Opinion
2020-CA-0897-ME 2020-CA-0901-ME 2020-CA-0902-ME
03-11-2022
T.G.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND C.G., A CHILD APPELLEES AND T.G.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; AND K.-M.G., A CHILD APPELLEES AND T.G.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.G., A CHILD APPELLEES
BRIEFS FOR APPELLANT: Bethany L. Stanziano Columbia, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Terran Cross Helm Assistant Russell County Attorney Special Assistant Attorney General Jamestown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM RUSSELL CIRCUIT COURT FAMILY COURT DIVISION HONORABLE SAMUEL TODD SPALDING, SPECIAL JUDGE ACTION NOS. 19-J-00173-001, 19-J-00174-001, 19-J-00175-001
BRIEFS FOR APPELLANT: Bethany L. Stanziano Columbia, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Terran Cross Helm Assistant Russell County Attorney Special Assistant Attorney General Jamestown, Kentucky
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
T.G.H., biological mother, brings Appeal Nos. 2020-CA-0897-ME, 2020-CA-0901-ME, and 2020-CA-0902-ME, from orders of the Russell Circuit Court, Family Court Division (family court) entered June 11, 2020, and
August 12, 2020, ordering that T.G.H.'s three children shall remain in the custody of relatives with whom the Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet) had previously placed them and that the children would have no contact with their step-father, C.H. We affirm.
A disposition hearing was conducted on July 27, 2020, and a docket sheet order was entered on that date. Therein, the family court adopted the recommendations of the Commonwealth of Kentucky, Cabinet for Health and Family Services and ordered M.G., M.-K.G., and C.G. to remain in the custody of T.G.H.'s adult children. An AOC form disposition order was entered August 12, 2020.
BACKGROUND
T.G.H. is the biological mother of the three children at issue in these appeals: M.G., born on October 15, 2009; K.-M.G., born on December 23, 2010; and C.G., born on January 19, 2013. The biological father of M.G., K.-M.G., and C.G. died in February of 2018. Following the untimely death of the children's father, T.G.H. married C.H. in July of 2018.
Relevant to this appeal, the Cabinet initially became involved with this family in April of 2019. More particularly, on April 23, 2019, C.G. was taken to an after-hours healthcare clinic as she did not feel well and had significant bruising. When questioned by the doctor regarding her bruises, C.G. reported she had fallen from a swing at school. Then, on April 29, 2019, C.G. was taken to see her pediatrician. C.G. told her pediatrician that she did not know the cause of her bruises. The pediatrician noted in C.G.'s medical record that physical abuse was suspected and that the child also appeared unkempt and had body odor. The pediatrician notified law enforcement of the suspected child abuse. The Cabinet was then notified by law enforcement, and a social worker assisted law enforcement in carrying out a welfare check. It was discovered that C.G. had significant bruising over her entire body. C.G. was taken to the Emergency Room (ER) at Russell County Hospital where an examination revealed a laceration on the top of her forehead, dried blood running down the back of her right ear, bruising behind both ears, a bruise on her left chin area, large bruises on back of both legs behind her knee area and above. The ER doctor noted his impression was that the child was abused and noted in the discharge instruction "physical assault - child abuse." The Cabinet subsequently found the report to be unsubstantiated and allowed the child and her two siblings to remain in the home with a prevention plan.
On November 14, 2019, the Cabinet received a report from C.G.'s school that she had arrived that morning with bruises on her forehead, face, and hands. A social worker for the Cabinet, Erin Burton, came to the school and interviewed C.G. Upon questioning, C.G. reported that the previous evening her step-father, C.H., had spanked her with a paddle, pulled her hair, pushed her into a dresser, and punched her in the eye, head, and face. Burton observed that C.G. had bruises on her forehead, face, and eyes. Burton also noticed defensive bruises on C.G.'s hands.
Later that same day, Burton and a deputy sheriff went to C.G.'s home and spoke with each of the three children and each adult separately. Burton advised T.G.H. to take C.G. to the ER for examination of her injuries. Burton informed T.G.H. that C.G. had reported that her step-father, C.H., had hit her the evening before. T.G.H. denied that C.H. would harm the child. While T.G.H. took C.G. to the ER, Burton remained at the home, and another social worker met T.G.H. at the ER. Several hours later, the social worker informed T.G.H. that she needed to arrange for someone to provide care for the three children, or the children would be taken into the custody of the Cabinet. T.G.H. contacted her adult son, who came to the ER and agreed to provide care for the three children.
