Opinion
NO. 2016-CA-000482-ME NO. 2016-CA-000483-ME
07-28-2017
T. W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.J. AND E.J. APPELLEES AND T.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.J. AND S.J. APPELLEES
BRIEF FOR APPELLANT: Callie Walton Louisville, Kentucky BRIEF FOR APPELLEE: Michael J. O'Connell Jefferson County Attorney David A. Sexton Special Assistant Attorney General Assistant Jefferson County Attorney Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 15-J-502751-001 APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 15-J-502752-001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. ACREE, JUDGE: T. W. (Mother) appeals from the Jefferson Family Court's March 17, 2016, disposition order which incorporated the February 8, 2016, adjudication order wherein the family court made factual findings and determined Mother allowed her son and daughter to be at risk of abuse or neglect by supervising them while intoxicated. We affirm.
Mother and E.J. (Father) divorced in 2009. They have two children in common: E.J., born March 13, 2007 (Son), and S.J., born April 25, 2008 (Daughter). The parties agreed to share joint custody of their children and exercised an equal parenting schedule.
On July 16, 2015, police received a call about a suspected intoxicated parent in the parking lot of a YMCA. After the police investigated, Mother was arrested on two counts of endangering the welfare of a minor and one count of public intoxication. The Cabinet, upon learning of the pending criminal charges, initiated its own investigation.
As a result of these events, Father filed for an emergency protective order (EPO) on behalf of the children. On August 4, 2015, an agreed order was entered in their divorce action: dismissing the EPO case, granting Mother supervised visitation, granting Father temporary custody pending further agreement or court order, and requiring Mother and Father to follow the recommendations of the Cabinet.
On August 27, 2015, the Cabinet for Health and Family Services filed juvenile dependency, neglect or abuse (DNA) petitions regarding the children. On September 3, 2015, at a temporary removal hearing, the family court adopted the parents' agreed order placing the children with Father. At the temporary removal hearing and in the pretrial and motion hearings that followed, Mother repeatedly asked that the action be dismissed, or transferred for informal adjustment in the parents' divorce action.
It appears that the same family court judge was assigned to both the divorce case and the dependency, neglect and abuse case.
On January 14, 2016, the family court held a hearing to determine whether Mother abused or neglected children based upon the events of July 16, 2015. The family court heard relevant testimony from Officer Asia Lockheart, social worker Deandra Baldwin, son and Mother.
We omit evidence received at the adjudication hearing regarding Mother's conduct after this date because that evidence, while it was relevant as to whether Mother should receive unsupervised visitation which was also at issue at the time, was not relevant to the adjudication.
Officer Lockheart testified she responded to a dispatch call about a suspected intoxicated parent in the parking lot of the YMCA who remained in the parking lot for some time. Officer Lockheart approached the vehicle and observed Mother sitting in the driver's seat and the children in the back seat. It was a hot day, the windows were down, and the air conditioning was not on in the vehicle. She heard Mother yell at the children, act defensive, and when she talked with Mother, Mother had trouble staying on topic. Officer Lockheart testified Mother "smelled of alcohol," appeared to be intoxicated, and that her behavior was erratic and uncooperative. Son was upset, told Officer Lockheart he was afraid, and began to cry. Officer Lockheart offered Mother the opportunity to call her husband, but she could not operate the phone.
Mother violently resisted arrest and was too combative to be given a breathalyzer test. Officer Lockheart testified Mother kicked and fought the officers on the scene in the parking lot. Mother was charged with endangering the welfare of a child because she was too intoxicated to care for the children (Son was eight-years-old and Daughter was seven-years-old). A breathalyzer test or blood test were never administered to Mother.
Baldwin testified about her investigation and interviews she conducted with Mother, stepfather and the children. Mother told Baldwin she took lithium, clonozine and topiramate to treat her bipolar disorder. On July 13, 2015, Mother began taking her medications in the morning, rather than at night, per her doctor's advice. Mother told Baldwin that on the morning of July 16, 2015, she took her medications between 7:30 a.m. and 8:30 a.m., then had a shot of vodka at about 10 a.m., drove the children to the pool at about 11 a.m., and stayed at the pool for a couple of hours before feeling dizzy and becoming ill. After she left the pool she called her husband and Son also called him, but they were unable to reach him. She lay down across the front seat of the car and vomited while waiting for her husband.
