Opinion
NO. 2019-CA-001170-ME NO. 2019-CA-001171-ME
01-24-2020
J.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.C., A MINOR CHILD APPELLEES AND J.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.M., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Joseph T. Ireland Covington, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Christopher S. Nordloh Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 19-J-00345-001 APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 18-J-00365-003 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. DIXON, JUDGE: J.H. is the biological mother of K.C. and grandmother of K.M. J.H. challenges the orders finding K.C. and K.M. neglected and/or abused, entered by the Kenton 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
Prior to these actions, both K.C. and K.M. were in J.H.'s care.
On or about April 17, 2019, while driving with K.M. as a passenger, J.H. ran out of gas on the highway and called AAA. After receiving a small amount of gas and a jump for her car, J.H. refused to pay for the services. She drove to a nearby gas station, as did the AAA driver. The AAA driver saw a law enforcement officer in the vicinity and flagged him.
J.H. was belligerent toward the AAA driver and the law enforcement officer. The officer arrested J.H. for her disorderly conduct and then smelled alcohol on her breath. The officer did not administer field sobriety tests because J.H. was already handcuffed when he smelled the alcohol on J.H.'s breath. The officer ultimately charged J.H. with wanton endangerment, theft of services, disorderly conduct, and alcohol intoxication in a public place.
Following J.H.'s release from custody, she was administered a drug and alcohol screen. The screen tested positive for Oxycodone, which J.H. was prescribed for pain, and high levels of alcohol, although J.H. denied drinking any alcohol within the day—or more—prior.
Based on the events brought to light from J.H.'s arrest, the Cabinet for Health and Family Services ("CHFS") filed a DNA petition on behalf of K.C. and a DNA petition with emergency custody order affidavit on behalf of K.M.
At the disposition hearing, J.H. testified on two different occasions that K.C. had never seen her intoxicated. Less than an hour later, however, J.H. stipulated that K.C. had seen her intoxicated at least once in the past six months.
J.H. and her arresting law enforcement officer both testified that another law enforcement officer encountered J.H. when she was on the side of the highway after running out of gas. J.H. testified that the officer did not offer her assistance because he could not transport K.M. since the back seat of his vehicle had no seatbelts. J.H.'s arresting officer testified that the other officer offered J.H. assistance, but it was refused.
J.H. called her mother as a witness. Her mother testified that she had watched K.M. for J.H. prior to her arrest. J.H.'s mother testified that when J.H. came to pick up K.M., she did not appear to be intoxicated.
During the testimony of the CHFS caseworker who filed the DNA petitions, the drug screen was admitted into evidence. The caseworker also expressed his concern that J.H. was abusing alcohol and/or drugs based upon the results of the screen.
At the end of the disposition hearing, the trial court voiced its concern for the safety of K.M. because the events on or about April 17, 2019, clearly placed her at risk and justified a finding of neglect and/or abuse. The trial court further stated concern for the very high levels of alcohol demonstrated by J.H.'s screen following her arrest, which coupled with K.C. seeing J.H. intoxicated, justified a finding of neglect and/or abuse as to both K.C. and K.M.
On May 17, 2019, the children were deemed neglected and/or abused. On July 2, 2019, the trial court ordered K.M to be committed, or to remain committed, to CHFS. On July 12, 2019, the trial court found the other case concluded with joint custody where K.C. would live with his father, R.C. These appeals followed.
One of K.M.'s parents was incarcerated and the other was determined not to be a suitable placement option.
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 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." The same rule also requires each argument to contain "ample supportive references to the record and citations of authority pertinent to each issue of law[.]" Id. J.H.'s briefs contain no statement of preservation for any issue raised.
Kentucky Rules of Civil Procedure.
J.H.'s statement of the case in her briefs contains many references to the record as required by CR 76.12(4)(c)(iv). However, those references do not link the facts to the arguments and applicable case law, nor do they tell us where the trial court was given the opportunity to correct the errors of which she now complains. This is 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) (citations 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 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. The rules are "lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated." Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977)).
LEGAL ANALYSIS
KRS 620.100(3) provides, "[t]he burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." Additionally, "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). "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). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934). With these standards in mind, we turn to the case at bar.
Kentucky Revised Statutes.
On appeal, J.H. first argues that the trial court erred in allowing the drug and alcohol screen to be admitted into evidence and in allowing the CHFS caseworker to testify about his interpretation of the results. The standard of review concerning a trial court's evidentiary rulings is for abuse of discretion. Tumey v. Richardson, 437 S.W.2d 201, 205 (Ky. 1969). "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles." Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013) (citation omitted).
J.H. quotes from Commonwealth v. Wirth, 936 S.W.2d 78 (Ky. 1996):
It is generally held that the prosecution has the burden of proving tests such as the breathalyzer were correctly administered. At a minimum this proof must show that the operator was properly trained and certified to operate the machine and that the machine was in proper working order and that the test was administered according to standard operating procedures.However, J.H. omits from her citation that the above-quoted portion is a quote from Owens v. Commonwealth, 487 S.W.2d 897 (Ky. 1972), which was overruled by Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 2003). Moreover, the Wirth court ultimately determined:
The only additional requirements are found in KRS 189A.103(3)(a), KRS 189A.103(4), and 500 KAR 8:020(2), which may be satisfied by means of business or public records showing compliance with the additional
requirements. Provided the documentary evidence may be properly admitted, it is unnecessary to produce the testimony of the technician who serviced and calibrated the machine.Wirth, 936 S.W.2d at 82. Although the above-cited statutes pertain to breathalyzer tests administered by the Department of State Police for charges of driving under the influence, J.H. was not charged with driving under the influence, nor was the drug and alcohol screen administered by the Department of State Police. Therefore, in the instant case, it was sufficient that the drug screen satisfied the business records exception to the hearsay rule. See KRE 801; KRE 803(6). These records clearly fall within the business records exception to the hearsay rule because they were accompanied by an affidavit from the records custodian that complies with KRE 803(6). Thus, the trial court did not abuse its discretion in admitting these records into evidence.
Kentucky Administrative Regulations.
Kentucky Rules of Evidence. --------
J.H. alleges that the trial court erred when it allowed the CHFS caseworker to interpret the drug and alcohol screen results. J.H. contends that the caseworker was not an expert as contemplated by KRE 702 and that the trial court's allowance of this testimony was an abuse of discretion. However, the caseworker was a fact witness, and his testimony was admissible, even if he is not considered an expert witness. Therefore, any error in considering the caseworker's testimony as an expert witness, as opposed to simply a fact witness, is harmless.
Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted). It is the trial court's sole authority to judge the credibility of witnesses and weigh evidence. Id. The trial court's decision to hear the caseworker's testimony pertaining to the drug and alcohol screen results was supported by substantial evidence—the screen itself, which also speaks for itself. We find no reversible error in this decision.
J.H. next argues that the Commonwealth failed to demonstrate a pattern of conduct that rendered J.H. incapable of caring for the immediate needs of the children. KRS 600.020, in pertinent part, provides:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005[.]
The trial court found both K.M. and K.C. to be neglected and/or abused. The trial court found that K.C. was neglected and/or abused under KRS 600.020(1)(a)3. The trial court did not specifically list which provision(s) it relied upon in determining that K.M. was abused and/or neglected; however, the record supports such a finding under both KRS 600.020(1)(a)2 and KRS 600.020(1)(a)3.
J.H. argues that the isolated incident of her arrest is insufficient to establish a "pattern of conduct" as contemplated by KRS 600.020(1)(a)3. However, it is clear that the trial court considered J.H.'s arrest in tandem with J.H.'s stipulation that K.C. had seen her intoxicated at least once in the preceding six months; the fact that J.H. was using Oxycodone while at the same time consuming large amounts of alcohol, as evidenced by the drug screen after her release from custody; and evidence that J.H.'s behavior under the influence of those substances caused her to run out of gas on the highway while endangering K.M. as her passenger, refuse to pay for services rendered to her by AAA, and act belligerently toward the AAA driver and a law enforcement official. This constitutes substantial evidence supporting the trial court's finding of abuse and/or neglect to both K.M. and K.C. Therefore, the trial court did not clearly err in its decisions.
J.H.'s final argument is essentially a repeat of her prior argument. She contends that being arrested in and of itself does not constitute neglect. However, in this case, as previously discussed, J.H.'s arrest was not the sole piece of evidence supporting the findings of abuse and/or neglect. J.H. stipulated that K.C. had seen her intoxicated at least once in the prior six months; J.H. used Oxycodone at the same time as consuming large amounts of alcohol, as evidenced by the drug screen after her release from custody; and while under the influence of those substances, J.H. ran out of gas on the highway endangering K.M. as her passenger, refused to pay for services rendered to her by AAA, and acted belligerently toward the AAA driver and a law enforcement official. This constitutes substantial evidence supporting the trial court's finding of abuse and/or neglect to both K.M. and K.C.
J.H. points to the testimony of her mother presented at the disposition hearing that when J.H. picked up K.M. from her house that night, J.H. did not appear to be intoxicated. J.H. also points to the fact she was not arrested for being intoxicated by the other law enforcement officer who spoke with her when she ran out of gas. Nevertheless, as previously mentioned, substantial evidence does not mean uncontroverted evidence. Rowland, 70 S.W.2d at 9. Thus, because the trial court's findings were supported by substantial evidence, the trial court did not err in its decisions.
Therefore, and for the forgoing reasons, the orders and judgments entered by the Kenton Circuit Court are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Joseph T. Ireland
Covington, Kentucky BRIEFS FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Christopher S. Nordloh
Covington, Kentucky