Commonwealth v. A.T.

• Decision Date: 17 February 2023
• Docket Number: 2022-CA-0624-ME,2022-CA-0626-ME,2022-CA-0627-ME,2022-CA-0628-ME,2022-CA-0629-ME,2022-CA-0630-ME,2022-CA-0631-ME,2022-CA-0632-ME,2022-CA-0633-ME,2022-CA-0634-ME,2022-CA-0635-ME
• Parties: COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. A.T., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. Z.T., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. D.B., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. C.A., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. E.A., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. J.A., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. A.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. H.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. M.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. A'D.R., A CHILD APPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEAL APPELLANTS v. X.R., A CHILD APPELLEE
• Court: Kentucky Court of Appeals

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. A.T., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. Z.T., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. D.B., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. C.A., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. E.A., A CHILDAPPELLEE AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. J.A., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. A.R., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. H.R., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. M.R., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. A'D.R., A CHILDAPPELLEEANDCOMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND LANITA NEALAPPELLANTS v. X.R., A CHILDAPPELLEE

Nos. 2022-CA-0624-ME, 2022-CA-0626-ME, 2022-CA-0627-ME, 2022-CA-0628-ME, 2022-CA-0629-ME, 2022-CA-0630-ME, 2022-CA-0631-ME, 2022-CA-0632-ME, 2022-CA-0633-ME, 2022-CA-0634-ME, 2022-CA-0635-ME

Court of Appeals of Kentucky

February 17, 2023

NOT TO BE PUBLISHED

APPEAL FROM BARREN CIRCUIT COURT HONORABLE MICA PENCE, JUDGE ACTIONNOS. 21-J-00150-001, 21-J-00149-001, 19-J-00281-00119-J-00261-003, 19-J-00262-003, 19-J-00263-00319-J-00264-003, 19-J-00265-003, 17-J-00086-00417-J-00087-004, 17-J-00088-004

BRIEF FOR APPELLANT CABINET FOR HEALTH AND FAMILY SERVICES: Wesley W. Duke LeeAnne Applegate Frankfort, Kentucky

NO BRIEF FOR APPELLEES.

BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.

OPINION

ECKERLE, JUDGE:

Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet or CHFS) appeals from an order entered by the Barren Family Court in each of the 11 above-referenced dependency, neglect, and abuse (DNA) actions, finding the Cabinet and the designated social worker in those cases, Lanita Neal, in contempt for failure to file various reports, case plans, and other materials as mandated by statute and Court rules.^[1] Following a thorough review of the record, the Cabinet's consolidated brief, and the applicable law, we reverse.

I.PROCEDURAL BACKGROUND:

On October 26, 2021, the Family Court entered an order in case nos. 21-J-00149-001and21-J-00150-001, in which it noted that the Cabinet had failed to file a dispositional report by October 12, 2021, as previously ordered and as provided in FCRPP^[2] 26.The Family Court scheduled a show cause hearing for November 23, 2021, at 1:00 p.m.

On November 4, 2021, the Family Court also entered a show cause order in case nos. 19-J-00261-003, 19-J-00262-003, 19-J-00263-003, 19-J-00264-003, and19-J-00265-003, based on Neal's failure to file the dispositional report required by FCRPP 26, resulting in two continuances of the dispositional hearings.The Family Court also scheduled this show cause hearing for November 23, 2021, at 1:00 p.m.

Also on November 4, 2021, the Family Court entered a show cause order in case no.19-J-00281-001.The Family Court noted that the respondentfather had moved for return of custody of the child on October 4, 2021.The motion was originally scheduled to be heard on October 12, 2021.At that time, Neal was already delinquent in the filing of a case plan and "other documentation."The Family Court ordered the Cabinet to provide those materials "NOT LATER THAN FRIDAY, OCTOBER 29, 2021, at 3:00 P.M."(Emphasis in original.)When the parties reconvened to hear the motion, "it continued to be clear to the court that CHFS had failed to provide needed documents for the court to make a conscientious decision concerning the safety and welfare of this child."The Family Court also scheduled this matter to be heard on November 23, 2021, at 1:00 p.m.

Finally, on November 5, 2021, the Family Court entered a show cause order in case nos. 17-J-00086-004, 17-J-00087-004, and17-J-00088-004.On July 13, 2021, the Cabinet had been ordered to file a case plan and home evaluation within thirty days.As of the PPR^[3] scheduled on November 2, 2021, neither had been provided.Once again, a show cause hearing was set for November 23, 2021, at which the Cabinet was to show cause why it "should not be held in contempt for failure to meet their statutory requirements and the orders of this Court."

The Judge commenced the November 23, 2021, show cause hearing by reading into the record each of the show cause orders, as well as the statutes and/or rules, violation of which had resulted in the necessity for the hearing.The Judge advised those present that any proposed contempt sanction would be for civil as opposed to criminal contempt because compliance with the Family Court's orders, the statutes, and rules are for the benefit of a party litigant, in this instance, the child.

The Cabinet called as its first witness, Service Region Administrator Associate (SRAA)Jessica Humphrey.Humphrey testified that she was unaware of Neal's late filings until she received the Family Court's show cause orders.Upon learning of the issue, she began holding weekly meetings with Neal's direct supervisor, Joan Norris, to put a plan in place to ensure that no such lapse occurs again.Neal was to rely on Outlook calendaring with oversight by Norris.However, Humphrey recognized that the office has a massive caseload involving a majority of children in out-of-home care.Each of those cases requires tasks such as home visits, evaluations, meetings, and court appearances.

She testified that there are numerous vacancies in the office due to loss of workers.Although supervisors such as Norris do carry a caseload, new hires are not fully trained and are limited in the work they can perform.Nevertheless, a mechanism for getting case plans filed has been adopted.A "tickler" system is in place for social workers and supervisors.However, in response to a question from the bench, Humphrey stated that it cannot be "updated" without funding.

Supervisor Joan Norris confirmed Humphrey's testimony that a plan was in place to make sure that documents are timely filed.She stated that a "Rapid Response" team had been empaneled to go in and help counties suffering from staffing shortages.She also indicated that all three of the supervisors in the Barren County office carry caseloads.She indicated that Neal had submitted some cases for Rapid Response assistance.

Service Regional Administrator Dawn Crabtree testified that she had been aware of issues with Neal for about a month and a half.She also indicated that a plan had been formulated.She stated that Rapid Response is deployed out of Frankfort although they are housed in Barren County.Those seeking help must follow a rotation among the various counties needing assistance.Crabtree indicated that while the number of children in care had increased, the number of workers had decreased as they left for better paying jobs.

Although not called as a witness, Lanita Neal voluntarily offered her testimony to the Court.She stated that the workers are doing the best they can do.She indicated that there are technical issues.Although she is responsible for inputting paperwork into the computer system, she can do so two or three times and the work simply "disappears."She is on-call seven days a week and works overtime.She sees about 79 children face-to-face monthly with more than five home visits outside of Barren County.She doesn't always receive Court orders or even copies of the docket.In response to a question by the Judge, she indicated that she has no home internet access supplied by the Cabinet.

The Family Court concluded by taking the matter under submission.The Judge stated that she was "documenting what we've seen here today."The Family Court then gave the Cabinet the opportunity to submit anything it chose in writing within ten days.However, the Judge entered no order until February 9, 2022.

In that order, the Family Court concluded that Neal's initial failures to produce "required paperwork" could not be deemed "willful" or "openly disrespectful" given "the dismal state of the resources available to local DCBC^[4][sic] offices, which is of little to no fault of its individual workers and/or supervisors."However, with respect to case nos. 19-J-00261-003, 19-J-00262-003, 19-J-00263-003, 19-J-00264-003, and19-J-00265-003, the Family Court did find that Neal "willfully" violated or acted with "open disrespect" by not filing the dispositional reports therein after the dispositional hearings were continued and she had been ordered to file her reports by a date certain.As such the Family Court found her to be in contempt in those cases and, as a sanction, subjected her to a private reprimand filed under seal.

However, the Family Court was far less sympathetic to the Cabinet, finding that it had acted "willfully" and with "open disrespect" in "failing to ensure that their agents, employees, and/or offices comply with the statutory duties and obligations placed upon them under KRS^[5]620.230(e), KRS 620.230(j), KRS 620.240."The Family Court noted that the statutes specifically place the duty for compliance on "the cabinet" and not on "any particular agent or employee."

Similarly the Family Court found that the Cabinet had behaved willfully and disrespectfully as to its failure to ensure compliance...