M.H.-B. v. Cabinet for Health & Family Servs.

Full title: M.H.-B.; R.H.; AND I.W., SR. APPELLANTS v. CABINET FOR HEALTH AND FAMILY…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jun 8, 2018

NO. 2017-CA-001586-ME (Ky. Ct. App. Jun. 8, 2018)

Opinion

NO. 2017-CA-001586-ME NO. 2017-CA-001587-ME NO. 2017-CA-001588-ME NO. 2017-CA-001589-ME

06-08-2018

M.H.-B.; R.H.; AND I.W., SR. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND I.W., A MINOR CHILD APPELLEES AND M.H.-B. AND R.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.H.-B., A MINOR CHILD APPELLEES AND M.H.-B. AND R.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.H.-B., A MINOR CHILD APPELLEES AND M.H.-B. AND R.H. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.H.-B., A MINOR CHILD APPELLEES

BRIEF FOR APPELLANT: John N. Nicholas Elizabethtown, Kentucky BRIEF FOR APPELLEE: Mark Shouse Assistant Hardin County Attorney Elizabethtown, Kentucky

COMBS, JUDGE

NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 10-J-00488-002 APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 10-J-00490-002 APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 10-J-00492-002 APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 17-J-00264-001 OPINION
AFFIRMING

** ** ** ** **

BEFORE: COMBS, JOHNSON AND J. LAMBERT, JUDGES. COMBS, JUDGE: These four appeals are taken from Orders of the Hardin Family Court finding neglect/abuse against Appellant, R.H. (Mother), as to each of her four minor children and against Appellant, M.H.-B. (Father/Step-Father), who is the step-father of the oldest child and the biological father of the three younger children.

The Cabinet filed Juvenile Dependency/Neglect or Abuse Petitions in the interest of each of the four children¹ after receiving a referral on March 24, 2017, that I.W. had gone to school with bruises and deep cuts over 50% of his body. According to the report, I.W. stated that he got the injuries from fighting M.H.-B. (his half-sister) and that it was confirmed that she also had received injuries from this fight. M.H.-B. stated that Mother and Father/Step-Father forced them to fight, setting the rules for the fight. The Petitions also reflect that Mother and Father/Step-Father would not let the children stop fighting and that they fell down the steps at one point. When both children reported pain to Mother and Father/Step-Father, they were told to "suck it up and quit complaining." Mother and Father/Step-Father "denied the children medical attention with a medical doctor claiming [Mother] is a Registered Nurse and looked the children over. However, when [Social Worker] made contact with [Mother] she had no knowledge of the bruising to either of her children."

1 The children in age-descending order are: (1) I.W., a male, born in 2002 (No. 10-J-00488); (2) M.H.-B., a female, born in 2006 (No. 10-J-00492); (3) A.H.-B., a female, born in 2008 (No. 10-J-00490); and (4) J. H.-B., a male, born in 2015 (No. 17-J-00264).

The Hardin Family Court issued Emergency Custody Orders removing the children from the custody of Mother and Father/Step-Father and placing them in the emergency custody of the Cabinet. A temporary removal hearing was scheduled for March 29, 2017. A March 29, 2017, docket sheet Order reflects that Mother and Father/Step-Father, through counsel, waived the temporary removal hearing. The court issued Orders placing the children in the temporary custody of the paternal grandparents and scheduled an adjudication hearing for April 26, 2017, which was subsequently continued. The court's Orders entered May 25, 2017, provided that the hearing be continued to June 16, 2017, specifying that a two-hour hearing would be conducted.

Following the June 16, 2017, hearing, the Family Court issued Adjudication Orders. With respect to both I.W. and M.H.-B., the two older children, the court found that the allegations of the Petition were proven by a preponderance of the evidence and specifically found "neglect/abuse against [Father/Step-father and Mother] for encouraging [I.W.] and his sister, [M.H.-B.], to fight and continue to fight. Both children sustained injuries during the fight, at one point, falling down the stairs."

With respect to both A.H.-B. and J.H.-B., the two younger children, the court found that the allegations of the Petition were proven by a preponderance of the evidence and specifically found "risk of harm for neglect/abuse against [Father/Step-father and Mother] for encouraging child's siblings, [I.W. and M.H.-B.], to fight and continue to fight. Both children, [I.W. and M.H.-B.], sustained injuries during the fight, at one point, falling down the stairs."

As to the two older children, I.W. and M.H.-B., the court concluded that each child was a neglected or abused child as defined in KRS² 600.020(1):

2 Kentucky Revised Statutes.

His or her parent(s), guardian(s) or person(s) in a position of authority or special trust, as defined in KRS 532.045, or other person(s) exercising custodial control or supervision of the child; and

Inflicted or allowed to be inflicted upon the child physical or emotional injury by other than accidental means; [and]
...
Did not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being[.]

As to the two younger children, A. H.-B. and J. H.-B., the court concluded that each child was a neglected or abused child as defined in KRS 600.020(1) by the parents' creating or allowing to be created "a risk of physical or emotional injury . . . by other than accidental means[.]"

The court further concluded as to each of the four children that: reasonable efforts were made to prevent the child's removal from the home; continuation in Mother and Father/Step-Father's home is contrary to the welfare of the child; the child's best interests require the court to change custody; and that there are no less restrictive alternatives to removal from the home. The court recited that neither Mother -- nor Father/Step-Father -- sought medical care for I.W. and M.H.-B. for the injuries that they sustained when they were fighting and were encouraged to fight by both Mother and Father/Step-father.

On July 6, 2017, Mother and Father/Step-Father filed motions for a new trial pursuant to CR³ 59.01 and alternatively sought to alter, amend, or vacate pursuant to CR 59.05, both of which the court denied by Orders entered August 22, 2017.

3 Kentucky Rules of Civil Procedure.

On September 19, 2017, Mother and Father/Step-Father filed Notices of Appeal to this Court. They raise two issues on appeal. Appellants first contend that they were denied due process because the court cut the hearing short, "repeatedly telling the parties they were running low on time and not allowing the parties to tell their whole stories."

The May 25, 2017, Order of continuance notified the parties well in advance that it had allocated two hours for the adjudication hearing. The court did not cut the hearing short. At approximately 3:50 p.m., after the two older children had been interviewed in camera and the Cabinet had concluded its case, Mother and Step-Father called their first witness, the paternal grandmother. The court administered the oath, then announced a short recess - a bathroom break. It advised the attorneys that "We've actually gone over our two-hour limit. I'll allow for a little bit more time, ... I'm hoping another 30 minutes...." Thereafter, the grandmother, Father/Step-Father, and Mother testified.

Appellants complain that they were not subject to cross-examination; therefore "less testimony, that could be potentially be helpful, was not divulged." However, Appellants do not contend that they were deprived of their right to cross-examine the Cabinet's witnesses. And indeed they were not.

In Addison v. Addison, 463 S.W.3d 755 (Ky. 2015), our Supreme Court upheld the trial court's time limitation on a post-decree custody modification hearing:

The trial court "is vested with a large discretion in the conduct of the trial of causes and an appellate court will not interpose to control the exercise of such discretion by a court of original jurisdiction, unless there has been an abuse or a most unwise exercise thereof." Transit Auth. of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992). In exercising that discretion, "a trial court clearly has the power to impose reasonable time limits on the trial of both civil and criminal cases.... See, United States v. Reaves, 636 F.Supp. 1575 (E.D.Ky. 1986). As long as these trial time limits are not arbitrary or unreasonable we will not disturb the court's decision on review." Hicks v. Commonwealth, 805 S.W.2d 144, 151 (Ky.App. 1990). The trial court also has "discretion 'to ... control ... the amount of evidence produced on a particular point.' Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.App. 1992) (citing Woods v. Commonwealth, 305 S.W.2d 935 (Ky. 1957), and Johnson v. May, 307 Ky. 399, 211 S.W.2d 135 (1948))." Branham v. Rock, 449 S.W.3d 741, 749 (Ky. 2014).

Id. at 762. Pursuant to Addison, we find no abuse of discretion.

As to their second issue, Appellants contend that the family court abused its discretion in finding neglect or abuse. "[T]he trial court has broad discretion in its determination of whether a child is neglected. On appeal, we may not reverse the trial court unless its decision was clearly erroneous." M.C. v. Commonwealth, 347 S.W.3d 471, 472 (Ky. App. 2011) (citation omitted). "A factual finding is not clearly erroneous if it is supported by substantial evidence." Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003).

Appellants argue that the family court's findings of abuse or neglect are not supported by substantial evidence because the evidence presented at the hearing "was either contradictory or should be called into question by other witnesses." However, it is the family court's role to resolve conflicts in the evidence and to make credibility determinations -- not that of an appellate court.

Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.

Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted). We are satisfied from our review of the recorded proceedings that the family court's findings are supported by substantial evidence.

Appellants also contend that the trial court erred in finding a risk of harm of abuse or neglect as to the two youngest children who were not involved in the incident. We do not agree.

Unlike the prior version of the statute, the statutory language now permits a finding that a parent or guardian

is abusive or negligent who creates or allows to be created, a risk of abuse or neglect. See KRS 600.020(1). The statute, as written, permits the court's finding where a risk of abuse exists and does not require actual abuse prior to the child's removal from the home or limitation on the contact with an abusive parent.

Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008). We find no error.

We affirm the Adjudication Orders entered by the Hardin Family Court on June 27, 2017. We also affirm its Orders denying Mother and Father/Step-Father's motions for a new trial pursuant to CR 59.01, alternatively to alter, amend, or vacate pursuant to CR 59.05, entered on August 22, 2017.

ALL CONCUR. BRIEF FOR APPELLANT: John N. Nicholas
Elizabethtown, Kentucky BRIEF FOR APPELLEE: Mark Shouse
Assistant Hardin County Attorney
Elizabethtown, Kentucky