Opinion
2023-CA-0508-ME
03-22-2024
T.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; E.P.;[1] AND I.A.P., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Matthew B. Dehart Jamestown, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM RUSSELL CIRCUIT COURT FAMILY COURT DIVISION HONORABLE JENNIFER EDWARDS, JUDGE ACTION NO. 22-AD-00012
BRIEF FOR APPELLANT: Matthew B. Dehart Jamestown, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: CETRULO, GOODWINE, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
T.J. (Mother) appeals from the Russell Circuit Court, Family Court Division's (family court) Findings of Fact and Conclusions of Law, and Judgment Terminating Parental Rights, entered March 20, 2023, terminating Mother's parental rights to her minor child, I.A.P. (Child). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Child was born in 2012. In November 2019, the Cabinet for Health and Family Services (CHFS) filed a dependency, neglect, or abuse (DNA) petition in the Russell Family Court for a lack of supervision of Child. The petition alleged Child had not been in the care of her parents for some time and was staying with various friends and family members. Temporary custody of Child was awarded to a family friend in November 2019, and the family court ordered CHFS to open a case file and provide services to Mother. Child was adjudicated neglected on November 21, 2019, and temporary custody remained with the family friend until July 2020, when the family court granted custody of Child to CHFS. Thereafter, the Child was placed in foster care, where she has remained.
Based on the record before this Court, Mother had a history of substance abuse and a criminal lifestyle prior to the initiation of her DNA case. Mother had minimal involvement in the DNA proceedings. According to the testimony of both Mother and CHFS social worker Kristin Burton, there was a period of time, after Mother was released from incarceration in early 2020, that she worked her case plan by participating in drug screens, counseling, and visitation with Child. However, Mother relapsed at some point and stopped working her case plan. Ms. Burton testified that Mother's last drug screen was in 2020, and that her supervised visitation was sporadic at best. CHFS filed the underlying petition for termination of parental rights on April 6, 2022. Mother testified she was incarcerated again in April 2022, due to a criminal indictment for trafficking illegal substances. Ms. Burton testified Mother had no contact with CHFS from August 2022 until December 6, 2022, when Mother requested to reinstate visitation with Child.
Mother testified she was incarcerated for trafficking and possession of illegal substances in January 2020.
The evidence presented at trial was conflicting regarding dates. It appears that, in October 2020, allegations of abuse were made regarding another child, and at the same time, Mother was in an unstable situation with her then-husband. Although the abuse allegations were ultimately unsubstantiated by Cabinet for Health and Family Services (CHFS), the situation caused Mother to relapse. Mother testified this occurred in the autumn of 2021, but, based on Ms. Kristin Burton's testimony and CHFS service recordings supplemented into the record, the allegations and Mother's relapse appear to have occurred at the end of 2020. Regardless, it is uncontroverted that Mother relapsed and the relapse was tied to abuse allegations of another child.
The final termination of parental rights hearing was held on January 26, 2023. Mother was present and testified on her own behalf. After the hearing, the parties briefed the family court and an order was entered on March 20, 2023, that terminated Mother's parental rights. This appeal followed. Further facts will be developed as necessary.
Mother arrived one hour after the scheduled hearing time. The family court waited for Mother for approximately forty minutes before commencing the hearing.
STANDARD OF REVIEW
In Kentucky, the applicable standard of appellate review of findings of fact made by a family court in a termination of parental rights proceeding is the clearly erroneous standard set forth in Kentucky Rules of Civil Procedure (CR) 52.01. Therein, the family court's findings of fact will not be set aside if supported by substantial evidence. M.L. C. v. Cabinet for Health and Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013) (citations omitted). Substantial evidence is evidence of a probative value that a reasonable person would accept as adequate to support a conclusion. Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003). And, any questions of law raised on appeal will be reviewed de novo. Commonwealth, Cabinet for Health and Family Servs. v. S.H., 476 S.W.3d 254, 258 (Ky. 2015).
Kentucky Revised Statutes (KRS) 625.090 sets forth the statutory requirements which must be met before a court in Kentucky can involuntarily terminate a parent's rights to her child. First, the family court must determine that the child is abused or neglected or that the child was previously determined to be abused or neglected by a court of competent jurisdiction. KRS 625.090(1)(a)1 .-2. Mother does not dispute this finding on appeal. Second, the family court must find that termination is in the best interests of the child. KRS 625.090(1)(c). This is also undisputed by Mother. Finally, the family court must find by clear and convincing evidence the existence of one or more of the eleven grounds (a) through (k) listed in KRS 625.090(2). On appeal, Mother argues there was insufficient evidence to support the findings of the family court with regard to KRS 625.090(2)(e) and (g). Our review proceeds accordingly.
ANALYSIS
Pursuant to KRS 625.090(2), the family court found the following three grounds for termination existed:
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative
months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]
Mother's first argument is that the family court improperly granted a continuance of the final hearing on November 9, 2022, in contravention of Kentucky Family Court Rules of Practice and Procedures (FCRPP) 7(1). Mother asserts that the family court should have granted her motion for directed verdict instead of granting a continuance. We disagree.
