Opinion
NO. 2019-CA-1210-ME NO. 2019-CA-1212-ME NO. 2019-CA-1214-ME
01-22-2021
M.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.T.B., SR., FATHER; AND D.T.B., JR., A MINOR CHILD APPELLEES AND M.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.T.B., SR., FATHER; AND D.T.B., A MINOR CHILD APPELLEES AND M.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND N.L.A., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Bethanni Forbush-Moss Louisville, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH & FAMILY SERVICES: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA JOHNSON, JUDGE
ACTION NO. 18-AD-500027T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA JOHNSON, JUDGE
ACTION NO. 18-AD-500028T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA JOHNSON, JUDGE
ACTION NO. 18-AD-500029T OPINION
AFFIRMING
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BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES. KRAMER, JUDGE: M.B. (Mother) appeals three July 5, 2019 orders of the Jefferson Family Court terminating her parental rights with respect to three of her minor children, D.T.B., Jr.; D.T.B.; and N.L.A. Upon review, we affirm.
The family court's order with respect to N.L.A. became final on July 5, 2019. The family court's orders pertaining to D.T.B. and D.T.B., Jr., became final on July 23, 2019, after the family court entered orders resolving Kentucky Rule of Civil Procedure (CR) 59.05 motions from these children's father, D.T.B., Sr.
At the onset, we note there is little for the Court to review in this matter. Mother does not contest the sufficiency of the family court's findings or correctness of its legal bases for terminating her parental rights, i.e., that she neglected and abused her children as defined in KRS 600.020(1); that the provisions of KRS 625.090(2)(a), (e), (g), and (j) were otherwise satisfied; and that all other relevant provisions of KRS 625.090, including those with respect to the children's best interests, were properly considered. See, e.g., Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000) ("Any part of a judgment appealed from that is not briefed is affirmed as being confessed.").
Kentucky Revised Statute.
Rather, the entirety of Mother's argument on appeal stems from a post-judgment motion she filed on July 17, 2019, under the purviews of CR 60.01 and CR 60.02. There, asking the family court to set aside the three orders at issue in this matter and restore her parental rights, she argued in relevant part:
Kentucky Rule of Civil Procedure.
As grounds for and in support of said request, the Natural Mother, by Counsel, would show the Court the following:
1) That the Court issued an order in this matter wherein the parental rights of the natural father were not terminated but the parental rights of the natural mother were terminated for the same children.
2) That while the Natural Mother does not agree with the findings of fact and conclusions of law as it relates to terminating her parental rights, the Court determined that the natural father's rights would not be terminated.
3) That by terminating the rights of one parent and deciding not to terminate the rights of the other parent has the effect of bastardizing the children. Such a result is against Kentucky's public policy of not bastardizing children.
4) That if the Natural Father regains custody of these children and with the mother's rights terminated, he will not be entitled to any support as it relates to these children and these children are left motherless.
5) That such a result cannot be said to be in the best interest of the children.
WHEREFORE the Natural Mother, by Counsel, moves this Honorable Court to set aside the termination of parental rights orders in these matters wherein her parental rights are terminated but the natural father's parental rights are not terminated.
Stated differently, Mother argued - as she continues to argue in this consolidated matter - that it was improper for the family court to terminate her parental rights regarding any of her children because: (1) the family court did not also terminate D.T.B., Sr.'s parental rights; or because (2) doing so could, in her view, impede D.T.B., Sr.'s potential right to prospectively sue her for child support.
But, this argument is irrelevant with respect to Appeal No. 2019-CA-001214-ME, which relates to the termination of Mother's parental rights regarding N.L.A. That is because D.T.B., Sr. is the father of D.T.B. and D.T.B., Jr. - not N.L.A.
The family court terminated N.L.A.'s father's parental rights after determining N.L.A.'s father was unknown, and that there was no known person meeting the requirements of KRS 625.065 to be named as her putative father.
Moreover, while there are several inherent problems with this nonsensical argument including Mother's lack of standing to make it and the lack of authority supporting it, it is enough to simply dispose of this argument because it is not properly before us. To be sure, Mother asserted this argument in her CR 60.01 or CR 60.02 motion. However, it is apparent from the record that the family court never adjudicated her motion; and the trial court must first be given the opportunity to rule on an issue before we will consider it upon appellate review. See Payne v. Hall, 423 S.W.2d 530, 532 (Ky. 1968).
In short, Mother's sole argument presents no basis for reversal. The record does not reflect the family court erred in any other respect. We therefore AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Bethanni Forbush-Moss
Louisville, Kentucky BRIEF FOR APPELLEE, CABINET
FOR HEALTH & FAMILY
SERVICES: No brief filed.
Because "children are the Commonwealth's greatest natural resource and . . . individuals and their families are the most critical component of a strong society," the Cabinet for Health and Family Services (CHFS) "shall," as stated in KRS 194A.010(2), "deliver social services to promote the safety and security of Kentuckians and preserve their dignity." In other words, CHFS's many purposes as a governmental agency include safeguarding the parental rights of Kentucky's citizens and ensuring the safety of Kentucky's children.
With that said, the conduct of Jennifer Ellen Clay, the attorney representing CHFS in these consolidated matters, has left this Court questioning whether CHFS appreciates the gravity of those responsibilities. In these three consolidated appeals, CHFS filed no brief, needlessly risking potential sanctions. See CR 76.12(8)(c). Apart from that, this consolidated matter initially involved not three, but four appealsthe fourth being a crossappeal CHFS deemed important enough to initiate against D.T.B., Sr., after taking issue with the family court's decision not to terminate his parental rights (i.e., Commonwealth, Cabinet for Health and Family Services v. D.T.B., Sr., et al., No. 2019CA001213ME). That crossappeal was dismissed, however, solely because CHFSby and through its attorneyfailed to file a brief and further failed to respond to this Court's show cause order asking why it had failed to file a brief. Hence, due only to the failure of CHFS's attorney, the matter of whether or not D.T.B., Sr.'s rights to the children at issue should have been terminated has not been subject to further review by this Court.
Jennifer Ellen Clay is not new to the appellate process and has been involved in several appellate cases. And, while the Court could possibly excuse a lack of knowledge about some arcane rule, filing a brief involves nothing of the sort and is the most fundamental process of appellate practice.
Moreover, we remind CHFS that these types of legal proceedings are more than a game of filing papers. When time and resources are wasted here, the consequences are farreachingconsequences to the offending parties, who are subject to sanctions; consequences to the offending attorneys, who are subject to the Rules of Professional Conduct; and most importantly, consequences to the parents and children whose families and futures have been effectively suspended as they await legal resolution. Going forward, we are hopeful that when the appellate process is indeed called for, CHFS will fulfill, in good faith, its nondelegable statutory duties to safeguard the parental rights of Kentucky's citizens and to ensure the protection and safety of Kentucky's most vulnerable children. Something of which herein, CHFS wholly failed to do.