Commonwealth v. R.C.

• Decision Date: 17 February 2023
• Docket Number: 2022-CA-0921-ME
• Parties: COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; ANGELA LANE; JESSICA HUMPHREY; AND JENNIFER CLAY APPELLANTS v. R.C., A CHILD; AND M.C. APPELLEES
• Court: Kentucky Court of Appeals

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; ANGELA LANE; JESSICA HUMPHREY; AND JENNIFER CLAY APPELLANTS v. R.C., A CHILD; AND M.C. APPELLEES

No. 2022-CA-0921-ME

Court of Appeals of Kentucky

February 17, 2023

Appeal from Barren Circuit Court Honorable Mica Wood Pence, Judge Action No. 21-J-00031-001

Brief for Appellants: LeeAnne Applegate Frankfort, Kentucky

No Brief for Appellees.

Before: Acree, Combs, and Eckerle, Judges.

OPINION

ECKERLE, JUDGE

The Cabinet for Health and Family Services (the "Cabinet") appeals from orders of the Barren Family Court finding it in contempt for failure to comply with its orders. Cabinet employees, Angela Lane and Jessica Humphrey and Cabinet attorney, Jennifer Clay, appeal from language in the Family Court's orders criticizing their actions and accusing them of misconduct. We conclude that the Family Court did not abuse its discretion in finding the Cabinet in contempt for its failure to comply timely with the January 5, 2022, order, and the remedy imposed did not exceed the scope of civil contempt. We further conclude that Lane, Humphrey, and Clay are not aggrieved because those findings did not result in a finding of contempt or imposition of sanctions against them individually. Hence, we affirm.

I. Facts and Procedural History

On February 3, 2021, the Cabinet filed a dependency/neglect/abuse ("DNA") petition on behalf of R.C. ("Child"), who was then 12 years old. In pertinent part, the affidavit supporting the petition alleged that M.C. ("Mother") and two other persons, M.M. and D.H., "have perpetuated the maltreatment of [Child] by other than accidental means." The affidavit further recited that, on December 2, 2020, Mother allowed Child to leave her home in North Dakota with M.M. and D.H. On February 2, 2021, the Cabinet received a report that Child was living with M.M. and D.H. in Glasgow, Kentucky. They resided in an unheated attic, requiring Child and adults to sleep together in one bed. The reporting source stated that Child was unhappy with the arrangement and wanted to go back to North Dakota. The reporting source also stated that M.M. repeatedly kissed Child on the mouth.

The Cabinet social worker went to the residence and confirmed the living arrangements and conditions. Child also reported to the worker that there was a significant roach infestation in the attic, and that M.M. had been showing a sexual interest in her. The worker also observed evidence of opioid abuse by the adults. D.H. admitted to losing custody of her own children, and M.M. had a warrant for his arrest in Tennessee for a probation violation. The Cabinet investigation revealed that Mother was abusing methamphetamine and was unable to maintain her housing. A handwritten note on the affidavit added:

Child expresses she wishes to leave her caretakers, but feels she is unable to leave the caretakers. Child's mother is unwilling and discouraging to facilitate the Child's return to North Dakota. There is suspician [sic] that the child was traded for personal gain.

Based on the petition and accompanying affidavit, the Family Court entered an emergency custody order the same day. The Family Court appointed counsel for Mother and a guardian ad litem ("GAL") for Child. At the temporary removal hearing on February 10, 2021, Mother stipulated to the removal but denied the allegations in the affidavit. Following the hearing, the Family Court entered an order placing Child in the Cabinet's custody. During a disposition hearing on March 16, 2021, Mother stipulated that Child is dependent. In addition, Mother agreed to comply with the Cabinet's case plan under the supervision of the North Dakota child-welfare agency. The Family Court dismissed M.M. and D.H. from the action because they had no legal standing and were being prosecuted criminally.

During the following months, Child was placed in foster care and underwent therapy. The Family Court conducted several reviews of Mother's case plan and the progress she had made on the plan goals. Although the reports indicate Child had been trafficked or exploited, Mother's role in the trafficking was not specified. The record indicates that Mother was cooperative with her case worker in North Dakota. On December 2, 2021, the Cabinet submitted a review report to the Court, which included recommendations to complete a transfer under the Interstate Compact on Placement of Children ("the ICPC")^[1] to transition the Child "to North Dakota to be closer to her family and assist visitations and family sessions."

