Opinion
2021-CA-0878-ME 2021-CA-0880-ME 2021-CA-0881-ME 2021-CA-0882-ME
03-04-2022
A.D.[1] AND K.C. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND K.B., A MINOR CHILD APPELLEES AND A.D. AND K.C. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND L.B., A MINOR CHILD APPELLEES AND A.D. AND K.C. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND J.C., A MINOR CHILD APPELLEES AND A.D. AND K.C. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND K.D., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANTS: BRIAN D. BAILEY DANVILLE, KENTUCKY BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: TIFFANY L. YAHR LEXINGTON, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE LUCINDA C. MASTERTON, JUDGE ACTION NOS. 20-AD-00023, 20-AD-00024, 20-AD-00025, 20-AD-00026
BRIEFS FOR APPELLANTS: BRIAN D. BAILEY DANVILLE, KENTUCKY
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: TIFFANY L. YAHR LEXINGTON, KENTUCKY
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
OPINION
DIXON, JUDGE
A.D. ("Father") is the stepfather of K.B. and L.B. and the biological father of K.D. and J.C. K.C. ("Mother") is the biological mother of all four of these children. Father and Mother challenge the order of termination of parental rights entered on July 2, 2021, by the Fayette Circuit Court. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Father and Mother are-and for all times relevant to these proceedings were-married. Prior to J.C.'s birth, Father and Mother lived together with K.B., L.B., K.D., and Father's children from a previous marriage.
On May 18, 2018, after midnight, Father and T.D.-Father's eldest daughter from his prior marriage-engaged in a heated argument. Father and Mother contend that this argument involved merely raised voices and no physical violence. However, T.D. claimed that when Mother stepped in between Father and her, Father headbutted Mother out of his way and then pushed T.D. back on her bed, choking her with his left hand. She claimed she pried his hand off her and broke a fingernail in the process. Despite the significant differences in their versions of events, all three agree that T.D. left the house in her nightclothes with no coat, shoes, or bag.
T.D. reported Father was drunk. Father admitted he drank two cocktails earlier that night but denied being drunk at the time of the argument. Mother stated that Father had not been drinking that evening.
After T.D. fled from the house, Father went across the street and knocked on a neighbor's door to see if T.D. was with her friend who lived there. The friend's mother stated she was not. Father returned home and was met by Mother on the porch. Mother called a church friend to watch the remaining children while Father and Mother searched for T.D. Still suspecting T.D. was at the neighbor's house, Father and Mother went across the street and banged on the door again. The friend's mother answered the door a second time and told them to quit banging on her door or she would call the police. She also pulled back a curtain so Mother could see T.D. was not in the house.
Mother then saw T.D. get into a car, apparently operated by T.D.'s older boyfriend as she spent the remainder of the late evening/early morning at his house. T.D. reported the incident to the Cabinet for Health and Family Services (the "Cabinet") prior to going to school. She told the Cabinet that Father grabbed her by the arm and choked her until she kicked him off her.
Later that day, Mother called the high school to see if T.D. was there and was informed by the staff that she was not. Mother told the school staff that T.D. ran away and requested they call her if T.D. reported to school later that day. Mother also asked the staff to inquire as to where T.D. had stayed and gotten clothes and shoes, and further instructed that T.D. not ride the school bus home because Mother would pick her up.
T.D. later reported to school and met with school staff. When T.D. told them Father had choked her, the Cabinet was contacted. Kennedy Barrett, a social worker and investigator with the Cabinet, came to talk with T.D. T.D. was reluctant to speak with Barrett at first; however, she eventually told Barrett that Father got drunk, they argued, and he choked her.
Barrett also interviewed L.B. at the middle school. L.B. said he was asleep in his room until the argument woke him up. He stayed in his room during the argument, so he saw nothing. He also informed Barrett that Father drank alcohol when he was stressed.
When Mother came to pick up the children, Barrett-accompanied by another Cabinet worker and law enforcement-asked if Mother would speak with her inside the school. Mother declined, stating she would prefer an attorney be present. T.D. did not leave with Mother. Instead, T.D. was transported to the hospital for examination.
All seven children were removed from the home that evening. Father's children from his previous marriage were sent to live with their mother. K.B., L.B., and K.D. were taken into the temporary custody of the Cabinet. Shortly after J.C. was born, during the pendency of these actions, he was removed from the home as well.
When the children were initially interviewed, they did not disclose any other abuse. Unfortunately, K.B., L.B., and K.D. were abused in foster care and thereafter disclosed multiple instances of beatings from Father and Mother that far surpassed the level of appropriate punishment and constituted physical abuse. The children relayed instances of themselves and their siblings-especially the older ones-being beaten with paddles, cords, sticks, and the like. K.B., L.B., and K.D. disclosed an instance of a paddle being broken on a child during a beating and expressed fear of returning to Father and Mother. The children disclosed that Father was drunk all the time and smoked weed. They also admitted that they had lied during their initial interviews because they were instructed by Father and Mother not to tell anyone about what happened at their house, and they feared what would happen if they told the truth.
