Opinion
NO. 2015-CA-000098-ME
03-18-2016
C.H. AND C.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND LINDA HARTZ, PATERNAL GRANDMOTHER APPELLEES
Timothy Denison Dennis C. Burke Louisville, Kentuck ORAL ARGUMENT FOR APPELLANTS: Timothy Denison Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES: Melanie Biggers Carey Hendricks Aldridge Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 14-J-00404 AND 14-J-00404-001 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Mother and Father jointly appeal the Hardin Circuit Court's orders of November 26, 2014, and December 23, 2014. The first order found one of their two children a victim of parental abuse and the other at risk of parental harm or abuse. The second order placed the children in the custody of their paternal grandmother. After careful review of the record, we affirm the circuit court's orders.
This appeal arises out of Dependency, Neglect, and Abuse petitions filed on behalf of two minor siblings against both of their parents. According to the petitions, one of the children, approximately three months old, was referred to Kosair Children's Hospital for swelling of the left leg. An x-ray revealed a mid-shaft spiral fracture highly suggestive of non-accidental trauma. The hospital then completed a skeletal survey which indicated six prior fractures throughout the child's frame. Neither parent could account for the child's injuries. A second petition was filed on behalf of the injured child's sibling alleging risk of harm or abuse based on the allegations.
Mother retained Louisville attorney Timothy Denison to represent her; Father retained Louisville attorney Dennis Burke to represent him. Both lawyers were present when the Hardin Circuit Court conducted a pre-trial conference on October 22, 2014. Mother and Father were present, and the children were represented by a guardian ad litem (GAL). The primary objective of this conference was to set a date for the adjudication hearing. The court informed counsel that adjudication hearings normally were limited to two hours. The court repeated this time constraint several times and asked if there were any objections to the two-hour limitation. All counsel said they were aware of the limitation and expressed no objection. The parties asked that the adjudication hearing be scheduled for November 26, 2014 - the day before Thanksgiving. In response, the trial judge stated, again, "I'll schedule it [the two-hour adjudication hearing] for November 26, and that would be at 8:15 [A.M.] and, of course, . . . everything gets set at 8:15 [A.M.] and it's just whenever we can get to your case." (VR No. 1: 10/22/2014; 10:14:20).
When the trial court began calling its November 26, 2014 docket at approximately 8:15 A.M., neither Mother's counsel nor Father's counsel was present. At 9:33 A.M., this case was called for hearing. Mother and Father were present, but Mother's counsel and Father's counsel had yet to arrive. The trial court asked the clerk if there were any messages from counsel and there were none, nor any explanation for the absence of Mother's and Father's respective counsels.
The Commonwealth expressed concern that further delay would prevent its expert witness (who had traveled from Louisville) from testifying in other cases, and asked that the hearing be continued. The court stated it was inclined to go forward with the adjudication hearing despite concern that there might be no cross-examination of the expert witness, but stated that was a gamble the attorneys took when they failed to show up for court on time. The GAL mentioned that the date had been set for some time and opined that the court should go forward with the hearing. The hearing commenced.
The Commonwealth called its first witness, Cynthia Curtsinger, the pediatric nurse manager at Kosair Charities Division of Pediatric Forensic Medicine, University of Louisville School of Medicine. At approximately 9:45 A.M., while the Commonwealth was questioning Nurse Curtsinger, Mother's attorney made his appearance and participated in the hearing thereafter. Father's attorney was still absent.
In her brief to this Court, Mother asserts that "[a]pproximately one hour into the proof, undersigned counsel moved the Court to allot one hour for proof from the Commonwealth . . . and [to] reserve one hour for proof from the Appellants [but t]he Court denied the motion, stating that the government could put on all its proof first but that the two[-]hour time restrictions would be adhered to . . . ." (Appellants' brief, p. 2). We have carefully examined the record and fail to find support for this assertion.
We do not consider this statement an intentional misrepresentation, but rather Mr. Denison's honest recollection of events that included unrecorded impressions he experienced leading to certain of his presumptions during the hearing.
After oral argument on November 19, 2015, this Court issued a show cause order to Mr. Dension asking him to review the video record of the adjudication hearing and specifically identify wherein he preserved the right to challenge the twohour time limitation on appeal.
