M.C. v. Commonwealth, 012221 KYSC, 2020-SC-0192-DE

Docket Nº2020-SC-0191-DE, 2020-SC-0192-DE, 2020-SC-0193-DE
Opinion JudgeLAMBERT, JUSTICE
Party NameM.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., DECEASED MOTHER OF MINOR CHILD; AND S.C., A MINOR CHILD APPELLEE AND M.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., DECEASED MO...
AttorneyCOUNSEL FOR APPELLANT: Christopher Earl Hendricks Hendricks Law Office COUNSEL FOR APPELLEE: Casey Jon Naber Assistant Calloway County Attorney Whitney Schroeder Jones
Case DateJanuary 22, 2021
CourtSupreme Court of Kentucky

M.C. APPELLANT

v.

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., DECEASED MOTHER OF MINOR CHILD; AND S.C., A MINOR CHILD APPELLEE

AND

M.C. APPELLANT

v.

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., DECEASED MOTHER OF MINOR CHILD; AND B.C., A MINOR CHILD APPELLEE

AND

C.C. APPELLANT

v.

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY; L.C., DECEASED MOTHER OF MINOR CHILD; AND C.C., A MINOR CHILD APPELLEE

Nos. 2020-SC-0191-DE, 2020-SC-0192-DE, 2020-SC-0193-DE

Supreme Court of Kentucky

January 22, 2021

ON REVIEW FROM COURT OF APPEALS NOS. 19-CA-1395, 19-CA-1399, 19-CA-1400 CALLOWAY CIRCUIT COURT NOS. 17-J-0105-005, 17-J-0106-005, 17-J-0104-005

COUNSEL FOR APPELLANT: Christopher Earl Hendricks Hendricks Law Office

COUNSEL FOR APPELLEE: Casey Jon Naber Assistant Calloway County Attorney Whitney Schroeder Jones

OPINION

LAMBERT, JUSTICE

M.C. appeals a decision of the Court of Appeals that affirmed the Calloway Family Court's finding of neglect against M.C. regarding his three teenaged children. After review, we reverse the Court of Appeals and vacate the family court's orders.

I. FACTUAL AND PROCEDURAL BACKGROUND

The appellant in this case, M.C., 1 is the father of three children: twins B.C. and S.C. who were born on October 31, 2005, and C.C. who was born on December 1, 2003. Sadly, the children's mother, L.C., passed away during the pendency of this case at the Court of Appeals. M.C. and L.C. were divorced during the relevant time periods discussed herein.

The Cabinet became involved with this family for the first time in July of 2017 with its filing of a petition against the mother. As we will discuss in more detail below, that court case was ultimately closed and is therefore not at issue here. But, because of our family court system's "one judge one family" policy, we feel a brief discussion of that case is important to the case at bar. The same judge presided over both cases, and the prior case was certainly considered by that judge when ruling in the case before us. While these cases have the 2017 case number, the parties did not designate the original cases as part of the record here. Our information was gleaned from the Cabinet's Dispositional Report in this case, trailer number five for each child.

In July of 2017, L.C. had custody of the children. The Cabinet received reports that L.C. was drinking alcohol while in a caregiving role for the children. The Cabinet removed the children from L.C.'s care and placed them with M.C. while it worked with L.C. to address her alcohol use.

M.C. agreed to a case plan with the Cabinet that prohibited the children from having unsupervised visits with L.C. M.C. also agreed to abstain from alcohol consumption. In December of 2017, the Cabinet removed the children from M.C.'s care, asserting that M.C. had allowed unsupervised visitation between the children and L.C. and had consumed alcohol in his home around the children.

The Cabinet placed them with their paternal grandmother. Their grandmother agreed not to allow any unsupervised visits between the children and either parent. On March 28, 2018, the Cabinet removed the children from their grandmother's care after she allowed them to stay with M.C., unsupervised, for two nights. In addition, there was an incident during which the grandmother told the children that she did not want them and smashed B.C.'s cellphone with a hammer in the children's presence. The children were placed in the Cabinet's custody on April 2, 2018 and placed with a foster family.

After the children were placed in the Cabinet's custody, L.C. and M.C. began working their respective case plans with the Cabinet. L.C.'s progress was minimal, and she eventually stopped cooperating with the Cabinet altogether. L.C. refused to participate in an intensive outpatient program (IOP) or an inpatient program to address her alcohol use and did not comply with drug screens or breathalyzers requested by the Cabinet. She also failed to meet with the social service worker (SSW) on the case from August 2018 to May 2019. She did not see the children in person from August 2018 to May 2019, though she would call the children. The phone calls were reported to be sporadic and strange, and L.C. would sometimes become emotional and say things that did not make sense.

In contrast, M.C. cooperated with the Cabinet and made significant progress on his case plan. He had supervised visits with the children that reportedly went well. He also attended substance use and mental health counseling regularly at Four Rivers Behavioral Health (Four Rivers), and his sessions there went well with few concerns from his therapist. The goal of reunification was stalled when M.C. got a job in Georgia, but he returned to Kentucky in December 2018, with hopes of regaining custody of his children. M.C. continued to work his case plan, and the children were returned to him on March 22, 2019.

This brings us to the case now before us. When the children were returned to M.C. on March 22, 2019, the 2017 DNA2 case was closed with the condition that M.C. cooperate with the Cabinet. The Cabinet left its case open in order to continue working M.C.'s case plan. A copy of the case plan agreed to by M.C. at that time was not included in the record, but it appears that it imposed at least three conditions on M.C.: that he would attend A.A., that he would not allow unsupervised visits between the children and their grandmother, and that he would not be under the influence of alcohol while in a caretaking role or in the presence of the children.

Andrea Fox, the SSW on the case, was contacted on the evening of April 17, 2019, by either the children's CASA3 worker or the children's former foster mother about M.C. possibly drinking around the children. On April 19th, Ms. Fox went to M.C.'s home to speak with him. According to Ms. Fox, M.C. told her that he was struggling with his sobriety. At that point Ms. Fox gave M.C. an ultimatum: either he stopped drinking and attend an IOP or she would file a petition to have the children removed. Ms. Fox also told him that it was very likely the permanency goal for the children would be changed to adoption due to their time in the Cabinet's care. M.C. told her he would not attend an IOP as he has always maintained that, while he drinks, it does not have an effect on his ability to parent and care for his children.

Ms. Fox filed a DNA petition on April 23, 2019, and the children were removed from M.C.'s home via an emergency custody petition filed the same day. Additionally, because M.C. denied the neglect and refused to sign the prevention plan, his visitation with the children was suspended by the Cabinet. The family court granted the emergency custody petition on the grounds that "[t]he [children were] in danger of imminent death or serious physical injury or [were] being sexually abused." The children were then placed with the same foster family they had been with previously.

At the adjudication hearing on July 29, 2019, the Cabinet called one of the twins, B.C., to testify regarding the children's time in M.C.'s care prior to their removal. B.C., then age thirteen, was the only child to testify. He said that he was glad he was placed back with M.C. B.C. was unsure if M.C. began drinking immediately after they were returned to him, but he knew M.C. was drinking by about week two or three. He could not say whether M.C. was drinking every night.

B.C. said that he never saw M.C. drink but knew when he was drinking from the way his eyes looked and the slight slur he would get. B.C. said he would also sometimes say strange things; the example B.C. gave was that M.C. would talk about things that happened when B.C. was a baby. M.C. had no trouble walking when he was drinking and did not stumble or fall down. In addition, M.C. never drank in the morning or during the day and he did not drink inside the home. M.C. would only drink in the evening after dinner on the back deck. B.C. would get home late because he had track practice after school and football practice after that. Because of his schedule, they typically ate dinner late, between about 7 and 9 pm. M.C. would cook dinner for them, and after they were done eating M.C. would go out on the back deck for about an hour and drink standard sized cans of beer. B.C. did not know how many beers M.C. drank, and M.C. always threw his beer cans away. When M.C. was done on the back deck, he would come inside, say goodnight to the children, and go to bed. On school days, M.C. would get the children up in the morning for school, and M.C. would either drive them to school or they would walk. In addition, each child had a household chore they were responsible for that changed from time to time.

When B.C. was asked how the children felt about M.C.'s drinking, he said that he and his older brother C.C. are not bothered by it. However, his twin sister S.C. got upset by it. Occasionally, it led to verbal arguments between S.C. and M.C.

Ms. Fox testified that the children were not missing any school while in M.C.'s care, that they have always excelled in school, and she had no concerns about how they were doing in school. She also had no concerns about them being properly fed, clothed, or otherwise provided for. She said that when she visited M.C. at his home on April 19 it was "extremely cluttered" but not dirty. She did not observe anything in the home that was a threat to the children's health or well-being.

On April 16, three days prior to Ms. Fox's visit to M.C.'s home, Murray Police...

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