Opinion
NO. 2015-CA-001523-ME
01-20-2017
D.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; D.W.; AND D.W., MINOR CHILDREN APPELLEES
BRIEF FOR APPELLANT: D.W. Pro se Vandalia, Illinois D.W. Pro se Chicago, Illinois BRIEF FOR APPELLEE: David A. Sexton Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 13-J-501706 & 13-J-501707 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. ACREE, JUDGE: D.W. (Father) appeals the September 11, 2015 order of the Jefferson Family Court finding that he neglected his child. We affirm.
FACTS AND PROCEDURE
Father is the biological father of D.W., a male child born July 7, 2008 (Son). S.S. (Mother) is Son's biological mother. Mother has another child, D.W., a female child born January 24, 2013 (Child 2). Child 2 is Son's half-sibling.
Appellant, Son, and Child 2 all have the same initials, D.W.
To be clear, Father is not the biological father of Child 2. This appeal only concerns Son.
The Cabinet for Health and Family Services filed a dependency, neglect, and abuse petition on February 1, 2013, after Child 2 tested positive for opiates and benzodiazepines at birth. The petition alleged that Mother also tested positive for opiates and benzodiazepines, that she was bipolar, and that she had not taken any medication for her condition since early 2011. Little mention was made of Father, except that he lived in Chicago.
The Cabinet filed an amended petition on March 20, 2013. The amended petition stated that Father had a substantial criminal history in Arizona, Nevada, California, Massachusetts, New Jersey, New York, and Illinois. Further, it alleged that Father was listed under three different social security numbers and no fewer than ten different dates of birth. The petition stated that Father had pending felony charges in Illinois and was under indictment for identity theft, attempting to elude or evade officers, and for soliciting prostitution. He also had prior convictions for forgery and theft, for which he was sentenced to 40 months in prison. It further stated that Father had received a ten-year sentence in Nevada for larceny, a 3½-year sentence in Arizona for receiving stolen property, and 18 months in prison in New Jersey for multiple offenses, in addition to having multiple criminal charges in California, Massachusetts, and New York.
In addition to providing this information concerning Father's criminal history, the petition stated that Father had not been forthcoming with Kentucky officials regarding his residential status or the status of his pending felony charges in Illinois. Kentucky child support officials reported that Father had not paid any support for the care of Son. The petition also indicated that Father traveled often to various states and did not appear to have stable housing or residency.
Father filed an original action in this Court seeking a writ of prohibition to prevent further proceedings in the family court due to jurisdictional defects and other various court improprieties.
[D.W.] v. Honorable Eleanor Garber, Judge, Jefferson Family Court, No. 2013-CA-001165 (Ky. App. Dec. 9, 2013). Father's petition was ultimately denied. This Court found that the family court was proceeding within its subject matter jurisdiction and Father had an adequate remedy by appeal. Father also sought a writ of prohibition/mandamus from the United States District Court, Western District of Kentucky. The District Court refused to interfere with the state-court proceedings. [D.W.] v. Honorable Eleanor Garber, Civil Action No. 3:13CV-683-H (W.D. Ky. 2013).
In the meantime, the family court conducted an adjudication hearing in July 2013, but only with respect to Mother. It held in abeyance any adjudication of the neglect action against Father due to the pending original action.
The family court ultimately found both children were abused and neglected by Mother. Father then appealed in an apparent attempt to assert the legal rights of Mother. This Court summarily dismissed Father's appeal, holding that Father could not appeal on behalf of Mother. and that Father had not obtained a final and appealable order in his case. S.S. v. Cabinet for Health & Family Servs., No. 2013-CA-001483-ME, 2014 WL 3796275, at *2 (Ky. App. Aug. 1, 2014).
Father then filed another original action in this Court seeking an order directing the family court to take specific actions relating to the custody, paternity, and neglect of Son. This Court again denied Father's petition, finding any deprivation of constitutional rights may be addressed in an appeal from a final order. [D.W.] v. Honorable Tara Hagerty, Judge, Jefferson Family Court, No. 2015-CA-000117 (Ky. App. Apr. 8, 2015).
The matter eventually returned to the family court for final resolution. The family court initially held a hearing concerning this matter on March 11, 2015. Father attended via telephone, because he was incarcerated on a conviction relating to credit card fraud, for which he had received a sentence of two years. Father testified that, apart from the felony for which he was currently incarcerated, he had only been incarcerated for "less than ten days" since the time that Son was born and that he paid child support in Illinois. Prior to the time the child was born, however, Father testified that he had been convicted of crimes in California, New Jersey, New York, Arizona and Massachusetts and had been incarcerated as a result of some of those convictions.
