Opinion
NO. 2019-CA-0344-ME
04-02-2021
C.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND G.G., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT Gayle E. Slaughter Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 18-AD-00103 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES. CALDWELL, JUDGE: C.C. appeals from a judgment terminating her parental rights to her child, G.G. We affirm.
To protect the privacy of the minor child, we will refer to the child and parents by their initials. We further note that C.C. failed to name the child as an appellee in the body of the notice of appeal, a potentially fatal error. See, e.g., A.M.W. v. Cabinet for Health and Family Services, 356 S.W.3d 134, 135 (Ky. App. 2011) ("If a parent appeals an order terminating parental rights, the child is a principal focus of the appeal. Therefore, the child must be made a party to the appeal to protect his interests. The child is a necessary and indispensable party to an appeal from the termination of parental rights and the failure to join the child to the appeal requires this Court to dismiss this appeal."). However, C.C. referred to the Cabinet serving as the next friend of the named child in the caption of the notice of appeal and—unlike A.M.W.—mailed a copy of the notice to the child's guardian ad litem. Therefore, dismissal of the appeals is unnecessary. Morris v. Cabinet for Families and Children, 69 S.W.3d 73, 74 (Ky. 2002) ("Appellants' notice of appeal named the minor child, CJM, in the caption, and, although he was not included in the certificate of service, copies of the pleadings were provided to the child's guardian ad litem. These factors together substantially comply with the requirements of [Kentucky Rule of Civil Procedure] CR 73.03 and provided sufficient notice to all parties concerned that the minor child was also an Appellee.").
In February 2012, C.C. gave birth to G.G. C.C. also had an older daughter and a son. In early 2016, the Cabinet opened an investigation based on allegations of drug use in C.C.'s home and/or the truancy of C.C.'s son. After C.C. tested positive for illicit drugs in some court-ordered drug screens, the Fayette Family Court adjudged G.G. to be an abused or neglected child in August 2016.
C.C. asserts in her brief that "[t]his matter began as a non-removal truancy case that quickly escalated to a removal case when [C.C.] tested positive for marijuana use." (Appellant's brief, p. 1). However, the investigative social worker testified to the Cabinet's opening an investigation in February 2016 due to allegations of drug use in C.C.'s home. At that time, there were ongoing issues about C.C.'s son (who was born several years before G.G.) missing school and being reported for truancy. In early 2016, G.G. was attending preschool and technically would not be considered a truant for any absences from preschool. However, there was social worker testimony of discovering that G.G.'s attendance at preschool was erratic and that G.G. on occasion had ridden the bus home from preschool to find no adult present at home. Originally, the Cabinet filed a neglect petition in early March 2016.
In January 2017, G.G. entered foster care after previously spending some periods being placed with relatives or family friends and other periods returned to C.C.'s care upon apparent compliance with case plan requirements. The Cabinet sought and received emergency custody of G.G. due to C.C.'s testing positive for cocaine (which C.C. alleged was due to sexual contact with a user), refusing to cooperate with Cabinet personnel on working her case plan, and appearing to be impaired when picking C.C. up from school.
Meanwhile, the family court judge originally assigned to this case had recused following C.C.'s posting comments on the judge's Facebook page. C.C. admits she used poor judgment in this instance and pled guilty to harassing communications with the original family court judge listed as the victim. Following the original judge's recusal, the case was re-assigned to another Fayette Family Court judge (Judge Kathy Stein).
In May 2018, the Cabinet filed a petition as next friend of G.G. to terminate the parental rights of C.C. and of T.A. (a resident of another state), whom C.C. alleged to be G.G.'s biological father. As grounds for termination, the Cabinet asserted that G.G. had been in foster care for fifteen of the last twenty-two months and alleged that G.G.'s parents failed to provide necessities for reasons other than poverty alone and failed to provide essential care and protection for over six months, with no reasonable prospect of improvement in the near future.
