Opinion
NO. 2013-CA-000122-ME
06-28-2013
K.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.C. APPELLEES
BRIEFS FOR APPELLANT: K. C., Pro se Florence, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Christopher S. Nordloh Covington, Kentucky BRIEF FOR APPELLEE, M.C.: Thomas R. Kerr Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NOS. 09-J-01491, 09-J-01492, & 09-J-01493
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. ACREE, CHIEF JUDGE: K.C. (Father) appeals, pro se, from the January 7, 2013 order of the Kenton Family Court disposing of the juvenile action in which the family court adjudged Father's children to be neglected and abused. Father has raised no argument justifying reversal of that order. Accordingly, we affirm.
In 2009, the Cabinet for Health and Family Services filed a juvenile dependency, neglect, and abuse petition against Father, alleging ongoing acts of violence and verbal abuse, including name-calling, blaming statements, and threats of violence, against his three daughters: Older Daughter, born 02/16/1994; Middle Daughter, born 08/06/2004; and Younger Daughter, born 06/04/2006. A temporary removal hearing was held and the children were placed in M.C.'s (Mother) custody. An adjudication hearing was initially held on February 4, 2010, and continued on April 15, 2011, and December 19, 2011.
Mother is Older Daughter's stepmother, and the biological mother of Middle Daughter and Younger Daughter.
Adjudication was prolonged, often at Father's request, due to pending criminal charges against him.
Older Daughter testified that Father physically and verbally abused her, and that she was afraid of Father. She stated Father called her lazy, fat, a whore, and a bitch. Older Daughter also testified that, on more than one occasion, Father slapped her face, and laid her across the bed and hit her with a belt, leaving bruises and marks. Older Daughter admitted she did not inform medical personnel that Father abused her. Older Daughter also testified she observed Father hit Middle Daughter with his hands, leaving bruises on Middle Daughter's side, and that Father yelled and screamed at both Middle Daughter and Younger Daughter. Finally, Older Daughter testified Father regularly hit, punched, and kicked her biological brother (Son).
Mother corroborated much of Older Daughter's testimony. Specifically, Mother testified she observed Father slap Older Daughter's face, hit her with a belt leaving welts and bruises, and call her fat and lazy. Mother also observed Father yell, spit, and curse at Son, pummel Son with his fists, push Son down the stairs, and hit Son in the stomach. Mother testified Father's acts of violence upset the younger children, and Mother attempted to shield them from Father. Mother admitted she never personally observed Father physically hit Middle or Younger Daughter. However, Mother testified Father had frequent anger outbursts, and would fly into a rage, shout, and scream at the younger children. Mother also claimed Father treated all three daughters like slaves and frequently ordered them around.
Similarly, Son testified he often argued with Father, and those arguments frequently turned violent. Son stated all three daughters were present on at least some of these occasions. Son also testified he observed Father spank Older Daughter with a belt.
Father denied beating or hitting his children, and denied calling Older Daughter names. Father admitted that he spanked his children with a belt, but claimed he did not leave bruises or marks. Father also testified he did not hit or beat Son, but did restrain Son on occasion and appropriately disciplined him when needed. Father denied having a "horrible temper" but admitted he was capable of yelling and screaming.
After hearing the evidence, by order entered on February 23, 2012, the family court found Older Daughter was an abused child, and the two younger daughters were neglected children. Disposition was held on April 19, 2012. The family court ordered Father to, inter alia, complete a psychological and parenting assessment, and seek counseling. The family court also ordered that the children remain in Mother's custody, but granted Father supervised visitation with the younger children.
At the time the dependency, neglect, and abuse petition was filed, Son was over eighteen years of age and therefore not included in the petition.
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Displeased with the family judge, Father filed a motion on August 7, 2012, requesting that the family judge recuse herself from any further participation in the case due to her supposed bias and lack of impartiality. The family judge granted Father's motion, citing Kentucky Revised Statute(s) (KRS) 26A.015(2)(e), and a special judge was appointed to handle any remaining post-adjudication issues. Father then moved for a status hearing. By order entered January 7, 2013, the parties agreed to custody and a visitation schedule, and the special judge declared the juvenile matter closed. Father appealed.
"The trial court has broad discretion in determining whether a child fits within the abused or neglected category[.]" C.R.G. v. Cabinet for Health and Family Servs., 297 S.W.3d 914, 916 (Ky. App. 2009). "The 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." KRS 620.100(3). "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01. Legal questions are reviewed de novo. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
On appeal, Father asserts three grounds which he claims merit reversal. First, Father urges this Court to overturn all of the family judge's rulings, including the adjudication and disposition orders, due to the family judge's decision to recuse from the case. Second, Father asks this Court to express an opinion on how a trial court should respond if a witness is blatantly perjuring him- or herself. And third, Father asserts he received ineffective assistance of counsel. We will consider each argument in turn.
