Opinion
NO. 2016-CA-001595-ME
06-23-2017
A. M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A. S. M., A MINOR CHILD; AND D. M., NATURAL FATHER APPELLEES
BRIEFS FOR APPELLANT: Christopher Lee Coffman Colin O'Brien Lexington, Kentucky BRIEF FOR APPELLEE: Rex Hunt Assistant Franklin County Attorney Frankfort, Kentucky Rick Sparks Franklin County Attorney Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN FAMILY COURT
HONORABLE SQUIRE WILLIAMS, III, JUDGE
ACTION NO. 16-J-00093-001 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. THOMPSON, JUDGE: A. M. (mother), appeals from an adjudication order finding A. S. M. (child) was neglected by mother.
On April 29, 2016, the Cabinet for Health and Family Services filed a juvenile dependency, neglect or abuse (DNA) petition seeking emergency custody of child, born in December 2014, to mother and D.M. (father). The Cabinet claimed child was found to have a first to second-degree burn to the back of child's lower leg, which no responsible adults who cared for child could explain and for which neither parent sought immediate medical attention. The Cabinet argued the parents deliberately did not comply with a safety plan and child was subjected to physical abuse/neglect under Kentucky Revised Statutes (KRS) 600.020(1)(a)2, 4 and 8. The family court approved the emergency removal and set a temporary removal hearing.
At the temporary removal hearing held on May 3, 2016, social worker Karen Echols testified the Cabinet received a referral on January 14, 2016, when child was taken to the University of Kentucky (UK) hospital and found to have fractures of the legs, ankle and wrist. While the Cabinet ultimately concluded that maternal grandmother (grandmother) and maternal great-grandmother (great-grandmother) were responsible for these injuries while caring for child at their house, it also concluded mother did seek immediate care for child's injuries. The Cabinet entered into a safety plan with mother in which she agreed not to allow any unsupervised contact between child and grandmother or great-grandmother.
The Cabinet's next referral occurred on Wednesday, April 27, 2016, when it was discovered that child had a burn on the back of her leg. Echols interviewed mother, father, maternal grandfather (grandfather) and grandmother and determined the timeline of events. From Friday, April 22 through Sunday, April 23, father, grandfather and grandmother each cared for child while mother was out of town. Mother took child to father on Friday. On Saturday, father took child to grandmother, where grandfather picked up child. On Sunday, grandfather took child to grandmother and then mother picked child up from grandmother's that night. Mother was child's caregiver from Sunday night until Echols visited them on Wednesday.
The Cabinet could not determine when the burn occurred and whose care child was in when it happened. Echols testified father, grandfather and grandmother denied seeing a burn on child. Father and grandfather told Echols that they took child to grandmother's house based on mother's instruction.
Mother was inconsistent about when she noticed the burn and, even though she said the burn split open when she gave the child a bath, mother did not seek medical attention for the burn until Echols instructed her to do so. Child was diagnosed with a first to second-degree burn and the doctor instructed mother to apply a cream to the wound two times a day.
Following the conclusion of the hearing, the family court orally granted temporary removal because while it was speculative who was responsible for child's injuries, it was not speculative that the injuries occurred, the parents were responsible for the child and the child could easily be injured again. In its May 5, 2016 written order, the family court found "child suffered injuries while under parent or parent's chosen caregiver's care" and placed child in the temporary custody of the Cabinet.
On September 23, 2016, the family court held an adjudication hearing. It heard testimony from Ashley DeJarnatt (a forensics nurse with Kosair), Alexandria Norton (an investigator with the Cabinet), grandfather, father and grandmother.
DeJarnatt testified she reviewed the UK Forensic Medicine's report about child's fractures, photographs from the social worker of child's burns and medical reports before forming her own conclusions. She testified as to her observations and conclusions regarding the burn and fractures.
The irregularly shaped burn at its widest points measured one and one-half centimeters by three centimeters and was a second-degree burn. It was clean with no discharge. Its location at the back of child's leg was unusual. DeJarnatt could not determine what caused the burn or whether it was accidental or inflicted. It required treatment because it was painful and could become infected. She believed it would have been noticeable while someone was changing child's diaper.