The stepfather told Baldwin he received two texts from Mother and went to pick up the children after Son called him. Son told Baldwin he saw Mother vomiting in the car, she asked him to call his stepfather and she lay across the front seat of the car. Mother told Son it was his fault she was sick.
After hearing this testimony, the family court asked why they were having a trial when Mother admitted mixing prescription medications with alcohol. Mother again requested an informal adjustment in the divorce action, explaining Father was granted full custody and Mother was granted supervised visitation in that action, and she feared an adverse impact on her employment as a public school teacher should she be found to have abused or neglected children. The Cabinet responded that it would not agree to an informal adjustment. The family court denied the motion, explaining that it could not force the Cabinet to informally adjust the action.
Son testified in chambers. A series of questions were asked to establish Son's competency and he was found competent.
The family court asked Son why he believed Mother became sick that day. Son testified that everyone in his family thinks Mother became sick because she was drunk and combined alcohol with her medicines. The family court then clarified that it was asking why Son believed Mother became sick. Son testified that while at the pool, he saw Mother put something in drinks they brought and then drink them, and that is why he believed she became sick.
Son testified after they went to the car, Mother told him she did not feel good and asked him to call his stepfather. Mother was vomiting and lay down in the seat. Son testified Mother yelled at him and told him it was his fault. He was sad and scared his Mother would go to jail. While the children were in another police car, he saw his Mother escorted into a police car and she was crying. His stepfather picked them up from the YMCA and they went to live at Father's house the next day.
Mother testified she took her medicines to treat her bipolar disorder at around 7:30 a.m. She drank a shot of vodka two hours later, an hour before she took her children to the pool. Mother testified that, in preparation for going to the pool, Mother packed a soda stream bottle she had fixed. The soda stream machine carbonated the water and she poured in grapefruit flavor. She took the children to the pool, watched them swim and drank her soda stream beverage. She denied having any alcohol at the pool or adding any alcohol to her soda stream beverage.
Son testified that there was no soda stream machine at home.
Mother testified that after a couple of hours at the pool, she began to feel dizzy and decided to leave the pool and pack up the car. Once in the car, she tried texting her husband twice and Son called him once. She vomited in the car. She was uncertain whether the change in her medications, or taking the medications with the vodka caused her to be ill or if there was another cause. She did not remember telling Son it was his fault.
Mother testified she acted responsibly. The children were not too warm in the car because she had all the windows down and it was only in the 80s. She felt she acted appropriately by not driving when she felt sick, contacting her husband and waiting.
On February 8, 2016, the family court entering its findings regarding the DNA petition in its adjudication order:
Proof having been heard, the Court hereby finds that it has been established by a preponderance of the evidence that Mother, [T. W.], placed the children at risk of abuse and neglect on or about July 17, 2015. After taking psychotropic prescribed medication, Mother took a shot of vodka. Shortly thereafter, she transported her children by car to the YMCA pool. She most likely continued to drink some form of alcohol while at the pool according to the testimony of her child. After she was found vomiting and later passed out in the car with her children, the police were called. Police testified that she smelled of alcohol, was combative and ultimately arrested. The children were present [at] all times.
On March 17, 2016, at the DNA disposition hearing Mother objected to the findings entered on February 8, 2016, in the adjudication order and requested that they be set aside. She stated she did not receive a copy of the court's findings. Mother stated she would file a motion to reconsider. In the disposition order, issued that day, the family court ordered that the children remain with Father and granted Mother unsupervised visitation. On April 4, 2016, Mother filed a notice of appeal.
Juvenile proceedings require distinct hearings for an adjudication and a disposition. Kentucky Revised Statutes (KRS) 610.080. During the adjudication, the family court determines the truth or falsity of the allegations in the petition. KRS 610.080(1); KRS 610.100(3). In the adjudication "[t]he burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 610.100(3). "The disposition shall determine the action to be taken by the court on behalf of the child and his parent[.]" KRS 610.100(4).
Children can be found to be abused and neglected based on being placed at risk of abuse and neglect pursuant to KRS 600.020 which states in relevant part:
(1) "Abused or neglected child" means a child whose health or welfare is . . . threatened with harm when:
(a) His or her parent . . .:
. . . .
The family court has broad discretion to determine whether a child is abused or neglected. R. C. R. v. Commonwealth Cab't for Human Res., 988 S.W.2d 36, 38 (Ky. App. 1998). "[T]he findings of the [family] court will not be disturbed unless there exists no substantial evidence in the record to support its findings." Id.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[.]
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,
L.D. v. J.H., 350 S.W.3d 828, 830 (Ky. App. 2011) (quoting B.C., 182 S.W.3d at 219).[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.
Mother takes specific issue with three findings the family court made as not being supported by the evidence: that she "passed out," was "found vomiting" and it was likely that she consumed additional alcohol at the pool.
It is a fair criticism of the family court's order that it found she had "passed out." We take that phrase to mean that Mother had become unconscious. While there was sufficient evidence that Mother felt so ill that it was necessary for her to lay down in the car, proof that she was unconscious is lacking. However, this single erroneous finding of fact is not grounds to disturb the family court's legal finding of risk of abuse or neglect. Other substantial evidence supports that finding.
While Mother was not vomiting when Officer Lockheart arrived, Mother and Son both testified that Mother vomited while in the car. The exact timing of who observed the vomiting and when it occurred while she was in the car is irrelevant. There was more than enough evidence that Mother's vomiting occurred to support that finding.
Similarly, there was evidence Mother consumed additional alcohol at the pool. Mother testified she took one shot of vodka six hours before becoming ill. But Son testified, "I think I saw [Mother] put something in her drink" while at the pool. Officer Lockheart noted that the smell of alcohol emanated from mother as she spoke with Mother. The officer also said Mother's behavior was typical of someone who was intoxicated. The testimony of Son and the police officer is sufficient to support a reasonable inference that Mother's one shot of vodka mid-morning was not the only alcohol Mother consumed that day.
Mother argues that her actions are equally indicative of an adverse reaction to prescribed medication or an unknown illness and, thus, this testimony does not constitute substantial evidence that Mother must have ingested additional amounts of alcohol. This, of course, is one interpretation that could be given to this evidence. But without evidence to support that inference, Mother's argument is no more than speculation or theory, at best.
Even if we could reasonably infer that Mother's behavior was caused as she suggested, it would not be the only reasonable inference that could be drawn. More importantly, it is not the inference drawn by the family court. This Court does not have the authority to determine which of two reasonable inferences is more likely or more plausible. That is the family court's function. Our role is to determine whether substantial evidence supports the inference chosen by the family court. In this case, it does, and that was sufficient to support a conclusion that the children were at risk of abuse or neglect by other than accidental means.
Striking the family court's erroneous finding that Mother "passed out" does not justify reversal. There is still sufficient evidence to support the family court's decision that Mother placed the children at risk of neglect or abuse. That evidence includes the officer's testimony that, not only was Mother erratic and uncooperative and even "combative," she also "smelled of alcohol" and otherwise appeared to be intoxicated. Mother admitted that before driving her children to the pool, she voluntarily and consciously consumed vodka, even if only one shot, after taking prescription medication. She said she did so because it was a "laid back summer day." This belies her statement to the family court that she did everything she possibly could to keep her children safe while in her care. It is obvious from her child's testimony that she failed to make him feel safe.
Accordingly, we affirm the Jefferson Family Court's March 17, 2016 disposition order finding substantial evidence that T.W. placed her children at risk of abuse or neglect by other than accidental means.
LAMBERT, J., JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: Respectfully, I dissent. There is a complete lack of evidence to support the family court's finding that mother was intoxicated and created or allowed to be created a risk of emotional or physical injury to her children. Kentucky Revised Statutes (KRS) 600.020(1)(a)1.
Pursuant to KRS 620.100(3), the Cabinet, as the complaining party, bears the burden of proof "and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." Under the preponderance of the evidence standard, the Cabinet must present evidence that it was more likely than not that mother created or allowed the children to be placed at risk of emotional or physical injury other than by accidental means.
"Emotional injury" for purposes of dependency or neglect has a specific meaning. It is an injury to "the mental or psychological capacity or emotional stability of a child as evidenced by a substantial and observable impairment in the child's ability to function within a normal range of performance and behavior with due regard to his or her age, development, culture, and environment as testified to by a qualified mental health professional[.]" KRS 600.020(26). Likewise, physical injury has a specific definition. It means "substantial physical pain or any impairment of physical condition[.]" KRS 600.020(48).
KRS 600.020 was amended in 2017 and this subsection is now KRS 600.020(49). --------
There is absolutely no evidence the single incident that is the subject of the allegation against mother placed the children at risk for emotional injury as defined by statute. While son was upset when officers approached, that simply is not the emotional injury contemplated by the statute. Therefore, the only possible finding could be that by sitting in a stationary car with their alleged intoxicated mother, the children were placed at risk for "substantial physical pain or any impairment of physical condition." What evidence substantiates this finding? I submit there is none.
There is absolutely no evidence that mother intended to operate the vehicle nor was she charged with driving under the influence. Instead, upon becoming ill, she took a reasonable course of action. She returned to her vehicle, texted her husband for assistance and remained in the parking lot until he could arrive. No risk was posed to the children, ages eight and seven, by sitting in a vehicle with the windows down on a day when the only evidence was that the temperature was in the eighties.
Without some emotional or physical risk to the children, at most, mother's alleged intoxication rendered her incapable of caring for the children while in the vehicle. KRS 600.020(1)(a)(3) expressly addresses intoxication. It requires that to support a finding of dependency or neglect there must be 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 alcohol and other drug abuse as defined in KRS 222.005[.]" Id. (emphasis added). There is no evidence that mother engaged in a pattern of being intoxicated while the children were in her care. This was an isolated incident.
The most troubling aspect of this case is the lack of evidence that mother was intoxicated. While the majority approves of the family court's inferring intoxication from the evidence, the family court's conclusion is based on impermissible speculation.
The undisputed evidence was the mother took prescribed medication as directed in the morning before going to the YMCA. It is also undisputed that she vomited in the vehicle after leaving the pool area. However, vomiting is not indicative of intoxication. More likely causes are illness or, in this case, a reaction to prescription drugs.
The majority agrees that the family court erroneously found that mother was passed out when found by police but then decides that such finding does not warrant reversal based on evidence provided by the son and the police officer. The son's testimony that mother "put something in her drink" while at the pool, without more, does not tend to support that the "something" was alcohol. Moreover, his testimony was influenced by other family members' comments that mother was drunk, rather than his personal observation. Presumably, there were other patrons at the pool that day yet the Cabinet did not produce any witness to testify that mother consumed alcohol at the pool or acted intoxicated while at the pool.
The only other evidence was Officer Lockheart's testimony that mother smelled of alcohol when he arrived and mother was combative. Notably, despite that she suspected intoxication, the officer did not conduct a field sobriety test and a breathalyzer or blood test was not administered. This lack of evidence is disturbing particularly because mother alleges she had an adverse reaction to prescription medications.
I realize that this is not a criminal case where the reasonable doubt standard applies or a termination of parental rights case where the clear and convincing standard applies. However, a finding of abuse and neglect is a serious matter in the parent/child relationship and, for mother who is a school teacher, has possible employment consequences. Sadly, the Cabinet would not agree to resolve this matter through an informal adjustment which would have resulted in the same unsupervised visitation schedule which the court ultimately set and mother is now burdened with the stigma of having committed abuse and neglect. On appeal, our duty is to ensure that the Cabinet met its burden of proof. It did not.
I do not believe the family court's findings based on speculation should be affirmed. I would reverse. BRIEF FOR APPELLANT: Callie Walton
Louisville, Kentucky BRIEF FOR APPELLEE: Michael J. O'Connell
Jefferson County Attorney David A. Sexton
Special Assistant Attorney General
Assistant Jefferson County Attorney
Louisville, Kentucky