Opinion
2021-CA-1492-ME 2021-CA-1496-MR
04-14-2023
K.M.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND Z.J.D.B., A MINOR APPELLEES AND K.M.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND Z.J.D.B., A MINOR APPELLEES
BRIEFS FOR APPELLANT K.M.S., pro se Nicholasville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE FAMILY COURT HONORABLE JEFF C. MOSS, JUDGE ACTION NO. 21-J-00196-001, 21-CI-00568
BRIEFS FOR APPELLANT
K.M.S., pro se
Nicholasville, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY:
Leslie M. Laupp
Covington, Kentucky
BEFORE: ECKERLE, KAREM, AND MCNEILL, JUDGES.
OPINION
MCNEILL, JUDGE:
In appeal No. 2021-CA-1492-ME, K.M.S. (“Mother”) appeals from a juvenile dependency, neglect, or abuse (“DNA”) proceeding. Her overarching argument is that the Jessamine Family Court erred in determining she neglected her son, Z.J.D.B. (“Child”). Upon review, we affirm. In appeal No. 2021-CA-1496-MR, Mother also appeals the Jessamine Family Court's decision to deny her petition for immediate custody of Child. For the reasons discussed below, we dismiss this additional appeal.
I. FACTUAL AND PROCEDURAL OVERVIEW
Mother birthed Child in Fayette County on May 17, 2021, at Central Baptist Hospital. On May 19, 2021, the Cabinet for Health and Family Services ("Cabinet") filed a DNA petition against Mother in Fayette Family Court in action No. 21-J-00373-001. Its petition alleged concerns with Mother's behavior shortly after giving birth to Child at the hospital, as well as her history of mental health issues and the fact that the Cabinet had previously removed two of her other children from her care. An emergency custody order ("ECO") was granted by the family court that same day and Child was placed in the Cabinet's temporary custody.
On May 24, 2021, the family held a temporary removal hearing and found probable cause to continue the Cabinet's temporary custody of Child based upon the allegations of the petition. On May 26, 2021, upon Mother's motion, the family court scheduled a full evidentiary hearing for the adjudication proceeding. The family court determined the hearing would take place on August 17, 2021. Cognizant that this hearing date exceeded what was generally permitted by KRS 620.090(5), the family court stated in its scheduling order:
Kentucky Revised Statute.
Mother request [sic] full hearing. Due to court calendar and need for a full evidentiary hearing with witnesses court finds there are sufficient grounds to waive the 45 day rule.
Mother was unable or unwilling to provide name of potential father, or any explanation as to why she had no even potential names for a father for the child. Court very concerned about mother's erratic behavior and statements in court and given the allegations and alleged behaviors in the hospital the Court has concerns as to whether this a [sic] mental health case, substance abuse case or functioning case. Therefore Court Order's CMC for all parties to review the medical records and
drug screen results to determine whether [Cabinet] wants to proceed as Neglect case or Dependency Case.
Given the mother's erratic behavior the concerns which lead [sic] to removal are still present and therefore it is in the child's best interest to remain in the T.C. of CHFS pending hearing.
Case management conference.
On June 3, 2021, Mother filed a "verified motion to return custody to mother and dismiss the petition." She argued the Cabinet lacked grounds for initiating the DNA proceedings and taking custody of her child, and essentially challenged the sufficiency of the Cabinet's evidence. On June 18, 2021, the family court entered an order denying her motion, finding "reasonable grounds to go forward to an adjudication hearing[.]" It also denied her subsequent motion to reconsider. On July 9, 2021, the Cabinet then filed an amended petition with additional details regarding Mother's prior history with the Cabinet, as well as her behaviors in the hospital that ultimately caused the Cabinet to initiate the DNA action.
The adjudication hearing was later rescheduled and held over the course of two days, August 13, 2021, and August 30, 2021. There, the family court took testimony from the Cabinet's investigating social worker; Mother; one of Mother's neighbors; and several employees of Central Baptist Hospital with knowledge of the events that led to the Cabinet's DNA petition. At the conclusion of the hearing, the family court found that Child was at risk of neglect pursuant to KRS 600.020(1)(a)2. The family court also ordered Child's continued removal and placement in the Cabinet's temporary custody pending disposition.
The family court continued the confidential adjudication hearing to August 30, 2021, because, while a witness was testifying on August 13, 2021, a cell phone in Mother's backpack began to ring, which led the court to discover two recording devices in Mother's backpack that were broadcasting the hearing to the internet.