DeJarnatt testified that it was unusual that no one provided an explanation of how the burn occurred because child was too young to be left unsupervised and the burn was diagnostic for neglect. She testified as to the timeline of when child was in each person's care based on the social worker's explanation.
As to the fractures, the report had no explanation for how they occurred. According to the report, child had three acute fractures in the lower legs near the ankle to the left tibia, left fibula and right tibia. Finding them "acute" meant that they were newer than eight to ten days old because no healing was present on the x-ray. There were also healing fractures to the right radius and ulna. "Healing" meant they were more than eight days old when x-rayed, because x-rays cannot pick up on healing prior to that time. However, DeJarnatt did not see the x-rays.
While the fractures to the arm could be from a fall that occurred around Christmas, because they were "buckle" style fractures, there could be no appropriate cause for the leg fractures. It was ruled out that child's legs could have been broken by a rocker hitting them.
There were no medical records to indicate child had previous treatment for the arm fractures and it appeared there was a three-day delay in seeking treatment for the leg fractures. Child missed well-care visits at six, nine and twelve months, the last one would have been due in December 2016. Overall, the total fractures were diagnostic for child abuse and the burn was diagnostic for at least supervisory neglect. These injuries made her concerned about child's safety. She was not aware the Cabinet substantiated grandmother and great-grandmother caused the broken bones.
Norton, the social worker assigned to child's case after Echols, testified that when she received the case in May, she interviewed mother, father, grandfather, step-grandmother (married to maternal grandfather), grandmother, great-grandmother, great-grandfather (married to maternal great-grandmother), mother's ex-paramour and the UK physician responsible for child's care. On Friday, April 23, father left child with grandmother for twenty to thirty minutes until grandfather could arrive to pick her up. Child was cared for by grandfather and later grandmother before mother picked up child from grandmother's house on Sunday, April 24.
Norton testified mother did not have any explanation for the burn. Mother detected it either on the evening of Monday, April 25, or on the morning of Tuesday, April 26. On Tuesday, mother sent a picture of child's burned leg to father, grandfather and grandmother, asking "what is this, where did it come from?" After mother picked up child from grandmother, she had the child the entire time until she saw the burn. When she noticed the burn, she cleaned, sterilized and bandaged it. Mother sought treatment for the burn after she was advised to do so.
Norton testified mother signed a February 3, 2016 plan to resume full-time care of child (after child was temporarily placed with father following the fractures), which stated she would not leave child unsupervised with grandmother and great-grandmother. While father was not informed of this plan by the Cabinet, father admitted he was aware of this plan. Norton testified father violated the plan by dropping child off at grandmother's house when physical abuse and negligence by grandmother had been substantiated.
Mother was responsible for child's well-being because mother was the primary custodian who made arrangements for childcare when she was unavailable. Norton believed parental neglect was substantiated when mother placed child in serious risk of harm from a caretaker who was substantiated for abuse in the past, mother failed to review the safety plan with all other caregivers, mother failed to check child carefully after she retrieved child from an inappropriate caregiver who was substantiated for abuse in the past and mother failed to seek immediate care for the burn once it was noticed.
When child was originally removed, child was placed with grandfather, but later removed because his criminal history was too recent and child was then placed with a foster family.
Grandfather testified he cared for child from Friday, April 22, 2016, through Sunday, April 24, 2016. Mother made plans for him to pick child up from grandmother and drop child off with grandmother. Mother did not tell him that child was not supposed to be cared for by grandmother. He received child from grandmother on Friday and returned child to grandmother on Sunday after mother texted him at around five to six p.m. to tell him she was on her way back and told him to drop child off at grandmother's house. Child did not have or receive any burns while in his care. When child fell and scraped her nose, he sent mother a picture telling her what had happened. He was upset when he received mother's text on Tuesday that had the picture of child's burn. Grandfather wanted to spend more time with child than mother typically allowed.
Father testified that he watched child from Wednesday, April 20 to Friday, April 22, 2016, and then took her to grandmother's house in the evening at about 6:30 p.m. because he had to be at work at 7:00 p.m. Mother told him to drop child off at grandmother's house. He did not want to drop child off with grandmother but could not find anyone else to watch her. He knew grandfather would be picking child up from grandmother's house. When he arrived at grandmother's house, he stayed there until grandfather was five or ten minutes away before he left for work. He was generally aware of the safety plan but no one specifically told him child was not supposed to be at grandmother's house.
