Opinion
NO. 2018-CA-000504-ME
04-05-2019
F.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.G.M., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Gregory A. Napier Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE TRACI H. BRISLIN, JUDGE
ACTION NO. 17-AD-00241 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: F.M. (father) appeals the termination of parental rights (TPR) to his daughter A.G.M. (child) on the basis that: (1) there was no clear and convincing evidence of neglect or abuse by father; (2) there is no basis for the termination once the clearly erroneous misstatements of fact are eliminated from the findings of fact and conclusions of law; and (3) there were evidentiary errors. We conclude that despite erroneous factual findings, the family court had clear and convincing evidence to terminate father's parental rights based on a finding of neglect, that termination was in child's best interest and there was a ground for termination because child was in the custody of the Cabinet for fifteen of the last twenty-two months and affirm.
Child was born to father and B.L.L.S (mother) in April 2013. Mother and her sisters lived with child in maternal grandmother's home.
Pursuant to a paternity action, father was determined to be the father of child on September 24, 2014 and was also later adjudged to be child's parent in the juvenile case.
As only father appeals the termination of parental rights, we discuss mother's conduct only when necessary to father's appeal.
Shortly after child's birth, father was indicted for crimes alleged to have been committed in February 2013. Father was incarcerated while the charges were pending.
The Cabinet received a referral on child in April 2014, based on mother's admitting in court that she was using heroin. Pursuant to an emergency custody order in a dependency, neglect or abuse (DNA) action, child was placed in the temporary custody of her maternal grandmother. However, following a home evaluation, it was determined that maternal grandmother was not an appropriate placement and child was then placed with a non-relative family friend.
Meanwhile, father pled guilty to trafficking in a controlled substance, first degree, first offense, flagrant non-support, four counts of receiving stolen property under $500, buying or possessing drug paraphernalia and being a persistent felony offender, first degree. On May 21, 2014, father was convicted and received a seven-year sentence.
At the adjudication hearing of the DNA action in August 2014, mother stipulated to neglect. Child remained living with the non-relative until that non-relative could no longer care for her and she was placed in the custody of the Cabinet for Health and Family Services on March 25, 2015.
It was at this time that father first became involved. Father's lack of previous involvement was due to his incarceration. The Cabinet was able to case plan with father as he was scheduled to be released the following day to a four-year term of probation conditioned on successfully completing the drug court program.
Father did very well in complying with his case plan and in having supervised visits with child. As a result, father was granted unsupervised visits with child in June 2015. Child began a thirty-day trial home visit in September 2015. On October 28, 2015, custody was granted to father.
On October 30, 2015, father was arrested on a drug court violation and served a seven-day sanction. The Cabinet was granted emergency custody and child reentered foster care on November 2, 2015.
In late December 2015, father had a positive drug test and was arrested and incarcerated. On January 20, 2016, father stipulated to risk of neglect of child.
Father remained incarcerated for his drug court violation until February when he was released to begin inpatient substance abuse treatment at the Swartz Center.
Upon completion of the treatment program, father became employed. He continued having consistent supervised visits with child through May 2016. Father was ultimately unsuccessful in completing the drug court program and resumed serving his sentences in July 2016.
In October 2016, child's permanency goal was changed to adoption and the Cabinet filed for termination of father's and mother's parental rights.
On July 30, 2017, a TPR hearing was held. Following the hearing, the family court declined to terminate parents' rights. In the family court's order, the family court stated that although there was a previous finding of neglect against father, TPR was not warranted against him because: father's incarceration alone could not be considered a ground for TPR; father's history of criminal charges predated child's birth; father's drug tests were clean since his last positive test in December 2015; it could not find that there was no reasonable expectation of improvement in father's circumstances; and although child was bonded to her foster family, she was also bonded to her father and it would not be in her best interest to sever that relationship when the family court believed father could improve his circumstances following his release from incarceration. The family court declined to terminate mother's rights when it would not change child's status.
Apparently, during this TPR hearing, father testified he thought he would be granted parole and released in August 2017. Subsequently, father contacted the Cabinet social worker to inform her that he was not granted parole.
On October 2, 2017, the Cabinet again moved to terminate father's and mother's parental rights. The next TPR hearing was held on February 1, 2018. The Cabinet presented testimony from social worker Krystle Wirth, social worker Alethia Burns, social worker Lisa Martin and CASA volunteer Kathryn Graves. Mother and father also testified.
According to testimony from Wirth, who was the ongoing worker from December 2013 through April 2016, unlike mother, father cooperated with the Cabinet and made good progress with his case plan the entire time Wirth was the ongoing worker. Father obtained housing and was consistently employed, working several jobs. Father completed domestic violence recommendations, was participating with 24/7 Dads, going to AA meetings and visiting regularly with child. Other than testing positive for alcohol early on for the Cabinet, which Wirth attributed to father not understanding he was not allowed to drink, Wirth testified that father never tested positive for drugs or alcohol with the Cabinet.
Wirth testified child was always happy to see father, he was always appropriate during visits and Wirth had no concerns with his parenting skills. She testified that although father was briefly incarcerated in May 2015 for a drug court violation, he was doing so well with working his case plan that he was granted unsupervised visits with child in June 2015. In contrast by July 8, 2015, the Cabinet received a waiver on continuing reasonable efforts with mother.
Wirth testified child began a thirty-day trial home visit with father in September 2015 with daycare assistance. According to testimony from Wirth, the visit went very well, and she had no concerns with father's parenting.
Wirth testified that shortly after custody was returned to father, on October 30, 2015, father was arrested on a drug court violation and the Cabinet was granted emergency custody on November 2, 2015, because father failed to leave child with an appropriate caregiver. Wirth testified father left child with a friend who had pending drug charges and then that friend left child with maternal grandmother, who had a history with the Cabinet. However, Wirth could not explain what grandmother's history was with the Cabinet.
While Wirth testified that father's drug court sanction at the end of October was as the result of a positive drug test for drug court, she admitted on cross-examination that she could have been confused about a later positive test father had for drug court in December 2015.
Wirth testified within one month of reentering foster care, child was returned to her original foster parents and since that time has remained with them and in the custody of the Cabinet.
Wirth testified father stipulated to risk of neglect of child based on leaving child with an inappropriate caregiver. Notably, Wirth testified there was no evidence that father knew the friend he left child with had a drug charge or that grandmother had a history with the Cabinet.
Wirth testified father remained incarcerated for his December drug court violation until February 2016, when he was released to begin inpatient substance abuse treatment at the Swartz Center. She testified father received weekly supervised visits with child at the Swartz Center and was about to complete the treatment program when Wirth turned over the case to the new ongoing worker in April 2016.
Wirth testified that father consistently worked his case plan and continued to make progress and she never had any concerns about his parenting. Wirth testified the only issue with father being able to parent child was that he was incarcerated and had a relapse with cocaine in December 2015.
Wirth testified that child was doing very well with her foster family, she was happy there and the family intended to adopt her.
Social worker Burns, the ongoing worker from April 2016 through February 2017, testified father was just about to complete the Swartz Center program when she was assigned the case. Burns testified upon completion of the treatment program, father consistently made progress on every part of his case plan, became employed, paid child support, complied with drug court and had weekly supervised visits with child.
Burns testified child's visits with father went well. She testified he was appropriate during supervised visits and she had no concerns about his parenting skills.
Burns testified that although father was consistent in the beginning he had one "no show" in April 2016 and one in May 2016, though for one of those it appeared there was a misunderstanding with the time of the meeting and father called and left a message.
After the May 27, 2016, meeting, Burns testified she had trouble making contact with father and when she was eventually able to find him at work, he seemed overwhelmed with his job and keeping up with his responsibilities for drug court. They discussed changing the visits to every two weeks but were unable to arrange another visit before July when father was reincarcerated for a drug court violation.
Burns testified that based on her visits, child was doing well in her foster home, she was comfortable, progressing and her speech had improved. Though father sought an out of state relative placement for child, it was not approved.
Martin, who was the current ongoing worker beginning February 2017, testified she never had any doubts that father's history with child was appropriate. Father contacted her immediately after learning she was the ongoing worker and he consistently remains in contact with her. Martin testified father made progress with his case plan while incarcerated, but he was unable to demonstrate he can maintain the stability child needs.