We view Mr. Denison's response in a light favorable to his client. It appears Mr. Denison presumed the twohour time frame was to be split equally between the Commonwealth and Mother and Father to allow each side to present its case. When the Commonwealth took one hour and twenty minutes to examine its witnesses, Mr. Denison apparently presumed he would have an equal amount of time, or at least sufficient time, to present his case, notwithstanding the twohour limit imposed earlier. But the court was inflexible on the twohour limit stating: "The forty minutes left, that's for the whole hearing, not just your side of it, that's the whole hearing." Again, interpreting Mr. Denison's affidavit in favor of his client, counsel tried to object to the time limit based on the Commonwealth's use of twothirds of the allotted time, stating: "All I'm saying is . . . ." But the court interrupted stating simply that Mr. Denison could use his remaining time however he wanted. We believe Mr. Denison is sincere in stating in his affidavit that it was his intent to finish that statement with an objection to the time limit. We cannot, however, conclude that this exchange between counsel and court established, as a matter of law, a proper objection and preservation of the argument that the time allotted was insufficient.
Mother's counsel represents that he was not able to call his first witness, Mother, until there was only twenty minutes left in the two-hour hearing. (Appellants' brief, p. 2). Again, our review of the hearing reveals something different. The record shows the following.
After Nurse Curtsinger's testimony, the Commonwealth called the Cabinet worker, Cindy Melson. When Ms. Melson's direct examination was complete, the court noted there was approximately forty minutes remaining for the hearing. Mother's attorney cross-examined Ms. Melson, then called Mother as a witness. Mother took the stand at 10:46 A.M., one hour and thirteen minutes after the hearing began.
Mother gave her testimony for thirty-six minutes. She was the only witness the defense presented. Once she completed her testimony, the trial court stated there was only enough time remaining for closing arguments. The GAL argued first, followed by Mother's counsel.
Father's attorney arrived at 11:27 A.M., just as the Commonwealth began closing argument, three hours after the hearing was scheduled and two hours after the hearing began. Father's attorney never made any comment.
At the conclusion of closing arguments, the trial court made its findings and ruled in the case, stating on the record as follows:
There was some inconsistent testimony made by the Mother and, ostensibly, the Father to the social worker and at least to the medical care provider at Kosair [Hospital who] was taking the history. . . . Clearly, the forensic evidence [and] the opinion of the expert was that it was non-accidental; all of the fractures - at least six, possibly seven, in a roughly three-month-old child - was [sic] non-accidental. Even if you take into consideration the possible perpetrator as being the babysitter, it still doesn't really correspond with the evidence because the fractures were all at different, various stages of healing. So, even if you think that maybe the babysitter may have perpetrated some of the abuse [as Mother asserted], that
doesn't explain all the fractures. I think when you consider [that] the parents were having the full care and control of this child, [abuse by the babysitter] would not explain all of the fractures this child had. [This] leads me to believe there is sufficient evidence - I believe that the Commonwealth has met their burden of proof, and I'm making the finding that [C.H.] is an abused child and that the Mother and the Father are the perpetrators of that abuse. I'm finding that [C.H.'s sibling] is a neglected child for risk of abuse . . . .(VR No. 1: 11/26/2014; 11:36:41). The court entered an order of adjudication to this effect on November 26, 2014.
Disposition was scheduled for December 17, 2014, and, on that date, the trial court ordered that the paternal grandmother be awarded custody of the children. This appeal followed.
Mother and Father filed a joint brief in this appeal. They argue that the time limitation on the adjudication hearing prevented them from presenting all of their proof and cross-examining witnesses and, thus, was highly prejudicial.
We are not persuaded by this argument. First, counsel for Mother and counsel for Father were present at the pre-trial conference when the adjudication was scheduled for two hours. To be clear, the trial court expressly stated: "Are there any objections then, knowing that it's going to be limited to two hours, that we do it on the 26th." After a few seconds' silence in the courtroom, the court went on to say: "Hearing no objections, I'll schedule it then for November 26." (VR No. 1: 10/22/2014; 10:14:10). By declining to object to this schedule, Mother's and Father's attorneys accepted it as sufficient. This failure to object to the two-hour hearing constituted a waiver of any argument that it prejudiced the case of Mother or Father. Being an interlocutory order, the time limit on the hearing was always subject to revision.
