Opinion
NO. 2019-CA-001395-ME NO. 2019-CA-001399-ME NO. 2019-CA-001400-ME
04-10-2020
M.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., MOTHER OF THE MINOR CHILD; AND S.C., A MINOR CHILD APPELLEES AND M.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., MOTHER OF THE MINOR CHILD; AND B.C., A MINOR CHILD APPELLEES AND M.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., MOTHER OF THE MINOR CHILD; AND C.C., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Christopher Earl Hendricks Murray, Kentucky BRIEFS FOR APPELLEES COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY: Casey Jon Naber Murray, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 17-J-00104-005 APPEAL FROM CALLOWAY FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 17-J-00105-005 APPEAL FROM CALLOWAY FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 17-J-00106-005 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. GOODWINE, JUDGE: Appellant, M.C., appeals from three orders of the Calloway Family Court finding neglect as to each of his three children. After careful review, finding no error, we affirm.
BACKGROUND
M.C. and Appellee, L.C., are the biological parents of three children: C.C., age 15 at the time of the petition, and twins B.C. and S.C., age 13. This family has a long history with the Cabinet for Health and Family Services (the Cabinet).
The Cabinet became involved with this family in July of 2017 after receiving reports that involved L.C. abusing alcohol while in the caretaking role of her children. The children were to reside with M.C. while the Cabinet addressed ongoing issues with L.C. The children were removed from M.C. on December 7, 2017 due to M.C. not following his case plan, allowing unsupervised visits between the children and L.C., and due to M.C. abusing alcohol within his home around the children. At the first temporary removal hearing on December 11, 2017, temporary custody of the children was granted to B.C., paternal grandmother.
On March 28, 2018, the Cabinet learned that B.C. had allowed the children to stay with M.C. for at least two nights unsupervised. This occurred despite B.C. signing a case plan acknowledging that the children were only to have supervised contact with L.C. and M.C. It was also found that even after the children's exposure to substance abuse and domestic violence with their parents, B.C. became verbally abusive to the children telling them that she did not want them there before taking a hammer and smashing B.C.'s cell phone out of anger while in the presence of the children. The children were removed from B.C. and placed in the Cabinet's custody on April 2, 2018.
[L.C. and M.C.] started to work their case plan after the children were removed from [B.C.] Progress was minimal with [L.C.] leading to her not cooperating with the Cabinet. [L.C.] had a substance abuse assessment completed at West Kentucky Drug and Alcohol on 8/22/18. Her counselor recommended that she complete Riverwood's IOP program unit until an in-patient spot came available for [L.C.] [L.C.] did not follow through with these recommendations. West Kentucky Drug and Alcohol closed [L.C.]'s file as non-compliant after several unsuccessful attempts to work with her.
[L.C.] failed to meet with SSW from August 2018 to May 2019. [L.C.] failed to comply with drug screens/breathalyzers requested of her by SSW and did not visit with her children from August 2018 to May 2019. SSW asked [L.C.] to confirm visitation 24 hours in advance in order for visits to take place during those months due to the negative impact this was having on the children with her frequent no shows and last minute cancellations.
[L.C.] maintained phone contact with her children during the months of August 2018 to May 2019. The phone calls were reported to be sporadic and sometimes "strange". [L.C.] became very emotional when on the phone and would sometimes say things that did not make sense.
[M.C.] started to cooperate and made significant progress on his case plan. He developed a better relationship with the children and was observed to do well with the children during supervised visitation. [M.C.] attended substance abuse and mental health counseling regularly at Four Rivers Behavioral Health as recommended by his therapist. These sessions were reported to go well with little concerns. The Cabinet was working toward reunifying the children with [M.C.] until he obtained employment in Georgia, which prolonged the reunification process. [M.C.] was well aware that his
move to another state would hinder him from getting his children home due to an ICPC home evaluation needing to take place. While [M.C.] was in Georgia, he was living in a hotel and was unable to obtain housing to provide an address to start the ICPC process. [M.C.] was not working his case plan at that time. [M.C.] decided to move back to Murray in December 2018 so that he could get back on track with his case plan and get his children home with him. The Cabinet continued to work toward reunification.Record (R.) at 51.