While in the Cabinet's care, the children attended therapy to learn better skills to control their emotions. Yet, dealing with the issues caused by their past abuse was difficult for them, and one of the children was even hospitalized at one point for suicidal ideations.
The Cabinet met-or attempted to meet-with Father and Mother countless times over the course of the next few years to develop and track their progress on various case plans. Father and Mother were largely noncompliant with the proposed case plans and refused to sign any of them until August 2, 2018, the day after J.C. was removed from their care. From the date of the initial removal and throughout this appeal, Father and Mother nearly always had their own privately retained counsel or insisted on representing themselves. Both were adamant about not wanting or needing court-appointed counsel.
Father was criminally charged with assault against T.D. in a separate action. Following the advice of his counsel, he took an Alford plea, stipulating guilt to the charge of physical abuse of his child. Both Father and Mother entered Alford pleas in the underlying juvenile actions.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
On April 22, 2019, Father and Mother stipulated to neglect.
Even so, both Father and Mother consistently denied-and still deny- they abused their children and continually demonstrated a lack of sympathy and empathy toward them. Admitting and acknowledging the abuse was the first step on the road to recovery and reunification of this family, and unfortunately, Father and Mother repeatedly testified this was the one thing they would never do. It was this refusal, coupled with their failure to cooperate with the Cabinet or document progress on their case plans, that led to the change in the goals and outcomes of the case plans from reunification to TPR.
The Cabinet filed petitions for TPR for these children on January 21, 2020.
The immense efforts by the Cabinet to unify this family were ultimately to no avail. The trial court eventually ordered TPR and entered extensive findings of fact and conclusions of law following a final hearing that took place over the course of five days. This appeal followed.
The trial court issued 35 pages of findings of fact and conclusions of law for each K.D. and J.C. in support of its orders of TPR and 36 pages of findings of fact and conclusions of law for each K.B. and L.B in support of its orders of TPR.
The final hearing was initially scheduled to take place over three days.
STANDARD OF REVIEW
To begin, we note that the trial court has wide discretion in terminating parental rights. [Cabinet for Health & Fam. Servs. v. T.N.H., ] 302 S.W.3d 658, 663 (Ky. 2010) (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)). Thus, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. Kentucky Rules of Civil Procedure ("CR") 52.01. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." T.N.H., 302 S.W.3d at 663. Due to the fact that "termination decisions are so factually sensitive, appellate courts are
generally loathe to reverse them, regardless of the outcome." D.G.R. [v. Cabinet for Health & Fam. Servs., ] 364 S.W.3d [106, ] 113 [(Ky. 2012)].Cabinet for Health & Fam. Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014).
"Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Nat. Res. & Env't Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934). With these standards in mind, we turn to the case at bar.
ANALYSIS
On appeal, Father and Mother first argue they had ineffective assistance of counsel at three critical junctures of their cases: (1) when previous counsel advised them to take Alford pleas in this case and the underlying juvenile cases, (2) when attorney Reginald Thomas-who formerly represented Father and Mother in the criminal and juvenile proceedings-reentered the case as counsel to Mother only without first obtaining a signed waiver from Father, and (3) when prior counsel advised Father to enter an Alford plea in the related criminal case.
Their current counsel entered his appearance for Father and Mother shortly before the final hearing.
Concerning parents' rights to effective assistance of counsel in TPR proceedings, another panel of our court has opined:
The law in this Commonwealth is that the due process clause, and KRS 625.080(3) and 620.100(1) require that the parental rights of a child not be terminated unless the parent has been represented by counsel at every critical stage of the proceedings. This includes all critical stages of an underlying dependency proceeding in district court. R.V. v. Com., Dept. for Health and Family Servs., 242 S.W.3d 669, 673 (Ky. App. 2007).
It is logical that the parent's right to counsel includes effective representation. However, it does not derive from the Sixth Amendment nor can RCr 11.42 be invoked. We hold that if counsel's errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective.Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008).
Kentucky Revised Statutes.
Kentucky Rules of Criminal Procedure.
In the case herein, it is apparent that Father and Mother were given fair and meaningful opportunities to be heard from the initial hearing through the final hearings. They have not shown where any misstep of counsel caused them prejudice or led to a different result or outcome than would have otherwise occurred.
