CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AS NEXT FRIEND OF B.B.L., A CHILD; AND B.B.L., AN INFANT AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AS NEXT FRIEND OF H.A.C., A CHILD; AND H.A.C., A CHILD APPELLEES
APPEAL FROM LAWRENCE CIRCUIT COURT HONORABLE JANIE MCKENZIE-WELLS, JUDGE ACTION NO. 10-AD-00007 AND 10-AD-00008
BRIEF FOR APPELLANT: Eldred E. Adams, Jr. Louisa, Kentucky.
BRIEF FOR APPELLEES CABINET FOR HEALTH AND FAMILY SERVICES: David T. Adams Paintsville, Kentucky.
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND STUMBO, JUDGES.
M.L.C. appeals from the Lawrence Family Court's June 28, 2012, orders terminating her parental rights to her children, B.B.L. and H.A.C. After careful review of the record, we vacate the orders of the trial court and remand for proceedings consistent with this opinion.
When M.L.C. was eighteen, she committed a robbery with her boyfriend in West Virginia, for which she pled guilty and received a twenty-year sentence. She is now serving that sentence at the Lakin Correctional Center for Women in West Columbia, West Virginia. She has been before the parole board twice but has not yet been released. She could potentially meet with the parole board again in a few months. M.L.C. is scheduled for release in April 2015, if she is not paroled sooner.
At the time of the hearing in the instant matter, M.L.C. was twenty-six years old and had spent her entire adult life in prison. She has taken the opportunity to get her GED and has completed thirteen education classes and earned six college credit hours. She has also completed several drug classes and is now enrolled in the institution's one-year drug program. She has been accepted to four colleges pending her release from prison and has obtained approval for financial aid accordingly.
On March 18, 2009, M.L.C.'s two children were placed in foster care by the Lawrence Family Court. The children had been residing with M.L.C.'s mother prior to placement with the Cabinet for Health and Family Services (Cabinet). On or about April 17, 2009, B.B.L. was adjudicated to be neglected and was committed to the Cabinet. On or about April 20, 2009, H.A.C. was adjudicated to be neglected and was also committed to the Cabinet. At the time of the hearing on this matter, the children had been in foster care for over three years.
During the time the children were in foster care, M.L.C. sent them eight cards or letters and two gifts, one for each child. She also wrote four letters to the case worker. At the hearing, M.L.C. testified by telephone that she receives $36.90 in state pay per month, which she uses to pay for soap, shampoo, conditioner, deodorant, and a book of stamps. M.L.C. stated that if a court order were issued, an additional ten percent of her pay could be sent directly to the state for child support. During the hearing, the Cabinet emphasized that M.L.C. had not visited with her children; however the social worker did testify on cross-examination that the foster parents were not required to take the children outside the Commonwealth of Kentucky for visitation with M.L.C. M.L.C. testified that she had inquired with the caseworker several times about visitation with the children and had asked if the children were receiving her letters, as she had not received anything back from the children. She testified that she has weekly contact with an older son, who is in the care of her grandmother, and explained that she has maintained a relationship with him. Her testimony indicated that she wants what is best for her other two children, and she understands that she will need help reuniting with them and parenting them once she is released from prison. She testified that she does not want to lose all contact with her children.
At the conclusion of the termination hearing, the Lawrence Family Court terminated M.L.C.'s parental rights to B.B.L. and H.A.C. M.L.C. filed a motion to alter, amend, or vacate the judgment and a motion for the trial court to make additional findings of fact. The trial court denied the motion to alter, amend, or vacate on October 9, 2012, and did not make a ruling on the motion for additional factual findings. This appeal now follows.
M.L.C. first argues that the trial court erred by not continuing the termination hearing until she was released from custody. M.L.C. filed a motion for a continuation and objected to conducting the proceedings by speakerphone. The trial court ordered briefing on the issue of M.L.C. testifying in a termination proceeding by telephone. Neither counsel was able to find a Kentucky case relating to whether or not a termination proceeding may be conducted with the parent only appearing by speakerphone.
However, the Cabinet points to an unpublished case, J.W. v. Cabinet for Health and Family Services, 2010 WL 3189597 (Ky. App. 2010), wherein this Court considered a case where a mother's parental rights were terminated after testimony by telephone, while the mother was incarcerated. This Court stated, "The record discloses that the trial court telephoned the penal institution where the mother was incarcerated and used a speakerphone during the hearing. Mother was able to hear all witnesses and communicate with counsel. While she was not physically present, her presence by telephone was sufficient." Id. at 2.
M.L.C. argues that the issue is one of first impression, as J.W. is unpublished and the real issue in that case dealt with whether the Guardian Ad Litem (GAL) rendered ineffective assistance of counsel by failing to keep the mother adequately informed of the proceedings. Thus, she ...