Opinion
2019-CA-1698-ME 2019-CA-1699-ME 2019-CA-1717-ME2019-CA-1718-ME 2019-CA-1730-ME 2019-CA-1732-ME
08-13-2021
M.M. APPELLANT v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; AND L.C.-M. APPELLEES AND M.M. APPELLANT v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; AND F.V.-M. APPELLEES AND S.C. APPELLANT v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; AND I.M.-M. APPELLEES AND S.C. APPELLANT v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; AND L.C.-M. APPELLEES AND S.C.M. v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; AND F.V.-M. APPELLEES AND M.M. APPELLANT v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; AND I.M.-M. APPELLEES
BRIEF FOR APPELLANT M.M.: James C. Jones, II Bowling Green, Kentucky BRIEF FOR APPELLANT S.C.: Dwight Burton Bowling Green, Kentucky NO BRIEF FOR APPELLEES.
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT FAMILY COURT DIVISION HONORABLE CATHERINE R. HOLDERFIELD, JUDGE ACTION NOS. 19-J-00226-001, 17-J-00193-002, 17-J-00194-002, 19-J-00226-001, 17-J-00193-002, 17-J-00194-002
BRIEF FOR APPELLANT M.M.: James C. Jones, II Bowling Green, Kentucky
BRIEF FOR APPELLANT S.C.: Dwight Burton Bowling Green, Kentucky
NO BRIEF FOR APPELLEES.
OPINION
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE
M.M., biological mother, brings Appeal Nos. 2019-CA-1698-ME, 2019-CA-1699-ME, and 2019-CA-1732-ME; and S.C., biological father, brings Appeal Nos. 2019-CA-1717-ME, 2019-CA-1718-ME, and 2019-CA-1730-ME from October 1, 2019, Dispositional Orders of the Warren Circuit Court, Family Court Division, (family court) committing M.M. and S.C.'s three minor children to the custody of the Cabinet for Health and Family Services (Cabinet). We affirm.
We begin our review by noting that neither the Cabinet nor the Commonwealth of Kentucky, appellees in the appeals, have filed a responsive brief in these cases. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) "provides the range of penalties that may be levied against an appellee for failing to file a timely brief." St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). 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). Given the circumstances, for this appeal only, we decline to take any action and have conducted a thorough independent review of the record below. However, we warn the Cabinet that this Court may not be so lenient for failure to file an appellee brief in future appeals.
As to the merits of this appeal, a brief recitation of the underlying facts is necessary. On March 6, 2017, the Cabinet filed petitions in the family court (Action Nos. 17-J-00194-001 and 17-J-00193-001) alleging dependency, neglect, or abuse of M.M.'s two children - F.V.-M., who was born on November 9, 2013, and I.M.-M., who was born on November 6, 2016. The dependency, neglect, or abuse (DNA) petitions were filed after I.M.-M. suffered a severe head injury due to being violently shaken when he was just a few months old. As a result of the shaking, I.M.-M. developed a brain bleed, detached retina, cerebral palsy, severe visual impairment, and seizures. The Cabinet was awarded emergency custody of I.M.-M. and F.V.-M. on March 10, 2017. M.M. refused to identify the children's biological father preventing placement with him. The abuse was substantiated by the Cabinet, but the identity of the perpetrator was determined to be unknown.
By orders entered August 21, 2017, M.M. stipulated to an amended charge of dependency, and temporary custody was ordered to remain with the Cabinet. M.M. completed the case plan established for her by the Cabinet, and by order entered October 31, 2017, F.V.-M. was returned to M.M.'s custody. Then on August 3, 2018, a disposition order was entered returning I.M.-M. to M.M.'s custody.
