Opinion
2022-CA-0785-ME
02-10-2023
T.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND K.R.S.M., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Margaret O'Donnell Frankfort, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMIILY SERVICES: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN FAMILY COURT HONORABLE SQUIRE N. WILLIAMS, III, JUDGE ACTION NO. 21-AD-00005
BRIEFS FOR APPELLANT: Margaret O'Donnell Frankfort, Kentucky
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMIILY SERVICES: Kevin Martz Covington, Kentucky
BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.
OPINION REVERSING
CETRULO, JUDGE
This is an appeal from the termination of parental rights of T.T. ("Father"). As Father couches it, the primary issues are whether he received due process of law, including effective assistance of counsel; and whether he was denied his right to be heard in the termination proceedings. A review of the record confirms that he may not have been granted his full rights and guaranteed due process, so we must reverse.
FACTS
Father has been confirmed as the biological father of K.R.S.M. ("Child"), who was born on June 3, 2019. However, paternity was not established until nearly two years later in May of 2021. In that interim, Child had been placed in the custody of the Cabinet for Health and Family Services ("the Cabinet") after a warrant was executed at the home where the mother, K.M. ("Mother"), was staying and where a quantity of heroin, scales, cash, and firearms were found. Child, only five months old at the time, was present. Child was removed and initially placed with a maternal uncle as the father was unknown. Neglect was stipulated by Mother thereafter and the case proceeded with an unknown father.
However, in May of 2020, Child was removed from the relative's house due to non-compliance with the Cabinet's directives on who could have contact. It was ascertained at that point that Child was actually with Father, even though paternity had not yet been established. Child was removed from his possession and placed in foster care, where she has remained. The record reflected that Father had not seen Child since May of 2020, although he was not confirmed as the father until a year later.
The record further reflects that, during the next year, the Cabinet was attempting to confirm paternity and get Father engaged in case planning and visitation with Child. There was testimony at the final hearing from social worker Hutcherson that she was unable to get Father to submit to mental health and substance abuse assessments, refrain from criminal activity, or obtain stable housing. She also testified that other family member options were explored but that ultimately, Father was not cooperative, did not provide parental care or necessary provisions, and did not follow any case plans.
Father averred that he never received any correspondence about case plans and that he called the caseworker the day he got his paternity results to tell her he "was coming to get his daughter." However, he claims he was incarcerated that very day so he could not exercise his rights. He was in custody at the time of the hearing and has remained incarcerated on a murder charge.
Mother passed away in December of 2021. By that point, the Cabinet had filed a petition to involuntarily terminate parental rights for both parents, and the trial as to Father only was scheduled for April 25, 2022. The record reflects that notice of the final hearing was sent to his appointed counsel, and he acknowledged that since the fall of 2021, he knew he had counsel appointed to assist him. Father was transported to court for the hearing. However, he claims he had no idea until he was awakened in the detention center for transport that he had court on that date. He also claims that this lack of notice precluded him from producing witnesses and evidence at the hearing. None of these arguments were presented by counsel on the record.
At the hearing, the Commonwealth began with presentation of its witness, social worker Hutcherson. However, shortly after Father's appointed counsel began her cross examination of that witness, counsel advised the court that she had just been fired. The record reflects that the family court simply asked Father if he had indeed fired his attorney and he confirmed, stating she was not asking the right questions and was "ineffective." The court then allowed her to be excused and permitted him to proceed pro se. There was no motion made to continue the hearing. Father did not testify, although the trial court asked him if he wished to do so. He stated, "he didn't have a lawyer" and could not do that. He did attempt to cross examine social worker Hutcherson. He did not have any witnesses present, and the issue of notice of the hearing was not addressed by any party on the record.
Following this hearing, new counsel entered an appearance and filed a "Motion Opposing Termination and to Reestablish Father's Relationship with Child." In that motion, new counsel asserted among other arguments, that Father did not have any notice of the April 2022 hearing and, therefore, did not have any opportunity to present witnesses. The Commonwealth did not respond to that motion. Before any ruling was entered on that motion, the family court entered its judgment of May 25, 2022, terminating the parental rights of Father. A subsequent motion to alter and amend was filed and summarily denied, and this appeal resulted.
STANDARD OF REVIEW
To begin, the family court has wide discretion in terminating parental rights. Commonwealth, Cabinet for Health and Fam. Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)). Generally, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. Kentucky Rule of Civil Procedure ("CR") 52.01. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." T.N.H., 302 S.W.3d at 663 (citation omitted). Due to the fact that "termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them[.]" D.G.R. v. Commonwealth, Cabinet for Health and Fam. Servs., 364 S.W.3d 106, 113 (Ky. 2012). After a thorough review of the findings herein, it appears that the family court complied with its obligation to provide detailed findings, and those findings appear to be supported by substantial evidence.