Martin testified that father has an extensive criminal history which included his May 2014 convictions for trafficking in cocaine, three counts of receiving stolen property under $500, possession of drug paraphernalia, probation violation on a felony charge, flagrant nonsupport and receiving stolen property under $10,000; his February 2009 conviction for violating a DVO, assault fourth degree and a probation violation; and his January 2007 conviction for fleeing and evading police, possessing marijuana and possessing drug paraphernalia.
She testified that during the last termination trial, father believed he would be released on parole in August 2017, but that turned out to be incorrect. Martin testified father was eligible for parole in January 2019, his minimum serve-out time was November 23, 2019 and his maximum serve-out time was April 22, 2022. However, Martin testified that father believed he would be released soon.
Martin testified child is doing very well in foster care. She testified child remains in the same foster home that she has been in since before her second birthday and would soon be five years old, child is bonded to her foster family, developmentally on target and in an adoptive home.
When Martin was asked whether there were other services that could be offered to parents, she opined they could be sent to drug treatment. Martin testified she believed father could not provide child with essential parenting or care because he is incarcerated and, even after he is released, it will take time for him to show that he can parent child because it is harder to maintain sobriety on the outside. Martin feared child would continue to be neglected if returned to father.
Martin opined that TPR was best because child is bonded to her foster parents. While she thought there was a chance that child would recognize father, she stated that child does not ask about him anymore. Martin testified she considered the situation unfortunate.
Graves testified she has been child's CASA volunteer since 2014, and sees her almost every month. She testified when child was in father's care, child was happy, but talked a little less than she did when with her foster parents. She testified to the progress child made while with her foster parents, including substantial improvements in her speech in the last year with foster mother's active encouragement, mastering toilet training and dressing, and participating in preschool and dance. Graves testified child interacts well with her foster parents, calls them Mom and Dad and she believes child is bonded to her foster parents.
In the CASA reports introduced into evidence, Graves opined that when father had custody of child, father maintained an appropriate home, child was cared for appropriately by father and child was observed to be doing well with father. In reports after child was back with foster family, the reports consistently showed that child was doing well and learning new skills.
While most of mother's testimony was inapplicable to father's termination, mother did testify that grandmother's "history with the Cabinet" was minor and should not have precluded child's placement with grandmother. Mother also testified that although she filed a DVO against father, she believed in doing so she overreacted to a fight they had.
Mother testified she and her sisters were temporarily removed from her mother's home after she left them under the supervision of their older brother who threw a party. Mother testified they were returned home after one month. Mother testified the only other possible problem she knew about with child staying with grandmother was that her older sister also lived with her and had convictions, but now her older sister no longer lived with grandmother.
Father testified he was a very good father and faithful in doing everything the Cabinet said to do. He testified when not incarcerated he always had a job, took the required classes and extra classes, visited with child regularly and paid child support.
Father denied that his arrest and drug court sanction while child was in his custody at the end of October 2015 was the result of a positive drug screen.
Father claimed the sanction was based on his missing a drug test. He testified he tested for drug court on a Friday, neglected to call in on Saturday to see if he was ordered to test, under the impression that he would not be required to test again the following day, and was arrested on Monday because he did not test.
While father admitted stipulating to risk of neglect, he denied he ever neglected child and denied having any knowledge that either his friend or grandmother were unsuitable and said he signed the stipulation because he was told to do so and would not have signed if he understood what it meant.
Father testified the friend he left child with was an employee he had hired and supervised at Dunkin Donuts and he thought she received a full screening from Dunkin Donuts and he was impressed with what a good worker she was. Father testified he did not believe maternal grandmother was an inappropriate caregiver for child because he had seen her provide appropriate care for her other granddaughter when he was dating mother and grandmother always made sure everyone had plenty to eat and had a safe and clean home.
Father admitted he had a relapse and used cocaine in late December 2015, and he contacted the CASA volunteer and self-reported to get help, asking the volunteer what he could do. Father testified this was the basis for his only positive drug court test and that he never used drugs when child was in his care.
Father testified that after his relapse and arrest, he was given a new case plan and faithfully complied with all the conditions: he completed treatment through the Swartz Center, remained drug and alcohol free, obtained and maintained employment and housing, was paying child support and participating in supervised visitation and never had a "no call, no show." Father admitted that he was not able to visit with child between the end of May and the end of July 2016, but explained he was working and made efforts to keep in contact with the Cabinet and arrange visits.
