III AND APPELLANTS v. AND CHILD APPELLEES (2012)

NOT TO BE PUBLISHED

OPINION AND ORDERAFFIRMING AND CONSOLIDATING

L.A.M. and J.M., pro se, appeal from the November 12, 2010, order of the Union County Family Court finding that allegations of sexual abuse against L.A.M. and allegations of neglect against J.M. were substantiated.   Although J.M. and L.A.M. filed separate appeals, because their briefs and the issues they raise are substantively identical, we hereby consolidate their appeals.   On appeal, L.A.M. and J.M. assert that the family court committed nine errors, thus violating their right to due process.   The Cabinet for Health and Family Services (the Cabinet), in briefs that are also substantively identical, argues that there was sufficient evidence to support the family court's judgment and that a substantial portion of the appellants' arguments are not related to the judgment from which they appeal.   Having reviewed the briefs and the record, we affirm.

FACTS

On or about February 12, 2010, the Cabinet received a report alleging that J.M. was leaving J.S., her four-year-old daughter, alone with L.A.M. The allegations indicated that L.A.M. had a history of child sexual abuse and that J.S. was at risk of being abused.   The Cabinet assigned Danielle Zogg (Zogg) to investigate the allegations.   On February 12, 2010, Zogg visited the home J.M., J.S., and L.A.M. shared and briefly interviewed both J.M. and J.S.^Double

On February 17, 2010, the Cabinet re-assigned the case to Stephanie Conley (Conley).   During the course of her investigation, Conley interviewed L.A.M., J.M., and child care workers at J.S.'s daycare center.   Based on her findings, Conley filed two dependency, neglect, and abuse petitions on behalf of the Cabinet.   One petition alleged that L.A.M. had sexually abused J.S. The other alleged that J.M. neglected J.S. because, knowing L.A.M. had been accused of sexual abuse, she left J.S. in L.A.M.'s care, putting J.S. at risk.   The court conducted a temporary removal hearing on April 28, 2010, and determined that there were reasonable grounds to believe the allegations contained in the petitions.   Based on that finding, the court ordered L.A.M. not to have any contact with J.S. However, the court left J.S. in J.M.'s custody.

Following a number of interim hearings to address evidentiary motions and motions to compel J.M.'s cooperation, the court conducted a final adjudication hearing, following which the court determined that the Cabinet's allegations were substantiated.   It is from this order that L.A.M. and J.M. appeal.

We set forth additional facts as necessary below.

STANDARD OF REVIEW

We review a trial court's findings of abuse and neglect for abuse of discretion.  R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 38 (Ky.App.1999).

ANALYSIS

At the outset of our analysis, we note that J.M. and L.A.M. make arguments in their briefs regarding orders issued by the trial court after it issued its findings that the Cabinet's allegations were substantiated.   Those subsequent orders are not subjects of this appeal and issues raised regarding them are not properly before us.   Therefore, we do not address any such arguments and confine ourselves to addressing the court's findings that the Cabinet's allegations were substantiated.

As noted above, J.M. and L.A.M. list nine issues.   We address each below.

1. Whether the Allegation of Sexual Abuse Was Unfounded

J.M. and L.A.M. argue that the allegation of sexual abuse was unfounded because it was based, in part, on the erroneous assumption that J.S. had suffered from numerous urinary tract infections.   J.M. testified that Zogg told her that J.S. had suffered from numerous urinary tract infections, an allegation J.M. has consistently denied.   However, the allegation of urinary tract infections was not the only evidence offered to support the allegation of abuse.   Both Zogg and Conley testified that J.S. stated that L.A.M. had “hurt her pee pee;” J.S. stated in a forensic interview that L.A.M. had hurt her;  and employees at the daycare center J.S. attended testified that J.S. engaged in inappropriate touching and other sexualized behavior.   Therefore, even if J.S. did not suffer from numerous urinary tract infections, the record contains sufficient other evidence to support the allegation of sexual abuse.   Therefore, this argument is without merit.

2. Whether Cabinet Personnel Violated Scientific/Forensic

Methods When They Interrogated J.S.

