Opinion
NO. 2020-CA-1269-ME
04-23-2021
C.M.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND K.R.T., A CHILD APPELLEES
BRIEF FOR APPELLANT: Nancy Barnes Paducah, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE DEANNA WISE HENSCHEL, JUDGE
ACTION NO. 20-AD-00024 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. MAZE, JUDGE: C.M.T. (Mother) appeals from the termination of her parental rights to her minor son, K.R.T. (child), by the McCracken Circuit Court, Family Court Division. We affirm.
I. Factual and Procedural History
Mother and her ex-husband J.M.T (Father) are the parents of a child born on March 24, 2018. The Cabinet for Health and Family Services became involved with the family after receiving reports of domestic violence. On the basis of a report that Mother and Father were cohabitating despite the existence of a no-contact order and that they were using methamphetamines in front of the child, the Cabinet filed a petition for emergency custody which the family court granted on October 31, 2018. The child has remained in foster care since that date.
At a temporary removal hearing conducted on November 1, 2018, the family court ordered Mother to complete a hair follicle test, which came back positive for methamphetamines and amphetamines. At an adjudication hearing conducted November 29, 2018, the family court found the child to be neglected based upon Mother's stipulation to the allegations in the Cabinet's petition. On December 20, 2018, the family court committed the child to the Cabinet and formally adopted the Cabinet's recommended case plan for Mother which included compliance with the no-contact order and avoidance of illegal drugs.
After conducting a goal change hearing in February 2020, the family court changed the goal plan to adoption based upon evidence of Mother's general lack of progress with the reunification plan and the fact that Father had again been seen in Mother's residence during an unannounced visit from a Cabinet caseworker. Shortly thereafter, Mother and Father fled to his mother's home in Alabama. It is uncontested that Mother had no contact with the child, or the assigned Cabinet employee(s), for more than ninety days thereafter (from mid-February 2020 to late May 2020).
Upon the filing of a petition to terminate Mother and Father's parental rights, the family court appointed a guardian ad litem for the child. In early July 2020, the family court set a final hearing for September 3, 2020. At the commencement of the September hearing, Mother's counsel requested a continuance on the basis that she had been unable to speak with the Cabinet employee assigned to Mother's case. Counsel also complained that a new Cabinet policy precludes parents in termination proceedings from having contact with Cabinet personnel without first having received permission from counsel for the Cabinet.
In response to the court's inquiry as to whether, regardless of the new "no contact" policy, she would have sought a continuance if the Cabinet employee simply had not had a chance to speak with her before the hearing, counsel forthrightly stated she would have not sought a continuance under those circumstances. At no point did Mother's counsel state that her inability to speak with Cabinet personnel prior to the hearing had impeded her ability to provide Mother with adequate representation. Admitting she had had the opportunity to read the pertinent reports and review the contents of relevant files, counsel states that she would not have been making "a big deal" of not being able to speak with Cabinet personnel if counsel for the Cabinet had not made "a big deal" about its new policy. The family court then denied the requested continuance without definitively opining on the propriety of the Cabinet's "no contact" policy.
After hearing the testimony of several witnesses, the family court orally announced it intended to grant the Cabinet's termination petition as to both parents and shortly thereafter issued written findings of fact and conclusions of law to support its termination order. Mother's appeal followed entry of that order.
Mother did not name the child as an appellee in the body of the notice of appeal, a potentially fatal error. A.M.W. v. Cabinet for Health and Family Services, 356 S.W.3d 134, 135 (Ky. App. 2011). However, the caption of Mother's notice of appeal refers to the child and, unlike the situation in A.M.W., Mother mailed a copy of the notice to the child's guardian ad litem. Therefore, we do not have to dismiss this appeal. A.R.D. v. Cabinet for Health and Family Services, 606 S.W.3d 105, 106 n.2 (Ky. App. 2020).
Furthermore, Father did not appear at the final termination hearing, nor has he appealed from the termination of his parental rights.
II. Analysis
A. Mother's Deficient Brief
Before addressing Mother's arguments, we must discuss the failure to comply with multiple briefing requirements set out in Kentucky Rule of Civil Procedure (CR) 76.12. First, CR 76.12(4)(c)(iv) requires an appellant's brief to include a statement of the case containing "a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings . . . ." Although Mother's two-paragraph statement of the case contains a nominal summary of the underlying facts and procedural history, it contains no specific citations to the record, other than a general, nonspecific citation to the lengthy termination decision.
