Opinion
NO. 2015-CA-001909-ME NO. 2015-CA-001910-ME NO. 2015-CA-001911-ME
02-03-2017
A. M. S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND AS NEXT FRIEND OF D.E.H., A CHILD APPELLEE AND A. M. S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND AS NEXT FRIEND OF J.U.H., A CHILD APPELLEE AND A. M. S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND AS NEXT FRIEND OF M.D.H., A CHILD APPELLEE
BRIEF FOR APPELLANT: Nancy E. S. Calloway Elkton, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 14-AD-00002 APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 14-AD-00003 APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 14-AD-00004 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND NICKELL, JUDGES. COMBS, JUDGE: This is a consolidated appeal involving a termination of parental rights. The trial court entered orders voluntarily terminating appellant's parental rights to her three minor children. She filed a motion pursuant to CR 60.02 seeking to set aside those orders, which the trial court denied. It is from that denial that appellant has filed this appeal. After our review, we affirm.
Kentucky Rules of Civil Procedure.
On September 15, 2014, Appellee, Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet) filed Petitions for Involuntary Termination of Parental Rights in Todd Circuit Court against Appellant, A.M.S. (Mother), and J.W.H. (Father), the natural parents of three minor children: D.E.H., a female born in 2009; J.U.H., a male born in 2002; and M.D.H., a male born in 2005. The Petitions reflect that on January 17, 2012, the Cabinet had filed Juvenile Dependency, Neglect and Abuse Petitions. On March 19, 2012, each of the children was found to be a neglected child by Todd District Court. On April 16, 2012, the children were committed to the Cabinet and were placed in foster care. On February 3, 2014, a permanency hearing was held and the goal was changed to adoption.
The termination hearing was scheduled for April 10, 2015. Father and Mother were present and were represented by respective counsel. Prior to the taking of evidence, the Cabinet's attorney and the Guardian Ad Litem (GAL) advised the court that an agreement had been reached: that both parents would like to enter a voluntary termination of parental rights. Attorneys for Mother and Father confirmed the agreement. Mother then gave her consent under oath, responding to the questions posed by the court as follows:
Q: Do you understand the agreement that's been articulated here on the record by Ms. Milburn [the Cabinet's attorney] just a minute ago?
A. Yes, your honor.
Q. All right, and state your full name for the record please.
A. [A.M.S.]
Q. Okay, and how old are you now?
A. Thirty-two.
Q. And are you under the influence of any alcohol or drugs today?
A. No, your honor.
Q. Have you got any mental problems? Have you ever been diagnosed with a mental problem or disease that I need to know about, have you had anything like that?
A. Depression, a few years ago.
Q. Okay, a few years ago, depression. Are you being treated for that now?
A. No, your honor. I had a mental health assessment done and they said everything was fine, but I don't need medication anymore.
Q. So, and that was how long ago?
A. A year ago.
Q. Have you had any problems since?
A. No, your honor.
Q. Has anybody promised you anything or threatened you in any way to get you to make this agreement.
A. No, your honor.
Q. And have you had all the time to you need to talk to Mr. Petrie [Mother's attorney] about this?
A. Yes, your honor.
Q. Ok. And do you understand that if I accept this agreement, what you're doing, terminating - ending - your parental rights to these three children? And you can't come back and change your mind later for any reason, and these three children will be placed for adoption then by the Cabinet. Do you understand that?
A. Yes, your honor.
Q. And the only condition, what you're receiving out of this in exchange for your agreement to do this is having this final visit? But I understand they've got some terms about that and some structure about how to do that. Do you feel like you understand that?
A. Yes, your honor.
Mr. Petrie: Judge, if I may for the record, I think [Mother] wants me to state, for the record, that she does not want, desire to terminate her parental rights, that she loves each of their three kids and she does not want to terminate, but, she thinks at this point with the circumstances of all involved, best for the children if she do this. So, despite her own wants and desire she's putting their needs first.
Q. Okay, all right did Mr. Petrie accurately state what you wanted to say there?Father then also gave his consent under oath, responding to the questions posed by the court.
A. Yes, your honor.
Q. Okay, anything else you want to tell me about that?
A. No, your honor.
On April 15, 2015, the trial count entered Findings of Fact and Conclusions of Law as to each child, in relevant part, as follows:
7. [Mother] and [Father] have entered knowing and voluntary consent to the termination of their parental rights, and the Court is satisfied from the testimony in open court that the Respondent Parents were not promised anything for, nor coerced into, requesting the termination of their parental rights to the minor child ....
8. Specifically, [Mother] testified that she is 32 years old, that she was not under the influence of any intoxicating substance, that she suffered from depression previously (a year ago) but has had no problems since. The Court inquired if any threats or promises were made to make her consent and she replied "No." [Mother] stated she had all the time necessary to speak to [her attorney] Mr. Petrie prior to making her consent. She acknowledged that she understands the legal consequences of agreeing to termination of parental rights. She does not "want" to terminate her rights; however, she knows that it is best for the child and she seeks to put the child's needs first.
...
10. The Cabinet acknowledged that it will schedule and facilitate a meaningful final visit for both parents, in a therapeutic setting with the assistance of the child's therapist....[The therapist] attended Court in this matter and gave her recommendations to all parties. After the discussion, all parties agreed to follow her recommendations, in the best interest of the child.
11. Termination of parental rights of [Mother] and [Father] is in the best interest of the child, ....The court concluded that it was in the best interest of each child that Mother's and Father's parental rights be terminated (KRS 625.042(5)) and that custody be transferred to the Cabinet for Health and Family Services with authority to place each child for adoption. Finding that the statutory criteria for termination had been met, the trial court entered orders terminating parental rights and orders of judgment pursuant to CR 60.02.
Kentucky Revised Statutes.
On May 5, 2015, Mother, by new counsel, filed motions pursuant to CR 60.02 to amend and/or to set aside the termination order of April 15, 2015, as to each of the children. Mother contended that the orders terminating parental rights were interlocutory because they did not contain a finality recitation. She also contended that her consent had been given under duress. Mother requested that the orders terminating parental rights be set aside and that she be heard on the petitions to involuntarily terminate her parental rights to her three children.
On June 10, 2015, the trial court conducted a hearing, ordered the filing of briefs, reappointed the GAL, and set the matter for a hearing August 19, 2015.
On August 19, 2015, the GAL appeared - as did Father's counsel, who advised that Father was not joining Mother's motion. Mother was present and was represented by counsel, who argued that the decision to voluntarily terminate parental rights was made under duress, that Mother was compelled to agree, that she now regretted her agreement, and that she was entitled to relief under CR 60.02 in order to prevent substantial injustice. Concluding that Mother knew what she was doing when she agreed to terminate parental rights, the court denied the motion. On August 31, 2015, the trial court memorialized its decision in writing and entered orders denying the CR 60.02 motions. It recited as follows:
3. The Court has found that it is in the best interest of the child to make the Order of Termination entered herein "final and appealable" in conjunction with the language that may be required by CR. 54.01 [sic]. In making this finding, the Court is mindful of the time periods involved in appeals of any sort. The Court is also mindful of the best interest of the child, and a desire to give finality and permanency wherever possible, and in the most expeditious manner that due process will afford.
4. The Court is concerned with the apparent conflict that occurs when an agreement is made in open Court under oath, with advice of counsel, is still possibly required to be considered final and appealable. However, given the requirements of both the Civil Rules and recent unpublished Opinions of the Court of Appeals, it appears to be in the interests of justice to allow and direct amendments of the order herein.
WHEREFORE, the Court hereby amends, on its own, the language of the prior Order of Termination and makes said order FINAL and APPEALABLE. Likewise, this is a final and appealable order, there being no just cause for delay.
On September 9, 2015, Mother filed a motion for a new trial or to alter, amend or vacate the judgment in each of the three cases pursuant to CR 59.01(a), (f), and (g) or under CR 59.05. At a hearing on November 6, 2015, Mother's counsel contended that the "main reason we're here, is because [Mother] has not had her day in court." The trial court explained that it would give Mother a little leeway because it was seeking to understand if there "was something there."
Mother argued that she was entitled to a hearing. The court explained that she had given up that right and that "that's the whole issue." The court nonetheless allowed Mother to present testimony and to submit various exhibits by avowal. Ultimately, the court had to direct Mother to put on any proof that she had relating to her decision to terminate her parental rights - as distinguished from her apparent attempt to use the hearing as an opportunity to present a defense to an involuntary termination proceeding.
