2020. On November 24, 2020, the circuit court set the termination of parental rights hearing for March 15, 2021 via Zoom. Four days before trial was set to begin, on March 11, 2021, Mother requested a continuance because (1) the permanency order in the underlying juvenile case was under appeal and (2) the hearing was set to be held via Zoom but Mother wanted the hearing in person. On the day of the hearing, Mother again requested a continuance for those reasons. The circuit court denied the continuance explaining that (1) the underlying juvenile appeal was not related to the termination proceedings and (2) the Supreme Court of Kentucky made it clear that courts must "resume hearing civil and criminal matters using available telephonic and video technology to conduct all proceedings remotely." Supreme Court of Kentucky Administrative Order 2020-39.
He is the putative father pursuant to Kentucky Revised Statute ("KRS") 625.065(1)(f), insomuch as he lived openly in Kentucky with Child in May and June 2019 and with Child and Mother in Mississippi from June to September 2019.
Zoom is a teleconferencing software program that allows for remote legal proceedings and has been used widely during the COVID-19 pandemic.
The circuit court then conducted the involuntary termination proceeding as planned. Mother and her counsel were present at the virtual hearing, along with Child's guardian ad litem ("GAL") and Father's counsel. Father, however, did not attend. The Cabinet called only the social service worker for the family ("Social Worker") to testify on behalf of its motion for involuntary termination. Mother was the only other witness to testify.
The witnesses agreed that Mother engages in regular visitation with Child and the visits go well. But the witnesses also recognized that Mother has a long history with the Cabinet. Mother's case plans with the Cabinet started in 2008, when Mother misused substances and her second child was born positive for illegal substances. Then, around 2012, Mother completed court-ordered substance abuse treatment as part of a criminal case. Mother testified that she also completed an inpatient treatment program that led to four and a half years of sobriety.
Then, in 2018 and 2019, while Mother was pregnant with Child, she relapsed and again began using methamphetamine. As a result, Child was born positive with methamphetamine in April 2019. Twenty-three days later, in May 2019, the Cabinet filed a juvenile dependency, neglect, and abuse petition alleging Mother neglected Child and the Cabinet removed Child from Mother's care. Upon removal, the Cabinet tried to place Child with Father. However, Father refused to comply with drug screenings and Child was ultimately placed with fictive kin in June 2019.
During that time, unbeknownst to the Cabinet, the fictive kin allowed Mother and Father to take Child to Mississippi to visit the paternal grandparents. Despite attempts to have Mother and Father return Child to Kentucky, they remained in Mississippi with Child until the circuit court ordered them to return Child to Kentucky on September 19, 2019. Upon Child's return, on September 23, 2019, the Cabinet placed Child in its custody. The next day, on September 24, 2019, the Cabinet placed Child with the maternal uncle and aunt, who started the process to become a child-specific foster home for Child. Child has been residing with the maternal uncle and aunt ever since.
The record reveals delays, for several months, by A.H. to participate in the substance abuse assessment and classes. The foster family expressed concerns that A.H. was arriving to supervised visits under the influence. There was a significant drop in compliance with drug screens by A.H. and a consistent failure to provide clean drug screens. A.H. continued to reside at an extended stay hotel and testified she has plans to return to Mississippi. She is still having contact with Father, who has not appealed the termination of his parental rights.
After two years of Mother's inconsistent adherence to the case plan, the Cabinet filed its motion to terminate parental rights. Following the March 15 hearing, the circuit court granted the Cabinet's motion and terminated Mother's parental rights. Mother appeals the circuit court's decision, claiming it erred in two main ways: (1) it denied Mother's motion to continue the hearing until an underlying appeal was final and until it could be heard in person; and (2) its decision to terminate parental rights was unlawful. We will address these claims in turn.
A. MOTION TO CONTINUE
Mother first argues the circuit court should have granted her motion to continue the hearing until an underlying juvenile proceeding appeal was final and the hearing could be held in person. We review a motion to continue for abuse of discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). An abuse of discretion occurs when a "trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted).
On March 11, 2021-four days before the hearing-and again on the day of the hearing, Mother verbalized a motion to continue the termination proceedings claiming two issues: (i) an underlying appeal was not yet final and (ii) a virtual trial would allegedly violate her due process rights. The circuit court denied Mother's motion both times, stating that (i) the underlying appeal was unrelated to the termination proceedings and (ii) the Kentucky Supreme Court ordered hearings to resume using telephonic and video technology.
The Kentucky Supreme Court has identified various factors to consider when reviewing the denial of a motion to continue, including: "1) length of delay; 2) previous continuances; 3) inconvenience to litigants, witnesses, counsel and the court; 4) whether the delay is purposeful or is caused by the accused; 5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice." Guffey, 323 S.W.3d at 371 (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)).