Second, CR 76.12(4)(c)(v) requires an appellant's brief to include an argument section which contains "ample supportive references to the record and citations of authority pertinent to each issue of law" and a statement at the beginning of the argument "showing whether the issue was properly preserved for review and, if so, in what manner." The argument section of Mother's brief contains no citations to the written record or videotape of the final hearing, nor does it state whether any of the issues were preserved and, if so, how. In addition, Mother cites no authority at all for one argument, only a passing citation to a statute in a second argument, and only a citation to one case in a third.
Additionally, Mother's brief also fails to comply with CR 76.12(4)(c)(vi)'s requirement that the conclusion state what "specific relief" she is seeking from this Court. Neither does her brief comply with the requirement in CR 76.12(4)(c)(vii) that the appendix contain "appropriate extruding tabs" and "a listing or index of all documents included in the appendix" specifying "where the documents may be found in the record." Although the Cabinet cited some of these deficiencies in its responsive brief, Mother elected to not file a reply brief, thus foregoing the opportunity to attempt to remedy the nonconformity. In sum, Mother's brief repeatedly fails to comply with CR 76.12.
It is not the task of an appellate court to construct arguments for parties or to find supporting authority for underdeveloped arguments. See, e.g., Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 379 (Ky. App. 2018). This Court has held that "[a]ssertions of error devoid of any controlling authority do not merit relief[,]" and so we may summarily affirm a trial court if an appellant's brief fails to comply with CR 76.12. Koester v. Koester, 569 S.W.3d 412, 414 (Ky. App. 2019). And recently, in Clark v. Workman, this Court expressed its growing exasperation with deficient briefs. 604 S.W.3d 616 (Ky. App. 2020).
Consequently, "[a]lthough noncompliance with CR 76.12 is not automatically fatal, we would be well within our discretion to strike [Mother's] brief or dismiss her appeal for her attorney's failure to comply." Curty, 561 S.W.3d at 378. Or, we could elect to review the issues contained in the brief for manifest injustice alone. Clark, 604 S.W.3d at 619.
However, we are loathe to penalize a party whose parental rights are being terminated solely due to counsel's errors. This Court recognizes that "a termination of parental rights proceeding implicates fundamental constitutional rights." D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 115 (Ky. 2012). Consequently, to the extent the cited deficiencies allow, we have elected to review the issues on the merits. However, we caution counsel that we may not be as lenient if there are similar future transgressions.
We also encourage all counsel to familiarize themselves with the briefing aids provided on our website, such as a basic appellate handbook, https://kycourts.gov/Courts/Court-of-Appeals/Documents/P56BasicAppellatePracticeHandbook.pdf (last visited April 13, 2021), and a checklist for an Appellant's brief, https://kycourts.gov/Courts/Court-of-Appeals/Documents/AppellantBrief.pdf (last visited April 13, 2021).
B. Standards of Review and Statutory Termination Requirements
Turning to the scope of our review, as the finder of fact in termination proceedings the family court "could properly determine which testimony it found more credible and reliable." A.R.D., 606 S.W.3d at 111. Indeed, the family court "may choose to believe or disbelieve any part of the evidence presented to it." K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006). Consequently, "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." Commonwealth, Cabinet for Health and Family Services. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Kentucky Revised Statute (KRS) 625.090 requires a trial court to follow a three-step process in deciding to involuntarily terminate parental rights. First, KRS 625.090(1)(a) requires the court to find by clear and convincing evidence that a child is, or has previously been adjudged to be, abused or neglected. Second, the court must find by clear and convincing evidence that termination would be in the child's best interest. KRS 625.090(1)(c). Finally, the court must find, again by clear and convincing evidence, the existence of at least one ground of parental unfitness listed in KRS 625.090(2) .
We recognize that KRS 625.090(2) was amended by the General Assembly effective June 27, 2019, during the pendency of this appeal. The amendment which added a subsection stating, "(k) That the child has been removed from the biological or legal parents more than two (2) times in a twenty-four (24) month period by the cabinet or a court[,]" has no effect upon the facts at issue in this appeal.
Turning to the application of these factors, Mother advances three arguments in support of her contention that the decision to terminate her parental rights is erroneous: 1) that the family court erred in refusing to grant a continuance; 2) that the family court erred in finding she failed to support the child; and 3) that the family court erred in concluding that the Cabinet had presented sufficient evidence to satisfy the grounds for parental unfitness set out in KRS 625.090(2)(e) and (g).