At the time of the early November 2018 trial, G.G.'s paternity had still not been determined although T.A. asserted that paternity testing had been ordered sixteen months ago. Apparently T.A. had submitted to testing but G.G. had not been tested yet and was not scheduled to be tested until late November. Mid-trial, T.A. filed a motion to be dismissed from the action. He claimed that he did not meet requirements for being named a party to the action or a putative father. He also contended that terminating parental rights before a determination of paternity would be improper.
After the trial judge orally stated she would grant the motion for dismissal, Cabinet counsel expressed an intention to seek termination of the rights of all unknown fathers. T.A.'s counsel stated for the record that his client did not intend to waive any rights concerning the child by seeking dismissal from the termination action. Cabinet counsel argued that T.A. could not seek dismissal without waiving his rights.
The trial judge stated she would make no findings regarding T.A. and noted that she had already granted the motion to dismiss so T.A.'s counsel was free to leave. T.A.'s counsel did not ask to withdraw the motion. After the trial but before entering judgment, the family court issued a written order which mirrored its verbal ruling.
In December 2018, the family court entered its findings of fact and conclusions of law. Although it made no findings specifically about T.A., his name appeared in the caption of its findings of fact and conclusions of law. The family court concluded it was in G.G.'s best interest to terminate the parental rights of C.C. and all unknown fathers. So, the family court entered an order terminating the parental rights of C.C. and all unknown fathers of G.G.
T.A. and C.C. filed separate motions to alter, amend, or vacate. T.A. requested that the family court modify the judgment to clarify that it was not terminating any parental rights he might have. The family court denied both motions, explicitly noting that T.A.'s motion was denied based on its prior order dismissing him from the action.
Issues Regarding the Rights of Alleged Father T.A. Not Properly Before Us
We first note the last issue discussed in C.C.'s appellate brief—her contention that the family court erred in effectively terminating the parental rights of alleged father T.A. by terminating the parental rights of all unknown fathers. C.C. has cited no authority showing that she has standing to seek or obtain relief on T.A.'s behalf. And T.A. is not a party to this appeal, having been dismissed from this appeal upon order of this Court. Therefore, any issues regarding T.A.'s rights are not properly before us and we express no opinion on them.
C.C. and T.A. filed a joint notice of appeal, signed by their respective attorneys. The Cabinet filed a motion to dismiss T.A. from the appeal, arguing that he lacked standing as he was dismissed from the family court action. Another panel of this Court granted the Cabinet's motion to dismiss T.A. from the appeal. Although T.A. and C.C. filed a joint motion for reconsideration of his dismissal (which was denied), we are not aware of T.A.'s challenging his dismissal from the appeal through other means such as requesting a writ or discretionary review from the Supreme Court.
Instead, we are solely faced with the question of whether the family court committed reversible error in terminating the parental rights of C.C.
Standards Governing Trial and Appellate Courts in Involuntary Termination of Parental Rights Cases
Before terminating parental rights, the family court must find clear and convincing evidence to support each of three parts of the standard established by Kentucky Revised Statutes (KRS) 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). In determining the child's best interests and whether there are ground(s) of parental unfitness, the family court must consider the factors listed in KRS 625.090(3).
Clear and convincing evidence does not mean uncontradicted proof, but "proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Termination of parental rights is a grave action which the courts must conduct with "utmost caution." M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). Thus, the evidence to support termination must be clear and convincing. KRS 625.090; see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding due process requires proof by at least clear and convincing evidence for terminations).
Even so, a family court's decision to involuntarily terminate parental rights is accorded great deference on appellate review. Its factual findings are reviewed under the "clearly erroneous" standard of CR 52.01 meaning they shall not be disturbed unless they are not supported by substantial evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
CR 52.01 governs "all actions tried upon the facts without a jury" and provides in pertinent part: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the family court to judge the credibility of the witnesses."
At trial, the Cabinet presented testimony including that of social workers, G.G.'s therapist and foster mother, C.C.'s past and present therapists, and a psychologist who performed a parenting assessment. C.C. called to the stand family members or family friends who testified to her positive personality traits and to her having a support system and keeping a clean home. She also called Court Appointed Special Advocate (CASA) personnel and a Cabinet transportation aide who supervised family visits (including her last visit with G.G.) and recalled to the stand the current ongoing social worker. (One subject of the testimony she presented concerned how her visits with G.G. had been suspended after she had a disagreement with the aide about whether she had to seek permission or inform her before visitation to use the restroom).
Prior to trial, C.C. had filed a motion to reinstate visitation and the family court conducted an evidentiary hearing on this matter. After hearing testimony from C.C. and her social worker about the disagreement during the visit and a meeting to discuss what happened, the family court declined to order that the visits be reinstated. Although, from our review of the hearing, the family court inquired about whether C.C. lost her temper at the visitation or the meeting, the primary basis for not reinstating visitation appeared to be recent positive drug screens.
Lastly, C.C. herself testified on the last day of trial. She explained positive drug screens for cocaine as being the result of sexual activity with a cocaine user, although she admitted to using synthetic marijuana once so that she could get in a recommended treatment program. She discussed her love for G.G. and her ongoing efforts to deal with mental health and substance abuse issues and expressed frustration with the Cabinet's handling of her case. She asserted she had dealt with her problems and would be able to properly care for G.G.
Upon careful review of the family court's order terminating parental rights and its lengthy findings of fact and conclusions of law, we note that the family court made the findings required by KRS 625.090. The family court noted the prior adjudication that G.G. was an abused or neglected child in the DNA proceeding and it made its own finding that G.G. was currently an abused or neglected child as defined in KRS 600.020.
Specifically, the family court found that C.C. created or allowed a risk of injury by non-accidental means and engaged in a pattern of conduct making her unable to provide proper care for G.G. due to C.C.'s habitually using drugs. The family court noted evidence of positive drug screens for illegal drugs (including marijuana and cocaine) and unprescribed medications. It also found that C.C. had been involved in selling drugs based on exhibits and testimony, including a counselor's testimony that C.C. admitted to selling drugs since she was a teenager and that C.C. claimed selling drugs would not endanger her children.
In addition to citing evidence of C.C.'s selling and using drugs and discussing the impact of such actions on G.G., the family court also found that C.C. had engaged in a pattern of aggressive and threatening behavior with acts of domestic violence:
Further, testimony and exhibits also established that [C.C.] has engaged in a behavior pattern of verbal aggression, threats of harm, and acts of domestic violence. EPOs, DVOs, and criminal records were introduced as exhibits that each involved [C.C.'s] actions. The Court notes that not all the EPOs were found to be appropriate for a DVO and not all the criminal charges resulted in convictions; however, each instance was similar in that it involved aggressive behavior by [C.C.] This same behavior was noted by all four social workers. While she was not aggressive with him, Dr. Feinberg also noted this anger and aggression was prevalent in his evaluation as well. This pattern of conduct, including drug use and aggression, are [sic] incompatible with safe parenting and has [sic] rendered [C.C.] incapable of providing for the immediate and ongoing needs of her daughter.(Pages 38-39 of Findings of Fact, Conclusions of Law and Judgment attached as Appendix to Appellee's brief, also R., pp. 212-13).
The family court also determined that termination was in G.G.'s best interests, finding that the Cabinet had made reasonable efforts towards reunification and that C.C. had not made sufficient efforts or adjustments for G.G. to return to her care within a reasonable time. It also made detailed findings on other statutory factors—particularly about C.C.'s mental health and C.C.'s prior acts of abuse or neglect towards other children (as evidenced by Cabinet referral records) and about G.G.'s emotional, mental, and physical health and prospects for improvement.
Lastly, the family court determined that three separate grounds of parental unfitness were established under KRS 625.090(2): 1) failure, refusal or inability to provide essential parental care and protection for at least six months with no reasonable prospect for improvement within a reasonable time considering the child's age, 2) for reasons other than poverty alone, failure or inability to provide necessities (food, clothing, shelter, medical care, or education) with no reasonable prospect of significant improvement in the near future, and 3) the child's having spent the last fifteen months before the filing of the termination petition in foster care. See KRS 625.090(2)(e), (g), (j).
When the petition was filed in May 2018, KRS 625.090(2)(j) defined one ground of parental unfitness as: "That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights[.]" When the termination trial was held, and the family court entered its judgment later in 2018, KRS 625.090(2)(j) had been amended to now define one ground of parental unfitness as: "That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]" There is no dispute that G.G. remained in foster care from January 19, 2017 through the filing of the termination petition on May 10, 2018—thus satisfying both relevant versions of KRS 625.090(2)(j).
Before considering whether specific (especially disputed) findings are supported by substantial evidence, we consider C.C.'s more general contentions that the trial judge should have recused or been disqualified and that the trial judge improperly denied her motion for a continuance to complete presentation of her case.
No Reversible Error in Denial of Recusal or Disqualification of Trial Judge
In the fall of 2018, C.C. moved pretrial for Judge Stein to recuse from trying the case. In her supporting affidavit, she stated that Judge Stein had failed to disclose "ex parte" communications concerning a third party's informing the Judge of a "duty to warn" regarding C.C.'s allegedly planning to harm a social worker and her family and the Judge. (R., p. 97). She also stated that Judge Stein had made remarks at a court hearing to the effect that C.C. caused problems and showed poor judgment in publicly protesting and alleging that the Cabinet had engaged in human trafficking and selling children. She further alleged that Judge Stein asked others later if she had gone too far and expressed feeling tired of having to "tiptoe" around such issues. (R., p. 98). And after C.C. followed counsel's advice to cover up her T-shirt showing support for a friend whose grandchild died in foster care before a court hearing, the Judge demanded to see the T-shirt and "ridiculed and belittled" C.C. about a typographical error on the shirt. (R., p. 99). (The hearings C.C. alludes to were apparently part of the DNA proceeding, rather than the termination proceeding.) C.C. asserted that the Judge demonstrated bias through making such statements and in considering hearsay evidence over her objection. The family court denied the motion for recusal after a hearing.
C.C. filed two pretrial motions for Judge Stein to recuse—in late September and early October 2018. The first motion stated it was brought solely under KRS 26A.015; the second recited that it was brought under both KRS 26A.015 and KRS 26A.020. Each motion was accompanied by a supporting affidavit. These two affidavits filed before the trial were very similar although not completely identical; essentially their substance was the same. We quote from the second affidavit, which was also accompanied by C.C.'s first motion requesting that the Chief Justice disqualify Judge Stein and appoint a special judge.
Upon certification of the Clerk of the Fayette Circuit Court of C.C.'s affidavit, the Chief Justice of the Kentucky Supreme Court then reviewed C.C.'s request to disqualify the trial judge and have a special judge appointed. By written order, the Chief Justice determined that C.C. "has failed to demonstrate any disqualifying circumstance that would require the appointment of a special judge under Kentucky Revised Statutes (KRS) 26A.020." The order further noted that C.C.'s request was "denied without prejudice of any party to seek appellate review after entry of a final judgment." (R., p. 130).
After the first day of trial, C.C. again moved for Judge Stein to recuse. In her supporting affidavit, she averred that her therapist had testified at trial that the therapist's supervisor had contacted Judge Stein concerning authorities' suspicions that C.C. had threatened her social worker and the social worker's family by using someone else's social media account. She asserted that Judge Stein never disclosed this communication and should now be questioned about it as a witness and disqualified from presiding over the proceedings. Judge Stein denied the motion for recusal and noted that C.C. had stated her position for the record but otherwise declined to address the matter further. (Although C.C. subpoenaed the therapist's supervisor a couple of days after the therapist's testimony, the supervisor did not appear during the last two days of trial, and the family court refused to issue a show cause order or to continue the trial.) C.C. again filed a motion for disqualification of the trial judge with the Chief Justice, who denied the second disqualification request by order entered November 19, 2018. Currently, the applicable standard for reviewing a family court's ruling on a motion for recusal is abuse of discretion. See, e.g., Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). We are unaware of any authority establishing the standard of review for the Chief Justice's ruling on a disqualification motion, and we are doubtful of our authority to review such a ruling at all.
