Summary
In J.E. v. Lanphear, No. 2018-CA-001376-ME, 2020 WL 2609974 (Ky. App. May 22, 2020), the notices of appeal contained various defects.
Summary of this case from D.L.B. v. CommonwealthOpinion
NO. 2018-CA-001376-ME NO. 2018-CA-001377-ME NO. 2018-CA-001378-ME
05-22-2020
J.E.; A.B.; AND M.E. APPELLANTS v. HONORABLE JUDGE DAVID A. LANPHEAR; SPECIAL PROSECUTOR FOR THE COMMONWEALTH OF KENTUCKY, GREGORY VINCENT; SOCIAL SERVICE WORKER FOR THE CABINET FOR HEALTH AND FAMILY SERVICES, ALYXE ALEXANDER; RYAN REED, GUARDIAN AD LITEM; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND A.E., MINOR CHILD APPELLEES AND J.E.; A.B.; AND M.E. APPELLANTS v. HONORABLE JUDGE DAVID A. LANPHEAR; SPECIAL PROSECUTOR FOR THE COMMONWEALTH OF KENTUCKY, GREGORY VINCENT; SOCIAL SERVICE WORKER FOR THE CABINET FOR HEALTH AND FAMILY SERVICES, ALYXE ALEXANDER; RYAN REED, GUARDIAN AD LITEM; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND Z.E., MINOR CHILD APPELLEES AND J.E. AND A.B. APPELLANTS v. HONORABLE JUDGE DAVID A. LANPHEAR; SPECIAL PROSECUTOR FOR THE COMMONWEALTH OF KENTUCKY, GREGORY VINCENT; SOCIAL SERVICE WORKER FOR THE CABINET FOR HEALTH AND FAMILY SERVICES, ALYXE ALEXANDER; RYAN REED, GUARDIAN AD LITEM; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND A.N.E., MINOR CHILD APPELLEES
BRIEF FOR APPELLANT J.E.: J.E., Pro Se Bowling Green, Kentucky BRIEF FOR APPELLANT A.B.: A.B., Pro Se Bowling Green, Kentucky BRIEF FOR APPELLANT M.E.: M.E., Pro Se Bowling Green, Kentucky NO BRIEF FILED FOR APPELLEES
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NOS. 14-J-00322 AND 14-J-00322-001 APPEAL FROM WARREN CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DAVID A. LANPHEAR, JUDGE ACTION NOS. 14-J-00323 AND 14-J-00323-001 APPEAL FROM WARREN CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NOS. 16-J-00450 AND 16-J-00450-001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND TAYLOR, JUDGES. TAYLOR, JUDGE: J.E. (Father), A.B. (Mother), and M.E. (Paternal Grandmother), pro se, bring Appeal Nos. 2018-CA-001376-ME and 2018-CA-001377-ME from orders entered September 29, 2017, concluding that Father, Mother, and/or Paternal Grandmother had neglected or abused Z.E. and had placed A.E. at risk of neglect or abuse and from September 13, 2018, final disposition orders returning the children to the custody of Mother. Father and Mother, pro se, bring Appeal No. 2018-CA-001378-ME from the same orders determining that A.N.E. was at risk of neglect or abuse and returning her to the custody of Mother. We affirm.
I. PRELIMINARY MATTERS
We begin our review by noting that neither the Commonwealth of Kentucky nor the Cabinet have filed a brief in this case. However, we harbor grave doubt that either party was properly named in or served the notices of appeal.
The Commonwealth is responsible for prosecuting dependency, neglect, and abuse (DNA) cases by and through the County Attorney sitting in the county where the case is filed. See Kentucky Revised Statutes (KRS) 69.210(2). In this instance, the Warren County Attorney was responsible for prosecuting the case. Due to a conflict of interest, a special prosecutor was appointed, namely the sitting County Attorney from Edmonson County. This individual was named in the notices of appeal and served at his office in Brownsville, Kentucky, notwithstanding that he was acting in an official capacity for the Warren County Attorney's office, which is located in Bowling Green, Kentucky. The Warren County Attorney was not named in the notice nor served with the notice in each appeal.
Similarly, the Cabinet filed the DNA petitions in each of these cases and is an indispensable party to an appeal therefrom. See Commonwealth, Cabinet for Health and Family Services v. Byer, 173 S.W.3d 247, 249 (Ky. App. 2005). Yet the notices of appeal named and were served on a social service clinician employed by the Cabinet at its Bowling Green office. The clinician has no official capacity for the Cabinet nor was the Cabinet served at its primary offices in Frankfort, Kentucky.
