Opinion
2022-CA-0927-ME 2021-CA-1045-ME
02-10-2023
M.P. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; A.J-N.; AND M.A.P. JR., A MINOR CHILD APPELLEES AND A.B.N.J-N. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.A.P. JR, A MINOR CHILD; AND W.C.B., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT M.P: Ethan Chase Juliana Reczek Louisville, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky BRIEF FOR APPELLANT A.B.N.J-N.: Ashley Frank Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 22-AD-500012, 22-AD-500011
BRIEFS FOR APPELLANT M.P: Ethan Chase Juliana Reczek Louisville, Kentucky
BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky
BRIEF FOR APPELLANT A.B.N.J-N.: Ashley Frank Louisville, Kentucky
BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.
OPINION AFFIRMING
KAREM, JUDGE
These appeals arise from the Jefferson Family Court's orders terminating the parental rights of A.B.N.J-N. in her two children, and the parental rights of M.P., the father of the younger of the two children. The appeals have been designated to be heard by the same panel. Upon careful review, we affirm the family court's rulings in both appeals.
Appeal No. 2022-CA-1045-ME.
Appeal No. 2022-CA-0927-ME.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 14, 2018, A.B.N.J-N. ("Mother") gave birth to W.C.D. ("Older Child"). Older Child's putative father, R.L.D., is not a party to these appeals. Approximately one year later, the Cabinet filed a petition alleging abuse and neglect on the grounds that the police had been called to the home, Mother had been taken to the hospital, she and R.L.D. admitted to using methamphetamine, and Mother threatened to kill herself and Older Child. Older Child was placed in the temporary custody of the Cabinet for Health and Family Services ("the Cabinet"). Mother and R.L.D. stipulated that their substance abuse placed Older Child at risk of harm. After a short period in the custody of his maternal aunt, Older Child was placed in the permanent custody of the Cabinet. The family court issued orders attempting to reunify the family and directed the parents to cooperate with the Cabinet and undergo parenting assessment, substance abuse evaluation, random drug screens, and participate with UKTAP. Mother was directed to complete the CHOICES program. The parents were granted supervised visitation.
On August 10, 2020, Mother gave birth to M.A.P. ("Younger Child"). His biological father is the appellant M.P. ("Father"). Father was incarcerated in the Bullitt County jail beginning in January 2019, and remained there until January 2021, when he was transferred to a halfway house in Louisville.
A week after Younger Child's birth, the Cabinet filed a petition alleging abuse and neglect because Mother and Younger Child tested positive for methamphetamine during the Child's birth. Younger Child was placed in the temporary custody of his maternal aunt and then of the Cabinet. Father was not named in the dependency, neglect, and abuse ("DNA") action, but he was identified as Younger Child's putative father at the temporary removal hearing, which was held on August 18, 2020. Father remained incarcerated throughout the DNA proceedings and did not participate in them in any way, as there were no allegations of abuse or neglect against him at the time.
On November 17, 2020, Mother stipulated that her substance abuse placed Younger Child at risk, and he was committed to the custody of the Cabinet. As with Older Child, the family court issued various remedial orders directing Mother to follow the recommendations of the Cabinet. Father was directed to cooperate with the county attorney to establish paternity and to have no contact with Younger Child. Father was aware that Younger Child had been removed from Mother's care and his Cabinet case worker informed him that he needed to take a test to confirm his paternity and that he would be expected to complete a case plan before he could obtain visitation with Younger Child. While Father was in jail, his case worker tried unsuccessfully to contact the jail coordinator to schedule a paternity test.
Mother's compliance with the Cabinet's recommendations was sporadic at best. She was assessed by UKTAP in June 2019 but was inactivated three months later for failure to maintain contact. She was admitted to a residential drug treatment program shortly after Younger Child's birth but left two weeks later, against the advice of the staff. She attended an intensive outpatient program shortly thereafter, in September 2020, but failed to follow aftercare recommendations. She also tried unsuccessfully to participate in Jefferson Family Recovery Court. Mother did complete the CHOICES program and underwent a psychological evaluation which indicated that she may suffer from bipolar disorder. She did not complete protective parenting classes. Mother's drug screenings were inconsistent; she failed to show up on multiple occasions and tested positive at least seven times.
In January 2021, Father was transferred from jail to a halfway house and completed his sentence there. Upon his release on July 22, 2021, he waited for approximately five weeks before contacting Phillip Cross, his case worker, on September 1, 2021, even though Cross had asked Father to contact him when he got out of jail. Father claimed his dilatoriness was due to the fact that he believed Mother was doing well and trying to get the child back at that time. A paternity test was scheduled for September 22, 2021, but it was not performed because the phlebotomist was unexpectedly unavailable.
On October 6, 2021, Father called Cross to report that he had overdosed on heroin, totaled Mother's car, and had to be revived with Narcan. Father enrolled in Brightview, an outpatient substance abuse treatment facility, at the end of October 2021, but Cross testified that it was not a good fit. In November 2021, Father was over one hour late for a scheduled meeting with Cross which ultimately had to be canceled, and he missed another scheduled meeting with Cross altogether.
The Cabinet filed petitions for involuntary termination of Mother and R.L.D.'s parental rights in Older Child and Mother and Father's parental rights in Younger Child on January 12, 2022. Father thereafter enrolled in Praxis, an inpatient addiction treatment facility, and was released on February 21, 2022. He then went to the Men's Addiction Recovery Center ("MARC") for further inpatient treatment. Due to various delays not attributable to Father, the paternity test results confirming he is Younger Child's biological father were not obtained until February 14, 2022.
At the time of the trial on the termination petitions, which was held on May 20 and 23, 2022, Father had been sober since January 28, 2022, and was expected to complete the inpatient treatment at MARC on August 20, 2022. Father had completed two visitations with Younger Child, one virtual and one in person and they both went well. Younger Child's foster father, who was present at the visitation, testified that Father was affectionate and gentle with the child and told them he loves the baby.
Father, who was thirty years of age at the time of the trial, testified that he had started using heroin at the age of eighteen and had spent many years incarcerated. When he was asked how he planned to look after Younger Child should his parental rights not be terminated, Father admitted that he did not have a plan for housing. He testified that he was living in his grandmother's house, which is owned by an uncle who does not want children there. He also testified that he was in the process of getting a drivers' license.
Older Child's foster mother testified that the baby has delayed speech and a genetic disorder requiring regular medical care, but that he has improved dramatically. Foster mother facilitated visits with Mother, but they did not go well. Foster mother and her husband wish to adopt Older Child if parental rights are terminated.
Younger Child's foster father testified that the baby has been with his foster parents since he was seven weeks of age. They are the only parents he has ever known, and he calls them Mommy and Daddy. He interacts well with the three other children in the family. He is thriving and has no health problems. The foster parents wish to adopt him if parental rights are terminated.
Following the trial, the family court entered findings of fact and conclusions of law and orders terminating the parental rights of Mother, Father, and R.L.D. These individual appeals by Mother and Father followed. Further pertinent facts will be set forth below as necessary.
II. STATUTORY FRAMEWORK AND STANDARD OF REVIEW
Kentucky Revised Statutes ("KRS") 625.090 provides that a family court may involuntarily terminate parental rights if the court finds by clear and convincing evidence that a three-pronged test has been met. First, the trial court must find that the child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction or by the family court itself in the termination proceeding. KRS 625.090(1)(a)1. and 2. Second, the court must also find the presence of at least one of the eleven grounds listed in section (2) of the statute. KRS 625.090(2)(a)-(k). Third, termination of parental rights must be in the child's best interest, and the court is provided with a series of factors that it shall consider when making this determination. KRS 625.090(1)(c); KRS 625.090(3).
"[A]lthough termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met." M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). "[T]o pass constitutional muster, the evidence supporting termination must be clear and convincing. Clear and convincing proof is that of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (internal quotation marks and citations omitted). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Services. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (citation omitted).
Under the first prong of the statutory framework, the family court found that Older and Younger Child were abused or neglected, based on Mother's stipulation in the underlying DNA proceedings that her substance abuse placed both children at risk of harm. In the case of Father, the family court made an independent finding under KRS 625.090(1) that his prolonged incarceration constituted abandonment sufficient to meet the definition of abuse or neglect under KRS 600.020(1)(a)7. The family court expressly stated that because Father was not named as a responsible party in the underlying DNA action and was not brought to court or appointed counsel in those proceedings, it would not consider any testimony or evidence regarding his non-compliance with orders stemming from that action.
Under the second part of the statutory framework, the family court found two of the eleven grounds listed in KRS 625.090(2) applicable to both Father and Mother:
That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child[.]KRS 625.090(2)(e).
That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]KRS 625.090(2)(g).
Finally, under the "best interest" part of the framework, the family court found evidence to support findings under KRS 625.090(3)(b), which requires consideration of acts of abuse or neglect as defined in KRS 600.020(1) against any child in the family. It found that Mother had stipulated to neglect in the underlying DNA actions, and that the testimony of the Cabinet case worker, Cross, supported a finding that the children had been abused or neglected as a result of being abandoned for a period of not less than ninety days, by failing or being unable to comply with the Court's remedial orders and case plan so the children could be safely returned to parental custody, and by the failure or inability of the parents to support the children. Specifically in reference to Father, the family court found that he chose to participate in criminal activity resulting in long periods of incarceration and that he continued to use illegal drugs after his incarceration, thereby failing to provide for Child's needs. Under KRS 625.090(3)(c), the family court found that the Cabinet had made appropriate referrals and that the children had been abandoned for a period of over ninety days. Under KRS 625.090(3)(d), the family court considered the efforts and adjustments the parents had made to facilitate returning the child to the home. It found that Mother had not been compliant with the court's remedial orders in the underlying DNA actions. As to Father, the family court found his testimony regarding his ability to meet Younger Child's future needs to be lacking in credibility and concluded that he had not provided evidence of significant lasting improvements such that a return of Younger Child would be possible in the immediately foreseeable future.
III. FATHER'S APPEAL
i. Father was not denied due process when he was unrepresented in the underlying DNA proceedings.
Father argues that his Fourteenth Amendment due process rights were violated because he was not represented at every critical stage of the proceedings, specifically in the underlying DNA action. Father was not appointed counsel until March 2, 2022, after the pretrial hearing in the termination case.
"[P]ursuant to both the due process clause of the Fourteenth Amendment to the United States Constitution and KRS 625.080(3) and 620.100(1) . . . the parental rights of a child may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings." R.V. v. Commonwealth, Dep't for Health and Family Services, 242 S.W.3d 669, 672-73 (Ky. App. 2007). This right has been extended to include "all critical stages of an underlying dependency proceeding in district court, unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case." Id. at 673.
Father argues that if he had been appointed counsel in the underlying case, "he would have been able to engage in DNA testing and coordination with the Cabinet, and that he was 'absolutely interested' in keeping his child." He further argues that appointed counsel would have enabled him to file motions to prevent the goal of the Cabinet being changed from reunification to adoption.
Our case law is clear that counsel need not be appointed for a parent in DNA proceedings when that parent has not been accused of neglect or abuse and is not the custodial parent. In B.L. v. J.S., 434 S.W.3d 61, 62 (Ky. App. 2014), for example, this Court addressed a situation similar to Father's involving a biological father who was incarcerated and unrepresented during neglect proceedings against the child's mother. He contended that he was entitled to counsel during the neglect proceedings and that the lack of counsel adversely affected him in the subsequent involuntary adoption case, which is effectively a proceeding to terminate parental rights, at which he was represented by counsel. B.L., 434 S.W.3d at 65. This Court held that he was not entitled to representation during the neglect proceedings, because:
Biological Father was not accused of neglecting Minor Child and was not otherwise the subject of the neglect proceedings. Biological Father was also not involved with the Cabinet and did not have to take any steps for reunification, unlike Biological Mother. Most importantly, Biological Father was not the parent exercising custodial control or supervision of Minor Child during the time of the alleged neglect or at any time during the neglect proceedings. There is also no evidence in the record that Biological Father was involved in any capacity with Minor Child's care during the relevant times.B.L., 434 S.W.3d at 66-67.
This Court further noted two unpublished cases which "upheld terminations of parental rights when a parent did not have counsel for an underlying abuse, dependency, or neglect case when the complaining parent was not the parent exercising custodial control or supervision or otherwise involved in the underlying case. See R.R. v. Cabinet for Health and Family Services, No. 2013-CA-000175-ME, 2013 WL 4781523 (Ky. App. September 6, 2013); B.H. v. Cabinet for Health and Family Services, No. 2010-CA-000664-ME, 2010 WL 4905641 (Ky. App. December 3, 2010)." Id. The Court further held that Father's contention that his lack of representation in the neglect proceedings had a substantial impact on the adoption proceedings, was not supported by the record, because he was able to testify at length during the adoption hearing about his ability to parent and support the child and about his history of drug use and the trial court relied only on that evidence in making its determination regarding the adoption. Id.
The same reasoning is applicable to Father's case. The DNA proceedings relating to Younger Child were triggered by Mother's positive test for methamphetamine at his birth. The family court expressly recognized in its findings of fact that Father was not named as a responsible party, was not brought to court, and was not appointed counsel in those proceedings. In order to ensure that his due process rights were upheld, the family court disregarded any testimony or evidence relating to his non-compliance with the orders stemming from that action, stating: "Thus, while not ignoring his personal history with drug addiction and incarceration and his knowledge of the child's placement into State's care, with regard to his compliance with remedial efforts by the Cabinet, the Court has considered only evidence related to [his] actions after the closure of the DNA action in November 2020." Like the father in B.L., Father was given a full opportunity to be heard and present evidence at the termination proceedings. He testified at length about his criminal and substance abuse history and his potential ability to parent Younger Child. Father's claim that he could have established his paternity more quickly if he had been represented by counsel conflicts with his testimony that this type of testing was unavailable to him while he was incarcerated and is further undermined by the fact that he delayed for five weeks in contacting his caseworker upon his release from incarceration. In sum, Father has not shown how his lack of representation during the neglect proceedings had a substantial impact on his case in the termination proceedings.
ii. The Cabinet met its burden of proof in showing Father abused or neglected Younger Child and did not stand to make reasonable improvements in the foreseeable future.
Father argues that the Cabinet failed to meet its burden of proof because no testimony was offered at the trial that he had abused or neglected Younger Child. Father correctly claims that because Younger Child had never been adjudicated as abused or neglected by Father in the underlying action, the burden was on the Cabinet to prove neglect or abuse in the termination action. This approach is contemplated by the statute itself, which expressly provides for the family court to make an independent abuse or neglect finding based on the evidence offered at the termination proceedings. Father contends that because "incarceration alone cannot be considered as grounds for termination of parental rights[,]" the family court should not have considered any neglect allegations against Father that occurred before July 22, 2021, the date he was released from the halfway house. See J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985).
In its findings of fact and conclusions of law, the family court fully acknowledged that incarceration alone cannot be construed as abandonment supporting a termination of parental rights. It further noted, however, that a parent's absence may be a factor in determining whether a child has been neglected. "[A]bsence, voluntary or court-imposed, may be a factor to consider in determining whether the children have been neglected[.]" J.H., 704 S.W.2d at 664. "For example, a parent's choosing a 'criminal lifestyle' which results in him being incarcerated and creating risks of physical or mental injury to his children can be construed as neglecting a child." A.R.D. v. Cabinet for Health and Family Services, 606 S.W.3d 105, 111 (Ky. App. 2020). Father was incarcerated throughout Younger Child's entire life until his release from the halfway house, at which time the child was nearly one year old. During that period of incarceration, he was aware of Mother's pregnancy, of Child's birth, and his putative paternity. He was informed by his caseworker that he would have to undergo a paternity test and he was aware that a no-contact order was in place. Nonetheless, upon his release, Father delayed contacting Cross, even though Younger Child had been removed from Mother's custody immediately after his birth and Mother had thereafter struggled to follow her case plan. Even after contacting Cross, Father took an almost fatal dose of heroin and totaled Mother's car. He was late or failed to show up for meetings with Cross. Father's criminal misconduct resulted in his incarceration and initial separation from Younger Child. This evidence, combined with his behavior following his release, fully supported the family court's finding of neglect.
Father also challenges the family court's findings under KRS 625.090(2)(e) and (g), contending that the Court improperly used evidence of his past bad conduct in its conclusion that there was no reasonable expectation of improvement in parental care and protection, KRS 625.090(2)(e); or in his ability to provide essential food, clothing, shelter, medical care, and education, KRS 625.090(2)(g). He contends the family court failed to give sufficient weight to his sincere efforts to get sober and stay out of jail. The family court was faced with the overwhelming evidence of Father's past misconduct: many years of incarceration; heroin uses since he was eighteen years of age; his near-fatal overdose in October 2021, and his lack of realistic, tangible plans to find stable housing and employment. The family court was required to balance this evidence against the likelihood that in the foreseeable future he would remain sober, gain employment, and find appropriate housing, based on his five months of successful treatment at a residential facility. The family court was not disparaging Father's efforts; it was tasked with determining whether grounds existed to find that Father's potential future situation would allow Younger Child to live in safety and to thrive. It did not abuse its discretion in determining that Father did not demonstrate he would be able to give Younger Child the care he requires.
iii. The family court did not err in finding that the Cabinet had rendered or attempted to render all reasonable services to reunify Father with Younger Child.
Father's final argument is directed at the family court's findings under the "best interest" factors listed in KRS 625.090(3). The family court made findings supporting termination under KRS 625.090(3)(b), (c), (d), (e), and (f). Father challenges only its finding under KRS 625.090(3)(c), that the Cabinet had rendered or attempted to render all reasonable services to reunify Father with Younger Child. "Reasonable efforts" is defined as "the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community . . . which are necessary to enable the child to safely live at home[.]" KRS 620.020(13). Father contends that the only service the Cabinet ever offered to him was a paternity test which, through no fault of his own, was not completed until February 2022, after the termination petition had been filed. Father also points out that the Cabinet did not provide him with any information as to how or where to submit support for Younger Child or provide him with any indication that he could visit Younger Child.
In his testimony, Cross, the case worker, emphasized that the primary focus of the Cabinet's plan for Father was substance abuse treatment. Father himself was responsible for the delays in seeking this essential treatment. He delayed in reaching out to Cross upon his release from incarceration and continued to use drugs. Father did enroll in an outpatient treatment program after the overdose incident in October 2021, but withdrew without providing a full explanation to Cross. Father failed to attend meetings with Cross. Cross also arranged visitation for Father with Younger Child when he requested it, admittedly in violation of the no contact order. As to the child support issue, Father testified that he is unemployed and there was no evidence he would be able to hold gainful employment while he was in rehabilitation. Thus, by his own admission, it would have been futile for the Cabinet to direct him to pay child support. It is difficult to know what services the Cabinet could have offered to Father under the circumstances and the family court did not err in finding that the Cabinet's efforts were reasonable.
Ultimately, the issue is whether the family court should have refrained from terminating Father's parental rights until he completed inpatient drug treatment in August 2022, found gainful employment, a suitable place to live, and demonstrated over the long term that he was no longer involved in criminal activities or drug abuse. The family court found, based on Father's past and recent history, that this was an unreasonable expectation, and it was in the best interest of Younger Child, who had been in foster care for virtually his entire lifetime, for Father's parental rights to be terminated.
Congress overwhelmingly passed the AFSA [Adoption and Safe Families Act of 1997] to expedite the adoption of children in foster care and to address the phenomenon labeled as "foster care drift." . . . In response to the AFSA, the Kentucky General Assembly made significant changes affecting the termination of parental rights: (1) the definition of an "abused and neglected" child was amended to include a child left to linger in foster care for 15 of the last 22 months (KRS 600.020(1)(i)); and (2) the grounds for termination enumerated in KRS 625.090(2) were enhanced to include a "15/22 month" provision (KRS 625.090(2)(j)).
By enacting time limits to conform to the AFSA, it is clear that our legislature intended to leave children in foster care for as brief a time as possible.Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 664 (Ky. 2010) (quoting Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 177 (Ky. App. 2004)). The family court's decision reflects this legislative goal and is supported by clear and convincing evidence.