Second, if subsequent to the pre-trial conference there was an unanticipated and substantial change in circumstances that might have made the previously acceptable time restraint prejudicial, no record of such a change was made. Specifically, neither counsel for Mother nor counsel for Father stated why they were not present when the hearing began. A satisfactory explanation, if sufficiently prejudicial, might have served as the basis for an objection to the two-hour limit and a motion for postponement or extension of the hearing. If the family court had denied such a motion, this Court may have deemed the denial an abuse of discretion. However, as we noted, no such objection was made. The family court was given neither reason nor opportunity to revisit its standard two-hour hearing limitation. This Court may not review a party's claim of trial court error that was not first brought to the attention of the trial court to correct. Sherley v. Commonwealth, 889 S.W.2d 794, 799 (Ky. 1994) ("When a trial court has not had the opportunity to rule, the appellate court is unable to review the alleged error.").
Sidestepping this procedural requirement, Mother and Father present a separate argument that is, in part, constitutionally based. They claim the limitations of the hearing "violate the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitutions [sic] [and] the corresponding provisions of the Kentucky Constitution[.]" (Appellants' brief, p. 3). Errors of constitutional magnitude, if unpreserved, are subject to palpable error review under RCr 10.26 or the identically worded CR 61.02. See Walker v. Commonwealth, 349 S.W.3d 307, 313 (Ky. 2011). But, to be clear, the Parents have not invoked either of these rules nor generally requested palpable error review without citing the rules.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
Our Supreme Court has made it clear that a party "may invoke CR 61 .02 and claim palpable error if its substantial rights have been affected and a manifest injustice has resulted from the error." Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 19, 27 (Ky. 2008) (emphasis added). But, as Childers states, a party must "invoke" the rule. They did not invoke the rule here. However, there is yet another exception that, if present in this case, would allow palpable error review, even though not invoked.
"Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review . . . unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008), as modified on denial of reh'g (May 22, 2008) (emphasis added; applying RCr 10.26). Therefore, if we determine that there are "extreme circumstances amounting to a substantial miscarriage of justice," we can reverse, notwithstanding the fact that the error was not preserved nor was palpable error review requested. We must ask ourselves then, whether there are extreme circumstances in this case amounting to a substantial miscarriage of justice.
We cannot conclude that the circumstances of this case amount to a substantial miscarriage of justice. A significant reason for reaching this conclusion is the fact that neither counsel for Mother nor counsel for Father has ever identified what testimony they would have offered to the trial court that would have made a difference in the outcome. See Bayless v. Boyer, 180 S.W.3d 439, 447 (Ky. 2005) (even where cross-examination of a witness was expressly denied, it was incumbent upon Appellants' counsel "to show what a witness would have said"; otherwise, "an appellate court has no basis for determining whether an error in excluding his proffered testimony was prejudicial"). Mr. Denison readily admitted at oral argument that he did not have any expert medical testimony to rebut the Commonwealth's medical proof, leaving it uncontradicted. We also point out that Mother and Father do not claim that the family court's orders are not supported by substantial evidence.
Furthermore, "palpable error must result from action taken by the Court rather than from an act or omission by the attorneys or litigants." Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (quoting Carrs Fork Corp. v. Kodak Mining Corp., 809 S.W.2d 699, 701 (Ky. 1991)). In this case, despite their awareness of the need to be in the courtroom at 8:15 A.M., and their agreement to the two-hour limitation, Mother's attorney arrived at 9:45 A.M., after the hearing had begun, and Father's attorney arrived during closing arguments and never participated. They provided neither excuse nor explanation.
There is nothing in the record that provides any explanation for the attorneys' failure to be prepared and present at this hearing. Whether this constitutes a violation of SCR 3.130 (Rule 3.3(a)(1)) is a question more appropriately addressed by the Kentucky Bar Association.
We are not blind to the fact that the Parents were at a disadvantage in this case. Here, we had a nearly perfect storm. This is a civil action in which the parents were represented by their own separate, private counsel whose duty it is to zealously represent their clients at every critical stage. R.V. v. Commonwealth, Dep't. for Health & Family Servs., 242 S.W.3d 669, 673 (Ky. App. 2007). The parents were "entitled to a meaningful opportunity to be heard, including the right to consult with counsel[.]" Id. at 672. To the extent the Parents were deprived of that opportunity, the blame lies with counsel and not the Court.
KRS 620.100(3) states that "[t]he Kentucky Rules of Civil Procedure shall apply" and KRS 620.120 states that any criminal "charges shall be tried separately from the adjudicatory hearing held pursuant to this chapter."