Father agreed he was ultimately unsuccessful in completing the drug court program and resumed serving his sentences in July 2016. He admitted he might have as many as eighteen drug court violations but testified that only one of those violations was for a positive drug test. The other violations were for technical violations such as missing a drug test or not attending a class.
Father testified that after he was reincarcerated, he continued to work his case plan to the best of his ability under those circumstances: he enrolled in the substance abuse program (SAP); took extra classes; maintained weekly contact with Martin; and asked to have continued contact with child while incarcerated through letters and pictures, but the Cabinet told him it was not in child's best interest and he could not do so.
Father testified he was doing everything he could to get released as soon as possible because he was eager to parent child but was not granted parole based on matters outside of his control. He estimated he would be released sometime soon after his estimated completion date for SAP on June 15, 2018. He estimated that even if he did not complete SAP that with good time he would be released around September 2018 based upon his eligibility for Mandatory Reentry Supervision, so his release before his next parole date was certain.
Father testified that he had problems with his previous SAP coordinator and was dismissed from the program shortly before he was scheduled to complete it for an alleged minor rule violation and had to wait thirty days before he could sign up again. He believed being dismissed from SAP messed up his eligibility for parole in August 2017. Father testified he promptly signed up again for SAP at the completion of the thirty-day waiting period, putting in his application in August 2017, but had to wait until December 15, 2017, to be placed back in the program, and had to start at the beginning again but was making good progress and was confident he would complete it this time. He testified he was earning good time every month and that upon completion of SAP, he would receive ninety days of good time. He wanted to enroll in the Moral Reconation Therapy program which could be completed simultaneously with SAP and could take an additional ninety days off his sentence.
Mandatory Rentry Supervision pursuant to Kentucky Revised Statutes (KRS) 439.3406, provides that eligible incarcerated felons are released onto parole six months before their sentence will expire under current calculations based on good time.
Father testified he took maintaining his sobriety seriously, had thirty months of sobriety and worked his program. He testified he believed he accomplished a lot, but that was what was expected and what he was supposed to do for his child.
Father admitted he was incapable of parenting or supporting child while he was incarcerated but testified that once he was released, he would do his best to care for child and that his incarceration was the only thing preventing him from doing so.
Following the trial, the family court announced it found child was neglected and it was terminating father's and mother's parental rights. In its oral pronouncement, the family court stated regarding father: "If you were out of custody I do believe you would be able to provide for [child's] needs and I do believe you did provide for her needs whenever you were out of custody, but you are incapable of providing for those needs while you are in custody."
The family court also stated that this was a very unusual case and father made a lot of progress but as the family court had no idea of when father would get out of custody and it would take child time to become reacclimated to him once he was released, that it was in her best interest that father's rights be terminated so that child could receive permanency. The family court asked the Commonwealth to draft its findings of fact and conclusions of law.
The findings of fact and conclusions of law were entered on February 8, 2018. The family court found that child was a neglected child as previously adjudged on January 20, 2016, against father in the underlying DNA case and also found child was an abused or neglected child on three additional grounds, found it was in child's best interest that parents' rights be terminated and that there were four grounds for termination. Specific findings will be discussed as relevant below.
Whether termination is appropriate depends upon whether the Cabinet can prove the statutory requirements in Kentucky Revised Statutes (KRS) 625.090 are met.
KRS 600.020 and KRS 625.090 have since been amended from the versions applicable to father.
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. 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).B.E.K. v. Cabinet for Health & Family Servs., 487 S.W.3d 457, 464 (Ky.App. 2016).
Because the family court has wide discretion in deciding to terminate parental rights, "our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence." Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "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. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Father argues there was no clear and convincing evidence of neglect or abuse by father established either during the underlying DNA case or during the termination trial. Father argues the previous finding of abuse in the DNA case based upon father's stipulation was by a preponderance and a mere threat of harm is insufficient. Father also argues that the facts presented at trial cannot establish neglect where the only evidence was that he did everything he could to parent but was stymied by his incarceration alone.
