Opinion
NO. 2013-CA-001518-ME NO. 2013-CA-001519-ME NO. 2013-CA-001520-ME
07-25-2014
J.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, and B.M.J., A MINOR CHILD. APPELLEES J.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; and Z.C.M., A MINOR CHILD APPELLEES J.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALT OF KENTUCKY; and D.F.B., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Mark T. Smith Bowling Green, Kentucky NO BRIEF FOR APPELLEES
NOT TO BE PUBLISHED APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 13-J-00028
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 13-J-00029
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 13-J-00030
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. DIXON, JUDGE: J.M. appeals an order of the Allen Circuit Court finding him responsible for the neglect of the minors Z.C.M., B.J. and D.B., and prohibiting him from engaging in acts of corporal punishment. The circuit court's findings were not clearly erroneous and, therefore, we affirm.
This action arose from a juvenile dependency, neglect and abuse petition filed by Holly Francis, a social services clinician for the Cabinet for Health and Family Services. Francis's petition indicated that she substantiated neglect of the three children. The determination resulted from an altercation between J.M. and his son, Z.C.M. Specifically, the petition alleged:
[J.M.] became violent with [Z.C.M.], slamming him into the floor, causing [Z.C.M.] to fall on pots and pans. [Z.C.M.] reports having back pain and crying as a result. [J.M.] then took his belt off and began hitting [Z.C.M.] on the legs with the belt. Other siblings report witnessing the event. [A.T.], biological mother, came into the kitchen and saw what was taking place but failed to step in and protect [Z.C.M.]. [Z.C.M.] reports physical violence between [J.M.] and his mother, [A.T.].A temporary removal hearing occurred on March 6, 2013, and the family court determined that the children should stay in the home with their mother, but J.M. was prohibited from engaging in acts of corporal punishment.
On July 3, 2013, the family court held an adjudication hearing. During the hearing, the family court heard testimony from A.T., Francis, and five minors: D.B. (age 11), B.J. (age 13), A.D. (age 16), C.J. (age 14), and Z.C.M. (age 9). The five minors were questioned by the judge in isolation while the parties and their attorneys watched via closed circuit T.V. Each of the minors indicated that they were not told what to say during the hearing, except to the extent they were told to be honest.
When questioned by the court, Z.C.M.'s story changed dramatically from his report to Francis. Unlike his report to Francis, Z.C.M. indicated that J.M. accidentally pushed him into the pots and pans and did not strike him with the belt. B.J., Z.C.M's half-brother who was also in the home during the incident, conveyed a similar story when questioned by the court. D.B., Z.C.M.'s half-sister, told yet another version indicating that she saw J.M. jerk Z.C.M. in anger causing him to fall onto the pots and pans and observed J.M. strike the chair on which Z.C.M. was sitting, but did not see him strike Z.C.M. D.B. also told the court that J.M. had struck her with a cereal box on a previous occasion. Z.C.M.'s half-brother C.J., was not there on the night of the incident, but informed the court that Z.C.M. told him that J.M. had pushed him into the pots and pans and hit him with the belt. C.J. also indicated that two years prior, J.M. choked him and he moved to live with his father. Finally, Z.C.M.'s half-sister A.D. testified that she was not there the night of the incident and was unaware of J.M. ever hitting Z.C.M.
Francis testified regarding the allegations contained in her petition and indicated that she could not substantiate physical abuse, but that she had substantiated neglect and risk of harm. Francis explained that while Z.C.M.'s story had changed substantially, D.B.'s statement to the court was not inconsistent with what she previously reported to Francis. Further, Z.C.M. told Francis that D.B. witnessed the event, but that B.J. had not. A.T. denied the incident when confronted by Francis and, at the hearing, A.T. claimed that J.M. was going to spank Z.C.M, but that she had stopped him and that D.B. had not witnessed the incident.
The court noted that it was very difficult to discern which story was true, but recognized that there was a motivation to minimize the testimony. As a result, the court found the original report by Francis to be the most credible. The court also noted that all of the children knew, without prompting, why they were there. Further, the court stated that it was concerned that J.M. acted out in anger towards such a small child. Ultimately, the court's written order stated that "[J.M.] engaged in conduct as to make [Z.C.M.] fall into pots [and] pans" and "struck [Z.C.M.] with a belt." The court declined to remove the children from the home, but once again prohibited corporal punishment by J.M.
J.M. then filed a motion to alter, amend or vacate pursuant to Kentucky Rule of Civil Procedure (CR) 52.02 asserting that the court's determination that A.T. did not neglect the children was inconsistent with the finding that J.M. did neglect the children. As a result, J.M. asked the court to vacate their order and enter a new order that was consistent. Further, the motion asked the family court to take additional evidence and specifically, to question Z.C.M. regarding why he changed his story. The court denied the motion and this appeal followed.
J.M. also makes this assertion on appeal. However, we are without jurisdiction to consider A.T.'s case, and have no record of the proceedings against her.
On appeal, J.M. asserts that there was insufficient evidence to establish neglect and that his due process rights were violated because he did not get the chance to cross-examine the children. Unfortunately, the Cabinet did not file a responsive brief. While we are permitted to impose penalties via Kentucky Rule of Civil Procedure (CR) 76.12(8)(c), because this case concerns the welfare of children, we decline to do so.
First, we turn to the issue of confrontation. J.M. asserts that his right to confront witnesses against him was denied by the family court. However, our review of the record reveals that this issue is unpreserved. The parties agreed to allow the court to question the children in chambers and offered no objection to the manner of questioning. Furthermore, "confrontation and cross-examination are not rights universally applicable to civil proceedings." Cabinet for Health & Family Servs. v. A.G.G., 190 S.W.3d 338, 346 (Ky. 2006). In fact, KRS 625.080 (3) specifically contemplates private interviews of children in involuntary termination cases. Thus, we turn to the sufficiency of the evidence.
We may "set aside the trial court's findings when those findings are clearly erroneous." Vinson v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004). "To determine whether findings are clearly erroneous, reviewing courts must focus on whether those findings are supported by substantial evidence." Id.
"[S]ubstantial evidence" is [e]vidence that a reasonable mind would accept as adequate to support a conclusion and 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. 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.Id., quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2004).
No parental rights were terminated in this case. Thus, our sole inquiry is whether or not there was sufficient evidence to establish abuse and neglect as it is defined by Kentucky Revised Statute (KRS) 600.020(1).
"Abused or neglected child' means a child whose health and welfare is harmed or threatened with harm when: . . . [h]is parent, guardian, person in 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; [or] 2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to this child by other than accidental means . . . .KRS 600.020(1)(a). An actual incident of physical abuse is not required; "KRS 600.020(1)(a)(2) permits a finding by a court of neglect or abuse where the risk of abuse exists." C.J.M. v. Cabinet for Health & Family Services, 389 S.W.3d 155, 161 (Ky. App. 2012). The court's statements during the hearing indicate concern for the safety of the children as a result of J.M.'s actions, in particular the anger displayed and the young age of some the children. The court specifically found Z.C.M.'s initial report to be the most credible and we must give due regard to its determination.
The finding of neglect and risk of harm was supported by Francis's testimony regarding the child's original account of the incident. Further, C.J.'s testimony established that Z.C.M. conveyed the same story to him. Also, D.B.'s version of events intimated that J.M. acted in anger towards Z.C.M. causing him to fall. It is immaterial that conflicting evidence was submitted indicating the fall was an accident because there was substantial evidence suggesting that J.M. acted out in anger toward Z.C.M. in a manner that put him in risk of danger. That risk was sufficient to find neglect under the statute.
For the foregoing reasons, the decision of the Allen Circuit Court is affirmed.
ACREE, CHIEF JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Mark T. Smith
Bowling Green, Kentucky
NO BRIEF FOR APPELLEES