Many of the factors do not apply in this case. Mother wanted to delay the termination proceeding until the permanency order appeal was finalized and the hearing could be held in person, which could have resulted in a significant delay in the case. This is especially concerning when Child had already been outside of Mother's custody for 22 months. The circuit court's docket had been arranged for the hearing since November 24, 2020 (nearly four months) and all parties were ready to proceed. The request for delay was caused by Mother's own pending permanency order appeal and Mother's desire to have the hearing in person.
However, the most important factor is whether Mother made a showing of "identifiable prejudice" on both issues. Guffey, 323 S.W.3d at 372. Accordingly, Mother must "explain[ ] how a later hearing . . . would have rendered results different from the hearing . . . ." Id.
i. Underlying Appeal
In Child's underlying juvenile case, the circuit court had granted the Cabinet's motion to change the permanency goal for Child from reunification with parents to adoption. Mother filed a motion to alter, amend, or vacate the order changing the goal to adoption, which the circuit court denied on December 21, 2020. Mother appealed the circuit court's denial. Mother argued that the circuit court erred when it denied her motion to continue the termination proceedings until the permanency order appeal was final because she claims the proceedings are related.
Although Mother states that the hearing should have been continued until the appeal was final, she does not provide any argument as to how postponing the hearing would have changed the outcome of the termination proceedings, as precedent requires. Hohman v. Dery, 371 S.W.3d 780, 783-84 (Ky. App. 2012) (the party must show how postponing the hearing would have changed the outcome of the proceedings; claims that a party was "prejudiced by the denial of a continuance" is not enough). Mother simply states that the appeal is related to the termination proceedings, not how an opinion on the former would change the latter. Mother therefore did not meet her burden and the circuit court's decision was not arbitrary. Therefore, the circuit court did not abuse its discretion when it denied the motion to continue on this issue.
ii. Due Process
Next, Mother claims the circuit court erred when it held the hearing via Zoom, allegedly infringing Mother's due process right to "confront and cross-examine adverse witnesses[.]" Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972).
On May 15, 2020, in response to the COVID-19 emergency, the Kentucky Supreme Court ordered that starting June 1, 2020, the courts must "resume hearing civil and criminal matters using available telephonic and video technology to conduct all proceedings remotely." Supreme Court of Kentucky Administrative Order 2020-39. Following this guidance, the circuit court denied Mother's motion to continue the hearing and held the termination proceedings using available video technology on March 15, 2021.
Mother contends the circuit court erred in that decision because, she claims, virtual cross-examination is less effective than in-person cross-examination and glitches in technology may cause opposing counsel to miss relevant portions of witness testimony. If shown, we might agree. In fact, this Court has found that, when established by substantial evidence, issues hearing the mother's testimony during a virtual hearing could violate due process rights. K.D.H. v. Cabinet for Health and Family Services, 630 S.W.3d 729, 740-41 (Ky. App. 2021). However, unlike K.D.H., Mother does not provide any evidence as to how the virtual proceedings on March 15, 2021 in any way hindered her ability to cross-examine witnesses nor point to any notable glitches. Not only does Mother fail to show any indication that the virtual proceeding hindered her right to cross-examination, she also fails to detail how an in-person proceeding would have changed the outcome of the hearing, as required. Hohman, 371 S.W.3d at 783-84. Again, Mother failed to assert any identifiable prejudice and failed to meet her burden. Therefore, the circuit court's decision was not arbitrary, and it did not abuse its discretion when it denied the motion to continue on this issue.
At two points during the hearing-neither of which occurred during Mother's testimony or Social Worker's cross-examination-the GAL dropped off the screen due to connection issues. The circuit court judge noticed this absence soon after and had the parties halt until the GAL returned. The judge ensured the GAL did not miss anything pertinent and had counsel restate the last few minutes of testimony, to be sure there were no gaps.
B. LAWFULNESS OF TERMINATION
Mother next argues that the circuit court's decision to terminate parental rights was unlawful. We use a clearly erroneous standard when reviewing whether the termination of parental rights was lawful. C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 160 (Ky. App. 2012). We will not set aside the circuit court's findings of fact unless they are unsupported by substantial evidence. Id.; see also Kentucky Rule of Civil Procedure ("CR") 52.01. That is, evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Blankenship v. Lloyd Blankenship Coal Company, Inc., 463 S.W.2d 62, 64 (Ky. 1970).
KRS 625.090 governs involuntary parental right terminations. It says, in pertinent part,
Kentucky Revised Statutes.
that a circuit court may involuntarily terminate parental rights if it finds, by clear and convincing evidence, that the child is an abused or neglected child as defined in KRS 600.020(1) and that termination serves the best interest of the child. KRS 625.090(1)(a)-(b). Lastly, the circuit court must ascertain under KRS 625.090(2) that clear and convincing evidence has been provided to show the existence of one or more of ten factors.C.J.M., 389 S.W.3d at 160.
Once the circuit court has completed that analysis, it must determine whether "the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent[.]" P.S. v. Cabinet for Health and Family Services, 596 S.W.3d 110, 116 (Ky. App. 2020). At that point, the court may decide not to terminate rights. KRS 625.090(5).
Here, the circuit court thoroughly addressed each of these factors in its 34-page opinion, citing testimony from the termination hearing and supporting its conclusions of law with substantial evidence. We summarize the circuit court's pertinent findings below.
The first prong of the termination statute requires that the child be deemed abused or neglected, as defined by KRS 600.020(1), in the current proceeding, or have previously been deemed abused or neglected. KRS 625.090(1)(a). Here, the circuit court detailed that it adjudged Child to be neglected by Mother in the underlying juvenile case. The circuit court went on to correctly explain that Kentucky caselaw dictates that this element is satisfied when, like here, the circuit court found the parents neglected the child in an underlying juvenile case. M.A.B. v. Commonwealth, Cabinet for Health and Family Services, 456 S.W.3d 407, 412-13 (Ky. App. 2015); C.A.W. v. Cabinet for Health and Family Services, 391 S.W.3d. 400, 403-04 (Ky. App. 2013).
Mother argues that the circuit court failed to consider Mother's progress separately from Father's progress; however, the circuit court clearly broke up the analysis for each parent in separate paragraphs and clearly analyzed each parent's shortcomings in turn.
Although not necessary, the court went on to find in the current proceeding that Mother again neglected Child because "Mother has engaged in a pattern of conduct that render[s] her incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005. KRS 600.020(1)(a)(3)."
Second, the circuit court must determine that the termination of parental rights is in the child's best interest. KRS 625.090(1)(b). Here, the circuit court found that it was in the best interest of Child to terminate parental rights. The circuit court noted that it carefully weighed and balanced the evidence presented in the case and the statutory factors identified in KRS 625.090(3). The circuit court proceeded to meticulously tick through each factor and identify facts that support its findings. The circuit court referenced pages' worth of substantial evidence in its determination.
Subsection 3 details the factors the circuit court must consider when determining the best interest of the child and the existence of a ground for termination.
Third, the circuit court must find at least one aggravating factor enumerated in the statute. KRS 625.090(2). The circuit court identified subsections (e) and (g) as pertinent aggravating factors pertaining to Mother. Subsection (e) states:
Although the circuit court thoroughly details how Mother meets both (e) and (g) aggravating factors, the statute requires only one be met. Therefore, we find a recount of the circuit court's apt analysis of subsection (e) to be sufficient.
the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child[.]KRS 625.090(2)(e).
The circuit court determined that Mother had been substantially incapable of providing essential parental care and protection for her child since April 2019. For a full year after the Cabinet removed Child from her care, Mother continued to use illegal substances and failed to engage in any services. Although both parties agreed that Mother's recent, albeit inconsistent, participation in services is commendable, the circuit court determined that was not enough. It is especially concerning, the circuit court noted, that Mother had made little progress on her protective parenting classes, and it is unclear what treatment Mother was receiving at the Cleanse Clinic beyond her suboxone medication. Further, the circuit court noted Mother had not submitted to random drug screens since October 2020, had not found appropriate housing for Child, and had not demonstrated by way of regular and consistent child support payments that she had the financial ability to provide for Child.
Lastly, the circuit court determined Mother did not prove by a preponderance of the evidence that Child would not continue to be abused or neglected if returned to her care. The circuit court noted that while Mother has recently made some progress, the fact remains that even at this point, she is still not in a position to care for Child. And based on testimony at the hearing, she would not be finished with her protective parenting classes for another nine months from that date, assuming she started at that time and had no setbacks. The circuit court further noted that even if it had been persuaded that Child would not be abused or neglected if returned to Mother, it was not inclined to exercise that discretion. KRS 625.090(5).
The circuit court's analysis is wrought with substantial evidence supporting each step in the requisite analysis. As precedent dictates, the circuit court's findings "lead us to believe that each factor was properly considered." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 212 (Ky. 2014). Given the "great deal of deference" we must afford to the circuit court's findings, we must not "interfere with those findings unless the record is devoid of substantial evidence to support them." Id. at 211 (citation omitted). Here, the record has substantial evidence to support the circuit court's findings. We therefore find the circuit court's findings are not clearly erroneous and must be AFFIRMED.
ALL CONCUR.