Opinion
2020-CA-0842-ME 2020-CA-0854-ME 2020-CA-0863-ME 2020-CA-0868-ME
03-25-2022
G.A.A., SR. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND G.A.A., JR. APPELLEES AND G.A.A., SR. APPELLANT COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND H.M.A. APPELLEES AND T.K.F. APPELLANT COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND G.A.A., JR. APPELLEES AND T.K.F. APPELLANT COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND H.M.A. APPELLEES
BRIEF FOR APPELLANT G.A.A.: Gayle E. Slaughter Lexington, Kentucky BRIEF FOR APPELLANT T.K.F.: Clay Duvall Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JEFF MOSS, SPECIAL JUDGE ACTION NOS. 16-AD-00268, 16-AD-00267
BRIEF FOR APPELLANT G.A.A.: Gayle E. Slaughter Lexington, Kentucky
BRIEF FOR APPELLANT T.K.F.: Clay Duvall Lexington, Kentucky
BRIEF FOR APPELLEE: Tiffany L. Yahr Lexington, Kentucky
BEFORE: CALDWELL, CETRULO, AND MAZE, JUDGES.
OPINION
MAZE, JUDGE
In these consolidated appeals, G.A.A., Sr. (Father) and T.K.F. (Mother) appeal from judgments of the Fayette Circuit Court terminating their parental rights to their children, G.A.A., Jr. (Son) and H.M.A. (Daughter). After careful review of the record in light of the briefs and argument of counsel, we find no basis for disturbing the judgments of the Fayette Family Court and affirm.
The facts and procedural background regarding the Cabinet's interaction with the family are set out in this Court's opinion affirming Father's appeal from the denial of his motion for immediate entitlement to the children. G.A.A. v. Commonwealth, Cabinet for Health and Family Services, No. 2018-CA-000288-ME, 2019 WL 994125 (Ky. App. Mar. 1, 2019). We reiterate those facts as they apply to the issues advanced in these consolidated appeals and will supply additional facts necessary to an understanding of our Opinion.
Father and Mother are the parents of H.M.A. and G.A.A. who have been the subject of three dependency, neglect, and abuse (DNA) petitions by the Commonwealth of Kentucky Cabinet for Health and Family Services (the Cabinet). The first DNA petition involved allegations the children were living in unsanitary conditions. The second DNA petition, filed as a non-removal petition, alleged that domestic violence was occurring at Father and Mother's house. The third DNA petition involved alleged sexual abuse by Father. The first and third petitions were resolved without any action against Father or Mother.
On February 16, 2015, a hearing was held on the second DNA petition. Father stipulated to probable cause and Mother was granted temporary custody. After Mother and Father left the courtroom, the guardian ad litem (GAL), the Cabinet's attorney, and Father's attorney engaged in a conversation at the bench where the GAL requested the non-removal petition be converted to a removal petition. The family court sustained this "motion," and the children were removed to foster care without a hearing. For reasons unknown, no party made a timely objection or appeal of this procedural irregularity. Nonetheless, the order would eventually come to the attention of the Judicial Conduct Commission while it was investigating an unrelated complaint.
Meanwhile, the disposition required by KRS 620.090(6) was continued several times. On June 1, 2015, Father eventually stipulated to committing neglect by exposing the children to domestic violence. That same day, the family court reinstated Mother's visitation. On August 24, 2015, a disposition hearing was finally conducted, after which the family court ordered the children remain in the Cabinet's custody for an indefinite period.
Kentucky Revised Statute.
The case then proceeded to multiple reviews. What occurred during these reviews is largely missing from the record, but a docket notation dated August 8, 2016, states the goal for the children was changed to adoption. On September 14, 2016, the Cabinet filed petitions for termination of parental rights against Mother and Father. However, on March 21, 2017, the Judicial Conduct Commission entered an agreed order suspending the presiding judge, based in part on her actions at the February 16, 2015, hearing. The termination cases and underlying juvenile cases were then transferred to a special judge.
On October 13, 2017, Mother and Father filed "petitions" for immediate entitlement to custody of Son and Daughter, arguing that the family court's failure to provide due process at the February 2015 hearing entitled them to the immediate return of their children. These petitions were filed as motions in the termination case, not as original actions. Nonetheless, the Cabinet responded that the family court's findings and conclusions of law at the dispositional hearing superseded those entered as a result of the temporary removal hearing. Because there were no allegations that the dispositional hearing was procedurally improper, the Commonwealth contended it cured any previous irregularities.