When the adjudication hearing concluded, Mother was residing in Jessamine County. Considering that, and upon Mother's motion, the case was transferred to Jessamine Family Court for the disposition hearing under action No. 21-J-00196. Before the Jessamine Family Court scheduled the disposition hearing, however, Mother moved the Jessamine Family Court to vacate the Fayette Family Court's finding of neglect or to amend it to a finding of dependency, and in either event to return Child to her custody. On September 28, 2021, the Jessamine Family Court denied her motion, and scheduled the disposition hearing for October 21, 2021.
On or about October 7, 2021, Mother then initiated an original action in Jessamine Family Court (action No. 21-CI-00568) by filing a petition for immediate entitlement. See KRS 620.110. She also moved to continue the disposition hearing in No. 21-J-00196 until her petition was heard. The family court held a hearing on Mother's petition on November 15, 2021. In lieu of testimony, Mother submitted a certified copy of the Fayette Family Court juvenile record, as well as police body camera footage depicting part of what transpired during Child's removal from Mother at the hospital. Mother also requested the family court reconsider the testimony adduced at the Fayette Family Court's adjudication hearing. On November 24, 2021, the family court entered a detailed order addressing Mother's arguments and denying her petition.
On December 2, 2021, the Cabinet filed its dispositional report, which recommended "return to parent" as the permanency goal, but further recommended committing Child to the Cabinet's custody because the Cabinet could not ascertain whether the risk of harm that had prompted its DNA petition had been reduced -due in large part to Mother's continued unwillingness to negotiate a case plan, permit an assessment of her mental health, or otherwise engage in services. During the disposition hearing that same day, the Cabinet reiterated its concerns; and the family court, deeming the Cabinet's concerns well-founded, adopted the Cabinet's recommendations as consistent with Child's best interests. On December 15, 2021, Mother filed a timely notice of appeal of the family's court's (1) denial of her petition for immediate entitlement (No. 2021-CA-1496-MR); and (2) its adjudication and disposition of her DNA proceeding (No. 2021-CA-1492-ME).
II. APPEAL NO. 2021-CA-1496-MR
We begin our review of this consolidated matter by turning first to Mother's appeal regarding the family court's denial of her petition for immediate entitlement. It must be dismissed, and for two reasons. First, it is moot. To explain,
Under its plain terms, KRS 620.110 concerns relief from a temporary order of the district court. "The clear object of the statute is to permit parents to seek relief from a temporary order." C.K. v. Cabinet for Health and Family Services, 529 S.W.3d 786, 789 (Ky. App. 2017). The statutory mechanism is necessary because a temporary custody order is interlocutory and therefore cannot be reviewed under an ordinary appellate process. B.D. v. Cabinet for Health and Family Services, 426 S.W.3d 621, 622 (Ky. App. 2014). Once a temporary custody order is superseded by a final and appealable order of the court, KRS 620.110 is of no utility. An aggrieved party then has a right to a direct appeal. In dependency, neglect, and abuse (DNA) cases, the disposition order is the final order from which an appeal may be taken. J.E. v. Cabinet for Health and Family Services, 553 S.W.3d 850, 852 (Ky. App. 2018).Anderson v. Cabinet for Health and Family Services, 643 S.W.3d 109, 112 (Ky. App. 2022).
Mother's petition for immediate entitlement only related to the temporary custody order. As noted, her petition was denied on November 24, 2021. Her subsequent appeal of the family court's order denying her petition was then mooted on December 2, 2021, when the family court entered its disposition order - a final and appealable order that related to the underlying DNA action and custody decisions made as part of that action, which superseded the temporary custody order. Id. Any alleged procedural irregularities that occurred during and as part of the underlying DNA action must therefore be addressed in Mother's direct appeal of her DNA action, not here. Id. at 114.
The second reason the instant appeal must be dismissed is because, in substance, it relates to nothing the Jessamine Family Court ever adjudicated. Ostensibly, Mother predicates appeal No. 2021-CA-1496-MR upon the Jessamine Family Court's denial of her KRS 620.110 motion. However, the brief Mother filed in appeal No. 2021-CA-1496-MR is dedicated instead to the procedural history of, and various arguments relating to, a 42 United States Code ("U.S.C.") § 1983 civil rights claim for monetary damages that Mother filed in Fayette Circuit Court against the Cabinet in action No. 22-CI-00198 - a case that is not before us. Accordingly, we DISMISS this appeal.
III. APPEAL NO. 2021-CA-1492-ME
As stated, appeal No. 2021-CA-1492-ME is mother's direct appeal of the underlying DNA proceedings. Mother primarily argues insufficient evidence supported the family court's ultimate finding that she neglected Child. However, Mother also raises procedural arguments that she previously asserted below in her petition for immediate custody. We will begin by addressing Mother's procedural arguments.