As it pertains to this appeal, KRS 625.090 provides:
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . .
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
. . .
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
. . .
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights . . . .
C. No Abuse of Discretion in Denying Continuance
"[W]hen reviewing a trial court's denial of a motion to continue, the standard of review is whether the trial court abused its discretion." P.S. v. Cabinet for Health and Family Services, 596 S.W.3d 110, 116 (Ky. App. 2020). An appellate court considers the following factors when reviewing the denial of a continuance:
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). Mother's one-paragraph argument does not directly address any of these factors.
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice
Mother's counsel requested a continuance in order to speak with the assigned Cabinet worker. Because Mother did not offer any information on the record as to the necessary length of the requested continuance, this factor cannot be weighed in her favor. Second, there had not been any previous continuances, so that factor does weigh in Mother's favor. Next, a continuance would have inevitably been inconvenient to the parties, witnesses, and the family court. Termination of parental rights proceedings require prompt resolution, especially for the subject children whose time in parental limbo must be minimized. This factor weighs against Mother.
Fourth, a continuance was necessitated by counsel's dilatoriness in failing to attempt to speak with the assigned Cabinet employee until only two or three days prior to the long-scheduled hearing, a factor which Mother's counsel did not fully explain. This factor weighs greatly against Mother's request for a continuance.
The statutory factor of the availability of other competent counsel is irrelevant here. And, although parental rights termination hearings are inevitably complex and fact-specific, there is no indication this case was markedly more or less complex than is typical, so this factor is not of great significance.
Finally, Mother has not shown any concrete prejudice from the denial of her motion for a continuance. Counsel has not explained how she was unable to adequately question any witness or shown that she would have been able to adduce different evidence had a continuance had been granted. In short, counsel has not explained how anything would have been meaningfully different if the family court had granted a continuance despite the existence of precedent "demand[ing] a showing of identifiable prejudice." Id. at 372. Rather, Mother's inability to show any identifiable prejudice dispels her contention that the family court abused its discretion in denying her motion for a continuance.
It is unnecessary for us to definitively address the ancillary issue of whether the Cabinet may properly prohibit counsel for parents in termination proceedings from contacting Cabinet employees without the consent of the Cabinet's counsel. Instead, we merely cite to authority which provides that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." Supreme Court Rule (SCR) 3.130(4.2). --------
D. No Error in Considering Mother's Failure to Provide Financial Support to the Child
Mother next argues that the family court should not have considered her failure to pay child support as a factor supporting termination in light of the fact that she had not been ordered to pay support and the foster parents were being compensated by the state for caring for the child. Tellingly, Mother cites to no authority supporting her argument. We thus conclude that this underdeveloped and conclusory argument is insufficient to merit relief. Koester, 569 S.W.3d at 413-14.
In any event, Mother would not be entitled to relief on the merits. Her argument relates to the grounds of parental unfitness found in KRS 625.090(2)(e) and (g). Those similar subsections provide that a parent's failure to provide a child with "food, clothing, shelter, medical care" or "essential parental care and protection" are factors supporting termination, provided the court concludes there is no reasonable expectation of improvement. However, a court must find only one ground of parental unfitness set forth in KRS 625.090(2), and it is undisputed that other subsections have been satisfied. Specifically, the child was "in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[,]" KRS 625.090(2)(j), and Mother abandoned the child when she went to Alabama for at least ninety days in the aftermath of the February 2020 goal change hearing. KRS 625.090(2)(a). Consequently, there were ample grounds for termination, regardless of whether KRS 625.090(2)(e) and (g) were also satisfied.
Even if we leniently examine the matter on the merits, Mother is not entitled to relief. KRS 625.090(3)(f) provides that in considering whether termination is in a child's best interest a court must consider a parent's "payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." Obviously, therefore, the General Assembly intended courts to consider a parent's failure to support a child while in the Cabinet's care.
In addition, although Mother provided some items for the child while he was in foster care, such as birthday and Christmas presents, it is inarguable that she did not provide for his daily needs. That shortfall had to be made up by the Cabinet, and one way the Cabinet ensures children in its care do not languish without adequate care is to provide some financial assistance to foster parents. But those payments do not relieve biological parents from their responsibilities, regardless of the existence of a formal child support order. As our Supreme Court emphasized in rejecting a similar argument advanced by a minor who, along with her child, was in the Cabinet's care: "Just because the child, and the parent for that matter, are committed to the Cabinet does not mean that the parent has no further responsibilities to the child." T.N.H., 302 S.W.3d at 662.
E. No Error in Determining There Were No Reasonable Prospects for Improvement in the Future
Next, as we understand her somewhat imprecise argument, Mother contends the family court focused on her past behavior and did not properly assess whether there were reasonable prospects for improvement in the future, as is required under KRS 625.090(2)(e) and (g). Mother argues that because she had divorced Father and taken positive steps forward, she is consequently entitled to relief pursuant to our decision in M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846 (Ky. App. 2008). Again, this argument is purely an academic exercise since it questions the propriety of the family court's conclusions that the Cabinet had satisfied KRS 625.090(2)(e) and (g) but there is incontestable evidence that KRS 625.090(2)(j) and KRS 625.090(2)(a) had been satisfied.
In M.E.C., we reversed an order terminating a mother's parental rights because we did not "believe the Cabinet presented substantial evidence that the children were abused and neglected . . . ." M.E.C., 254 S.W.3d at 854. In addition, this Court determined that "reasonable services to reunite the family were not provided to M.E.C. and her children" and there was "no substantial evidence in the record to support a finding that there is no reasonable expectation of improvement in M.E.C.'s situation" because "all of [the Cabinet's] testimony focused on past behavior without any significant evaluation of future parenting capacity." Id. at 854-55.
Here, by contrast, there was ample evidence showing the child was abused or neglected and that the Cabinet made reasonable reunification efforts. And, unlike M.E.C., Mother did not comply with the Cabinet's case plan to the best of her ability. Instead, the family court heard evidence that Mother remained in contact with Father despite being ordered not to do so and even devised an elaborate ruse whereby they would divorce without actually separating. Mother also continued to use marijuana during the pendency of the termination proceedings and did not complete the recommended mental health counseling regime. In short, the mother in M.E.C. consistently and fervently worked toward reunification to the best of her ability; Mother in the instant case did not.
It is unavoidable that much of the testimony at a termination hearing will focus on past events. After all, past events are what usually give rise to termination petitions. Consequently, when considering termination petitions, the trial courts of the Commonwealth must make educated predictions about a parent's future based upon evidence of the parent's past conduct.
Again, though it appears that Mother had made some progress, there was ample evidence to support the Cabinet's assertion that she had "continually violated the no contact order, continually abused marijuana, and failed to follow through with mental health therapy." Concerning Mother's credibility, the family court emphasized the disturbing, deceptive sham divorce scheme Mother and Father devised in an attempt to circumvent the termination proceedings:
On jail recordings that were introduced into evidence [Mother and Father] spoke about getting divorced to try and get [the child] back and then being together. Based on her history with the Court, the Court does not believe the [Mother] is having no contact with [Father] or that her actions right before the termination hearing are not simply some kind of manipulation to get [the child] and return to [Father] which would place [the child] at a significant risk of harm both physically and emotionally.In addition, there was testimonial support for the court's lament that it "cannot find that there is any reasonable prospect of improvement because every single time [Mother] convinced the Court and the Cabinet she was making improvements in the past, it was a fraud." Similarly, a Cabinet social worker testified that she feared for the child's safety if he were reunited with Mother—testimony which was directly relevant to assessing the likelihood of Mother's future improvement in parenting skills. In short, M.E.C. is distinguishable, and the family court did not clearly err by finding that there was no reasonable prospect for Mother's improvement.
F. No Error in Not Placing the Child with Relatives
Finally, Mother raises a perfunctory, two-sentence argument—devoid of citation to the record or supporting authority—that family members should have been chosen to be the child's custodian(s). Again, such a perfunctory argument is insufficient to merit relief. Koester, 569 S.W.3d at 413-14.
In any event, Mother is not entitled to relief. The family court concluded that the Cabinet "followed protocol to evaluate whether any member of the parent's family is appropriate for placement and was unable to find anyone." That conclusion is supported by the testimony of the Cabinet employee assigned to Mother's case. There also was testimony that the child had bonded with his foster parents. Accordingly, though Mother presented contrary testimony (including that a relative was willing to assume custody of the child), the family court did not err. See P.S., 596 S.W.3d at 118-19; A.R.D., 606 S.W.3d at 107 ("We agree with the trial court that relative placement was not a relevant issue at the involuntary termination hearing as it is not a factor listed in Kentucky Revised Statute (KRS) 625.090.").
III. Conclusion
For the foregoing reasons, the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Nancy Barnes
Paducah, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky