Summary
finding that neglect of child by use of illegal drugs during pregnancy
Summary of this case from In re A.L.C.M.Opinion
NO. 2012-CA-000379-ME
11-16-2012
S.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, DEPARTMENT FOR COMMUNITY BASED SERVICES, DIVISION OF PROTECTION AND PERMANENCY; In re: THE INTEREST OF K.P., A MINOR CHILD; AND C.U., FAMILY MEMBER APPELLEES
BRIEF FOR APPELLANT: David Russell Marshall Nicholasville, Kentucky AMICUS CURIAE BRIEF FOR JAMES J. DRAKE, ATTORNEY AT LAW; NATIONAL ADVOCATES FOR PREGNANT WOMEN; AND LEGAL ACTION CENTER: James J. Drake Lexington, Kentucky Emma S. Ketteringham National Advocates for Pregnant Women New York, New York Sally Friedman Paul N. Samuels Legal Action Center New York, New York BRIEF FOR APPELLEE: Hon. Jack Conway Attorney General Libby G. Messer Asst. Fayette County Attorney Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JO ANN WISE, JUDGE
ACTION NO. 11-J-0150
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. MOORE, JUDGE: S.P., Mother, appeals the order of the Fayette Family Court's finding that she neglected Child, K.P., by using illegal drugs during her pregnancy. After a thorough review of the record, we affirm.
Mother gave birth to Child on September 16, 2011. On September 17, 2011, the Cabinet was notified that Mother's blood work tested positive for methadone and that Child tested presumptive positive for methadone. The Cabinet filed a neglect petition on September 23, 2011, based solely upon Mother's admission to a Cabinet worker that she had been taking methadone "off the street" throughout her pregnancy and that she had a long history of substance abuse. Mother denied all allegations of neglect, and an adjudication hearing was held on January 24, 2012.
At the commencement of the January 24, 2012 hearing, Mother requested that the family court dismiss the petition arguing the neglect proceedings were improper based upon Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993). Welch stands for the proposition that, absent clear intent from the Kentucky General Assembly to include such conduct within the purview of the statute, a mother could not be prosecuted for criminal child abuse for her use of drugs while pregnant. Mother asserted that the reasoning in Welch could be extended to civil neglect proceedings. The family court denied this motion and made the denial thereof a final and appealable order. The rationale set forth in Welch is applicable only within a criminal context, and has never been extended to civil neglect proceedings. Mother does not reiterate this argument on appeal.
The worker who testified on behalf of the Cabinet at the adjudication hearing conceded that the petition was based solely upon Mother's admission that she had used methadone "off of the street" during her pregnancy instead of following her doctor's recommendation to seek treatment at a methadone clinic. Mother moved for dismissal, arguing that the evidence was insufficient to demonstrate neglect. The family court overruled Mother's motion.
The testimony presented by Mother revealed that at the time she learned that she was pregnant, she was undergoing Suboxone therapy for her addiction issues under the supervision of William Schultz, M.D. Mother testified that Dr. Schultz discontinued Suboxone treatment upon learning that she was pregnant because of the potential harm the treatment may have on an unborn child. Dr. Schultz also informed Mother that it could be hazardous to her unborn child if she were to go into withdrawals and advised her to seek treatment from a methadone clinic. Dr. Schultz explained that methadone was the preferred treatment for individuals with substance abuse issues while they are pregnant and that he did not have the necessary certification and training to administer methadone maintenance treatment to a pregnant woman. Although Mother testified that she had at least two opportunities to enter a methadone clinic during her pregnancy, she maintained that she was unable to enroll due to her financial situation and lack of transportation.