The Family Court conducted a review hearing on December 7, 2021. In an order entered following that hearing, the Court directed Assistant County Attorney Dane Bowles to tender an ICPC order "if CHFS [social worker Brook] Muse furnishes him information of what residence, etc. in North Dakota should have such evaluation." The order further directed Mother to furnish all information necessary to determine if it would be appropriate to transfer Child and the case to North Dakota. The Court also directed Muse to follow up with her counterpart in North Dakota to effectuate the transfer. Finally, the order set a review hearing for January 4, 2022, on all remaining matters.

At the hearing, Mother's counsel introduced a certified copy of an order from a North Dakota Court relating to the placement of Child's sister. In pertinent part, that order noted that Child's sister had been removed from Mother's care in February 2021 and placed in foster care. The North Dakota Court found that it would be contrary to the sister's welfare to return her to Mother due to the allegations that Mother had participated in sexual trafficking of Child. The Family Court was further advised that the sister was returned to Mother for a "trial home visit." Neither the Cabinet nor Mother expressed any objections to returning Child to North Dakota. Following the hearing, the Family Court entered an order providing, in pertinent part:

1.) In light of this child's sibling being returned to the mother's home for a "trial home visit" by the North Dakota Court until February 2022; the above child shall also be allowed to return to North Dakota for a trial home visit with her mother. Effective immediately the child shall be sent to her mother in North Dakota on a trial home visit. CHFS Muse shall arrange such trial return to North Dakota.

2.) CHFS shall engage any specialty services available to assist with return of a possible child victim of trafficking.

3.) This court anticipates returning custody to the mother and closing this action on February 8, 2022[,] to allow North Dakota to resume personal jurisdiction over the child. Any party seeking relief from this order shall schedule and file an appropriate motion within ten days.

4.) This action is set for REVIEW on Tuesday, February 8, 2022[,] at 10:45 a.m., central time, via Zoom. Zoom information sheet attached herein.

Order from 01-04-22 Hearing, Jan. 5, 2022. Record ("R.") at 87-88 (emphasis original).

On January 24, 2022, Mother's counsel filed a motion to hold the Cabinet in contempt for failure to comply with the January 5, 2022, order. The motion stated, "As of January 21, 2021, no attempts have been made on the part of the Cabinet to comply with this order of the Court." On January 26, 2022, the Family Court entered an order directing the Cabinet to show cause why it had not complied with the order. The Family Court scheduled the matter for February 8, 2022.

The record on appeal does not include the recording of the February 8, 2022, hearing. The Cabinet's brief states Mother's counsel informed the Court of the circumstances surrounding the filing of the motion for contempt. Specifically, counsel stated she "understood" the regional office had told the local social workers not to comply with the Family Court's order. The Cabinet's counsel suggested that "Frankfort took it upon itself" not to return Child. Muse also testified at the hearing. The Family Court's order, entered on February 9, recites the following details of that hearing.

The Cabinet for Health and Family Services have failed to follow the court's previous order entered herein on January 5, 2022, concerning sending the above child home to her mother for a trial home visit in North Dakota, or to seek appropriate relief from such order as outlined therein.

CHFS Muse stated that she had received emails from Angela Lane at CHFS Region Office (cc: Ashley Richey, Danielle Khoury) that they would not be moving the child to North Dakota. She stated that she had received an email from CHFS [Jessica] Humphrey as well, and the child would not be returned due to violation of ICPC and Federal Compact. Hon. [Mary] Locke, attorney for CHFS, identified Danielle Khoury and Angela Lane and Jessica Humphrey as CHFS representatives responsible for the decision not to send the child to North Dakota, and therefore, violate the court order; therefore making them necessary witnesses. In order to avoid an additional waste of judicial resources and time of the court, appointed counsel, the court attempted to contact Ms. Lane by phone in open court. The court was unable to reach Ms. Lane, and therefore continued the hearing in order for CHFS to have necessary witnesses present. The GAL and counsel for mother requested the Court to enter an order requiring their participation. CHFS Attorney Locke requested Danielle Khoury be allowed to participate via zoom due to her distance from court and such requested [sic] is granted herein. As both Lane and Humphrey are local, no such barrier for attendance is anticipated.

Family Court Order, Feb. 9, 2022. R. at 94-95.

Based on these findings, the Family Court continued the hearing to February 10. The Court also introduced email...