On August 10, 2018, shortly after I.M.-M. was returned to M.M.'s custody, the Cabinet received a report of suspected abuse from I.M.-M.'s daycare facility. The daycare, known as Kidz Club, provides specialized childcare services for children with medically complex needs. As a result of the abuse I.M.-M. suffered as an infant in 2017, he has cerebral palsy, severe visual impairment, is immobile, experiences seizures, is nonverbal, is unable to hold his head up, and requires a G-Tube to assist with feeding. Children attending Kidz Club are examined twice daily by staff - once upon arrival and again before departure. During the morning examination, Kidz Club staff noticed I.M.-M. had three suspicious bruises on his leg and ankle that were not present the previous day. Upon receiving the report of suspected abuse, a social worker for the Cabinet went to Kidz Club. M.M. was also called and met with the social worker. At the social worker's request, M.M. took I.M.-M. to the Medical Center in Bowling Green, Kentucky, to be evaluated. A computerized topography (CT) scan was ordered, and a brain bleed was noted. Due to concerns that the brain bleed was a new injury, I.M.-M. was transported to Vanderbilt Medical Center (Vanderbilt) in Nashville, Tennessee, for evaluation by the Trauma Care Team. Vanderbilt physicians ultimately determined that the brain bleed was not new injury; rather, it was a result of the abuse I.M.-M. suffered in 2017 when he was violently shaken. Vanderbilt physicians did opine that the bruises on I.M.-M.'s leg and ankle were consistent with and the result of recent abuse.
On August 13, 2018, the Cabinet filed DNA petitions in the family court (Case Nos. 17-J-0193-002 and 17-J-0194-002) alleging physical abuse as to I.M.-M. and risk of abuse as to F.V.-M. The family court granted emergency custody to the Cabinet. M.M. then identified S.C. as the biological father of I.M.-M. and F.V.-M., and paternity tests subsequently established same.
The Cabinet for Health and Family Services filed amended petitions alleging dependency, abuse, or neglect on August 15, 2018.
On March 29, 2019, M.M. gave birth to a third child, L.C.-M. The Cabinet filed a DNA petition on April 1, 2019, alleging risk of abuse as to L.C.-M. (Case No. 19-J-00226-001) and sought emergency custody. Therein, the Cabinet stated that L.C.-M.'s siblings were currently in the temporary custody of the Cabinet and that the parents, M.M. and S.C., had ongoing case plans as to I.M.-M. and F.V.-M.
Following an adjudication hearing, orders were entered on August 28, 2019, as to all three children (Case Nos. 17-J-0193-002, 17-J-0194-002, and 19-J-00226-001). In the August 28, 2019, orders, the family court noted that I.M.-M., F.V.-M., and L.C.-M. were dependent, neglected, or abused and ordered the children to remain in the custody of the Cabinet pending disposition. As to F.M.V. and L.C.-M., the August 28, 2019, orders specifically noted that the "Court finds Risk of Abuse-Unknown Perpetrator." As to I.M.-M., the August 28, 2019, order provided that the "Court finds Abuse-Unknown Perpetrator." The permanency hearing orders, also entered on August 28, 2019, recommended that the permanency goal was for the children to be returned to parent.
In a dispositional report filed on September 19, 2019, the Cabinet recommended that the permanency goal for all three children be changed to adoption. Following a disposition hearing in September of 2019, orders were entered October 1, 2019. The family court ordered that I.M.-M., F.V.-M., and L.C.-M. were to remain committed to the custody of the Cabinet. Despite the Cabinet's recommendation that the permanency goal be changed to adoption, the family court ordered that the goal would remain as return to parent. These appeals by M.M. and S.C. follow.
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 family 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. 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 proper, the only remaining issue on appeal is whether the family court abused its discretion in applying the law to the facts. Id.
M.M. and S.C. each filed three separate appeals from the three dispositional orders entered October 1, 2019, regarding I.M.-M., F.V.-M. and L.C.-M. M.M. filed a combined brief for all three of her appeals (Appeal Nos. 2019-CA-1698-ME, 2019-CA-1699-ME, and 2019-CA-1732-ME). And, SC filed a combined brief for all three of his appeals (Appeal Nos. 2019-CA-1717-ME, 2019-CA-1718-ME, and 2019-CA-1730-ME). We initially note that although M.M. and S.C. filed two separate briefs, the contentions of error raised in each brief are virtually identical, so we will address the parties' arguments on appeal jointly in this Opinion.
The initial contention of error raised by M.M. and S.C. is that the family court failed to indicate in the August 28, 2019, adjudication orders which specific section of Kentucky Revised Statute (KRS) 600.020 the family court had relied upon for its finding that the children were neglected or abused. More specifically, M.M. and S.C. assert:
While the Court's Adjudication order for each of the minor children indicates that the "Court finds Abuse-Unknown Perpetrator" and the Court provides a recitation of testimony it used to make said finding, the Court did not indicate (by checking box(es) on AOC-DNA-4) under which section of KRS 600.020 its finding was made. Therefore, the Court's findings are not sufficient and clearly erroneous.M.M.'s Brief at 7, S.C.'s Brief at 13. There were three adjudication orders entered on August 28, 2019, one for each of the three children. In each instance, the family court utilized an AOC-DNA-4 form order. On the DNA-4 form order, there was a section entitled "Conclusions of Law" and the family court checked the following boxes:
1. The Court therefore concludes the above-named child ☑is ☐ is not:
[ ] dependent as defined in KRS 600.020(20); as follows:
[√] neglected or abused as defined in KRS 600.020(1); as follows:
A.[ ] Dependency. The child is under improper care, custody, control, or guardianship that is not due to an intentional act of the parent, guardian, or person exercising custodial control or supervision of the child.
B. [√] Neglect or Abuse
i. [ ] 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 or supervision of the child; and
[ ] Inflicted or allowed to be inflicted upon the child physical or emotional injury by other than accidental means;
[ ] Created or allowed to be created a risk of physical or emotional injury by other than accidental means;
[ ] Engaged in a pattern of conduct that makes him/her/them incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to a substance use disorder as defined in
KRS 222.005;
[ ] Continuously or repeatedly failed or refused to provide essential parental care and protection for the child, considering the age of the child;
[ ] Committed or allowed to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
[ ] Created or allowed to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
[ ] Abandoned or exploited the child;
[ ] Did not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being;
[ ] Failed to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child that resulted in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months.
Order Adjudication Hearing at 2-3. Under Subsection (1)(B)(i) of the DNA-4 form order, none of the boxes were checked. However, each of the three DNA-4 form orders had a one-page typed document inserted between page 2 and 3 of the form order. The inserted page contained the family court's specific findings of fact and conclusions of law determining that I.M.-M. was abused and that L.C.-M. and F.V.-M. were at risk of abuse. In the inserted pages as to I.M.-M., the family court specifically found:
On August 10th, 2018[, ] referral source reported there were 3 unexplained bruises on [I.M.-M.], 2 on right leg (on shin) and one on left leg (ankle) the Exhibit photos are photos of the bruise taken on August 10th, 2018. Child is immobile but not paralyzed, can move leg some, about one-half inch each. Child does not have the strength in abdomen to be able to walk. He had cerebral palsy from 2017 injury and can have non-purposeful movement of his arms and slightly his legs.
[M.M.] was requested by Social Service Worker to take the child to Graves Gilbert Clinic for assessment of child's eye and skin assessment of the bruises. She did take the child to be seen there but there was no mention to them of bruises. [M.M.] was then told by Social Service Worker to take child to the Medical Center for skin assessment of the bruises. She did take him, and the Medical Center had him transported to Vanderbilt Children's hospital, also on August 10th, 2018[, ] due to concerns for the brain bleeds. On Monday, the specialist came in and discounted the brain bleeds as continuation from the original 2017 injury, however, they were concerned about the bruising. No report of any seizures around the timeframe of the injury. [M.M.] reported the bruises to be mosquito bites, however, they did not appear to the medical personnel or Social Worker to be mosquito bites.
The Cabinet for Health and Family Services substantiated physical abuse against [M.M.] and [S.C.]
due to such bruising. The Child had been returned to [M.M.'s] care approximately 15 days prior to August 10th, 2018. The Cabinet for Health and Family Services nurse testified that although the bruises were not located in the areas considered as critical areas by medical providers and social service workers generally such bruises were circular and appeared to be from a fingerprint Court would consider the bruises to be in a critical area on such a nonmobile child.