The previous day, on November 13, 2019, C.G. felt ill and left school early. C.G.'s maternal grandmother picked her up from school. The grandmother took C.G. to T.G.H.'s office and left her there briefly. While there, C.G. dropped a roll of toilet paper into the toilet. C.G.'s grandmother was not happy about this incident and took C.G. home. When C.G. and her grandmother arrived home, C.H. was working in the garage. The grandmother informed C.H. of the toilet paper incident. C.H. told C.G. to stand in the corner of the garage as punishment. By the time T.G.H. got home from work, C.G. was in bed.
The following day, November 15, 2019, C.H. was arrested and charged with assault in the fourth degree (Action No. 2019-M-00664) related to the injuries he had inflicted upon C.G. Upon learning that C.H. had been arrested, T.G.H. told a social worker she would post the bail necessary for C.H. to be released from jail. The social worker advised T.G.H. that if C.H. returned to the residence, the children would not be permitted to return. Despite this information, T.G.H. posted the bail and C.H. returned to T.G.H.'s residence.
Also, on November 15, 2019, three petitions were filed in the family court alleging dependency, neglect, or abuse (DNA) as to each of the three children, M.G., K.-M.G., and C.G. Emergency Custody Orders were entered on November 15, 2019, placing M.G., K.-M.G., and C.G. in the emergency custody of the Cabinet. A temporary removal hearing was scheduled for November 20, 2019, at 9:00 a.m. On that date, at approximately 9:20 a.m., a bailiff came out into the hallway and called the cases, and no one entered the courtroom. The court conducted the temporary removal hearing and entered orders placing temporary custody of the children with the Cabinet. Immediately following the temporary removal hearing, T.G.H.'s attorney went into the courtroom and entered an appearance on behalf of T.G.H.
T.G.H., C.H., the three children (M.G., K.-M.G., and C.G.), and T.G.H.'s attorney were waiting in the hallway outside the courtroom. When the case was called, T.G.H. informed the bailiff that C.H. was in the restroom. T.G.H. reported that C.H. had Crohn's Disease and might be in the restroom for some time. The cases were not called again, and the court conducted the temporary removal hearing in their absence. The children were subsequently placed with T.G.H.'s adult children, C.G. and D.G.
An adjudication hearing was scheduled for December 5, 2019. On that date, the hearing was rescheduled to January 17, 2020, and then continued until February 19, 2020. On February 18, 2020, the day before the adjudication hearing was to begin, T.G.H. filed motions seeking recusal of the family court judge. The family court judge granted the motions and recused herself from the cases by orders entered February 19, 2020. By orders entered February 28, 2020, a special judge was appointed to preside over the cases.
Upon entry of the special judge, the adjudication hearing was conducted on June 11, 2020. Adjudication orders were entered the same day in all three cases. Therein, the family court found by clear and convincing evidence that C.G. was abused by C.H. The court further concluded that T.G.H.: (1) "failed to take preventative action to protect [C.G., ]" (2) "had reason to know of the abuse by [C.H.]" and, (3) "placed [C.G.] at extreme risk." June 11, 2020, Order at 6. As to M.G. and K.-M.G., the court found there was a substantial risk of harm if they were returned to the home. The family court ordered all three children to remain in the custody of T.G.H.'s adult children.
Following entry of the adjudication orders, T.G.H. and C.H. filed a Joint Motion to Vacate Order Adjudication Hearing Dated June 11, 2020, pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. Therein, they argued for the first time that C.H. should be a party to the DNA proceedings, and that he had not been properly served. In fact, C.H. had been determined by the family court to have been the perpetrator of the abuse upon C.G. T.G.H. and C.H. acknowledged that C.H. was not a party to the DNA proceedings and no motion to intervene was filed by C.H. prior to or during the adjudication hearing. The family court effectively treated the CR 59 motion, in part, as a motion by C.H. to intervene. The family court's analysis and ruling upon this issue was as follows:
1. Biological parents, nonparents who have a relationship with the child and his or her parent as well as an agreement with that parent to share custody, or de facto custodians are the only persons who have a legally cognizable interest in the custody of a minor child. . . . In the instant case, [C.H.] does not meet any of the criteria aforementioned, thus, it is hereby determined that [C.H.] lacks standing and his Motion to Intervene and set aside the adjudication finding is hereby DENIED.July 21, 2020, Order at 1 (citations omitted).
We agree with the family court's analysis and incorporate same herein. T.G.H. argues she has engaged in a partial waiver of custody of her children to C.H. by virtue of their marriage. She relies on Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), and its progeny as authority. The reliance on this authority is clearly misplaced and distinguishable from the facts of this case. Mullins involved a same sex couple and a child conceived through artificial insemination. Id. at 576. In Mullins, custody was conferred jointly by an agreed judgment that was later declared to be invalid. Id. at 577. However, the Supreme Court held that a birth parent could waive the parent's superior custody rights upon a showing of clear and convincing evidence to do so. Id. at 578.
In this case, there is absolutely no evidence in the record to establish a waiver by T.G.H., except for her self-serving argument in the CR 59 motion filed after the adjudication hearing. T.G.H. and C.H. were married approximately nine months prior to the first allegation of abuse against C.H. Marriage alone does not confer parental rights to a step-parent absent clear and convincing proof of a waiver of custodial rights by the parent. See id. Likewise, there is no evidence in the record below that T.G.H. intended to "co-parent" her children with C.H. And, one who is not a party of record in a case has no standing to file a notice of appeal. White v. England, 348 S.W.2d 936, 937 (Ky. 1961). Therefore, by separate Order entered this date, this Court has dismissed C.H. as a party to these three appeals.
A disposition hearing was subsequently conducted on July 27, 2020, and a docket sheet calendar order was entered on that date. Therein, the family court adopted the recommendations of the Cabinet, and specifically ordered that the three children not be in the presence of C.H. An AOC form disposition order was entered August 12, 2020, that further provided the three children would remain in the custody of T.G.H.'s adult children. See Kentucky Revised Statutes (KRS) 620.100(4). These appeals follow.
ANALYSIS
T.G.H. filed a separate appellate brief in each of the three appeals; however, she raises identical arguments in each brief. We have therefore considered these appeals concurrently.
T.G.H. asserts that the family court's temporary custody orders as to M.G., K.-M.G., and C.G. entered November 20, 2019, are "null and void." T.G.H.'s Brief at 7. More specifically, T.G.H. asserts she was never served with notice of the November 20, 2019, temporary removal hearing and that the mandates of KRS Chapter 620 were not followed.
It is well established that where a party is aggrieved by a temporary custody order, the proper remedy is the statutory mechanism found in KRS 620.110. KRS 620.110 is titled "Petition for immediate entitlement to custody" and provides:
Any person aggrieved by the issuance of a temporary removal order may file a petition in Circuit Court for immediate entitlement to custody and a hearing shall be expeditiously held according to the Rules of Civil Procedure. During the pendency of the petition for immediate entitlement the orders of the District Court shall remain in effect.
Our Court has interpreted KRS 620.110 as providing an avenue of relief for any "person aggrieved by the issuance of a temporary removal order[.]" B.D. v. Commonwealth, Cabinet for Health & Family Servs., 426 S.W.3d 621, 622 (Ky. App. 2014). This mechanism is necessary because a temporary custody order by its very terms is nonfinal and interlocutory, so under KRS 620.110, an aggrieved person may file an original action in circuit court to regain custody of the child. Id.
In this case, T.G.H. did not challenge the temporary custody orders, including the alleged defects in service, by filing petitions for immediate entitlement to custody under KRS 620.110. Moreover, the record reflects that the family court's temporary orders removing the three children were superseded by subsequent final and appealable orders of the family court. By disposition orders entered August 12, 2020, the family court ordered that the three children would remain in the custody of relatives. Consequently, we believe any issues surrounding the temporary custody orders, including any alleged defects in service or notice of the proceedings, have been rendered moot as the temporary orders were supplanted by subsequent final and appealable orders of the family court. We would also be remiss if we did not point out that T.G.H. is a licensed, practicing attorney who has participated throughout these proceedings, with counsel, including case plans submitted by the Cabinet.
As concerns the purported defective petitions filed in the court below, we also find this argument to be without merit, consistent with our previous discussion of KRS Chapter 620. T.G.H. filed no motions to dismiss the petitions nor a petition under KRS 620.110 to address this matter prior to the adjudication hearing, which occurred almost seven months after the petitions were filed. This issue was not raised below until T.G.H. filed a CR 59 motion challenging the court's adjudication hearing order entered June 11, 2020. Clearly, the issue was not properly preserved below for consideration by this Court. See Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005). Notwithstanding, we have thoroughly reviewed all three petitions and find that the petitions substantially comply with KRS 610.020 sufficient to generate proper notice and proceedings for an alleged child abuse. See KRS 620.010. Additionally, this Court takes judicial notice that in Action No. 20-CR-00097-001, in Russell Circuit Court, C.H. has pleaded guilty by an Alford plea, entered on January 10, 2022, to two counts of wanton endangerment, first degree and two counts of criminal abuse, second degree (child under 12), based upon indictments arising after proceedings in this case. Thus, we believe any arguments regarding the substance of the form petitions are moot and without merit.