Additionally, the Parents' right to legal representation is not a constitutional right as it is in a criminal proceeding. And that right is a statute-based right only for the indigent parent. KRS 620.100(1)(b). The right to counsel of a non-indigent parent is neither constitutional nor statutory. Parsley v. Knuckles, 346 S.W.2d 1, 3 (Ky. 1961) ("There is nothing, however, in the common law that requires counsel in civil cases and any step toward that end must be made by the legislature.").
This Court is disappointed in the conduct of counsel for the Parents in this case. Indications of zealous legal representation are absent at critical stages of this case and this appeal. Although not a criminal action, there is nevertheless the prospect for punishment greater than any most parents can fathom - separation from one's own children. These parents were entitled to representation that satisfies the letter and spirit of the Kentucky Rules of Professional Conduct, perhaps not more so than in any other civil matter, but certainly not less so. We question whether they received it.
Mr. Burke, counsel for Father, also failed to appear before this Court at the November 19, 2015 oral argument, again, without excuse or explanation. When questioned by the Court regarding the extent of his representation, counsel for Mother (Mr. Denison) entered his appearance on behalf of Father at oral argument. --------
But shortcomings of counsel are just part of the perfect storm. Add to that the burden of a burgeoning family court docket that necessitates abbreviating hearings, even consequential hearings, as a matter of course. That same burden and the need to expedite family cases likely motivated the court's denial of the Commonwealth's own motion for a continuance. A heavy docket of expedited cases likely was also a motivating factor in the court's decision not to inquire, on the record at least, why the Parents' attorneys were absent.
In cases such as this, it is tempting to place a responsibility on the family court judge beyond avoidance of a substantial miscarriage of justice. But we cannot. If anything "seriously affected the 'fairness, integrity, [and] public reputation of the proceeding[,]'" Martin v. Commonwealth, 456 S.W.3d 1, 18 (Ky. 2015), it was the conduct of the attorneys, not the family court. While it was most certainly within the authority of the family court to grant the Commonwealth's motion to continue, or to do so sua sponte, or to allow more than two hours for the hearing, or to demand an explanation for the parents' counsels' tardiness, it was just as certainly not among the court's obligations.
In sum, parents who find themselves in cases such as this have a crucial need for fundamentally fair procedures. Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014) (citing Santosky v. Kramer, 455 U.S. 745, 754-55, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). However, we cannot find any error by the circuit court in this case "so fundamental as to threaten a defendant's entitlement to due process of law." McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012) (citations and internal quotation marks omitted).
For the foregoing reasons, we affirm.
NICKELL, JUDGE, CONCURS BY SEPARATE OPINION.
TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
NICKELL, JUDGE, CONCURRING. The trial court possessed broad discretion in controlling the disposition of this case and in determining whether to grant a continuance—or to extend its two-hour time limitation—after weighing and balancing competing interests. Rehm v. Clayton, 132 S.W.3d 864, 869 (Ky. 2004). Appellate courts review a trial court's denial of such motions under an abuse of discretion standard. Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2016). Under the particular facts presented, I cannot conclude the trial court abused its discretion, and pursuant to the majority's recitation of controlling law, I am compelled to concur. Even so, I write separately to evince my agreement with aspects of the dissenting opinion. Justice demands vigilance by counsel, but a court's reasonableness is key to fundamental fairness. Without doubt, counsel for both parents were dilatory, and the Commonwealth's request for a continuance of the adjudicatory hearing in the face of counsels' initial absences was sensible and civil.
However, in denying a continuance and by later refusing to expand its standard two-hour time limitation to accommodate one tardy counsel's admittedly untimely request for equal or additional time when the Commonwealth's case encroached into the second hour, the trial court appears to have imprudently placed judicial economy and penalizing counsel above preservation of parental rights. This is particularly true in light of far less prejudicial alternatives having been available for the trial court to address counsels' unexplained absences and dilatory motions, including issuance of show cause orders and sanctions, which would have preserved the parents' interests.
Thus, while I am convinced the trial court did not abuse its discretion, I believe it could have done more to "ensure the highest degree of fairness in both fact and appearance." Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464, 468 (Ky. 2005).
TAYLOR, JUDGE, DISSENTING. Respectfully, I dissent. Based upon the record on appeal in this case, I believe that Mother and Father's constitutional right to due process in the adjudicatory hearing has been violated. When the court called the case for hearing on the morning of November 26th at approximately 9:30 a.m., neither attorney representing Mother or Father was present in the courtroom. Apparently, there was no inquiry into why counsel, who were from Jefferson County, were not present initially when the hearing began. I believe the court should have immediately continued the hearing to the next available court date.
