Opinion
2021-CA-0449-ME
01-07-2022
C.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.E., A CHILD APPELLEES
BRIEF FOR APPELLANT: Terri King Schoborg Covington, Kentucky. BRIEF FOR APPELLEE: Daniel Cameron Attorney General Christopher S. Nordloh Special Assistant Attorney General Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT HONORABLE CHRISTOPHER J. MEHLING, JUDGE ACTION NO. 21-J-00068-001
BRIEF FOR APPELLANT: Terri King Schoborg Covington, Kentucky.
BRIEF FOR APPELLEE: Daniel Cameron Attorney General Christopher S. Nordloh Special Assistant Attorney General Covington, Kentucky
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
OPINION
JONES, JUDGE.
This appeal arises from a dependency, neglect, and abuse ("DNA") action initiated by the Cabinet for Health and Family Services ("the Cabinet") against the Appellant, C.B. ("Mother"), in Kenton Family Court. Following an adjudication hearing, the fmily court entered an order against Mother finding her newborn infant, E.E. ("Child"), was a neglected child based on DMother's failure to complete Cabinet plans and follow court orders in cases involving Mother's other children. Thereafter, a disposition order was entered by the family court allowing Child to remain in Mother's custody but imposing various requirements on Mother. Mother appeals on the basis that the family court's finding of neglect was not based on substantial evidence that Mother abused or neglected Child. After reviewing the record and being otherwise sufficiently advised, we reverse.
"Under KRS [Kentucky Revised Statutes] 610.080, DNA actions are bifurcated proceedings, i.e., they involve two distinct hearings: adjudication and disposition. The adjudication determines the truth or falsity of the allegations in the DNA petition while the disposition determines the action to be taken by the court on behalf of the child or children. The rights of all parties to a DNA action are not fully adjudicated for the purposes of appellate review until both the adjudication and disposition hearings have been completed. Accordingly, a disposition order, not an adjudication order, is the final appealable order with regard to a decision of whether a child is dependent, neglected, or abused." M.C. v. Cabinet for Health and Family Services, 614 S.W.3d 915, 920-21 (Ky. 2021) (internal quotation marks and citations omitted).
I. Background
In the past, Mother has struggled with substance abuse. (Record ("R.") at 3.) As a result, the Cabinet became involved with Mother sometime in September 2018 as related to Mother's care of her three older children. Id. The older children are not currently in Mother's care, and this DNA action does not directly involve them. Id. Even so, Mother's undisputed failure to complete her case plans with respect to the older children is the central issue in this DNA case. Id. Specifically, Mother did not complete inpatient drug treatment or submit regular drug screen results as required by the case plans for her older children. Id.
Due to the "one judge, one family" policy Kentucky family courts utilize, the family court was intimately familiar with Mother's other cases. Both the family court and the parties referred to the other cases throughout this proceeding. However, Mother's other cases were not made a part of the record on appeal. Therefore, our knowledge of those cases is limited to what we have been able to glean from the record in this DNA case.
Mother gave birth to Child during the first week of January 2021. Id. Mother's drug screen, which was performed at the time of delivery, came back negative. Id. Child's umbilical cord was also found to be negative, and Child was born healthy. Id. Based on its prior involvement, the Cabinet was notified of Child's birth and undertook an investigation to determine whether Child was at risk of abuse or neglect. (R. at 24.) During its investigation, the Cabinet determined that Mother received appropriate prenatal care and that her drug screens during the pregnancy were negative. Id. Erica Stephens, the Cabinet's designated social worker, testified during the adjudication hearing that, based on its investigation, the Cabinet determined there was not a risk of harm to Child, and it chose not to file a DNA petition. Id. As a result, Mother was allowed to take Child home from the hospital with her without Cabinet supervision. (R. at 25.)
Child's father, N.E. ("Father"), lives with Mother and Child in the home. Mother's older three children apparently do not belong to Father. No allegations were made against Father as part of this DNA action, but he did participate in the proceedings below. He is not a party to this appeal.
Although not entirely clear from the limited record before us, it appears that during a proceeding involving one of Mother's other children, the family court became aware that Mother had recently given birth to Child. At that point, notwithstanding the Cabinet's prior determination that Child was not at risk, the family court ordered the Cabinet to file a DNA petition against Mother for abuse and/or neglect of Child. Id.
Based on the parties' discussions with the family court during these proceedings, it seems most likely that Mother was before the family court on a contempt charge due to her failure to drug screen in accordance with her case plans. (R. at 25.)
