Opinion
2022-CA-0624-ME 2022-CA-0626-ME 2022-CA-0627-ME 2022-CA-0628-ME 2022-CA-0629-ME 2022-CA-0630-ME 2022-CA-0631-ME 2022-CA-0632-ME 2022-CA-0633-ME 2022-CA-0634-ME 2022-CA-0635-ME
02-17-2023
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. A.T., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. Z.T., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. D.B., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. C.A., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. E.A., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. J.A., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. A.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. H.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. M.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. A'D.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. X.R., A CHILD APPELLEE
BRIEF FOR APPELLANT CABINET FOR HEALTH AND FAMILY SERVICES: Wesley W. Duke LeeAnne Applegate Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BARREN CIRCUIT COURT HONORABLE MICA PENCE, JUDGE ACTION NOS. 21-J-00150-001, 21-J-00149-001, 19-J-00281-001, 19-J-00261-003, 19-J-00262-003, 19-J-00263-003, 19-J-00264-003, 19-J-00265-003, 17-J-00086-004, 17-J-00087-004, 17-J-00088-004
BRIEF FOR APPELLANT CABINET FOR HEALTH AND FAMILY SERVICES: Wesley W. Duke LeeAnne Applegate Frankfort, Kentucky
NO BRIEF FOR APPELLEES.
BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
OPINION
ECKERLE, JUDGE:
Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet or CHFS) appeals from an order entered by the Barren Family Court in each of the 11 above-referenced dependency, neglect, and abuse (DNA) actions, finding the Cabinet and the designated social worker in those cases, Lanita Neal, in contempt for failure to file various reports, case plans, and other materials as mandated by statute and Court rules. Following a thorough review of the record, the Cabinet's consolidated brief, and the applicable law, we reverse.
All findings as to the Cabinet herein will apply equally to Neal and therefore, unless otherwise required, all references to the Cabinet will include Neal.
I. PROCEDURAL BACKGROUND:
On October 26, 2021, the Family Court entered an order in case nos. 21-J-00149-001 and 21-J-00150-001, in which it noted that the Cabinet had failed to file a dispositional report by October 12, 2021, as previously ordered and as provided in FCRPP 26. The Family Court scheduled a show cause hearing for November 23, 2021, at 1:00 p.m.
Family Court Rules of Practice and Procedure.
On November 4, 2021, the Family Court also entered a show cause order in case nos. 19-J-00261-003, 19-J-00262-003, 19-J-00263-003, 19-J-00264-003, and 19-J-00265-003, based on Neal's failure to file the dispositional report required by FCRPP 26, resulting in two continuances of the dispositional hearings. The Family Court also scheduled this show cause hearing for November 23, 2021, at 1:00 p.m.
Also on November 4, 2021, the Family Court entered a show cause order in case no.19-J-00281-001. The Family Court noted that the respondent father had moved for return of custody of the child on October 4, 2021. The motion was originally scheduled to be heard on October 12, 2021. At that time, Neal was already delinquent in the filing of a case plan and "other documentation." The Family Court ordered the Cabinet to provide those materials "NOT LATER THAN FRIDAY, OCTOBER 29, 2021, at 3:00 P.M." (Emphasis in original.) When the parties reconvened to hear the motion, "it continued to be clear to the court that CHFS had failed to provide needed documents for the court to make a conscientious decision concerning the safety and welfare of this child." The Family Court also scheduled this matter to be heard on November 23, 2021, at 1:00 p.m.
Finally, on November 5, 2021, the Family Court entered a show cause order in case nos. 17-J-00086-004, 17-J-00087-004, and 17-J-00088-004. On July 13, 2021, the Cabinet had been ordered to file a case plan and home evaluation within thirty days. As of the PPR scheduled on November 2, 2021, neither had been provided. Once again, a show cause hearing was set for November 23, 2021, at which the Cabinet was to show cause why it "should not be held in contempt for failure to meet their statutory requirements and the orders of this Court."
Permanency Progress Review.
The Judge commenced the November 23, 2021, show cause hearing by reading into the record each of the show cause orders, as well as the statutes and/or rules, violation of which had resulted in the necessity for the hearing. The Judge advised those present that any proposed contempt sanction would be for civil as opposed to criminal contempt because compliance with the Family Court's orders, the statutes, and rules are for the benefit of a party litigant, in this instance, the child.
The Cabinet called as its first witness, Service Region Administrator Associate (SRAA) Jessica Humphrey. Humphrey testified that she was unaware of Neal's late filings until she received the Family Court's show cause orders. Upon learning of the issue, she began holding weekly meetings with Neal's direct supervisor, Joan Norris, to put a plan in place to ensure that no such lapse occurs again. Neal was to rely on Outlook calendaring with oversight by Norris. However, Humphrey recognized that the office has a massive caseload involving a majority of children in out-of-home care. Each of those cases requires tasks such as home visits, evaluations, meetings, and court appearances.
She testified that there are numerous vacancies in the office due to loss of workers. Although supervisors such as Norris do carry a caseload, new hires are not fully trained and are limited in the work they can perform. Nevertheless, a mechanism for getting case plans filed has been adopted. A "tickler" system is in place for social workers and supervisors. However, in response to a question from the bench, Humphrey stated that it cannot be "updated" without funding.
Supervisor Joan Norris confirmed Humphrey's testimony that a plan was in place to make sure that documents are timely filed. She stated that a "Rapid Response" team had been empaneled to go in and help counties suffering from staffing shortages. She also indicated that all three of the supervisors in the Barren County office carry caseloads. She indicated that Neal had submitted some cases for Rapid Response assistance.
Service Regional Administrator Dawn Crabtree testified that she had been aware of issues with Neal for about a month and a half. She also indicated that a plan had been formulated. She stated that Rapid Response is deployed out of Frankfort although they are housed in Barren County. Those seeking help must follow a rotation among the various counties needing assistance. Crabtree indicated that while the number of children in care had increased, the number of workers had decreased as they left for better paying jobs.
Although not called as a witness, Lanita Neal voluntarily offered her testimony to the Court. She stated that the workers are doing the best they can do. She indicated that there are technical issues. Although she is responsible for inputting paperwork into the computer system, she can do so two or three times and the work simply "disappears." She is on-call seven days a week and works overtime. She sees about 79 children face-to-face monthly with more than five home visits outside of Barren County. She doesn't always receive Court orders or even copies of the docket. In response to a question by the Judge, she indicated that she has no home internet access supplied by the Cabinet.
The Family Court concluded by taking the matter under submission. The Judge stated that she was "documenting what we've seen here today." The Family Court then gave the Cabinet the opportunity to submit anything it chose in writing within ten days. However, the Judge entered no order until February 9, 2022.
In that order, the Family Court concluded that Neal's initial failures to produce "required paperwork" could not be deemed "willful" or "openly disrespectful" given "the dismal state of the resources available to local DCBC[sic] offices, which is of little to no fault of its individual workers and/or supervisors." However, with respect to case nos. 19-J-00261-003, 19-J-00262-003, 19-J-00263-003, 19-J-00264-003, and 19-J-00265-003, the Family Court did find that Neal "willfully" violated or acted with "open disrespect" by not filing the dispositional reports therein after the dispositional hearings were continued and she had been ordered to file her reports by a date certain. As such the Family Court found her to be in contempt in those cases and, as a sanction, subjected her to a private reprimand filed under seal.
Department of Community Based Services.
However, the Family Court was far less sympathetic to the Cabinet, finding that it had acted "willfully" and with "open disrespect" in "failing to ensure that their agents, employees, and/or offices comply with the statutory duties and obligations placed upon them under KRS 620.230(e), KRS 620.230(j), KRS 620.240." The Family Court noted that the statutes specifically place the duty for compliance on "the cabinet" and not on "any particular agent or employee."
Kentucky Revised Statutes.
Similarly, the Family Court found that the Cabinet had behaved willfully and disrespectfully as to its failure to ensure compliance with FCRPP 26 and FCRPP 27. Although the Family Court recognized that the rules do not specifically reference the Cabinet, they "were enacted as a way of supplementing" the statutes, which do place the burden of compliance on the agency. Thus, based upon its failure to comply with its duties as provided in the statutes and rules of court, the Family Court found the Cabinet to be in contempt. It ordered that:
Within thirty (30) days of entry of this Order, CHFS shall file herein an Action Plan reasonably calculated to meet the immediate needs of the BCDCBS office and its agents/employees/case workers. Such Action Plan shall include a detailed explanation of how CHFS will address all issues identified in this Order - including, but not limited to, hiring staff, retaining staff, and providing interim relief to the BCDCBS office prior to completion of new staff training - and a reasonable projected timeline for when she [sic] Action Plan will be implemented.(Emphasis in original.)
