Opinion
2022-CA-0848-ME 2022-CA-0850-ME
03-03-2023
K.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; D.T., FATHER OF C.T.; E. R.; HARDIN COUNTY ATTOREY'S OFFICE; B.B., FATHER OF R.H.; AND R.H., A MINOR CHILD APPELLEES AND K.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; C.T., A MINOR CHILD; D.T., FATHER OF C.T.; E.R.; B.B., FATHER OF R.H.; R.H., A MINOR CHILD; AND HARDIN COUNTY ATTOREY'S OFFICE APPELLEES
BRIEFS FOR APPELLANT: David C. Perkins Hodgenville, Kentucky BRIEFS FOR APPELLEES COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND E.R.: Alison Blaiklock Leeanna Dowan Elizabethtown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT FAMILY COURT DIVISION HONORABLE DAWN LONNEMAN BLAIR, JUDGE ACTION NO. 22-J-00246-001, 22-J-00248-001
BRIEFS FOR APPELLANT:
David C. Perkins
Hodgenville, Kentucky
BRIEFS FOR APPELLEES COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND E.R.:
Alison Blaiklock
Leeanna Dowan
Elizabethtown, Kentucky
BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE:
K.H. appeals from two dispositional orders entered July 13, 2022, by the Hardin Circuit Court, Family Court Division, in dependency, neglect, and abuse (DNA) actions involving her two minor children, R.H. and C.T. We affirm.
Both cases below were heard together by the family court and dispositional orders were entered in each child's case on July 13, 2022. Separate appeals have been filed in each case and for judicial expediency, this Court is adjudicating the appeals together.
On or about April 3, 2022, K.H.'s boyfriend, E.R., was arrested for driving under the influence, endangering the welfare of a minor, and a booster seat violation. K.H.'s minor child, C.T., was in the vehicle with E.R. at the time of his arrest. K.H. was allowed to retrieve the child after E.R.'s arrest. Given this circumstance, the Cabinet for Health and Family Services (CHFS) made contact with K.H. on April 7, 2022, and implemented a safety plan for the children. The plan included, in relevant part, that E.R. would not reside with K.H. and the children when he was released from jail. The safety plan was in effect for twenty days.
E.R. is not the biological father of either of the minor children.
The petition stated both children were in the vehicle, but testimony at the adjudication hearing clarified that only C.T. was in the vehicle.
On or about May 20, 2022, E.R. was arrested again for public intoxication and endangering the welfare of a minor. K.H.'s other minor child, R.H., was with E.R. when he was arrested. In response, CHFS filed a DNA petition on May 27, 2022, and a temporary removal hearing was held on June 1, 2022. Both children were removed from K.H.'s care and placed in the temporary custody of their maternal grandparents.
The family court then conducted an adjudication hearing on June 22, 2022. CHFS worker Kaitlyn Troyer testified, in relevant part, that, based on her conversations with K.H., K.H. knew of E.R.'s substance abuse problem prior to entering into the relationship with him. K.H. also testified. At the hearing, K.H. admitted to knowing of E.R.'s substance abuse; that she had continued to allow him to reside in her home after his April 3, 2022, arrest; and had allowed E.R. to assume a caretaking role of her children. Although she insisted she was no longer in a relationship with E.R., she admitted to posting his bond, speaking with him at the jail after his second arrest, and putting money into his jail account. At the time of the hearing, K.H. was also pregnant with E.R.'s child. E.R. was present at the hearing, but did not testify due to his pending criminal cases. The family court entered orders adjudicating both children neglected or abused. The children remained in the custody of the maternal grandparents and K.H.'s visitation was at the discretion of CHFS. K.H. was not permitted to reside in the home with the children.
E.R. used heroin, methamphetamine, and marijuana.
A dispositional hearing was then held on July 13, 2022. Thereafter, the family court entered an order finding that K.H. had not completed her case plan and the children were to remain in the custody of their maternal grandparents. However, the stated goal remained to return the children to K.H.'s custody. The family court further ordered that K.H. "may return to home of grandparents, but no unsupervised contact or caretaking role of children." July 13, 2022, Disposition Order at 3. K.H. was also ordered to complete both a mental health assessment and protective parenting class. This appeal followed.
K.H.'s primary argument on appeal is that she was denied due process during the adjudication hearing because the family court "improperly aligned itself with the prosecution thus violating [K.H.'s] due process right[.]" K.H.'s Brief at 6. K.H. acknowledges her argument is unpreserved and requests palpable error review pursuant to Kentucky Rules of Civil Procedure ("CR") 61.02. "[T]he task of the appellate court in review under CR 61.02 is to determine if (1) the substantial rights of a party have been affected; (2) such action has resulted in a manifest injustice; and (3) such palpable error is the result of action taken by the court." Fraley v. Rice-Fraley, 313 S.W.3d 635, 641 (Ky. App. 2010) (citation omitted). We proceed accordingly.
"[A] disposition order, not an adjudication order, is the final and appealable order with regard to a decision of whether a child is dependent, neglected, or abused." J.E. v. Cabinet for Health and Family Services, 553 S.W.3d 850, 852 (Ky. App. 2018). K.H. also filed amended notices of appeal to include the adjudication orders from both cases entered June 23, 2022, which was not necessary in this case.
K.H.'s argument is essentially that the family court's examination of K.H. after she testified on both direct and cross-examination amounted to an interrogation that exhibited bias, lacked neutrality, and was not for purposes of clarification, but rather aided the Commonwealth's case. She asserts that had the family court not asked the questions it did, in the manner it did, "the outcome of the action may have been different[.]" K.H.'s Brief at 9. Accordingly, K.H. argues she was denied due process of law. For the reasons stated, we disagree.
Kentucky Rules of Evidence 614(b) states, in relevant part, that a "court may interrogate witnesses, whether called by itself or by a party." The Kentucky Supreme Court has clarified that this should be used with caution in jury trials to avoid any appearance of judicial bias or opinion on witness credibility. See Terry v. Commonwealth, 153 S.W.3d 794, 802-03 (Ky. 2005), superseded by statute on other grounds in Gaither v. Commonwealth, 521 S.W.3d 199, 206 (Ky. 2017). However, the underlying action in the case at bar did not involve a jury trial as this was an evidentiary hearing and the family court was the fact-finder. Even before the family court began its questioning of K.H., evidence in the form of testimony from Ms. Troyer and K.H. already established K.H. knew of E.R.'s substance abuse prior to allowing him to move into her home and assuming a caretaking role with her children. Compounding this issue was that K.H. allowed E.R. to assume an unsupervised caretaking role with R.H. just weeks after his arrest involving C.T. And, this caretaking role was allowed notwithstanding the Cabinet's safety plan that provided E.R. would not be permitted to return to K.H.'s home upon his release from incarceration. These facts support a finding of neglect or abuse and were established prior to the family court's questioning of K.H. While a court cannot assume the role of an advocate in an evidentiary hearing or trial, a family court is allowed a great deal of discretion in determining whether a child is dependent, neglected, or abused. Cabinet for Health &Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019). Based upon a thorough review of the entire record, we find no palpable error.
As noted, in conjunction with the family court's questioning of K.H., she argues that she was denied due process of law. Again, this issue was not preserved below and we have conducted palpable error review. Generally, due process requires notice and an opportunity to be heard. Storm v. Mullins, 199 S.W.3d 156, 162 (Ky. 2006) (citation omitted). K.H. had notice of the proceedings, was present with counsel, cross-examined witnesses, testified on her own behalf, and was afforded an opportunity to call her own witnesses.
Additionally, when the judge completed her questioning, she asked counsel for K.H. if he had additional questions to ask or additional witnesses, which he responded in the negative. K.H. was clearly given an opportunity to present rebuttal or other witness testimony to clarify or bolster her testimony and case, which she declined to do. Accordingly, we can find no due process of law violation in the adjudication proceeding.
For the foregoing reasons, the July 13, 2022, dispositional orders of the Hardin Circuit Court, Family Court Division, are affirmed.
ALL CONCUR.