Mother elected, instead, to obtain methadone "off the street" in an attempt to "self-medicate." Mother testified that she obtained an informational bulletin while visiting a methadone clinic which indicated that methadone treatment was designed to prevent a substance-dependent mother from suffering a miscarriage due to withdrawal. She admitted that for the majority of her pregnancy she ingested illegally obtained methadone daily in order to avoid withdrawal. Mother testified that she discontinued using illegally obtained methadone on September 6, 2011, and enrolled in a methadone clinic. She remained in treatment, where her methadone intake was regulated and monitored by medical personnel possessing specialized training in methadone maintenance treatment, until she gave birth to Child on September 16, 2011.
Regarding Mother's testimony of her reasons for taking methadone off the street to avoid harming Child, this was an issue of credibility left to the discretion of the family court. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). The family court found that Mother "put [C]hild at risk of neglect due to her admitted addiction to drugs, her continued use of illegal drugs during pregnancy, and failure to comply with doctor's recommendation for safe medical care of herself and the child during pregnancy." S.P. now appeals.
Kentucky Rule(s) of Civil Procedure.
On appeal, Mother argues that the family court's finding of neglect was improper because it was based solely upon her conduct prior to Child's birth.
A finding of abuse or neglect is proper even where an act of abuse or neglect has not occurred but where a risk exists that the child will suffer physical or emotional injury. KRS 600.020 ; Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008). Indeed, the statute patently includes conduct that creates a risk of physical injury. KRS 600.020(1)(b). It is uncontroverted that prenatal drug exposure may result in physical injury.
Kentucky Revised Statute(s).
KRS 600.020(1)(a)-(b) in relevant part provides that an "abused or neglected child" is:
[A] child whose health or welfare is harmed or threatened with harm when his parent, guardian, or other person exercising custodial control or supervision of the child:
(a) Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means.
(b) Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means.
Mother next asserts that the evidence presented regarding her history of addiction, her choice to obtain methadone off the street, and her ingestion of methadone in an attempt to avoid withdrawal do not support a finding of neglect. S.P. further suggests that this conduct could only be the basis for a finding of neglect where the child experienced post-birth withdrawal symptoms.
Again, the only proof required to support a finding of neglect is evidence the Mother put the child at risk of physical injury. KRS 600.020; Z.T., 258 S.W.3d at 36. Therefore, Mother's confession that she consumed illegal methadone during the pregnancy, along with the testimony that she failed to follow Dr. Shultz's advice to enter a methadone clinic, was sufficient to support the family court's finding.
Finally, Mother contends that the family court's refusal to admit her and Child's medical records was erroneous. Mother sought to introduce these medical records at the close of all of the evidence. The Cabinet objected to their introduction on the basis that they had not been provided with a copy of the records prior to the hearing and that the records were not relevant to any of the testimony presented at trial.
Despite the fact that the Cabinet's objection was in regard to the relevance of the medical records to the proceeding, Mother responded at trial and she also argues on appeal that the records should be admitted under the hearsay exception pertaining to records of regularly conducted activity under KRE 803(6). Mother further asserted that the introduction of the records was necessary to establish that she tested positive for methadone at the time of Child's birth because she had been treated with legally prescribed methadone while at the clinic prior to Child's birth.
Kentucky Rule(s) of Evidence.
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The family court first noted that it was uncontroverted that S.P. was on prescription methadone at the time of K.P.'s birth. The family court further observed that there was no testimony with respect to the contents of the medical records or for what they were admitted to prove and that it was without the medical expertise necessary to draw any conclusions from the records absent such testimony. Thus, the family court determined that the records were not relevant to the proceeding.
We will disturb a family court's ruling regarding the admissibility of evidence only where it abused its discretion. Day v. Commonwealth, 361 S.W.3d 299, 303 (Ky. 2012). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401. Evidence that is not relevant is not admissible. KRE 402.
As previously noted, Mother's argument on appeal mischaracterizes the family court's decision to exclude the medical records as being based on hearsay. We nevertheless conclude that the family court did not abuse its discretion when excluding the records on the basis of relevance. Mother has simply failed to demonstrate any fact that would have been made to be more or less probable by the admission of the records.
We do however note that our disposition in this matter is not a final determination of Mother's parental fitness. Mother has an opportunity to comply with a case plan, obtain treatment for her substance abuse issues, and regain custody of Child.
For the aforementioned reasons, we affirm.
ACREE, CHIEF JUDGE, CONCURS.
KELLER, JUDGE, CONCURS.
KELLER, JUDGE, CONCURRING: I concur with the result in the majority opinion; however, I find it necessary to write separately for the following reason.
During the underlying proceedings, Mother's counsel stated several times that he felt as if Mother was being punished by the family court for challenging the allegations of neglect. The family court judge denied that she was punishing Mother; however, based on several of the judge's statements, two of which I quote below, I understand Mother's skepticism regarding that denial. At a preliminary hearing on November 23, 2011, counsel for Mother, the Cabinet representative, and the guardian ad litem (GAL) indicated that Mother's sister had been given temporary custody of Child. The parties advised the court that the sister had a health-related problem that might impede her ability to continue to care for Child. The parties indicated that placement might be moved to Child's maternal grandmother and that Mother, who was living in maternal grandmother's home, would find alternative living arrangements.
In response to that information, the judge said that the last time an infant stayed with the maternal grandmother of an addicted mother,
We had a dead baby. And I will not have a dead baby in my court . . . . If we were further down the pike and had a disposition hearing and a case plan and this mother were [sic] working her case plan, it might be different . . . . But right now I've got a mother who says I'm not working a case plan, I'm not neglectful, I'm fighting you. That's the posture we're at . . . . She's requested an adjudication hearing today, which means if she's determined not to be neglectful, she doesn't have a case plan. She is denying the allegations against her. She is denying she has a problem. That's the legal status . . . . She has had a lifelong problem with an addiction that she cannot even sit here today and admit to me here today with a baby less than 3 months old and her on methadone. She can't even say that. She can't even say that. Bought pills off the street when she was pregnant.At the adjudication hearing, the judge said, "It's sad that we've had to come to this point, because look at how much progress we could have made in this case but for having to go through this process today."
The preceding statements, and others that the judge made before and during the adjudication hearing regarding Mother's addiction and the competency of the Cabinet, give the appearance that the judge was holding Mother's failure to admit neglect against her. This appearance of bias is compounded because a portion of what the judge said is not supported by the record. During the November 2011 hearing Mother's counsel stated that Mother was voluntarily working a "case plan." Furthermore, testimony during the adjudication hearing indicated that Mother had successfully completed a parenting class and was involved in an ongoing recovery support group. Therefore, rather than delaying progress, Mother was taking steps toward recovery and toward regaining custody of Child, even though she was not constrained by court order to do so.
A mother, even one who has admitted to an addiction to narcotics, is entitled to the full panoply of constitutional and legal rights with regard to the custody of her child. A judge should not give the appearance of putting that mother in the position of feeling that she is being punished for exercising those rights or that she is being judged based on the actions of a different mother in a different case.
While I recognize that the judge was looking out for the best interests of Child, I find the judge's statements disturbing, and I understand Mother's frustration. However, the evidence, when viewed within the framework of our standard of review, ultimately supported the judge's determination. Therefore, I am constrained to agree with the majority's affirmation of that determination. BRIEF FOR APPELLANT: David Russell Marshall
Nicholasville, Kentucky
AMICUS CURIAE BRIEF FOR
JAMES J. DRAKE, ATTORNEY AT
LAW; NATIONAL ADVOCATES
FOR PREGNANT WOMEN; AND
LEGAL ACTION CENTER:
James J. Drake
Lexington, Kentucky
Emma S. Ketteringham
National Advocates for Pregnant
Women
New York, New York
Sally Friedman
Paul N. Samuels
Legal Action Center
New York, New York
BRIEF FOR APPELLEE: Hon. Jack Conway
Attorney General
Libby G. Messer
Asst. Fayette County Attorney
Lexington, Kentucky
(Emphasis added).