During the adjudication hearing, the Cabinet affirmatively admitted under oath that the DNA petition against Mother was filed "upon order" of the family court. (R. at 25.)
In compliance with the family court's order, on January 27, 2021, the Cabinet filed a DNA petition "in the interest of Child" alleging that Child was abused or neglected. The grounds set forth in the petition state:
The DNA petition lists the affiant as Erica Stephens, the Cabinet's designated social worker for this family; confusingly, however, the name "Tracey Stewart" appears on the signature line even though the type-written portion of the petition states that the affiant was Ms. Stephens. (R. at 5.) Neither the parties nor the family court made any mention of this discrepancy. Since Mother stipulated to the factual allegations in the petition, and Ms. Stephens's testimony conformed with the petition, we deem this discrepancy immaterial at this juncture.
On January [x], 2021 [Mother] gave birth to [Child]. [The Cabinet] has been working with [Mother] since September 2018. [Mother] has three other children, and she is not providing care for [sic], due to her substance misuse. Permanent custody was provided to relatives, due to [Mother's] failure to work her case plan, and complete drug treatment. There is currently a PCHscheduled for her [older] daughter []. During an investigation, it was determined that [Mother's] drug screens throughout her pregnancy was [sic] negative. At the time of delivery [Mother] was negative, and the baby cord was negative. There is a risk of harm, due to
[Mother's] failure to work a case plan, and drug screen as court ordered.(R. at 3.)
Permanent Custody Hearing.
Mother was served with the petition, and the family court conducted a preliminary hearing on February 1, 2021, at which time it appointed counsel for Mother and a guardian ad litem ("GAL") for Child. (R. at 8.) As part of the preliminary hearing, Mother denied having abused or neglected Child. (R. at 9.) While the family court determined that Child could remain in Mother's home, it directed Mother to "comply with orders in other case-19-J-450." (R. at 8.) However, the family court changed the location of Mother's drug testing so that she could test closer to her home. (R. at 10.) The order required Mother to call the testing center each day at which time the testing center would notify her whether she had been selected for random screening that day. Id. If selected, Mother was required to report to the lab and provide a specimen. Id. The family court scheduled an adjudication hearing for March 4, 2021. (R. at 9.)
This is apparently the case involving the older daughter referred to in the Cabinet's petition.
The adjudication hearing was conducted virtually. Mother along with her appointed counsel, Child's GAL, the County Attorney, Ms. Stephens, and Father appeared at the hearing. (R. at 23.) At the beginning of the hearing, Mother agreed to stipulate to the factual allegations in the petition (R. at 24); however, it is apparent from the record that her stipulation did not include an admission that the facts alleged were sufficient to demonstrate a risk of harm to Child as a matter of law. Given Mother's stipulation, the Commonwealth elected not to put on any direct proof. Id. Mother called Ms. Stephens. Id. Mother's counsel first questioned Ms. Stephens regarding the Cabinet's initial assessment. Id. Ms. Stephens testified that Mother's drug screens were negative at birth, and she tested negative while she was pregnant with Child. Id. She explained that based on its initial investigation, the Cabinet chose not to file a petition because it believed there was not a risk of harm to Child. Id. It filed the petition only after being ordered to do so by the family court. Id. Even so, Ms. Stephens was not aware of anything to indicate that Child had been mistreated by Mother-either during the pregnancy or after. (R. at 25.)
The Commonwealth's and the GAL's cross-examinations focused primarily on Mother's failure to work case plans for her other children. (R. at 24-25.) Ms. Stephens testified that since 2019 Mother had missed many of her scheduled drug screens. (R. at 24.) However, she later admitted that Mother's hair follicles had always tested negative. (R. at 25.) Ms. Stephens further testified that while Mother began inpatient treatment, she did not complete it. Id. Mother's failure to drug test, as ordered, resulted in contempt charges being filed against her in at least one of the cases involving the older children. Id.
Following conclusion of the testimony, the family court orally found Mother had abused or neglected Child:
[Mother] had [Child] free of drugs. [Mother] is free of drugs. [Mother] is well known to this court. I've removed other children. I've put her under other orders, many of which have been disobeyed. This record indicates she has failed to drug screen consistently per my orders, failed to complete residential drug treatment. Uh. In this matter, the issue is, is there a risk of harm for this child? And the issue of substance use disorder, it's a long-term game, not short-term. So, Mother presents to me a few specific times [inaudible] whereby she tests negative, baby is negative. But when I look at the case over a span of time, she has failed to get anything done on any plan with any other child. And as I sit here, I can't say she's drug free because she won't obey my orders and drug screen.
