Opinion
NO. 2019-CA-000789-ME NO. 2019-CA-000791-ME
01-31-2020
J.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; Q.E.; AND J.M.H., A MINOR CHILD APPELLEES AND J.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; Q.E.; AND J.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Jason Rapp Lexington, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TRACI H. BRISLIN, JUDGE
ACTION NO. 18-AD-00141 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TRACI H. BRISLIN, JUDGE
ACTION NO. 18-AD-00142 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND TAYLOR, JUDGES. JONES, JUDGE: J.H. ("Father") appeals from two orders of the Fayette Circuit Court ("family court") terminating his parental rights to his two minor children, twins born in June of 2017 (hereinafter referred to collectively as "the Twins"). For the reasons more fully explained below, we AFFIRM.
Separate termination orders were entered for each child, and Father appealed each order. The appeals were consolidated by this Court for all purposes, including briefing.
I. STATEMENT OF THE FACTS
Q.E. ("Mother") gave birth to the Twins at the end of June 2017. They were born prematurely at approximately week thirty-four of Mother's pregnancy. Mother tested positive for marijuana and cocaine resulting in a referral to the Cabinet for Health and Family Services ("Cabinet"). The Cabinet filed a dependency, neglect and abuse ("DNA") petition and sought emergency custody of the Twins. Emergency custody was awarded to the Cabinet.
Mother's parental rights were also terminated as part of the same proceedings giving rise to this appeal. Mother has not appealed, and this Opinion is limited to discussing whether sufficient grounds existed to terminate Father's rights. We have included facts related to Mother only insomuch as they are necessary to understand how this matter proceeded both factually and procedurally.
The family court then took up the DNA petition. At this time, Father's paternity had not yet been established. While Father had notice of the proceeding, only Mother was named in it. Ultimately, the family court determined that the Twins were neglected by Mother due to her drug use during her pregnancy. The Cabinet retained custody of the Twins. Thereafter, the Cabinet set up a case plan with Mother. The Cabinet invited Father to go ahead and establish a case plan, but he declined to do so until his paternity was conclusively determined via genetic testing. While Father was present for the Twins birth, he returned to Michigan where he resides on a permanent basis shortly after their birth. He did not see the Twins again until they were approximately eight months old.
The results confirmed Father's paternity in September of 2017. By this time, the Twins had already been placed with a foster family. Father signed a case plan with the Cabinet on September 28, 2017. Father's case plan required him to complete various tasks, including drug screening, a domestic violence assessment, parenting classes, and a mental health assessment. The Cabinet provided Father with the names and locations of facilities in Kentucky where he could complete the tasks; it also advised Father that he could reach out to child protective services in Michigan and the case worker would discuss with its providers whether Father could complete some of his tasks in Michigan.
Due to medical concerns, the Twins' visits with non-caregivers were restricted to limit their exposure to germs and other pathogens. Father was granted monthly visitation. He first visited the Twins in February of 2018, when they were eight months old. Father missed two or three visits over a period of more than a year. Even though Father did exercise his visitation rights with regularity, he was slow to complete his case plan. In April of 2018, the Cabinet changed its permanency goal from reunification to adoption.
The family court conducted a termination of parental rights hearing on March 11, 2019. The only person to testify on behalf of the Cabinet was Katie Peyton, the case worker assigned to the family. Ms. Peyton testified regarding the initial referral, the case plans for the family, her observations during Father's visitations and the Twins' relationship with their foster family.
Ms. Peyton explained that the Twins were born prematurely and remained in the hospital for some time. Father returned to Michigan while the Twins were still in the hospital. When the Twins were discharged, they moved in with their current foster parents, who had visited them while they were still in the hospital. Even after discharge the Twins continued to suffer with medical issues. They had breathing problems and underdeveloped lungs, requiring treatments on a regular basis. The Twins also had stomach issues and continue to take acid reflux medication. They initially had problems gaining weight, as they were not digesting formula correctly. The Twins returned to the hospital multiple times and spent approximately one out of every five days of their first six months in the hospital. Aside from attending their births, Father did not visit the Twins during their substantial time in the hospital.
