Opinion
NO. 2013-CA-000751-ME
03-13-2015
R.T. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.M.T., A CHILD; AND K.C. APPELLEES
BRIEF FOR APPELLANT: Heather L. Jones Paducah, Kentucky BRIEF FOR APPELLEE Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 12-AD-00072
OPINION AND ORDER REVERSING AND REMANDING AND GRANTING MOTION TO WITHDRAW
BEFORE: KRAMER, MAZE, AND VANMETER, JUDGES. MAZE, JUDGE: This appeal arises from the McCracken Circuit Court's Order terminating the parental rights of Appellant, R.T. (hereinafter "Father"). As the trial court's decision lacks substantial evidence in the record to support it, we reverse and remand for further proceedings.
Background
On June 24, 2011, Father's child, A.M.T., was born at twenty-eight weeks gestation, weighing less than two pounds, and testing positive for cocaine and opiates. A.M.T. spent more than four months in the neonatal intensive care unit at Kosair Children's Hospital in Louisville. During A.M.T.'s hospitalization, Father resided at the Ronald McDonald House with the mother. Father's whereabouts and the extent of his involvement with A.M.T. between July 2, 2011 and his arrest in August 2011 are unclear from the record.
The Cabinet for Health and Family Services (CHFS) filed a Petition alleging neglect against the mother. At the subsequent adjudicative hearing, a nurse employed by the Commission on Children with Special Health Care Needs testified that though the A.M.T.'s condition was one of the most severe cases she had seen, A.M.T had made substantial improvements due to the care he received at Kosair and from his living arrangement with his current foster parents. Following a hearing, a court found the mother to have neglected A.M.T., as defined by KRS 600.020(1), based on A.M.T.'s testing positive for cocaine and opiates at birth. In the same December 2011 Order, the court found that though "mother stipulates to neglect . . . [t]he child's father did not cause child to be born premature or [with] drug addiction."
Kentucky Revised Statutes.
During the pendency of mother's neglect case, on November 5, 2012, CHFS filed a Petition for Involuntary Termination of Parental Rights. CHFS alleged that while Father had acknowledged paternity on A.M.T., he had an unstable housing and job history, that he had not taken steps to participate with the child's medical treatment, and he had not sought to build a relationship with the child. CHFS also alleged that it offered reunification services to both parents, few of which they utilized. In response to the Petition, Father wrote a letter which was filed with the trial court and which stated that he did not want to terminate his rights but instead wanted to file for custody.
On March 7, 2013, a termination hearing was held, following which the trial court involuntarily terminated Father's parental rights. Father is currently incarcerated and he now appeals from the trial court's decision. After filing this appeal, Father's counsel filed a Motion to Withdraw which is pending before this Court and which we address infra. We will raise further facts as necessary to aid our analysis.
Standard of Review
Father does not contest the factual findings of the trial court. He contends only that his incarceration alone cannot satisfy the statutory prerequisites for termination of his parental rights. Therefore, the issue is largely one of law, and we review it de novo. Ball v. Tatum, 373 S.W.3d 458, 464 (Ky. App. 2012).
Analysis
On appeal, Father contends that CHFS did not meet its burden under KRS 625.090(2) and that the trial court's decision to terminate his parental rights was impermissibly based on the sole fact of his incarceration. Father therefore asserts that the trial court erred in terminating his parental rights.
To terminate a parent's parental rights, CHFS must satisfy three requirements: 1) that the child is abused or neglected as defined by KRS 600.020(1); 2) that termination is in the best interests of the child; and 3) that one of the factors listed in KRS 625.090(2) is present, including that the child has been abandoned for not less than ninety days or that a parent has "continuously or repeatedly failed or refused to provide" for the child. See KRS 625.090(2).
On appeal, the only issue Father raises is whether the court improperly based its decision to terminate his parental rights on the fact that he has been incarcerated for all but two months of A.M.T.'s life. After reviewing relevant precedent and the now-complete record, we conclude that the trial court did err.
The Kentucky Supreme Court has explained that, "incarceration for an isolated criminal offense may not constitute abandonment justifying termination of parental rights . . . ." Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995). Instead, incarceration is merely a factor to consider when applying a parent's conduct to the KRS 625.090(2) standard. Id. If this were not the case, detention so lacking in intent "would make servicemen, prisoners of war, ship captains, or persons requiring prolonged hospitalization ... likely candidates to have their parental rights terminated." Id. (quoting J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985)).
This Court has also applied such a rule, stating that "'[i]ncarceration alone can never be construed as abandonment as a matter of law.'" M.L.C. v. Cabinet for Health and Family Services, 411 S.W.3d 761, 766 (Ky. App. 2013) (quoting J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1986)). In M.L.C., this Court vacated and remanded the trial court's order to terminate parental rights because the "trial court did not provide ample support for its findings of fact and conclusions of law and appear[ed] to have relied primarily on M.L.C's incarceration alone . . . ." 411 S.W.3d at 766. We explained that based on the record the "trial court . . . did not explain or cite to any specific evidence which supported its decision . . . [f]or instance, the trial court did not detail any reunification efforts made by CHFS . . . ." Id.
The current case is comparable to M.L.C. in that the primary basis for CHFS's effort, and the trial court's decision, to terminate Father's parental rights was his incarceration. In the Petition giving rise to the case, CHFS claimed that KRS 625.090(2)(a) was met because Father had abandoned the child for a period of not less than ninety days. The only support given in the Petition for this claim was that "the father is incarcerated in West Liberty, KY and has been since the child has been in custody so he doesn't visit." We note that, in its brief on appeal, CHFS now concedes that the evidence presented concerning Father's conduct "may not constitute the statutory definition" of abandonment. Furthermore, in asserting that KRS 625.090(2)(g) was met, the only "reason[] other than poverty alone" CHFS proferred for Father's failure to provide for A.M.T. was that "[Father] is in jail and will be for a while" and "[Father] continues to be incarcerated."
It is worth noting that we render this opinion after granting CHFS's request for rehearing. CHFS did not file a brief during the initial briefing period; however, it did so upon rehearing.
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In its Findings of Fact, the trial court noted that Father was "currently in a halfway house . . . [in] Louisville, Kentucky . . . awaiting release into the community. He is approved for parole with the Kentucky Department of Corrections." The trial court went on to find that the child was neglected "as defined in KRS 600.020(1) in that a court of competent jurisdiction found him neglected based upon being born positive for cocaine and opiates." The trial court then made a finding of fact concerning an incident at the Ronald McDonald House, where the family was staying while the infant received treatment at Kosair:
[Father] was incarcerated for a period of time during [A.M.T's] stay in foster care. Prior to the most recent incarceration, which occurred in August 2011, [Father] had been in Louisville, staying at the Ronald McDonald House with [the mother]. However, an employee of the Ronald McDonald House testified by telephone that [the mother] requested that he leave, and the staff enforced her request. When she changed her mind, the Ronald McDonald House refused to allow [Father] to return.An incident report from this event was an exhibit at the March 7 hearing.
In addition to this, the trial court made several findings seemingly based upon the above facts and clearly aimed at satisfying the statutory prerequisites of KRS 625.090(2)(a), (e), and (f). The court first found that Father
[h]as abandoned [A.M.T.] for periods of not less than ninety days in that he has not visited the child for a substantial period of time and has expressed no actions or words that demonstrate intent to parent the child, even after his incarceration. [Father] acknowledged early in the case that he is [the child's] father; however, he has not made steps to participate with [the child's] treatment. There is no evidence that he has sought to build a relationship with the child.The trial court then, parroting KRS 625.090(2)(e), found that,
[t]he Respondent mother and father of said child, for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child . . . . During the time from June 24, 2011 to the present, CHFS has offered reunification services to [the parents], few of which they have utilized . . . The reasons for the mother's failure and refusal is a continued dependence on substances . . . [Father] has been incarcerated for a period of time, because of failure to obey rules while on parole from a conviction for possession of cocaine. His arrest in August 2011 was for parole violation . . . The Court finds that there is no reasonable expectation that [the parents] can safely resume parenting . . . .Finally, the trial court found that
[t]he respondent mother and father, for reasons other than poverty alone, have continuously and repeatedly failed to provide the necessities of life for [the child] and there is no reasonable expectation of significant improvement . . . in the immediately foreseeable future in that [the parents] have both unstable housing and job histories. There is no expectation of improvement in this condition, given that . . . [Father] is currently in a halfway house in Louisville and does not appear able to provide income and support . . . .
These various findings have insufficient factual support in the record. Concerning the trial court's reference to mother's adjudication of neglect, it bears repeating that the only mention of Father in the court calendar from the adjudication hearing, which is included in the record on appeal, was that the father "did not cause child to be born premature or [with] drug addiction." Hence, the trial court's reliance upon mother's dependency issues and the resulting adjudication of neglect was misplaced. Similarly, the Ronald McDonald House incident is of questionable import, and the trial court's order makes no attempt to clarify its relevancy to the statutory requirements for termination.
The trial court's finding that Father had not "visited the child for a substantial period of time and has expressed no actions or words that demonstrate intent to parent the child, even after his incarceration" is unsupported - in fact, it is contradicted - in the record. It is unclear from the trial court's order whether the finding of Father's lack of visitation, participation in treatment, and relationship-building with the child is based on any reason other than his incarceration. More imperatively, these findings are shown to be false in light of Father's and the CHFS worker's testimonies that Father took part in at least one meeting concerning the child, and Father's testimony that he visited the child regularly in the two weeks following his child's birth and that he wrote a letter to CHFS and the trial court after the Petition was filed.
Finally, just as in M.L.C., the trial court's order stated that the parents have been offered reunification services and have only taken advantage of a few of them. However, the court does not detail the extent of those efforts, nor does it state whether Father's incarceration was the sole reason for their failure. It is worth noting that the CHFS ongoing worker testified that CHFS never established a case plan for Father, an agreement of sorts through which a parent can satisfy conditions and work to regain custody of a child, "because he is incarcerated." Similarly, the trial court pointed to the parents' unstable employment and housing histories, but cited to nothing in the record supporting its concern over these factors as they pertained to Father. Rather, the record lacked sufficient support regarding Father's employment and housing history. When the unsupported findings listed above are removed from the trial court's analysis, only the fact of Father's incarceration remains in support of termination. This is an impermissible result.
On appeal, CHFS refutes that the trial court's decision was based solely on his incarceration, arguing that the record established other grounds for termination. CHFS cites to testimony from "several witnesses, each of whom had a direct connection with significant factual information about [Father]." CHFS also repeatedly points to both parents' "individual history of chronic neglect and instability" as well as what CHFS calls Father's "continuous criminal lifestyle." Unfortunately for CHFS, our review of the video record leaves these contentions wanting for factual support.
The witnesses CHFS called at the termination hearing were a police officer who investigated an allegation of domestic violence involving Father, but who testified that he never saw or spoke to Father and had no knowledge of Father's true culpability or whether Father was arrested or charged; an alcohol and drug addiction counselor who testified that she had no association with or knowledge concerning Father - only A.M.T.'s mother; a registered nurse who testified to the child's fragile physical state and to the fact that she had no contact with Father; A.M.T.'s foster parent who testified only regarding the child's condition and improvement since entering her home; and the CHFS case worker.
Of these witnesses, only one - the CHFS case worker - testified to having what could be characterized as "a direct connection with significant factual information about the history of [Father]." The CHFS worker testified that Father had been in contact with her, took part in at least one meeting with her via telephone, and asked her regularly how A.M.T. was doing; that Father had contact with his child prior to being incarcerated; and that father informed her he was attending parenting classes in prison and planned to get a home, a job, and provide for his child after release from prison.
Furthermore, none of CHFS's witnesses provided evidence regarding Father's alleged "history of chronic neglect and instability" or his criminal history. Nothing in the record or at the hearing established a "history of chronic neglect" on Father's part. Additionally, the only information regarding Father's criminal history came during CHFS's cross-examination of Father, when Father stated that he was originally incarcerated on a drug-related charge; that he was paroled and that he violated his parole shortly after A.M.T. was born, resulting in his re- incarceration. He had prior convictions in 1988 and 2002, well before A.M.T.'s birth. Overall, the evidence presented on the record did not establish the "continuous criminal lifestyle" CHFS portrays on appeal.
In sum, CHFS presented no evidence of substance, other than the fact that Father was incarcerated, which could satisfy the first two statutory requirements for termination of Father's parental rights regarding A.M.T. According to our Supreme Court, as well as this Court's holding in M.L.C. and relevant statutes, this was insufficient to support termination; and the trial court's repeated reliance upon the fact of Fathers' incarceration constituted clear error.
Conclusion
This is a challenging and emotional case because it involves a child whose best interests are of utmost concern. Based upon the fact that the child is flourishing with his foster family while Father is incarcerated for the foreseeable future, there is an understandable temptation to summarily terminate Father's parental rights and permit A.M.T. to begin anew. Termination may well be in this child's best interest. However, the child's best interest is but one of three requisite factors under the law, and we must follow the law. Kentucky law clearly mandates that we cannot affirm the trial court's termination in the absence of substantial evidence supporting all statutory factors; and the law is equally clear that a parent's incarceration, by itself, cannot constitute substantial evidence supporting termination.
Accordingly, because "the trial court did not provide ample support for its findings of fact and conclusions of law and appears to have relied primarily on . . . incarceration alone," we reverse the trial court's order and remand for a new hearing. At this hearing, CHFS may present evidence, if it exists, which establishes grounds for termination other than Father's incarceration and which truly comply with the requirements of KRS 625.090. M.L.C., 411 S.W.3d at 766.
IT IS FURTHER ORDERED that the Father's counsel's Motion to Withdraw, due to the circumstances described in that motion, is GRANTED. On remand, the trial court shall appoint Father new counsel if he so qualifies.
ALL CONCUR ENTERED: __________
/s/_________
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Heather L. Jones
Paducah, Kentucky
BRIEF FOR APPELLEE Dilissa G. Milburn
Mayfield, Kentucky