So, in any event I believe there is a risk of harm based on the long-term behavior of Mother, failure to comply with court orders, and not complete a plan. So, there'll be a finding of risk of harm.(Video Record ("VR"): 03/04/2021, 11:11:21-11:13:17.)
Thereafter, the family court scheduled a disposition hearing for March 16, 2021. (R. at 12.) As part of this hearing, the Cabinet filed a dispositional report with the family court as follows:
[Child] is in the custody of [Mother] and [Father]. [Child] appears to be doing well in the home with no reported issues or concerns. Child is attending St. Elizabeth pediatric for her well-check and immunizations. They reported her last visit was on
March 3, 2021, and her next appointment is on May 3, 2021.
[Mother] reports, she continues to engage in services with her therapist at St. Elizabeth Edgewood. She also reported she is attending AA/NA with the Alano Club. [Mother] reported she is not currently working. At this time, [Mother] is drug screening at Arcpoint and is producing negative drug screens.
[Father] also resides in the home and is maintaining stable employment.(R. at 15.) The Cabinet recommended that Child not be removed from her home. (R. at 17.) Ultimately, the family court accepted this recommendation. (R. at 18.) However, Mother was placed on certain conditions, including: that she continue to drug screen and produce negative results; that she continue to attend therapy and follow all recommendations; and that she continue to attend AA/NA meetings and provide verification of her attendance. Id.
Alcoholics Anonymous/Narcotics Anonymous.
Father was also directed to drug screen at the Cabinet's discretion and to cooperate with the Cabinet. (R. at 18.) While Father was not named in the petition, he was provided notice of the proceedings and participated in them virtually. However, there were never any allegations made against Father. Therefore, it is unclear to us why these conditions were placed on him. Father, however, did not file his own appeal or otherwise object to the conditions.
Before finality, Mother filed a motion requesting the family court to enter written "findings of fact that support the 'risk of harm' and 'abuse and neglect'" conclusions it made as part of this DNA case. (R. at 21.) The family court granted Mother's motion and entered the following order on April 6, 2021:
This case was before the Court on March 4, 2021, for adjudication. Mother was present with her counsel, Hon. Terri Schoborg. Father was present. The county attorney, Hon. Ryan Pliver was present. The Guardian ad Litem, Hon. Donna Bloemer was present. The court having reviewed the record, hearing from the parties and counsel, and being in all ways sufficiently advised, hereby enters the following order.
(1) Mother was under orders in cases involving her other minor children. Many of these orders were disobeyed. She has failed to drug screen, complete residential drug treatment or complete a plan.
(2) Because of this, Mother's other children were placed in the permanent custody of others.
(3) The [family] court finds there is a risk of harm to the child based upon Mother's long-term failure to complete a plan and because she suffers substance use disorder.
(4) The [family] court finds this child is neglected by Mother.(R. at 23.)
This appeal by Mother followed.
II. Standard of Review
Our standard of review on a dependency, neglect, or abuse action is as follows:
[T]he Cabinet bore the burden of proving that the children were neglected by [Mother] by a preponderance
of the evidence. In other words, that it was more likely than not that they were neglected. A family court's findings of fact in a DNA action shall not be set aside unless clearly erroneous. A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person. If 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. An abuse of discretion occurs when the family court's decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.M.C., 614 S.W.3d at 921 (internal quotation marks and citations omitted).
III. Analysis
Before delving into Mother's arguments in support of reversal, we must first address the Cabinet's contention that Mother stipulated to "there being a risk of harm to [Child] due to [Mother] failing to work a case plan, and drug screen as court ordered," meaning the only issue before us on appeal is whether the "risk was by other than accidental means." (Cabinet's Brief at 4.) We have carefully reviewed the record in this matter, including the adjudication hearing where Mother's counsel made the stipulation. Having done so, we cannot agree with the Cabinet's characterization of the stipulation's scope.
It is clear to us that Mother intended only to stipulate to the facts alleged against her: (1) that she gave birth to Child; (2) that she and Child were negative for drugs at the time of the birth; (3) that her drug screens during her pregnancy were negative; (4) that she has three other children who are not currently in her custody; and (5) that she failed to complete her case plans in the other cases. Throughout the hearing, Mother steadfastly asserted that these facts do not rise to level of abuse or neglect of Child. In fact, counsel made arguments to the family court concerning this exact argument. Accordingly, we do not agree that Mother's stipulation amounts to a concession of abuse or neglect by her, and we will review her arguments on their merits.
The family court had intimate knowledge of Mother and her past failures due to its involvement in her other cases. There can be no doubt the family court's actions were driven by its sincere desire to protect Child from what it believed was a risk of harm posed by Mother's past struggles with substance abuse. The family court's desire to protect Child at all costs is laudable. Nevertheless, we cannot overlook the fact that this DNA proceeding was fundamentally flawed from its inception.
It is well-established that a family court has a duty to report suspected child dependency, neglect, or abuse pursuant to KRS 620.030(1). Fugate v. Fugate, 896 S.W.2d 621, 623 (Ky. App. 1995). However, the family court's duty stops at the reporting stage. Commonwealth, Cabinet for Health and Family Services v. Garber, 340 S.W.3d 588, 590 (Ky. App. 2011). It cannot interject itself into an investigation or take any other actions beyond reporting until such time as the Cabinet or some other interested party files a DNA petition. Id. In Garber, we held that "[b]y ordering an investigation [by the Cabinet], the family court usurped the Cabinet's executive function of determining the necessity of an investigation and, if so warranted, initiating the investigation." Id. In taking such action, "the family court acted outside its jurisdiction and violated the separation of powers of Section 28 of the Kentucky Constitution." Id. at 591.
This statute provides in relevant part: "Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or to the Department of Kentucky State Police, the cabinet or its designated representative, the Commonwealth's attorney, or the county attorney by telephone or otherwise." KRS 620.030(1).
We most recently considered the family court's role in the DNA pre-petition process in T.C. v. M.E., 603 S.W.3d 663 (Ky. App. 2020). The facts of T.C. are rather convoluted; however, for our purposes, it is sufficient to understand that a DNA petition was filed based on the district court's order following an emergency protective order ("EPO") proceeding. The DNA action was opened using the district court's order from the EPO as the initiating filing. Thereafter, the Cabinet undertook an investigation into the allegations. Following its investigation, the Cabinet informed the district court that it had determined that the allegations were unsubstantiated, and the child was not at risk. Nevertheless, the district court went on to find the child abused. Relying on Garber, we held that the district court usurped the Cabinet's authority by ordering a DNA action to be opened.
To initiate a dependency, neglect, or abuse action there must be an initiating petition. See KRS 620.070(1). The statute authorizes "the filing of a petition by any interested person in the juvenile session of the District Court." Id. (emphasis added). Interested persons are parents, guardians, family members, or DCBS - not judges presiding in a neutral court system. The district court is not an interested party, and that should go without saying. A court must be and remain "a disinterested adjudicating body . . . ." Boyd & Usher Transport v. Southern Tank Lines, Inc., 320 S.W.2d 120, 123 (Ky. 1959) (emphasis added). By that, of course, we do not mean an uninterested tribunal, but disinterested in the sense that the court has no stake - financial, emotional, or otherwise - in the outcome of the case before it. "If it would appear to a reasonable person that a judge has . . . an interest in the litigation then an appearance of partiality is created . . . ." Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 472 (Ky. 2010) (citation and internal quotation marks omitted).
A court simply does not qualify under KRS 620.070(1) as an interested party that can initiate a dependency, neglect, or abuse action. The district judge here erred to the point of manifest injustice by using an order denying an EPO petition to initiate a removal case
(the "J" case under review) in the juvenile division of her own court.
Similarly, a simple reading of KRS 620.130(1) demonstrates the same idea, but from a different perspective. That statute tells the district court what to do "when the court is petitioned to remove . . . a child from the custody of his parent . . . ." Here, the district court effectively petitioned itself - that is, the district court filed the initiating document in 17-J-50204-001.
To be sure, referring a matter to DCBS is not a problem at all. However, when a court goes further under such circumstances - and this court went much further, even to the point of usurping the Cabinet's executive function - the reviewing court cannot allow its rulings to stand.
In the case under review, the Cabinet through its DCBS representative said, "[W]e're not opening a case-." And when the district court responded by saying, "I'm ordering you to[, ]" the court overstepped its bounds.
Here, the Cabinet performed its executive function. It investigated and found no substantiation for Mother's claims that Father abused their Son. When the district court ordered the Cabinet to open a case and further assess the family needs, it violated the separation of powers doctrine.Id. at 679-80 (emphasis added).
