Opinion
NO. 2014-CA-001913-ME
02-19-2016
J.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.J.D., a minor child APPELLEES
BRIEF FOR APPELLANT: Maureen Sullivan Henry Weber Louisville, Kentucky BRIEF FOR APPELLEES: Erika L. Saylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NO. 13-AD-500522 OPINION
AFFIRMING BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. DIXON, JUDGE: J.W. ("Father") appeals from a judgment of the Jefferson Circuit Court terminating his parental rights to K.J.D. ("Child"). Child's mother, A.D. ("Mother"), is deceased. Finding no error, we affirm.
The Cabinet filed a petition alleging neglect shortly after Child's birth due to Mother's substance abuse. Father was identified as the putative father; however, he was incarcerated in Indiana at the time. Child was placed in the Cabinet's custody in July 2012, and Child's mother died approximately two months later following a DUI auto accident. In March 2013, Child was adjudicated as dependent due to the death of Mother and the incarceration of the putative father. After Father's paternity was established, the Cabinet filed an amended petition alleging Child was at risk for neglect because Father had at least two years remaining in prison, was unable to provide for Child, and had never had contact with Child. Father did not appear telephonically at the adjudication, but he was represented by appointed counsel. The court found that Father neglected Child based on the allegations in the petition. In December 2013, the Cabinet filed a petition to terminate Father's parental rights.
At the final hearing, the court heard testimony from the Cabinet's social worker, Allison Miller, and Father testified by telephone from prison. Father admitted that he had been incarcerated since before Child's birth as a result of multiple burglaries he committed in November 2011. Father also acknowledged his lengthy criminal history and substance abuse. The court also received the report of Child's guardian ad litem recommending termination.
Following the final hearing, the court found that Child had been neglected by Father and that it was in Child's best interest to terminate Father's parental rights. The court noted that Child had been in foster care since birth, approximately thirty months, and that Child had bonded with the foster parents. The court emphasized that Father had no relationship with Child and that he would remain in custody for at least another six months. Father now appeals.
Parental rights "can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so." Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006); KRS 625.090. The trial court's findings of fact are entitled to great deference; accordingly, this Court applies the clearly erroneous standard of review. CR 52.01; M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Where the record contains substantial evidence to support the trial court's findings, we will not disturb them on appeal. Id.
Father contends the court's determination of neglect was not supported by substantial evidence and that the court failed to render a specific finding of neglect before the petition for termination was filed.
Although Father disputes the adequacy of the court's adjudication in the neglect proceedings, KRS 625.090(1)(a)(2) provides that the circuit court may make a separate determination of neglect following the termination proceeding. Here, based on the testimony presented at the final hearing, the court made an independent finding of neglect based on Father's failure to provide for Child's basic needs. KRS 600.020(1)(a)(4) provides for a finding of neglect when a child's welfare is threatened with harm because a parent continuously fails "to provide essential parental care and protection for the child, considering the age of the child[.]" The court's findings stated, in relevant part:
The Respondent father admitted that he is currently incarcerated as the result of crimes he committed in November 2011, upon hearing that his girlfriend was expecting a child, this child. He has been jailed continuously since before [Child]'s birth and has never seen or provided any child support or other material provision for her. He acknowledged a lengthy history of criminal convictions, dating back to when he was a minor and including previous convictions for Driving While Under the Influence, Possession of Marijuana, Possession of Controlled Substances and Burglary. [Father] noted that he has spent almost eight (8) years of his life in jail. He testified that his drug abuse began over a decade ago and progressed from marijuana to opiates and that he and [Child]'s mother were drinking and abusing drugs together prior to his incarceration and during the mother's pregnancy with [Child]. He never engaged in any substance abuse treatment prior to his current incarceration. He was laid off from his employment prior to his incarceration and his job history included various jobs in the construction industry. He is in a job program at his prison but has made no provision for his child out of his admittedly slight income. He testified that he has another child, age fourteen, with whom he has also never resided and who is in the care of her mother. He admitted that he has never paid any formal child support for that child and has had no contact with her since his incarceration in November 2011. He was residing with [Child]'s mother prior to his incarceration but they were delinquent in their rent and fearing eviction at the time of his arrest. He hopes to obtain employment upon his release from jail, likely sometime in 2015, and plans to live with friends.
After careful review, we are satisfied that the trial court's finding of neglect was supported by substantial evidence, and Father's argument to the contrary is without merit.
Father next challenges the sufficiency of the evidence supporting the court's finding that termination was in Child's best interest. Father argues he has never had an opportunity to establish that he is capable of parenting Child and opines that he did everything he could to comply with the Cabinet's case plan while incarcerated. To support his argument, he relies on his own testimony that he was participating in a prison work program and that employment would be available to him upon his release from incarceration.
In this matter, the trial court was the fact-finder, and it was vested with broad discretion to weigh the evidence and assess witness credibility. CR 52.01. The record indicates the court meticulously applied the statutory factors set forth in KRS 625.090(2)-(3) and made specific factual findings based on the evidence presented. At the time of the termination hearing, Child was more than two years old and had been in foster care since birth. The court stated, in relevant part,
[T]he Cabinet's case worker testified that the Respondent father remains incarcerated and has a least six (6) more months remaining on his sentence. Even upon discharge, the Respondent father will still need to obtain and maintain stable housing and employment, pay any current and delinquent child support, complete substance abuse treatment and demonstrate a period of sobriety, complete and demonstrate appropriate parenting skills, and meet and develop a relationship with his child. As a result of the foregoing and more, the Petitioner child has been unable to return safely to parental custody and care and instead has remained in the Cabinet's care and custody for not less than twenty-three (23) consecutive months.
We have fully considered the arguments raised by Father; however, we conclude that substantial evidence supported the court's determination to terminate parental rights. The court rendered specific findings that the statutory requirements for termination were met and that it was in Child's best interest for Father's parental rights to be terminated. We find no error in the court's determination.
For the reasons stated herein, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Maureen Sullivan
Henry Weber
Louisville, Kentucky BRIEF FOR APPELLEES: Erika L. Saylor
Louisville, Kentucky