COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILIES SERVICES; AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILIES SERVICES AS NEXT FRIEND OF B.A.C., AN INFANT DIVISION III - FAMILY COURT v. D.C. AND B.R.C.
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RENDERED:
OCTOBER 7, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001570-ME
COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILIES SERVICES; AND
COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILIES SERVICES AS
NEXT FRIEND OF B.A.C., AN INFANT
v.
APPELLANTS
APPEAL FROM WARREN CIRCUIT COURT
DIVISION III – FAMILY COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 01-AD-00057
D.C. AND B.R.C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
The Commonwealth of Kentucky, Cabinet for Health
and Family Services and the Commonwealth of Kentucky, Cabinet
for Health and Family Services as next friend of B.A.C., an
infant, (collectively referred to as the Cabinet) appeal from a
judgment of the Warren Circuit Court, Family Court, dismissing
its petition for involuntary termination of the parental rights
of D.C. and B.R.C. as to their minor child B.A.C.
B.A.C. was born on June 25, 1997.
child born to D.C. and B.R.C.
She was the fifth
The couple’s first child, A.C.,
suffers from a mental disability.
S.K.C., lived only 7 weeks.
We affirm.
The couple’s second child,
The death certificate indicated the
cause of death was Sudden Infant Death Syndrome (SIDS); no
autopsy was performed.
only 5 weeks.
The couple’s third child, A.R.C., lived
The death certificate indicated that SIDS was the
provisional cause of death as the autopsy report was still
pending.
months.
The couple’s fourth child, T.B.C., lived just over 5
The death certificate indicated that T.B.C.’s death
could not be attributed to any anatomic, metabolic, or
toxicological cause; thus, the cause of death could not be
determined.
Because of the suspicious circumstances surrounding
the deaths of B.A.C.’s three siblings, the Cabinet conducted a
“child fatality multidisciplinary team meeting.”
The team
determined that B.A.C. “was at risk of harm” and two days after
her birth B.A.C. was placed in the custody of the Cabinet. 1
On November 15, 2001, the Cabinet filed a petition on
behalf of B.A.C. seeking involuntary termination of D.C. and
1
Upon removal by the Cabinet from D.C. and B.R.C., B.A.C. was immediately
placed in a foster home where she presently resides. D.C. and B.R.C. have
continued to exercise regular visitation and have financially supported
B.A.C.
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B.R.C.’s parental rights.
On May 7, 2004, the Findings of Fact
and Conclusions of Law and Judgment were entered by the Warren
Family Court denying the Cabinet’s petition for involuntarily
termination of parental rights.
The court found, however, that
B.A.C. would be at a potential risk of harm if returned to the
home of D.C. and B.R.C. and ordered that custody of B.A.C. be
“permanently committed to the Cabinet” and further ordered
structured visitation.
Following motions filed pursuant to Ky. R. Civ. P.
(CR) 59.05, to alter, amend or vacate, the court entered Amended
Findings of Fact and Conclusion of Law and Judgment on June 24,
2004.
The court again recognized the existence of “potential
harm” to B.A.C. if she was returned to D.C. and B.R.C.
The
court ordered that custody of B.A.C. “shall be determined
through proper motions and Orders in the juvenile action pending
in the Warren Circuit Court.”
The order also directed that
reunification efforts should continue.
This appeal follows.
The Cabinet contends the family court erred by
excluding certain testimony of Dr. Tracey Corey Handy.
Dr.
Handy conducted the postmortem examination of B.A.C.’s sibling,
T.B.C.
B.R.C. filed a motion in limine seeking to limit Dr.
Handy’s testimony.
In its order granting the motion, the family
court stated that pursuant to its pretrial order the Cabinet had
been directed to provide “all pertinent information” relating to
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any expert witness that would offer an opinion on the deaths of
B.A.C.’s three siblings.
Relevant to Dr. Handy’s testimony, the
Cabinet only provided the postmortem examination.
The family
court ordered that Dr. Handy’s testimony should thus “be limited
to the information contained in the post mortem report.”
It is within the court’s discretion to establish a
pretrial order governing pretrial procedure.
CR 16.
