COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, AS NEXT FRIEND OF C.J.W., A CHILD v. K.L.E.; S.W.; AND C.J.W., A CHILD
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RENDERED: MARCH 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000742-ME
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES, AS NEXT
FRIEND OF C.J.W., A CHILD
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES V. BOTELER, JR., JUDGE
ACTION NO. 03-AD-00007
K.L.E.; S.W.; AND
C.J.W., A CHILD
APPELLEES
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
Commonwealth of Kentucky, Cabinet for Health
and Family Services (hereinafter “the Cabinet”), as next friend
of C.J.W., a child,
appeals from a judgment of the Hopkins
Circuit Court that dismissed its petition for involuntary
1
Senior Judge Thomas D. Emberton, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 100(5)(b) of the Kentucky Constitution
and KRS 21.580.
termination of parental rights.
Having thoroughly reviewed this
matter, we are compelled to dismiss the appeal.
The Cabinet filed a petition for involuntary
termination of parental rights against K.L.E. and S.W. on March
19, 2003.
On November 14, December 4, and December 11, 2003,
the circuit court heard evidence in this matter.
Post-trial
briefs were filed by the parties and the Hopkins Circuit Court
entered a judgment dismissing the petition on March 18, 2004.
The Cabinet appealed that judgment.
The Cabinet argued in its
brief that the trial court erred by not terminating the parental
rights of K.L.E. and S.W.
The Cabinet contends it proved its
case by clear and convincing evidence that the child was a
neglected child, that the parents had abandoned the child, that
the parents had failed to provide the necessities of life and
that termination was in C.J.W.’s best interest.
The guardian ad
litem for the child agreed with the Cabinet that the trial court
had erred and that this Court should reverse the judgment and
remand for an order granting involuntary termination.
not file an appellate brief.
S.W. did
On appeal, K.L.E. argued that
there is substantial evidence in the record to support the
judgment and that it should be affirmed.
However, before the briefs were filed, K.L.E. filed a
motion to dismiss the appeal pursuant to KRS 625.110.
KRS
625.110, which became effective on April 10, 1988, states:
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Appeals
Any order for the involuntary termination of
parental rights shall be conclusive and
binding on all parties, except that an
appeal may be taken from a judgment or order
of the Circuit Court involuntarily
terminating parental rights in accordance
with the Kentucky Rules of Civil Procedure.
K.L.E. argued that the Cabinet was not permitted to appeal the
dismissal of an involuntary termination of parental rights
petition.
Neither the Cabinet nor the guardian ad litem filed a
response to K.L.E.’s motion.
On June 16, 2004, a motion panel
of this Court, without reference to the Kentucky Constitution,
the statute in question, or any case law or rule, denied the
motion.
But the ruling of a motion panel of this Court is not
binding upon the “merits” panel.2
Following briefs being filed
in this matter, this Court, on its own motion, ordered the
parties to file supplemental briefs addressing this issue.
The
parties have complied and have filed supplemental briefs
specifically addressing KRS 625.110.
In her supplemental brief, K.L.E. continues to argue
that the statute is clear that the legislative intent is to
permit an appeal only when involuntary termination is granted.
Specifically, she states on pages two and three of her
supplemental brief:
2
Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326, 329 (Ky. 1993).
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The clear intent of this Statute is to
allow appeals to be taken from any judgment
which involuntarily terminates parental
rights. Obviously one of the most severe
measures imaginable is to have a child
removed permanently from the entire family.
It is quite logical for the parents to have
a full review of a decision involuntarily
terminating parental rights.
On the other hand, if the trial court
does not terminate parental rights, the
Order is conclusive and binding on all
parties. Obviously, if an involuntary
termination of parental rights petition has
been filed and taken to trial, the parents
have serious problems. If the parents do
not successfully resolve their problems,
they will be back in Court and the child, or
children, will continue in foster care. A
subsequent trial for involuntary termination
for parental rights will probably occur. By
contrast, once parental rights are finally
terminated, there is no second chance.
There is a reason for a different
appellate practice depending on the outcome
of a trial to involuntarily terminate
parental rights.
In its response, the Cabinet relies on Section 115 of
the Kentucky Constitution, which grants the right of appeal in
all civil and criminal cases, except from a judgment of
acquittal in a criminal case and from a judgment dissolving a
marriage.3
The Cabinet further contends that denying it the
right to an appeal would be in violation of Section 2 and
Section 28 of the Kentucky Constitution, which prohibit the
exercise of absolute and arbitrary power by one department over
3
Section 115 became effective on January 1, 1976.
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another.
Next, the Cabinet argues that KRS 620.155 as applied
to KRS 610.010(1)(c) supports its position.
We believe that the
statute (KRS 620.155) dealing with dependent, neglected or
abused children is inappropriate and if anything, supports
K.L.E.’s position.
Finally, the Cabinet points out several
cases which it contends permit the Cabinet to appeal from an
involuntary termination proceeding.
We shall address each of
the cases cited by the Cabinet.
In Cabinet for Human Resources v. J.B.B., 772 S.W.2d
646 (Ky.App. 1989), this Court reversed a circuit court’s order,
in which it found by clear and convincing evidence that parental
rights should be terminated, but then failed to terminate.
In
reversing, this Court ordered the circuit court to conduct a
hearing pursuant to KRS 625.080 and enter an order in strict
compliance with KRS 625.090(4).
Id. at 647-648.
It must be
noted that the issue raised herein challenging KRS 625.110 was
neither raised nor addressed in that case.
In Cabinet for Human
Resources v. Rogeski, 909 S.W.2d 660 (Ky. 1995), Rogeski had
appealed a judgment terminating his parental rights and this
Court reversed.
The Cabinet sought discretionary review, which
was granted, and the Kentucky Supreme Court reversed and
reinstated the trial court’s judgment.
That case is
distinguishable and not controlling on the issue before this
Court.
Again, there is no mention that KRS 625.110 was raised
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or addressed by the Court.
Finally, the Cabinet cites Cabinet
for Families and Children v. G.C.W., 139 S.W.3d 172 (Ky. App.
2004), to show that it has been permitted to appeal an adverse
decision for an involuntary termination case.
factually similar to the case before us.
This case is
But again, the issue
of KRS 625.110 was not raised in that appeal.
In fact, a good
argument as to why the legislature enacted KRS 625.110, which
does not permit the Cabinet to appeal, can be found in examining
the result of that case.
In G.C.W., the trial court entered a judgment
dismissing the Cabinet’s petition to terminate the parental
rights of G.C.W.
brief.
The Cabinet appealed and G.C.W. did not file a
As is often the case in a termination case, the parents
cannot afford to hire private counsel.
Normally each parent and
the child are represented by guardians ad litem.
The guardians
ad litem are paid a fee designated by statute to represent their
client at trial.
However, there is no provision for the
guardians ad litem to be paid for appellate work.4
For whatever
reason (but assuming lack of financial resources to hire her own
attorney and state law not providing for same), G.C.W. did not
file a brief in response to the Cabinet’s appeal.
And she did
not present her arguments as to why the court’s order dismissing
4
See M.S.M. v. Dep’t for Human Resources, 663 S.W.2d 752 (Ky.App. 1983)
citing Dep’t for Human Resources v. Paulson, 622 S.W.2d 508 (Ky.App. 1981).
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the termination petition should be affirmed.
When this Court
reversed the trial court’s judgment, it held:
In light of the absence of any evidence
that the children and G.C.W. will ever be
reunited, we hold that the children’s best
interest dictates that their mother’s rights
be terminated so that they are free for
adoption.
The judgment of the Daviess Circuit
Court is reversed, and this matter is
remanded for entry of a judgment consistent
with this opinion.
The opinion of this Court became the law of the case.
Upon
remand to the circuit court, the judge was mandated to enter an
order terminating G.C.W.’s parental rights.
G.C.W. had no right to appeal.
At this point,
It appears that KRS 625.110 may
have been enacted to protect indigent parents from this
situation occurring.
A parent could have his or her parental
rights terminated (a right some may argue is more fundamental
than the loss of liberty, i.e., imprisonment) without having an
opportunity to pursue a meaningful appeal.
There are other
potential reasons why the legislature may have enacted KRS
625.110, (for example, as K.L.E. stated the Cabinet can always
re-file its petition, or possibly the legislature viewed this
procedure as quasi-criminal), but they need not be addressed in
depth herein because we deem this case must be dismissed on
other grounds.
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Whenever the constitutionality of a statute is
contested, the Kentucky Attorney General must be notified of the
constitutional challenge.
KRS 418.075(2) states:
In any appeal to the Kentucky Court of
Appeals or Supreme Court or the federal
appellate courts in any forum which involves
the constitutional validity of a statute,
the Attorney General shall, before the
filing of the appellant’s brief, be served
with a copy of the pleading, paper, or other
documents which initiate the appeal in the
appellate forum. This notice shall specify
the challenged statute and the nature of the
alleged constitutional defect.
There can be no doubt that the Cabinet and the guardian ad litem
for C.J.W. each raised the issue that KRS 625.110 is
unconstitutional in light of its apparent conflict with Section
115 of the Kentucky Constitution.
the Attorney General.
But neither party notified
The appellate courts have addressed this
issue on numerous occasions and the Court’s position can be
summed up as follows:
Dr. Peasley has argued that the
provisions of KRS 311.377 violate the
Kentucky Constitution. However, Dr. Peasley
failed to give notice to the Attorney
General of the pendency of his
constitutional challenge in violation of KRS
418.075 and Civil Rule 24.035 in either the
5
CR 24.03
Procedure
A person desiring to intervene shall serve a motion to intervene upon
the parties as provided in Rule 5.
The motion shall state the grounds
therefore and shall be accompanied by a pleading setting forth the claim or
defense for which intervention is sought. The same procedure shall be
followed when a statute givens a right to intervene. When the
constitutionality of an act of the General Assembly affecting the public
interest is drawn into question in any action, the movant shall serve a copy
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Court of Appeals or this Court. Since the
original action was filed in the Court of
Appeals, it is considered the “trial court”
for the purpose of applying the procedural
mandate of Maney v. Mary Chiles Hosp., Ky.,
785 S.W.2d 480 (1990). In Maney, supra, at
482, we held that the requirements of KRS
418.075 are mandatory in order for a court
to consider the constitutionality of a
statute and that strict enforcement of the
statute will eliminate procedural
uncertainty. Accordingly, we decline to
consider that issue.
Adventist Health Systems v. Trude, 880 S.W.2d 539, 542 (Ky.
1994).
See also Allard v. Kentucky Real Estate Com’n, 824
S.W.2d 884 (Ky.App. 1992); Stewart v. Estate of Cooper, 102
S.W.3d 913 (Ky. 2003); Popplewell’s Alligator Dock v. Revenue
Cabinet, 133 S.W.3d 456 (Ky. 2004); Preston v. Johnson County
Fiscal Court, 27 S.W.3d 790, 795-98 (Ky. 2000) (Keller, J.,
Concurring).
As the Cabinet failed to comply with the notice
requirements of KRS 418.075(2), we decline to address the issue
of the constitutionality of KRS 625.110, and accordingly,
dismiss the appeal.
EMBERTON, SENIOR JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
DATE:
/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
March 25, 2005
of the pleading motion or other paper first raising the challenge upon the
Attorney-General.
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BRIEF AND SUPPLEMENTAL BRIEF
FOR APPELLANT:
BRIEF AND SUPPLEMENTAL BRIEF
FOR APPELLEE, K.L.E.:
Lynn Pryor
Cabinet for Health & Family
Services
Hopkinsville, KY
Richard E. Peyton
Madisonville, KY
BRIEF AND SUPPLEMENTAL BRIEF
FOR C.J.W.:
Susan E. Neace
Madisonville, KY
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