Pursuant to Kentucky Rules of Civil Procedure (CR) 73.03(1), a notice of appeal shall specifically identify all appellants and all appellees. The failure to name an indispensable party in the notice of appeal is a jurisdictional defect resulting in dismissal of the appeal. Slone v. Casey, 194 S.W.3d 336, 337 (Ky. App. 2006) (citing CR 19.02; City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990)). Arguably, the pro se appellants have failed to properly name indispensable parties to these appeals, which is likely why no appellee briefs were filed in this case.
However, rather than dismiss the appeals, in the interest of justice and judicial economy, as well as the best interests of the three children involved, we have elected to review the appeals, notwithstanding that none of the appellees has filed a brief in these cases. To reach this result, we have given a most liberal interpretation of the Kentucky Supreme Court's directives in Lassiter v. American Express Travel Related Services Co, Inc., 308 S.W.3d 714, 718 (Ky. 2010), concluding that sufficient notice was conveyed to the interested parties of these appeals, despite the defects in the notices. See also Flick v. Estate of Wittich, 396 S.W.3d 816, 824 (Ky. 2013).
Finally, we note that neither child placement nor custody is an issue in these appeals. Rather, the sole issue in each is the finding of neglect or abuse in regards to each child made by the family court. A review of the relevant facts follows.
II. BACKGROUND
Father and Mother were not married but had three children together. A.E. was born on July 6, 2012; Z.E. was born on August 4, 2013; and A.N.E. was born on July 15, 2016. The events leading to the underlying petitions alleging neglect or abuse occurred in mid-April 2014, before the parties' third child, A.N.E., was born. At all times relevant herein, Father and Mother, as well as their children, lived with Paternal Grandmother.
On Sunday, April 20, 2014, Mother took eight-month-old Z.E. to the emergency room (ER) at the Medical Center in Bowling Green, Kentucky. Shortly thereafter, an ER physician discharged Z.E. and advised Mother to follow-up with his pediatrician. Approximately an hour after being sent home, Z.E. was unresponsive so Mother returned to the ER with Z.E. An ER physician determined Z.E. could have meningitis and, thus, transported him by helicopter to Vanderbilt University Medical Center (Vanderbilt). Physicians at Vanderbilt ruled out meningitis and determined Z.E. had experienced nonaccidental trauma. An MRI revealed Z.E. had hemorrhaging of the brain and a detached retina. The bleeding in Z.E.'s brain indicated he had suffered a rotational injury to the brain as a result of significant head trauma. A shunt had to be surgically placed to relieve pressure from Z.E.'s brain. Z.E. was in critical condition and a near-fatality investigation by the Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet) followed. It was subsequently determined that during the time period the injuries were inflicted, Z.E.'s caregivers were Father, Mother, and Paternal Grandmother. All three were subsequently indicted in the Warren Circuit Court for first-degree criminal abuse of a child under twelve years of age in August of 2014.
While Z.E. was being treated at Vanderbilt, an emergency custody order placed A.E. with her paternal great-grandmother. Following Z.E.'s release from Vanderbilt, he was placed there as well. Thereafter, it was determined that relative placement was not appropriate as family members were interfering with the investigation into the cause of Z.E.'s injuries and the resulting criminal investigation. A.E. and Z.E. were subsequently placed in the temporary custody of the Cabinet. The Cabinet placed both children in a medically fragile foster home due to Z.E.'s traumatic brain injury. Mother and Father established case plans with the Cabinet in an effort to regain custody of the children and were given supervised visitation. Over the next year, Mother and Father repeatedly sought to have the children placed with relatives. By order entered September 28, 2015, the motion for relative placement was denied.
In a report filed November 19, 2015, the Cabinet reported that Mother and Father were refusing to work on their case plans pending outcome of the criminal charges against them. And, the same information was stated in reports filed by the Cabinet on March 23, 2016, and June 2, 2016. On July 15, 2016, Mother and Father had a third child, A.N.E. Shortly after birth, A.N.E. was removed by the Cabinet and placed with a maternal aunt.
In March of 2017, the criminal charges against Mother, Father, and Paternal Grandmother were dismissed without prejudice. Thereafter, the Cabinet reported on March 23, 2017, that both parents had met with a social worker to begin working on their case plans in an effort to regain custody of their children. An order was entered April 4, 2017, which provided that the children would remain committed to the custody of Cabinet but that the permanency plan was for the children to "return to parent."
By report filed August 3, 2017, the Cabinet indicated Mother was making progress on her case plan, but Father did not show up for the case planning conference. An August 31, 2017, report indicated both parents were present and discussed the progress on their case plans. The social worker requested that both parents submit to a drug screen. Mother complied with the request, and her screen was negative. Father refused to submit to the drug screen.
In a report filed September 14, 2017, a social worker for the Cabinet noted she met with Mother at her father's residence. Mother reported she was staying with her father and no longer residing with Father (J.E.). Mother also reported she had been approved for government subsidized housing and was on two waiting lists for housing. The Cabinet worker completed a prevention plan for Mother to utilize during an upcoming unsupervised visitation with her children.
The adjudication hearings in all three cases were conducted on September 21, and 22, 2017. On September 29, 2017, court orders were entered. Therein, the family court found that Z.E. was abused or neglected, and that A.E. and A.N.E. were at risk of being abused or neglected. The orders further provided that pending disposition of the cases, the children would remain in the temporary custody of the Cabinet.
At the end of the hearings, the court made extensive oral findings of fact and conclusions of law on the record. Prior to the disposition hearings, the family court reduced its findings of fact and conclusions of law to writing on September 7, 2018, nunc pro tunc to September 29, 2017.
Notices of appeal were timely filed from the September 29, 2017, adjudication hearing orders in all three cases (Appeal Nos. 2017-CA-001751-ME, 2017-CA-001766-ME, 2017-CA-001767-ME). By orders entered June 29, 2018, this Court dismissed the three appeals as interlocutory. After the three appeals were dismissed, the family court conducted disposition hearings on September 11, 2018. By orders entered September 13, 2018, Z.E., A.E., and A.N.E. were found to be neglected and abused, but were returned to Mother's custody. These appeals follow.
J.E. v. Cabinet for Health and Family Services, 553 S.W.3d 850 (Ky. App. 2018). This Court held that appeals from adjudication hearing orders in DNA cases were interlocutory and would not be ripe for appeal until the final disposition orders were entered.
III. ANALYSIS
To begin, we note that the family court conducted an evidentiary hearing in these cases without a jury. Thus, we review findings of fact made by the court under the clearly erroneous standard. CR 52.01. Findings of fact are not clearly erroneous if supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003); L.D. v. J.H., 350 S.W.3d 828, 829-30 (Ky. App. 2011). Substantial evidence is evidence of a probative value that a reasonable person would accept to support a conclusion. Moore, 110 S.W.3d at 354. And, we also give deference to the family court's opportunity to judge the credibility of witnesses. CR 52.01. Any legal conclusions or issues of law are reviewed de novo. L.D., 350 S.W.3d at 830. If we conclude that the factual findings and conclusions of law by the family court are correct, the only remaining issue on appeal is whether the family court abused its discretion in applying the law to the facts. Id.
Appeal No. 2018-CA-001377-ME
Father, Mother, and Paternal Grandmother's first argument in this appeal is that the family court erred by violating KRS 620.090(5) as to Z.E. More particularly, they argue KRS 620.090(5) requires that where a child is in the temporary custody of the Cabinet, final disposition of the matter must occur within 45 days of the child's removal. Thus, they allege the family court violated their Sixth Amendment right to a speedy hearing.
KRS 620.090(5) essentially provides that a family court must conduct an adjudication hearing and make a final disposition of an abuse action within 45 days of the removal of the child from home. The 45-day time period may be extended if written findings are made by the court establishing the necessity for such extension and a finding that such extension is in the best interests of the child.
In the case sub judice, the 45-day time period began to run when the amended temporary removal order was entered on May 12, 2014, placing Z.E. in the temporary custody of the Cabinet. Father, Mother, and Paternal Grandmother were under investigation for alleged abuse. Z.E. remained in the temporary custody of the Cabinet until final disposition occurred on September 13, 2018. During this time, neither Father, Mother, nor Paternal Grandmother moved for the case to be set for final disposition. As noted, all three were indicted for alleged abuse of Z.E. in August of 2014 and were not cooperating with the Cabinet during the pendency of the investigation or the criminal case.