CR 16
specifically provides that where a pretrial order has been
entered, it “controls the subsequent course of the action,
unless modified.”
It is also well-established that the parties
are bound by such orders.
Commonwealth ex rel. Marcum v. Smith,
375 S.W.2d 386 (Ky. 1964)(citing Sapp v. Massey, 358 S.W.2d 490
(Ky. 1962)).
Our review is limited to whether the family court
abused its discretion by requiring the Cabinet to comply with
its pretrial order.
In the case sub judice, the Cabinet was ordered to
provide “all pertinent information” regarding any expert witness
it intended to call at trial.
The Cabinet provided Dr. Handy’s
postmortem report but did not provide any information regarding
other opinions that Dr. Handy might testify to.
Under these
facts, we do not believe the family court abused its discretion
by limiting Dr. Handy’s testimony to the information contained
in the postmortem report.
As such, we view the Cabinet’s
contention on this issue to be without merit.
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The Cabinet also argues that the family court erred by
excluding a forensic psychiatric examination and testimony of
Dr. David J. Kapley.
Following B.R.C.’s motion in limine, the
family court ordered that the Cabinet was “prohibited from using
any portion of Dr. David J. Kapley’s 1998 forensic examination
or testimony regarding the same.”
On appeal, the Cabinet appended Dr. Kapley’s forensic
psychiatric examination to its brief but failed to indicate
whether the document had been entered into the family court
record.
We have been unable to locate the document in the
record.
It is improper to append a document to an appellate
brief that was not part of the record below.
Croley v. Alsip,
602 S.W.2d 418 (Ky. 1980)(citing CR 75.01; CR 76.12(4)(a)(vi)).
The Cabinet also failed to offer by avowal Dr.
Kapley’s forensic psychiatric examination and the testimony
related to that examination.
It is well-established that
evidence excluded by the family court cannot be reviewed on
appeal where there was no avowal of the proposed evidence by the
witness.
Ky. R. Evid. 103(a)(2); Commonwealth v. Ferrell, 17
S.W.3d 520 (Ky. 2000).
Accordingly, we must summarily affirm
the family court’s exclusion of Dr. Kapley’s forensic
examination and testimony regarding the same.
Commonwealth, 76 S.W.3d 923 (Ky. 2002).
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See
Noel v.
The Cabinet next contends that the family court’s
“judgment (on the issue of abuse and neglect) is against the
weight of the evidence.”
Specifically, the Cabinet contends the
family court erred by not finding that B.A.C. was an abused and
neglected child pursuant to KRS 600.020(1)(b) and (i).
The
Cabinet asserts that D.C. and B.R.C. created a risk of physical
injury to B.A.C. and did not comply with the treatment plan
established by the Cabinet.
The standard of review in a termination of parental
rights action requires us “to accord considerable deference to
the findings of the trial court.”
Commonwealth, Cabinet for
Families and Children v. G.C.W., 139 S.W.3d 172, 175 (Ky.App.
2004)(citing V.S. v. Commonwealth, Cabinet for Human Resources,
706 S.W.2d 420 (Ky.App. 1986)).
The court’s findings of fact
will not be disturbed on appeal “unless there is no substantial
evidence in the record to support them.”
Id. at 175 (citing
R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d
36 (Ky.App. 1998)).
The family court’s findings on this issue were both
thorough and exhaustive, being some sixteen pages in length.
The court made very specific findings of fact upon each factor
set forth in KRS 600.020(1).
There appears substantial evidence
in the record to support these findings.
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Accordingly, based upon the Cabinet’s failure to
properly preserve the before mentioned evidentiary issues and
upon the limited evidence presented, we conclude, albeit
reluctantly, that the family court made no error in finding that
B.A.C. was not an abused or neglected child.
For the foregoing reasons, the judgment of the Warren
Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE D.C.:
Mary Gaines Locke
Cabinet for Health and
Family Service
Munfordville, Kentucky
David Keen
KEEN & HARDIN, LLP
Bowling Green, Kentucky
BRIEF FOR APPELLEE B.R.C.:
Terry B. Boeckmann
TODD & BOECKMANN
Bowling Green, Kentucky
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