Grandmother testified she watched child for about a half hour on Friday, April 22, 2016, and for about one and one-half hours on Sunday, April 24, 2016. She knew she was not supposed to be watching child unsupervised. On Sunday, she noticed a scrape on child's face that grandfather had told her about, but she did not notice any other problems. She changed child's diaper one time and did not notice any burn.
Following closing arguments, the family court orally announced its ruling that child was neglected. It found that although mother knew it was unsafe for child to be left with grandmother, mother told father to drop child off at grandmother's house, and mother told grandfather to pick child up from grandmother's house and then to drop child off there again.
On September 28, 2016, the family court entered its written order on the adjudication hearing and made detailed factual findings in accordance with its oral findings. It also found that mother did not notice child's burn until Monday night or Tuesday morning, and did not take child to a medical professional for the burn until Wednesday. Finally, the family court found "that the allegations contained in the petition have been proven by a preponderance of the evidence, and that the child is a neglected child as defined by KRS 600.020(1)(a)(2); KRS 600.020(1)(a)(4); and KRS 600.020(1)(a)(8)." The family court ordered that child remain in the temporary custody of the Cabinet.
Mother filed a timely motion to alter, amend or vacate, which the family court denied. On October 20, 2016, the family court entered its order following a dispositional hearing in which it ordered child committed to the Cabinet. Mother appealed.
While mother's notice of appeal states she is appealing from all the orders made in this case, her arguments in her brief focuses on errors regarding the findings and conclusions made in the adjudication order. She argues the family court erred by: (1) concluding child was neglected because mother violated the prevention plan; (2) finding that mother violated the prevention plan where father was ultimately and solely responsible for creating the risk of injuries to child; (3) finding that mother provided inadequate medical care to child for the burn; and (4) delegating its judicial authority to the Cabinet by relying on a violation of the prevention plan to substantiate a finding of neglect.
Juvenile DNA proceedings require distinct hearings for an adjudication and a disposition. KRS 610.080; KRS 620.100(2), (4). During the adjudication, the family court determines the truth or falsity of the allegations in the petition. KRS 610.080(1); KRS 620.100(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 620.100(3). "The disposition shall determine the action to be taken by the court on behalf of the child and his parent. . . ." KRS 620.100(4). See KRS 610.110(1).
Pursuant to KRS 600.020 a child can be found to be abused and neglected based on a parent placing that child at risk of abuse and neglect, repeatedly failing to protect that child or failing to provide that child with necessary medical care:
(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:
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).. . .
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;
. . .
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of 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[.]
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,
L.D., 350 S.W.3d at 830 (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.
The family court's findings are not clearly erroneous and the family court applied the correct law. While mother argues the family court erred by concluding child was neglected solely based upon mother's violation of the safety plan, the family court's finding of neglect was based upon mother arranging for child to be left with a caretaker who was known to have caused child's previous broken bones. The violation of the safety plan was only important in that it showed mother had knowledge that child should not be left with grandmother and understood the reason for the plan. Mother arranging for child to be left with grandmother constituted neglect because it placed child at risk of physical injury and was a failure to protect child. While mother tried to place the blame on father and grandfather for taking child to grandmother's house, the family court believed grandfather's and father's testimony that mother directed that child be left with grandmother. The fact that father chose to act on mother's direction, rather than mother directly taking child to grandmother's house, did not absolve mother of responsibility for child's welfare.
While there was evidence that mother's first aid for child's burn could have been sufficient, there was also contradictory evidence that her treatment was insufficient under the circumstances and fit into a pattern of failing to seek prompt and appropriate medical attention for child. The family court was entitled to resolve this factual dispute and conclude the care given was inadequate without an immediate doctor's visit once mother noticed the burn.
Accordingly, we affirm the adjudication order finding child was neglected by mother.
ALL CONCUR. BRIEFS FOR APPELLANT: Christopher Lee Coffman
Colin O'Brien
Lexington, Kentucky BRIEF FOR APPELLEE: Rex Hunt
Assistant Franklin County Attorney
Frankfort, Kentucky Rick Sparks
Franklin County Attorney
Frankfort, Kentucky