Here, the family court's involvement falls in between Garber and T.C. The court in Garber just ordered the Cabinet to commence an investigation after the court reported its concerns; it did not actually direct the Cabinet to file a DNA petition as the family court did in this case. Still, we concluded that the order to investigate was improper because the court's non-adjudicative role must terminate after it complies with its reporting duties. While not nearly as egregious as the district court's conduct in T.C., the family court's actions here still fit the same fact pattern. The Cabinet conducted its own investigation after Child was born. After doing so, it found no risk of harm, elected not to file a DNA petition, and allowed Mother to take Child home from the hospital with her without supervision or restrictions. Later, when Mother and the Cabinet came before the family court in another case, the family court ordered the Cabinet to file this DNA petition even though the Cabinet had already concluded that there was not a risk of harm. Our holdings in Garber and T.C. make clear that the family court violated the separation of powers doctrine and caused manifest injustice when it did so.
Since Child was not removed from Mother's custody it is tempting to conclude "no harm, no foul." However, as this Court has previously observed:
[A]n adjudication of neglect carries long-reaching consequences. This finding may be used against [the parent] in subsequent proceedings, including proceedings to remove the children from the home or to terminate her parental rights. A finding of neglect may also carry a personal or social stigma far beyond the limited circumstances involved in this case. Thus, the courts should be very careful about making such a finding merely out of caution.K.H. v. Cabinet for Health and Family Services, 358 S.W.3d 29, 31 (Ky. App. 2011) (emphasis added). It would be a grave injustice for us to stand idly by and allow the finding of neglect against Mother to stand. This finding was the product of a fundamentally flawed process making it impossible for us to conclude that substantial evidence supports the family court's conclusion.
Mother was determined to have neglected Child even after the Cabinet had determined that Child was not at risk. By all accounts, the DNA petition would never have been filed against Mother had the family court not usurped the Cabinet's executive function. Our conclusion in this regard is bolstered by the facts that were alleged by the Cabinet and later adduced at the hearings before the family court. Those facts are that: (1) Mother received appropriate prenatal care and tested negative throughout her pregnancy; (2) Mother tested negative at the time of Child's birth; (3) Child's cord tested negative; (4) Mother's hair follicles always tested negative; (5) there was no evidence presented at the hearing that Mother was actually abusing substances at any time she was pregnant with Child or after Child's birth; (6) Mother had properly cared for Child since taking Child home from the hospital, including making sure Child was receiving appropriate medical checkups and immunizations; and (7) Mother was attending AA/NA and obtaining therapy. The only facts alleged against Mother are that she previously had a substance use issue that led to the removal of three older children and that she failed to complete case plans for those children.
"[W]hile substance use by a parent is an extremely serious matter that we do not take lightly, we simply cannot affirm a finding of neglect when there has been no harm or actual, reasonable risk of harm to a child." M.C., 614 S.W.3d at 929. To constitute abuse or neglect a substance use disorder must result "in an incapacity by the parent or caretaker to provide essential care and protection for the child[.]" KRS 620.023(1)(c). While this may have been true of Mother in the past, there was no showing made in this DNA action that Mother's substance use disorder was then presently incapacitating or that it was negatively affecting her ability to care for Child. In fact, while Mother admittedly failed to test in her other cases, the evidence presented in this DNA action was that Mother had been clean both during and after her pregnancy. Had there been some proof that Mother used drugs during these time periods or that she was not properly caring for Child, this would be an entirely different matter.
However, the proof demonstrated the opposite. While it is true that a person who has abused drugs in the past is more likely than a non-abuser to use again, mere past drug use is simply not sufficient in and of itself to prove a risk of harm in a DNA case. By the same token, Mother's failure to test in other cases, when considered in light of the facts of this case, is likewise inadequate. Even though Mother failed to test as ordered, the overwhelming majority of proof demonstrated that she had not used drugs since becoming pregnant with Child. "[T]he risk of harm must be more than a mere theoretical possibility, it must be an actual and reasonable potential for harm." M.C., 614 S.W.3d at 923 (internal quotation marks omitted).
On the balance, we cannot agree that substantial evidence supported a risk of actual harm to Child. Our conclusion is bolstered by the fact that the Cabinet itself failed to appreciate any such risk after its own investigation, even though it was well aware of Mother's past (including her substance use disorder and the DNA actions involving her other children) at the time of Child's birth.
III. Conclusion
Accordingly, for the reasons set forth above, we reverse the adjudication and disposition orders entered against Mother in this DNA action.
ALL CONCUR.