K.M.J. v. Cabinet for Health & Family Services

503 S.W.3d 193, 2016 Ky. App. LEXIS 183
CourtCourt of Appeals of Kentucky
DecidedNovember 4, 2016
DocketNO. 2015-CA-001746-ME
StatusPublished
Cited by7 cases

This text of 503 S.W.3d 193 (K.M.J. v. Cabinet for Health & Family Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.M.J. v. Cabinet for Health & Family Services, 503 S.W.3d 193, 2016 Ky. App. LEXIS 183 (Ky. Ct. App. 2016).

Opinion

OPINION

MAZE, JUDGE:

K.M.J. (hereinafter “Mother”) appeals from an order of the Henry Circuit Court terminating her parental rights to her daughter. Mother argues that- the trial court lacked jurisdiction to enter the order terminating her parental rights. In the alternative, she argues that the trial court deprived her of- adequate notice and a meaningful opportunity to be heard, and therefore, due process of law.

We conclude that the trial, court’s decision to “defer” the matter of Mother’s termination beyond the period provided in KRS1 625.090 was impermissible under the statute. Therefore, we vacate and remand.

Background

At A.M.R.’s birth in August 2011, the child’s meconium tested positive for marijuana. As a result, the Cabinet for Health and Family Services (“the Cabinet”) inves[195]*195tigated but elected against filing a Neglect and Abuse Petition. On March 4, 2012, the Cabinet received a second report concerning drug use in the presence of Mother, Father,2 and A.M.R. The Cabinet investigated and filed a petition on behalf of the child which alleged that Mother and Father had caused A.M.R. to be neglected due to Father’s drug use and a history of domestic violence between Mother and Father. At the Cabinet’s request, the trial court entered an Emergency Custody Order which placed the child in the emergency custody of the Cabinet.

At a Temporary Removal Hearing two days later, the trial court granted the Cabinet temporary custody of A.M.R. Mother was permitted visitation with the child, now in the care of maternal relatives. At the March 21, 2012, adjudication hearing, the trial court entered findings of fact and conclusions of law that both parents had engaged in the use of illegal drugs while caring for A.M.R. In June 2012, the trial court committed the child to the custody of Cabinet; however, in January 2013, it returned custody of A.M.R. to Mother.

Mother gave birth to a second child on February 9, 2013. Three months later, the Cabinet filed a second Neglect and Abuse Petition concerning A.M.R. which also concerned her infant brother. The petition alleged that A.M.R. and her brother regularly arrived at day care dirty, that Mother and Father had a history of drug use, and that, despite court orders that Father have only supervised contact with A.M.R. until compliant with the Cabinet, Mother and Father lived together and had moved four times' in five months. Based on this petition, the trial court did not remove the children from Mother’s home. However, Mother later stipulated that her actions caused the children to be neglected, and at a subsequent dispositional hearing, the trial court again committed A.M.R. to the Cabinet’s custody. At this point, it was still the Cabinet’s goal to reunify A.M.R. with her parents.

In June 2013, after the children were apparently returned to Mother’s care, the Cabinet filed a third Neglect and Abuse Petition after Mother reported an incident of domestic violence perpetrated by Father during which he assaulted Mother and threatened her repeatedly. The petition al-legéd that this incident took place in front of A.M.R. and her brother, placing both of them at risk of neglect and abuse. The trial court once again placed the children in the temporary custody of the Cabinet, and Mother once again stipulated that her continuing relationship with Father placed her children at risk of neglect. In March 2014, at the Cabinét’s request, the trial court changed the permanency goal in both children’s cases to “adoption.”

Following the Cabinet’s Petition for Involuntary Termination of Parental Rights against Mother and Father, the trial court conducted a trial on August 24, 2014. Following trial, the trial court entered an order terminating Father’s parental rights; however, it passed the issue of termination of Mother’s parental rights for a review six months later. The trial court deemed this action a “deferral of the pending action.” In the interim, the trial court ordered the Cabinet to develop a new case plan and work with Mother “to rebuild her life” away from Father’s influence.

At an April 2015 hearing, the trial court stated that it would conduct what it called “further hearings” on the question of terminating Mother’s' parental rights to her children, and the court continued the case another' four months. Finally, in August [196]*1962015, the trial court conducted what it labeled a “final hearing”' following which it entered an order terminating Mother’s rights to A.M.R. Mother now appeals from this October 23, 2015, order. Further facts will be recounted and addressed as they become necessary to our analysis.

Analysis

Mother raises arguments based in both statute and procedure. We address Mother’s. jurisdictional argument first, as its resolution may prevent or otherwise affect our consideration of her second argument.

I. Mother’s Compliance with CR 76. 12(4)(c)(v)

As a preliminary matter, the Cabinet argues that Mother’s brief failed to comply with the mandate of CR 76.12(4)(c)(v) that an appellant state where in the record she preserved an issue for appeal. “[A]n appellate court cannot consider items that were not first presented to the trial court.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. 2012). Thus, CR 76.12(4)(c)(v) serves an important purpose. “It is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court.... ” Id. Past panels of this Court have held that “substantial compliance” with this rule is mandatory. Id. See also Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990).

The Cabinet is correct that Mother’s brief fails to expressly state where she preserved the issues raised on appeal. Mother attempts to remedy this omission in her reply brief; however, this is not technically compliant with the Civil Rules. This being the case, our options are “(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions ...; or (3) to review the issues raised in the brief for manifest justice only.” Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014) (citation and quotation marks omitted). Given the tremendous import of this case which concerns -a mother’s parental rights to her child, we elect to look past this omission and proceed without sanction against Mother; and we do so with the confidence that Mother’s counsel will more strictly comply with the mandate of CR 76.12 in future appeals.

II. The Trial Court’s Continuing Jurisdiction

Mother first argues that following the August 24, 2014, initial trial on termination, the trial court was- obligated to either terminate her parental rights or dismiss the Cabinet’s petition. She contends that the trial court was divested of its jurisdiction when it did neither, instead passing,-or “deferring,” the case for a review. As a matter of statutory interpretation and construction, this is a question of law;- and we review the trial court’s decision de novo. See, e.g., Commonwealth v. Love, 334 S.W.3d 92

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Bluebook (online)
503 S.W.3d 193, 2016 Ky. App. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kmj-v-cabinet-for-health-family-services-kyctapp-2016.