Opinion
NO. 2013-CA-001089-ME
05-09-2014
B.K.B., Father APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.B., Mother of all children named herein; B.B., a minor child; K.B., a minor child; M.H., a minor child; A.B., a minor child; A.B., a minor child; and B.B., a minor child APPELLEES
BRIEF FOR APPELLANT: Bruce D. Prizant Jane W. Prizant Louisville, Kentucky BRIEF FOR APPELLEES: David A. Sexton Michael J. O'Connell Jefferson County Attorney Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NOS. 10-J-504441, 10-J-504441-0, 10-J-504442, 10-J-504442-0,
10-J-504443, 10-J-504443-0, 10-J-504444M 10-J-504444-0,
10-J-504445, 10-J-504445-0, 10-J-504446, 10-J-504446-0
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: B.B. appeals from the order of the Jefferson Circuit Court which found that he had sexually abused his stepdaughter and that he had placed other children in the home at risk for abuse. After our review, we vacate and remand.
On August 12, 2010, the Cabinet for Health and Family Services filed a petition alleging dependency, neglect, and abuse in the Jefferson Family Court. It was based on reports that B.B. had sexually abused one of his stepdaughters. The court held a temporary removal hearing on August 17, 2010, and B.B. was ordered to have no contact with his stepdaughter and her five siblings. The adjudication hearing was scheduled but postponed several times until May 1, 2012, when a petition was filed alleging neglect by the children's mother. B.B.'s hearing was continued again in order to consolidate the two petitions. In the meantime, B.B.'s criminal trial was held on February 28, 2012; the jury acquitted him.
On September 18, 2012, the mother stipulated to neglecting the children. On that same day, the court also scheduled B.B.'s hearing for December 11, 2012. It informed the parties that it intended to use transcripts of the children's testimony from the criminal trial. B.B.'s counsel did not object. The court also told B.B. that it would not continue the hearing again -- even if B.B. were to obtain new counsel.
At the hearing, B.B. did have counsel, who objected to the use of the transcribed testimony and asked for a continuance. The court overruled the objection. The Commonwealth called one witness, the Cabinet social worker who had conducted the investigation. The criminal trial transcripts constituted the remainder of its proof. B.B.'s uncle testified on his behalf and attested that the children had fabricated the allegations of abuse.
The family court entered its findings on January 18, 2013. It recited all the evidence -- both from the hearing and from the transcripts. The family court concluded that B.B. had sexually abused his stepdaughter, thus placing her five siblings at risk. This appeal follows.
The purpose of an adjudication hearing is to determine whether the allegations in the petition are true. Kentucky Revised Statute[s] (KRS) 620.100(3). The standard of proof is the preponderance of the evidence, and the Commonwealth bears the burden of proof. Id. A trial court has broad discretion, and we may disturb its findings only if it has committed clear error. C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 916 (Ky. App. 2009). We must uphold the findings of the trial court if they are supported by clear and convincing evidence. Id. Clear and convincing proof is "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 70 S.W. 5, 9 (Ky. 1934).
B.B. first argues that by using the transcribed testimony, the family court violated his Sixth Amendment right to confront his accusers. However, our Supreme Court has held that there is no right to confrontation in the civil context -- specifically in proceedings for termination of parental rights. Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 344-47 (Ky. 2006). This court has also held that the Sixth Amendment does not apply in dependency actions. Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008). Therefore, there is no analysis for us to conduct pertaining to the allegation of error arising from the use of transcribed testimony.
B.B. also argues that the testimony was admitted in violation of KRS 421.350. This statute permits the use of recorded testimony of a child if the child is twelve years of age or younger. KRS 421.350(3). It applies to dependency hearings as well as criminal trials. KRS 421.350(1).
Before a recording can be used, the court must hold a hearing to determine if there is a compelling need for the testimony to be taken outside the courtroom. Id. In this case, no such hearing appears in the record, and the Commonwealth does not argue that one ever took place. However, on September 18, 2012, B.B. agreed to the use of the transcribed testimony. In an unpublished case, our Supreme Court has held that an agreement is a waiver of the hearing requirement. Wilson v. Commonwealth, 2004 WL 2624155 at *4 (Ky. Nov. 18, 2004). Therefore, the family court did not err by not conducting the hearing. We note, however, that Court commented that, upon retrial, the waiver could be withdrawn, thus again necessitating a hearing. Id.
Unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration if there is no published opinion that would adequately address the issue before the court.
B.B's most compelling argument is that the trial court's findings were not supported by substantial evidence because the transcripts of the criminal trial testimony were not admitted into the record. While the transcripts were mentioned several times at the hearing, neither the county attorney nor the guardian ad litem moved to have them introduced into the record.
"[O]ur review is confined to matters properly made a part of the record below." Baker v. Jones, 199 S.W.3d 749, 753 (Ky. App. 2006). The predecessor to our Supreme Court emphasized as follows:
we are confronted on a review of the record by the necessary and controlling principle that the propriety of a judgment is dependent upon the evidence heard and not upon what the court may have learned or known outside the record.Wacker v. Wacker, 129 S.W.2d 1043, 1045 (Ky. 1939). That same high court later reiterated that in a child custody determination, it was error for the court to consider reports that had not been made part of the record. Wells v. Wells, 406 S.W.2d 157 (Ky. 1966).
We acknowledge that this is a rather unique situation. The parties had agreed to use the previous testimony. All stated that they had copies of the testimony. However, because the transcripts are not in the record, we are unable to conduct a meaningful review of the family court's findings.
Most of the family court's findings are recitations of the children's testimony. Without that testimony, there was a lack of substantial evidence to support the findings of abuse and neglect. We cannot determine if that testimony was sufficient to support the findings if it is not in the record. The family court's order also mentions the brief testimony of the Cabinet's social worker, which we reviewed. She testified only that she had taken a report. She offered very little information concerning the progression or conclusions of the investigation, which lacked sufficient substance to support the court's finding of abuse and neglect.
In a somewhat similar case, Skinner v. Skinner, 249 S.W.3d 196, 201 (Ky. App. 2008), our Court ordered a remand in order for the record to be corrected. We find Skinner to be persuasive precedent. Accordingly, we vacate the order of the Jefferson Family Court and remand for appropriate proceedings; i.e., the opportunity for a hearing to be conducted pursuant to KRS 431.350 and entry into the record of all relevant testimony upon which its new findings will depend.
ALL CONCUR. BRIEF FOR APPELLANT: Bruce D. Prizant
Jane W. Prizant
Louisville, Kentucky
BRIEF FOR APPELLEES: David A. Sexton
Michael J. O'Connell
Jefferson County Attorney
Louisville, Kentucky