First, Mother asserts the Fayette Family Court did not provide her with what she believes was an adequate temporary removal hearing on May 24, 2021, e.g., within three days of the ECO, as required by KRS 620.080(1)(a); and that because the temporary removal hearing was inadequate, the ECO "dissolved automatically" on that date per KRS 620.090(3), entitling her to immediate custody of Child. Mother claims the hearing was inadequate because "[t]he court did not take any testimony from any witness(es)" at the hearing.
We disagree. It cannot be said that "no action [was] taken within seventy-two (72) hours" of the emergency custody order, per KRS 620.090(3), because Mother was provided a temporary removal hearing on May 24, 2021, and a written order was entered afterward. Specifically, during the Zoom teleconference hearing, the family court made an oral statement at two points that there was a finding of probable cause of neglect; and on one of those occasions, it explained the finding was based upon "what has been said." Mother attended that hearing. And later that day, following the hearing, the family court entered a written order stating, "Finding p/c based on petition." This was not "no action" within the meaning of the statute.
To the extent Mother believed the temporary removal hearing was inadequate, she also raised no objection to it until October 7, 2021 - the date she filed her petition for immediate custody. We agree with the family court's statement, set forth in its November 24, 2021 order denying Mother's petition, that
[b]y that time, a full adjudication had been held regarding the facts and allegations of this matter. [Mother] had full
opportunity to present any and all evidence she wished during the adjudication, a much more detailed and precise hearing than the temporary removal hearing she requests. On August 30, 2021, Judge Stein entered an order that the child be in the temporary custody of CHFS. This order makes any request for a temporary removal hearing moot.
Second, Mother argues she is entitled to immediate custody of Child because the Fayette Family Court's August 17, 2021 order did not contain findings, per KRS 620.090(5), capable of justifying its 45-day continuance of the adjudication hearing. We disagree. We cannot say the family court's findings regarding the necessity of extending the 45-day period - due to the need for a full hearing, the family court's ability to schedule one, and the family court's concerns with Mother's behaviors in the interim - were inadequate or failed to consider Child's best interests. Moreover, as with Mother's prior contention, she did not raise any objection to the continuance or the adequacy of the family court's findings in that respect until October 7, 2021, the date she filed her petition for immediate custody - over a month after the family court had already held the adjudication hearing and had entered its adjudication order. Appellate courts in Kentucky will not review alleged errors unless the issue was presented to the trial court. Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). Mother cannot be permitted to remain silent in the face of a known error, agree to a course of proceeding, and then claim error upon an unfavorable result.
Having addressed Mother's procedural arguments, we now proceed to her substantive argument and primary focus of her appeal. Mother contends the evidence adduced at the adjudication hearing did not support the family court's finding of neglect. She asserts the evidence could have at most only supported a finding of dependency.
Before proceeding with our analysis, it is necessary to explain our standard of review. As stated in C.L. v. Cabinet for Health and Family Services, 653 S.W.3d 599, 607-08 (Ky. App. 2022),
Juvenile DNA proceedings require distinct hearings for an adjudication and a disposition. Kentucky Revised Statutes (KRS) 620.100(2), (4). See KRS 610.080 (same but not specific to DNA proceedings). During the adjudication, the family court determines the truth or falsity of the allegations in the petition, with the Cabinet bearing the burden of proving dependency, abuse, or neglect by a preponderance of the evidence. KRS 620.100(3). Next comes the disposition in which the family court determines what action shall be taken. KRS 620.100(4). "[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).
Pursuant to KRS 600.020(1), a child can be defined as abused or neglected based on a variety of actions a parent does or does not take, including inflicting a physical or emotional injury upon a child (as in KRS 600.020(1)(a)1.) or creating a risk of physical or emotional injury upon a child (as in KRS 600.020(1)(a)2.)....
The family court has broad discretion to determine whether a child is abused or neglected. R. C. R. v. Commonwealth Cabinet for Human Res., 988 S.W.2d 36, 38 (Ky. App. 1998).
This Court's standard of review of a family court's award of child custody in a dependency, abuse and neglect action is limited to whether the factual findings of the lower court are clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01. Whether or not the findings are clearly erroneous depends on whether there is substantial evidence in the record to support them.L.D. v. J.H., 350 S.W.3d 828, 829-30 (Ky. App. 2011). "[T]he findings of the [family] court will not be disturbed unless there exists no substantial evidence in the record to support its findings." R. C. R., 988 S.W.2d at 38.
If the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions made by the finder of fact. The legal conclusions are reviewed de novo. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). If the factual findings are not clearly erroneous and the legal conclusions are correct, the only remaining question on appeal is whether the trial court abused its discretion in applying the law to the facts. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). Finally,
[s]ince the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If
the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed absent an abuse of discretion.
L.D., 350 S.W.3d at 830 (quoting B.C., 182 S.W.3d at 219).
With that said, we begin our analysis with a review of the evidence presented at the adjudication hearing. Gail Sevy, a neonatal assessment nurse employed by Central Baptist Hospital, testified first on behalf of the Commonwealth. Sevy testified she was on-duty at approximately 6:30 a.m. on May 17, 2021, when she received a call from another nurse who had just examined Child about an hour after his birth. The nurse related to Sevy that Child was "cold," and that his temperature would not register on the thermometer. Sevy testified that if Child's temperature was not registering, it meant that his body temperature was "less than 95 degrees." Pursuant to hospital practice and procedure, Sevy requested Child be brought to the nursery, which had a warmer with a monitor for his temperature.
However, Mother repeatedly refused to allow Child to leave her room, even after Sevy explained the situation to her. Because the nurses still could not get a temperature reading from Child, Sevy broke hospital protocol and instead placed Child in the Ohio warmer that was in Mother's hospital room. Sevy explained that the warmer in Mother's room, unlike the one in the nursery, did not have a monitor and thus required close supervision. Sevy testified she thereafter took Child's temperature several more times in five-minute intervals until Child's temperature finally came up to "within the normal limits, which would be between 97.6 and 99" degrees. Sevy also monitored Child's glucose levels (which she ultimately deemed were "okay") "because [Child] was cold-stressed." Sevy estimated that about half an hour had elapsed between when she received the initial call from the nurse, and when she felt comfortable with Child's temperature.
Sevy testified she and other nurses attempted to assess Child's temperature more than one way, including rectally, but that Child's temperature still would not register.
Sevy also testified that prior to her interaction with Mother, she placed an order for a social service consult. She explained it was standard hospital procedure to create such an order when a mother had inconsistent prenatal care, which was the case with Mother. Sevy explained that when a mother has inconsistent prenatal care, it could indicate the mother needed financial assistance or assistance with transportation, which were issues that the hospital's social worker could help resolve.
Next, Penny Payton testified. Payton is a registered nurse employed by Central Baptist, and she cared for Mother and Child on May 17, 2021. She testified that during her shift, 7:00 a.m. to 7:00 p.m., Mother initially refused to allow the technician to assess her vital signs and appeared suspicious of individuals who attempted to assess Child's vital signs. Payton also testified Mother had received an epidural and was advised to call for assistance the first time she wanted to get out of her bed because her legs would be unsteady. However, Mother did not contact Payton. When Mother was later discovered out of bed by the bathroom door of her room, Mother reported to Payton that she was fine, her legs were not numb, and that she required no assistance. Payton testified that after she left the room, Mother then asked the technician to help lift her legs back into the bed because her legs were, in fact, still numb.
Payton testified that toward the end of her shift, Mother requested that someone come to her room. Upon arriving at the room, Payton noticed Mother had ripped off Child's identification wrist bracelet. Mother informed Payton she had done so because she believed Child's bracelet was too tight, and that she wanted it to remain off. Mother also expressed concerns that Child's security anklet was too tight on his ankle, and wanted it loosened. Payton testified she reassured Mother that the anklet was not too tight; she demonstrated that the anklet was loose enough to move around on Child's ankle; and she explained to Mother that the anklet needed to be touching Child's skin for it to function properly with the security system, and that she was not going to loosen it. Payton also testified that despite Mother's request that the bracelet remain off of Child, the charge nurse improvised a fix for the ripped bracelet and placed it back onto Child's wrist a short while later that evening.
Payton testified Child had two security accessories: (1) an identification bracelet on his wrist; and (2) a security anklet on his ankle. To be clear, Payton testified the bracelet had been ripped off at this point, not the anklet. However, during her cross-examination of Payton, Mother conflated these two accessories, questioning Payton about how the anklet had been ripped off. In her appellate brief, Mother continues to conflate these accessories.
Payton also testified that at or about 11:16 a.m. that day, she made a referral for a consult with the hospital social worker. She did so for the same reasons as Sevy, and also because she had concerns regarding Mother's reactions to the care the nurses had attempted to provide for Child - particularly in relation to the incident involving Child's temperature, and Mother's unexplained refusal to allow Child to leave her side or go to the nursery for any reason. Also concerning to Payton, Mother had indicated she was residing in a shelter for victims of domestic violence; and Mother had also informed hospital staff that she did not have any other children when, to the contrary, Central Baptist possessed records indicating Mother had been pregnant and had delivered before.
The record provides little information about why Mother was residing in a domestic violence shelter, but Kamika Joyner, the Cabinet's investigative social worker, testified that Mother later provided additional details on this subject during a home visit of May 25, 2021. There, Mother indicated domestic violence had occurred between herself and her own mother.
During cross-examination, Payton added that hospital policy permitted patients to keep their babies with them in their rooms; that hospital staff would make accommodations for patients who wished to do so; and that most services, including what needed to be done to raise Child's temperature, could be performed in a patient's room. Payton also acknowledged that new mothers could have hormone changes that could cause them to be irritable, act irrationally, and to have mood swings.
Next, Nurse Lakynanna Miller testified. She cared for Mother and Child from 7:00 p.m. on May 17 through 7:00 a.m. on May 18, 2021. An hour or so after beginning her shift, she spoke with Mother about weighing Child at midnight in the nursery; whereupon Mother became upset and hostile and was adamant that Child remain in her room and be weighed in her room. Miller testified that while speaking with Mother, she received an alert about a new patient she needed to assess, and that Mother became upset with her when she explained she needed to leave the room to assist the new patient. Mother then instructed Miller to return at 11:00 p.m. and weigh Child in her room. Miller accommodated Mother and did so.
Next, Lora Pennington, the charge nurse for the night shift, testified. She explained that during her shift, at approximately 8:30 p.m. on May 17, 2021, Child's security anklet triggered the alarm system, so she went to Mother's room to check on Child. Pennington testified that when she entered the room, the lights were off, and Mother was in bed. As she made her way to the bed, Mother got up and said, "These nurses get on my damned nerves not turning on the lights." Mother then turned on a dim light in the room. At that point, Pennington noticed Child was laying on the bed with his head on a pillow and the covers pulled over him, and that Child's sock was tucked underneath the security anklet. Pennington fixed the anklet, untucking the sock, and explained to Mother that it needed to be touching the baby's skin to function properly with the security system.
Pennington also attempted to explain to Mother that, for safety reasons, Child needed to be in the crib when Mother was not holding him. Before finishing her statement, however, Mother cut her off, raised her voice, and said, "I already know what you're going to say, and I'm not sleeping. I need my rest. You need to leave." Pennington responded, "Okay. I just wanted to make sure that you understood." Mother then pointed at the white board in the room, which listed various rules pertaining to patients, and yelled, "It says no co-sleeping. I'm not cosleeping." Pennington replied that there was no need for Mother to speak that way. She testified Mother then "went off, started screaming and telling me to get out of her room," and that Mother walked to the doorway and screamed for someone to get Pennington out of her room.
Pennington testified that as she was leaving Mother's room, she reached to turn off the light the nurses used when entering and exiting. Mother then leaned in closely enough to cause Pennington to back away and told her to leave the lights alone. Pennington told Mother she was only trying to turn off the nurse's light. After Pennington left Mother's room and began walking away, Mother yelled down the hallway at her to stay out of her room. Mother then slammed the door shut. Pennington testified that after this incident, she notified the hospital's house manager and that the manager notified hospital security.
Testimony was also provided by Holly Rollins, a social worker employed by Central Baptist. Rollins explained she received two requests for a social work consultation with Mother on May 17, 2021: one pursuant to hospital policy, because Mother had no prenatal care with any of Central Baptist's physicians; and the other due to what the nurses had observed and documented regarding Mother's conduct and demeanor. Due to the referrals, Rollins reviewed records from Central Baptist Hospital, as well as from UK Hospital (where Mother had received some prenatal care).
Rollins testified that upon reviewing the records, she discovered "red flags" that caused her to make a referral to the Cabinet that day. These "red flags" included Mother's several prior visits to the emergency room at Central Baptist in recent years for concerns related to mental illness (i.e., issues with anger, amnesia, hallucinations, and panic attacks); Mother's residence in a domestic violence shelter, which was indicated in her prenatal treatment records from UK hospital; and Mother's reticence about her two older children. Relative to this last point, Rollins noted that Mother had "denied the birth of her first two children in her prenatal record at UK," but that after being admitted to Central Baptist on May 17, 2021, Mother had told a nurse that "she will not discuss her older children and that she does not have contact with them."
When the Cabinet's social worker arrived at the hospital to initiate an investigation on May 19, 2021, Rollins requested that hospital security be present due to the concerns regarding Mother's possible mental illness. Rollins further testified about what transpired when the Cabinet's investigating social worker visited Mother's room, and then over the course of the three or four hours that followed. At this point, Mother had been discharged from the hospital, but Child had not. Rollins testified that a short while after the Cabinet's investigating social worker came to Mother's room, Mother told the social worker to leave. She then observed Mother come to the doorway and threaten to leave the hospital with Child.
Rollins testified an obstetrician would typically discharge the mother, but a pediatrician would discharge the baby, and that mothers and newborns are often discharged at different times due to the varying schedules and availabilities of the different doctors involved in the process. Rollins testified that in this case, while Mother was attempting to leave the hospital, a pediatrician had not yet discharged Child.
Rollins, and also the Cabinet's social worker, hospital security, and the Lexington police officer who was on-site at the hospital, made several attempts to calm the situation down, and told Mother "multiple times" that Child had not yet been discharged and could not leave. But, Rollins was unsure if anyone was able to effectively convey this to Mother because, according to Rollins, Mother appeared unwilling or unable to listen or to permit anyone to converse with her. Rollins testified Mother "looked very frantic. She was very scared. She was saying over and over, 'you can't take my baby away, you can't take my baby away,'" and that rather than engaging in conversation, Mother began pacing in her room; pacing in the hallway while holding Child, whom she had buckled into his car seat; and making "multiple attempts" to walk down the hallway and exit the hospital with Child. Rollins testified that Mother's actions during this time, particularly her yelling, scared some of the other patients in the maternity ward, and that those other patients needed to be reassured of their safety.
Pressed for more elaboration about when, during that day, Mother attempted to leave the hospital with Child, Rollins testified, "It happened so many times I could not tell you exactly what the time was."
Due to Mother's threats to leave with Child and her repeated attempts to do so - despite the Cabinet's active investigation and the fact that Child had not yet been discharged - a doctor issued a 72-hour hold order on Child. At or about this time, the hospital also sought additional police assistance. Shortly thereafter, Mother returned to her room. A short while later, the hospital's security system was triggered, causing the hospital to go into lockdown; all the elevators automatically stopped, and all the doors automatically locked. Mother, still carrying Child in the car seat, then reemerged from her room and reattempted to walk down the hallway and exit the hospital. This time, however, Child was no longer wearing his security anklet. The anklet's removal, apparently by Mother,had triggered the hospital's security system. This, in turn, caused hospital security and police to intervene. As mother again headed toward the exit, police and hospital security confronted her, separated her from Child, and arrested her; and Child was eventually placed in the nursery.
Rollins testified during cross-examination that she did not personally witness Mother cut off Child's security anklet, but that the cut-off security anklet was later discovered in Mother's room.
Kamika Joyner, the Cabinet's investigating social worker, testified next. Upon receipt of the hospital's referral on May 17, 2021, Joyner conducted a background check of Mother. She discovered Mother had two other sons that the Cabinet had removed from Mother's custody approximately ten years earlier. She contacted Nakia Walker, Mother's prior caseworker, about those cases and discovered Mother's parental rights had been terminated with respect to one of those two children; the other child had been placed in the permanent custody of a paternal relative; and the children had not been returned to Mother's care because Mother had resisted mental health treatment.
Mother had two other cases with the Cabinet involving her two older sons. During her testimony, Joyner confirmed that one case was initiated in 2006; the other was initiated in 2010; and that both cases concluded in 2011.
After reviewing this information, Joyner arrived at the hospital on May 19, 2021, to speak with Mother. Mother, who was laying on her bed with Child, permitted Joyner to meet with her in her hospital room. The two of them spoke for about five minutes. Mother answered a few of Joyner's basic questions about her residence and contact information. In response to whether she had other children, Mother said that she had no other children. Mother then stated she did not need services from the Cabinet, and asked Joyner why she was being questioned. Joyner replied that the Cabinet had received "a report regarding some allegations about her and her child." Joyner tried to further explain her purpose for being there, but Mother repeatedly cut her off. Mother then told Joyner to leave the room, and then told Joyner to speak to her attorney. Joyner asked Mother to clarify whether she wished for her to leave or to speak to her attorney; at which point, Mother got up from her bed, walked over to Joyner, "got in [her] face, looked toward the door, and said, 'No, you need to leave my room right now.'"
Joyner testified that she left, but Mother followed her to the doorway and continuously yelled down the hallway that no one was taking her baby from her and that she and the baby were going home. Joyner told Mother, in response, that Mother would not be able to leave the hospital with Child "on that day." Joyner testified Mother may have misconstrued her meaning, but she made this statement because she had been unable to question Mother about the allegations of the referral, or to assess whether Mother may have had any mental health concerns. Joyner did not return to Mother's room because she did not wish to further escalate the situation.
Joyner testified that later, while she and Rollins were speaking with police officers at the nurse's station, the hospital's baby security alarm was triggered. Joyner then observed Mother holding Child in his car seat, walking down the hallway toward the exit. Joyner testified that perhaps ten people responded to the situation, including police officers and hospital security. One of the police officers attempted to deescalate Mother; and while the officer was speaking with her, someone reached out and took the car seat that was carrying Child out of Mother's hand. An altercation ensued between Mother and the officer, and Mother was arrested and charged with disorderly conduct. As an aside, Joyner's description of these events is consistent with police body camera footage that was later admitted into the record.
Joyner testified that when she arrived at the hospital to investigate on May 19, 2021, she only wished to verify the allegations of the referral. She had no intention of seeking an ECO, and had not prepared any such petition, because Mother's prior cases with the Cabinet "were so long ago." Joyner testified what ultimately caused her to seek an ECO was what she witnessed regarding Mother's arrest and escalated behaviors. Joyner testified that after the petition for emergency custody was granted, she later reviewed additional records that caused her to file an amended petition. Joyner testified those additional records included a 2007 CATS assessment from one of Mother's prior cases with the Cabinet, which indicated Mother had demonstrated similar behaviors more than ten years before.
University of Kentucky Comprehensive Assessment and Training Services (CATS) assessment.
Lastly, Mother called her neighbor and friend, Regina Linder, as a witness. Linder testified she had known Mother for about two years; that in her experience Mother was kind and caring; and that she had never witnessed Mother being aggressive or angry. During cross-examination, Linder stated she was unaware that Mother had three children, not just one. She also testified she believed Mother was an anxious person; and that she was aware Mother had been in jail before for an assault.
Having reviewed the evidence, we now turn to what the family court concluded. Based upon what is set forth above, the family court determined Mother had neglected Child by creating or allowing to be created a risk of physical injury to Child by other than accidental means. See KRS 600.020(1)(a)2. In that regard, the Fayette Family Court entered a docket order at the close of the hearing, stating the following:
Ct finds Risk of Neglect based upon testimony of nurses treating mother and child at Central Baptist Hospital: 1) infant's temp did not register on thermometer and mother refused to let child be taken to nursery to be warmed. 2) Mother violated sleep safety protocol for newborns by infant found with head resting on pillow of mother's bed with covers pulled up around him. When nurse attempted correction mother became menacing toward nurse and demanded she leave the room. 3) Mother "ripped off" the security anklet on infant saying it was too tight although it moved easily on baby's ankle. Other instances of her manipulating the security band showed she intended to remove infant from hospital unnoticed by security personnel.
The family court rendered additional findings when it entered its adjudication order the next day, stating under the "Findings of Fact/Conclusions of Law" section of its order:
Risk of neglect finding, based on testimony of Cabinet and hospital employees regarding Mother's actions at hospital. Became increasingly angry and combative instead of cooperating with hospital staff, repeatedly attempted to leave hospital with baby w/o authorization or discharge. Fits behavioral pattern that led to prior
removals/TPR. Behavior in hospital was not in Child's best interest.
Under paragraph 4, regarding continued removal of Child, the family court also wrote,
See findings; Mother is still exhibiting many of the same behaviors that led to her two previous children being removed and not returned, such as extreme anger, aggression, and inability to control frustration. Her anger hindered proper care of baby at hospital. Case plan will be beneficial to Mother to eliminate risk, addressing mental health concerns.
However, at the conclusion of the adjudication hearing on August 30, 2021, the Fayette Family Court recounted the evidence that had been adduced, doing so in greater depth; and it rendered more robust oral findings of fact and conclusions of law, stating in pertinent part:
When Ms. Joyner testified, I was very impressed when she said, in answer to your question, she didn't go to the hospital with any idea of filing for an ECO. And the reason she didn't was because those old cases were too old. She went to the hospital with that in mind. She had spoken with Nakia Walker about some issues, but she was certainly not going to hold those things as issues until she talked with the social worker that we heard from as the first witness today [e.g., Rollins], and when she talked with [Mother].
Ms. Wilson [Mother's attorney] is exactly correct, there's been no proof of psychological abuse or of actual abuse, actual injury to this child. But Ms. Wilson, I have to disagree with you on the issue of, that very first issue of the baby was so cold, his temperature wouldn't even register with the thermometer. As a new mother, that
would frighten me to death, if a nurse came in who knows what she's doing, experienced, and said "I'm sorry, we need to get your baby under a warmer because the thermometer will not even register his temperature." I would've said, "Please do." [Mother] resisted that. And yes, the temperature did come up eventually, but she interfered with what was in the best interests of that child at that time.
But most telling, I thought, was the testimony from Lora Pennington. She was called into the room because the alarm had gone off because of the removal or the, not the removal, but there was not enough skin contact with that security anklet. And when she explained to the mother, the mother already knew the purpose of that. And I have to agree with [the prosecuting attorney], I think that when [Mother] had this baby, she went to that hospital with the idea that the Cabinet was going to come calling. And she wanted to have a way to leave the hospital with the baby before the Cabinet would do anything, could do anything about it. The purpose of the security anklet was explained to her, and at one point she testified, she told the nurse [i.e., Payton] that it was too tight, and yet she had the baby's sock underneath the anklet, which would make it tighter to begin with. So, there was no reason to do that unless she was trying to figure out a way to get that thing off.
But more importantly, that night when the nurse came in because of that, she saw that the baby was in the bed with his head on a pillow, covered up. There was cosleeping going on. That is exactly what Ms. Pennington wanted to talk to the mother about, and the mother said, "I know what you're going to say to me." I mean this is, this is Ms. Pennington's testimony. She wouldn't even let Ms. Pennington get it out that there are rules for safe sleeping, that infants are, it's a very dangerous thing to co-sleep in the manner that was happening in the room at
that time. And she had been advised against that. And at that point, [Mother] became angry, got in Lora Pennington's face, and was openly aggressive with her. Overly aggressive, and openly hostile to lots of Central Baptist Hospital personnel.
When she decided that she was going to leave with the baby, I'm sure she was nervous and upset. I'm not sure that she would've been scared so much, because if she were scared, she would not have attempted to have left that floor with ten people there and law enforcement and security. She was prepared to leave the hospital, based upon all of the law enforcement there ready to stop her. That doesn't say that you're fearful. That says to me that your judgment is so impaired about what you are going to do, that she was willing to undergo being physically stopped, as she was, and the baby taken from her.
[Mother], in this adjudication hearing, I do believe that the risk of neglect has been proven by the statements that I have just made.
When Ms. Joyner came in and was immediately greeted with your hostility and aggression when she asked you about the prior cases with the two children that you somehow or another denied, Ms. Joyner almost immediately sensed the fact that unaddressed had been the mental health issues that had caused the removal of your older sons. And it was, it would've been highly irresponsible for her not to have filed an ECO after she learned of that, and after she observed what she observed at the hospital on that day. For the maternity ward, for other persons there who had just delivered babies to ask the personnel there, "are we safe? What's going on?" That was a big commotion. And that was not in the best interests of your child. And I believe all of this together, certainly by a preponderance of the evidence, shows that there was a risk of neglect.
Mother chose not to testify at the adjudication hearing.
At the conclusion of the adjudication hearing, Mother also asked the family court to consider converting its finding of neglect to a finding of dependency instead because some evidence suggested that Mother's behavior at the hospital potentially stemmed from "mental concerns." Denying her request from the bench, the family court explained:
At this time, I'm not prepared to do that. Down the road, I very well might. But the thing that concerns me the most was what I believe was the intention, when [Mother] went in to deliver that baby, that she was going to leave regardless of what the Cabinet had to say.
As discussed, Mother contends that substantial evidence did not support the finding of neglect. She asserts the evidence presented at the adjudication hearing could have at most only supported a finding of dependency instead.
We disagree. Upon review, and without restating what has already been said, we conclude the finding of neglect, and the Fayette Family Court's elaborations upon it, were well-supported by the testimony provided at the adjudication hearing detailed above, and consistent with the family court's role as factfinder. The family court reasonably inferred from substantial evidence that Mother deliberately created or allowed to be created a risk of physical injury to Child by other than accidental means through a combination of the following: (1) interfering with the nurses' attempts to care for Child; (2) knowingly violating a rule designed by the hospital to protect Child's health and welfare (i.e., the rule against co-sleeping); and (3) willfully exposing herself and Child to a physical confrontation with law enforcement by attempting to escape from the hospital and the Cabinet with Child - an escape, as the family court reasonably inferred from the evidence, that Mother had planned and was ready to make upon arriving at Central Baptist to deliver Child. Because substantial evidence supports the family court's finding of neglect, we are not at liberty to set it aside. CR 52.01.
IV. CONCLUSION
For the reasons stated, we DISMISS appeal No. 2021-CA-1496-MR. Regarding appeal No. 2021-CA-1492-ME, we find no error and therefore AFFIRM.
ALL CONCUR.