Opinion
NO. 2016-CA-000534-ME NO. 2016-CA-000535-ME
03-17-2017
S.J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.J.H., A MINOR APPELLEES AND S.J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND B.M.S., A MINOR APPELLEES
BRIEF FOR APPELLANT: Joshua A. K. McWilliams Versailles, Kentucky BRIEFS FOR APPELLEES: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 15-AD-00067 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 15-AD-00068 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND NICKELL, JUDGES. ACREE, JUDGE: S.J. (Mother) appeals from orders of the Fayette Family Court involuntarily terminating her parental rights to her two children. Mother contends the family court's termination decision must be overturned because she was deprived of a fundamentally fair trial in violation of the 5th and 14th amendments to the United States Constitution. We disagree and affirm.
Mother is the natural parent of two children: B.M.S., a male child born on January 11, 2008 (Son); and A.J.H., a female child born July 10, 2013 (Daughter). Mother's third child, A.H., tragically died from sudden infant death syndrome in 2011.
The Cabinet petitioned for termination of Mother's parental rights on April 17, 2015, after which counsel was appointed to represent Mother, and a termination proceeding was scheduled for October 8, 2015. On the day of trial, Mother's appointed counsel moved to withdraw on grounds that Mother had hired private counsel to represent her interests. The family court granted that motion. Mother's newly-hired counsel orally moved for a continuance, citing prior counsel's failure to subpoena certain witnesses. The family court denied Mother's continuance motion.
The trial proceeded. Three Cabinet workers, the children's foster parents, and Mother testified.
Amber Flannery, a social services clinician with the Cabinet, testified the Cabinet first became involved with this family in December 2010 when A.H. tested positive for cocaine and benzodiazepines at birth. The Cabinet filed a neglect petition, and Son and A.H. were placed in the temporary custody of their maternal grandmother. Son was adjudged neglected on January 24, 2011.
Mother admitted she had a substance abuse problem. Mother and the Cabinet developed a case plan to aid Mother in obtaining sobriety. That plan required Mother to participate in random drug screens; obtain substance abuse treatment; develop a prevention plan; attend AA and NA; develop a positive support system; remain clean and sober; participate in individual therapy; demonstrate appropriate parenting; pay child support; obtain stable housing; and obtain steady employment.
In March 2011, the Cabinet conducted an unannounced home visit at Mother's residence. Emergency medical personnel were onsite. Cabinet workers learned A.H. was unresponsive and later died. Son was removed from maternal grandmother's care and placed with his maternal aunt and uncle.
Grandmother, against the orders of the Cabinet, had left A.H. alone with Mother.
Mother then entered an inpatient substance abuse treatment program at Chrysalis House. The program also offered Mother individual therapy and other services. Mother steadily progressed, making it into the independent living portion of the program. She even received some unsupervised visits with Son.
Then, Mother relapsed. Flannery testified Mother was non-compliant with her case plan; she was testing positive for illegal substances and was no longer living in her own home. The family court waived reasonable efforts in the autumn of 2012. Son was placed in permanent relative custody and the Cabinet's case closed.
Jennifer Congleton, a social worker with the Cabinet, next testified. Congleton stated that in July 2013 the Cabinet was notified that Mother had given birth to another child, Daughter, who immediately displayed withdrawal symptoms. The referral stated that Daughter's "meconium drug screen was positive for alcohol at the highest level the hospital reports it has ever seen." The Cabinet filed a neglect petition, obtained temporary custody of Daughter, and placed her in foster care where she has remained since. Daughter was adjudged neglected on August 26, 2013, and was committed to the Cabinet's custody.
Around this same time, Son's permanent relative custodians informed the Cabinet that, because of Mother's hostility and behaviors, they could no longer care for Son. Son was committed to the Cabinet's custody and also placed in foster care.
Congleton testified that the Cabinet developed a case plan to again assist Mother in obtaining sobriety and regaining custody of her children. That plan required her to obtain substance abuse and mental health treatment; attend parenting classes; attend AA/NA classes; undergo a TAP assessment; maintain stable housing and steady employment; participate in random drug screens; and remain clean and sober.
The Cabinet referred Mother to the PRIDE program, which could offer her substance abuse treatment, mental health treatment, and parenting classes. Mother began treatment, but soon tested positive for opiates and was removed from the program. After Mother's failed attempt at PRIDE, the Cabinet asked her to participate in an inpatient treatment program, as advised by PRIDE. Mother refused. Instead, on February 11, 2014, she entered an intensive outpatient program at The Ridge.
Mother regularly attended sessions at The Ridge and appeared to be making progress. At some point, she tested positive for Suboxone for which she did not have a prescription. Mother initially denied having taken the substance, but later admitted she had gotten it from her husband.
The Ridge outpatient program ended March 2, 2014, and Mother began the after-care portion of the program. Mother was required to attend therapy one time per week. Some of these sessions were in person while others occurred telephonically. Congleton testified that telephonic therapy sessions were not appropriate given Mother's extensive history of substance abuse. The Cabinet submitted evidence that Mother attended therapy 34 out of the 62 weeks between March 2014 and May 2015.
Congleton emphasized that Mother had endured an incredible struggle with alcohol, requiring her to go through detox two or three times. However, by the end of 2014, Mother had gotten the alcohol component of her addiction under control.
Mother became pregnant with her fourth child in April or May 2014. Her gynecologist, Dr. Veloudis, began prescribing her Suboxone. The Cabinet continued to have concerns about Mother's Suboxone use in light of her history of abusing the drug. A requirement was added to Mother's case plan that required her to submit a taper-down plan that would detail her plan to wean off of Suboxone and lead a drug-free lifestyle. The Cabinet also directed Mother to develop a relapse prevention plan.
Congleton testified she never received documentation that Mother attended the AA/NA meetings, and that Mother never pursued employment because Mother deemed it too overwhelming. Mother also did not complete the parenting assessment, and did not undergo the TAP assessment. Congleton testified Mother, before July 2014, tested positive at various points for opiates, benzos (benzodiazepines), and Suboxone.
The positive drug tests referenced by Congleton related only to times when Mother did not have valid prescriptions for these drugs.
Congleton also testified that the Cabinet made efforts to involve Mother in her children's lives. Initially, the Cabinet allowed Mother to have separate visit time with each child each week, but later moved to family visits in anticipation of possible reunification. The family visits did not go well, and the Cabinet reverted to separate weekly visits.
Congleton testified Daughter suffers from fetal alcohol syndrome and requires intensive therapy sessions through First Steps as well as regular physical and occupational therapy. Efforts to involve Mother in these appointments failed. Congleton testified Son had numerous behavioral issues and had to be placed in a separate foster home from Daughter. Since that change, Son's behaviors have steadily improved.
Congleton left the case in December 2014. Nakia Walker, a social worker with the Cabinet, became the ongoing worker on or about January 2015.
Walker testified that Mother gave birth to her fourth child in February 2015. At that time, Walker offered Mother another case plan, which incorporated many of the incomplete components from her previous plan(s). The most recent case plan required Mother to: maintain safe and consistent housing; obtain steady employment; remain clean and sober; drug test regularly; draft a relapse prevention plan; draft an action plan to reduce Suboxone use; attend five AA/NA meetings per week; participate in individual counseling; undergo a TAP assessment; and attend the children's doctor and therapy appointments.
Mother drug tested regularly, testing positive only for Suboxone for which she now had a valid prescription from Dr. Veloudis.
Mother did not have independent housing. She continued to live with her own mother who herself had a substantiated neglect finding.
Mother did not submit a relapse prevention plan until September 28, 2015. Walker testified it was incomplete and unacceptable. Mother disputed this testimony, claiming she had previously provided Walker with a valid relapse prevention plan.
Mother was scheduled to participate in individual therapy one time per week, but only attended about half of her appointments.
Mother attended AA/NA meeting, but only two or three times per week instead of the required five weekly meetings.
Mother was not employed. However, she had recently enrolled in a dental assistant program.
Mother was required to attend weekly after-care meetings as part of The Ridge outpatient program. She attended inconsistently and only made about half of those appointments.
Mother regularly visited with the children. However, she made no effort to attend any of their appointments, functions, or therapy sessions. She failed to pay court-ordered child support and, as of trial, had $2,826.21 in child support arrears.
Mother did not undergo a TAP assessment. She did not participate in parenting classes. She did not enroll in an in-patient substance abuse program.
Walker testified that Mother had not made meaningful progress on her case plan and adjustments to her lifestyle to allow for reunification. She reiterated that the Cabinet had been providing services to Mother for almost five years and substance abuse continued to be a concern. Walker also reiterated that Son had been out of Mother's care since 2010, and Daughter since her birth in 2013. Walker testified that both children are thriving in their current foster home placements.
Sarah Collier, Daughter's foster mother, testified next. Daughter has been in the Colliers' care since September 4, 2013. Collier testified Daughter was diagnosed with fetal alcohol syndrome at birth and has been suffering the effects since. She undergoes multiple sessions of occupational therapy, physical therapy, and speech therapy each month. She has two lazy eyes and alternates eye patches each day to strengthen her eyes. She has undergone two barium swallows and seen numerous specialists. Collier testified that Mother was aware of Daughter's various medical and therapy appointments, but had only attended one - a First Steps meeting. Collier stated Daughter has made significant progress over the years and is bonded to her foster family, including the other children in the home. The Colliers are willing to adopt her.
Edward Ritchie, Son's foster father, also testified. Son came to the Ritchies' home in November 2013. At the time, Son was defiant and had numerous behavioral issues at home and at school. Ritchie testified Son's behavior has improved dramatically. Son is currently a distinguished student at school, and involved in both basketball and soccer. He is thriving in the Ritchies' home and they are willing to adopt him.
Mother testified last. Mother stated she is a life-long addict born with the disease. She testified she became addicted to opiates at 22 years old and addicted to alcohol at 26 years old; Mother was 29 years old at trial. Mother stated The Ridge program was successful and she has remained clean and sober since 2014. She testified she went to three or four NA/AA meetings per week, but was unable to recite the 12 steps of recovery. Mother admitted she had failed to provide required documentation to the Cabinet.
Mother testified she began receiving Suboxone prescriptions from Dr. Veloudis when she became pregnant with her fourth child. Mother admitted into evidence over fifty pages of documents, including medical records from Dr. Veloudis's office; copies of her Suboxone prescriptions; and attendance records related to The Ridge aftercare program and her individual therapy sessions. She also admitted into evidence a letter from Dr. Veloudis, stating Mother "has remained compliant [with his Suboxone program] and has always had negative drug screens. She is weaned down 10% gradually with an eventual plan of discontinuing the program when she is stable."
Mother reiterated that she was drug and alcohol free, visited regularly with her children, was in school to obtain gainful employment, and was actively seeking independent housing. Mother testified she desired to be reunited with the children and felt she had made significant progress on her case plan and in her life to justify reunification in the foreseeable future.
At the close of evidence, Mother renewed her request for a continuance or an opportunity to supplement the record with additional documents and/or testimony from Dr. Veloudis. The Cabinet objected, but stipulated that Dr. Veloudis was a licensed physician permitted to prescribe Mother Suboxone. Mother admitted she did not intend to qualify Dr. Veloudis as a mental health professional. The family court again denied Mother's request for a continuance or to supplement the record.
On October 27, 2015, the family court entered findings of fact, conclusions of law, and orders terminating Mother's parental rights to the children. The family court found the children neglected. KRS 625.090(1)(a). It also found that termination was in the children's best interests, KRS 625.090(1)(b), and found that Mother was unfit to parent the children because: (a) she failed to provide them basic necessities; (b) she failed to offer them essential parental care and protection; and (c) the children had been in foster care for fifteen of the most recent twenty-two months preceding the filing of the termination petition. KRS 625.090(2)(a), (e), (g), and (j). Mother appealed.
Kentucky Revised Statutes --------
Mother asserts to this Court that the family court violated her due process rights and deprived her of a fundamentally fair trial by denying her motion to continue the termination trial and by conducting the trial without the benefit of testimony and documentation allowing for a full and accurate depiction of Mother's circumstances. Mother has not challenged any of the family court's factual findings or legal conclusions pertaining to the statutory bases for terminating parental rights, so there is no need for us to review them.
This Court will only disturb a family court's decision to terminate a person's parental rights if clear error occurred. Kentucky Rule of Civil Procedure (CR) 52.01; Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). As always, questions of law are reviewed de novo. Council on Developmental Disabilities, Inc. v. Cabinet for Health & Family Servs., 473 S.W.3d 597, 600 (Ky. 2015). And a court's ruling upon a motion to continue is reviewed for abuse of discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). "An abuse of discretion occurs when a 'trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted).
Mother first alleges that the family court abused its discretion in failing to grant a continuance so that her newly-retained attorney could properly prepare her defense. We disagree.
"Whether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case." Airrich, LLC v. Fortener Aviation, Inc., 489 S.W.3d 254, 258 (Ky. App. 2016) (citation omitted). The Kentucky Supreme Court has identified various factors to consider when reviewing the denial of a motion for a continuance. Those factors include: "1) length of delay; 2) previous continuances; 3) inconvenience to litigants, witnesses, counsel and the court; 4) whether the delay is purposeful or is caused by the accused; 5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice." Guffey, 323 S.W.3d at 371 (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991)). While these factors provide meaningful guidance, ultimately we must determine whether the family court's decision was reasonable in light of the totality of the circumstances. Id.
Mother argues she was entitled to competent counsel with adequate time to prepare for trial and to secure witnesses to aid her defense. But Mother had competent counsel - she was appointed counsel in April 2015. Appointed counsel was present at the termination trial and by all appearances ready to proceed. It was certainly Mother's prerogative to dismiss her court-appointed counsel and privately retain the services of new counsel on the eve of trial. But from that choice flowed certain consequences - including the consequence that new counsel might not be as prepared for trial as Mother would prefer.
Further, the family court set this matter for trial in September 2014; Mother was fully aware that the termination trial would commence on October 8, 2014. This afforded Mother more than adequate time to retain new counsel, if desired, and to allow counsel adequate time to prepare. Yet Mother waited until trial to do change counsel. There was no need for a continuance until that moment. That need was of her own making and an inconvenience to all involved.
Most importantly, the family court weighed the effect delaying the proceedings would have on the parties, particularly the children. In these type cases, the best interests of the children must reign paramount. The children had had multiple removals and placements. Son had been out of Mother's care for almost five years and Daughter over two years. They had lingered in foster care for almost two years and desperately needed permanency. In sum, considering the totality of the circumstances, we cannot say the family court abused its discretion when it denied Mother's motion to continue the termination trial.
Mother also argues that the denial of due process deprived her of a fundamentally fair trial in violation of her constitutional rights. Mindfulness and attendance to fundamentally fair procedures are especially significant "[w]hen the State moves to destroy weakened familial bonds . . . ." Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599 (1982); P.J.H. v. Cabinet for Human Res., 743 S.W.2d 852, 853 (Ky. App. 1987). This means parents are "entitled to a meaningful opportunity to be heard," R.V. v. Commonwealth, Dep't for Health & Family Servs., 242 S.W.3d 669, 672 (Ky. App. 2007), which includes the "right to a full adjudicatory hearing at which [she] may confront and cross-examine all adverse witnesses, present evidence on [her] own behalf and to an appeal." KRS 620.100(2).
Mother received all the features of a fair trial. She received adequate notice of the termination action and the trial itself. She had access to appointed counsel and later, at her insistence, privately retained counsel. Mother's counsel effectively cross-examined the Cabinet's witnesses and submitted over fifty pages of documents to support Mother's position. Mother herself testified, disputing much of the Cabinet's evidence and offering her own version of events.
The crux of Mother's argument is that she was deprived of the opportunity to present at trial additional documentation substantiating that she, in fact, attended all required therapy sessions, AA/NA meetings, parenting classes, drug screens, and after-care appointments. While private counsel had little opportunity to obtain such documentation, Mother had more than sufficient time. She could have easily gathered such material and provided it to her attorney in anticipation of trial. It was just as much Mother's obligation to prepare for trial as her attorney's, particularly considering the late hour in which she retained private counsel.
In any event, as previously referenced, Mother's counsel did submit some evidence documenting her attendance at various therapy and other appointments. Mother also testified that she regularly attended all required therapy sessions, parenting classes, drug screens, AA/NA meetings, and more. In light of all the testimony and evidence offered at trial, Mother's inability to submit additional documentation to bolster her testimony hardly deprived her a fundamentally fair trial.
Finally, Mother argues, somewhat in passing, that the Cabinet failed to comply with Family Court Rule of Practice and Procedure 7(1). That rule requires, each party:
[u]nless otherwise ordered by the court, in any action in which the permanent custody or time-sharing of the child(ren) is in issue, [including termination of parent rights actions,] . . . not less than 14 days prior to the day set for hearing, [to] provide the other party(ies) with a list of the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a witness, as well as a list of exhibits to be entered.Id.; Commonwealth, Cabinet for Health & Family Servs. v. S.H., 476 S.W.3d 254, 258 (Ky. 2015). We need not address this claim of error. Mother does not state how she preserved the argument in the family court. CR 76.12(4)(c)(v). We have watched the termination trial in its entirety and observed no mention of this rule in any capacity by Mother. "It has long been this Court's view that specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal." Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011).
We affirm the Fayette Family Court's October 27, 2015 orders terminating Mother's parental rights to her children, B.M.S. and A.J.H.
ALL CONCUR. BRIEF FOR APPELLANT: Joshua A. K. McWilliams
Versailles, Kentucky BRIEFS FOR APPELLEES: Tiffany L. Yahr
Lexington, Kentucky