The parties appeared before the family court for a final hearing on November 9, 2022. Both parties announced that they were ready to proceed. Mother immediately objected when CHFS called its first witness, arguing she had not been provided a list of witnesses and exhibits, in contravention of FCRPP 7(1). Mother also requested a directed verdict. CHFS responded that its failure to provide the required witness and exhibit list was merely an oversight because the final hearing date had been continued numerous times. CHFS then requested a continuance so that it could provide Mother with the required notice. The family court denied Mother's motion for directed verdict, but granted CHFS's motion for a continuance. The final hearing date was rescheduled for December 15, 2022. CHFS filed its witness and exhibit list on November 16, 2023.
FCRPP 7(1) provides that:
Unless otherwise ordered by the court, in any action in which the permanent custody or time-sharing of the child(ren) is in issue, each party shall, not less than 14
days prior to the day set for hearing, provide the other party(ies) with a list of the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a witness, as well as a list of exhibits to be entered.
Mother relies on S.H., supra, in support of her contention that the family court impermissibly granted a continuance. However, the facts in the instant action are distinguishable. At the termination hearing in S.H., the court allowed CHFS to call its only witness over the mother's objection pursuant to FCRPP 7(1). The court then scheduled another hearing seven days later and allowed the witness to testify again. At that point, CHFS had filed the required notice, but six days in advance of the hearing, rather than fourteen. S.H., 476 S.W.3d at 257. The Kentucky Supreme Court held the trial court abused its discretion by allowing CHFS to call its witness at the first hearing, but did not abuse its discretion by allowing CHFS to call the witness again at the second hearing with only six days' notice to Mother. Id. at 260.
In the instant action, the family court did not allow CHFS to proceed after Mother's objection. Rather, the court immediately stopped the hearing and granted a continuance. By the time the parties were again before the family court for the final hearing, CHFS was in compliance with FCRPP 7(1). We also note that the plain language of the rule does not prevent the family court from granting a continuance. "Granting a continuance is within the trial court's discretion, and we will disturb the ruling only if it resulted from an abuse of discretion." W.L.C. v. Commonwealth Cabinet for Health and Family Services, 484 S.W.3d 737, 743 (Ky. App. 2016) (citation omitted). There was no abuse of discretion.
Mother's next argument is intertwined with her previous argument. She contends the family court also erred by granting a continuance in violation of FCRPP 32(2), which provides, in relevant part, that continuance of a final hearing "shall not be granted except upon good cause shown." Mother ties this to what she argues was also a violation of KRS 625.050(7) which provides, in relevant part, that any petition for termination of parental rights "shall be fully adjudicated and a final judgment shall be entered by the court within six (6) months of the service of the petition on the parents." Mother's argument is without merit.
The record on appeal shows that Mother was personally served with the petition on May 11, 2022. A pretrial hearing was held on May 26, 2022, and an order was entered setting the final hearing for September 14, 2022. However, instead of proceeding on that date, the family court entered an order stating "[Hearing] continued [at] request of [Mother]." The hearing was rescheduled for October 21, 2022; however, it was rescheduled again for November 9, 2022, for reasons that are unclear from the record before us. As previously stated, the family court granted CHFS's motion for a continuance on November 9, 2022, and the final hearing was again rescheduled to December 15, 2022. On December 14, 2022, Mother filed a motion for a continuance, stating only that her counsel had "obligations that will prevent him from appearing." The family court granted Mother's motion and the final hearing took place on January 26, 2023.
Mother requested, and was granted, at least two continuances of the final hearing. She now argues the family court erred in granting continuances which resulted in the final hearing occurring more than six months after Mother was served. KRS 625.050(7). She also argues CHFS did not demonstrate "good cause" when it requested a continuance, yet the record is devoid of any cause put forth by Mother for her requested continuances, except for "obligations" of counsel. Any error of the family court in not adjudicating this matter within six months of personal service of Mother was an error Mother invited and in which she fully participated. A party cannot complain of an error which she herself has induced the trial court to commit. See Miles v. Southeastern Motor Truck Lines, 173 S.W.2d 990, 998 (1943). To permit otherwise would allow a party "to take advantage of an error produced by his own act." Wright v. Jackson, 329 S.W.2d 560, 562 (Ky. 1959). This is particularly the case where the complaining party cannot demonstrate she was prejudiced by the error. Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006) (citing United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975), cert. denied, 425 U.S. 938 (1976)). Although Mother states she was prejudiced by the delay, she does not state in what way she was prejudiced. We agree with CHFS that any delay inured to Mother's benefit because it gave her more time to make progress on her case plan. There was no error.
Mother next argues the family court erred by not entering its final order within thirty (30) days of the final hearing pursuant to KRS 625.090(6). The statutory provision provides that:
Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
Id.
Mother's argument is again without merit and any error regarding entry of the final order was created by Mother, not the family court. At the conclusion of the final hearing on January 26, 2023, Mother requested that CHFS supplement the record with certain service recordings and case plans. Mother's counsel then stated he would like to review those items before submitting a brief. The family court entered an order giving CHFS until February 2, 2023, to supplement the record, and ordered both parties to submit briefs by March 2, 2023. Mother did not object to the imposed deadlines. CHFS supplemented the record on January 31, 2023, and filed its brief on March 1, 2023. Mother's brief was not filed until March 17, 2023, and the family court entered its final order thereafter on March 20, 2023.
Mother states in her brief that she motioned the family court for additional time to submit her brief, which was granted. However, there is no motion, nor any corresponding order, in the record before us.
In summary, Mother requested supplementation of the record, time to review the requested documents, and additional time to submit a brief to the family court. She cannot now complain that her own requests resulted in error when the family court entered its order after the expiration of thirty days from the date of the final hearing. Mother has also demonstrated no prejudice. Indeed, many of her arguments to the family court and to this Court cite to the supplemented materials she requested. See Miles, 173 S.W.2d at 998; Wright, 329 S.W.2d at 562; Gray, 203 S.W.3d at 686.
For Mother's final argument, she asserts the family court relied upon erroneous testimony and facts not contained in the record. In a very roundabout way, Mother is essentially asserting there is insufficient evidence contained in the record to support termination of her parental rights. We again disagree.
In support of her argument that there was insufficient evidence of record, to support termination under KRS 625.090(2), Mother points to discrepancies between her testimony and that of Ms. Burton related to Mother's compliance with her case plan. For example, Ms. Burton testified that Mother's initial case plan required her to complete a parenting assessment, mental health assessment, call in for drug screens daily, and participate in visitation. She stated that although Mother initially participated in visitation, drug screens, and counseling, her efforts ceased and she relapsed. Ms. Burton also testified that Mother never provided proof she completed the mental health assessment or counseling, or proof that she completed the parenting assessment and/or parenting classes. Ms. Burton also testified she recommended Mother attend inpatient substance abuse treatment, but she refused. In contrast, in her testimony, Mother insisted she did indeed provide proof of counseling, a drug and alcohol assessment, attendance at parenting classes, and proof of attendance at alcoholics/narcotics anonymous meetings, which she claimed Ms. Burton told her were permissible alternatives to attending inpatient treatment. This conflicting testimony posed a question of credibility. CR 52.01 provides, in relevant part that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." See also Williford v. Williford, 583 S.W.3d 424, 427 (Ky. App. 2019). Clearly the family court did not find Mother's testimony credible and, as the trier of fact, was well within its authority in doing so. Contrary to Mother's assertions, the fact that the family court did not find Mother's testimony credible does not mean it relied on testimony and evidence not in the record.
Mother also argues there is no evidence "that a case plan was ever negotiated nor even shared with [Mother]." This is refuted by the record. Although CHFS supplemented the record with case plans from February 2022 (signed by Mother), and September 2022 (not signed by Mother), it was clear from Mother's own testimony that she was aware of and sought to comply with an earlier case plan. Mother testified to what was required of her and what she believed she accomplished in fulfillment of those tasks.
Based on our review of the record and the totality of the evidence presented, we conclude there was sufficient evidence in the record to support the family court's findings pertaining to KRS 625.090(2)(e) and (g). Although there was a brief period that Mother was making progress, the overwhelming evidence showed that Mother has serious ongoing substance abuse issues and an accompanying criminal lifestyle. Child was not in her care even before CHFS filed the DNA petition. Orders from the DNA proceedings in the record before us indicate Mother was not present for the various hearings and did not make significant progress towards reunification. Ms. Burton testified that when Mother did participate in visitation, she often brought gifts for Child, but otherwise failed to support her in any way. Ms. Burton also testified that Mother had no contact with CHFS or Child from August - November 2022. Further, Mother's housing situation remained unstable. Although she listed her grandmother's home as her address, Ms. Burton testified she was never there and was always difficult to locate. Clearly, Mother failed to maintain a relationship with Child or provide for her daily needs.
See adjudication order entered November 21, 2019; disposition order entered December 19, 2019; and permanency order entered July 22, 2021.
Additionally, even if we were inclined to accept Mother's argument that KRS 625.090(2)(e) and (g) were not satisfied, that still would not preclude the termination of her parental rights. Mother does not dispute that Child had been in foster care for at least fifteen months preceding the filing of the petition to terminate her parental rights. Child entered foster care in July 2020, and the petition was filed in April 2022. KRS 625.090(2) only requires that the family court find the existence of one ground set forth therein, which the court so found.
CONCLUSION
For the foregoing reasons, the Order Terminating Parental Rights and Order of Judgment entered by the Russell Circuit Court, Family Court Division, is affirmed.
ALL CONCUR.