Opinion
NO. 2021-CA-1107-ME NO. 2021-CA-1109-ME
03-25-2022
E.L.T., Appellant v. Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES; C.M.P.W.; and S.G.T., a Child, Appellees E.L.T., Appellant v. Commonwealth of Kentucky, Cabinet for Health and Family Services; C.M.P.W.; and S.E.T., a Child, Appellees
BRIEFS FOR APPELLANT: Monica Shahayda, Shepherdsville, Kentucky. BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp, Covington, Kentucky.
BRIEFS FOR APPELLANT: Monica Shahayda, Shepherdsville, Kentucky.
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp, Covington, Kentucky.
BEFORE: COMBS, DIXON, AND L. THOMPSON, JUDGES.
OPINION
THOMPSON, L., JUDGE:
E.L.T. (hereinafter referred to as Father) appeals from orders of the Jefferson Circuit Court, Family Division, terminating his parental rights to his two minor children, S.G.T. (hereinafter referred to as Child 1) and S.E.T. (hereinafter referred to as Child 2). Finding no error, we affirm.
We will not identify the parties by name in this case so as to protect the privacy of the children involved.
C.M.P.W. is the natural mother of the children. She and Father were never married. Her parental rights were also terminated, but she did not bring an appeal.
FACTS AND PROCEDURAL HISTORY
Child 1 was born on February 25, 2018, and Child 2 was born on August 29, 2016. In June of 2018, the Cabinet received a report alleging medical neglect of Child 1. Child 1 was born with a number of serious medical issues. Child 1 was not receiving proper nutrition and was failing to thrive. In-home services were put into place, but they were unsuccessful. In October of 2018, the Cabinet filed a petition alleging medical neglect of Child 1. The Cabinet also alleged that the neglect of Child 1 put Child 2 at risk. The Cabinet was granted temporary custody of Child 1 and she was placed in a foster home. Child 2 remained in the custody of the parents. Child 2 remained in the care of his parents until April of 2019. At that time, the Cabinet brought a petition alleging the neglect of Child 2. The Cabinet alleged that Child 2 was not being properly supervised, was dirty and unkempt, and had some suspicious bruising on his body. The Cabinet was granted temporary custody of Child 2 and he was placed in the same foster home as Child 1.
Upon Child 1's removal from the home, the parents were ordered to undergo multiple assessments and complete multiple parenting programs. The same requirements were put in place upon the removal of Child 2. These assessments and programs were also incorporated into the Cabinet's case plans for the parents. Father ultimately stipulated to the neglect of Child 1 and was found to have neglected Child 2. Father completed multiple parts of his case plan, but not all. In May of 2020, the Cabinet changed the goal of the case from reunification to adoption. On July 30, 2020, the Cabinet filed the underlying petitions for the involuntary termination of parental rights to the children.
A termination of parental rights hearing was held on May 7, 2021. On July 19, 2021, 73 days following the hearing, counsel for Father moved to dismiss the action. Counsel argued that, pursuant to Kentucky Revised Statutes (KRS) 625.090(6), the court was required to enter an order either dismissing or granting the termination petition within thirty days after the hearing. Counsel argued that since the court had not yet entered an order, the action should be dismissed for failing to adhere to the time requirement in KRS 625.090(6).
On July 21, 2021, the trial court entered orders terminating the parental rights of the parents as to both children. Father filed a motion to vacate the judgment and reiterated the KRS 625.090(6) time limit issue. On August 25, 2021, the court denied the motion to vacate. This appeal followed.
ANALYSIS
Father's first argument on appeal is that the trial court erred in denying his motion to dismiss and his motion to vacate. He argues that because the trial court issued the termination orders over thirty days after the termination hearing, the court violated KRS 625.090(6) and the case should have been dismissed. KRS 625.090 is the statute detailing the involuntary termination of parental rights. KRS 625.090(6) states:
Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
Father claims that because the statute uses the word "shall," the thirty-day timeframe is mandatory. As the proper interpretation of a statute is purely a legal issue, our review is de novo. Commonwealth v. Long , 118 S.W.3d 178, 181 (Ky. App. 2003) (citations omitted).
Father cites to K.M.J. v. Cabinet for Health and Family Services , 503 S.W.3d 193, 194 (Ky. App. 2016), in support of his position. In K.M.J. , the trial court held a termination of parental rights hearing on August 24, 2014. The trial court timely entered an order terminating the parental rights of a father as to his children, but passed the issue in regards to the mother. The court held that the Cabinet did not meet all the statutory requirements to terminate the mother's parental rights. Instead of dismissing the termination petition as to the mother, the court ordered that the case would remain active, that the mother would be given more time to complete a case plan, and that another hearing would be forthcoming. Another hearing was held in August of 2015, where more evidence was introduced. The court ultimately terminated the mother's parental rights. Id. at 196-97.
The mother then appealed and argued that the trial court violated KRS 625.090(6) by not entering an order terminating her rights for over a year after the original termination hearing. A panel of this Court held that the trial court was required to either dismiss the petition or terminate the mother's parental rights within thirty days after the original hearing. The Court also held that the trial court had no authority to leave the case open for an additional year in order to allow additional evidence to be submitted. Id. at 197.
We believe K.M.J. is distinguishable from the case at hand. In K.M.J. , the Court held that the trial court "shall" either dismiss or grant the petition to terminate parental rights after the hearing, but it could not leave the case open for the taking of additional evidence. The K.M.J. Court did not focus on the thirty-day time limit, but what the trial court was authorized to do after the termination hearing. In the case at hand, the trial court did not leave the case open for the taking of additional evidence, but was simply late in entering an order.
KRS 446.010(39) states that when examining terms found in statutes, "shall" means "mandatory"; however, this is not always the case. "[T]he use of the word ‘shall’ with reference to some requirements ... is usually indicative that it is mandatory, but it will not be so regarded if the legislative intention appears otherwise." Skaggs v. Fyffe , 266 Ky. 337, 340, 98 S.W.2d 884, 886 (1936).
In order to determine whether strict compliance or substantial compliance is sufficient to satisfy a statutory provision, it first must be determined whether the applicable provision is mandatory or directory. This determination is vital because "[a] proceeding not following a mandatory provision of a statute is rendered illegal and void, while an omission to observe or failure to conform to a directory provision is not." In considering whether the provision is mandatory or directory, we depend "not on form, but on the legislative intent, which is to be ascertained by interpretation from consideration of the entire act, its nature and object, and the consequence of construction one way or the other." In other words, "if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished, without affecting the real merits of the case, then the statute is to be regarded as directory merely."
Knox County v. Hammons , 129 S.W.3d 839, 842-43 (Ky. 2004) (citations omitted). If a statutory provision is directory, "substantial compliance may satisfy its provisions." Id. at 843. Substantial compliance occurs when the purpose of a statute is accomplished and no harm results. Webster County v. Vaughn , 365 S.W.2d 109, 111 (Ky. 1962), as modified on denial of reh'g (Mar. 15, 1963).
Here, while the statute may use the term "shall," we believe that the thirty-day timeframe is not mandatory. We believe the legislature included a thirty-day timeframe into this statute in order to effectuate permanency for children and to expedite termination of parental rights cases. The merits of the case were not affected by delaying the orders being appealed and Father has pointed to no prejudice he suffered or violations of his due process rights. This Court has a number of unpublished cases that hold as we do now. J.A. v. Cabinet for Health and Family Services , Nos. 2017-CA-000586-ME, 2017-CA-000587-ME, 2017-CA-000588-ME, 2017-CA-000589-ME, and 2017-CA-000590-ME, 2018 WL 3954289, at *2 (Ky. App. Aug. 17, 2018) ; J.T.B., Sr. v. Cabinet for Health and Family Services , Nos. 2013-CA-001395-ME and 2013-CA-001488-ME, 2014 WL 4177422, at *3 (Ky. App. Aug. 22, 2014) ; M.L.J. v. Cabinet for Health and Family Services , Nos. 2013-CA-000295-ME, 2013-CA-000296-ME, 2013-CA-000300-ME, and 2013-CA-000301-ME, 2014 WL 97741, at *20 (Ky. App. Jan. 10, 2014).
In conclusion, we believe any tardiness in entering the termination of parental rights orders was harmless error. Kentucky Rules of Civil Procedure (CR) 61.01 states:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties.
The parties suffered no prejudice due to the delay in entering the orders and Father's substantial rights were not violated.
Father's next argument on appeal is that the trial court erred in admitting the juvenile court files into evidence. During the testimony of the social worker assigned to this case, the Cabinet sought to introduce into evidence the juvenile court dependency, neglect, and abuse records. Counsel for Father objected due to hearsay statements within the records. The court allowed the records into evidence, but stated that she would focus on reviewing the juvenile court orders and findings and would not consider hearsay or other inadmissible evidence contained in the juvenile record.
First, the juvenile court record is admissible in this case because that record is a self-authenticating public document pursuant to Kentucky Rules of Evidence (KRE) 901(b)(7), KRE 902(4), and KRE 1005. T.R.W. v. Cabinet for Health and Family Services , 599 S.W.3d 455, 464 (Ky. App. 2019).
As Father's counsel pointed out, the trial court must still be cognizant of any hearsay statements contained in that record. The trial judge agreed with counsel and indicated she would not rely on any such statements. Father argues, however, that some findings by the trial court indicate that the court relied on inappropriate evidence contained in the juvenile case file. The court found that the children had been abused or neglected because they were subject to scenes of domestic violence in the home, were subject to inappropriate discipline, and that their "material, emotional, and healthcare needs" were being neglected. Father points out that there was no evidence during the termination hearing that the children were exposed to domestic violence or were subject to inappropriate discipline. Father speculates that this information must have come from hearsay contained in the juvenile case file and was inadmissible.
We have reviewed the juvenile case file contained in the record. We could find no court orders or written findings of the court indicating that the children were exposed to domestic violence or were being inappropriately disciplined; however, we do not believe this affects the outcome of this case. If we were to ignore these two findings of the court, there was still plenty of evidence that the children were being abused or neglected. Child 1 was not being appropriately fed and was failing to thrive in the care of her parents. There was also evidence that Child 2 had become medically neglected and was also failing to thrive. When Child 2 entered foster care, he too was diagnosed as being behind in his development. Evidence also indicated that the parents were not maintaining appropriate care of Child 2's hygiene.
In summary, the juvenile court record was properly admitted into the record in this case and there was substantial evidence adduced during the termination hearing that the children in this case had been abused or neglected even without the juvenile court records.
Father's next argument on appeal is that the trial court relied on inadmissible hearsay. During the termination hearing, the social worker assigned to the children's case testified that Father did not complete a therapy and protective parenting program, which was part of his case plan. The social worker was permitted to read from the discharge summary from said program indicating that Father did not complete the program and only attended three sessions. Father argues that reading from said discharge summary was hearsay. We disagree.
This discharge summary was a self-authenticating business record, KRE 902(11), was a certified copy of a medical record, KRS 422.305, and was an exception to the hearsay rule because it was a record of a regularly conducted business activity. KRE 803(6). Furthermore, Father testified that he did not complete this program. We find no error.
Father's final argument on appeal is that the trial court erred in finding that the Cabinet met its burden in proving the KRS 625.090(2) elements. In order for a court to terminate a parent's parental rights, the court must find one of the following elements is present:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect;
(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; or
(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.
The trial court found that KRS 625.090(2)(e), (g), and (j) were applicable in this case. Father takes issue with the court's findings regarding KRS 625.090(2)(e) and (g). He does not contest the court's conclusion that KRS 625.090(2)(j) is also applicable. The trial court only need find that one of the KRS 625.090(2) factors applies. Since the KRS 625.090(2)(j) finding is uncontested, Father's argument regarding KRS 625.090(2) is without merit. In addition, the evidence in the record is unequivocal that both children were in the custody of the Cabinet for at least 15 consecutive months prior to the filing of the petition to terminate parental rights.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.