The Family Court then directed that a copy of its order be redacted and sent, in addition to the attorneys of record, to the Governor, Attorney General, CHFS Service Regional Administrator, CHFS Service Region Administrator Associate, BCDCBS Supervisor, BCDCBS Social Worker, CHFS Counsel, DCBS Commissioner, Secretary of CHFS, Senate President, Speaker of the House, as well as the state Senator and Representative.
On February 21, 2022, the Cabinet filed its motion pursuant to CR 59.05 to alter, amend, or vacate. In its order denying, the Family Court noted that the Cabinet was being held in contempt for failing to ensure that the duties imposed by the applicable statutes and rules of court were complied with, and not for failing to fully staff the Barren County office. The Family Court stated:
Kentucky Rules of Civil Procedure.
The Court's discussion and recognition of the staffing and other systemic issues faced by the Cabinet was merely included in the Order in response to the Cabinet's discussion of same during the show cause hearing on November 23, 2021, and as dicta in an effort to call attention to, and to express that it understood, the serious issues being faced by the Cabinet and the BCDCBS office. In discussing such issues, the Court also explained that the Cabinet failed to show why such issues were "good cause" for continuously ignoring this Court's multiple orders directing CHFS and/or the applicable Social Worker to file the delinquent reports in each of the respective cases. The decisions made by the Cabinet of how to allocate available resources are left to their
discretion, but this is not sufficient cause for this Court to overlook the failure to prioritize this Court's orders.
On appeal, the Cabinet argues that the contempt order was an abuse of discretion. First, the Cabinet notes that the conduct for which it was found to be in contempt was purged prior to the entry of the February 9, 2022, order. Second, it asserts that the Family Court's order was "too far-reaching" in that the hearing was held to address late-filed documentation, but the order concentrated on the issue of understaffing. Third, the Cabinet argues that it was impossible for it to remedy these staffing issues without action by the General Assembly and the Personnel Cabinet. Fourth, the Cabinet contends that its conduct did not constitute contempt since it was not "willful." Finally, the Cabinet asserts that, even if the Family Court did not abuse its discretion in finding it to be in contempt, it was without jurisdiction to order the sanction against it.
II. STANDARD OF REVIEW:
On appeal, we review the Family Court's contempt order for an abuse of discretion. Commonwealth, Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999)." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). Because the Cabinet was no longer in violation at the time of the Family Court's order, we conclude that it abused its discretion.
To emphasize the lack of inconsistency with a recent opinion affirming the Barren Family Court's order of contempt against the Cabinet, the Court notes that in this case, there was no violation at all remaining at the time of the Family Court's contempt order, and thus nothing left for the Cabinet to purge or cure. No contempt may lie in such a circumstance. However, in the distinguishable case of Cabinet for Health and Family Services v. R.C., No. 2022-CA-0921-ME, this Court affirmed the order holding the Cabinet in contempt because the Cabinet both: (1) willfully failed to obey the Family Court order to transfer the child to North Dakota for a "trial home visit" with her Mother in a specified period of time; and (2) failed to purge itself of contempt by failing to pay the imposed fine. There were simply no such failures here, and no further compliance was needed from the Cabinet at the time of the order of contempt. Thus, while the holdings are different, they are not inconsistent given the differing factual scenarios in each one. Contempt is a highly fact-specific determination.
III. ANALYSIS:
"Contempt is the willful disobedience toward, or open disrespect for, the rules or orders of a court." Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). Before we address the issue of whether the Cabinet possessed the requisite mens rea to commit an act of contempt, we must determine whether any such acts have in fact been committed.
The specific language of the Family Court's order of February 9, 2022, indicates that the Cabinet was found in contempt, not for violations of any order of Court, but for violations of KRS 620.230(e) and (j), KRS 620.240, and FCRPP 26 and 27.
In the factually similar case of Cabinet for Health and Family Services v. J.M.G., 475 S.W.3d 600, 619 (Ky. 2015), the Court held that, while a Court's contempt power is not generally an appropriate vehicle for the enforcement of statutory duties:
Where a rule or a procedural statute creates a duty clearly applicable to the instant proceeding and the obliged party violates the duty under circumstances that could reasonably be thought to show beyond a reasonable doubt that the violation was willful or openly disrespectful, then criminal contempt may well be an appropriate sanction.
The Family Court issued show cause orders in case nos. 17-J-0086- 004, 17-J-0087-0004, 17-J-0088-004, and 19-J-00281-001 based upon the Cabinet's failure to file case permanency plans in accordance with KRS 620.230(e), which requires such a plan to explain, "[i]f the child is placed outside the home, reasons why the child cannot be protected adequately in the home, the harms the child may suffer if left in the home, factors which may indicate when the child can be returned to the home, and efforts the cabinet or others are making to return the child to the home[.]"
The Family Court also issued show cause orders in case nos. 17-J- 0086-004, and 17-J-0087-0004, 17-J-0088-004 based upon the Cabinet's failure to file case permanency plans as provided in KRS 620.230(j) which requires, "[a] list of objectives and specific tasks, together with specific time frames for each task, for which the parents have agreed to assume responsibility, including a schedule of regular visits with the child[.]"
The Family Court specifically found the Cabinet to be in civil contempt for violation of KRS 620.240 in addition to the above-referenced statutes. While KRS 620.230(e) and (j) are applicable to those specifically enumerated cases, none of the show cause orders filed of record herein appeared to be addressed to the filing of a case progress report as provided in KRS 620.240. Therefore, to that extent there can be no finding of contempt. We turn now to the matter of the application of the Family Court's contempt finding to a violation of rules.
In J.M.G., the Court recognized that:
[T]here will be times when a party's violation of a rule will amount to as clear and disruptive a violation of his or her duty to the court as would the violation of a court order, and in those instances the rule violation, if shown to be willful, may be sanctioned as a contempt.475 S.W.3d at 618.
In no instance is there a clearer example of such a rule violation than that demonstrated by the Cabinet's failures to comply with FCRPP 26, relating to the filing, dissemination, and contents of dispositional reports and FCRPP 27 relating to the filing of case plans (including any associated visitation agreements and any safety/prevention plans) and the identification of certain individuals specified therein. Such failures were asserted in each of the show cause orders entered by the Family Court, heard before it on November 23, 2021, and adjudicated by it on February 9, 2022. Such statutory and rule violations clearly warrant a finding of contempt as applied herein. We must now consider the degree of willfulness required to justify it.
"'[W]illfully' means with intent or intention." Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 87 (Ky. 1991). See also Poindexter v. Commonwealth, 389 S.W.3d 112, 117 (Ky. 2012) (citing BLACK'S LAW DICTIONARY (9th ed. 2009) (defining "willful" as "[v]oluntary and intentional, but not necessarily malicious.")). The Family Court held that the Cabinet acted "willfully" in failing to allocate sufficient resources to enable Neal and her coworkers to meet their obligations to the Family Court and to the litigants before it, specifically, the children.
The Cabinet attempted to show that it had "good cause" for its failure to comply with its duties regarding the production of documentation. The testimony of all its witnesses indicated that, despite their concerted efforts to assist Neal and, indeed social workers throughout the state, lack of staff and other resources, such as technical support, remained an issue. The Judge as fact finder determined:
the burden was on CHFS to demonstrate to the Court that they had good cause for being unable to provide such resources, such as evidence of plans developed and/or implemented by CHFS with the purpose of alleviating or decreasing the pressures placed on their agents and employees,
and to ensure that their agents and employees are satisfying their obligations to the Court and to the families that they serve. Unfortunately, no such evidence was presented by CHFS.
We review the Family Court's imposition of contempt for abuse of discretion, but we apply the clear error standard to the underlying findings of fact. Crandell v. Cabinet for Health &Family Servs. ex rel. Dilke, 642 S.W.3d 686, 689 (Ky. 2022). Clearly, the uncontroverted testimony of the Cabinet's own agents serves as substantial evidence supporting the Family Court's findings in this regard.
Having found that the basic requisites of contempt have been met, we turn to the issue of whether such contempt should be characterized as criminal or civil. Criminal contempt is generally invoked where there has been an act of disrespect against the Court or obstruction of its processes, for which punishment is required. Kentucky River Community Care, Inc. v. Stallard, 294 S.W.3d 29, 3232 (Ky. App. 2008). The imposition of such sanctions necessitates the "full panoply of procedural protections applicable to the states under the federal Constitution." J.M.G., 475 S.W.3d at 611. Although J.M.G. arises out of facts similar to those herein, the Family Court in that case found the matter to be one of criminal contempt as it involved punishment for past conduct rather than coercion to compel compliance with a Court order. Id. at 608. Since the Cabinet could not be incarcerated, the Family Court in that case imposed a monetary sanction.
In this instance, the Judge stated on the record her intention that the order be designated one of civil contempt. Such contempt "consists of the failure of one to do something under order of court, generally for the benefit of a party litigant." Burge, 947 S.W.2d at 808. The Judge reasoned that the purpose of the order was to enable the Cabinet and its agent, Neal, to serve the children who are litigants appearing before the Family Court.
Sanctions in civil contempt cases are generally either coercive, compensatory, or remedial. J.M.G., 475 S.W.3d at 611. However, by the time the Family Court's order finding the Cabinet to be in contempt and requiring it to file an action plan as a sanction was entered, the Cabinet was no longer actively in contempt since all the documents referenced in its show cause orders had been filed. Indeed, the Cabinet was no longer in contempt for failure to file requisite documentation since before the Family Court's show cause hearing.
The record herein reflects that the dispositional report that formed the basis for the Family Court's October 26, 2021, show cause order in case nos. 21-J-00149-001 and 21-J-00149-001 was ultimately filed on October 29, 2021. The report referenced in the Family Court's November 4, 2021, show cause order in case nos. 19-J-00251-003, 19-J-00262-003, 19-J-00263-003, 19-J-00264-003, and 19-J-00265-003, although due prior to the dispositional hearing scheduled for September 14, 2021, was actually filed on September 16, 2021. The case plan and contact notes in case no. 19-J-00281-001 that were the subject of the Family Court's show cause order of November 4, 2021, were filed November 22, 2021. Finally, the home evaluation referenced in the Family Court's show cause order of November 5, 2021, in case nos. 17-J-00086-004, 17-J-00087-004, and 17-J-00088- 004 although completed on September 9, 2021, was not filed with the Family Court until November 8, 2021. All of these filings were made prior to the Family Court's November 23, 2021, hearing. While the Cabinet clearly violated the Family Court's orders requiring it to file documents by a date certain, it was not held in contempt for violation of those orders. Rather, it was found in contempt for violation of rules and statutes as set forth in the Family Court's order of February 9, 2022. However, it had complied with those rules and statutes long before the contempt finding.
It has been held that:
For the punishment to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to purge[.] [T]he defining characteristic of civil contempt is the fact that contemnors 'carry the keys of their prison in their own pockets.' Significantly, "the purge condition of a coercive order must be something presently within the contemnor's ability to perform."Nienaber v. Commonwealth ex rel. Mercer, 594 S.W.3d 232, 235 (Ky. App. 2020) (some internal quotation marks and citations omitted). It is simply unworkable to attempt to fashion a coercive remedy for future violations in the very fact specific cases of Family Court. Ivy, 353 S.W.3d at 335. No sanction may be imposed for failure to perform an impossible act. Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 10 (Ky. 1988). As the Cabinet had cured itself of any contempt prior to the Family Court's February 9, 2022, order, it served no coercive or compensatory function.
There remains the issue whether the sanction was imposed to serve a remedial purpose. The language employed by the Family Court in its February 9, 2022, order leads us to believe that this was its intent. The final paragraph states:
Further, as the Court understands that all three branches of our government must be involved in order to effectively establish a permanent solution for the crisis facing the abused and neglected children of the Commonwealth and the front line DCBS Social Workers, this order is being redacted, made public and forwarded to the officials listed below.
In addition to counsel and unrepresented parties, the Family Court named the Governor, Attorney General, various state legislators, and Cabinet officials, and employees.
While we acknowledge the Family Court's frustration with the Cabinet's apparent inability to provide its Barren County office with the resources required to meet its obligations to the Court and to the litigants before it, we must also recognize that each Court must address the cases directly before it rather than attempting to discourage future violations. However, "our rulings are not meant to discourage creative approaches to the problem[.]" Ivy, 353 S.W.3d at 336. Nevertheless, as it pertains to these cases, there was nothing further for the Cabinet to cure. Indeed, having already done so, it was an impossibility. As such the sanction imposed by the Family Court constituted an abuse of discretion and for this reason, we are compelled as a matter of law to reverse.
Accordingly, we reverse the February 9, 2022, order of contempt entered by the Barren Family Court.
ALL CONCUR.