Opinion
NO. 2019-CA-000449-ME NO. 2019-CA-000450-ME
03-20-2020
R. M. AND S. M. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND D. M., A MINOR CHILD APPELLEES AND R. M. AND S. M. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND V. C. M., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANTS: William J. Verax IV Cynthiana, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00016 APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00017 OPINION
AFFIRMING
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BEFORE: GOODWINE, LAMBERT, AND K. THOMPSON, JUDGES. LAMBERT, JUDGE: R.M. (the Mother) and S.M. (the Father) (collectively, the Parents) appeal from the January 22, 2019, Harrison Circuit Court orders terminating their parental rights to their two children, namely, V.C.M (Child One, born in 2004) in appeal No. 2019-CA-000450-ME, and D.M. (Child Two, born in 2007) in Appeal No. 2019-CA-000449-ME (collectively, the Children). We affirm.
The circuit court, on its own motion, entered an "Amended Findings of Facts and Conclusions of Law" on March 13, 2019, nunc pro tunc, "in order to explicitly state language that was otherwise implied in the Court's original Findings and Conclusions." The result was not altered.
This family entered the United States by way of Romania to Mexico to Arizona in 2014. Because their entry into this country was illegal, the Parents were required to wear ankle monitors and were restricted from leaving Arizona. However, they ignored those restrictions and traveled to Kentucky later that same year. The Children initially were removed from the Parents by means of emergency custody orders after the Children had been left in a vehicle for over an hour in very hot weather. Subsequent to the Children being placed in foster care, their unusual behaviors (including inappropriate sexual language and gestures) instigated further investigation by the Cabinet. The Children were separated from each other, and V.C.M. received therapeutic treatment at the Children's Home of Northern Kentucky. The Children were later reunited, and they have remained together in foster care.
According to the circuit court's order, the first foster mother "described the two boys repeatedly embracing, rubbing genitals, and 'French' kissing each other. The boys also 'humped' pillows."
In May 2015, the Parents stipulated to abuse or neglect of the Children. At the disposition hearing in July of that year, the goal remained for the Children to return with the Parents. The Parents were given a case plan, which they mostly completed, although visitation remained a major issue because the Parents had to return to Arizona. Regular visitation resumed when the Parents came back to Kentucky in November 2016.
In September 2017, the Cabinet changed the goal from reunification to adoption. It filed petitions for involuntary termination of parental rights (TPR) on March 26, 2018. A lengthy hearing was held over the course of several days beginning September 25, 2018, and ending on October 5, 2018. The circuit court orders terminating parental rights of S.M. and R.M. to V.C.M. and D.M. were entered in January and March of 2019. In the interim, the Parents filed a motion for judgment notwithstanding the verdict (Kentucky Rule of Civil Procedure (CR) 59.05) on January 31, 2019; the motion was denied on February 20, 2019. The Parents filed their notices of appeal, and this Court ordered the appeals consolidated on August 1, 2019.
The Parents first argue that the circuit court erred in failing to enter its termination orders within 30 days of the hearing's conclusion. Kentucky Revised Statute (KRS) 625.090(6) states:
Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
(Emphasis added.) The Parents insist that the entry of the circuit court's order, over two months beyond the 30-day requirement, violated their procedural and due process rights. In support of this argument, the Parents cite K.M.J. v. Cabinet for Health and Family Services, 503 S.W.3d 193 (Ky. App. 2016), which held that "the procedure expressly outlined in KRS 625.090(6) did not permit the trial court's chosen means of accomplishing that noble goal [of providing 'Mother one last chance to "rebuild her life"']" by ignoring the 30-day time frame enunciated in the statute. Id. at 197.(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
However, there are two unpublished decisions, which we cite pursuant to CR 76.28(4)(c), that hold otherwise.
The Rule allows: "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." --------
This 30-day requirement, however, was not created as a means to ensure due process for parents, but rather as a means to expedite permanency for children. This goal has been continuously encouraged by various forms of law, including the Adoption and Safe Families Act of 1997 (AFSA). 42 U.S.C. § 675(5)(c)(2000). Appellants have failed to cite to any legal authority which supports their argument that the 30-day requirement is a means of ensuring due process for the parent-respondents. Accordingly, their argument is without merit.J.T.B., Sr. v. Cabinet for Health and Family Services, No. 2013-CA-001395-ME, 2014 WL 4177422, at *3 (Ky. App. Aug. 22, 2014).
And, as the Cabinet points out, the Parents have failed to preserve this issue for appeal. Thus, the following language is instructive as well:
K.M.J. is readily distinguishable from these cases now before this Court. In K.M.J., the court deferred ruling on a petition for termination of parental rights for nearly fourteen months, during which time the court even conducted additional hearings based on the original petition. Id. at 195-96. The Court of Appeals held in K.M.J. that the trial court erred by indefinitely keeping the case in limbo, after the termination hearing, which it concluded was a violation of KRS 625.090(6). Id. at
197. That did not occur in these appeals. Other than the bare allegation of prejudice asserted, J.A. has failed to demonstrate or establish on appeal how he has been prejudiced by the thirty-day delay in entry of the termination orders . . . . As noted, this Court has, pursuant to CR 61.02, made an extensive review of the record below for each appeal. We conclude that any error arising from the timeliness of entry of the orders terminating J.A.'s parental rights was harmless and otherwise did not violate or affect J.A.'s substantial rights in these appeals. See CR 61.01. If anything, J.A.'s substantial rights have been protected by this Court's review.J.A. v. Cabinet for Health and Family Services, No. 2017-CA-000586-ME, 2018 WL 3954289, at *2 (Ky. App. Aug. 17, 2018). We thus hold that the circuit court's delay in entering the TPR decisions did not violate the Parents' procedural or due process rights, nor were the Parents prejudiced in any fashion by the delay.
The Parents next argue that the circuit court lacked clear and convincing evidence upon which to base its termination of their parental rights. We begin by stating our standard of review, namely:
Trial courts are afforded a great deal of discretion in determining whether termination of parental rights is warranted. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Accordingly, appellate courts will not set aside the trial court's findings of fact unless they are clearly erroneous. [Kentucky Rule of Civil Procedure] CR 52.01. Findings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them. Yates v. Wilson, 339 S.W.2d 458 (Ky. 1960). "The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence." V.S.
v. Commonwealth of Kentucky, Cabinet for Human Res., 706 S.W.2d 420, 423 (Ky. App. 1986). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).M.P.R. v. Cabinet for Health & Family Servs., 520 S.W.3d 409, 412 (Ky. App. 2017) (footnotes omitted).
In Kentucky, the involuntary termination of parental rights is governed by KRS 625.090. Under that statute, termination of parental rights is proper upon satisfaction of a three-pronged test. First, the child must be found to be abused or neglected, as defined in KRS 600.020(1). KRS 625.090(1). Second, the court must find that at least one of the enumerated factors in KRS 625.090(2) is present. Finally, the court must find that it is in the best interest of the child that parental rights be terminated. KRS 625.090(3).
The record clearly supports that the Children were neglected or abused under KRS 600.020(1). Not only did the Parents stipulate to abuse or neglect in May 2015 while represented by counsel, but the circuit court made an independent finding regarding each child in its decisions terminating parental rights. The Parents cannot credibly argue that their conduct did not result in neglect or abuse. They testified about their panhandling pursuits (which included the Children begging for money on street corners - this alone would meet the definition of neglect or abuse under KRS 600.020(1)(a)7. as exploitation) and living in their vehicle (i.e., failing to provide food, clothing, or shelter for the Children under KRS 600.020(1)(a)8.). The Children's dental health had been completely neglected, and they were behind on their immunizations. A witness from Catholic Charities testified that the children had been coerced by the parents into panhandling, which "met the federal and state guidelines as severe human trafficking." Thus, we hold that the first prong regarding abuse or neglect was met. M.P.R., 520 S.W.3d at 412.
We next examine whether there was substantial evidence to support the circuit court's finding that "at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists." Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014); M.P.R., 520 S.W.3d at 412. Here, the circuit court based its decision upon two of the factors enumerated in KRS 625.090(2), viz.:
(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;Clear and convincing evidence supports the circuit court's findings under this statute. We need not discuss this prong further. M.P.R., 520 S.W.3d at 412.
. . .
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights.
We lastly examine whether it was in the best interests of the Children for the Parents' rights to be terminated. In this vein, the Parents initially claim that the circuit court failed to outline the specific provisions of KRS 625.090(3) upon which it relied in its determination that TPR was in the best interests of the Children (BIC). The record and the circuit court's findings are inapposite to the Parents' claim under this section of the statute. The circuit court made seven pages of findings that support its BIC determination. "[W]e believe the trial court properly exercised its substantial discretion in determining that termination was in Child's best interests. D.G.R. v. Com., Cabinet for Health & Family Servs., 364 S.W.3d 106, 112 (Ky. 2012) ("[T]he trial court has substantial discretion in determining the best interests of the child under KRS 625.090(1)(b) and (3)."). B.E.K. v. Cabinet for Health and Family Services, 487 S.W.3d 457, 469 (Ky. App. 2016).
The same holds true for the Parents' claim that the Cabinet failed to make reasonable efforts toward reunification. KRS 625.090(4). The initial plan was to reunify this family, and the Cabinet worked with the Parents for three years before changing the goal to adoption of the Children. "Reunification was the Cabinet's initial preference." B.E.K., 487 S.W.3d at 468. The Parents do not state what additional services could or should have been extended to them to achieve that initial goal of reunification. There was no error in this regard.
The Parents lastly argue that the circuit court failed to exclude evidence obtained in prior hearings involving a different set of siblings (cousins to the Children here). This evidence (which included allegations of sexual and physical abuse by the parents of the other children), the Parents urge, was unfairly prejudicial to them. Again, we disagree and hold that the circuit court consistently made findings specific to this family, with no undue prejudice from the factually related case.
We agree with the Cabinet that the circuit court's findings as to the statutory prerequisites had the support of substantial evidence. Therefore, there was substantial compliance with the "clear and convincing" evidence standard enunciated in Santosky v.Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982); accord J.E.H. v. Department for Human Resources, 642 S.W.2d 600, 603 (Ky. App. 1982). We have "reviewed the circuit court's (1) neglect and abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best-interests determination [KRS 625.090(3)]. In light of our review, we agree with [the Cabinet's] estimation and perceive no basis warranting relief on appeal." A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361, 372 (Ky. App. 2012).
The orders of the Harrison Circuit Court terminating the Parents' parental rights are affirmed.
GOODWINE AND K. THOMPSON, JUDGES, CONCUR IN RESULT ONLY. BRIEF FOR APPELLANTS: William J. Verax IV
Cynthiana, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky