Opinion
NO. 2020-CA-1053-ME
02-05-2021
C.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; E.C., A MINOR CHILD; AND M.C., MOTHER OF THE CHILD APPELLEES
BRIEF FOR APPELLANT: Rhett B. Ramsey Monticello, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM WAYNE FAMILY COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NO. 20-J-00053-001 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. ACREE, JUDGE: C.C. (Father) appeals the Wayne Family Court's adjudication order finding he neglected his child. Father argues the order is not supported by substantial evidence. We agree and, as to Father, vacate that order and the disposition order and remand with directions that the family court order the return of child to Father.
APPELLEE'S NON-COMPLIANCE WITH APPELLATE RULES
The Cabinet failed to file an appellee brief in this appeal, a circumstance for which there are authorized penalties. In accordance with the appellate rules, this Court may "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). It is usually inappropriate in appeals involving child custody, support, and visitation to treat such failure as a confession of error. Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App. 2014). In this case, the Court has determined the appropriate procedure is to accept Father's recitation of the facts and issues as correct. CR 76.12(8)(c)(i). Nevertheless, the Court has made more than a casual effort to confirm Father's recitation by examining the record.
Kentucky Rules of Civil Procedure.
BACKGROUND
On July 16, 2020, the Cabinet for Health and Family Services (Cabinet) filed an emergency custody petition in Wayne Family Court. The petition alleged both Mother and Father had drug-related problems. The petition alleged that in the presence of their child, Mother was under the influence of methamphetamines and Father was under the influence of marijuana. Mother's hair follicle test indicated positive for methamphetamine. (Record (R.) at 29). She stipulated neglect.
Father did not stipulate neglect. He, too, submitted to drug screens by providing hair follicle and urine samples. The first time Father provided a urine sample, the test showed his body temperature was not registering in the normal range, making the urine test less than dependable. Nothing has been brought to this Court's attention to indicate the hair follicle test was similarly lacking in dependability. Nevertheless, the court went ahead with a temporary removal hearing, made a finding of neglect based on the suspicion that Father was using drugs, and it removed the child from the custody of both parents.
At the adjudication hearing, a Cabinet worker testified that Father submitted to both urine and hair follicle drug testing. However, neither test came back positive for any substances. The Cabinet closed its case.
Because there was no evidence Father was using drugs, Father's counsel moved to dismiss the petition against him. The court then asked the Cabinet if there was a witness who could testify about Father's urinalysis drug screen that failed to yield positive results. The Cabinet said it could produce such a witness. Father's counsel objected because the Cabinet already closed its casein-chief. The court overruled the objection, and the Cabinet called two more witnesses.
Citing the videotape transcript, Father's brief states the facts as follows:
Two CBI [Community Based Interventions] representatives appeared before the Court to give testimony: Brittney Chaplin (Chaplin) and Tony Evans (Evans). Chaplin testified that C.C.'s urine drug screen did not activate a temperature strip, meaning it was not within what their screen considered normal body temperature range. However, Chaplin also testified that she did have knowledge that the specimen had been tampered with. Evans testified that he was asked by Chaplin to observe C.C. produce a specimen. Evans claimed to have seen a bottle produced by C.C.; however, he could not see what substance, if any, was in the bottle.(Appellant's brief, pp. 2-3). The Cabinet again announced close.
Appellant's brief cites the video record (VR) of the hearing and the entirety of the testimony of these two witnesses which is found at VR 1 8/4/2020; 11:47:13 to 11:50:52. Specific citations are omitted from this paragraph quoted from Appellant's brief.
Citing the record again, Father describes the court's explanation of its ruling from the bench as follows:
The court found the allegations against the father contained in the petition proved neglect due to "concerns of substance abuse by both parents," and the Court continued custody of the minor child with the Cabinet for Health and Family Services [VR 1 8/4/2020 11:52:12]. The father appeals the finding of neglect against him by the Wayne Family Court.(Appellant's brief, p. 3).
As Father points out in his brief, "The record is devoid of any evidence of substance abuse by the father. On the contrary, the record is full of instances where the father has produced negative substance screens." (Appellant's brief, p. 8). We have examined parts of the record to which Father refers this Court, including the video record, and find it supports his statement of the facts.
