Opinion
NO. 2013-CA-002078-ME
01-09-2015
E.D.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.D.P., A CHILD APPELLEES
BRIEF FOR APPELLANT: E.D.P., pro se Louisville, Kentucky BRIEF FOR APPELLEES: Sarah M. Steele Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOSEPH W. O'REILLY, JUDGE
ACTION NO. 13-AD-500127
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON, AND JONES, JUDGES. JONES, JUDGE: This is a termination of parental rights case in which the Appellant, E.D.P. ("Father"), acting without the assistance of counsel, appeals the Jefferson Family Court's November 7, 2013, Order terminating his parental rights to his minor daughter ("Child"). For the reasons more fully explained below, we AFFIRM.
I. BACKGROUND
Child was born on March 19, 2012. At birth, Child's meconium tested positive for cocaine. Child's biological mother, C.R. ("Mother"), also tested positive for cocaine. On March 22, 2012, the Cabinet obtained an emergency custody order. Thereafter, the Cabinet placed Child in a foster home. The Cabinet then filed a dependency abuse and neglect petition against Father and Mother in the Jefferson Family Court. A hearing was scheduled for the following day.
At the hearing, the family court appointed separate counsel to represent Mother and Father and appointed a guardian ad litem to represent Child. Following the hearing, the family court determined that it was in Child's best interests to remain in the Cabinet's custody as she qualified as an abused or neglected child. The Cabinet established a reunification plan that called for Father to establish paternity and cooperate with respect to child support. Father, who was known to have documented mental illness, was further directed to remain in compliance with his mental health treatment, including counseling, all therapeutic recommendations, and medication management.
On July 19, 2012, following another hearing, the family court determined that Child was an abused or neglected child within the meaning of KRS 600.020(1). Throughout 2012, the family court conducted several more hearings regarding Mother and Father's progress with respect to the reunification plans. With respect to Father, while he did contact the child support division and had the DNA paternity test, he repeatedly failed to provide the Cabinet with any verification regarding his mental health treatment. Father and Mother both remained noncompliant with sporadic visits to Child. In March 2013, the Cabinet changed its permanency plan for Child from reunification with Mother and Father to adoption.
Kentucky Revised Statute.
On April 17, 2013, the Cabinet filed the underlying action seeking to involuntarily terminate Mother and Father's parental rights to Child pursuant to KRS 625.050. The Cabinet alleged in its petition that: Mother and Father had failed to provide a safe and nurturing home for Child and that Child was an abused and neglected child as defined by KRS 600.020; that Mother and Father had abandoned Child for a period of not less than 90 days; that Mother and Father had continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for Child and that there was no reasonable expectation of improvement; and that Mother and Father for reasons other than poverty alone have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonable necessary and available for Child's well-being and that there was no reasonable expectation of improvement.
The family court scheduled a hearing for October 18, 2013. Mother was represented at the hearing by her court-appointed counsel, but did not personally attend. Father attended the hearing where he was represented by his court-appointed counsel. Child's Guardian also attended the hearing as well as a representative from the Cabinet and the Cabinet's counsel.
The records from the above-described abuse, dependency and neglect action were entered into evidence at the hearing. Additionally, the Cabinet called Wendy G. Clarkson, the Cabinet's caseworker assigned to this matter, and Father testified on his own behalf. The parties did not call any additional witnesses. Following the hearing, on November 7, 2013, the trial court entered lengthy findings of fact and conclusions of law and an order terminating Mother and Father's parental rights.
Based on its findings of fact, the court concluded as follows: Child is an abused or neglect Child as defined in KRS 600.020(1); Mother and Father have abandoned Child for a period of not less than 90 days pursuant to KRS 625.090(2)(a) also making Child an abused or neglected child under KRS 600.020(1)(a)(7); Mother and Father for a period of not less than six months have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the Child and there is no reasonable expectation of improvement in parental care and protection considering Child's age making Child an abused or neglected child pursuant to KRS 600.020(1)(a)(3) and (4); Mother and Father for reasons other than poverty alone have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for Child's well-being and that there is no reasonable expectation of significant improvement in parental conduct in the immediately foreseeable future, considering the age of the Child making Child an abused or neglected Child pursuant to KRS 600.020(1)(a)(8); when considered in the context of all the relevant statutory factors set forth in KRS 625.090(3), the Cabinet has rendered or attempted to render all reasonable services to Mother and Father that might be expected to bring about a reunion of the family, but no additional services are likely to bring about parental adjustments enabling a return; and the Cabinet has met the Child's emotional and mental health needs since removal from parental custody and the prospect for continuing improvement in the Child's welfare if termination is ordered.
It is from this termination order that Father now appeals.
II. Standard of Review
This Court shall only disturb a family court's decision to terminate a person's parental rights if clear error occurred. If there is substantial, clear, and convincing evidence to support it, the decision stands. KRS 625.090(1); Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). The clear and convincing standard does not demand uncontradicted proof. All that is needed "is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted).
III. Analysis
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a three-part test. First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. See KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
The pro se Father's brief is somewhat difficult to follow. The best we are able to decipher, he maintains: (1) Child should have been placed in his custody immediately after birth and the state's failure to do so prejudiced him in the termination proceedings; (2) he received ineffective counsel during the termination proceedings; and (3) the trial court should have conducted a competency hearing before proceeding with the termination.
Before proceeding to Father's specific arguments, we note that we have reviewed the record in its entirety. Having done so, we are confident that the trial court made the appropriate factual determinations and followed the correct procedure prior to terminating Father's parental rights to Child. The record is replete with evidence to support the trial court's findings with respect to the three-part test necessary to terminate parental rights.
With respect to Father's first argument, we fail to see how it materially prejudiced his rights as related to the termination proceeding. Even so, we note that Mother and Father are not married. Father's paternity was not established at the time of Child's birth. Accordingly, there was no legal basis which required the Cabinet to consider Father for placement over any other individual.
We now turn to Father's ineffective assistance of counsel argument. In Z.T. v. M.T., 258 S.W.3d 31 (Ky. App. 2008), our Court explained a parent's right to counsel in termination proceedings:
The law in this Commonwealth is that the due process clause, and KRS 625.080(3) and 620.100(1) require that the parental rights of a child not be terminated unless the parent has been represented by counsel at every critical stage of the proceedings. This includes all critical stages of an underlying dependency proceeding in district court.Id. at 36 (internal citation omitted). A parent's "general allegations are insufficient as a basis" to support an ineffective assistance of counsel claim arising out of a termination of parental rights claim. Id. at 37.
It is logical that the parent's right to counsel includes effective representation. However, it does not derive from the Sixth Amendment nor can RCr 11.42 be invoked. We hold that if counsel's errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective.
Nowhere does Father allege specific facts that show his counsel was deficient. Counsel did an admirable job dealing with a variety of negative facts. Although, Father claims further investigation might have led to "doctors" willing to testify that he was capable of caring for Child, he has failed to identify the name of said doctors or further substantiate his speculative claims. This is wholly insufficient to demonstrate that his counsel's performance deprived Father of "a fair and meaningful opportunity to be heard." We find no merit with respect to this aspect of Father's appeal.
Finally, we turn to Father's claim regarding his competency to participate in the termination proceedings. Father has confused this matter with a criminal prosecution, which cannot proceed against an incompetent individual that is unable to appreciate the nature of the proceeding and participate in it. This is a civil proceeding, however, which can proceed irrespective of Father's competency to understand the proceedings. Furthermore, we find no evidence that tends to suggest that Father was indeed unable to understand and appreciate the nature of the proceeding. He attended the hearing and offered testimony on his behalf. While Father may suffer from some mental issues, we do not believe that those issues worked to prevent him from being heard in this termination proceeding, especially where he was represented by able counsel.
IV. Conclusion
For the reasons set forth above, we affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: E.D.P., pro se
Louisville, Kentucky
BRIEF FOR APPELLEES: Sarah M. Steele
Louisville, Kentucky