IV. MOTHER'S APPEAL (2022-CA-00145-ME)
Mother's sole argument on appeal is that the family court erred in refusing to grant her a continuance to obtain new counsel. Mother was represented by appointed counsel, Ashley Frank, throughout the underlying DNA actions relating to both children. Frank was also appointed to represent Mother in the termination proceedings. On the morning of the first day of trial, Mother appeared via Zoom from the office of attorney Paul Mullins. Mullins informed the court that Mother had contacted him on the afternoon of the previous day, seeking his representation. Mullins was prepared to represent Mother but only if he was granted a continuance; otherwise, he planned to withdraw immediately because he could not represent her on such short notice. According to Mullins, Mother told him the family court judge would grant a continuance based on the judge's prior statements at a pretrial hearing. Although the recording of that pretrial hearing is not included in the record before us, the docket indicates it was held on February 8, 2018.
Attorney Frank, who was present in the courtroom, told the court Mother emailed her at 5:55 a.m. that morning to request her file. She recalled that at the pretrial hearing, Mother had informed the family court that she did not want Frank to represent her and the family court at that time told Mother she needed to retain new counsel. Counsel for Father told the family court she also wanted a continuance for numerous reasons. Counsel for the Cabinet, upon questioning by the court, stated that she was prepared to move forward with the trial that day.
The family court denied the continuance, citing the lengthy time the children had been in care. The family court also stated that it had been very clear at the pretrial hearing that a continuance would not be granted for Mother to seek new counsel because it was Mother's responsibility to procure new counsel in a timely manner.
"With respect to the denial of a continuance, our standard of review is whether the court abused its discretion." Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (citation omitted). "To amount to an abuse of discretion, the trial court's decision must be 'arbitrary, unreasonable, unfair or unsupported by sound legal principles.'" Duffy v. Duffy, 540 S.W.3d 821, 826 (Ky. App. 2018) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). In determining when the denial of a continuance constitutes an abuse of discretion, we consider the following factors:
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice.Guffey, 323 S.W.3d at 371.
Mother argues that the family court abused its discretion in denying her motion for a continuance because all the litigants were in agreement in wanting a continuance, with the exception of the Cabinet. She contends that neither child would have been adversely affected by a continuance because they would remain in the care of their respective foster parents whether the trial was delayed or not.
The family court's decision was not an abuse of discretion when reviewed in light of the Guffey factors listed above. The sought-after delay was caused by Mother herself; she was placed on notice months before by the family court at the pretrial hearing that she would have to procure new counsel if she was dissatisfied with her appointed counsel and that a continuance would not be granted for her to do so. Mother did not seek new counsel until the afternoon of the day before trial and only contacted her appointed attorney to obtain her file on the morning of trial. Mother provided no explanation for her delay in seeking new counsel. Furthermore, competent counsel was available to Mother. Her appointed attorney was present and prepared for trial and provided effective representation throughout the proceedings. Mother has also failed to identify any prejudice stemming from the family court's decision to deny the continuance and she does not explain why representation by a different attorney would have led to a different outcome. Rescheduling the trial was inconvenient to the court and to the parties and witnesses. The father of Older Child was incarcerated and had been transported to the courthouse to attend the trial in person. A continuance would also have meant another period of uncertainty for the foster parents, and especially for the two children whose best interests were at the center of the proceedings.
Mother further argues that her Sixth Amendment right to counsel was violated because she denied the opportunity to be represented by the attorney of her choice.
"The Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [defense].' We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006). In Kentucky, the right to assistance of counsel in criminal proceedings has been extended to every critical stage of involuntary termination of parental rights proceedings, pursuant to both the due process clause of the Fourteenth Amendment to the United States Constitution and KRS 625.080(3) and KRS 620.100(1). R.V., 242 S.W.3d at 672-73. The right to choose one's own counsel is not, however, unlimited, even in criminal proceedings. "It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice[.]" Gonzalez-Lopez, 548 U.S. at 144, 126 S.Ct. at 2561 (citing Powell v. State of Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932)).
The record shows Mother was provided with ample opportunity to secure counsel of her own choice but simply failed to do so in a timely manner. Mother indicated her desire to retain new counsel at the pretrial hearing and was afforded over three months thereafter in which to do so. The Sixth Amendment did not require the family court to provide her with unlimited opportunities to secure new counsel.
V. CONCLUSION
For the foregoing reasons, the Jefferson Family Court's findings of fact, conclusions of law, orders terminating parental rights, and orders of judgment are affirmed in Appeal No. 2022-CA-0927-ME and Appeal No. 2022-CA-1045-ME.
ALL CONCUR.