[M.C.] was able to get back on track with his case plan and made progress on his case plan. He obtained unsupervised visitation with his children and the children reported these visits to go well. Due to [M.C.]'s progress, the court returned custody of the children to [M.C.] and transitioned them home on 3/22/19. Prior to this reunification, SSW developed a new case plan with [M.C.] in January 2019 where he agreed to not have alcohol in his home and not be under the influence when in the caretaking role of his children. In April 2019, the children reported to the Cabinet that [M.C.] was drinking alcohol in the home on a regular basis. When confronted with this allegation, [M.C.] admitted to struggling with his sobriety. [M.C.] stated that his therapist at Four Rivers was wanting him to become involved in IOP; however, he was refusing. [M.C.] was advised to become involved in IOP or a petition would be filed. [M.C.] refused treatment; therefore, resulting in his children being placed back into their foster home. [M.C.] is now uncooperative with the Cabinet and is not willing to work a case plan at this time. [M.C.] is also no longer visiting with his children.
See Cabinet's Dependency/Neglect or Abuse Dispositional Report. We note that the pagination of the three underlying juvenile records is not identical. Our reference to the record is to Case No. 17-J-00104-005.
On April 23, 2019, the Cabinet filed the underlying petitions alleging the children were neglected. Specifically, the Cabinet alleged:
[The children] were placed back with their father on 03-22-19, after being in the [Cabinet's] custody for 10 months. [M.C.] signed a prevention plan that he would not be under the influence of alcohol when in the care taking role of his children. The children have reported that their father's drinking has gotten progressively worse. The children reported that he is drinking on a regular basis, that he gets increasingly sarcastic and has "confusing thoughts" when he is drunk. All children expressed fear that their father's drinking is going to once again get out of control. On 04-19-19 [M.C.] admitted he is struggling with sobriety and he does not see that his drinking is having an impact on his children. He refused to stop drinking. Four Rivers has advised [M.C.] twice to enter intensive outpatient rehab to address his drinking. He has refused. [M.C.'s] home was found to be extremely cluttered during the visit. Due to the long history of alcohol exposure, these children are at risk of harm if left in their father's care.R. at 1.
Based on the petitions, the family court entered an emergency custody order removing the children from M.C.'s custody and placing them with the Cabinet. The children were again placed together in the same foster home they had previously been placed in prior to returning to M.C.'s custody.
The family court held an adjudication hearing on July 29, 2019. Four witnesses testified at the adjudication hearing. The Cabinet called one of the children and a social services clinician. M.C. testified and called a Murray city police officer.
L.C. was a party to the petitions and was represented by counsel, but did not attend the adjudication or disposition hearings. However, her attorney did appear.
Following the testimony, the family court took the matter under advisement. The family court found the children neglected under KRS 600.020(1). The family court found M.C.:
Kentucky Revised Statutes.
¦ Created or allowed to be created a risk of physical or emotional injury by other than accidental means;R. at 46.
¦ Engaged in a pattern of conduct that makes [him] incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;
¦ Continuously or repeatedly failed or refused to provide essential parental care and protection for the child, considering the age of the child; and
¦ Did not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being.
Additionally, the family court made the following specific finding of fact:
The Court finds reasonable cause to believe the child is neglected based on father's continued alcohol use. The father signed a prevention plan with the Cabinet that he would not be under the influence of alcohol while in the care-giving role and the children reported to the Cabinet worker that the father's drinking has continued to get worse.R. at 45. The family court determined that removal of the children from M.C.'s home was necessary because he refused to stop drinking, refused to enter an IOP, and was unwilling to address his substance abuse issues. R. at 46. The family court set the matter for a dispositional hearing. R. at 47.
M.C. prematurely filed a notice of appeal on September 9, 2019, from the family court's adjudication order. Recognizing this error, M.C. amended his notice of appeal on October 3, 2019, designating the family court's disposition order as the order from which he appealed. See J. E. v. Cabinet for Health and Family Services, 553 S.W.3d 850, 852 (Ky. App. 2018) (holding that a disposition order, not an adjudication order, is the final and appealable order with respect to a finding of dependency, neglect, or abuse).
Prior to the disposition hearing, M.C. refused to sign a case plan following the removal of his children and walked out of a meeting with the Cabinet after getting angry. He denied ever neglecting his children. Because M.C. walked out, a visitation agreement was not put in place. The Cabinet contacted M.C. to set up another case planning meeting; however, M.C. cancelled his meeting and did not reschedule. Thereafter, M.C. refused to meet with the Cabinet. However, M.C. continued to send text messages to the social worker demanding they return his children to him. He accused the family court and the Cabinet of trafficking his children. R. at 65.
Following the September 16, 2019 disposition hearing, the family court ordered that the children remain committed to the Cabinet. It accepted the Cabinet's Dependency/Neglect or Abuse Dispositional Report, with the recommendations of the Department for Community Based Services, and incorporated same into its order. The family court acknowledged its previous finding of neglect on July 29, 2019, and further acknowledged that the children's best interest required removal from M.C.'s home. The family court further found there was no less restrictive alternatives to removal of the children from the home; that the Cabinet has worked with the parents since July 2017; and that little to no progress has been made by the parents. R. at 78.
Additionally, the family court granted the Cabinet's request to waive reasonable efforts to reunite the children, finding that "[p]arent has engaged in a pattern of conduct due to a substance abuse disorder as defined in KRS 222.005 for a period of not less than ninety (90) days that has rendered the parent incapable of caring for the immediate and ongoing needs of the child, and the parent has refused or failed to complete available treatment for a substance use disorder." R. 80-81. The family court scheduled a permanency hearing for June 29, 2020, with the goal being adoption. R. at 82-85. This appeal followed.
ANALYSIS
At the outset, we must address a deficiency in M.C.'s brief. CR 76.12(4)(c)(v) requires "at the beginning of [each] argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." M.C. states in his brief "[t]he argument presented herein was preserved by virtue of the Appellant demanding an Adjudication Hearing . . . ." See Appellant's Brief at p. 7. M.C.'s preservation statement is improper. His argument is based on findings and conclusions the family court made after the adjudication hearing.
Kentucky Rules of Civil Procedure.
The new amendment makes it mandatory that an attorney cite to the record where the claimed assignment of error was properly objected to or brought to the attention of the trial judge. This amendment is designed to save the appellate court the time of canvassing the record in order to determine if the claimed error was properly preserved for appeal.Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App.1990) (citation omitted). Moreover, an adjudication order is interlocutory and not a final and appealable order. See J.E., 553 S.W.3d at 852.
In Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019), our Supreme Court reiterated the danger appellate advocates face when they ignore procedural rules.
It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated. Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules substantive rights, even of constitutional magnitude . . . would smother in chaos and could not survive.Id. at 593 (internal quotation marks, brackets, and citations omitted).
M.C.'s failure to comply with CR 76.12 hinders our ability to review his arguments. See Hallis v. Hallis, 328 S.W.3d 694, 695-97 (Ky. App. 2010). "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Id. (citation omitted). Because M.C.'s arguments fail on the merits, we elect to ignore the deficiency and proceed with our review.
Our review of a dependency, neglect, and abuse action is limited to whether the factual findings of the lower court are clearly erroneous. CR 52.01. Whether or not the findings are clearly erroneous depends on whether there is substantial evidence in the record to support them. Id.; Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986). 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." Id. (citations omitted).
Kentucky's dependency statutes create a procedure which permits the Cabinet to remove abused or neglected children from their homes. The removal is intended to protect the child and to permit the Cabinet to provide rehabilitative services to the parents and the children. The Cabinet bears the burden of proving abuse or neglect "by a preponderance of the evidence." KRS 620.100(3).
KRS 620.060-KRS 620.100.
M.C. argues that the Cabinet failed to present sufficient evidence to establish that the children were abused or neglected under KRS 600.020(1)(a). We disagree. The statute states:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a 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;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
KRS 600.020(1)(a). The family court found abuse or neglect under 2, 3, 4, and 8.5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child; or
9. Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months[.]
In Cabinet for Health and Family Services on behalf of C.R. v. C. B., 556 S.W.3d 568 (Ky. 2018), the Kentucky Supreme Court held that when the Cabinet develops a case plan and continuously offers services and a parent neglects his or her duties and fails to complete the goals of the Cabinet, said failure can support a finding of neglect. Id. at 573.
Again, the purpose of the dependency, neglect, and abuse statutes is to provide for the health, safety, and overall well-being of the child. KRS 620.010. Thus, the Cabinet was required to investigate this case due to M.C.'s continued abuse of alcohol. Based on our review of the record and evidence, the family court's findings are supported by the record and its ultimate finding of neglect is sound.
The Cabinet presented evidence that M.C. initially complied with its requirements that he abstain from the use of alcohol, seek counseling, and attend Alcoholics Anonymous. However, within one month of the children being returned to his custody, he started consuming alcohol again, refused to follow the recommendation for IOP treatment, and ultimately refused to stop drinking, believing he did not have a problem with alcohol. He was also unemployed.
M.C. erroneously believed that because he could function in a caretaking role even after consuming alcohol, he did not neglect his children. In fact, he argues on appeal that (1) his consumption of alcohol did not create or allow to be created a risk of physical or emotional injury; (2) he did not engage in a pattern of conduct that made him incapable of caring for the immediate and ongoing needs of the children; and, (3) that he provided for the essential parental care and protection of the children and provided the children with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the children's well-being. We disagree.
KRS 620.023(1)(c) mandates the trial judge to consider whether alcohol or drug abuse incapacitates a parent to the point of affecting the care of the child. See C.R., 556 S.W.3d at 575. The family court found that M.C. refused to stop drinking and has refused to enter intensive outpatient rehabilitation as advised by his therapist. It further found that M.C. was unwilling to address his substance abuse issues. R. at 46. M.C. conceded that he recently struggled with his sobriety. He acknowledged a prior DUI conviction. He admitted his therapist wanted him to enroll in an IOP program. He acknowledged telling the Cabinet that he would not attend IOP. This evidence and testimony satisfies the definition of a substance use disorder in KRS 222.005(12).
A court can find neglect if an individual "[c]reates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means." KRS 600.020(1)(a)2. "The statute, as written, permits the court's finding where a risk of abuse exists and does not require actual abuse prior to the child's removal from the home or limitation on the contact with an abusive parent." C.R., 556 S.W.3d at 576 (emphasis in original) (quoting Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008)).
M.C.'s history of alcohol abuse was found to have created a risk of harm. His recent noncompliance with the Cabinet's case plan and refusal to complete IOP provide an inference that M.C.'s alcohol issues are not resolved. "While family courts are not left with unfettered discretion when it comes to restricting parents' rights to their children, the family court certainly does not have to wait for actual harm to occur before taking protective measures." Id. (footnote omitted). Based on the evidence presented and M.C.'s own admissions, the family court's finding of neglect was supported by substantial evidence.
CONCLUSION
For the foregoing reasons, we affirm the orders of the Calloway Family Court adjudicating the children as neglected.
ALL CONCUR. BRIEFS FOR APPELLANT: Christopher Earl Hendricks
Murray, Kentucky BRIEFS FOR APPELLEES
COMMONWEALTH OF
KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES; AND
COMMONWEALTH OF
KENTUCKY, CALLOWAY
COUNTY: Casey Jon Naber
Murray, Kentucky