It is well-established a single error alone does not necessarily require reversal, and our Court is bound to review the error for possible harmlessness. CR 61.01 provides:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Had Father and Mother never entered Alford pleas in any case or had attorney Thomas never reappeared as counsel for Mother, more than ample substantial evidence would still support the trial court's findings that TPR was appropriate under KRS 625.090. The trial court made extensive findings of fact and conclusions of law that Father and Mother neglected the children pursuant to KRS 600.020(1)(a) subparts 1 through 4 and 9. Simply put, Father and Mother have failed to show any counsel or trial court error affecting their substantial rights; thus, we affirm.
Father and Mother further contend their due process rights were violated. This argument is twofold. First, they assert that they were not represented by counsel at every critical stage of the TPR process. Second, they allege no Boykin inquiry was conducted to ensure their pleas were knowingly, intelligently, and voluntarily made.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Throughout the course of these proceedings the trial court periodically discussed the issue of court-appointed counsel with Father and Mother. KRS 625.080(3) only requires, "upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the parent[.]" (Emphasis added.) Every time the court offered to appoint counsel for Father and/or Mother, Father and/or Mother steadfastly insisted they would secure their own counsel and/or represent themselves. Their conduct clearly demonstrated their intent to waive their rights to court-appointed counsel.
We next turn to Father's and Mother's argument that no Boykin inquiry was conducted prior to their entering Alford pleas. As previously discussed, the outcome of this case would have been no different had Father and Mother not entered Alford pleas. Accordingly, we must affirm.
Father's and Mother's final argument is that the trial court abused its discretion by denying their request for a continuance. They admit that the final hearing had been continued twice and that the first continuance was Father's fault; however, they contend the second continuance was the fault of attorney Thomas.
On March 24, 2021, counsel moved the trial court for a continuance stating, among other reasons, "in light of the Global Pandemic currently raging across the world" he believed "it would be impossible to properly prepare for this hearing in less than 35 days." Despite these assertions, counsel provided effective assistance to Father and Mother during the final hearing.
By way of background, the final hearing was initially scheduled to begin on October 6, 2020. On September 20, 2020, and again on September 25, 2020, Father moved the trial court for a continuance, claiming he needed additional time to secure legal representation. At a hearing on October 2, 2020, Father stated he was awaiting confirmation of representation by counsel, which he expected to come later that day. The trial court rescheduled the final hearing to begin in January 2021.
The trial court signed the order setting trial on June 16, 2020, and that order was entered into the record on June 20, 2020.
The trial court scheduled the hearing to begin on January 13, 2021, but rescheduled the hearing to January 19, 2021, after a brief stay for the parties to attempt arbitration.
On January 15, 2021, attorney Thomas informed the trial court that Father had refused to sign a waiver, forcing him to withdraw as counsel for Mother. The trial court reset the final hearing to begin on April 27, 2021. Father and Mother assert that the continuance "could have been avoided had Mr. Thomas dealt with his conflict of interest seven months earlier." However, this attempt to shift blame wholly to attorney Thomas for the second continuance is inappropriate since at least partial blame lies with Father for allowing attorney Thomas to believe Father would sign a waiver throughout those seven months.
On January 15, 2021, attorney Thomas moved the trial court to withdraw as counsel for Mother because Father refused to sign a waiver. This motion was not entered into the record until January 16, 2021.
The order resetting trial was signed by the trial court on March 9, 2021, and entered into the record on March 11, 2021.
Nonetheless, the Supreme Court of Kentucky set forth various factors to consider when reviewing the denial of a continuance in criminal cases in Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). Another panel of our Court opined that "it is wholly appropriate to apply the Snodgrass factors to analyze a civil motion for a continuance while taking into account all the relevant facts and circumstances" in Guffey v. Guffey, 323 S.W.3d 369, 372 (Ky. App. 2010). The Snodgrass factors are:
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6)complexity of the case; and
7)whether denying the continuance will lead to identifiable prejudice[.]Id. at 371 (citing Snodgrass, 814 S.W.2d at 581). "[W]hether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case." Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).
Here, the length of delay from the date the final hearing was first set to begin-October 6, 2020-to the date it actually began-April 27, 2021-was six months. The final hearing had been continued twice before. There would certainly be inconvenience to litigants, witnesses, counsel, and the court to continue the final hearing a third time. Both delays were caused by Father's and/or Mother's failure to promptly secure counsel. Competent counsel was available, as evidenced by their current counsel. Concerning the complexity of these cases, even though they involve multiple children who have been removed from Father's and Mother's care for a significant period, they are relatively straightforward. Father and Mother have failed to demonstrate how denying a third continuance led to identifiable prejudice. Therefore, applying the Snodgrass factors and considering the totality of the circumstances of the case at hand, we do not believe that the family court abused its discretion. Thus, we must affirm.
CONCLUSION
For the reasons discussed above, we uphold the trial court's findings that TPR was appropriate, statutorily permissible, and supported by clear, convincing, and substantial evidence. The orders of the Fayette Circuit Court are hereby AFFIRMED.
ALL CONCUR.