Pursuant to KRS 625.090(1)(a), the family court can find a child to be an abused or neglected child if there is clear and convincing evidence of one of three grounds, the first two of which are relevant here, that:
1. 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;
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding[.]
Father's stipulation to risk of neglect for leaving child with inappropriate caregivers in the DNA case was a sufficient basis for a finding of neglect pursuant to KRS 600.020(1)(a)2 because child's "welfare is . . . threatened with harm when: . . . her parent . . . [c]reates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means." Thus, the family court complied with the wording of the statute in finding child was adjudged to be an abused or neglected child in the DNA case.
To the extent father is attempting to raise a constitutional argument that child's status as an abused or neglected child cannot be established under KRS 625.090(1)(a)1 because this status was determined by a preponderance of the evidence, we are governed by the Kentucky Supreme Court's ruling in Commonwealth, Cabinet for Health & Family Servs. v. T.G., No. 2007-SC-000436-DGE, 2008 WL 3890033, *5 (Ky. Aug. 21, 2008) (unpublished). In T.G., the Kentucky Supreme Court declined to address whether the termination statute was unconstitutional if the family court did not make independent findings of abuse and neglect under the clear and convincing standard because the family court there had made independent findings of abuse and neglect under KRS 625.090(1)(a)2. Therefore, we must determine whether there was clear and convincing evidence to support the family court's finding that child was an abused or neglected child pursuant to KRS 625.090(1)(a)2.
Pursuant to Kentucky Rules of Civil Procedure 76.28(4)(c), we may properly consider this unpublished decision because there is no published opinion adequately addressing this issue.
The family court found, pursuant to KRS 625.090(1)(a)2, that child was an abused or neglected child pursuant to KRS 600.020(1)(a)3, 4 and 9. While we do not agree that there was clear and convincing evidence to find child to be abused or neglected pursuant to KRS 600.020(1)(a)3 and 4, the family court correctly found child to be abused or neglected pursuant to KRS 600.020(1)(a)9 because father did not make sufficient progress on his case plan to allow for the safe return of child which resulted in her remaining committed to the Cabinet and remaining in foster care for fifteen of the most recent twenty-two months. The family court acknowledged father did complete treatment at the Swartz Center and various programs but found father was unable to stay out of prison and his incarceration rendered him unable to make sufficient progress on the remaining case plan tasks. It was the lapse of time in this instance after father failed to complete the drug court program that rendered child abused or neglected and there was clear and convincing evidence of this.
We are troubled that the family court used factual findings that were unsupported by the record to conclude that child was abused or neglected under these subsections. As to KRS 600.020(1)(a)3, the family court found child was abused or neglected by father's having engaged in a pattern of conduct that rendered him incapable of caring for child's immediate and ongoing needs "including, but not limited to, parental incapacity due to alcohol and other drug abuse" with "both parents having admitted to relapsing at various points during the case[,]" "[father's] drug use [having] led to multiple periods of incarceration[;]" and father "[failing] to meaningfully engage in treatment to achieve long-term sobriety[.]" Similarly, in finding child was an abused or neglected child pursuant to KRS 600.020(1)(a)4 for failure of her parents to provide essential parental care and protection, the family court stated "[parents] have a long history of substance abuse which has resulted in, among other things, numerous periods of incarceration[;]" "[t]estimony established . . . [father was] incarcerated again in late July 2016 for a positive drug screen[;]" and "[w]hile [father] did complete treatment with the Swartz Center and various programs available while incarcerated, he has been unable to maintain . . . sobriety[.]" Clearly these findings were in error. It was father's failure to comply with the conditions of drug court that resulted in his multiple periods of incarceration during child's life, rather than his failure to achieve long-term sobriety. For further exploration of these issues, see the discussion regarding grounds for termination, infra.
Father next argues that misstatements of fact which are present in the findings of fact and conclusions of law are clearly erroneous and irreparably prejudicial to the family court's judgment. Father complains that the family court erred by finding father "tested positive for drugs at various times throughout the case" when in fact he only tested positive once for drug court in December 2015, and once for the Cabinet for alcohol early in 2015. Father argues that the finding that "Martin did not believe there were any other services available to these parents, that there was no reasonable expectation of improvement, and that this child would . . . continue to be a neglected child if returned to either . . . [parent]" was erroneous as Martin testified father could complete SAP and "go to treatment[,]" and her only issue with father was that his incarceration prevented him from being able to parent and she wanted to see long-term stability from father. Father also argues the finding about his most recent convictions being May 2014 was misleading because these were for crimes committed before or shortly after daughter's birth in 2013 and implied he had an ongoing criminal lifestyle.