Notwithstanding the lack of evidence, the family court found as follows:
CHFS received a report of drug use by parents. Father came for testing twice; the first time the specimen was above body temperature; the second occasion [F]ather brought a container with liquid to the test inside his underwear and poured the contents into the cup for testing.(R. at 20 (reverse side of page)).
Witness Chaplin testified that it was for this reason she did not submit Father's urine sample for testing. This scheduled testing date appears to have been July 15, 2020, the date on which Mother provided her first acceptable urine sample. (R. at 29). There is no record of testing for Father on that date, but both Mother and Father provided acceptable urine samples on July 21, 2020. (R. at 28, 29).
The record indicates the "second occasion" was July 21, 2020.
At disposition, the court found "parents have not demonstrated ongoing sobriety." (R. at 26). Therefore, the court determined the child is to remain in the Cabinet's care. Father appealed the adjudication order, contending the court did not have substantial evidence—pertaining to him—to justify the finding of neglect.
STANDARD OF REVIEW
A parent aggrieved by a proceeding in a dependency, neglect, or abuse case may appeal as a matter of right. KRS 620.155. A dispositional order is a final order subject to appeal under the statute. J.E. v. Cabinet for Health & Family Servs., 553 S.W.3d 850, 851-52 (Ky. App. 2018). The standard of review on appeal includes a determination of whether the factual findings of the family court are clearly erroneous. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). If the findings of fact are supported by substantial evidence and if the correct law was applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Id.
Kentucky Revised Statutes.
ANALYSIS
Father argues the court erred in two ways: (1) allowing the Cabinet to re-open its case-in-chief; and (2) finding Father neglected his child. The first argument lacks merit because allowing a case-in-chief to be reopened for additional proof is within the discretion of the trial court. Insko v. Cummins, 423 S.W.2d 261, 264 (Ky. 1968). Therefore, we will only address Father's issue regarding insufficient evidence to justify a finding of neglect.
"The 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 burden was upon the Cabinet here. The Cabinet failed to carry that burden.
The record is devoid of any evidence showing Father abused or neglected his child. In fact, the Cabinet worker testified that the child had adequate housing, care, supervision, food, and clothing. Father acknowledges the evidence of Mother's drug use weighed heavily against her, but there is no substantial evidence against him. He argues the evidence of Mother's drug use contributed to the family court's suspicion of his own drug use, and he further argues that such suspicion is not enough to justify affirming the family court's order.
Mother and Father provided hair for testing on July 21, 2020. Mother's hair follicle tested positive for methamphetamine only. (R. at 31). Father's hair follicle tested negative for a panoply of substances. (R. at 13-14).
To support Father's factual statements regarding the absence of evidence of his drug use, he directs the Court to pages 13-14, 18, and 28 of the Record. We have examined those pages. They show the results of two separate drug screens. The first is a hair follicle test indicating negative for amphetamine, methamphetamines, cocaine, opiates, hydrocodone, oxycodone, heroin, ecstasy, codeine, morphine, phencyclidine (PCP), and THC, the principal psychoactive component of cannabis. The others are copies of a negative urine test result.
The Cabinet's supplemental evidence that Father tampered with his urine sample led the family court to infer and find that Father "poured the contents [of a bottle Father had with him] into the cup for testing." We have examined the testimony of the witness who facilitated the urine collection. Although his testimony does not refute the family court's inference, the witness also testified that he never saw that the bottle Father had with him contained anything.
See, supra, footnote 2. --------
More importantly, he testified that the sample tested was not what Father allegedly "poured . . . into the cup . . . ." The witness said he disposed of that cup and sent Father to get a drink, after which Father provided another urine sample. That second cup appears to be the sample the witness sent to the laboratory for testing. There is no evidence that sample was rejected as tainted or outside the normal temperature range. (R. at 28).
CONCLUSION
This Court's examination of the record indicates Father's recitation of the evidence is correct. That recitation establishes that substantial evidence does not support the adjudication order of August 4, 2020, and cannot, therefore, support the disposition order of August 18, 2020, as to Father. The Wayne Family Court's finding of neglect on behalf of Father was clearly erroneous and, as to Father, this Court must vacate said orders. The family court is instructed on remand to order the Cabinet to return the child to Father's custody.
ALL CONCUR. BRIEF FOR APPELLANT: Rhett B. Ramsey
Monticello, Kentucky NO BRIEF FOR APPELLEE