Ms. Peyton testified that the Twins were very bonded with their foster family. The foster family was able to meet the Twins' developmental and physical needs. They were up-to-date on all their appointments. While there were some concerns about possible developmental delays, the foster parents had been instrumental in helping the Twins get on track and were meeting their needs.
Ms. Peyton explained that Father signed a case plan with the Cabinet on or about September 28, 2017. Father completed his parenting class in September of 2018 but did not advise the Cabinet of his completion until the day of the trial. He provided consistent drug screens until November of 2018. He provided only one pay stub with six hours of work. He did not provide an accurate housing lease. She testified that it took Father over five hundred days to complete the various mental health, substance abuse and domestic violence assessments required by his case plan. Ms. Peyton explained that the assessments recommended Father receive ongoing therapy and counseling, and that Father would need to engage in such therapy for a considerable time before a return of the Twins to him could even be considered.
Ms. Peyton also testified to her personal observations of Father during his visitations. After having observed Father with the Twins during visitation, Ms. Peyton had grave concerns that Father had the skills to parent. She described his general demeanor as nonattentive and recounted two instances when she had to actively intervene in the visitation, both of which occurred after Father had completed his parenting classes. On the first occasion, which happened in early November 2018, one of the boys fell, hit his head, started crying and reached up for Father. Father, who was reading some paperwork, briefly looked up from the material, but did not interact with the child and soon returned to reading. On the second occasion, Father was observed picking up one of the boys by one arm. There was concern the action would pull the boy's arm out of its socket. Father was not receptive to Ms. Peyton's efforts to offer guidance immediately after these incidents. He did not accept her constructive criticisms of his responses and ended the visitations after expressing some verbal hostility.
Ms. Peyton testified that initially Father did not bring any supplies to the visitations, but that later he brought some diapers and wipes, and one outfit per child. Otherwise, Father had not supported the Twins since their birth.
During Father's case-in-chief, Father called Latifha Grey. The two share a daughter in common but are not currently together. Ms. Grey's baby was born in August of 2017, shortly after the Twins were born. Father and Ms. Grey co-parent their daughter without a court order. According to Ms. Grey, Father does whatever she needs him to do. He sees his daughter weekly or every other week and keeps her for overnight visits. Father helps Ms. Grey financially, but there is no child support order in place.
Father also called Adderina Wilson, a family friend from Detroit, Michigan. Ms. Wilson has known Father for over twenty years, and recently observed his interactions with his daughter. She believes him to be a good and loving parent to his daughter. She has never seen him interact with the Twins.
Next, Father called his mother, Celina Hill. Ms. Hill testified that Father was currently living with her brother, but that he would spend some nights with her and others with friends. Father does not pay any rent. She testified that Father has sickle cell anemia and he is sometimes in pain and fatigued.
Lastly, Father testified. He explained that he did not work his case plan initially because his pride got in the way. He felt it was Mother's fault they were in this situation and felt his character was being reflected unfairly. Father testified that he was working for a security company but had an upcoming laborer job with the city. He testified that he tries to see his daughter at least once a week, and he has kept his daughter overnight. He explained that he had used marijuana in the past to control pain, but that he had not used the drug while he was working his case plan. He admitted to physically assaulting Mother while she was pregnant but downplayed the incident.
Father admitted that he lived with his uncle and did not pay rent, even though he submitted a lease to the Cabinet that indicated he paid $435 a month for rent. Father does not own a car. If he had custody of the Twins, he testified that he would pay for them to be in daycare. However, he admitted that he relied on his family for financial support and that he had not financially supported the Twins since their births.