North Carolina v. Alford, 400 U.S. 25 (1970).
The Court further takes judicial notice that T.G.H. was also indicted in Action No. 20-CR-00097-002 in the Russell Circuit Court and charged with criminal abuse, first degree. T.G.H. pleaded guilty by judgment entered on January 10, 2022, to a reduced charge of disorderly conduct, second degree.
T.G.H. next contends that she was erroneously excluded from the courtroom during C.G.'s testimony at the adjudication hearing in violation of the Confrontation Clause and KRS 610.070. During the adjudication hearing, just before taking a lunch break, the court indicated that T.G.H. would not be present in the courtroom during C.G.'s testimony. The court then asked T.G.H. and the Cabinet if there was any objection; neither party objected. After the lunch break, T.G.H. exited the courtroom during C.G.'s testimony without objection. However, her attorney was present and examined C.G. during her testimony. As T.G.H. failed to contemporaneously object, any issue regarding T.G.H.'s absence from the courtroom was not preserved and more importantly, T.G.H. has failed to establish how she was prejudiced by her absence. See Commonwealth v. McGorman, 489 S.W.3d 731, 739 (Ky. 2016).
T.G.H. has not requested this Court to review this alleged error pursuant to the palpable error rule of Kentucky Rules of Civil Procedure 61.02.
T.G.H. also asserts that the family court erred by allowing the introduction of testimony at the adjudication hearing concerning the previously unsubstantiated allegation of abuse upon C.G. in April of 2019. Prior to the adjudication hearing, the Cabinet moved to amend the DNA petitions to include the April 2019 unsubstantiated allegation of abuse as to C.G. The family court denied the Cabinet's motion and ruled it would exclude introduction of the April 2019 allegation.
Consistent with the court's ruling, the Cabinet only presented evidence as to the November 2019 allegation of abuse. However, upon cross- examination of the social worker (Burton), counsel for T.G.H. questioned Burton about whether she had reviewed C.G.'s complete records from the Russell County Hospital. The family court advised T.G.H.'s counsel that she was "treading on extremely thin ice" and could open the door for introduction of the April 2019 incident. Even after the court's warning, T.G.H.'s counsel continued to cross-examine Burton regarding matters that occurred prior to the alleged November 2019 abuse. For example, counsel for T.G.H. questioned Burton about the three forensic interviews of the child. One of three interviews was conducted regarding the April 2019 incident. As a result of counsel's continued line of questioning following the court's warning, the court permitted the guardian ad litem and the Cabinet to go forward with examination and introduction of evidence concerning the April 2019 incident.
The Supreme Court has held that "'opening the door' to otherwise inadmissible evidence is a form of waiver that happens when one party's use of inadmissible evidence justifies the opposing party's rebuttal of that evidence with equally inadmissible proof." Graham v. Commonwealth, 571 S.W.3d 575, 582 (Ky. 2019) (quoting Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009)). And, a trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. B.B. v. Commonwealth, Cabinet for Health & Family Servs., 635 S.W.3d 802, 807 (Ky. 2021) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 576 (Ky. 2000)). An abuse of discretion occurs where the trial court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." B.B., 635 S.W.3d at 807 (quoting Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018)).
In the case sub judice, counsel for T.G.H. was cautioned by the court multiple times that she risked opening the door on the previously excluded evidence related to the April 2019 incident. Despite these warnings, T.G.H.'s counsel proceeded to question Burton regarding events that occurred prior to November 2019. By continuing to cross-examine Burton about the events prior to the November 2019 abuse, counsel clearly waived any objection to testimony or introduction of evidence regarding the April 2019 incident. Therefore, we are of the opinion that the family court did not abuse its discretion by allowing the introduction of testimony and evidence regarding the April 2019 incident.
In summation, we are of the opinion that the family court did not commit reversible error in rendering its June 11, 2020, and August 12, 2020, orders as to M.G., K.-M.G., and C.G.
For the foregoing reasons, the Orders of the Russell Circuit Court, Family Court Division are affirmed in Appeal Nos. 2020-CA-0897-ME, 2020-CA-0901-ME, and 2020-CA-0902-ME.
ALL CONCUR.