Social worker testified that [I.M.-M.'s] daycare Kidz Club for medically complex children, with several nurses on staff, performs a full skin assessment when each child comes in each day and this is when the bruises were found. SSW testified to being made aware of no bruising being seen on the child August 9th, 2018[, ] nor until he was returned to Kidz Club on August 10th, 2018, he was around the following people per his investigation: his mother [(M.M.)], his father [(S.C.)], and a babysitter (name not given in testimony.) Social Worker testified that any concerning bruising on a child 4 years of age or younger should be observed by a medical professional. Social Service Worker testified to not being aware of any condition the child has that would make the child susceptible to bruising. Court finds, and is concerned that, there were also bruises found[, ] tiny faded bruise on left lower leg and left upper arm[, ] on this immobile child while in CHFS care on September 17th, 2018[, ] when he was being medically evaluated due to seizures, which bruises were not investigated by CHFS which the Court finds should be investigated if have not been. CHFS nurse testified that the limited mobility of [I.M.-M.'s] legs could not have caused the bruising on his legs. Court finds Abuse-Unknown Perpetrator.
Order Adjudication Hearing at 3 (emphasis added). And, on the inserted pages as to L.C.-M. and F.V.-M., the family court made substantially identical findings as set forth above except the court found "Risk of Abuse-Unknown Perpetrator" rather than "Abuse." Order Adjudication Hearing at 3 (emphasis added).
Although the family court failed to check a box on the DNA-4 form order under Subsection (1)(B)(i) to indicate which subsection of KRS 600.020 was applicable, a review of the order as a whole clearly indicates the court found that M.M. and S.C. had inflicted or allowed to be inflicted physical injury as to I.M.-M. And, as to F.V.-M. and L.C.-M., the family court clearly found that M.M. and S.C. had created or allowed to be created a risk of physical injury other than by accidental means. These written findings are more detailed than those set out in the AOC form. At most, the family court's failure to check a box on the DNA-4 form order was merely an oversight and constituted a clerical error. See CR 60.02.
S.C. and M.M. next contend the family court erred by finding in the August 28, 2019, adjudication orders that the three bruises on I.M.-M.'s leg and ankle were in "critical areas." M.M.'s Brief at 8 and S.C.'s Brief at 17. More particularly, SC and M.M. assert that such a finding was not supported by substantial evidence and, thus, was clearly erroneous.
In these cases, a nurse for the Cabinet testified that the bruises on I.M.-M.'s leg and ankle were circular in shape, which is consistent with bruising caused by a finger. Given the known history of near fatal abuse to I.M.-M., his limited mobility due to that abuse, and the short amount of time I.M.-M. had been back in M.M.'s custody when the bruises appeared, we find no error in the family court's finding that the bruises on I.M.-M.'s leg and ankle were in a critical area. And, the court's findings clearly reflected that additional injuries to I.M.-M. occurred while in M.M.'s care.
S.C. and M.M. also contend that the family court abused its discretion by not returning the children to them at the conclusion of the disposition hearing in September of 2019. S.C. and M.M. specifically assert that the Cabinet should not be permitted to permanently interfere with their fundamental interest in the custody and care of their children without substantial evidence that harm to their children has been caused by the parents and that the harm is likely to occur if the children are returned. M.M. and S.C. claim that no such evidence was presented at the hearing. We disagree.
In the October 1, 2019, Disposition Orders, the family court found that it was unsafe to return the children to M.M. and S.C. because there had been two substantiations of physical abuse to I.M.-M. by an unknown perpetrator. Again, we emphasize that the first substantiation of abuse resulted in near fatal injuries to I.M.-M. As a result of those injuries, I.M.-M. has been diagnosed with cerebral palsy, severe visual impairment, seizures, is immobile, unable to hold up his head and requires a G-Tube for feeding. And, within days of I.M.-M. being returned to M.M.'s custody, I.M.-M. had bruising that could not be otherwise explained given his immobility and which a medical professional opined was due to abuse. This abuse occurred while in the custody of M.M., although the perpetrator of the abuse could not be determined. Under the particular facts of this case, we do not believe the family court erred as there exists substantial evidence that I.M.-M. had suffered abuse and that F.V.-M. and L.C.-M. were at risk of abuse if returned to the custody of M.M. and S.C.
For the foregoing reasons, the October 1, 2019, disposition orders of the Warren Circuit Court, Family Court Division, committing M.M. and S.C.'s three minor children, I.M.-M., F.V.-M., and L.C.-M. to the custody of the Cabinet are affirmed.
ALL CONCUR.