Opinion
NO. 2019-CA-1570-ME NO. 2019-CA-1571-ME NO. 2019-CA-1572-ME NO. 2019-CA-1573-ME NO. 2020-CA-0312-ME NO. 2020-CA-0314-ME
02-12-2021
S.L.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.R., A MINOR CHILD APPELLEES AND S.L.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND R.R., A MINOR CHILD APPELLEES AND J.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.R., A MINOR CHILD APPELLEES AND J.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND R.R., A MINOR CHILD APPELLEES AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLANT v. S.R.; J.M.R.; FINANCE AND ADMINISTRATION CABINET; HON. JASON APOLLO HART; AND L.A.R., A MINOR CHILD APPELLEES AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLANT v. S.R.; J.M.R.; FINANCE AND ADMINISTRATION CABINET; HON. JASON APOLLO HART; AND R.L.R., A MINOR CHILD APPELLEES
BRIEF FOR S.L.R.: Raven N. Turner Frankfort, Kentucky BRIEF FOR J.R.: Jason Apollo Hart Frankfort, Kentucky BRIEFS FOR COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky BRIEF FOR FINANCE AND ADMINISTRATION CABINET: Cary B. Bishop Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SQUIRE WILLIAMS, III, JUDGE
ACTION NO. 19-AD-00019 APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SQUIRE WILLIAMS, III, JUDGE
ACTION NO. 19-AD-00020 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES. GOODWINE, JUDGE: S.L.R. ("Mother") and J.R. ("Father") appeal the September 13, 2019 judgments of the Franklin Circuit Court, Family Division, terminating their parental rights to L.R. and R.R. Separately, the Cabinet for Health and Family Services ("Cabinet") appeals the February 21, 2020 orders granting Father's appointed counsel's request for payment of fees for representation on appeal. After careful consideration, we affirm.
The Cabinet also appealed the orders granting Mother's appointed counsel's requests for fees. Those appeals were dismissed by this Court for failure to name indispensable parties to the appeals. Cabinet for Health and Family Services v. S.R., Nos. 2020-CA-0311-ME and 2020-CA-0313-ME.
BACKGROUND
On March 29, 2019, the Cabinet filed petitions to involuntarily terminate the parental rights of Mother and Father to their daughters, L.R. and R.R.
At trial, the Cabinet first presented testimony from Dr. Christina Howard, Assistant Professor of Pediatrics and Child Abuse Pediatrician at the University of Kentucky Healthcare, Department of Pediatrics, Division of Pediatric Forensic Medicine. Dr. Howard testified to examining R.R., who was six weeks old at the time, on October 19, 2016, when she was brought to UK Children's Hospital Emergency Department after being diagnosed with a right femur fracture at Frankfort Regional Medical Center. Dr. Howard diagnosed R.R. with nine bone fractures in different stages of healing. She determined some injuries were as old as four weeks, while others were more recent, which indicated the injuries resulted from at least two separate incidents.
Dr. Howard's written report states R.R.'s injuries were "highly specific for abuse." Petitioner's Exhibit 3 at 8. She determined R.R.'s rib fractures were caused by a "violent squeezing of the chest[,]" while her ankle and wrist fractures were caused by "twisting, yanking, or flailing[,]" and the fractures to her hand were caused by "grabb[ing] and strenuously manipulat[ing]" the fingers. Id. at 7-8. Dr. Howard concluded the injuries were "consistent with non-accidental trauma" and expressed "grave concern for R.R. or any other child, were they returned to the environment in which these injuries occurred." Id. at 8. The parents gave Dr. Howard no plausible explanation for the injuries. Specifically, Dr. Howard testified neither a dog jumping on R.R. nor an interaction with another young child could have caused the injuries.
Exhibits introduced by the parties at trial were made part of the record but were not paginated by the circuit clerk during certification.
Dr. Paul Ebben, a licensed clinical psychologist, next testified to his evaluations of the parents. As part of their case plans, Dr. Ebben evaluated both parents in July 2017 and February 2019. Dr. Ebben found both parents to be defensive, making their test results largely invalid. He expressed concern regarding Mother's mental health because she reported experiencing only mild depression but had prior diagnoses of bipolar disorder and post-traumatic stress disorder ("PTSD"), as well as a recent diagnosis of major depressive disorder by her therapist at Bluegrass.org. Dr. Ebben testified that despite Mother having received some mental health counseling, she needed long-term treatment. He expressed concern that, in addition to Mother's mental health issues, Father did not appreciate the severity of those issues and the risk they could pose to the children.
In his 2017 report, Dr. Ebben recommended the parents have no unsupervised visitation with the children, complete parenting classes, receive ongoing mental health treatment for the foreseeable future or until formally released, abstain from all substances, maintain financial stability, establish adequate support systems, and obtain education regarding proper discipline of children. Petitioner's Exhibit 6 at 13. Ultimately, Dr. Ebben was most concerned that so long as the parents remain suspected perpetrators of R.R.'s injuries and no perpetrator is identified, "there is an uncomfortable level of risk for any dependent child under [their] care so reunification, or even unsupervised time, cannot be supported." Id.
Petitioner's Exhibit 6 is Dr. Ebben's evaluation of Mother. Dr. Ebben made identical recommendations for Father in his evaluation, Petitioner's Exhibit 7.
Jodi Bessinger, L.R.'s therapist, next testified to treating the child for PTSD. L.R. was first taken to Ms. Bessinger because of a number of concerning, dysregulated behaviors including banging her head and night terrors. Ms. Bessinger attributed these behaviors to trauma experienced by L.R. According to Ms. Bessinger, L.R. exhibited strong attachment to her foster parents, especially her foster father. She testified to improvements in L.R.'s condition since participating in treatment.
Martha Carlisle, the social worker assigned to the case, then testified to the history of the Cabinet's involvement with the family. In October 2016, following the discovery of R.R.'s injuries, the Cabinet filed dependency, neglect, and abuse ("DNA") petitions against Mother and Father on behalf of both children, and the children were placed in the Cabinet's temporary custody. At the adjudication hearing, the family court found R.R. was abused and her parents either inflicted her injuries or allowed them to be inflicted upon her by non-accidental means. The court ordered removal of both children. L.R. was removed because she was at risk of harm based upon R.R.'s injuries. At the time of the termination trial, the children had continuously been in the Cabinet's custody for thirty-four months.
Upon appeal by Mother, this Court affirmed the disposition orders of the family court. S.R. v. Commonwealth, No. 2017-CA-001141-ME, 2018 WL 4183472 (Ky. App. Aug. 31, 2018).
Ms. Carlisle testified the parents' case plan was revised several times over the course of the case. They were required to obtain independent and stable housing; obtain and maintain employment; complete parenting classes at the Sunshine Center; complete an evaluation with Dr. Ebben and follow any resulting recommendations; complete a mental health assessment at Crossroads Counseling and comply with treatment recommendations; attend the children's medical appointments; and visit with the children. Ms. Carlisle testified to incorporating Dr. Ebben's recommendations into the parents' case plan upon receipt of his 2017 reports.
According to Ms. Carlisle, the parents successfully completed some tasks included in their case plan. They maintained appropriate housing and completed two courses of parenting classes. Father also maintained consistent employment throughout the case. As previously described, both parents participated in Dr. Ebben's assessments. Both parties also made some child support payments but had arrearages at the time of trial.
Ms. Carlisle testified that, other than a period of several months in 2018 when no-contact orders between the parents and children prohibited visitation, the parents consistently participated in supervised visits with the children. The no-contact orders were entered in criminal cases wherein both parents were indicted for criminal abuse in the first degree resulting from R.R.'s injuries. At the time of trial, the criminal cases remained pending before the Franklin Circuit Court.
Kentucky Revised Statutes (KRS) 508.100, a Class C felony.
Like Dr. Ebben, Ms. Carlisle testified to the Cabinet's concerns regarding Mother's untreated mental health issues and Father's inability to recognize the severity of those issues. The parents did not complete mental health assessments at Crossroads Counseling but sought treatment at Bluegrass.org. Both parents first completed mental health assessments in May 2017 but were later discharged for noncompliance. Neither parent engaged in mental health services from June 2017 to July 2018. Father successfully completed mental health treatment with Bluegrass.org in May 2019. Mother attended some therapy sessions between July 2018 and February 2019 but was again discharged for noncompliance. She most recently completed a third assessment at Bluegrass.org in May 2019, at which time she reported self-harming thoughts to her counselor and was diagnosed with major depressive disorder. According to Ms. Carlisle, the Cabinet has no record of Mother completing treatment since that time.
According to Ms. Carlisle's testimony, the Cabinet refers parents to Crossroads Counseling because it communicates with the Cabinet to identify its concerns and reasons for referring parents for services. Bluegrass.org bases its treatment on the parent's self-reported symptoms and does not communicate with the Cabinet.
Ms. Carlisle also expressed concern regarding the length of time the parents took to complete tasks in their case plan. The parents received their initial case plan in late 2016. They did not meet with Dr. Ebben for the first time until July 2017. They completed their first course of parenting classes in 2017 but did not complete the second course until May 2019. For more than one year, neither parent made any progress toward completing mental health treatment despite this being a primary issue in their case. Father completed treatment in May 2019, less than three months prior to trial, and Mother did not complete treatment.
Ms. Carlisle also testified to discussing the cause of R.R.'s injuries with the parents several times over the course of the case. The injuries were discovered by Mother's sister and grandmother when R.R. was left in their care while the parents and L.R. went to Walmart. The parents first attributed the injuries to a dog jumping on R.R. They later stated Mother's sister or her children may have inflicted the injuries. Ms. Carlisle testified Mother and Father continuously refused to take responsibility despite having admitted to being the children's near-exclusive caregivers.
The family court heard testimony from the foster mother. The children have lived in her home continuously since October 2016. She testified the children have bonded with her, her husband, and their children and indicated she and her husband planned to adopt the children if they became available for adoption.
After the family court denied their motions for directed verdict, Mother and Father presented the testimony of Mother's sister. She lived in the home with Mother, Father, and their children in October 2016. She testified to having watched L.R. and R.R. with at least one other adult present on approximately five occasions when Mother and Father left the home to shop for groceries. This contradicted her prior testimony in which she claimed to have only held R.R. three times. She testified to observing a dog jumping on R.R. on one occasion. During cross-examination, she denied causing R.R.'s injuries or believing her grandmother inflicted them.
Father then testified on his own behalf. He explained his and Mother's completion of both courses of parenting classes, as well as the Health Access Nurturing Development Services ("HANDS") program, which taught them how to care for and discipline their children. He testified to learning to "pay more attention to child care" in the future. Video Record ("V.R.") at 8/13/2019, 9:47:10. Father acknowledged his prior testimony to Mother being the children's primary caregiver because he worked during the day. He denied causing R.R.'s injuries and testified he did not believe Mother, her sister, or her grandmother caused them. He provided no further explanation for the cause of the injuries.
When asked about his completion of mental health treatment, Father attributed the gaps in treatment to issues with his and Mother's health insurance. When questioned about Mother's mental health, he testified to having no knowledge of her self-harming thoughts and, despite now being aware of those thoughts, he expressed no concerns with leaving the children in her care in the future.
Mother then testified. She claimed to "co-parent" the children with her sister, which she described as regularly caring for her children and her sister's three children as a group. This contradicted her prior testimony to being her children's primary caregiver, leaving them with no one for longer than the time it took for her to use the restroom or start a load of laundry.
Mother testified to her mental health treatment through Bluegrass.org. She also testified the reported self-harming thoughts in May 2019 consisted of a single ideation. She claimed to have addressed it by following her safety plan which included telling her husband about the thoughts. She also admitted to her prior diagnoses of bipolar disorder and PTSD but denied needing additional treatment for those conditions.
Finally, Mother's therapist from Bluegrass.org, Brittany Waiters-Nevitt, testified. She initially diagnosed Mother with adjustment disorder with anxiety which she attributed to the ongoing legal actions involving the children. In May 2019, Mother reported suicidal ideations, and Ms. Waiters-Nevitt diagnosed her with major depressive disorder. Despite having met with Mother only once since making this new diagnosis, Ms. Waiters-Nevitt claimed Mother had completed her treatment plan. She could not identify the date on which Mother completed treatment. When questioned about Mother's suicidal ideations, Ms. Waiters-Nevitt expressed no concern and reported Mother followed her safety plan. However, she could not identify the components of Mother's safety plan.
On September 13, 2019, the family court entered judgments terminating Mother's and Father's parental rights. In lengthy findings of fact, the family court found R.R. had sustained non-accidental injuries which were inflicted on at least two separate occasions and the fractures were "very specific for use of excessive force." Record ("R.") at 141. The family court found L.R. and R.R. were neglected under KRS 600.020(1) and R.R. had suffered a serious physical injury, as well as a physical injury, under KRS 600.020(60) and KRS 600.020(49), respectively. Id. at 138-39.
Citations are to the record in circuit Case No. 19-AD-00019. The family court entered identical findings of fact in both actions.
The family court found that despite having had three years to complete her case plan, Mother had not sufficiently addressed her mental health issues. In addressing Mother's mental health, the court also found Ms. Waiters-Nevitt's testimony lacked credibility. The family court chose to give greater weight to Dr. Ebben's testimony with regard to Mother's mental health. The family court found Mother's mental health worsened over the course of the case and she needed more treatment than she received from Bluegrass.org. The court found Father did not appreciate the severity of Mother's mental health issues, creating a protection issue for the children.
The court determined the Cabinet rendered all reasonable efforts and no efforts had been made by Mother and Father to complete their case plan until recently. It further found there was no reasonable expectation the parents would improve and be able to protect their children, and the parents failed to show the children would not continue to be abused or neglected if returned to their custody. The family court concluded the children's wellbeing would continue to improve if termination was granted and termination was in their best interest.
These appeals followed. Along with Father's notices of appeal, trial counsel tendered an affidavit to proceed in forma pauperis and a motion to withdraw as counsel and for appointment of new counsel for Father on appeal. The family court granted the motions and appointed Jason Apollo Hart as Father's counsel on appeal. After filing briefs on Father's behalf, Mr. Hart moved the family court for reimbursement of costs and fees totaling $1,062.92 under KRS 625.080. The Cabinet objected to Mr. Hart's motion. On February 21, 2020, the family court entered orders awarding Mr. Hart fees in the amount of $500. The Cabinet appealed.
Due to its responsibility to pay fees ordered by the family court under KRS 625.080(3), the Finance and Administration Cabinet was named as a party to the appeals and has filed a brief herein.
STANDARD OF REVIEW
The family court has broad discretion in determining whether to terminate parental rights. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). "This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01, based on clear and convincing evidence." C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 916 (Ky. App. 2009) (citation omitted). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." M.P.S., 979 S.W.2d at 117 (citation omitted). Therefore, we will not disturb the family court's findings "unless no substantial evidence exists on the record." M.E.C. v. Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citation omitted).
Kentucky Rules of Civil Procedure.
ANALYSIS
On appeal, Mother and Father argue: (1) the family court erred in finding L.R. and R.R. to be neglected children; (2) there was insufficient evidence to support the family court's finding that it was in the best interest of the children to terminate parental rights because the Cabinet did not make reasonable efforts to reunite the family despite the substantial progress the parents made in completing their case plan; (3) the family court incorrectly found the parents failed to prove the children would not continue to be abused or neglected if returned to their custody; and (4) there is a default preference against termination of parental rights.
First, we will not disturb the family court's finding that L.R. and R.R. are neglected children. As referenced in the parents' arguments, this Court affirmed the family court's findings of neglect in the underlying DNA cases. S.R., 2018 WL 4183472, at *3. Therein, Mother argued the family court had insufficient evidence to prove she inflicted or allowed to be inflicted injury upon R.R. because the Cabinet did not provide evidence identifying a specific perpetrator. Id. This Court determined "the fact that someone in the household was able to inflict multiple serious injuries over a lengthy period on an infant whose primary contact was indisputably with Mother and Father was sufficient to support the finding that Mother had either inflicted the injuries herself or created or allowed the risk to occur." Id. By citing to no other authority and making no argument, parents concede the family court's findings of neglect, and we have no basis for disturbing those findings.
Next, there was sufficient evidence to support the family court's finding it was in the children's best interest to terminate parental rights. Specifically, the parents claim the Cabinet did not make reasonable efforts to reunite them with their children despite their substantial completion of their case plan.
In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring
KRS 625.090(3).reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
Although Mother and Father accomplished some items in their case plan, including having stable housing, maintaining employment, and completing two courses of parenting classes, they did not successfully complete the entire plan. Most concerning to the family court was Mother's lack of completion of mental health treatment. The parents argue Ms. Waiters-Nevitt's testimony to Mother's completion of her treatment plan and use of her safety plan when she had suicidal ideations show she met the requirements of her case plan.
"[D]ue regard shall be given to the opportunity of the [family] 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 [family] court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and citations omitted). The family court was unconvinced by Ms. Waiters-Nevitt's testimony. She was unable to identify the components of Mother's safety plan or the date on which Mother allegedly completed treatment. It is well within the family court's discretion to give greater weight to Dr. Ebben's testimony regarding Mother's mental health.
Substantial evidence was provided through Dr. Ebben's testimony and reports to show Mother had significant mental health issues which had not been adequately treated. In addition to untreated bipolar disorder and PTSD, she reported suicidal ideations and was diagnosed with major depressive disorder less than three months prior to trial. No evidence was presented to show Mother completed treatment after receiving this diagnosis. Dr. Ebben was consistent in his assessment that Mother needed significantly more treatment than she had received from Bluegrass.org.
Furthermore, the family court is not only required to consider the Cabinet's efforts, but also the parents' efforts to make it in the child's best interest to be returned to their custody. KRS 625.090(3)(d). The family court found the parents "made insufficient efforts or adjustments in their circumstances, conduct, or conditions to make it in the best interest of the children to return to their home within a reasonable period of time, considering the ages of the children." R. at 147. Although Father was discharged after completing mental health treatment, he remained unable to appreciate the severity of Mother's mental health issues, and therefore, was found to be unable to protect the children. Despite learning of Mother's suicidal thoughts at trial, he still claimed to have no concerns about leaving the children in her care in the future.
Mother and Father argue they used the resources available to them to help them improve their parenting and now know to "pay more attention to child care." V.R. at 8/13/2019, 9:47:10. However, a primary concern of the family court was that no perpetrator of the injuries inflicted upon R.R. had been identified. To reduce this case to an issue of choice of child care providers ignores the fact that the parents remain under indictment for criminal abuse in the first degree. Both Dr. Ebben and Ms. Carlisle stated reunification was not possible so long as no perpetrator was identified, and the parents remained suspected perpetrators.
As found by the family court, Mother and Father had nearly three years to complete the tasks in their case plan but failed to do so. Even where they completed tasks, they only did so after prolonged inactivity. During the time the parents failed to complete their case plan, their children remained in the Cabinet's custody being cared for by and bonding with their foster family.
Substantial evidence was presented of the Cabinet's efforts to reunify the family and of the parents' lack of progress on their case plan. Due to the parents' insufficient efforts, the family court found termination was in the children's best interest because they had "lingered in foster care long enough" and the court refused to "gamble with their safety, mental health, and wellbeing." R. at 147. Taking into consideration KRS 625.090(3) in its entirety, the family court did not err in finding the Cabinet made reasonable efforts to reunify the family and termination was in the children's best interest.
Next, the parents did not prove the children will not continue to be abused or neglected if they are returned to the parents' custody.
If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.KRS 625.090(5).
In support of their argument, the parents cite to C.A. W. v. Cabinet for Health and Family Services, 391 S.W.3d 400, 407 (Ky. App. 2013), where this Court determined, based on the parents' lack of completion of their case plan, they had not met their burden under KRS 625.090(5) and "it [was] not reasonable to expect sufficient improvement in the foreseeable future that would justify reunification[.]"
Herein, as detailed above, Mother and Father have also failed to make sufficient progress on their case plan despite having nearly three years to do so. Most significantly, Mother failed to complete mental health treatment and, despite completing his own treatment, Father failed to appreciate the significance of Mother's mental health issues. Furthermore, both parents failed to complete tasks in a timely manner and remain suspected perpetrators of R.R.'s injuries. On this basis, the family court found the parents had not met their burden under KRS 625.090(5) and "[t]he risks and concerns identified by this [c]ourt and the Cabinet are just as prevalent today, which prohibits this [c]ourt from believing these children would not continue to be abused or neglected if returned to their parents." R. at 147. We have no basis for disturbing these findings.
Finally, the parents correctly identified the statutory preference against termination. However, this preference does not make termination impossible. Instead, it is the basis for requiring the family court make "statutory findings based on the higher standard of proof of clear and convincing evidence." D.G.R. v. Commonwealth, 364 S.W.3d 106, 112 (Ky. 2012). While a family court is never required to terminate parental rights, KRS 625.090 sets out the requisite determinations the family court must make to do so.
Again, the parents argue partial completion of their case plan prohibits termination. As we have previously discussed the parents' insufficient efforts at length, we will not repeat the analysis here. It is clear from the record the family court carefully considered the factors in KRS 625.090 and found termination to be in the children's best interest. In their arguments, the parents fail to cite to any specific evidence in the record to the contrary. We will not disturb the family court's findings as they are supported by substantial evidence.
We will now consider the Cabinet's appeal of the order awarding fees to Father's appointed counsel, Mr. Hart. On appeal, the Cabinet argues: (1) the family court lacked jurisdiction to enter the order awarding Mr. Hart's fees; (2) the family court was not authorized to grant Mr. Hart's fees under KRS 625.080 and FCRPP 38(2); and (3) KRS 31.185(3) does not apply to civil actions filed under KRS 625.050.
Family Court Rules of Practice and Procedure.
First, the family court retained jurisdiction to grant fees to counsel appointed under KRS 625.080. Generally, "the filing of a notice of appeal divests the [family] court of jurisdiction to rule on any issues while the appeal is pending." Young v. Richardson, 267 S.W.3d 690, 695 (Ky. App. 2008) (citation omitted). However, "[a]n appeal does not necessarily deprive the lower court of all jurisdiction, so as to prevent absolutely any action, even though such action does not affect the matters involved on the appeal and exclusively committed to the reviewing court." Brosnan v. Brosnan, 359 S.W.3d 480, 487 (Ky. App. 2012) (citation omitted). Specifically, where a matter is collateral to those on appeal, the family court is not deprived of jurisdiction despite the filing of a notice of appeal. Maynard v. Maynard, 251 S.W.2d 454, 456 (Ky. 1952).
The Court in Brosnan, 359 S.W.3d at 487, determined the issue of advancement of attorney's fees for an appeal of a judgment in an action for dissolution of marriage was collateral to the appeal. We are similarly persuaded the issue of appointed counsel's fees for representation on appeal in no way affects the matters involved in the appeals from the judgments terminating parental rights. As this matter is collateral to the termination appeal, the family court retained jurisdiction to enter the orders awarding fees.
Next, the family court was authorized to grant Mr. Hart's fees in the amount of $500.
The parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel pursuant to KRS Chapter 31. If the Circuit Court so finds, the Circuit Court shall inform the parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the parent pursuant to KRS Chapter 31 to be provided or paid for by the Finance and Administration Cabinet a fee to be set by the court and not to exceed five hundred dollars ($500)[.]KRS 625.080(3). Additionally, FCRPP 38(2) states, "To reduce administrative costs, [c]ourts shall not approve multiple payments to court-appointed counsel for work on the same case except for good cause shown." As cited by the Cabinet, the Kentucky Supreme Court's commentary to FCRPP 38(2) states it "does not prohibit multiple payments for the same client, provided the payments are requested for different actions," including appeals. The Cabinet concedes, based upon the rule and commentary thereto, appointed counsel may seek fees in the amount of no more than $500 for representation on appeal, as the appeal is considered a case separate from the underlying action.
As Mr. Hart did not represent Father at trial, he made only one request for fees for his representation of Father on appeal.
In each of the two cases, the family court entered Finance and Administration Cabinet form FINGAL-1, the order for guardian ad litem/court-appointed counsel fees. Therein, the family court awarded Mr. Hart $500 in fees for his representation of Father on appeal. Regardless of Mr. Hart's request for an amount greater than $500, the family court did not exceed the statutory maximum in its award of fees. On this basis, the family court did not err in awarding Mr. Hart's fees.
Finally, the Cabinet argues KRS 31.185(3) does not apply to actions for involuntary termination of parental rights. The Cabinet raised this argument before the family court. However, upon the family court's failure to address the applicability of KRS 31.185(3) in its order, the Cabinet did not request additional findings as to the issue. Where the family court fails to make findings as to an issue, "[f]ailure to bring such an omission to the attention of the [family] court by means of a written request will be fatal to an appeal." Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997) (citation omitted). The Cabinet's failure to request the family court make additional findings of fact as to the applicability of KRS 31.185(3) prevents our review of the issue herein.
CONCLUSION
For the foregoing reasons, the judgments of the Franklin Circuit Court, Family Division, terminating Mother's and Father's parental rights and the orders awarding Mr. Hart fees for his representation of Father on appeal are affirmed.
ALL CONCUR. BRIEF FOR S.L.R.: Raven N. Turner
Frankfort, Kentucky BRIEF FOR J.R.: Jason Apollo Hart
Frankfort, Kentucky BRIEFS FOR COMMONWEALTH
OF KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky BRIEF FOR FINANCE AND
ADMINISTRATION CABINET: Cary B. Bishop
Frankfort, Kentucky BRIEF FOR HON. JASON APOLLO
HART: Jason Apollo Hart
Frankfort, Kentucky