The family court conducted a hearing on the immediate entitlement "petitions" and, in a subsequent written order, agreed with the Cabinet's position that the disposition hearing cured any deficiencies in the temporary removal hearing. The family court also found no grounds to disturb the findings in the disposition order and therefore denied the "petitions" for immediate custody. The family court additionally denied Father's motion to withdraw his stipulation to neglect, finding Father had not offered any legal grounds to withdraw his stipulation. Although Father appealed both orders, Mother has not appealed from any of the family court's orders until her current appeal from the termination judgments.
By opinion rendered March 1, 2019, this Court affirmed the orders of the family court against Father's allegations that it was error to deny his motion to withdraw his stipulation to neglect and his motion for immediate entitlement. As to the first of these contentions, we held:
Father contends he did not understand the facts he was stipulating to. This conclusory allegation is not supported by any evidence in the record. Moreover, it is a general rule that relief from a stipulation is appropriate only when "on the one hand it appears that such relief is necessary to prevent manifest injustice to the party seeking it, and on the other hand that the granting of relief will not place the adverse party at any disadvantage by reason of having acted in reliance upon the stipulation entered into." 161 A.L.R. 1161 (1946). The Commonwealth relied on the stipulation in the disposition and when filing the [termination of parental rights] TPR petition. Permitting Father to withdraw his stipulation would have greatly prejudiced the Commonwealth. Under these circumstances, the trial court did not abuse its discretion when denying Father's motion to withdraw his stipulation.G.A.A. I, 2019 WL 994125, at *2.
Concerning the denial of his motion for immediate entitlement, we concluded that not only was the request was procedurally improper, it failed to allege grounds compelling the family court to order the Cabinet to return the children to his custody. Specifically, we noted that Kentucky's statutory scheme does not provide a basis for a parent to regain custody before a TPR case is adjudicated:
Rather, [the applicable statutes] clearly state that petitions for immediate entitlement to custody are original actions that provide a means to challenge the temporary custody order, which would otherwise be interlocutory and not appealable. This case is well past the temporary removal stage. A disposition order found it in the children's best interest to remain in the Cabinet's custody, and the Cabinet has moved to terminate Mother's and Father's parental rights. Thus, Father's petition for immediate entitlement to custody was not properly before the trial court.Id. at *3.
Subsequent to the issuance of the above-cited Opinion, the family court conducted a bench trial on the termination petitions on December 2, December 3, December 9, and December 10, 2019. The final order terminating Father's and Mother's parental rights was entered on June 9, 2020 and precipitated this appeal.
Standard of Review
As this Court explained in V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986), appellate review of a judgment terminating parental rights is confined to the clearly erroneous standard set out in CR 52.01 based upon clear and convincing evidence. The findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. This Court has also emphasized that although 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) (citing V.S., 706 S.W.2d at 424). With these principles in mind, we turn to the issues advanced in the parents' appeals.
Kentucky Rule of Civil Procedure.
Analysis
Both Father and Mother challenge the judgments terminating their parental rights by advancing two primary arguments: 1) that the conduct of the trial judge and counsel in the DNA action so deprived them of substantive and procedural due process as to require reversal of the termination judgments; and 2) that because the findings and conclusions of the family court in the termination lack the support of substantial evidence, the decision to terminate their rights constituted an abuse of discretion. We find no merit in either contention.
Concerning the first of these contentions, we previously held in our ruling on Father's appeal of the denial of his immediate entitlement petition:
If the temporary removal hearing has permanently tainted the Cabinet's efforts to terminate Father's parental rights, the proper forum for addressing that issue is the TPR adjudication. A proceeding in which the Cabinet will bear the burden of proof, and Father will have the right to appeal.G.A.A. I, 2019 WL 994125, at *3. However, after the new special judge entered findings and conclusions following the August 2017 dispositional hearing, Mother and Father failed to appeal. Nevertheless, we are convinced that the irregularities which occurred at the temporary removal proceeding were effectively cured by the proceedings at the disposition hearing.
KRS 620.090(6) provides that a child shall remain in temporary custody with the Cabinet for a period of time not to exceed forty-five (45) days from the date of the removal from the home, after which the family court "shall conduct the adjudicatory hearing and shall make a final disposition within forty-five (45) days of the removal of the child." The statute also provides that the forty-five day period may be extended in the best interests of the child. Thus, as the Cabinet correctly posits, commitment to the Cabinet at the adjudicatory hearing is a clear change in status for the child which requires independent findings and conclusions, separate and distinct from those entered at the temporary removal hearing. Neither Father nor Mother identified any alleged irregularities in the conduct of the adjudicatory hearing and failed to avail themselves of the appeal procedure set out in KRS 620.155.
Furthermore, there is no indication that this issue was presented to or ruled upon by the family court prior to lodging the complaint in this appeal. Nor do we find any requests for specific findings on either parent's allegations of due process deprivations due to alleged "taint" stemming from the temporary removal hearing. It is, of course, fundamental that this Court will not predicate error on matters upon which a trial court had no opportunity to rule. "Because this allegation of error was not properly presented or preserved in the trial court, it cannot serve as the basis of reversal on appeal. No further discussion is warranted." Jones v. Livesay, 551 S.W.3d 47, 52-53 (Ky. App. 2018).
Turning now to the parents' contentions that the termination judgments lack the support of substantial evidence, we again find no error. KRS 625.090(1) prescribes the requirements for entry of a judgment involuntarily terminating parental rights. A family court may involuntarily terminate all parental rights of a parent of a named child upon findings by clear and convincing evidence that:
(a) 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 [the termination] proceeding;
. . .
(b) The Cabinet for Health and Family Services has filed a petition with the court pursuant to KRS 620.180; and
(c) Termination would be in the best interest of the child.
In addition, the statute requires in subsection (2) specific findings as to the existence of one or more specific grounds for termination, including:
(e) 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; or
(g) 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[.]
Contrary to Mother and Father's contentions, review of the record discloses ample evidence satisfying each of the enumerated factors.
As to the first factor, Mother challenges the family court's finding that the children had previously been adjudged to be abused or neglected by a court of competent jurisdiction. Citing an unpublished opinion of this Court,
Although this Court originally designated the opinion in S.S. v. Cabinet for Health and Family Services, No. 2020-CA-0508-ME, 2021 WL 519718 (Ky. App. Feb. 12, 2021), to be published when it was rendered, the Supreme Court of Kentucky thereafter specifically ordered the Court of Appeals' opinion not to be published in its June 9, 2021[, ] order denying discretionary review. We take this opportunity to emphasize the necessity of compliance with the dictates of CR 76.28(4)(c) concerning citation of non-published opinions:
Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
Mother argues that the preponderance of the evidence standard utilized at the dispositional proceeding cannot satisfy the clear and convincing evidence standard required for termination. The flaw in Mother's argument is that there is substantial published caselaw to the contrary. For example, the Supreme Court of Kentucky held that a finding of neglect in a prior temporary removal was sufficient to establish the statutory requirement:
C.B. argues that the family court erred in relying on evidence of his seven-year old TPR proceeding. For several reasons, we find no error. First, it must be stated that in order for a trial judge to terminate an individual's parental rights, in an involuntary proceeding, one of the prerequisites to termination is that the trial judge find that the child has been abused or neglected. So in C.B.'s prior TPR proceeding, the judge had to have found C.B.'s putative children to be abused or neglected. This is significant because, as stated above, KRS 620.023 indicates that acts of abuse or neglect against any child are relevant in any proceeding pursuant to KRS Chapter 620, and the trial court shall consider such circumstances.Cabinet for Health & Family Services on behalf of C.R. v. C.B., 556 S.W.3d 568, 574-75 (Ky. 2018) (emphases original) (footnotes omitted). Thus, in keeping with our Supreme Court's interpretation of the statutory framework, we find no error in the family court's having predicated its finding of neglect upon the finding it reached after the dispositional hearing.
In addition, the family court made extensive findings as to the KRS 625.090(1)(a) requirement that the children at issue be adjudged abused or neglected. Noting that Father had in fact stipulated to neglect in the adjudication proceeding, the family court additionally found 1) that Father failed to make progress with a court-approved case plan for the safe return of the children, which in turn caused the children to remain in foster care for more fifteen cumulative months out of forty-eight months; and 2) that despite having been afforded multiple opportunities, Father refused to negotiate a case plan for return of the children from 2015 through 2019. With regard to Mother, there was substantial evidence from which the family court could conclude that she was incapable of providing a safe environment for the children. In making these determinations, the family court relied upon the testimony of Bambie Baldridge, the Cabinet's caseworker, who testified as to Father's refusal to develop a case plan for the children, as well as to the fact that Father refused to sign a release for any completed assessments to allow the Cabinet to verify what treatment or classes he had completed concerning anger management. Regarding Mother, Ms. Baldridge testified that although Mother had been able to complete a lot of her case plan, she remained concerned about Mother's protective capacity. Ms. Baldrige testified that Mother did not believe an older child who had accused Father of sexual abuse; that she refused to admit that domestic violence had been an issue in the home, insisting that Father had done nothing wrong; and that Mother was unable to demonstrate any skills she had acquired through the parenting classes and counseling she had completed. Further, despite attempts on many occasions, Ms. Baldridge stated that she had never been able to conduct an unscheduled home visit. On the basis of Ms. Baldridge's testimony alone, we conclude that substantial evidence supports the family court's findings as to neglect.
Concerning the best interests prong of the statutory requirements for termination, the family court relied upon the testimony of Dr. David Feinberg concerning the children's attachment to their current foster parents; Father's significant and longstanding emotional problems related to anger; Mother's inability to come to terms with the violence which had occurred in the home; and each parent's surprising lack of empathy for what the children had endured for the past four years. There was testimony that neither parent had accepted any responsibility for the children being placed in foster care and that there were environmental concerns about hygiene and cleanliness in the home. A court appointed special advocate, Ava Crow, testified as to Daughter's significant progress both with an eye condition and a communication disorder while in the care of her foster mother since 2015. Daughter no longer faces eye surgery and is currently articulate, self-contained, and on the academic team at school. Ms. Crow also stated that her last opportunity to interact with Father was in December 2015, despite having consistent communication prior to the Cabinet's request to change the children's goal to adoption. In addition, the family court heard testimony that Son's significant speech issues, grades, and behaviors have improved in the foster mother's care. Considering the testimony as to the children's improvement and the risk attendant to disruption of the stability they have enjoyed over the past four years, we again conclude that sufficient and substantial evidence supports the family court's findings as to the children's best interests.
Finally, we concur in the family court's determination that for a period of not less than six months both parents failed or were substantially unable to provide essential care to the children and that there was no reasonable expectation of improvement. Father cites the fact that he has consistently paid support throughout these proceedings. However, we agree with the family court that that factor alone is insufficient to overcome the almost unchallenged evidence that Father has refused to cooperate with the Cabinet by entering into a case plan which would allow the children to be reunited with him and by refusing to allow the Cabinet access to parenting assessments and treatment records concerning his anger management issues. Neither does Father's suggestion that the fact that the system failed him and his children mitigate the effect of his refusal to cooperate. Both the family court and the Cabinet have made every effort to cure the effects of the original proceeding irregularities and the unfortunate initial placement. We are convinced that the appointment of a special judge and the conduct of a thorough and independent adjudication proceeding cured any error or taint from the original proceeding. Similarly, the Cabinet has, in our estimation, been extraordinarily consistent and patient in its efforts to get each parent to work with it to gain the return of the children.
In its twenty-nine page findings of fact and conclusions of law, the family court set out in exhaustive detail the evidence supporting its conclusion that the KRS 635.090(3) factors had been satisfied and that termination of both Mother and Father's parental rights was in the best interests of the children. Specifically, the family court's decision to terminate Mother and Father's parental rights included its evaluation of the following evidentiary factors:
• Mother and Father have made insufficient efforts and adjustments to their circumstances and conduct to make it in the children's best interest to return to their home.
• Mother testified she does not pay child support, although Father testified he did.
• Mother and Father, by their failure to sufficiently complete case plan tasks to allow the children to return home since February 16, 2015, have continuously and repeatedly failed to provide essential parental care and protection for the children. There is no reasonable expectation or
improvement in parental care and protection considering the children's ages and the parties' actions to date.
• The children entered foster care on February 16, 2015, and have not left state custody since that time and both remain in state custody today. Because CHFS filed its petition on September 16, 2016, the children have been in foster care under the responsibility of CHFS for a period in excess of fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights.
• There was no testimony that Mother or Father have a mental illness or intellectual disability. Each parent has committed an act of neglect relative to the children prior to the filing of this termination of parental rights petition. CHFS made reasonable efforts to reunite the children with Mother and Father. Although Mother worked her case plan, she was unable to demonstrate what she had learned through proper recognition of domestic violence situations and inappropriate minimization of prior domestic violence incidents. Mother also created concerns by not allowing CHFS access to her home. Thus, Mother's adjustments are insufficient. Father refused any assistance from the CHFS and never took the initial step of entering into a case plan. Father's adjustments are non-existent.
Based upon the evidence presented and the family court's application of that evidence to the requisite statutory factors, we find substantial evidence supports the decision to terminate both Mother and Father's parental rights.
Conclusion
In sum, nothing in this record allows this Court to conclude that the family court abused its discretion in terminating either Father's or Mother's rights to their children. We therefore affirm its judgments in this case.
ALL CONCUR.