The Kentucky Supreme Court recently expressed an intention to shift to a de novo standard of review for rulings on motions for judicial recusal in a recent, not-yet-final, opinion designated for publication. See Abbott, Inc. v. Guirguis, No. 2018-SC-0577-DG, 2021 WL 728860 at *5, ___ S.W.3d ___ (Ky. Feb. 18, 2021) (petitions for rehearing and for modification or extension pending as of March 22, 2021).
Generally speaking, the Court of Appeals reviews court rulings by lower courts such as district or circuit courts and is not empowered to disturb the rulings of the Kentucky Supreme Court. See Kentucky Supreme Court Rules (SCR) 1.030(8)(a) (Court of Appeals bound by Kentucky Supreme Court precedent). Presumably, we would also lack the authority to review a decision solely by the Chief Justice—particularly in the absence of explicit law to the contrary. See Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 876 (Ky. App. 2007) (where litigant chose not to file motion for recusal, but solely sought relief through requesting that Chief Justice disqualify judge, holding issue of judicial recusal unpreserved as "there was no action by the family court and no alleged error for this court to review" and quoting Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985): "function of the Court of Appeals is to review possible errors made by the [family] court . . . ."). Nonetheless, even assuming, arguendo, that we have authority to review the Chief Justice's decision, we discern no reversible error in the denial of recusal or disqualification even if we applied a more exacting de novo standard of review.
The Cabinet argues that no prejudice resulted from any contact between the Judge and an outside party about "duty to warn" as nothing about the communication of a possible threat was explicitly mentioned in the judgment or played a part in the ultimate outcome. C.C. contends in her reply brief, however, that the family court demonstrated its prejudice or bias against her by simply "rubber-stamping" the proposed findings of fact and conclusions of law submitted by Cabinet counsel.
The Cabinet's proposed findings of fact and conclusions of law did not become part of the record for our review since they were evidently emailed to the court and counsel for other parties rather than being formally tendered. But there appears to be no dispute that the family court largely adopted what the Cabinet proposed after asking both parties to submit proposed findings of fact and conclusions of law following the final hearing. This is not necessarily error. See Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, 954 S.W.2d 954, 956 (Ky. 1997) (citing Bingham v. Bingham, 628 S.W.2d 628 (Ky. 1982) (rejecting allegation that family court failed to make its own findings by adopting the Cabinet's proposed findings and conclusions as: "The trial court requested both parties to submit proposed findings of fact, which both did. It is not error for the trial court to adopt findings of fact which were merely drafted by someone else."). Although we have made clear that wholesale adoption of proposed findings is not automatically grounds for reversal, Keith v. Keith, 556 S.W.3d 10, 14 (Ky. App. 2018), we have also expressed concerns about the wisdom of this practice when children's interests are at stake and when other facts and circumstances suggest that the trial court has not engaged in meaningful deliberation. See Retherford v. Monday, 500 S.W.3d 229, 232-33 (Ky. App. 2016).
Although frankly at least some paring down of the Cabinet's proposed findings by the family court might have been preferable here, we do not believe the family court's adoption of the Cabinet's findings demonstrated clear bias or lack of deliberation in light of ample proof supporting the court's findings and conclusions. And upon careful review of the record, we conclude that no reversible error resulted from the family court's denial of C.C.'s recusal motion.
The family court's receipt of information about a duty to warn was not a prohibited ex parte communication because this communication indisputably came from a third party rather than from any party or counsel in the case. See Commonwealth v. Cambron, 546 S.W.3d 556, 562 (Ky. App. 2018) (quoting statement in the Canon 3B(7) of the Judicial Code of Conduct in SCR 4.300: "With regard to a pending or impending proceeding, a judge shall not initiate, permit, or consider ex parte communications with attorneys and shall not initiate, encourage or consider ex parte communications with parties" absent stated exceptions. (emphasis added)).