Following the hearing, the family court entered its findings of fact and conclusions of law. The family court concluded that the Twins qualified as neglected children as defined in KRS 600.020(1) insomuch as Father did not provide adequate care, supervision, food, clothing, shelter, education or medical care necessary to meet the Twins' needs following their birth. To this end, the family court relied on the fact that other than the few items Father brought to his last few visitation sessions, Father had not supported the Twins in any way. The family court also noted that Father did not visit the Twins during their first eight months of life, a substantial time of which was spent in the hospital. The family court also concluded there was no reasonable explanation of significant improvement in the immediately foreseeable future considering the age of the Twins. In support of this conclusion, the family court cited Father's failure to complete his case plan in the allotted time, and his failure to make any changes to his lifestyle that would allow the Twins to be returned to his care in a reasonable amount of time. Finally, the family court concluded that termination of Father's rights would be in the Twins' best interests. The family court noted that Father had not spent enough time with the Twins to form a parental bond and was not prepared to meet their medical and developmental needs. In contrast, the Twins were bonded to their foster parents who desired to adopt them, had unique developmental and medical needs that were being met by the foster parents, were in a home together and would continue to receive the needed care and attention in their current placement. Based on these conclusions and findings, the family court entered separate orders terminating Father's parental rights to each child.
Kentucky Revised Statutes. --------
It is from these orders that Father appeals.
II. STANDARD OF REVIEW
We follow the standard of review set forth by the Kentucky Supreme Court in Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204 (Ky. 2014):
[T]he trial court has wide discretion in terminating parental rights. Cabinet for Health and Family Services
v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)). Thus, 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. Kentucky Rules of Civil Procedure ("CR") 52.01. "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." T.N.H., 302 S.W.3d at 663. Due to the fact that "termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." D.G.R. [v. Commonwealth, Cabinet for Health and Family Servs., 364 S.W.3d 106, 113 (Ky. 2012)].Id. at 211.
III. ANALYSIS
Before terminating parental rights, the family court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
Pursuant to KRS 600.020(1)(a)(4) an abused or neglected child includes one whose health or welfare is threatened with harm when his parent "[c]ontinuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child[.]" The family court relied on this subsection to conclude that the Twins were abused or neglected children with respect to Father's inactions. For good reason, Father does not seriously contest this specific conclusion. The Twins were born with serious medical needs. Despite their precarious health, Father left the state shortly after birth and did not see the Twins again until they were approximately eight months old. His total contribution to their needs was supplying a few outfits and diapers and wipes during some visitations. Clearly, the evidence supported the family court's conclusion that Father's failure to provide for the Twins resulted in them being neglected.
As grounds for termination, the family court relied on KRS 625.090(2)(e). It provides a ground for termination where "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[.]" Id. While Father acknowledges his failure to provide for the Twins for over six months, he asserts the family court erred in its conclusions that there was "no reasonable expectation of improvement." He argues that no evidence supports this conclusion and, that, in fact, the evidence suggests that he has made improvements and will continue to do so.
While Father did substantially complete his case plan shortly before the hearing, we cannot agree that family court's findings are not supported by substantial evidence. While the family court could have certainly determined that Father might improve, the evidence did not compel such a determination. The assessments Father completed recommended continued therapy, which Father did not appear to be taking part in at the time of the hearing. Father did not have stable housing. He was staying with various family members and friends and was not paying rent. His employment was only seasonal. He did not demonstrate a clear plan for providing the substantial care the Twins would need to meet their medical and developmental needs. He testified only that he planned to send them to daycare when he was working. Additionally, as testified to by Ms. Peyton, even after Father completed parenting classes, he displayed inappropriate and inattentive conduct during his supervised visits. Moreover, to the date of the hearing, Father had not provided any financial support for the Twins despite having supported another child born around the same time. Substantial evidence supported the family court's determination that there were just grounds to terminate Father's parental rights.
Lastly, we address the family court's best interest analysis. The Twins have substantial and unique needs that are being met by foster parents who desire to adopt them. They are bonded to their foster parents and have little or no bond with Father. They are together in a secure and loving home that offers them permanency and an opportunity to thrive. In contrast, even if parental rights were not terminated, Father is not in a position to assume immediate care. He does not have stable housing or a clear plan to meet the Twins' needs on a day-to-day basis. The family court weighed the appropriate factors in deciding termination was in the Twins' best interests, and its decision is supported by substantial evidence of record.
IV. CONCLUSION
In light of the foregoing, we affirm the orders terminating Father's parental rights.
KRAMER, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Jason Rapp
Lexington, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Dilissa Milburn
Mayfield, Kentucky