During the course of this case, we observe appellants collectively had at least six different attorneys who represented them and who never raised the 45-day issue until June of 2017, after the adjudication hearings had been scheduled. Father and Mother also refused to work on their case plans with the Cabinet while the criminal cases were pending against them, which as noted, were dismissed in March of 2017. In fact, Father and Mother's refusal to work on their case plans along with their failure to cooperate with the Cabinet during the pendency of the criminal cases contributed significantly to the delay. Father and Mother's actions in creating the delay effectively constituted a waiver of the 45-day requirement. Furthermore, in compliance with KRS 620.090(5), the family court made findings on this issue at the conclusion of the hearing on September 22, 2017, that were reduced to written findings of fact, nunc pro tunc, in its September 7, 2018, Findings of Fact and Conclusions of Law, stating that the extension of the 45-day time period was necessary to protect the rights of Father, Mother, and Paternal Grandmother so as not to expose them to jeopardy during the criminal proceedings. The family court further found the 45-day extension was necessary to serve the best interests of the child. This case clearly presented a unique set of circumstances for the family court as the extension of the 45-day time period actually benefited appellants. Therefore, we believe the argument of Mother, Father, and Paternal Grandmother regarding the alleged violation of the 45-day time period of KRS 620.090(5) is without merit.
Father, Mother, and Paternal Grandmother's next argument is that the family court erred in admitting the testimony of Dr. Verena Brown, a physician involved in Z.E.'s treatment at Vanderbilt. More specifically, they contend that Dr. Brown should not have been permitted to testify as an expert witness as she was not qualified as an expert witness pursuant to Kentucky Rules of Evidence (KRE) 702. Father, Mother, and Paternal Grandmother focus their argument upon Dr. Brown's testimony that Z.E.'s injuries were the result of nonaccidental trauma.
Before considering this argument, we note that Father, Mother, and Paternal Grandmother have failed to comply with CR 76.12(4)(c)(v) by not providing this Court with a statement showing how and where this issue was properly preserved in the record below for appellate review. This Court has no authority to review issues not properly raised before a trial court. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009). The fact that appellants are pro se does not change this rule. As a general proposition, pro se pleadings filed below are usually not required to meet the same standard as that required for an attorney. Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983). However, pro se litigants in appellate practice are duty bound to comply with the rules of appellate procedure like any other party or attorney. Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). And, it is not this Court's duty to scour the record on appeal to ensure that issues have been properly preserved for our review. Id. at 414-15.
We note that given the structure and form of appellants' brief in all three appeals, appellants appear to have received legal assistance in preparing their briefs.
Notwithstanding, this Court has reviewed the entire video record of the adjudication hearing held for all three cases on September 21 and 22, 2017. In addition, we have reviewed all pleadings filed in conjunction with the hearing. Importantly, we note that Father and Mother were represented by counsel at the hearing. Dr. Brown, called by the Commonwealth, testified by live video, in person, from her office in Georgia. She was the only physician to testify as appellants called no witnesses during the two-day hearing. At no time prior to or during the testimony by Dr. Brown, did any appellants object to her being called as a witness nor did they object to her medical qualifications. And, Dr. Brown was cross-examined by counsel for Father and Mother as well as examined by the family court judge.
In August of 2017, Father and Mother filed an objection to Dr. Verena Brown being allowed to testify by electronic means at the adjudication hearing. However, that objection was withdrawn in September of 2017 prior to the hearing. --------
The preservation of an alleged error at trial or an evidentiary hearing regarding the admission or exclusion of evidence is governed by KRE 103, which provides, in relevant part:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record[.]
. . . .
(d) Motions in limine. A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.
(e) Palpable error. A palpable error in applying the Kentucky Rules of Evidence which affects the substantial rights of a party may be considered by a trial court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
Based on our review, appellants failed to object to Dr. Brown being called as a witness or to her qualifications. They also failed to file a motion in limine prior to the hearing to preclude her testimony or a motion to strike her testimony after it was completed. Given the failure to object to Dr. Brown's testimony at the hearing, and given that Dr. Brown was an attending physician of Z.E. and was the only medical witness called by either party at the hearing, we find the objection on appeal to her testimony was not properly preserved for review by this Court. We also do not find any palpable error under KRE 103(e) or CR 61.02 in the admission of Dr. Brown's testimony. See Wright v. House of Imports, Inc., 381 S.W.3d 209, 212 (Ky. 2012).
In their final argument, Father, Mother, and Paternal Grandmother also make very cursory assertions of error that the family court's findings and conclusions were not supported by substantial evidence, which includes their contention that Dr. Brown's medical report was introduced into evidence without being properly authenticated under KRE 901-903. They also argue that Dr. Brown testified from a location not approved by the state she was testifying from (Georgia), and that her identity was not properly authenticated on the record.