However, as stated, new counsel on behalf of Father asserts that he did not receive due process. Based upon the record before us, we must agree as to the due process issues presented, and therefore reverse the judgment herein.
The right of a parent to his or her child is the most basic of all human rights, and this "fundamental interest 'does not evaporate simply because they have not been model parents[.]'" Cabinet for Health and Fam. Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982)).
Our statutes are designed to provide that fundamental fairness. Specifically, the termination of parental rights statute found in Kentucky Revised Statute ("KRS") 625.090, attempts to ensure that all parents receive the appropriate amount of due process protections. KRS 625.090 provides the requirements which must be met before involuntary termination can be ordered. First, the family court must determine upon clear and convincing evidence that the following prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) a petition must have been filed by the Cabinet and it must be found that termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(k) must exist.
In his appeal, Father does not maintain that these requirements were not met, but rather asserts that the treatment he received up to the family court's order violated his due process rights. Specifically, he asserts that he had no notice of the termination proceedings until he was awakened and transported from the detention center on the day of the hearing. While he acknowledges that he knew he had counsel appointed for several months prior to the hearing, he claims he did not know of the hearing date nor meet with counsel until a few minutes before the hearing. As indicated, his attorney did not present any arguments on the record that he did not know of the hearing date or have an opportunity to be heard. However, Father then fired that attorney early in the proceedings and the family court proceeded with the hearing.
This Court addressed the law surrounding representation in termination proceedings in Z.T. v. M.T., 258 S.W.3d 31 (Ky. App. 2008). There, we reiterated that the due process clause, as well as KRS 625.080, requires "that the parental rights of a child [can]not be terminated unless the parent has been represented by counsel at every critical stage of the proceedings." Z.T., 258 S.W.3d at 36. This Court also held that a parent's "general allegations are insufficient as a basis" to support an ineffective assistance of counsel claim arising out of a termination of parental rights claim. Id. at 37 (citation omitted). Nowhere in this record does Father allege specific facts that show his counsel was deficient. In fact, he was provided with counsel, and there is no indication in the limited time that she was acting on his behalf that she was not fully representing her client. Nonetheless, he elected to terminate her services early in the proceedings.
However, because this Commonwealth recognizes that due process and statutory law require counsel during critical stages of a termination proceeding, "[i]t is logical that the parent's right to counsel includes effective representation." Id. at 36. We simply cannot discern from this record whether he had effective representation, notice of the hearing, and an opportunity to present witnesses on his behalf.
There is nothing in the record indicating that he requested a continuance, with or without counsel, or that he was not prepared to go forward with the hearing on that date. However, he argues - here and in post-hearing motions - that he did not know the hearing was scheduled for that date and thus was unable to produce witnesses in support of his defense.
We have previously held that notice and opportunity to be heard must be afforded in proceedings to terminate parental rights in order to provide fundamental due process. P.J.H. v. Cabinet for Hum. Res., 743 S.W.2d 852, 853 (Ky. App. 1987) (citations omitted). The Cabinet did not counter with any evidence that the required notice was given. The family court did not address this in its findings or in its denial of the motion to alter, vacate, or amend.
We find precedent in several cases of this Court. In T.W. v. Cabinet for Health and Family Services, 484 S.W.3d 302 (Ky. App. 2016), we held that the mother and father were entitled to a new termination of parental rights hearing after they were denied effective assistance of counsel. In that case, on the scheduled hearing date, one attorney serving as counsel for both parents moved to withdraw due to a conflict perceived in representing both the mother and father. Id. at 303. The trial court did not permit the withdrawal that day, although recognizing that there was a potential conflict, due to an expert witness being available who had traveled for the hearing. Id. at 303-04. Later, the court permitted separate counsel to be appointed for each parent and reconvened the termination hearing with both attorneys given an opportunity to recall the Cabinet's expert. Id. at 304.
On appeal, this Court held that our jurisprudence establishes that the "due process clause, and KRS 625.080(3) and 620.100(1) require that the parental rights of a child not be terminated unless the parent has been represented by counsel at every critical stage of the proceedings." Id. at 305 (quoting Z.T., 258 S.W.3d at 36). Even though counsel was present on the first day of that termination hearing and separate counsel was provided on subsequent dates, this Court reversed, concluding that counsel did have an actual conflict of interest. Id. at 305-06. We held that a parent is not required to demonstrate prejudice caused by that representation and it must be presumed. Consequently, this Court opined that the only remedy was reversal and remand for a new termination hearing. Id. at 306.
Similarly, in A.P. v. Commonwealth, 270 S.W.3d 418 (Ky. App. 2008), we reversed a termination order, due to potential prejudice in not having counsel present on one day of a hearing, even though counsel did not object to the court proceeding in his absence. Although it does not involve identical facts to here, A.P. reaffirmed the view adopted by this Commonwealth "regarding the right to counsel when the Commonwealth seeks to sever the sacrosanct parental relationship." T.W., 484 S.W.3d at 305. There, the parent's counsel was not present on the first day of the termination hearing and the court's initial attempts to contact the counsel were unsuccessful. A.P., 270 S.W.3d at 419. "Although recognizing that proceeding without the mother's counsel present may constitute error, the trial court nevertheless proceeded." T.W., 484 S.W.3d at 305. This Court reversed. However, the Court noted it was not addressing the merits of whether the parental rights should be terminated, but simply insisting that the statutory requirements be afforded to provide complete deference to the parent's due process rights. A.P., 270 S.W.3d at 421-22.
Likewise, in Z.T., we held that "if counsel's errors were so serious that it is apparent . . . the parent was denied a fair and meaningful opportunity to be heard[,]" due process was denied. Z.T., 258 S.W.3d at 36. In this case, we simply cannot determine if counsel provided notice of the hearing to Father or contacted any witnesses on his behalf. While his own actions in firing his attorney may have led to this argument, it must be clear in the record that all due process was afforded.
Finally, in T.W., this Court noted that:
We have not reached our decision without recognizing that it will delay a final resolution of this case for child and that the family court attempted to remedy the denial of counsel by permitting newly appointed counsel to cross-examine the Cabinet's witnesses at a future date. However, in this Commonwealth, it is a fundamental right of parents facing termination of their parental rights to have counsel not only present but also conflict-free. . . . [I]n such a serious matter as the termination of parental rights, there must be "complete deference to providing for all the parent's due process rights." We stress that our decision in no way addresses the merits of whether . . . parental rights should be terminated.T.W., 484 S.W.3d at 306-07 (citation omitted).
We likewise emphasize that this decision does not address the merits of the termination, but the matter is simply reversed and remanded for further proceedings with counsel appointed to ensure notice and an opportunity to be heard have been afforded to Father. We view his remaining arguments as moot in light of this Opinion.
For the foregoing reason, the order of the Franklin Family Court is reversed, and the case remanded for proceedings consistent with this Opinion.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
EASTON, JUDGE, DISSENTING:
There can be no question about the seriousness of a decision to terminate parental rights. It is one of if not the most impactful decision a family court can make. The consequences of severing constitutionally protected rights of a parent justify a vigilant protection of the rights to proper notice, to be heard, and to be represented by competent counsel. I dissent because T.T. waived his right to be represented by counsel with no showing of ineffectiveness of his counsel at that time and then, acting pro se, did not apprise the family court of any action T.T. was requesting before the hearing process was concluded.
During the hearing at issue, T.T.'s appointed counsel began by asking appropriate questions of the first witness. Counsel had just been handed documents from the court file to question the witness further when T.T. fired her. The family court judge told T.T. that he knew the attorney was effective counsel who was regularly in his court. The judge then explained the consequences of T.T.'s decision and confirmed T.T. had decided to represent himself.
While T.T. had a right to counsel, he could voluntarily waive it. When he did so here, the family court permissibly guided T.T. as to asking questions of witnesses and testifying himself, if he chose to do so. T.T. never raised any complaint based on his later allegation he did not know about the scheduled hearing. T.T. was aware of the pendency of the case to terminate his parental rights. T.T. had his "fiancee" contact his appointed attorney when the hearing was continued in October of 2021, six months before the next hearing date. After T.T. decided to represent himself, he did not ask for another continuance. T.T. did not ask for appointment of new counsel. T.T. did not tell the family court he had witnesses he wanted to subpoena and call.
Not the mother of the child at issue here. The mother died of a drug overdose during the pendency of this case.
T.T. was in custody at the time of the hearing at issue. His incarcerated status is relevant in part because T.T.'s history indicates he is no stranger to being advised of his rights and understanding the consequences of waiving them. During the hearing, testimony established T.T. was facing a charge of murder. In fact, he faces that charge as well as first-degree criminal mischief and being a first-degree persistent felony offender. This Court may take judicial notice of the electronic court record such as CourtNet regarding such a case. Mulazim v. Commonwealth, 600 S.W.3d 183, 203 n.6 (Ky. 2020). (The referenced court record shows a recent guilty plea to reduced charges, including facilitation to murder.) I will not disclose the case number or county of the charges to preserve the required confidentiality of the proceedings in this case with respect to T.T.'s identity.
While the courts must protect the rights of a parent in a termination of rights proceeding, the courts are not required to protect the parent from their own voluntary although ill-advised decisions to proceed on their own behalf in such a case. It is axiomatic a person who chooses to represent himself cannot claim ineffective assistance of counsel. Depp v. Commonwealth, 278 S.W.3d 615, 620 (Ky. 2009). I would affirm the Franklin Family Court.