Opinion
NO. 2020-CA-1387-ME NO. 2020-CA-1392-ME
04-02-2021
L.G.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.S.M., A CHILD APPELLEES AND L.G.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND K.I.M., A CHILD APPELLEES
BRIEF FOR APPELLANT: Valerie L. Shannon LaGrange, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 19-AD-00004 APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 19-AD-00005 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. GOODWINE, JUDGE: L.G.M. ("Mother") appeals the September 29, 2020 judgments of the Trimble Circuit Court, Family Division, terminating her parental rights to her minor children, M.S.M. and K.I.M. After careful review, we affirm.
BACKGROUND
The Cabinet has a history of involvement with this family dating back to at least 2007. In December 2018, the Cabinet for Health and Family Services filed a dependency, neglect, and abuse ("DNA") petition for removal of Mother's children from her custody because of substance abuse and domestic abuse. At adjudication, Mother stipulated to neglect, and the family court granted the Cabinet custody of the children. The court adopted the Cabinet's recommendations at disposition. Mother was required, in part, to complete protective parenting classes, domestic violence counseling, and substance abuse treatment.
Based on the Cabinet's recommendation, the family court waived reasonable efforts in June 2019. In September 2019, Mother entered an inpatient substance abuse treatment program at Freedom House. Mother met with her case worker once while she was in residential treatment. In October 2019, the family court held a hearing on the permanency goal for the children. Mother was not present at the hearing but, as noted by the court, her appointed counsel was in attendance. At that time, the family court adopted the Cabinet's recommendations and changed the permanency goal for the children to adoption. Record ("R.") at 95.
Throughout her brief, Mother refers to her treatment at Freedom House as "court-ordered." This order originated in Trimble District Court, not the family court.
Citations are to the record in Case No. 19-AD-00004. Records in the two cases are nearly identical. The two cases were heard together by the family court, and the appeals have been consolidated by order of this Court.
Mother timely filed a motion under CR 59.05 to vacate the goal change order arguing her due process rights were violated because she was not given adequate notice of the permanency hearing. The family court did not send notice to Freedom House. Mother argued she had made progress on her case plan and was entitled to present evidence to the family court. The court denied Mother's motion, finding "[Mother] failed to keep this [c]ourt informed of her whereabouts." R. at 109. However, the family court scheduled a separate hearing for Mother to present evidence of her progress.
Kentucky Rules of Civil Procedure.
On January 13, 2020, Mother presented evidence of her progress on her case plan. Thereafter, the family court found, "[Mother] presented her proof of the programs she has been involved in along with her employment. She has not completed a drug rehab program, having recently left [Freedom House] with 30 days remaining inpatient to begin a 52 week outpatient program at New Beginnings." R. at 110. The family court did not grant visitation or alter the permanency goal from adoption based on the evidence presented by Mother.
It is unclear what evidence Mother presented to the family court at the January 2020 hearing because the video recording and exhibits were not made part of the record on appeal. Records from underlying DNA actions are not automatically made part of the record in subsequent termination proceedings. The appellant is responsible for "ensuring the appellate court received a complete record." Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016) (citation omitted).
The Cabinet filed petitions to involuntarily terminate Mother's parental rights to both children on October 23, 2019. At trial, Mother testified she did not receive notice of the permanency hearing at Freedom House. She again presented evidence of her progress in substance abuse treatment and domestic violence counseling. The Cabinet case worker admitted to meeting with Mother at Freedom House prior to the goal change. Thereafter, the Cabinet and Mother each tendered to the court proposed findings of fact and conclusions of law.
The petitions were also filed against the children's natural father. He voluntarily consented to termination of his parental rights and is not involved in these appeals. R. at 71-75.
The family court entered judgments terminating Mother's parental rights on September 29, 2020. Regarding Mother's alleged lack of notice of the permanency hearing, the family court found the following:
[Mother] blames the Cabinet for failing to notify her of the goal-change hearing in October 2019. However, [Mother] failed to notify the [c]ourt she was then residing
at the Freedom House. It was [Mother's] responsibility to ensure the [c]ourt had her current address. Furthermore, the [c]ourt gave [Mother] multiple opportunities to present evidence as to her participation in services, both at the hearing to alter, amend, or vacate the goal change order in November 2019 and at a hearing in January 2020. [Mother's] voice was heard.R. at 201-02. The court further found, based upon the evidence presented at trial, that Mother "failed to make sufficient progress toward identified goals as set forth in her court-approved case plans to allow for the safe return of the children to her care." R. at 203. These appeals followed.
STANDARD OF REVIEW
It is a fundamental principle of our jurisprudence that the minimum requirements of due process require adequate notice and a meaningful opportunity to be heard. See Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). The importance of such due process rights is underscored in any action which seeks to sever the natural bond or relationship between a parent and a child. When such proceedings are begun, the need for fundamental fairness becomes paramount. . . . [W]hen a state or agency of the state attempts to sever familial bonds, it must provide the parents with fundamentally fair procedures.P.J.H. v. Cabinet for Human Resources, 743 S.W.2d 852, 853 (Ky. App. 1987) (internal quotation marks and citation omitted). We review questions of law de novo. See Commonwealth v. S.H., 476 S.W.3d 254, 258 (Ky. 2015).
ANALYSIS
On appeal, Mother argues she is entitled to a new trial in the termination actions because her due process rights were violated when she was not given adequate notice of the permanency hearing in the underlying DNA actions. The Cabinet claims Mother did not preserve her argument for this Court's review and, if preserved, an alleged error in the permanency hearing cannot be raised in a subsequent appeal from a judgment terminating parental rights.
First, Mother preserved her argument in the termination actions. CR 76.12(4)(c)(v) requires briefs to include "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Contrary to the Cabinet's assertion, Mother's brief contains a sufficient preservation statement. Furthermore, in addition to timely filing her CR 59.05 motion in the DNA cases, Mother addressed the pending CR 59.05 motion in her response to the termination petitions and raised the alleged due process violation through the testimony and evidence she presented at the termination trial. She also addressed the issue in her proposed findings of fact and conclusions of law. On this basis, Mother adequately preserved her argument for appeal.
Next, Mother properly raised the alleged due process violation at the permanency hearing in these appeals. An order changing the goal in a DNA case does not "permanently adjudicate" a parent's rights and, as such, is not a final and appealable order. J.H. v. Cabinet for Health and Family Services, No. 2009-CA-000629-ME, 2010 WL 1628494, *1 (Ky. App. Apr. 23, 2010); CR 54.01. However, this does not permanently bar parents from alleging due process errors which occurred during the permanency hearing. Previously, in an appeal from a judgment terminating the appellants' parental rights, this Court held that a goal change in the underlying DNA case implicates the parents' due process rights. R.V. v. Commonwealth, 242 S.W.3d 669, 672-73 (Ky. App. 2007). Therefore, Mother may now allege a violation of her right to receive adequate notice of the permanency hearing.
We will now consider the merits of Mother's claim. Permanency hearings must comply with the requirements of KRS 610.125. The family court, not the Cabinet, is responsible for setting a time for the hearing and providing notice to the child's parents, counsel for the child, counsel for the parents, the Cabinet, and other relevant individuals. KRS 610.125(3). "[O]ne of the fundamental essentials of any judicial proceeding is that notice of a hearing or trial must be given or received by the parties[.]" P.J.H., 743 S.W.2d at 854 (citation omitted). Notice by the court should be made in the manner provided in CR 5. See CR 77.04(1). CR 5.02(1) requires service be made on a party "at the last known address of such person[,]" and "[s]ervice is complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served."
Kentucky Revised Statutes.
It is unclear from the record to what address the court's notice to Mother was sent, but the Cabinet does not contest Mother's assertion that she did not receive notice at Freedom House. Mother admits she did not inform the family court of her change of address to Freedom House prior to the permanency hearing. However, after the court proceeded with the hearing in Mother's absence, she timely moved to vacate the goal change order alleging she did not receive notice of the hearing. We must conclude that, upon Mother's motion, the family court learned its notice did not reach her. Therefore, the family court gave Mother inadequate notice of the permanency hearing and erred in denying her CR 59.05 motion.
However, in her CR 59.05 motion and on appeal, Mother solely argues, had she been present at the permanency hearing, she would have presented the family court with evidence of her progress on her case plan. The court gave Mother an opportunity to present such evidence at the January 2020 hearing. Mother does not identify any evidence she was not given the opportunity to present at the January 2020 hearing. Although the family court found Mother's progress insufficient and did not alter the children's permanency goal, because Mother was given the opportunity to be heard, we cannot find grounds for a new trial.
Mother attributes her withdrawal from inpatient treatment to the family court's failure to notify her of the permanency hearing. Regardless of the due process implications of the family court's inadequate notice of the hearing, the court is not responsible for Mother's independent choice to leave Freedom House. --------
Furthermore, Mother argues a change in the permanency goal to adoption "triggers" the Cabinet's initiation of termination proceedings. However, there is no requirement that the Cabinet amend its permanency goal prior to filing a termination of parental rights petition. Commonwealth v. C.V., 192 S.W.3d 703, 704 (Ky. App. 2006). Beyond stating that the petitions to terminate her parental rights were filed after the goal change in the DNA cases, Mother fails to articulate any impact the permanency hearing had on the termination proceedings. Regardless of the sequence of events, the issue of Mother's failure to complete her case plan was fully litigated again during the termination trial. The family court did not rely on the permanency hearing but, instead, found sufficient grounds for termination of Mother's parental rights from the evidence presented at trial.
Accordingly, any due process concerns were adequately addressed by the January 2020 hearing as well as the manner in which the family court reached its decision to terminate Mother's parental rights.
CONCLUSION
On this basis, the Trimble Circuit Court, Family Division's judgments terminating Mother's parental rights are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Valerie L. Shannon
LaGrange, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky