Opinion
NO. 2018-CA-001466-ME
07-05-2019
B.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, AND A.X.C.C., AN INFANT APPELLEES
BRIEF FOR APPELLANT: Steven N. Howe Dry Ridge, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRANT CIRCUIT COURT
HONORABLE REBECCA LESLIE KNIGHT, JUDGE
ACTION NO. 17-AD-00022 OPINION
AFFIRMING
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BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. GOODWINE, JUDGE: B.W. ("Father") appeals the Grant Circuit Court's judgment terminating parental rights to his child, A.X.C.C. ("Child"). Father alleges: (1) there was insufficient evidence offered by the Cabinet for Health and Family Services ("the Cabinet") that he was unable to provide for Child and; (2) he presented proof by a preponderance of the evidence that Child will not be abused or neglected in the future. After careful review, finding no error, we affirm.
BACKGROUND
Child was born on April 6, 2016. At that time, Father and L.W. ("Mother") were married and Father was listed on Child's birth certificate. Two days after Child's birth, the Cabinet filed a dependency, neglect, or abuse petition in Grant District Court, alleging Mother had untreated mental health issues and Father had current substance abuse concerns. Additionally, the petition alleged both parents had three other children previously removed from their care due to the same concerns. The district court entered an emergency custody order and Child was placed with the Cabinet. He has remained in foster care since April 8, 2016. The district court held a temporary removal hearing on April 12, 2016. It appointed a guardian ad litem and granted Mother supervised visitation with Child. On May 24, 2016, Mother stipulated to dependency.
Though Father never requested a DNA test, he is presumed to be Child's father. "A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife." KRS 406.011. No other person meets the statutory requirements to be named as Child's putative father with parental rights based on KRS 625.065. Father caused his name to be affixed to Child's birth certificate. KRS 625.065(1)(c).
16-J-00067-001.
On June 21, 2016, the district court held a disposition hearing and adopted the recommendations of the Cabinet for Father to present himself to the court, or the Cabinet, and to cooperate. James Andrew Northcutt ("Northcutt"), the Cabinet caseworker, testified that a more detailed case plan could not be developed for Father because the Cabinet was unable to locate him following an Absent Parent Search. Consequently, the Cabinet never had any contact with Father until the day of trial, approximately two years later. A case plan was developed for Mother. She completed parenting classes in August of 2016 and visited with Child approximately ten times. She has not seen Child since September of 2016. Mother did not appear for any subsequent placement reviews and did not appear for trial.
Despite the lack of contact with Father, the Cabinet was concerned about Father's ability to parent because the family had a long history with the Cabinet. Father and Mother have three additional children in common, all born prior to Child. In 2010, the Cabinet received a report that Father was on drugs and Mother was afraid to leave the children with him. The children remained with the parents at that time.
Twenty days before trial, Mother had a fifth child, born July 12, 2018. Its paternity is unknown. As she had done with her other children, Mother called the Cabinet for assistance with that child as well.
Two years later, the Cabinet became involved with the family again because Father failed a drug test. All three children were removed from the parents due to Father's substance abuse and Mother's mental health issues. Following removal of those children, the Cabinet referred Father for a psychological assessment, which he completed in April 2013.
In the assessment, Father reported using cannabis with no intention or desire to quit. He stated his greatest worry was "running out of drugs." (R. at 60). He was unemployed. Id. The psychologist concluded, "[i]ndividuals with similar profiles are impulsive, rebellious, outgoing, and often have employment, substance abuse, marital and legal problems[]" Id., and subsequently recommended an outpatient, substance abuse treatment program with random drug screens. If positive, Father was to enroll in an inpatient substance abuse treatment program with long-term aftercare. Id. Father did not follow the recommendations. He has not seen or spoken to two of the three other children for two years. He sees the oldest child when he walks to his mother's house but has not regained custody. Father has never seen Child, nor contacted the Cabinet or Mother to attempt to parent Child.
The oldest child lives in Grant County with Father's mother. The other two children live in Florence, Kentucky, with maternal relatives.
On October 25, 2017, the Cabinet filed a petition to involuntarily terminate parents' parental rights. The circuit court conducted the trial on August 2, 2018. Mother did not attend. Father was present and represented by counsel. Child was before the court through service on the guardian ad litem, who also represented him at trial. The Cabinet called Northcutt to testify. He testified Mother's last visit was in September 2016 and that he had no contact with Father despite reasonable efforts.
Mother was constructively served by a warning order attorney.
Father testified that he lived in Grant County for years, was not contacted by the Cabinet, and never received notice about the dependency, neglect, or abuse proceedings in June 2016. He testified on direct examination: (1) he did not know about Child's birth because he was not living with Mother at the time; (2) he did not have a job; (3) he served time in jail for shoplifting and failing to pay child support; (4) that upon his release from jail, he was looking for employment; and (5) he wanted to work a case plan to get custody of Child. However, on cross examination, Father admitted he knew about Child two weeks after he was born because his mother told him about the birth. He also testified Mother showed him a video of Child. He acknowledged he did not contact Mother, or the Cabinet, to attempt to see Child.
Following proof, the circuit court verbally terminated parents' parental rights to Child. It entered written findings of fact, conclusions of law, and a judgment terminating parental rights on September 17, 2018. This appeal followed.
Mother did not appeal the termination of her parental rights.
STANDARD OF REVIEW
"The standard of review that an appellate court uses in a termination of parental rights case is the clearly erroneous standard. Thus, a trial court's findings of fact will not be set aside unless unsupported by substantial evidence." C.J.M. v. Cabinet for Health and Family Services., 389 S.W.3d 155, 160 (Ky. App. 2012). Termination decisions are inherently factually sensitive. Thus, an appellate court, "[must] give a great deal of deference to the trial court's findings." D.G.R. v. Com., Cabinet for Health and Family Services., 364 S.W.3d 106, 113 (Ky. 2012). Additionally, "judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003); see also CR 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").
Kentucky Rule of Civil Procedure.
ANALYSIS
Under Kentucky law, a court may involuntarily terminate a parent's rights to a child if the court finds by clear and convincing evidence that said termination meets the requirements of KRS 625.090. "Clear and convincing proof . . . is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998)).
As required by the holding in Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 210-11 (Ky. 2014), the circuit court made specific findings concerning the conduct of each parent in concluding termination was warranted. Father argues that the circuit court erred in finding that the requirements of KRS 625.090 had been satisfied prior to involuntarily terminating his parental rights. Before a court may involuntarily terminate a parent's rights, it must find by clear and convincing evidence that the child has been adjudged to be abused or neglected as defined in KRS 600.020(1), that one or more of the requirements in KRS 625.090(2) have been met, and that termination is in the best interest of the child under KRS 625.090(3). Id. at 209.
The circuit court entered detailed and well-reasoned findings of fact and conclusions of law, applying the statutory requirements to the facts of the case. First, under KRS 625.090(1)(a), the circuit court found Child was an abused or neglected child as defined in KRS 600.020(1). "[Father] had been using drugs during the period of the other children's removal and had abandoned respondent mother and his unborn child prior to the birth of [Child]." (R. at 68).
Father argues that the drug use was in 2010, and there was no evidence of substance abuse during the last eight years. However, Father never completed the 2013 recommendations and provided no evidence to show he changed his lifestyle. The circuit court found additional factors substantiating abuse or neglect under KRS 600.020(1). Namely, Father (1) failed to provide parental care and protection; (2) abandoned or exploited Child; (3) failed to offer Child adequate care, supervision, food, clothing, shelter, and education or medical care necessary for Child's well-being, for reasons other than poverty alone; and, (4) failed to make sufficient progress toward identifiable goals as set forth in a court-approved case plan. We find no error in the circuit court's finding Child was abused or neglected.
Second, the circuit court found several factors of parental unfitness under KRS 625.090(2) by clear and convincing evidence. (1) Father abandoned or exploited Child for a period of not less than 90 days. KRS 625.090(2)(a). (2) For a period of not less than six months, Father was substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement. KRS 625.090(2)(e). (3) Not due to poverty alone, Father failed to provide Child with any necessary life provisions since the Child's removal in April 2016 and there was no reasonable expectation of significant improvement. KRS 625.090(2)(g). And, (4) Child had been in the Cabinet's care for fifteen (15) cumulative months out of twenty-two (22) months. KRS 625.090(2)(j).
KRS 625.090(2)(j) has been amended, effective July 14, 2018, to include fifteen cumulative months out of forty-eight. --------
Father knew about Child and his placement with the Cabinet and made no efforts to see, parent, or provide for the child for more than two years. He abandoned Child just as he had abandoned his other children. He did not follow the Cabinet's case plan involving his prior born children. Father evinced a settled purpose to forgo all parental rights and responsibilities to Child. Child was in Cabinet's continuous care since April 8, 2016.
Finally, the circuit court was required to determine whether termination was in the best interest of Child using the factors in KRS 625.090(3). Father argues that the Cabinet did not demonstrate by clear and convincing evidence that termination of his parental rights is in the best interest of Child. Specifically, he argues (1) there was insufficient evidence offered by the Cabinet that he was unable to provide for Child; and (2) he presented proof by a preponderance of the evidence that Child will not be abused or neglected in the future. As is obvious from our prior analysis, we disagree.
The circuit court meticulously analyzed each of the factors set forth in KRS 625.090. First, it found Mother suffered from mental illness. KRS 625.090(3)(a). Second, under KRS 625.090(3)(b), the circuit court found Father committed acts of abuse or neglect towards his three older children. Neither parent had custody of any of those children since 2012. Father testified he had not seen two of his children in more than two years, even though they reside in Florence, Kentucky. KRS 600.020(1)(a)(7) defines abuse and neglect as a parent abandoning a child. The circuit court found Father abandoned his three other children and abandoned Mother and Child.
Third, the circuit court found, "Father never participated in case planning due to the inability of the Cabinet to locate him over the course of the two years and [Father]'s own admission at trial that he did not take the initiative to contact the Cabinet [or take] any interest in Child." (R. at 71-72). The Cabinet provided resources, case plans, and assessments with the prior born children, and Father made no progress with those efforts. KRS 625.090(3)(c).
Fourth, the circuit court considered any changes in circumstances Father made so that it would be in the best interest of the child to return to his home. KRS 625.090(3)(d). Child never lived with Father. Though Father verbalized he wanted to obtain a job and work on a case plan in the future, he also lamented that his current situation could not accommodate the needs of Child. Father testified, "I walked here today. It's not easy to get a ride anymore. I don't have a job. I don't have any money to offer. I have nothing to offer." (V.R. 2:56:46-51).
The record is devoid of any evidence that positive change occurred since Father was first involved with the Cabinet in 2010. The circuit court explained, "[Father] has a criminal and abuse history that poses a risk to any child in his care. [Father] was released from jail just prior to trial on a flagrant non-support criminal case. During his testimony, [Father] also admitted to failing a marijuana test in 2012 resulting in the loss of custody of his three older children." (R. at 72). Father chose not to follow the recommendations in his assessment. He provided no proof that his circumstances changed. KRS 625.090(3)(d).
Next, the circuit court assessed the health of Child and the prospect of improvement if the termination was ordered. KRS 625.090(3)(e). The circuit court found: "[Child] has made improvements since coming into foster care and these improvements are expected to continue . . . [Child] has only known his current foster parents as caretakers." (R. at 72). He calls them mom and dad. They intend to adopt him if termination is granted. KRS 625.090(3)(f).
Father argues he only needed to prove by a preponderance of the evidence that Child will not continue to be an abused and neglected child under KRS 600.020(1) if the child was returned to him. KRS 625.090(5) states that if it is proven by a preponderance of the evidence, then the court may, at its discretion, determine not to terminate parental rights. The statutory language is permissive, not mandatory. Even applying the lesser standard, there is insufficient evidence that Child would be properly cared for by Father in the future.
Father's reliance upon D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106 (Ky. 2012), is misplaced because D.G.R. has a special set of facts. Kentucky's Supreme Court explained:
Seldom does a case present such diametrically opposed testimony from competent professionals about the primary facts at issue. This case involves a difficult situation where the parents of a child with severe autism and ADHD obviously have struggled with properly caring for such a challenging child.Id. at 111.
In D.G.R., the parents provided five disinterested witnesses who testified in sharp contrast to the Cabinet. Here, there were no disinterested witnesses to support Father's contentions. Father emphasized the fact that he had free housing. Despite that, he chose not to care for Child. There was no evidence to support Father's contention that he will change his lifestyle or be motivated to parent Child. Father did not prove by a preponderance of the evidence that Child will not continue to be an abused or neglected child if his parental rights were not terminated.
CONCLUSION
Based on the foregoing analysis, we affirm the judgment of the Grant terminating Father's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT: Steven N. Howe
Dry Ridge, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp
Covington, Kentucky