In their briefs, L.A.M. and J.M. argue that interviews of J.S. by Zogg and Conley violated forensic methods and tainted a subsequent forensic interview of J.S. However, L.A.M. and J.M. do not point us to where in the record this issue was preserved and our search of the record has not revealed that the issue was preserved.   Furthermore, neither L.A.M. nor J.M. objected to the testimony of the forensic interviewer on the grounds that J.S.'s statements had been tainted by Zogg or Conley.   Nor did they ask the forensic interviewer if J.S.'s conversations with Zogg and Conley had any impact on her interview.

“The function of the Court of Appeals is to review possible errors made by the trial court, but if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review.”  Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky.App.1985).   Because this issue was not raised before the family court we need not address it.

3. Whether Cabinet Workers Coerced J.M. to Sign a Case Plan

Next, J.M. and L.A.M. argue that Zogg and Conley threatened J.M. with removal of J.S. from her home if J.M. did not sign a case plan.   Assuming that is true, neither J.M. nor L.A.M. has shown how the development of or signing of a case plan by J.M. had any impact on the trial court's findings.   In fact, the trial court's findings were based on J.S.'s statements that L.A.M. had touched her and J.S.'s inappropriate behavior at daycare.   They were not based on the case plan.   Therefore, this argument is without merit.

4. Whether Cabinet Personnel Violated

Court Orders Against “Secret Interrogations”

On May 12, 2010, the Cabinet filed a motion to compel J.S.'s participation in counseling.   In the motion, Conley noted that she had attempted to contact J.M. to schedule counseling for J.S. in their home, but that J.M. refused to speak with her.   At a hearing on that motion, J.M. testified that she had already started J.S. in counseling with a counselor at “Lighthouse,” and she did not believe any additional counseling was necessary.   J.M. also stated that she had no objection to the Cabinet's involvement;  however, she objected to having any contact with the Cabinet unless her attorney and J.S.'s attorney were present.

The court advised J.M. that she could have attorneys present for herself and J.S. when speaking with Conley or any other Cabinet personnel.   However, the court also advised J.M. that it was her obligation to arrange for attorneys to be present, not Conley's or the Cabinet's.   Furthermore, the court advised J.M. that Conley might conduct “surprise” home visits.   During those visits, neither J.M. nor J.S. were required to speak with Conley, but J.M. was required to permit Conley to perform a home investigation.

J.M. and L.A.M. argue that Conley violated the court's order by “storming” into J.S.'s pre-school and conducting a “secret interrogation and ‘medical’ exam” without counsel being present.   This argument is without merit because there is no evidence in the record that Conley interrogated or otherwise examined J.S. at her pre-school.   In fact, Conley testified that the only time she interviewed J.S. was on February 18, and that interview took place at the courthouse, not J.S.'s pre-school.

5. Whether Statements by J.S. Were the Result

of a “Forced and Unsupervised Interrogation”

L.A.M. and J.M. argue that Zogg conducted a forced interrogation and medical exam of J.S. on February 12, 2010, to submit false allegations of urinary tract infections and sexual abuse.   They argue that the allegations of urinary tract infections were disproved by medical records attached to their briefs as exhibits.   These arguments are also without merit for at least four reasons.

First, Zogg did not conduct a medical exam of J.S. Zogg testified that J.S. pulled down her pants during her interview to show what had gotten J.S. in trouble at daycare.   To the contrary, J.S. stated that Zogg pulled down J.S.'s pants and hurt her.   Neither of these two versions of events would constitute a medical exam.   Therefore, that portion of L.A.M.'s and J.M.'s argument is not factually accurate.

Second, Zogg did not allege that J.S. had frequent urinary tract infections.   That allegation was made by whoever made the initial report of abuse to the Cabinet.   Zogg just relayed that allegation to J.M. when she first spoke with her.   Third, the documents attached to the briefs were not admitted into evidence before the trial court and are not part of the record.   We cannot consider “evidence” that was not part of the record before the trial court.   Lucas v. Lucas, 720 S.W.2d 352, 353 (Ky.App.1986).   Fourth, even if the medical record attached to L.A.M.'s and J.M.'s briefs had been admitted, it does not address whether J.S. had a history of urinary tract infections.   It simply notes that the examination on February 12, 2010, was “normal.”

6. Whether the Clerk's Office Unlawfully

Refused to Provide Records to L.A.M. and J.M.

Following the initial allegations, L.A.M. underwent an interview with a police detective, Officer Carter, and Conley.   During that interview, L.A.M. indicated that he would be willing to undergo a polygraph exam.   When Officer Carter attempted to contact L.A.M. to schedule the exam, J.M. indicated that L.A.M. would only undergo the exam if his attorney could be present.   Because L.A.M. did not yet have an attorney, the exam was never scheduled.

In their briefs, L.A.M. and J.M. indicate that L.A.M. contacted Officer Carter and requested “a copy of his report and a copy of the recording of the interview.”   According to L.A.M. and J.M., Officer Carter has not provided either, which constitutes “Obstruction of Public Administration” in violation of KRS 519.020 and this Court's order designating this matter as expedited.   This argument is without merit for at least three reasons.

First, there is no indication in the record that either L.A.M. or J.M. requested Officer Carter's report or a recording of the interview, or that Officer Carter refused to provide that report.   Second, KRS 519.020 indicates that “[a] person is guilty of obstructing governmental operations when he intentionally obstructs, impairs or hinders the performance of a governmental function by using or threatening to use violence, force or physical interference.”   There is no evidence that Officer Carter, the court clerk, or anyone used or threatened violence, force, or physical interference to keep the requested report/recording from L.A.M. or J.M.. Third, there is no evidence that L.A.M. or J.M. preserved this issue before the trial court.   As noted above, we cannot address an issue that was not preserved.

7. Whether the Trial Court Ignored Statutes Mandating

Placing J.S. with Family Members Rather Than With the State

The order from which L.A.M. and J.M. appeal simply indicates that the allegations of abuse and neglect were substantiated.   It does not remove J.S. from J.M.'s care.   Therefore, this issue is not properly before us.

8. Whether the Trial Court Issued a Custody Order

Based on False Allegations

As noted above, the order from which L.A.M. and J.M. appeal does not address custody.   Therefore, any issues regarding custody are not properly before us.

9. Whether the Trial Court was Robbed of

Jurisdiction by the Cabinet's Fraud

L.A.M. and J.M. argue that Zogg committed a fraud upon the court when she made false allegations that J.S. suffered frequent urinary tract infections and unlawfully interrogated J.S. They also argue that Conley conducted an unlawful interview of J.S. and apparently testified that L.A.M. had violated the no contact order.   According to L.A.M. and J.M., this fraudulent testimony by Zogg and Conley nullified the court's jurisdiction and resulted in a “void judgment.”

We note again that Zogg did not make the allegations that J.S. had frequent urinary tract infections.   We also note again that neither L.A.M. nor J.M. have set forth any evidence that the interviews of J.S. by Zogg and Conley were unlawful or even improper.   Furthermore, we note that L.A.M. and J.M. state that “Ms. Conley never witnessed a violation of the ‘no contact order’ on November 23, 2010.”   What Conley did or did not observe on November 23, 2010, is not relevant to this appeal because the order appealed from was entered two weeks before, on November 12, 2010.

Finally, while L.A.M. and J.M. have pointed to evidence that they believe discredits the testimony of Conley and Zogg, they have not established that Conley and Zogg attempted to perpetrate a fraud on the court.   In the vast majority of cases, evidence from one side contradicts evidence from the other.   The fact that there may be contradictory evidence is one of the reasons for the court's existence, it is not a reason to “rob” a court of jurisdiction.

CONCLUSION

It is hereby ordered that L.A.M.'s and J.M.'s appeals are consolidated.   Furthermore, having reviewed the evidence of record and the arguments of the parties, we agree with the Cabinet that there was sufficient evidence of substance in the record to support the family court's findings.   Furthermore, we discern no abuse of discretion by the family court or denial of due process.   Therefore, we affirm.

all concur.

ENTERED:  April 13, 2012 /s/ Michelle M. Keller

JUDGE, COURT OF APPEALS

KELLER, JUDGE: