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Commonwealth v. H.C.

Supreme Court of Kentucky

August 29, 2019

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT
v.
H.C.; AND L.E., A CHILD APPELLEES

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2018-CA-000164-MR HARRISON CIRCUIT COURT NOS. 17-J-00016, 17-J-00016-001

          COUNSEL FOR APPELLANT, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Mark Stephen Pitt Stephen Chad Meredith Matthew Kuhn Office of the Governor Mona Sabie Womack Deputy General Counsel, Cabinet for Health and Family Services Johann Frederick Herklotz Matthew Kleinert Cabinet for Health and Family Services

          COUNSEL FOR APPELLEE, H.C.: Joshua Andrew Kelly McWilliams McWilliams Law Office

          COUNSEL FOR APPELLEE, L.E., A CHILD: Todd Kirt Kellett

          OPINION

          KELLER JUSTICE

         In a Dependency, Neglect, and Abuse ("DNA") proceeding, the Harrison Family Court denied the indigent mother's request for expert funding and eventually found the child to be a neglected child. The mother failed to timely file her notice of appeal of that decision, but the family court permitted a belated appeal. The Court of Appeals then reversed the family court's expert funding decision, finding that the mother's constitutional due process rights were impacted. The Cabinet sought discretionary review, which this Court granted. Having reviewed the record and the applicable law, we find that the

          Court of Appeals lacked jurisdiction and, as a result, we vacate the Court of Appeals' order and reinstate the order of the Harrison Family Court.

         I. BACKGROUND

         H.C.[1] is the natural mother of minor child L.E. M.E. is L.E.'s natural father. On January 31, 2017, the Cabinet for Health and Family Services ("Cabinet") received a report that M.E. used intravenous drugs while caring for L.E. Both parents denied using any drugs and voluntarily submitted to a drug screen. Both parents tested positive for Buprenorphine (suboxone), but neither parent had a prescription for the drug. As a result, on February 6, 2017, the Cabinet for Health and Family Services ("Cabinet") Department for Community Based Services ("DCBS") filed a juvenile DNA petition against H.C. and M.E. On February 15, 2017, the family court found both parents to be "needy," or indigent, [2] and entitled to representation and services under KRS 31.110. The court therefore appointed counsel for each parent. The court also ordered drug screens for both parents. Over the next several months, both H.C. and M.E. consistently tested positive for suboxone.

         On November 9, 2017, H.C. sought funds from the indigent funding pool[3]to hire an expert on addiction, Dr. Kelly J. Clark. Dr. Clark's testimony, she argued, would support her defense that her use of suboxone did not impair her ability to parent. After oral argument on November 9, 2017, the family court orally denied H.C.'s motion for expert funds, finding no express statutory basis to award the requested fees. That same day, H.C. entered a Stipulation of Facts 85 Waiver of Formal Adjudication Hearing, in which she stipulated to the facts alleged in the petition but reserved her right to appeal the expert funding issue. The family court, therefore, made a finding of neglect. On December 21, 2017, the family court entered a final disposition order placing L.E. in the custody of her maternal grandparents.

         On January 3, 2018, counsel for H.C. attempted to file a notice of appeal of the December 21, 2017 order. However, counsel failed to include a Motion to Proceed In Forma Pauperis. As a result, the Harrison Circuit Clerk mailed the notice of appeal back to counsel. Counsel then refiled the notice, along with a Motion to Proceed In Forma Pauperis, on January 25, 2018. On that same date, counsel also filed a Motion for Belated Appeal in the family court., In that motion, counsel explained that the date stamp on his copy of the final order was difficult to read, and he believed it reflected an entry date of December 27, 2017, rather than December 21, 2017. On January 26, 2018, [4]the family court granted the belated appeal, citing excusable neglect under CR 73.02(1)(d).

         The Court of Appeals vacated the family court's order, finding that H.C.'s due process rights were impacted by her inability to hire an expert in her DNA case. The timeliness of the appeal was addressed only briefly in a footnote. The Court of Appeals explained,

While the mother used the wrong mechanism and moved for a belated appeal-which must be filed, in this instance, in the Court of Appeals rather than the family court-and based the motion on a mistake in reading the date of the final order rather than failing to learn of its entry, we shall accept the court's ruling in this case and retain jurisdiction to decide the issue raised in the appeal.

         The Cabinet then initiated this appeal. In addition to its position that the Court of Appeals' decision should be reversed on the merits, the Cabinet also argues that H.C.'s failure to timely appeal requires dismissal. For the reasons set forth herein, we agree that ...


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