Opinion
NO. 2017-CA-001818-ME
06-22-2018
S.V. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.L.T.V., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Emily N. Farrar-Crockett Louisville, Kentucky BRIEF FOR APPELLEE: Sarah Steele Jackson Cabinet for Health & Family Services Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 17-AD-500126 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND MAZE, JUDGES. COMBS, JUDGE: Appellant, S.V. (Mother), appeals from an order of the Jefferson Circuit Court terminating her parental rights to her minor child, J.L.T.V. Specifically, the Mother contends that the trial court erred in denying her request for a continuance. After our review of the record and the applicable law, we affirm.
On March 6, 2017, the Appellee, Cabinet for Health and Family Services, Commonwealth of Kentucky (Cabinet), filed a petition for involuntary termination of parental rights in the Jefferson Family Court in the interest of J.L.T.V. A pretrial conference on was held on June 7, 2017, at which Mother was present. The termination hearing was scheduled for September 1, 2017. Mother was not present on that date, and the family court rescheduled the hearing to September 18, 2017. A notice of this court date was both mailed and e-mailed to Mother. However, on September 18, 2017, Mother was not present. She alerted her caseworker that morning that she had to go to work but that she wanted to participate telephonically; but she failed to provide a contact number. Her caseworker responded to the email and provided the telephone number of Mother's counsel. Nothing further was heard from Mother that day. The family court denied counsel's motion for a continuance, and the hearing began.
We summarize the relevant testimony from Angela Swartz, the Cabinet caseworker, and Jennifer Bourgeois, the Family Support Office Supervisor. J.L.T.V. was born on May 22, 2014. On May 30, 2014, the Cabinet filed a dependency petition because Mother herself was a dependent child residing at Home of the Innocents. The purpose of the petition was to keep Mother and J.L.T.V. together. J.L.T.V. was placed with a maternal aunt on November 13, 2015, because Mother was having difficulties at her current placement and had a history of leaving her placement with J.L.T.V. Mother was released from the custody of the Cabinet in November of 2015.
The Cabinet later discovered that the maternal aunt had relinquished the child to the care of Mother and that she did not know where they were living. After they were located, the Cabinet placed J.L.T.V. in a foster home on March 24, 2016. That is the last time that Mother has seen J.L.T.V. She did not attend any of her scheduled supervised visitations.
The Cabinet filed another petition on June 21, 2016, and a temporary removal hearing was held; the family court ordered that the child be placed in the custody of the Cabinet. The court also ordered reunification services for Mother. The specific details of the court order included: that Mother complete parenting classes; that she attend counseling; that she attend supervised visits with J.L.T.V.; that paternity be established for J.L.T.V.; and that she maintain stable housing and employment. At the time of the hearing, the Mother had a job and paternity for J.L.T.V. had been established, but Mother had not completed any of the other requirements for reunification.
The putative father participated in the hearing telephonically as he was incarcerated at the time. Toward the end of the hearing, the father voluntarily terminated his parental rights to J.L.T.V., stating that he believed that termination was in the best interests of the child. --------
On September 25, 2017, the family court entered an order terminating the Mother's parental rights to J.L.T.V. This appeal has followed, and the Mother's sole contention is that the trial court abused its discretion in denying her counsel's motion for a continuance of the final hearing because Mother was not able to be present on that date.
The standard of review for a court's ruling upon a motion for a continuance is abuse of discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). Our review requires us to determine whether "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds in Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001), our Supreme Court set forth the following factors to be considered when deciding whether to grant a request for a continuance: (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. Although Snodgrass was a criminal case, these factors are applicable to civil cases as well. Guffey, 323 S.W.3d at 372.
Upon our consideration of the Snodgrass factors and the totality of the circumstances of the case, we are not persuaded by Mother's argument. It is unclear how long a delay would have resulted if a continuance had been granted. However, it is undisputed that another continuance for any amount of time would have further delayed achieving permanency for J.L.T.V. There had already been one continuance granted for the termination hearing because Mother was absent on the first scheduled date. She was aware of the first date because she had been present at the pretrial conference. Mother was also aware of the second date because it was both mailed and e-mailed to her in advance. Although Mother stated that she had to go to work and that she wished to participate by telephone, she had at least a week to make herself available for the second rescheduled hearing; she was also provided with a phone number to call if she wished to participate. However, Mother did not utilize that opportunity. Several individuals were required to be present and prepared for the proceeding, including attorneys, caseworkers, and the child's father (who did participate telephonically). It would have been yet another inconvenience to reschedule the hearing due to Mother's absence. Therefore, the first four factors weigh in favor of denying the continuance.
As for the sixth factor, hearings involving the termination of parental rights are always of utmost gravity and can be rather complex resulting in serious ramifications. However, that usual complexity did not exist in this case, Mother had made almost no effort toward reunification with her child. Her inaction spoke for itself as a negative factor - especially when weighed in the balance of a consideration of permanency for the child.
With respect to the last of the Snodgrass criteria, we cannot find an identifiable prejudice to Mother in denying the continuance. She has not seen the child since March 24, 2016. She has failed to attend any of the scheduled supervised visitations with the child. At the time of the hearing, she had not attended a parenting class in nearly a year. She did not have stable housing. She occasionally contacted her caseworker and rarely asked about the child. She had put forth no effort toward her reunification plan. However, during his time in foster care, the child has developed a bond with his foster mother, and all of his needs are being met through that foster care placement. Consequently, it is highly unlikely under these circumstances that a continuance could have changed the outcome of the termination proceeding. Accordingly, we do not believe that the trial court abused its discretion when it declined to grant Mother an additional continuance for the final termination hearing.
We affirm the decision of the Jefferson Circuit Court denying the Mother's motion for a continuance.
ALL CONCUR. BRIEF FOR APPELLANT: Emily N. Farrar-Crockett
Louisville, Kentucky BRIEF FOR APPELLEE: Sarah Steele Jackson
Cabinet for Health & Family Services
Louisville, Kentucky