Later, D.W. testified he had been incarcerated "around a month."
An investigator for the Cabinet, Kathleen Evans, testified that Father was evasive concerning his background and criminal history. She also stated that Father initially denied that he was the father of Son, and at one point Father told her that he "did not want" Son when she attempted to question him.
Father stated that he intended to call Loretta Howell, the social worker that filed the petition in this case, and Mother. However, the family court was unable to get more than one person on the phone at one time. The matter was continued.
The family court reconvened on July 22, 2015. The Cabinet's next witness was Dr. D.S-W., Mother's cousin and Son's custodian at the time of the hearing. Dr. D.S-W. testified she had assisted Mother with Son's care from the time Son was three months old. Dr. D.S-W. stated that Mother had "basically" parented Son by herself until Son was two, and that Father would travel to the area from Chicago sporadically, visiting approximately once a month, or once in several months. After Child 2 tested positive for controlled substances following her birth, Father gained custody of Son, though Son continued to reside with Dr. D.S-W. and her husband. Dr. D.S-W. also testified that Father once gave a bag of clothes to Son, but that Father had provided her with no other support during the time that she and her husband cared for Son. Though Dr. D.S-W. testified there were incidents of domestic violence between Father and Mother, the only incident she specifically addressed concerned a loud argument between Father and Mother during which Son was in the room, with apparently no accompanying actual domestic violence.
It is unclear from the record how often Son resided with Dr. D.S-W. after Father gained custody of Son and before Father became incarcerated.
Mother's Father, A.S. (Grandfather), testified that Father was "in and out" of Son's life, but that Father did spend some time with Son.
Father testified that although he lived in Chicago, he would regularly travel to Louisville to see Son, and that sometimes he would take Son with him back to Chicago. He testified that Dr. D.S-W. did not care for Son as often as she claimed, and that she cared for Son "maybe once a month." He also stated that he had never been involved in domestic violence of any kind. Father admitted on cross-examination that he sought to evade police in 2012 in a vehicle.
The family court ultimately found that Father neglected Son. It found Father had "an extensive criminal history which resulted in his being incarcerated multiple times during the child's life, including both trial dates," and Father failed to consistently provide financial support or parental care for Child more than one or two days every few months. This appeal followed.
ARGUMENTS ON APPEAL
Father makes the following arguments on appeal: 1) he was the subject of vindictive prosecution; 2) he was not properly served; 3) the family court lacked subject matter jurisdiction over the case; 4) the family court abused its discretion when it determined that he had neglected Son; 5) there was insufficient evidence in the record to determine whether Father neglected Son; 6) he was denied the right to cross-examine witnesses when the trial court refused to let social worker Howell testify; 7) he was denied his right to a speedy trial; 8) his counsel was ineffective because he failed to call Howell and Mother as witnesses; and 9) this Court should exercise its supervisory powers over the family court.
To the extent that Father makes any additional arguments, this Court finds them waived. "Our courts have established that an alleged error may be deemed waived where an appellant fails to cite any authority in support of the issues and arguments advanced on appeal." Drummond v. Todd Cty. Bd. of Educ., 349 S.W.3d 316, 325 (Ky. App. 2011) (quoting Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005)).
STANDARDS OF REVIEW
KRS Chapter 620 governs dependency, neglect, and abuse actions. If, upon the filing of a dependency, neglect, and abuse petition, the family court determines further proceedings are required, it is obligated to conduct a full adjudicatory hearing to "determine the truth or falsity of the allegations in the complaint. The burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 620.100(3). Whether a family court correctly applied a statutory standard is assessed de novo, with no deference to the trial court. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003) (citing Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001).
Kentucky Revised Statutes.
Findings of fact are reviewed for clear error. Kentucky Rule of Civil Procedure (CR) 52.01. A family court's decision is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). "Substantial evidence" is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [people]." Id. "The trial court has broad discretion in determining whether the child fits within the abused or neglected category[.]" S.R. v. J.N., 307 S.W.3d 631, 634 (Ky. App. 2010) (quoting R.C.R. v. Commonwealth, Cabinet for Human Res., 988 S.W.2d 36, 38 (Ky. App. 1998)).
ANALYSIS
Father first argues that he was the victim of "vindictive prosecution." Although Father makes several allegations in this argument that "[m]oney may have [ ]changed hands[,]" our review of the record has revealed nothing to suggest that this action was taken for any improper or ulterior purpose. See Stanley v. Goff, 324 S.W.2d 124, 125 (Ky. 1959) (declining to grant relief when an appellant claimed the existence of a conspiracy when there was no evidence that such a conspiracy existed). Absent any affirmative evidence in the record, we decline to grant Father relief on this basis.
Next, Father contends that he did not receive notice of this action. CR 4.04(8) provides that:
Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, either by certified mail in the manner prescribed in Rule 4.01(1)(a) or by personal delivery of a copy of the summons and of the complaint (or other initiating document) by a person over 18 years of age. Proof of service shall be made either by the return receipt mentioned in Rule 4.01(1)(a) or by affidavit of the person making such service, upon or appended to the summons, stating the time and place of service and the fact that the individual served was personally known to him. Such
service without an appearance shall not authorize a personal judgment, but for all other purposes the individual summoned shall be before the courts as in other cases of personal service.CR 4.01(1)(a) also states, in relevant part, that "[t]he return receipt shall be proof of the time, place and manner of service."
Our review of the record reveals that Father was indeed served. The record contains a return receipt signed by Father, reflecting that he was served with the petition via certified mail. (R. 5, 18). Because this Court has no reason to doubt the authenticity of that service, it was valid pursuant to CR 4.04(8) and CR 4.04(1)(a).
Father seems to take issue with the amended petition. He claims he was not "served" with the amended petition, and it was not filed in the circuit court record. But it is certainly contained in the record. (R. 37-39). The Cabinet stated on the record that its motion to amend and the amended petition were provided to Father's attorney on or before a pre-trial hearing on March 20, 2013. Father offers no evidence to dispute this. Even if, as he claims, Father failed to receive timely notice of the amended petition in 2013, the adjudicatory hearing on that petition did not occur until 2015. He certainly was not prejudiced by any delay in notification of that hearing.
The family court appointed Father counsel on February 6, 2013.
Father argues that the family court lacked subject matter jurisdiction over this case. His position is baseless. Subject matter jurisdiction refers to the court's ability to hear "the kind of case assigned to that court by a statute or constitutional provision." Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012). It "does not mean 'this case' but 'this kind of case.'" Id. (citation omitted).
Pursuant to KRS 23A.100(2)(c), "a family court division of Circuit Court shall have ... jurisdiction [concerning d]ependency, neglect, and abuse proceedings[.]" See B.C. v. B.T., 182 S.W.3d 213, 216-17 (Ky. App. 2005) (discussing subject matter jurisdiction in family court). The family court in this case certainly had subject matter jurisdiction to adjudicate the neglect petition against Father.
Indeed, this Court previously determined that the family court here had subject matter jurisdiction when it denied one of Father's original actions. [D.W.] v. Honorable Eleanor Garber, Judge, Jefferson Family Court, No. 2013-CA-001165 (Ky. App. 2013).
Although Father makes vague arguments concerning "notarized affidavits," "signatures," and the family court's alleged failure to comply with local rules of practice, these arguments do not affect subject matter jurisdiction. Our Supreme Court has clearly stated that "[a] court, once vested with subject matter jurisdiction over a case, does not suddenly lose subject matter jurisdiction by misconstruing or erroneously overlooking a statute or rule governing the litigation." Daugherty, 366 S.W.3d at 467.
Next, Father argues there was insufficient evidence of neglect and that the family court abused its discretion when it determined that Father neglected Son. KRS 600.020(1) provides:
"Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child: . . .
KRS 600.020(1)(a)3-4, 8. As it pertains to Father, the family court found:3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005; [or]
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child; . . . [or]
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being[.]
Based on the credible testimony given at trial establishing (1) that [Father's] paternity of [Son] was established by default, (2) that [Father] has an extensive criminal history which resulted in his being incarcerated multiple times during the child's life, including both trial dates, (3) that [Father] did not consistently provide financial support for [Son] or provide parental care for [Son] more than one or two days every few months during [Son]'s life, the Court finds that [Son] is a neglected child, as defined by KRS 600.020[(1)(a),(3) and (4)], the responsible parent being [D.W.]The family court's findings are supported by the record and its ultimate neglect finding is sound.
Father has a substantial criminal history. This fact is not in dispute. We are mindful that "[i]ncarceration alone can never be construed as abandonment as a matter of law." J.H. v. Cabinet for Human Res., 704 S.W.2d 661, 663 (Ky. App. 1985). "However, absence, voluntary or court-imposed, may be a factor to consider in determining whether the children have been neglected[.]" Id. at 664. In this case, it is clear to this Court that "unlike the parent ... who had committed only one crime and received a two-year sentence, [Father] has indeed pursued a lifestyle incompatible with parenting." Id.; see also Cabinet for Human Res. v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995) ("Although incarceration for an isolated criminal offense may not constitute abandonment justifying termination of parental rights, incarceration is a factor to be considered[.]"). While most of Father's criminal history took place prior to Son's birth, Father continued to accumulate new felony charges since that time. It was reasonable for the family court to conclude that Father had continued to engage in a criminal lifestyle following Son's birth, which rendered Father incapable of caring for Son's immediate and ongoing needs. KRS 600.020(1)(a)3.
Furthermore, Dr. D.S-W. testified Father had provided little care for Son since his birth, and Father only visited Son, at most, one to two times per month. KRS 600.020(1)(a)4. Grandfather confirmed Father was in and out of Son's life. Son deserves more than a transient father who visits when the mood strikes. Dr. D.S-W. also testified that, except for one bag of clothes, Father had failed to provide for Son's essential material needs. KRS 600.020(1)(a)5. It was reasonable for the family court to rely upon this testimony in finding Father neglected Son. Because there was substantial evidence to support the family court's neglect finding, we see no need to disturb the family court's decision.
Father argues that he was denied the right to "confront his accusers." Because Father was permitted to cross-examine all witnesses, we presume Father is arguing that the family court abused its discretion when it denied him the ability to call Howell, the social worker who initially filed the neglect petition against Father. Although Father initially asked the family court to call Howell, his attorney elected not to do so after speaking to Father. At no point did the family court "deny" Father the right to call Howell.
We discuss D.W.'s claim of ineffective assistance of counsel as to this issue separately in this opinion.
Next, Father asserts that he has "a constitutional right to petition the Court of Appeals" and that this somehow resulted in the denial of a "speedy trial." It is true that Father could file petitions in this Court, and he did so. Having filed those petitions, he cannot now argue error as a result of the delay associated with the filing of those petitions.
Father contends that his counsel was ineffective because he failed to call Mother and Howell as witnesses. This Court has previously applied the right to effective assistance of counsel to dependency, neglect and abuse proceedings. In Z.T. v. M.T., 258 S.W.3d 31 (Ky. App. 2008), we stated:
[i]t is logical that the parent's right to counsel includes effective representation. However, it does not derive from the Sixth Amendment nor can RCr 11.42 be invoked. We hold that if counsel's errors were so serious
that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective.Id. at 36. The Z.T. Court then continued to "caution future litigants and their counsel that the burden is onerous." Id. at 37.
In this case, Father's counsel can clearly be heard on the record stating that the "damage that [Howell] can do far outweighs" her benefit to Father as a witness. It also appears from the record that Father can be heard discussing the potential to call Mother as a witness, but his counsel declined to do so on the basis she could offer no new information. "Failure to identify additional witnesses to present cumulative testimony cannot be regarded as prejudicial." Halvorsen v. Commonwealth, 258 S.W.3d 1, 5 (Ky. 2007). "In considering an ineffective assistance of counsel claim, we focus on the totality of the evidence presented . . . and assess counsel's overall performance throughout the case to determine whether the alleged acts or omissions overcome the strong presumption that counsel rendered reasonable professional assistance." Bratcher v. Commonwealth, 406 S.W.3d 865, 869 (Ky. App. 2012) (citation omitted). Because counsel's actions in this case can be classified as trial strategy, Father is not entitled to relief on this issue. Certainly, there is no error "so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied[.]" Z.T., 258 S.W.3d at 36.
Father states in his brief that he waives his attorney-client privilege. --------
Finally, Father requests that this Court exercise its "supervisory powers." We do not believe that D.W. has stated a claim in this regard.
Because sufficient evidence existed in the record to support the family court's determination that Father neglected Son, and because Father has failed to raise a cognizable claim of ineffective assistance of counsel, the family court's September 11, 2015 order finding that Father neglected Son is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: D.W. Pro se
Vandalia, Illinois D.W. Pro se
Chicago, Illinois BRIEF FOR APPELLEE: David A. Sexton
Louisville, Kentucky