C.C.'s affidavit supporting her first motion for recusal avers that the family court received and failed to disclose "ex parte negative, false and misleading communications regarding the undersigned [C.C.] from a third party." (R., p. 97 ) (emphasis added).
A similar prohibition against ex parte communications between judges and parties and/or their counsel is now contained at Canon 2, Rule 2.9 of the Kentucky Code of Judicial Conduct (SCR 4.300) (version effective March 1, 2020).
While we may not enthusiastically endorse every aspect of the trial judge's comments or conduct described by C.C., C.C. did not establish circumstances meriting the necessity for the Judge's recusal under Kentucky precedent. See Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001):
KRS 26A.015(2) requires recusal when a judge has personal bias or prejudice concerning a party . . . or has knowledge of any other circumstances in which his impartiality might reasonably be questioned. The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts of a character calculated seriously to impair the judge's impartiality and sway his judgment. The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal. Appellant, in this matter, has failed to meet the requisite burden.Id. at 794-95 (internal quotation marks and citations omitted). See also Bissell v. Baumgardner, 236 S.W.3d 24, 29 (Ky. App. 2007) (trial court's ruling on evidentiary matter, even if erroneous, did not show bias).
Appellant cites to various instances, especially during motion hours, which he believes demonstrate the trial judge's prejudice against him. However, the record reveals that the family court's exasperation at times was due to last minute filings of voluminous and often duplicative motions by the defense. In fact, the trial judge did comment at one point that Appellant was killing trees with the flurry of motions. Appellant also cites to rulings by the family court on evidentiary issues in favor of the Commonwealth as proof of prejudice and bias. We disagree. Although the trial judge was not a textbook example of judicial patience, we find no violation of [Appellant's] rights. Appellant received a fair trial by a fair and impartial judge.
While perhaps some remarks averred to in C.C.'s affidavit would be better left unsaid, we conclude that C.C. has not shown facts demonstrating serious impairment of the Judge's impartiality which would sway the judgment. We do not have before us the video recordings of the underlying DNA proceedings—a separate proceeding which is not the subject of this appeal. But having carefully reviewed the record on appeal of the termination proceeding (including recordings of the trial and hearings), we do not perceive that C.C. was deprived of a fair termination trial by a fair and impartial judge.
In short, we do not discern that C.C. is entitled to relief on appeal on the basis of judicial bias.
No Abuse of Discretion in Family Court's Denial of Continuance
C.C. contends that the family court committed reversible error by denying her motion for a continuance to enable her to complete her trial testimony, offer rebuttal evidence, provide context for exhibits, and make closing argument. She asserts that she was precluded from presenting testimony that additional services from the Cabinet would make reunification possible and that she was deprived of the opportunity to prove that the child would not continue to be abused or neglected, citing KRS 625.090(4)-(5). We disagree.
As we recently stated, "when reviewing a trial court's denial of a motion to continue, the standard of review is whether the trial court abused its discretion." P.S. v. Cabinet for Health and Family Services, 596 S.W.3d 110, 116 (Ky. App. 2020) (citing Deleo v. Deleo, 533 S.W.3d 211, 217 (Ky. App. 2017)). As we recognized in Deleo, courts should consider all relevant facts and circumstances such as: "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 [party]; 5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice." Id. at 217 (citation omitted). Under the unique facts and circumstances of this case (including the listed factors which we have considered but decline to individually discuss), we discern no abuse of discretion in the family court's denial of C.C.'s motion for a continuance at the end of the designated trial period.
Under the terms of the family court's pretrial order (entered in August 2018), the trial was set for designated time periods over the days of November 5 through 9, 2018. And the order specifically provided: "On November 9, 2018, court shall adjourn no later than 4:00 p.m." (R., p. 78) (emphasis in original).
From our review of the recording of the July 2018 hearing preceding entry of the pretrial order, we note that C.C. objected to setting a trial date at that time and expressed needing more time to prepare for trial. But counsel for C.C. was present at this hearing and discussed available dates and times. C.C.'s counsel requested that the trial wrap up on the last day an hour before sundown due to religious observances.
During the trial, Cabinet counsel explained to the family court that she intended to wrap up her case by about noon on Wednesday, November 7 to permit C.C. to have half of the allotted trial time to present her case. By early Thursday evening, C.C. had not begun her own testimony after calling other witnesses to testify on her behalf on Wednesday and Thursday. The trial judge and Cabinet counsel inquired as to whether C.C. wished to continue with the presentation of proof, particularly C.C.'s own testimony, that evening after a dinner break to make sure she was able to present her desired proof before the deadline for completing the trial by 4:00 p.m. Friday. C.C.'s counsel declined the offer to continue working in the evening, noting such factors as her needing to take medication. The trial judge also asked about starting at noon instead of the scheduled time of 1:00 p.m. the next day to permit additional time to conclude the presentation of proof. However, C.C.'s counsel insisted she would not be able to begin at noon.
At approximately 4:00 p.m. Friday (the deadline for completing the trial), C.C. had been testifying for at least a couple of hours and had not yet moved to introduce all the exhibits she wished the family court to consider. So, C.C.'s counsel moved the family court for a continuance to allow her to complete her testimony and present exhibits in context. The family court declined the request for a continuance, noting the deadline set forth in its pretrial order and the attempts to provide more time for C.C. to present proof which were declined by counsel. The family court and Cabinet counsel agreed that C.C. could submit any desired exhibits into the record, but the family court refused to continue the trial to permit additional time for testimony. Also, C.C. (personally, not by counsel) asked whether she could present a closing statement and the trial judge told her she could submit such a statement in writing.
According to the clerk's written log, C.C. began her testimony at about 12:35 p.m. and was excused at 4:06 p.m. According to the time stamp on video recordings, her testimony began about 1:40 p.m. and ended a few minutes after 5:00 p.m. In any event, C.C. took the stand shortly after the trial re-convened on Friday after her counsel briefly addressed the court about related matters and her testimony lasted around three hours, including cross-examination by the Cabinet.
The record includes an affidavit submitted by C.C. in early December 2018 for the family court's consideration. In this affidavit, she states she was currently testing clean on drug screens and undergoing counseling and she referred to a Foster Care Interested Party Review Board finding a few days before trial suggesting that termination was premature and visits should be reinstated and family counseling initiated. Without opining on the merit of this finding, we note that the Report stated that the Cabinet had been present for but did not participate in the meeting, that the child's guardian ad litem was not present, and that the findings were made based on information provided by C.C. (who attended the meeting with counsel).
Kentucky precedent makes clear that a family court has discretion to establish reasonable time limits for presenting evidence. Addison v. Addison, 463 S.W.3d 755, 762 (Ky. 2015). Here, the trial date was set a few months in advance, the family court designated significant portions of five days to hear proof, and C.C. and her counsel were clearly informed of the time limits set and were allocated about half of the designated trial time to present C.C.'s case. Under these circumstances, especially given C.C.'s counsel's declining offers of additional trial time, we see no abuse of discretion in the family court's enforcing its established time limits and refusing to continue the trial. Although we are certainly mindful of the important constitutional interests at stake, we conclude that C.C. was provided with ample opportunity to present her testimony and other proof within the reasonable time deadlines set forth by the family court.
C.C. was further allowed to provide additional testimony via affidavit and to submit all desired exhibits following the trial. Presumably, she could have offered testimony via her affidavit about how additional services could have made reunification a safe and realistic possibility or how the child would not continue to be neglected if not returned to her care. Similarly, she could have submitted documentary proof to the same effect as exhibits. Thus, given the opportunity to submit affidavit testimony and documentary exhibits after trial combined with the several hours afforded to her and her witnesses' testimony at trial, we cannot say that the family court deprived her of the opportunity to present evidence bearing on KRS 625.090(4)-(5) findings by denying her motion to continue.
In short, we discern no reversible error in the family court's denial of her motion for a continuance at the end of the designated time frame for trial.
Substantial Evidence Supports Family Court's Finding of Reasonable Reunification Efforts Despite C.C.'s Allegations of Fraud or Unclean Hands
C.C. contends that the Cabinet failed to offer reasonable reunification services and engaged in efforts to prevent her having contact with G.G. in a manner showing "unclean hands." She asserts that "fraud, illegality and unconscionable conduct" by Cabinet representatives "inappropriately influenced the reunification process" at C.C.'s expense. (Appellant brief, p. 12).
As C.C. points out, the CASA volunteer testified to feeling her efforts were somewhat impeded by Cabinet employees, essentially discouraging her from talking directly with C.C. or her counsel after a certain point. C.C. contends that this interfered with the CASA volunteer's duty to interview her under KRS 620.525(2)(f). But the family court found that the CASA volunteer talked with C.C. on two occasions and this is accurate from our review of the CASA volunteer's testimony—once during a home visit in the fall of 2017, and also on another occasion in February 2018. Although the CASA volunteer felt somewhat limited in her contact with C.C., she did have some contact with C.C. and it does not appear she was totally unable to interview her or obtain information from her.
From our review of the CASA volunteer testimony, she actually testified that her CASA managers were the ones who suggested or advised that she refrain from direct communications with C.C. on two separate occasions (once in late 2017, another time in early 2018) but she believed this advice was on the recommendation of the Cabinet. She did not know the reason for this advice other than being told the case was somewhat different as it involved a parent hiring private counsel and proceeding toward a trial. The volunteer related that this was her first case as a CASA volunteer and so her understanding of how things worked or should have worked was somewhat limited. She also related that Cabinet counsel offered to provide information she needed, although she would have normally done research herself to get such information.
As C.C. also points out, G.G.'s current foster mother testified to being unaware that she could have permitted telephone calls between C.C. and G.G. or that the foster mother could have offered to supervise visits herself. And the foster mother stated she would have gladly permitted such calls or supervised visits if she had known that she could.
While perhaps Cabinet employees could have done more to facilitate contact between C.C. and others in the system in some instances, we do not believe the evidence compels a finding that the Cabinet engaged in fraud or unconscionable conduct or acted with unclean hands. And there is ample evidence in the record of services provided by the Cabinet, including drug screens, supervised visits, referrals to counselors, in-home services and a parenting assessment—particularly the testimony of social workers. The family court's finding that the Cabinet rendered reasonable reunification services is supported by substantial evidence.
C.C. has not disputed that G.G. was previously adjudged to be an abused or neglected child. Nor has she disputed that G.G. was in foster care for over fifteen months immediately preceding the filing of the termination petition. We also conclude that there is substantial evidence supporting the family court's finding of the alternate ground of parental unfitness described in KRS 625.090(2)(e) (failure or inability to provide essential parental care and protection). The family court also made detailed findings supported by substantial evidence regarding KRS 625.090(3) factors affecting the child's best interests. We will not belabor this opinion with a detailed recitation of the many factors considered by the family court, of which the parties are well aware. But having carefully reviewed its findings and the trial testimony and other evidence, we are satisfied that the family court properly found clear and convincing evidence of the statutory requirements for termination of parental rights.
As establishing even one ground of parental unfitness under KRS 625.090(2) would be sufficient, we need not address whether there is sufficient evidence to support the family court's finding of the ground of parental unfitness described in KRS 625.090(2)(g) (failure or inability to provide necessities). --------
In short, the family court assessed factors required by our statutes, its findings of fact are supported by substantial evidence, and there was no reversible error in its termination of C.C.'s parental rights. Further issues or arguments raised by the parties in their briefs have been determined to lack merit or relevancy to our consideration of the questions properly before us.
CONCLUSION
For the foregoing reasons, the judgment of the Fayette Family Court is hereby AFFIRMED.
THOMPSON, L., JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT Gayle E. Slaughter
Lexington, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Tiffany L. Yahr
Lexington, Kentucky