Opinion
NO. 2014-CA-001885-ME
02-05-2016
B.D. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE
BRIEF FOR APPELLANT: Nanci M. House Winchester, Kentucky BRIEF FOR APPELLEE: No brief for Appellee
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEFFREY M. WALSON, JUDGE
ACTION NO. 14-J-00289 OPINION AND ORDER
AFFIRMING AND GRANTING THE MOTION TO WITHDRAW BEFORE: MAZE, STUMBO, AND TAYLOR, JUDGES. MAZE, JUDGE: Pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), B.D. seeks this Court's independent review of the Madison Circuit Court's several orders, including its holding that she neglected her child, K.B.C. We observe no reversible error; therefore, we affirm.
B.D. gave birth to K.B.C. on June 18, 2014. The next day, the Cabinet for Health and Family Services (hereinafter "the Cabinet") filed a Petition and moved for an Emergency Custody Order (ECO) removing K.B.C. from B.D.'s custody. An affidavit supporting this motion cited B.D.'s "substantial history with the Cabinet including a current open case wherein two children are placed in foster care." The affidavit also stated that B.D. and K.B.C.'s natural father were the subject of numerous orders in the prior case, including a no contact order due to a history of domestic violence. However, according to the affidavit, neither party complied with those orders, placing K.B.C. "at significant risk of harm if allow[ed] to remain in the care of the parent(s)." After a hearing, the trial court entered the ECO and awarded temporary custody of K.B.C. to the Cabinet.
We note that the Cabinet did not file a brief on appeal. As we have stated before, Kentucky Rules of Civil Procedure (CR) 76.12(8) provides this Court with the discretion to impose one of several sanctions, up to and including dismissal of the appeal. See Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d 762, 766 (Ky. App. 2005) (citation omitted). However, in light of the circumstances of this case, we opt for a less severe sanction, instead "accept[ing] the appellant's statement of the facts and issues as correct." CR 76.12(8)(c).
The Cabinet filed an Amended Petition on July 2, 2014, alleging that K.B.C. was born testing positive for opiates and morphine. However, at trial, the Cabinet proceeded exclusively under the allegations made in the original Petition. Therefore, our review is limited to the evidence of record pertinent to those allegations only.
At the August 20, 2014 adjudicative hearing, the Commonwealth entered into the record various certified documents from B.D.'s prior case in Fayette Family Court. These documents and orders reflected B.D. and natural father's history of domestic violence and violation of orders intended to prevent their prior children's exposure to such incidents. The documents also included orders of the Fayette Family Court which showed that, as of the date of the hearing, B.D.'s failure to comply with court orders had caused that court to change the permanency goal for the older children from "reunification" to "adoption."
A social worker from the Cabinet testified at the hearing to her dealings with B.D. and natural father. She stated that the natural father had admitted that he and B.D. were in a relationship and living together despite court orders. B.D. denied this in her testimony, adding that the prior court's findings that she violated the no contact order and other orders were "wrong." B.D. acknowledged a history of domestic violence as well as her pattern of sustaining abuse and later reconciling with her abuser. Finally, she acknowledged that she and the natural father conceived K.B.C. while the natural father was under a court order to have no contact with at least one of the older children.
Based upon the documentary and testimonial evidence, the trial court found that B.D. had neglected K.B.C. due to her "substantial history" with the Cabinet "due to [domestic violence] between Mother and [natural father]" and her "willful pattern of violating court orders." Accordingly, the trial court ordered that K.B.C. remain in the temporary custody of the Cabinet.
At an October 22 dispositional hearing, the Cabinet updated the court on B.D.'s compliance with the court's orders. The report also stated K.B.C. was thriving and that B.D. had attended supervised visits with K.B.C. However, the Cabinet reported that B.D. and the natural father had engaged in domestic violence only weeks before, despite B.D.'s assurances that she had had no contact with natural father. The Cabinet expressed concern regarding B.D.'s ongoing ability to protect her children from domestic violence; and it recommended that custody remain with the Cabinet. Despite B.D.'s request that she be reunified with her child, the trial court adopted the Cabinet's recommendation.
B.D. filed a timely appeal of the August 20, 2014 and October 22, 2014 orders. However, B.D.'s appointed counsel filed a brief stating that she was "unable to find error which would entitle Appellant to relief." Pursuant to Anders v. California, supra, and the procedure set forth in A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel sought our review of the trial court's orders on her client's behalf and filed a Motion to Withdraw which remains pending before this Court. Accordingly, the Motion to Withdraw is granted and this appeal shall proceed pro se.
On appeal, B.D. requests that we independently review the propriety of the trial court's findings, including that she neglected K.B.C. It is therefore our task to determine whether substantial evidence existed to support those findings of fact, as we will set aside a trial court's findings of fact only if they were clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003), citing CR 52.01. Regardless of conflicting evidence, the weight of the evidence, or the fact that we might have reached a contrary finding, we must show due regard to the opportunity of the trial court to judge the credibility of the witnesses, a task within the exclusive province of the trial court. Id. (citations omitted).
KRS 600.020(1) defines an "abused or neglected child" as
a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent . . . :
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 . . . ;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child . . . ;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child; . . .
Kentucky Revised Statutes. --------
Substantial evidence existed in the record to support the trial court's findings and ultimate decision that B.D.'s conduct met the statutory definition of "neglect." The testimonial and documentary evidence entered at the adjudicative hearing demonstrated the "substantial history" the trial court referenced in its August 20, 2014 order. B.D. herself acknowledged a history of domestic violence which compelled orders forbidding contact between herself and natural father as well as between natural father and the older children. Importantly, the record also demonstrated B.D.'s "pattern" of violating court orders and her failure to protect her children, both of which the trial court spoke in its findings. The trial court reasonably concluded that this pattern posed a risk of neglect; and it was therefore justified in entering its subsequent orders regarding custody and other matters.
In the light of all the evidence, the trial court's conclusion had sufficient support in the record, and we will not set it aside. Moore, 110 S.W.3d at 354. While B.D. disputed much of the social worker's testimony, the trial court found her testimony not to be credible; and we will not challenge that assessment in the face of the aforementioned evidence of record.
The August 20, 2014 and October 22, 2014 orders of the Madison Circuit Court are affirmed. IT IS FURTHER ORDERED that B.D.'s counsel's Motion to Withdraw is GRANTED.
ALL CONCUR. ENTERED: February 5, 2016
/s/ Irv Maze
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Nanci M. House
Winchester, Kentucky BRIEF FOR APPELLEE: No brief for Appellee