Opinion
NO. 2015-CA-001330-ME
12-09-2016
DENISE ZECHMAN APPELLANT v. BRANDON BRUBAKER APPELLEE
BRIEF FOR APPELLANT: Michael T. Hogan Louisa, Kentucky BRIEF FOR APPELLEE: Zachary G. Ousley Prestonsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 08-CI-00554 OPINION
VACATING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. MAZE, JUDGE: Appellant, Denise Zechman, appeals from an order of the Johnson Circuit Court modifying custody of her son, G.B., and placing him in the sole care and custody of Appellee, Brandon Brubaker. Denise argues that the trial court improperly permitted an attorney, Howe Baker, to act both as a guardian ad litem and as a de facto friend of the court (FOC) in violation of her due process rights. She also argues that the trial court lacked substantial evidence to support its findings and conclusions.
Pursuant to CR 73.08, CR 76.03, CR 76.12, and the policy of this Court, cases concerning child custody, dependency, neglect, abuse, and support, as well as domestic violence, are to be given priority, placing them on an expedited track through our Court. That did not occur in this case. Both human error and obsolete case management software resulted in an administrative delay in assigning this case to a merits panel for decision.
On June 24, 2016, after discovering the administrative error, the Clerk of the Court informed the Chief Judge and Chief Judgeelect who, together, assigned the case to a special merits panel of Court of Appeals Judges who have given it the highest priority to offset any delay to the greatest extent possible. Additionally, the Court has sent a letter of explanation and apology to the parties and placed that letter in the record.
Finally, the Court has undertaken efforts to put into effect procedures to ensure that such an error is not repeated.
Following a thorough review of the written and video record in this case, we conclude that the trial court deprived Denise of the opportunity to challenge Mr. Baker's final findings and recommendations upon which the trial court subsequently relied. We hold that deprivation constituted manifest injustice, and we vacate and remand the matter to the trial court for further proceedings.
Background
Denise and Brandon are the biological parents of a seven-year-old child, G.B. Prior to the instant action, Denise and Brandon shared joint custody of G.B. Denise held primary residential custodian status and lived with G.B. in Pennsylvania, while Brandon enjoyed regular visitation with G.B. In or around July 2014, Dr. Matthew Wilson, a Kentucky physician, diagnosed G.B. with mild to moderate persistent asthma after G.B. began suffering chronic coughing, sneezing, and shortness of breath. Based on this diagnosis, Dr. Wilson prescribed G.B. several medications. Denise sought a second medical opinion from a Pennsylvania physician who, according to Denise, advised against giving G.B. his prescribed asthma medication if the child was asymptomatic. Disagreements over the appropriate course of treatment for G.B.'s symptoms followed, eventually resulting in court intervention.
While litigation between the parties dates to 2009, for purposes of this appeal, our recitation of the case's procedural history begins on March 26, 2014, when the trial court entered an Agreed Order between the parties which, in part, attempted to resolve the parties' and various medical experts' disagreements over G.B.'s illness and the administration of medication. The Agreed Order held in abeyance a prior motion Brandon brought to make him primary residential custodian on the condition that, inter alia, both parties administer G.B.'s prescribed medications "in full" and as directed, including medication directed to be administered on an "as needed" basis.
Four months after entry of the Agreed Order, and based upon concerns that Denise was endangering G.B.'s health by not administering G.B.'s medication as agreed, Brandon moved the trial court to hold Denise in contempt and to make an emergency change of custody granting him primary residential custodian. Litigation ensued, including the deposition of at least one physician and entry into the record of a report drafted by Howe Baker, who was, as of March 2014, serving in a role the court and the parties defined as the child's guardian ad litem (GAL). However, on October 30, 2014, in light of the Kentucky Supreme Court's then-recent decision in Morgan v. Getter, the trial court entered an order which purported to relieve Mr. Baker "from any further Guardian ad Litem duties for the minor child[,]" and clarified that he was to continue serving "as a defacto Friend of the Court as this is the role he has played in the matter."
Following discovery and Mr. Baker's filing of at least one report, findings, conclusions, and recommendations, the trial court conducted a lengthy hearing on Brandon's motion for modification of custody. At this July 2015 hearing, Brandon and Denise testified and Brandon entered a physician's notes as an exhibit. The trial court permitted Mr. Baker to appear and participate in this hearing. This included cross-examining Brandon and Denise at length. Following the hearing, Mr. Baker interviewed G.B. again and filed final findings and recommendations with the court.
On August 5, 2015, the trial court found that Denise had been "unwilling to follow the recommended treatment by the allergy specialist" without court intervention and additional orders. The trial court also expressed concern regarding G.B.'s dental health and exposure to tobacco smoke and other allergens while in Denise's care. On this basis, the court modified custody and awarded Brandon primary residential custodian status. This appeal follows.
Analysis
Denise first argues that the trial court conflated the roles of a GAL and a FOC, permitting Mr. Baker to both question witnesses at the final hearing and submit recommendations and reports upon which the trial court relied for its final order. Denise argues that this practice was improper pursuant to the distinctive statutory roles of GALs and FOCs as well as the Kentucky Supreme Court's ruling in Morgan v Getter, 441 S.W.3d 94 (Ky. 2014). We agree that at least one aspect of Mr. Baker's role as FOC compels reversal; however, we reverse under circumstances somewhat different from those Denise outlines on appeal.
Pursuant to CR 76.12(4)(c)(v), an Appellant must state at the beginning of an argument where in the record the issue was preserved for appeal. If an Appellant fails to do this, this Court has the discretion "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions ...; or (3) to review the issues raised in the brief for manifest injustice only." Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014) (citation and quotation marks omitted). Past panels of this Court have held that "substantial compliance" with the Civil Rules is mandatory. Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). See also Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990).
Denise states in her brief that she objected to Mr. Baker's method of questioning her at the July 2015 hearing. However, the nature of Denise's objection did not address the issue of Mr. Baker's role in the hearing or whether he, as the FOC, could or should be participating in the hearing as an attorney and advocate. Rather, Denise's objection was to Mr. Baker's "lecturing" her instead of posing a question. This was insufficient to preserve the issue Denise now raises on appeal. As such, the issue of Mr. Baker's role in the proceedings is unpreserved, and we may only review it for "palpable error," which CR 61.02 defines as error "which affects the substantial rights of a party . . . ." We may grant relief only "upon a determination that manifest injustice has resulted" from the alleged error. Id.
In Morgan v. Getter, supra, Kentucky's Supreme Court took on the question of a GAL's role in court proceedings concerning children. The trial court in that case appointed a GAL for the child "to help the Court decide the case properly[,]" and permitted the GAL to file a report and recommendations for custody upon which the trial court's subsequent order expressly relied. Morgan, 441 S.W.3d at 97-98. Additionally, the trial court did not permit counsel for Morgan to cross-examine the GAL concerning his report, holding that it was sufficient that counsel could call and examine those persons referred to in the GAL's report. Morgan appealed and the case eventually landed before the Supreme Court.
In its 2014 opinion, the Supreme Court focused on the necessary but often blurred distinctions between a GAL and a FOC. Generally, a FOC, if requested by a trial court, can "make such investigations as will enable the friend of the court to ascertain all facts and circumstances that will affect the rights and interests of the children and will enable the court to enter just and proper orders and judgment concerning the care, custody, and maintenance of the children." Morgan at 103-04 (quoting KRS 403.090(4)). In contrast to a FOC, who cannot "directly or indirectly represent any party" except under limited circumstances, see KRS 403.090(6), a GAL's express responsibility is "to advocate for the [child's] best interest in the proceeding . . . ." KRS 387.305(5).
More specifically, the Court in Morgan concisely stated the most important distinctions between GALs and FOCs and the legal issues which result from confusion between the two:
The first is a distinction between, on the one hand, a child's representative appointed as an officer of the court to investigate the child's and the parents' situations, to file a report summarizing his or her findings, and to make recommendations as to the outcome of the proceeding—in Kentucky statutory terminology a sort of "friend of the court" (FOC); and on the other hand, a child's representative appointed to participate actively as legal counsel for the child, to make opening and closing statements, to call and to cross-examine witnesses, to make evidentiary objections and other motions, and to further the child's interest in expeditious, non-acrimonious proceedings—in our terminology a GAL. The problem is that, however referred to, the appointee is often expected to blur these roles—to investigate for the court and to litigate for the child.441 S.W.3d at 111. This conflation of roles and terms can result in a substantial threat to an aggrieved parent's protected liberty interest in the care and custody of her child. Id. (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L. Ed. 2d 49 (2001) and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L. Ed. 2d 18 (1976)). In sum, while confusion between the respective roles of a GAL and a FOC may be common and even understandable, avoiding this confusion is vital given what is at stake for the parents and children involved.
Like the trial court in Morgan, the court in the present case permitted Mr. Baker to perform various functions characteristic of both positions at various times during the proceedings. Even after its 2014 order declared that Mr. Baker would operate exclusively as a FOC, the trial court permitted him to question witnesses at the final hearing before interviewing G.B. a final time, filing a report with the court, and making recommendations. Like the trial court in Morgan, the present trial court relied upon Mr. Baker's report and recommendations, issuing its decision only days later. The question for this Court, given that Denise did not preserve the issue for review, is whether any or all of these facts constituted prejudice which affected a substantial right of Denise.
Denise's "protected liberty interest in the care and custody of her daughter" compels us to conclude that what prejudice did result from Mr. Baker's role in the proceedings constituted manifest injustice. Troxel, 530 U.S. at 65. Let there be no doubt: Mr. Baker acted properly as a FOC when he interviewed G.B., filed a final report, and made final recommendations. However, as in Morgan, Mr. Baker's findings and recommendations were adverse to Denise, and the trial court proceeded in a manner which effectively, but clearly not intentionally, deprived Denise of the opportunity to cross-examine or otherwise challenge Mr. Baker on his findings. As in Morgan, Denise's deprivation of "the vital tool of cross-examination" left Denise with "no means of probing his assumptions and potential biases, a probing that could well have affected the trial court's assessment of his recommendations." Morgan, 441 S.W.3d at 112. This created a real and substantial risk that Denise's fundamental interests would be erroneously impaired, and this is a risk we cannot let pass simply because Denise's counsel failed to adequately recognize and preserve it for appeal.
For this reason, we must vacate the trial court's order of August 5, 2015, and we remand. On remand, the trial court may permit any and all additional investigation, reports, and recommendations it may deem necessary from Mr. Baker. However, prior to a final order on the modification of custody, the trial court shall permit Denise the opportunity to cross-examine Mr. Baker concerning his final findings and recommendations, consistent with his role as a FOC and with Denise's rights outlined in Morgan. Whether Denise elects to do so is completely of her choosing.
Conclusion
Given the import of the rights involved in this case, we conclude that manifest injustice resulted from the trial court's consideration of findings and recommendations from the FOC which Denise did not first have the opportunity to challenge on cross-examination. Accordingly, we vacate and remand the trial court's August 5, 2015, order without addressing the sufficiency of the evidence supporting that order.
ALL CONCUR. BRIEF FOR APPELLANT: Michael T. Hogan
Louisa, Kentucky BRIEF FOR APPELLEE: Zachary G. Ousley
Prestonsburg, Kentucky