However, the court conducted the hearing without attorneys for the Mother and Father present at the beginning of the hearing, and then permitted the Commonwealth to utilize approximately one hour and twenty minutes of the two hour maximum time limit allowed for this proceeding. This effectively limited the opportunity of the Mother and Father to present their case to less than forty minutes. This in and of itself violated the statutory mandate of KRS 620.100(2), which provides that parents have a right to a full adjudicatory hearing at which they may confront and cross-examine all adverse witnesses and present evidence on their own behalf. The trial court clearly denied the parents a full adjudicatory hearing, in my opinion.
The fundamental requisite of due process under the United States Constitution is the opportunity to be heard. Goldberg v. Kelley, 397 U.S. 254, 267-69, 90 S. Ct. 1011, 1020, 25 L. Ed. 2d 287 (1970). The opportunity to be heard includes the opportunity for a party to confront adverse witnesses and present their arguments and evidence orally. Id.
In Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), the United States Supreme Court emphasized the fundamental nature of the liberty interest natural parents have in raising their child:
The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State . . . .Santosky, 455 U.S. at 753-54.
KRS Chapter 620 addresses the treatment of dependent, neglected and abused children. This Chapter is part of the Kentucky Unified Juvenile Code set out in KRS Chapters 600 to 645. One of the express legislative purposes for KRS Chapter 600 to 645 is set forth in 600.010(2)(g) that emphasizes the importance of due process for all parties in these proceedings:
It shall further be the policy of this Commonwealth to provide judicial procedures in which rights and interests of all parties, including the parents and victims, are recognized and all parties are assured prompt and fair hearings. Unless otherwise provided, such protections belong to the child individually and may not be waived by any other party.
In my opinion, the parents were not afforded a fair and full adjudicatory hearing which is required by both statutory and constitutional mandates cited as they have effectively been penalized by the tardiness of their attorneys.
While I do not condone any dilatory conduct by the attorneys that may have impeded the timely hearing of this case, their reasons for being tardy on the day of the hearing were not addressed by the Family Court. I believe there were less restrictive alternatives available to the court to address any issues in this regard. Upon continuing and rescheduling the adjudicatory hearing, the court could have also issued a show cause order to the parents' attorneys, requiring them to explain why they were late for the hearing which necessitated the continuance. The court, at its discretion, could have imposed sanctions, including attorney's fees and any additional costs incurred in the continuance upon the attorneys, including the expense associated with the Commonwealth's expert witness to attend the hearing, which apparently was a significant concern and basis for going forward initially on November 26th without the presence of the parents' attorneys.
Finally, I have serious concern with a two hour limitation being placed upon an adjudicatory hearing in advance in this type of proceeding, without knowing the number of witnesses involved, the evidence to be presented or how much testimony would be required from the parents and other witnesses to be called. While I totally understand and respect the necessity for a trial judge to control his/her docket and to maintain timely and orderly proceedings, KRS 620.100(2) does not set any time limits upon an adjudicatory hearing other than it be a full hearing, which I would interpret to be equivalent to a bench trial. Therein, parents or other persons exercising custodial control or supervision over the child have a right to confront and cross-examine all adverse witnesses and present evidence in support of their case.
The hearing in this case was "scheduled" at 8:15 a.m. in the morning, without a specific time certain set for the adjudicatory hearing to begin. Conceivably, the attorneys and parties could have shown up at 8:15 a.m. and not had their case heard until 2:00 p.m. in the afternoon. I am greatly troubled by this situation since Dependency, Neglect and Abuse proceedings under KRS Chapter 620 are a substantial component under the jurisdiction of the Family Court pursuant to KRS 23A.100. Our Family Courts were created and designed specifically to address cases involving families and children, without competing with criminal or other civil cases for judicial time. Family Courts should hear all family matters without the necessity of "cattle-call" type proceedings that existed in many circuit courts prior to the passage of the constitutional amendment establishing Family Courts in 2002.
While I recognize that the result might not change, nonetheless, I would reverse and remand this case for another adjudicatory hearing whereupon the parties should be given a full and fair opportunity to present their entire case, with attorneys present, and without prejudicial time constraints being placed upon the opportunity to be heard. Timothy Denison
Dennis C. Burke
Louisville, Kentuck ORAL ARGUMENT FOR
APPELLANTS: Timothy Denison
Louisville, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEES: Melanie Biggers
Carey Hendricks Aldridge
Elizabethtown, Kentucky