Opinion
NO. 2012-CA-000936-ME
01-18-2013
S.J.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND J.Y. APPELLEE
BRIEF FOR APPELLANT: Ryan L. Toombs Mayfield, Kentucky BRIEF FOR APPELLEE J.Y.: Kevin D. Bishop Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 10-AD-00025
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE: S.J.M. (hereinafter "Samantha") appeals from the Graves Circuit Court judgment and order terminating her parental rights to her two minor children, J.L.Y. ("James") and J.P. ("Jeffrey") For the following reasons, we affirm.
For readability of this opinion, we will adopt pseudonyms for the parties and their children.
Samantha and J.Y. ("John") have two children together: James, born in September 2006, and Jeffrey, born in September 2009. The parties agreed to joint custody designating Samantha as the primary residential parent of the children. Between July 2008 and October 2009, Samantha received counseling services from Sue Peek-Fisk and Dr. Patrick Burba. In July 2009, Samantha became acquainted with Dianne Anderson and Tannette Weitlauf, who ran a ministry in Benton, Kentucky. Dianne and Tannette began helping Samantha, providing her with a place to live in Benton, groceries, a cellular phone and needed supplies for the children. On December 24, 2009, Samantha left Benton with her children and moved to California.
Thereafter, a warrant for felony custodial interference was issued against Samantha in Graves Circuit Court. She was detained in California, and in June 2010, John retrieved his two children from California and brought them back to Kentucky. John was granted sole custody of the children on September 3, 2010, in Graves Circuit Court. At that time, Samantha had been indicted by the Graves Circuit court grand jury on the felony charge of custodial interference, to which she later pled guilty. On December 10, 2010, John instituted the underlying proceeding seeking a termination of Samantha's parental rights to James and Jeffrey. After a final hearing on April 24, 2012, in which Samantha participated telephonically from California, the trial court terminated Samantha's parental rights, finding that the children were "neglected" within the meaning of KRS 600.020(1) and that Samantha abandoned the children for a period of not less than 90 days, and for a period of not less than six months continuously failed to provide essential parental care for the children. This appeal followed.
Kentucky Revised Statutes.
As an initial procedural matter, we note that neither of the minor children was named as parties in the body of the notice of appeal, though each was indicated in the caption as the party in regard of whom the appeal was filed. Appeals of termination orders failing to name the children in the body of the notice of appeal have routinely been dismissed since the children are considered indispensable parties to the appeal. See R.L.W. v. Cabinet for Human Res., 756 S.W.2d 148, 149 (Ky. App. 1988). This rule was distinguished by R.C.R. v. Commonwealth of Kentucky, Cabinet for Human Res., 988 S.W.2d 36, 40 (Ky. App. 1998), in which this court denied a motion to dismiss for failure to name the children in the body of the notice appeal on the basis that naming the children in the caption of the notice of appeal as a party in interest was sufficient to confer this court with jurisdiction over the children. In allowing the appeal to proceed to the merits, we noted in that case that the children's guardian ad litem ("GAL") was served with the relevant pleadings, and the parties were provided with fair notice of the appeal. Id. This reasoning was followed in A.M.W. v. Cabinet for Health & Family Servs., 356 S.W.3d 134, 135 (Ky. App. 2011), in which this court granted a motion to dismiss despite the children being named in the style of the notice of appeal because the GAL was not timely provided copies of the notice of appeal. Here, the GAL and Samantha were each served a copy of the notice of appeal; no argument is made otherwise. This fact, along with the inclusion of the children in the caption of the notice of appeal, sufficiently confers upon this court jurisdiction over the children. Therefore, we move to the merits of the appeal.
Samantha first argues that the trial court abused its discretion by denying her motion for a continuance of the final hearing. We disagree.
We review a trial court's denial of a motion for continuance for an abuse of discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (citing Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky. 1957)). In Snodgrass v. Commonwealth, 814 S.W.2d 579 (Ky. 1991), the Kentucky Supreme Court set forth the following factors to consider when reviewing the denial of a motion for a continuance:
1) length of delay;Id. at 581, overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). These factors are applicable to motions for a continuance in the civil context as well. Guffey, 323 S.W.3d at 371-72.
2) previous continuances;
3) inconvenience to litigants, witnesses, counsel and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice.
Samantha argues that because she was unable to attend the hearing due to health issues, the details of which were not made clear, and only participated telephonically, her motion for a continuance should have been granted so as to provide her the opportunity to appear in person. However, Samantha failed to provide the trial court with any time frame as to when she could have been present at the hearing, arguing in her brief she could have traveled to Kentucky once cleared to do so by her doctor. Samantha further argues that she was unable to meet with her attorney in person or locate potential witnesses, but fails to identify any prejudice occurring as a result. She does not point to any additional witnesses or evidence that would have been produced had her motion for continuance been granted. Instead, the record shows that Samantha had sufficient time to discuss the case with her attorney prior to participating telephonically, and was given ample time to privately converse with her attorney during breaks of the hearing. As a result, we find the trial court did not abuse its discretion by denying Samantha's motion for a continuance.
Samantha also argues the trial court violated her due process rights by granting sole custody to John following a hearing during which she was not represented by counsel. Samantha failed to appeal the custody order entered September 3, 2010, within 30 days as required by Kentucky Rules of Civil Procedure 73.02, and thus any claim of error regarding that order is waived.
Next, Samantha contends that the evidence presented at the final hearing did not support the trial court's order terminating her parental rights. We disagree.
We review a trial court's decision to terminate parental rights under the clearly erroneous standard of review set forth in CR 52.01. M.E.C. v. Commonwealth of Kentucky, Cabinet for Health &Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008). A trial court is in the best position to assess the credibility and weight of the evidence and its assessments are afforded due regard. CR 52.01. Our review is limited to determining whether the trial court's findings were supported by substantial evidence on the record. M.E.C., 254 S.W.3d at 850 (citation omitted).
Kentucky Rules of Civil Procedure.
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We are compelled to note that the termination of parental rights "encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory standards are clearly met." M.E.C., 254 S.W.3d at 850. Thus, while states have a compelling interest to protect children, "intervention into the family with the result of permanently severing the relationship between parent and child must be done with the utmost caution." Id. (citation omitted). With this in mind, we turn to the issue of whether the statutory standard was met.
KRS 625.090 sets forth the grounds for involuntary termination of parental rights. Relevant to the case at hand, a trial court has authority to terminate parental rights if it finds by clear and convincing evidence that the children are "abused or neglected" as defined by KRS 600.020(1) and that termination would be in the best interests of the children. KRS 625.090(1)(a)(2) and (1)(b). KRS 600.020(1)(a) defines an "abused or neglected" child as one whose parent:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;A court may not terminate parental rights unless it finds the existence of certain grounds set forth in KRS 625.090(2). Among those grounds are:
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
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;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
7. Abandons or exploits the child;
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. . . .
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;KRS 625.090(2)(a), (e) and (g).
. . . .
(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; [or]
. . . .
(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[.]
In the case at bar, substantial evidence exists to support the trial court's determination. Tannette described the home in which Samantha resided with the children in Kentucky as being in disarray, filled with mice, bugs and flies, the temperature being very hot and looking like a home from a television show about hoarders. Tannette would often take James to preschool in the mornings and testified that on many occasions, upon arriving, the child would not be awake or dressed. She stated that on some mornings, Jeffrey would be awake and crying, but Samantha would still be asleep. In December 2009, Samantha moved with the children to California, cutting off contact with Tannette, and providing no notice to the courts or John of her move. John testified at the final hearing that since June 2010, the children have not received any form of support from Samantha, apart from two bags of their belongings delivered from California. The record reveals that Samantha has provided no financial or emotional support to the children since June 2010. Samantha testified and disputed Tannette's testimony. Samantha testified that she has attempted to establish visitation with her children, but has been denied access. The GAL appointed for the children recommended that Samantha's parental rights be terminated on the basis that Samantha constitutes a danger to the children.
Based on this evidence and in consideration of the statutory guidelines, the trial court found that Samantha abdicated the majority of her parental responsibilities to Tannette and Diane as early as July 2009 and that the children are "neglected" within the meaning of KRS 200.020(1). The court further determined that since the children returned to Kentucky, Samantha has abandoned her parental responsibilities and failed to provide any care, food, clothing, shelter, or educational or medical needs to the children. The trial court found the termination of Samantha's parental rights to be in the best interests of the children. Such conclusions were consistent with both Tannette's and John's testimony and, thus, were based upon substantial evidence. As a result, the trial court did not commit clear error by terminating Samantha's parental rights.
The judgment and order of the Graves Circuit Court is affirmed.
ACREE, CHIEF JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Ryan L. Toombs
Mayfield, Kentucky
BRIEF FOR APPELLEE J.Y.: Kevin D. Bishop
Mayfield, Kentucky