These arguments again fail to satisfy the requirements of CR 76.12(4)(c)(v). Appellants have failed to provide any statement identifying where these issues were preserved for appellate review. See CR 76.12(4)(c)(v). And for the same reasons previously stated, any evidentiary objections regarding Dr. Brown's testimony were not properly preserved at the hearing for appellate review.
Appeal No. 2018-CA-001376-ME
Father, Mother, and Paternal Grandmother filed this appeal and argue that the family court erred by finding that A.E. was also neglected or abused due to the abuse of Z.E., concluding they created or allowed to be created a risk of physical or emotional injury to A.E. as defined in KRS 600.020. More particularly, they contend it cannot be demonstrated by a preponderance of the evidence that A.E. was abused or neglected or at risk of physical injury without the identity of the perpetrator of Z.E.'s abuse being known.
KRS 600.020(1) defines an abused or neglected child, in relevant part, as follows:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means; [or]
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means[.]
Relevant to this appeal, KRS 600.020(1) defines an abused child as one whose health or welfare is harmed when a parent or other person in a position of authority inflicts or allows to be inflicted physical injury or creates or allows to be created a risk of physical injury by other than accidental means. From this language, it is simply unnecessary for the family court to identify the perpetrator of the abuse. Rather, a court must merely find that a parent or other person in a position of authority has inflicted or allowed to be inflicted physical injury or has created or allowed to be created the risk of physical injury. Under either scenario, the identity of the perpetrator is simply irrelevant under KRS 600.020.
Our interpretation of KRS 600.020 is buttressed by the holding in Commonwealth, Cabinet for Health and Family Services, ex rel. M.H. v. R.H., 199 S.W.3d 201 (Ky. App. 2006). Therein, the Court of Appeals concluded that "[t]he identity of the perpetrator of the abuse is not material" to the finding that the child was abused or at risk of physical injury. Id. at 204. Additionally, like the family court, we note that appellants declined to testify at the hearings to provide any factual explanation of how Z.E. could obtain such substantial injuries in their collective care. Therefore, we hold that the family court may find a child abused or at risk of physical injury without identifying the perpetrator of the abuse under KRS 600.020(1). Accordingly, we view as meritless Father, Mother, and Paternal Grandmother's contention that the family court's failure to identify the perpetrator of the abuse upon Z.E. was fatal to the finding that they created or allowed to be created a risk of physical injury to A.E. We find no error in the court's finding on this issue.
Appeal No. 2018-CA-001378-ME
Similar to the arguments raised regarding A.E., Father and Mother contend the family court erred by finding they created a risk of physical injury to A.N.E. based upon the previous substantiation of abuse against Z.E. More specifically, Father and Mother contend that although they are the biological parents of A.N.E., they did not exercise custodial control over A.N.E. as she was removed from their custody immediately after birth, which occurred after Z.E.'s abuse. Father and Mother also again assert that since the identity of the perpetrator of Z.E.'s abuse is unknown, the allegation that either of them is responsible for Z.E.'s abuse has not been proven.
As previously stated, KRS 600.020(1)(a)2 provides that an abused or neglected child is one whose health or welfare is harmed or threatened with harm when a parent creates or allows to be created a risk of physical injury other than by accidental means. And as noted, the identity of a perpetrator was not necessary to a finding that a child was at risk of physical injury. R.H., 199 S.W.3d at 204. Furthermore, it is well-established that KRS 600.020(1) allows a court to make a finding of abuse "where a risk of abuse exists and does not require actual abuse prior to the child's removal[.]" Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008). Here, the evidence established that A.N.E.'s brother had been subjected to significant nonaccidental injuries that resulted in near death. This clearly created a risk of physical injury to A.N.E. pursuant to KRS 600.020(1). See Z.T., 258 S.W.3d at 36. The fact that A.N.E. was born after Z.E.'s abuse has no legal significance in this case. Therefore, the family court's finding that Father and Mother created a risk of physical injury to A.N.E. is not clearly erroneous and is otherwise supported by substantial evidence.
For the foregoing reasons, the September 29, 2017, and September 13, 2018, orders of the Warren Circuit Court, Family Court Division, are affirmed in all three appeals.
ALL CONCUR. BRIEF FOR APPELLANT J.E.: J.E., Pro Se
Bowling Green, Kentucky BRIEF FOR APPELLANT A.B.: A.B., Pro Se
Bowling Green, Kentucky BRIEF FOR APPELLANT M.E.: M.E., Pro Se
Bowling Green, Kentucky NO BRIEF FILED FOR APPELLEES