Father emphasizes that the family court requested the Cabinet draft the findings of fact and conclusions of law and that he was not allowed to review them before they had apparently adopted them without any changes, but acknowledges it was permissible for the Cabinet to draft these at the family court's instruction. While "it is not an error for the trial court to adopt findings of fact drafted by someone else[,]" M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 851 (Ky.App. 2008), the findings must still be supported by substantial evidence.
Father is correct that there are numerous examples of erroneous factual findings contained in the findings of fact and conclusions of law and we agree with him as to the examples he stated. Troublingly, although the conduct of mother and father regarding child was strikingly different, the findings of fact and conclusions of law repeatedly stated that father and mother engaged in the same conduct and even when father's conduct was considered separately, findings were made that were at odds with the evidence contained in the record. These factual misstatements seem to establish that father continued to abuse drugs throughout the case and this was what led to his reincarceration (rather than failing to abide by the conditions of drug court).
Of note, it is repeated in both the findings regarding abuse and neglect and the findings on factors for termination that father had a positive drug test in July 2016 and that is what resulted in his reincarceration for failing to complete drug court. This finding is completely unsupported by the record and appears to be a misunderstanding of the testimony from Martin and father that he was reincarcerated in July 2016 for violating the conditions of drug court. While a positive drug test would certainly be a violation, there is no evidence that the violation he committed at this juncture was a positive drug test. The witnesses consistently testified father did not test positive for drugs after December 2016. This is significant because it showed the success of father's drug treatment through the Swartz Center and that father maintained his sobriety after being released from treatment while he was under the supervision of drug court.
When the erroneous factual findings are eliminated, father has a strong argument it could be in daughter's best interest to eventually be reunited with him, rather than for his parental rights to be terminated. However, we are confident that the family court properly considered whether termination would be in child's best interest pursuant to the factors elucidated in KRS 625.090(3), and properly acted in its discretion in making such a finding. The family court found:
This included evidence that father parented child well when he was available to do so, actively pursued his sobriety, followed the case plan to the best of his ability while incarcerated and would likely be released soon. Our sister courts in Indiana have reversed terminations under similar circumstances to those found here on the basis that the child's need for stability and permanency was not enough to establish that termination was in the best interest of the child, but naturally each case varies and is highly fact-dependent. See In re G.Y., 904 N.E.2d 1257, 1262-66 (Ind. 2009); H.G. v. Indiana Dep't of Child Servs., 959 N.E.2d 272, 293-94 (Ind.App. 2011). See also In re Interest of Lizabella R., 25 Neb.App. 421, 436-38, 907 N.W.2d 745, 756-57 (2018).
[Child] is currently in an adoptive home. She is thriving while in care and having all her needs met by the foster parents. [Child] has remained in the same foster home since March 2015, except for a brief period of time when she was with [father]. [Child] participates in dance, is improving with her speech, and is bonded with her foster family. Further, she is developmentally on target and has lived the majority of her life with these foster parents. Overall, [child] has made great strides while in foster care and it is expected that [she] will continue to improve with a permanent adoptive placement.
The erroneous factual findings have a much more serious impact on the propriety of the family court finding grounds for termination were established under KRS 625.090(2). When the erroneous factual findings are eliminated, there is not a sufficient factual basis for termination under KRS 625.090(2)(a), (e) or (g).
The family court erred in finding KRS 625.090(2)(a) satisfied because there was no evidence father abandoned child by "evinc[ing] a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky.App. 1983). He did not abandon child before or after being incarcerated. Compare with M.P.R. v. Cabinet for Health & Family Servs., 520 S.W.3d 409, 414 (Ky.App. 2017). His incarceration alone could not be construed as abandonment. Cabinet for Human Res. v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995). When the factual errors are eliminated, there was no conduct showing father had a "dedication to a criminal lifestyle" which would be "incompatible with parenting." J.H. v. Cabinet for Human Res., 704 S.W.2d 661, 664 (Ky.App. 1985). The only evidence was that father consistently worked his case plan and maintained contact with the Cabinet while incarcerated and only did not maintain contact with child because the Cabinet refused to allow him contact of any kind while he was incarcerated.