Father construes the family judge's decision to grant his request for recusal as an admission by the family judge that she was indeed biased, partial, and unfair. Father asserts the family judge's bias deprived him of an impartial, neutral decision maker, trampled his right to a fair trial and, in turn, impeded his right to due process. Father further argues that the family judge's bias permeated the family judge's rulings and, because of this, requests that this Court overturn all rulings issued by the family judge prior to recusal. We decline to do so.
KRS 26A.015(2) states that "[a]ny justice or judge of the Court of Justice . . . shall disqualify himself in any proceeding: (e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(e) (emphasis added). This statute is couched in terms of possibilities, not certainties. Stated differently, it is the mere appearance of partiality or bias that sometimes leads to recusal. The fact that a judge recuses him- or herself pursuant to KRS 26A.015(2)(e) does not indicate the judge was certainly biased, unfair, or partial. Significantly, in this case, the family judge noted she was inclined to grant Father's recusal motion not because she agreed with his allegations, but to dispel Father's belief both that he had been treated unfairly and that the family judge was biased against him. The family judge's decision to recuse is simply not grounds to overturn her prior orders.
Next, Father believes the testimony offered by Older Daughter, Mother, and Son was false and contradictory, and thus amounted to perjury. On this basis, Father asks "this [C]ourt to render an opinion on how the [trial] court should respond when the testimony proffered is so outrageously contradictory and incredible that no person would find any of the testimony credible." (Appellant's Brief, page 10). Father then poses two hypothetical questions: "Would a reasonable judge halt the proceedings?" and "Should the prosecutor make a motion to dismiss the proceedings?"
Father is essentially seeking an advisory opinion on this issue, which we decline to offer. See Black's Law Dictionary OPINION (9th ed. 2009) (defining an "advisory opinion" as "[a] nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose"). Importantly, Father does not ask us to overturn the family court's adjudication order on perjury grounds, but instead requests that we instruct the family court as to the proper procedural steps when it is confronted in the future with "blatant" perjured testimony. Any advice by this Court on this issue would be entirely advisory in nature. And "this Court does not render purely advisory opinions[.]" Kentucky High School Athletic Ass'n v. Davis, 77 S.W.3d 596, 599 (Ky. App. 2002). We refuse Father's request.
Finally, Father claims he was the victim of ineffective assistance of counsel. Father avers his trial counsel failed to zealously advocate on Father's behalf. In support, Father asserts trial counsel: (i) failed to expose the family judge's "extreme bias" against Father; (ii) failed to move for the family judge's recusal; and (iii) failed to recognize the "obviously contradictory testimony" offered by the Cabinet's witnesses during the adjudication hearing. Father claims that, because he was denied effective representation, he was also denied due process and therefore entitled to reversal of the adjudication order. We disagree.
In Z.T. v. M.T., 258 S.W.3d 31 (Ky. App. 2008), this Court recognized an indigent parent's statutory right to counsel in dependency, neglect, and abuse cases. Id. at 36. A parent's right to counsel logically embraces the right to effective counsel. Id. The burden on a parent claiming ineffective assistance of counsel is an onerous one. Id. at 37. We will only grant a parent's claim of ineffective representation "if counsel's errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied." Id. at 36-37.
In this case, the record demonstrates Father's counsel is a veteran attorney who competently represented Father at every stage of the family court proceedings. Counsel filed several motions to safeguard Father's right against self-incrimination in light of pending criminal charges; requested crucial discovery; and fought to ensure Father received adequate visitation with his children. During the adjudication hearing, Father's counsel zealously cross-examined the Cabinet's witnesses to expose inconsistencies and potential lies and, in turn, malign their credibility; called numerous witnesses on Father's behalf to refute the neglect and abuse allegations and espouse Father's good character; objected to potentially impermissible evidence; and attempted overall to ensure Father received a fair trial. Without question, Father had a meaningful opportunity to be heard and fully present his case to the family court. Counsel's lack of success in ultimately securing a ruling in Father's favor does not, in and of itself, amount to ineffective representation. In sum, we find Father failed to carry his burden of demonstrating that his counsel's assistance was at all deficient, much less that it was so deficient that it resulted in a fundamentally unfair proceeding or a deprivation of due process. On this issue, we find no error.
For the foregoing reasons, we affirm the January 7, 2013 order of the Kenton Family Court.
ALL CONCUR. BRIEFS FOR APPELLANT: K. C., Pro se
Florence, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY:
Christopher S. Nordloh
Covington, Kentucky
BRIEF FOR APPELLEE, M.C.: Thomas R. Kerr
Covington, Kentucky