Opinion
2021-CA-1281-ME
04-01-2022
S.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; E.P.; AND I.A.R.M., AN INFANT APPELLEES
BRIEFS FOR APPELLANT: Ryan Robey James Pennington Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
EXPEDITED APPEAL FROM MADISON CIRCUIT COURT HONORABLE NORA J. SHEPHERD, JUDGE ACTION NO. 20-AD-00124
BRIEFS FOR APPELLANT:
Ryan Robey
James Pennington
Lexington, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY SERVICES:
Leslie M. Laupp
Covington, Kentucky
BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
OPINION
GOODWINE, JUDGE.
S.M. ("Father") appeals the October 1, 2021 findings of fact, conclusions of law, and judgment of the Madison Circuit Court, Family Division, terminating his parental rights to his minor child. After careful review, we reverse and remand for proceedings consistent with this Opinion.
The Cabinet for Health and Family Services ("the Cabinet") filed a petition to involuntarily terminate Father's parental rights to the subject-child on August 25, 2020. Prior to filing the termination of parental rights ("TPR") petition, the Cabinet initiated a dependency, neglect, and abuse ("DNA") action regarding the child. Father was not named as a party to the DNA action.
The DNA petition was filed against E.P. ("Mother") and J.W., the biological father of two of Mother's other children. Mother also shares a child with K.S. The family court considered the Cabinet's TPR petitions for the four children jointly.
Upon the Cabinet's request, the family court appointed Sean Perdue ("Perdue") as warning order attorney to effectuate constructive service on Father. On December 11, 2020, both Perdue and Father were present for a pretrial conference. At that time, the family court appointed Perdue as counsel for Father and set this matter for trial on March 25, 2021.
The parties and counsel appeared virtually due to restrictions in place because of the COVID-19 pandemic.
Later, Mother moved to continue the trial until a time when an in-person trial could be held. On March 8, 2021, the parties agreed to cancel the trial and reschedule it at a later date. Perdue was present when the trial was cancelled. Father was not present.
In June 2021, the Cabinet moved to reschedule the trial. On June 28, 2021, the family court heard and granted the Cabinet's motion. Again, Perdue was present, but Father was not. The court rescheduled the trial for September 16, 2021. The clerk mailed a copy of the order to Perdue. There is no indication in the record that either the clerk or Perdue mailed a copy of the order to Father.
On the day of trial, Perdue was present; Father was not present. Perdue orally moved to withdraw as counsel for Father. As grounds for his motion, Perdue claimed he had not recently been in contact with Father. Perdue did not file a written motion. The family court granted Perdue's motion and proceeded with the trial without Father present or represented. Based on evidence offered at trial, the family court terminated Father's parental rights. This appeal followed.
Although the video record on appeal includes the trial, it does not contain the portion of the video in which Perdue moved to withdraw as counsel. It is Father's responsibility to designate the contents of the record on appeal. Kentucky Rules of Civil Procedure ("CR") 75.01. However, the Cabinet does not contest the procedural history as recited by Father. Therefore, we will proceed with our analysis.
Where an appellant does not preserve an argument for appeal, he may request review by this Court for palpable error. "A palpable error which affects the substantial rights of a party may be considered 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." CR 61.02. "Fundamentally, a palpable error determination turns on whether the [C]ourt believes there is a substantial possibility that the result would have been different without the error." Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007) (citation omitted).
On appeal, Father argues: (1) the family court violated his due process rights and KRS 625.080(3) by terminating his parental rights when he was not present or represented by counsel at trial; and (2) the family court's findings of fact and conclusions of law were not supported by clear and convincing evidence.
Kentucky Revised Statutes.
First, the family court's decision to proceed with the TPR trial without Father present or represented by counsel was palpable error. Parents have a fundamental liberty interest in the care, custody, and management of their children and, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). Although the federal standard requires case-by-case determinations of whether parents are entitled to representation, our legislature has codified the right to counsel for all parents in involuntary TPR proceedings. R.V. v. Commonwealth, 242 S.W.3d 669, 672 (Ky. App. 2007); see also KRS 625.080(3). A party's parental rights "may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings." R.V., 242 S.W.3d at 673.
Furthermore, while there is no requirement that "counsel must be foisted on parties who decline representation," Father did not waive representation or dismiss Perdue. See C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 163 (Ky. App. 2012). Instead, without notice to Father and at the last possible moment prior to trial, the family court granted Perdue's request to withdraw and proceeded with the TPR trial. It is inarguable that the trial is a critical stage of the TPR proceeding.
The family court is responsible for ensuring protection of a parent's constitutional rights and the court failed to do so herein. In order to protect Father's rights, the court should have required Perdue to file a written motion with proof of service on Father and continued the trial for a period adequate to ensure Father had notice of the trial and the opportunity to obtain new counsel. Had Father been represented by counsel at trial, there is a substantial possibility of a different outcome.
Because this issue is determinative of the appeal, we need not consider his remaining argument.
Based on the foregoing, the October 1, 2021 findings of fact, conclusions of law, and judgment of the Madison Circuit Court, Family Division are reversed and remanded for proceedings consistent with this Opinion.
ALL CONCUR.