Similarly, termination of father's parental rights was not appropriate pursuant to KRS 625.090(2)(e) or (g) for failure to render essential parental care and provisions because the Cabinet failed to establish by clear and convincing evidence father was "incapable of rendering such care in the future." M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 855 (Ky.App. 2008). Father did show progress by maintaining sobriety after treatment and the family court itself acknowledged in its oral findings that father could parent well when not incarcerated.
However, our affirmance of the termination is still proper if we agree that any of the grounds for termination under KRS 625.090(2) were found by clear and convincing evidence. We are satisfied that the family court was correct that termination was warranted under KRS 625.090(2)(j): "That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights."
It is undisputed that child has been in foster care for fifteen of the last twenty-two months. As the family court found, child entered foster care on March 25, 2015, was placed in father's custody on October 28, 2015, emergency custody was awarded to the Cabinet on November 2, 2015, and child has remained in foster care since that time. Therefore, the Cabinet could and did establish a sufficient ground for termination under subsection (j).
We further determine that the erroneous factual findings did not prevent the family court from finding that the Cabinet offered appropriate reunification services, father could not make sufficient adjustments for the safe return of child and that child would continue to be abused or neglected if returned to father.
Father's final argument is that evidentiary errors rendered termination improper. He argues the family court erred by allowing, over his objection, hearsay testimony from Wirth reading from her notes and Graves as a lay witness being allowed to provide an expert opinion that child was bonded to foster parents.
We agree with the family court that Wirth could properly use her notes to refresh her recollection and we disagree with father that the video of her testimony showed Wirth reading rather than using the notes to refresh her recollection. As explained in Martin v. Commonwealth, 456 S.W.3d 1, 15 (Ky. 2015), Kentucky Rules of Evidence (KRE) 612 "codifies the common-law rule allowing any writing to be used to refresh a witness's memory if necessary" with testimony resulting from the refreshed memory. While the Cabinet should have laid a foundation for Wirth to use her notes to refresh her recollection, given the lack of objection until Wirth was almost finished testifying, father waived his objection. KRE 103(a)(1).
The family court ruled that CASA volunteer Graves could properly testify that child was bonded with her foster parents pursuant to KRE 701 based on her personal observations. While it is a close issue as to whether this was a proper matter for lay witness testimony, any such error in this regard was harmless as Martin also testified that child was bonded with her foster parents. See Prater v. Cabinet for Human Res., Commonwealth, 954 S.W.2d 954, 959 (Ky. 1997) ("Admission of incompetent evidence in a bench trial can be viewed as harmless error. . . if there was other competent evidence to prove the matter in issue[.]"); Coulthard v. Commonwealth, 230 S.W.3d 572, 584-85 (Ky. 2007) (finding testimony about fingerprints harmless beyond a reasonable doubt where the case did not turn upon the fingerprint evidence and it was cumulative of other evidence).
We recognize this is an unusual case in that the termination of father's parental rights was mostly dependent upon the lapse of time. While another court may have made a different ultimate ruling on whether termination was appropriate given these same facts, we must defer to the family court's ultimate decision because there were sufficient facts to support its ruling. See, e.g., D.G.R. v. Commonwealth, Cabinet for Health & Family Servs., 364 S.W.3d 106, 112-15 (Ky. 2012) (discussing the trial court's discretion not to terminate even where there are clear and convincing grounds to terminate). Despite the family court's erroneous factual findings, there was sufficient evidence from which the family court could properly order the termination of father's parental rights to child because child was neglected, her best interest would be served through termination and a ground for termination existed. Consequentially, the errors in the family court's findings, which prevented additional grounds for finding child to be an abused or neglected child and additional grounds for termination from being upheld, and any evidentiary errors were ultimately harmless because the essential things that needed to be established could be done so regardless of any such errors.
Accordingly, we affirm the Fayette Family Court's termination of father's parental rights to child.
ALL CONCUR. BRIEF FOR APPELLANT: Gregory A. Napier
Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr
Lexington, Kentucky