H.G. v. Cabinet for Health & Family Servs.

• Decision Date: 09 December 2022
• Docket Number: 2022-CA-0163-ME,2022-CA-0166-ME,2022-CA-0169-ME
• Parties: H.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; J.M.; AND J.M., A MINOR CHILD APPELLEES AND H.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; E.M., A MINOR CHILD; AND J.M. APPELLEES AND H.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; E.M., A MINOR CHILD; AND J.M. APPELLEES
• Court: Kentucky Court of Appeals

H.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; J.M.; AND J.M., A MINOR CHILD APPELLEES AND H.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; E.M., A MINOR CHILD; AND J.M. APPELLEES AND H.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; E.M., A MINOR CHILD; AND J.M. APPELLEES

Nos. 2022-CA-0163-ME, 2022-CA-0166-ME, 2022-CA-0169-ME

Court of Appeals of Kentucky

December 9, 2022

NOT TO BE PUBLISHED

APPEAL FROM MARSHALL FAMILY COURT HONORABLE STEPHANIE J. PERLOW JUDGE ACTION NO. 21-J-00048-002

APPEAL FROM MARSHALL FAMILY COURT HONORABLE STEPHANIE J. PERLOW JUDGE ACTION NO. 21-J-00098-001

APPEAL FROM MARSHALL FAMILY COURT HONORABLE STEPHANIE J. PERLOW JUDGE ACTION NO. 21-J-00097-001

BRIEFS FOR APPELLANT:

Jessica F. Flinn

Murray, Kentucky

BRIEFS FOR APPELLEES:

Dilissa G. Milburn

Mayfield, Kentucky

BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

OPINION

LAMBERT, JUDGE

H.G. (the Mother) appeals from the Marshall Family Court orders committing her three children to the Cabinet for Health and Family Services (the Cabinet) after a finding of dependency, neglect, or abuse (DNA), and finding the Mother in contempt of court. After careful review, we affirm the family court in all respects.

The Mother and J.M. (the Father) are parents of three children: E.M., born in 2016 (Child One); J.M., born in 2017 (Child Two); and E.M., born in 2019 (Child Three). The Cabinet became notified, on March 12, 2021, of Child Two's skull fracture. The parents provided a satisfactory explanation (i.e., that the incident had occurred at daycare), and the Cabinet made no effort to separate the family. However, when Child Two missed four follow-up appointments and the Mother was difficult to reach, the Cabinet filed a non-removal DNA petition against the parents. Furthermore, Child Three had a number of unexplained bruises on her torso and upper thighs. A removal petition was filed in June 2021. The emergency removal was denied, and the matter was set for a temporary removal hearing.

After the hearing, which was held one week later, all three children were placed in temporary custody of the Cabinet, with a final adjudication hearing to be held in December 2021.

The adjudication hearing was held on December 10, 2021. All parties were present and represented by counsel; the guardian ad litem appeared on behalf of the children. At the outset, the Father waived his right to the hearing and stipulated "that he had substance abuse issues . . . that affected his ability to parent his children." The hearing proceeded against the Mother, after which the family court found, by a preponderance of the evidence, that the children were neglected or abused. The court specifically found that the Mother's substance use disorder made her incapable of caring for the children's needs and that she had medically neglected the children by failing to take them to their scheduled appointments and seek proper medical care after the skull fracture (of Child Two) and bruising (of Child Three).

The disposition order, entered on January 14, 2022, held that the children would remain in the Cabinet's custody. The order also required both parents to submit to drug screens and obtain stable housing and employment. The Mother was to address her mental health issues, follow up on her prenatal care (she was expecting another child at that time), take medication as prescribed, and submit to random pill counts. Finally, the Mother, who had been held in contempt for her failure to submit to court-ordered drug screens,^[1] was ordered to serve seven days in the Marshall County Jail. The Mother appeals.

Our standard of review is set forth in B.B. v. Cabinet for Health and Family Services, 635 S.W.3d 802, 807-08 (Ky. 2021) (footnote omitted):

In a DNA action, the trial court has a great deal of discretion in determining whether the child is dependent, neglected, or abused. Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (See also M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998)). Under CR [Kentucky Rule of Civil Procedure] 52.01, a trial court's finding of fact "shall not be set aside unless clearly erroneous[.]" However, before considering whether the trial court's order met the clearly erroneous standard required in DNA petitions, we must consider the evidentiary issues which form the basis of this appeal. On evidentiary matters, the proper appellate standard of review is abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 576 (Ky. 2000). "The test for abuse of discretion is whether the court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018) (internal citation omitted).

Additionally, "the trial court, as the finder of fact, has the responsibility to judge the credibility of all testimony, and may choose to believe or disbelieve any part of the evidence presented to it." Cabinet for Health & Fam. Servs. v. P.W., 582 S.W.3d 887, 896 (Ky. 2019) (citing Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977)). If a trial court's findings of fact are supported by substantial evidence and the correct law is applied, the appellate court will not disturb the decision unless an abuse of discretion has occurred. Cabinet for Health & Fam. Servs. v. R.S., 570 S.W.3d 538, 546 (Ky. 2018) (internal citation omitted).

KRS Chapter 620 of the Unified Juvenile Code sets forth the procedures in DNA cases. KRS 600.020(1) defines an abused or neglected child, in relevant part, as follows:

(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:

(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:

. . .

2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;

3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005[.]

The Mother's challenge to the family court's orders is three-fold: She argues that there was insufficient evidence to support the findings of neglect, that inadmissible testimony of the social worker in regard to Child Three's bruises was considered, and that the Mother's behavior^[2] at the temporary removal hearing biased the family court against her.

We have reviewed the records of the Marshall Family Court. The Cabinet's petition was properly brought, the family ...