Opinion
NO. 2019-CA-001569-ME
07-02-2020
Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Appellant v. Rand MARSHALL, Scott County Attorney; T.P., Natural Mother; and A.P., a Child, Appellees
BRIEF FOR APPELLANT: Tiffany L. Yahr, Lexington, Kentucky. BRIEF FOR APPELLEE RAND MARSHALL, SCOTT COUNTY ATTORNEY: Benjamin D. Willis, Georgetown, Kentucky. BRIEF FOR APPELLEE T.P.: David W. Mossbrook, Lexington, Kentucky.
BRIEF FOR APPELLANT: Tiffany L. Yahr, Lexington, Kentucky.
BRIEF FOR APPELLEE RAND MARSHALL, SCOTT COUNTY ATTORNEY: Benjamin D. Willis, Georgetown, Kentucky.
BRIEF FOR APPELLEE T.P.: David W. Mossbrook, Lexington, Kentucky.
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
OPINION
CALDWELL, JUDGE: The Commonwealth of Kentucky, Cabinet for Health and Family Services, (the Cabinet) appeals from a decision of the Scott Circuit Court, Family Court Division, granting the request of Rand Marshall, the Scott County Attorney, to informally adjust a dependency, neglect, and abuse (DNA) petition the Cabinet had filed which alleged T.P. (Mother) had subjected A.P. (Child) to unnecessary medical procedures. The Cabinet asserts the family court erred by informally adjusting the case against its wishes. However, the Cabinet voiced its opposition for the first time eight days after the case was informally adjusted, even though it knew of the informal adjustment hearing beforehand and had a representative present at that proceeding, who chose to remain silent. Under those facts, the Cabinet was estopped from belatedly voicing its objection.
For privacy purposes, we will use initials or "Mother" and "Child" when referring to the child and mother.
In October 2017, the Cabinet filed a DNA petition alleging Mother had subjected Child to unnecessary medical treatment. Mother acknowledged probable cause and Child was placed in the Cabinet's temporary custody in November 2017. Unfortunately, the proceedings became protracted. After some delays, in November 2018, the court scheduled a two-day final hearing for late May 2019.
The record does not contain any order continuing, or cancelling, that evidentiary hearing. Similarly, the record does not contain any written motion for informal adjustment filed by the Scott County Attorney. Nonetheless, the late May 2019 evidentiary hearing was not held; instead, on June 3, 2019, the court convened solely to determine whether the matter should be informally adjusted.
At the June 3, 2019, proceeding no testimony was taken. However, both the Assistant Scott County Attorney, Mother's attorneys, and Child's guardian ad litem stated their assent to an informal adjustment. The county attorney alluded to having some doubt about being able to satisfy his burden of proof if the matter were resolved on the merits after an evidentiary hearing. The only mention of whether the Cabinet agreed with the informal adjustment was when the court asked the county attorney if the decision to seek informal adjustment was due to the child being reunited with her mother and because the Cabinet was "no longer in support of the charges[,]" to which the county attorney somewhat nonresponsively replied, "That's a bit of a loaded question, Your Honor. Let's just say I had concerns over the burden of proof." The family court did not ask any follow up questions to either the county attorney or the Cabinet employee, who was present but remained silent.
An "informal adjustment" is statutorily defined in relevant part as "an agreement reached among the parties ... after a petition has been filed, which is approved by the court, that the best interest of the child would be served without formal adjudication and disposition[.]" Kentucky Revised Statute (KRS) 600.020(36). Informal adjustment of a DNA petition is expressly authorized by KRS 620.140(1)(a). As our Supreme Court explained in plain language, albeit in the context of the juvenile justice system, "when a court proceeds with an informal adjustment, an agreed-upon resolution to the case occurs rather than an adjudicated disposition." Q.M. v. Commonwealth , 459 S.W.3d 360, 368 (Ky. 2015).
Hearing no objection, the court restored custody of Child to Mother and closed the case. Eight days later, the Cabinet filed a motion to alter, amend, or vacate the order closing the case pursuant only to Kentucky Rule of Civil Procedure (CR) 59.05. The motion's core was its statement that "the Cabinet is not in agreement with the informal adjustment of the action and wishes to proceed with an adjudication." According to the terse motion, the Cabinet had sent an email to the Scott County Attorney's office on May 21, 2019, which "voiced its disagreement with any type of dismissal" and "urged the Scott County Attorney to move forward with the hearing to present evidence to the court." However, the email itself is not in the record. The motion also stated that the Cabinet's position against informal adjustment had been expressed beforehand to the social worker who attended the informal adjustment hearing.
It is unclear whether the court informally adjusted the petition or simply dismissed it. The court noted on the June 3 docket sheet that the county attorney "moves to informally adjust [the] Petition, family has been reunited and Co. Atty had concerns about evidence that would satisfy burden of proof. Restore custody to mom[.] Close case[.]" Record (R.) at 344. That same day the court issued an order which provides in its entirety that:
The Commonwealth [presumably the County Attorney, not the Cabinet] having moved the Court to Informally Adjust this matter and all parties being in agreement, the Court finds that returning the child to the custody of her mother is in the best interest of the child and therefore orders as follows:
IT IS HEREBY ORDERED that permanent custody of [A.P.] is returned to her mother, [T.P.]
R. at 345. Thus, neither the docket sheet nor the subsequent order formally states that the petition was informally adjusted. However, the outcome of this appeal is the same, regardless of whether the petition was informally adjusted or dismissed.
There was an affidavit of a Cabinet official attached to the motion. That affidavit states that the Cabinet's email to the county attorney's office was attached, but it was not.
Unsurprisingly, Mother and the county attorney each filed a response opposing the Cabinet's CR 59.05 motion. Mother asserted that she had relied upon the county attorney's office's assertion two days before the scheduled evidentiary hearing that the matter would be informally adjusted and, thus, had foregone the long-delayed hearing. Mother asserted the Cabinet's silence, and her reliance thereupon, meant it was estopped to object for the first time after the hearing.
The family court held a hearing on the Cabinet's CR 59.05 motion on September 16, 2019, at which no testimony was taken. However, neither the Cabinet nor any other party asked to present testimony. Instead, counsel for the Cabinet reiterated that the Cabinet was against the informal adjustment/dismissal, while acknowledging that the social worker who allegedly knew of that position had not expressed it to the court. Child's guardian ad litem stressed that the child loved her mother and that reopening the DNA proceedings would undoubtedly be psychologically damaging to A.P. The guardian ad litem also stated that he shared the county attorney's evidentiary concerns, which he had discussed in the presence of the social worker assigned to the case prior to the informal adjustment. The guardian ad litem also cogently noted that it is not incumbent upon other parties to a DNA petition to check with the assigned social worker's supervisor before seeking an informal adjustment.
The Cabinet laments the lack of testimony in its brief, but it does not cite to where it asked the family court for permission to present testimony, nor does it cite any authority which required the court to hear testimony before resolving the CR 59.05 motion. In fact, it is unclear what material, noncumulative testimony the Cabinet wanted to present. Thus, we find no error in denying the Cabinet's 59.05 motion without taking testimony.
The family court denied the motion via notations on a docket sheet. The court noted that the guardian ad litem , county attorney, Mother, and the "ongoing caseworker" had "agreed to Inf. [Informal] Adjustment due to child having been returned to mother, case plan complete[d], and Co. [County] Atty's concern regarding sufficiency of evidence to support of [sic] finding of neglect or abuse." The court also held that T.P. "was entitled to rely on representation of agreement for cancellation of trial" and so vacating the informal adjustment "would be inequitable and prejudicial to the family, and contrary to the best interest of the child." The Cabinet then filed this appeal.
The Cabinet asks us to vacate the family court's order denying the Cabinet's CR 59.05 motion. However, as we recently explained, orders denying CR 59.05 motions are inherently interlocutory and, thus, "there is no appeal from the denial of a CR 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion." Ford v. Ford , 578 S.W.3d 356, 366 (Ky. App. 2019). Consequently, "even if we did believe the trial court erred in some fashion in connection with its denial of CR 59.05 relief, we could not provide a remedy for the simple reason that we do not have jurisdiction over the trial court's denial of a CR 59.05 motion." Id. at 365. Our substantive review thus is limited to the propriety of the orders informally adjusting the DNA petition, not of the denial of CR 59.05 relief. Id. at 366.
We have jurisdiction to consider an order denying post-judgment relief under CR 60.02, Ford , 578 S.W.3d at 366 n.13, but the Cabinet did not ask for CR 60.02 relief.
There is no reversible error readily apparent in the order, or docket notation, informally adjusting the petition. Those documents recite that all parties agreed to that resolution and the court believed that to be in Child's best interest.
The Cabinet contends it is a party to a DNA petition which it filed. We agree. See, e.g., M.M. v. Allen County Attorney's Office , 590 S.W.3d 836 (Ky. App. 2019) (dismissing an appeal for failure to name an indispensable party to a DNA action—the Cabinet, who filed the petition); Commonwealth, Cabinet for Health and Family Services v. Byer , 173 S.W.3d 247, 249 (Ky. App. 2005) (explaining that the Cabinet is the plaintiff when it files a DNA petition, not merely a nominal party). Bootstrapping on that argument, the Cabinet asserts that its consent was required for the DNA petition to be informally adjusted because such action requires the agreement of all parties. Indeed, there is precedent generally holding that an informal adjustment is an "agreed-upon resolution" contingent upon the consent of the parties. See, e.g., Q.M. , 459 S.W.3d at 368. However, that does not entitle the Cabinet to relief here.
Q.M. discusses informal adjustments in the context of the juvenile justice system and so stresses that the child and the county attorney must agree before an informal adjustment is proper. The Cabinet has not cited, nor have we independently located, any published cases holding that the Cabinet must agree before a DNA petition it filed is resolved via informal adjustment. Logically, as a general proposition, all relevant parties must agree to effectuate an "agreed-upon resolution" of any type of case. However, because it is not absolutely necessary to the resolution of the limited issues before us, we express no binding opinion regarding whether the informal adjustment of a DNA petition is always contingent upon the Cabinet's approval. Instead, we will merely assume, arguendo, that the Cabinet was entitled to voice its disapproval before the petition was informally adjusted.
The Cabinet does not contest the guardian ad litem ’s statement at the CR 59.05 hearing that the Cabinet's designated social worker knew beforehand that the county attorney and guardian ad litem wanted to informally adjust the petition. It is also uncontested that the Cabinet had a representative present at the informal adjustment hearing (which buttresses the statement that the Cabinet knew beforehand that such a hearing would occur). Thus, the Cabinet's right to be a participant in the informal adjustment hearing was satisfied. However, the Cabinet failed to take advantage of its attendance since the social worker, for whatever reason, remained mute.
Better practice would have been for the family court to have affirmatively obtained on the record the agreement of all parties to the informal adjustment, including the Cabinet.
In sum, an officer of the Cabinet knew of the informal adjustment hearing beforehand, yet apparently did not tell the county attorney that the Cabinet objected to the informal adjustment and remained silent at the hearing. The pre-hearing silence of the Cabinet led all parties to believe, reasonably, there was no opposition to the informal adjustment and, in justifiable reliance thereon, they released their witnesses and forewent the long-pending final evidentiary hearing. The silence of the Cabinet at the hearing led the court to conclude, reasonably, that the Cabinet did not oppose the informal adjustment.
It is the Cabinet's prerogative as to what representative(s) to send to court proceedings and it is the Cabinet's duty to raise any objections it has to a planned course of conduct in DNA proceedings. So, regardless of whether the social worker here was not adequately informed of the Cabinet's purported disagreement with the informal adjustment before the hearing or whether she chose to not express the Cabinet's position, the courts of this Commonwealth, and the parties to DNA petitions, are entitled to rely upon the statements, or silence, of the Cabinet's representatives without cross-checking with Cabinet supervisory officials.
We agree with the core position of Mother and the family court that the Cabinet is estopped from asserting its objection to the informal adjustment for the first time eight days after a hearing of which it had prior notice and a representative present. The ancient, but still viable, principle of estoppel by silence holds that "a party may not keep silent when he ought to speak and allow other parties to be misled to their prejudice by his silence.... It is often the case that a man may be denied a right which he may have asserted because of his neglect to do something which he should have done at a proper time." Skaggs v. Ferguson , 224 Ky. 775, 7 S.W.2d 213, 216 (1928) (citations omitted). See also Jones v. Kentucky Glycerine Co. , 226 Ky. 676, 11 S.W.2d 713, 716 (1928) (holding that "[o]ne may estop himself, not only by express words or by active conduct, but likewise by silence when it is his duty to speak").
The prejudice here to Mother and Child if this case is reopened is plain. The long-delayed hearing did not occur, Child has been returned to Mother's custody, and it would unnecessarily inject uncertainty and acute mental stress on Mother and Child alike if the DNA petition were resuscitated.
In sum, the Cabinet had an opportunity to raise timely any objections it had to an informal adjustment, but it failed to do so. In reliance upon the Cabinet's silence, both the court and the parties agreed to resolve the DNA petition amicably. We find no error in the decision to informally adjust the petition and conclude the Cabinet is estopped by silence from raising its belated objections.
Because we hold the Cabinet is estopped from belatedly raising its objections to the informal adjustment, we need not address the family court's alternate rationale that the county attorney alone has the sole authority to prosecute DNA petitions and, thus, the Cabinet is without recourse if the county attorney declines to prosecute a petition, so the DNA petition could not be reopened as there would be no one to prosecute it.
For the foregoing reasons, the Scott Circuit Court is affirmed.
ALL CONCUR.