Cabinet for Health & Family v. J.M.G.

• Citation: 475 S.W.3d 600
• Decision Date: 17 December 2015
• Docket Number: 2013–SC–000797–DG
• Parties: Cabinet for Health and Family, Appellant v. J.M.G., et al., Appellees.
• Court: United States State Supreme Court (Kentucky)

475 S.W.3d 600

Cabinet for Health and Family, Appellant

v.J.M.G., et al., Appellees.

2013–SC–000797–DG

Supreme Court of Kentucky.

RENDERED: DECEMBER 17, 2015

COUNSEL FOR APPELLANT: Mona Sabie Womack, Deputy General Counsel, Cabinet for Health and Family Services

COUNSEL FOR APPELLEES: No appearance by Counsel for Appellees

OPINION OF THE COURT BY JUSTICE ABRAMSON

The Kentucky Cabinet for Health and Family Services ("CHFS" or "the Cabinet") has requested review of an Opinion by a divided panel of the Court of Appeals upholding the Fayette Family Court's imposition of criminal contempt sanctions against the Cabinet—sanctions in the form of a $2,000 fine. The Family Court deemed sanctionable the Cabinet's (a social worker's or social workers') failure in sibling Dependency, Neglect, and Abuse (DNA) actions (KRS Chapter 620) to file a statutorily mandated report and, in the subsequent Termination of Parental Rights actions (KRS Chapter 625), the Cabinet's (an attorney's) failure to request a pre-hearing conference as mandated by the Family Court Rules. The Cabinet concedes the alleged procedural lapses, but argues that in the circumstances of these cases the lapses do not amount to criminal contempt. We granted the Cabinet's request for review to consider the merits of its concern, a concern shared by the dissenting Court of Appeals Judge, that the Family Court should have ordered compliance with the statute and the rule before resorting to contempt proceedings. We also accepted review to broach important, but unaddressed, questions concerning the Cabinet's liability for the contempts of its agents, its immunity from fines for criminal contempt, and the procedures to which a party charged with criminal contempt is entitled. Agreeing with the Cabinet that the Family Court's contempt rulings cannot be upheld as entered, we reverse the Opinion of the Court of Appeals and remand in part to the trial court.

RELEVANT FACTS

The underlying DNA cases concern two siblings, Janie and Charles Goins,¹ the children of Sabrina and Gregory Goins. Janie was born in October 2004, Charles in March 2008. Sometime prior to July 2010, Sabrina and Gregory, were both incarcerated, with Sabrina having been convicted of possession of a forged instrument, fraudulent use of a credit card, and second-degree robbery and Gregory having been convicted of possession of a controlled substance and escape. The children were left in the care of Gregory's sister, Jamie Overpeck, a resident of Lexington.

On July 2, 2010, Ms. Overpeck was herself arrested on drug charges. The arresting officers contacted the Lexington/Fayette branch of the Department of Community Based Services, and that Department arranged for the intervention of a social worker. The social worker promptly (that day), on behalf of the Cabinet, sought and was granted a Family Court Order allowing the Cabinet to take the children into its emergency custody.² The children were placed with a foster couple.

Over the next eight weeks, a temporary removal hearing, an adjudication hearing, and a disposition hearing followed in due course. At each stage the Family Court accepted the Cabinet's representations that, owing to the parents' and Ms. Overpeck's incarcerations, the children were "neglected"³ for the purposes of KRS Chapter 620.⁴

Initially, in what it styled a "Dispositional Report,"⁵ but what was in effect the initial permanency plan coinciding with the disposition hearing in August 2010, the Cabinet recommended that the children be kept in temporary foster care with a goal of "Return to Parent"—a goal, essentially, of "Return to Mother," since Sabrina was serving the shorter sentence. She was due to be released from prison, according to the Cabinet, in about July 2011. Gregory was not due to be released for at least a year beyond that, and therefore the Cabinet sought and was granted a waiver of its obligation to provide reunification services to him.⁶

At the August 2010 disposition hearing, however, the children's guardian ad litem (GAL) objected to a plan that required the children to spend a year with foster parents who were too old (about seventy) to be interested in adoption, when reunification with the mother at the end of that year was unlikely at best. It was the GAL's view that even if reunification with the mother remained a possibility, an adoption alternative could and should be pursued simultaneously in case reunification with the mother did not succeed.

Noting that such "concurrent planning" is indeed a part of the current legal landscape, see Kathleen S. Bean, Aggravated Circumstances, Reasonable Efforts, and A[doption and] S[afe] F[amilies] A[ct], 29 Boston College Third World Law Journal 223, 250 n.194 (2009) (Aggravated Circumstances ) (citing 42 U.S.C. § 675(E)'s requirement that concurrently with reunification efforts the state "identify, recruit, process, and approve a qualified family for adoption"), the court shared the GAL's concerns. Thus, while accepting provisionally the Cabinet's plan to reunify the children with their mother, it indicated that it would refer the case for review to the Fayette County Interested Party Review Board,⁷ would give the Cabinet's case workers an opportunity to consult with the Cabinet's Office of Legal Services, and would reconsider the Cabinet's proposed plans for the children in October.⁸

In early October 2010, the Fayette County Interested Party Review Board responded to the court's referral with a report highly critical of both the Cabinet's plan for the children and its failure to support the foster parents. In the course of recommending that the goal for the children be changed unequivocally to adoption and that the children be provided with medical and dental services, the Board asserted that "[t]hese children have been failed by the system." A video recording of the ensuing October 11, 2010 permanency hearing has not been included in the record provided to us, but the upshot of that hearing, on paper at least (see Cabinet reports from October 11 (a revised permanency plan proposal) and November 8, 2010 (a report styled "Review Report," a sort of progress report⁹ )), was the Cabinet's recommendation of adoption (not return to parent) as the goal for the children and its facilitating the children's access to various social services, including medical and dental care.

The Family Court incorporated the Cabinet's adoption recommendation in its permanency-plan Order of October 11, 2010. It appears to have been the court's understanding that a prompt petition to terminate the parents' parental rights would make adoption possible soon enough to obviate any immediate change in the children's foster placement, the foster parents by all accounts having provided excellent care for the two children as well as having established affectionate bonds with them. Accordingly, the court also granted a waiver of reunification efforts with respect to Sabrina (a waiver having already been granted with respect to Gregory) and scheduled a "TPR review" (termination of parental rights review) for December 20. In a brief proceeding on December 20, however, the court liaison for the Cabinet reported merely that the TPR petition had not yet been filed. "TPR review" was therefore rescheduled for the end of January 2011.

At the review in January 2011 and again in March, April, and June of that year, the Cabinet's statement was the same: "[The] TPR [petition] has not been filed." Nor had it been filed as of July, when the Cabinet informed the court that Sabrina had been released from prison and wanted to be reunited with her children. At that point (July 2011), the Cabinet filed a progress report acknowledging that adoption was the designated goal for the children and that reunification services had been waived for the mother, but making it plain that the Cabinet favored giving the mother an opportunity to be reunited with her children and indicating that with the Cabinet's aid she had begun attempts to reestablish visitation with them. The court, however, summarily dismissed Cabinet inquiries about how the mother might reestablish her eligibility for reunification services and indicated that the mother's claims should now be addressed in the TPR action.

Nevertheless, apparently upon the advice of Cabinet case workers, in August 2011 Sabrina moved, on her own behalf, for the appointment of counsel and to have the court's waiver of reunification efforts lifted so that the Cabinet would be authorized to work with her toward a goal of reunification. Denying those motions at a hearing in September, a clearly exasperated court explained that while a TPR petition had yet to be filed, the filing was imminent, and in any event the case had long since effectively progressed past the disposition phase of the neglect action and into an adjudication of parental rights. In that action, the court assured Sabrina, she could have appointed counsel and would be afforded a full opportunity to argue for the return of her children. In the meantime, the court continued, Sabrina was subject to drug testing, and it entered an order to that effect.

Notwithstanding the court's expectation that the termination action would promptly move forward, the Cabinet representative reported at brief TPR review proceedings in October and November 2011 that the TPR petition still had not been filed. By that point, the Cabinet's lack of progress implicated federal law, for as of September 26, 2011 the children had been in foster care for fifteen of the last twenty-two months, a trigger, or potential trigger at least, under federal statutes for the mandatory filing of a TPR petition.¹⁰

When at the next TPR review proceeding on January 3, 2012, the Cabinet still had not filed the TPR petition, the court declared that enough was enough. It ordered the Cabinet to appear by counsel at a status hearing in two weeks. At that hearing on January 17, 2012, Cabinet counsel did not appear, but the court acknowledged...