Mother testified that on the day of hearing on the petitions for involuntary termination, she had planned on "fighting it out"; but she claimed that her attorney, Mr. Petrie, had told her that the state had too much evidence against her and that there was no possibility of winning. The court asked Mother if she recalled being put under oath and being questioned by the court. Mother responded that she did not feel that she had had the opportunity to express herself to the court. The trial court explained that it understood Mother's emotional desires. However, it also expressed its dismay that the motion and allegations made by Mother and her new counsel impugned "the integrity of not only the court, but most primarily Mr. Petrie." The court found that there was no legal or factual basis to grant the motion for a new trial and entered an order denying it on November 6, 2015. Its order contained finality and appealability recitations.
On December 3, 2015, Mother filed Notices of Appeal to this Court in which she recited the following:
[Mother] appeals to the Kentucky Court of Appeals from the Findings of Fact and Conclusions of Law entered April 15, 2015, which ordered the parental rights of [Mother] ... terminated. Said order failed to state that it was a final and appealable order. The undersigned then filed a motion pursuant to Kentucky Civil Rule 60.02 asking to re-open the matter and grant [Mother] a new trial on the issue. The Court heard ... and ruled against [Mother] on August 19, 2015. Then [Mother] filed a Motion for a New Trial and to Set Aside. The Court ... denied the motion, entering a final and appealable order on November 6, 2015.It is from this final order that this appeal is taken. By Order of this Court entered on February 10, 2016, the three appeals were consolidated into one.
We first address the Cabinet's argument that Mother did not timely file a notice of appeal. As our Supreme Court explained in Sec. Fed. Sav. & Loan Ass'n of Mayfield v. Nesler, 697 S.W.2d 136, 138-39 (Ky. 1985):
CR 54.01 defines a final and appealable order as one which adjudicates the rights of all of the parties. CR 54.02 applies only where there are multiple claims and the court grants a final judgment upon one or more but less than all of the claims at issue. ...
The magic words required by CR 54.02 for finality do not apply because the ... order left nothing to adjudicate ....
If the earlier order was incorrect ..., then a motion under CR 59.05 was the proper remedy. CR 59.05 provides that a court cannot change on motion or sua sponte a judgment it has entered after ten days. A CR 59.05
motion was not filed in this case. Therefore the ... order stands as final.
CR 54.02 has no application here. The trial court's orders of April 15, 2015, terminating parental rights adjudicated all the rights of all the parties and thus were final judgments. Mother did not file a CR 59.05 motion with respect to those orders; therefore, the 30 days in which to appeal them began to run on April 15, 2015, the date of the clerk's notation of service of the judgment. CR 73.02(1)(a). Mollett v. Trustmark Ins. Co., 134 S.W.3d 621, 624 (Ky. App. 2003). We agree with the Cabinet that Mother's December 3, 2015, notices of appeal were untimely filed with respect to the April 15 , 2015 , orders terminating parental rights. The trial court's subsequent amendment of the April 15, 2015, orders to include the CR 54.02 "magic language" is a nullity because the court had lost jurisdiction over the matter ten days after April 15, 2015. There was nothing to appeal with respect to the putative order of amendment of November 6, 2015.
On May 5, 2015, Mother filed motions to amend or set aside the subject April 15, 2015, orders under CR 60.02, which the trial court denied on August 31, 2015. The denial of relief under CR 60.02 is appealable. Brozowski v. Johnson, 179 S.W.3d 261, 263 (Ky. App. 2005). On September 9, 2015, Mother timely filed motions for a new trial or to alter, amend, or vacate judgment pursuant to CR 59.01(a), (f), and (h), or CR 59.05, which tolled the running of time to appeal from the denial of her CR 60.02 Motions. CR 73.02(e).
The rule provides that: "The running of the time for appeal is terminated by a timely motion pursuant to any of the Rules hereinafter enumerated, and the full time for appeal fixed in this Rule commences to run upon entry and service under Rule 77.04(2) of an order granting or denying a motion under Rules 50.02, 52.02 or 59, except when a new trial is granted under Rule 59." --------
As this Court explained in Goff v. Goff, 2009-CA-000902-MR, 2010 WL 3810735, at *4 (Ky. App. Oct. 1, 2010):
[W]hen we review the denial of a CR 59.05 motion filed successively to an unsuccessful CR 60.02 motion, we keep in mind that the target of the CR 59.05 motion is the order denying the CR 60.02 motion....
The CR 59.05 motion gave the circuit court the opportunity to reconsider whether it should have granted [the] CR 60.02 motion. Mingey v . Cline Leasing Service, Inc., 707 S.W.2d 794, 796 (Ky.App.1986). ...
"[A] ruling on a CR 59.05 motion is not a final or an appealable order [,]" id., but it does make final the judgment it seeks to alter, amend or vacate. In cases such as this, "[t]he court's ruling on the ... CR ... 60.02 motion was a final judgment from which the appellant could have taken an appeal." Id. Therefore, the proper standard of review to be applied in this case is that applicable to the denial of a CR 60.02 motion.
Our standard of review of a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Richardson v . Brunner, 327 S.W.2d 572, 574 (Ky.1959). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v . English, 993 S.W.2d 941, 945 (Ky.1999).
At best, the notices of appeal are imprecise, but we believe that they are adequate for us to consider an appeal from the denial of Mother's CR 60.02 motions. "Excepting for tardy appeals and the naming of indispensable parties, we follow a rule of substantial compliance." Johnson v. Smith, 885 S.W.2d 944, 950 (Ky. 1994)
Mother argues that the court abused its discretion in changing an involuntary termination into a voluntary termination action. She relies upon D.L.B. v. Cabinet for Health and Family Servs., 418 S.W.3d 426 (Ky. App. 2014). We believe that case is distinguishable on its facts. However, the case before us is similar to S.M.F. v. Cabinet for Health and Family Servs., 2014-CA-001105-ME, 2016 WL 1069154 (Ky. App. Mar. 18, 2016), in which the Cabinet filed petitions for involuntary termination of parental rights to S.M.F.'s three children.
At the hearing on the petitions, S.M.F., who was represented by counsel, advised that she desired to voluntarily terminate parental rights - as did Mother in the case before us. S.M.F. testified that she had had sufficient time to discuss the decision with her attorney, that she was satisfied with the advice she received, that she understood the ramifications of her voluntary consent, which was given without compulsion, and that she believed termination was in her children's best interests. After the court entered orders and judgments voluntarily terminating S.M.F.'s parental rights, S.M.F. moved to vacate the orders and judgments and to rescind her consent, alleging that she had not fully considered the consequences and had not been thinking clearly when she did so.
After a hearing, the court denied S.M.F.'s motion to vacate. The court determined that S.M.F. clearly understood what she was doing and that her regret was the only reason on which she could base her attempt to rescind the voluntary termination of her parental rights. On appeal, this Court affirmed. "[T]he family court rendered findings of fact and complied with relevant statutory mandates for voluntarily terminating S.M.F.'s parental rights. ...S.M.F.'s consent to terminate was given voluntarily and ... she was fully informed of the ramifications of giving such consent." Id. at *2.
The voluntary termination of parental rights is governed by KRS 625.040 - KRS 625.046. KRS 625.043 governs Termination Orders. Subsection (1) provides:
If the Circuit Court determines that parental rights are to be voluntarily terminated in accordance with the provisions of this chapter, it shall make an order terminating all parental rights and obligations of the parent and releasing the child from all legal obligations to the parent and vesting care and custody of the child in the person, agency, or cabinet the court believes is best qualified to receive custody.The trial court fully complied with the statutory mandates for the voluntary termination of parental rights. The court considered - and indeed reconsidered - Mother's CR 60.02 motion and concluded that she knew what she was doing when she voluntarily terminated her parental rights. Having carefully reviewed the record, we find no abuse of discretion.
Mother also argues that the court failed to recognize that the Cabinet violated its own rules for relative placement when it refused to consider the maternal grandmother. At this juncture, that argument is irrelevant. We address it only to clarify an apparent misperception of the law. "Once the conditions of terminating parental rights are met, it is the duty of the Cabinet to then act in the best interests of the children. Placement with relatives may be an option for consideration, but nothing more." R. C. R. v. Commonwealth Cabinet for Human Res., 988 S.W.2d 36, 40 (Ky. App. 1998). Thus, after termination has occurred, the Cabinet has the sole discretion as to placement of children. We find no error on this issue.
We affirm the Todd Circuit Court on all issues raised in this appeal.
ALL CONCUR. BRIEF FOR APPELLANT: Nancy E. S. Calloway
Elkton, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn
Mayfield, Kentucky