Opinion
NO. 2017-CA-001591-ME NO. 2017-CA-001592-ME
06-29-2018
W.D.J. APPELLANT v. COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH & FAMILY SERVICES; S.M.K.B., an infant; and M.K.B. APPELLEES AND W.D.J. APPELLANT v. COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH & FAMILY SERVICES; D.G.K.J., an infant; and M.K.B. APPELLEES
BRIEF FOR APPELLANT: Mindy G. Wilson Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 16-AD-00276 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 16-AD-00277 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: W.D.J. ("Father") appeals from the August 30, 2017, orders of the Fayette Circuit Court, Family Division, terminating his parental rights to S.M.K.B. and D.G.K.J. On appeal, Father contends the trial court erred because there was insufficient evidence supporting TPR as to S.M.K.B. and D.G.K.J. Furthermore, Father contends he established by a preponderance of the evidence the children would not continue to be abused or neglected under his care. Following a careful review, we affirm.
On September 26, 2016, the Cabinet for Health and Family Services ("the Cabinet") filed petitions to involuntarily terminate Father's parental rights to his two minor children. The petitions alleged S.M.K.B. and D.G.K.J. were abused or neglected children. One petition sought TPR as to S.M.K.B., a daughter, born on May 18, 2006, in Fayette County, Kentucky. The second petition sought TPR as to, D.G.K.J. a son, born on August 24, 2012, in Fayette County, Kentucky. The Cabinet filed separate petitions for S.M.K.B. and D.G.K.J., seeking TPR as to M.K.B. ("Mother").
In August 2008, W.D.J. was adjudged to be S.M.K.B.'s father in Case Number 07-J-001394.
In December 2014, W.D.J. was determined to be the father of D.G.K.J. in Case Number 13-J-001136.
M.K.B. appeals separately in Case Numbers 2017-CA-001596-ME and 2017-CA-001597-ME. M.K.B. refers to the children as "S.B." and "D.J." in her appeals.
The Cabinet first became involved with the family in 2007, when Mother was still a juvenile. At the time, the Cabinet received a referral indicating Mother was leaving S.M.K.B. with the baby's maternal grandmother for long periods of time with no contact. Mother was also using marijuana and was involved with truancy court. After the Cabinet filed a neglect petition, S.M.K.B. was adjudged to be neglected in October 2007, and maternal grandmother was awarded temporary custody of S.M.K.B. Mother was placed in the Cabinet's custody through a dependency, neglect, and abuse action at the same time and was referred to a chemical dependency program. After completing the program, because she was preparing to attend college, Mother gave permanent custody of S.M.K.B. to maternal grandmother in November 2008. Father's only participation in the proceeding was submitting to the paternity test.
In July 2015, the Cabinet received a new referral for the family, this time regarding maternal grandmother's home. Multiple relatives with Cabinet history were living at the residence, and maternal grandmother was abusing drugs. On July 20, 2015, the Cabinet placed S.M.K.B. in foster care and on August 3, 2015, the trial court adjudged her to be neglected.
D.G.K.J. had lived with Mother since his birth. Because Mother had a positive drug screen, the Cabinet requested emergency custody of D.G.K.J. Although there were no allegations against him in the current referral, Father was not a suitable placement option due to his history of domestic violence and criminal record. The trial court granted emergency custody to the Cabinet on August 27, 2015. D.G.K.J. was adjudged neglected on August 31, 2015.
The Cabinet contacted Father in August 2015 to let him know his children were in foster care and offered him a case plan for reunification. Father did not respond to the Cabinet and did not come to discuss his case plan until May 2016. His plan required him to: complete a substance abuse assessment and follow all recommendations; complete a psychosocial assessment and follow all recommendations; complete a parenting assessment; complete a domestic violence assessment; submit to drug screens; create a relapse prevention program; and, seek a sober support system and demonstrate a changed lifestyle. The Cabinet offered free drug screens and referrals to community partners to help him complete these tasks.
Father initially refused to come in for the plan, refused to visit the children, and refused to submit to a drug screen. Both children were committed to the Cabinet on October 12, 2015. The Cabinet offered Father the opportunity for supervised visitation once he accepted his case plan, but he did not visit his children. When he finally submitted to drug testing in May 2016, he tested positive for cocaine. The Cabinet suspended his visits on June 6, 2016, until he could produce thirty days of negative drug screens. He was unable to do so and did not visit the children thereafter. On August 29, 2016, the Cabinet changed the permanency goal from "return to parent" to "adoption." The Cabinet petitioned for involuntary TPR of both parents as to both children on September 26, 2016.
As of April 2017, the trial court had ordered Father to pay $346.00 per month in child support; he was in arrears of $5,247.86 at the time of trial. Father renewed his efforts in May 2017, although he had not had contact with the Cabinet since the August 2016 permanency goal change. The Cabinet provided Father with a new case plan, which consisted of completing the tasks from the original unfinished plan and renewing his drug testing order. Father started a parenting class in June 2017 but was unable to complete it because he suffered a heart attack in mid-July and was hospitalized for over a week. He started a full-time job just before the heart attack and was able to maintain it until the time of the trial. When Father resumed drug testing in July 2017, his tests were still positive for cocaine. He paid a deposit on an apartment and expected to move on September 1, 2017. After his heart attack, Father went to church and was baptized. He testified he found the church and the people there to be positive and uplifting influences, and he then felt he had a strong support system and would be able to maintain the changes he had recently created in his life.
Following a bench trial on the involuntary TPR petitions, the trial court issued its findings of fact and ordered TPR as to Father for both children on August 30, 2017. These appeals followed.
Our review of TPR is confined to the clearly erroneous standard set forth in CR 52.01, requiring clear and convincing evidence. Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). As this Court has previously stated, clear and convincing proof does not mean uncontradicted proof. C.H. v. Cabinet for Health and Family Services, 399 S.W.3d 782, 788 (Ky. App. 2013) (citation omitted). Rather, 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." V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)). "In a trial without a jury, the findings of the trial court, if supported by sufficient evidence, cannot be set aside unless they are found to be 'clearly erroneous.' This principle recognizes that the trial court had the opportunity to judge the witnesses' credibility." R.C.R. v. Commonwealth, Cabinet for Health and Family Services, 988 S.W.2d 36, 39 (Ky. App. 1998) (citations omitted).
Kentucky Rules of Civil Procedure.
A trial court has broad discretion in determining whether a child satisfies the definition of an abused or neglected child and whether the abuse or neglect is sufficient to warrant TPR. See id. at 38 (citing Dep't for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977)). We will not substitute our judgment for the trial court's findings of fact unless no substantial evidence in the record supports such findings. V.S., 706 S.W.2d at 424. We review the application of the law to the facts de novo. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010).
TPR, while not a criminal matter, touches on a parent's constitutional right to raise a child, and therefore, requires clear adherence to governing statutes. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). With these standards in mind, we conclude the trial court supported its ruling with clear and convincing evidence resulting in Father's TPR.
Father contends the trial court erred because the Cabinet did not provide sufficient evidence supporting involuntary TPR and the trial court should have exercised its discretion under KRS 625.090(5) to deny the petitions. We disagree.
Kentucky Revised Statutes.
In 2018, the General Assembly amended KRS Chapters 620 and 625. However, the relevant provisions cited in this Opinion remained unchanged. --------
The Cabinet must "make every effort to reunite . . . families and support them . . . to keep the families together as units." V.S., 706 S.W.2d at 424. When the Cabinet's efforts fail, termination proceedings may begin. KRS 625.090 governs involuntary TPR and provides strict guidelines for the proceedings. The statute sets out a three-pronged test for TPR. M.P.R. v. Cabinet for Health and Family Services, 520 S.W.3d 409, 412 (Ky. App. 2017). First, the trial court must find the child is or has been adjudged abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, the trial court must find one or more grounds enumerated in KRS 625.090(2)(a)-(j) exists. Finally, the trial court must find TPR is in the child's best interest under KRS 625.090(3).
As a predicate to ordering involuntary TPR, a trial court must find, clearly and convincingly, the child was previously adjudicated an abused or neglected child or make such a finding in the current proceeding. KRS 625.090(1)(a)(1) and (2). The trial court correctly found both S.M.K.B. and D.G.K.J. were neglected as defined by KRS 600.020(1), due to both parents' absences and drug abuse. S.M.K.B. was first adjudged neglected in October 2007 and again on August 3, 2015. The trial court adjudged D.G.K.J. neglected on August 31, 2015. Father does not dispute these findings. Accordingly, the first prong of the test for involuntary TPR as to Father has been satisfied.
In the second prong of the test, the trial court must find evidence of at least one ground listed in KRS 625.090(2). The trial court relied on KRS 625.090(2)(a), (e), and (g) as grounds for TPR as to Father.
The first ground applies to Father's TPR action if "the parent has abandoned the child for a period of not less than ninety (90) days[.]" KRS 625.090(2)(a). The trial court found Father abandoned both children for at least ninety days when he ceased visitation in June 2016 and did not appear in court in July and August of 2016. Father was then out of contact with the Cabinet until April 2017, exceeding the ninety-day minimum for abandonment.
Father argues the time after June 2016 should not be counted toward the ninety days because he was prohibited by the court from visiting with the children. However, Father did not maintain contact with the Cabinet and did not continue working his case plan. Instead, the children stayed in foster care and he provided no proof of progress toward completing his case plan. The same can be said for the months between the children first being placed in foster care and Father finally responding to the Cabinet and coming in to get his initial case plan in May 2016. We discern no error in the trial court's determination of abandonment.
Next, the trial court found Father, "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[.]" KRS 625.090(2)(e). By the time of the trial, both children had been in foster care nearly two years. In addition to abandoning the children, the trial court found Father did not sufficiently progress toward goals identified in the Cabinet's reunification plan, to allow the children to safely return to his custody.
Father has done very little to advance his case plan while the children have been in foster care. In response, he cited his recent life improvements and assured the court he intends to maintain the good path he is on now. However, the trial court found this testimony unpersuasive. Father had only recently stopped abusing drugs and had not sought treatment or support from recovery services to help him maintain long-term sobriety. He had also been unsuccessful at engaging other services offered by the Cabinet, such as parenting classes or completing a domestic violence assessment. He has a substantial child support arrearage, despite having a full-time job, and has inconsistently contributed to the children's economic well-being. Therefore, we discern no error in the trial court's determination Father failed to provide essential care for the children for more than six months.
Finally, the trial court found for reasons other than poverty alone, the parents have continuously or repeatedly failed or are incapable of providing essential food, clothing, shelter, medical care, or education and that there is no reasonable expectation of significant improvement in the immediately foreseeable future considering the ages of the children. KRS 625.090(2)(g). The analysis for this finding is similar to KRS 625.090(2)(e). Based on the evidence presented at trial, no error occurred.
There is an additional requirement when analyzing TPR based on the grounds provided in either KRS 625.090(2)(e) or (g): "where the lack of ability to provide parental care and protection is the basis for involuntary termination, the trial court must find that there is no reasonable expectation of improvement in parental care and protection . . . ." M.E.C., 254 S.W.3d at 855 (quoting Forester v. Forester, 979 S.W.2d 928, 930 (Ky. App. 1998)). The Cabinet must evaluate the parent's ability to improve and provide adequate parenting in the future, rather than rely solely on past conduct. Id. The parent should demonstrate more significant and quicker progress when younger children are subject to TPR. Id. Although the trial court may not rely entirely on past behavior, it is indicative of future conduct, particularly when, as here, the Cabinet has already offered repeated opportunities for improvement over many years. Father had not completed his case plan, was unable to prove he can maintain long-term sobriety, and has failed to take advantage of the many resources made available to him by the Cabinet. These findings support the trial court's conclusion of no reasonable expectation Father would improve in the future.
Once the trial court finds grounds exist for TPR, it must make a finding on the last prong of the test, whether TPR is in the best interests of the children. When determining the best interests of the children, the trial court must consider six different factors, as enumerated in KRS 625.090(3):
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a
reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
The first factor focuses on parental mental health or intellectual disability. There is no evidence in the record of a mental health issue or intellectual disability for Father; therefore, this factor does not apply.
The trial court's finding regarding the second factor, addressing any neglect toward any child in the family, is undisputed by Father. KRS 625.090(3)(b). This factor has been met.
The third factor is whether the Cabinet made reasonable efforts to reunite child with parents. KRS 625.090(3)(c). Here, the Cabinet provided both parents reasonable services to facilitate reunification as demonstrated by testimony about the case plan developed to reunify the family. Despite these efforts Father did not make any progress. The trial court found the Cabinet provided Father with multiple case plans, free drug screening, supervised visitations, and referrals to community partners. We discern no error in the trial court finding the Cabinet reasonably tried to reunite the family prior to ordering TPR.
The fourth factor under KRS 625.090(3)(d) is the adjustments made by the parent. There is sufficient evidence, given the children's ages, of little expectation of improvement in Father's circumstances, conduct, or conditions within a reasonable time. Ultimately, the issue is Father's inability to maintain long-term sobriety. His first child, S.M.K.B., had been out of his custody for over seven years by the time the Cabinet initiated this action. He has had time since then to work on creating a positive environment for the children but has failed to do so. He continued to have positive drug screens until just before trial. He also did not complete the drug assessment and treatment portions of his case plan in the two years since the children entered foster care. Father has been unable to complete the rest of his case plan in a timely manner. The trial court did not err in finding Father's efforts to improve were untimely and insufficient.
For the fifth factor, the physical, mental, and emotional health of the child and prospects for improvements to the child's welfare, the trial court considered the children's foster care placement. KRS 625.090(3)(e). S.M.K.B. entered Cabinet custody on July 20, 2015. D.G.K.J. entered Cabinet custody on August 27, 2015. The children are thriving in foster care. They have been placed together, and the older child is doing well in school. Both children have bonded with their foster mother, and on entry of TPR, foster mother intends to begin the adoption process to provide a permanent stable home. The trial court did not err in finding this factor was met.
Finally, the last factor under KRS 625.090(3) is any failure to pay a reasonable portion of child support given the parent's financial resources. KRS 625.090(3)(f). Father has failed to financially provide for the children since being ordered to pay child support and has amassed a substantial arrearage. He has not reported his current income despite having new full-time employment. As such, the trial court did not err in finding Father failed to pay a reasonable portion of substitute physical care and maintenance although he was financially able to do so.
Considering the trial court's findings on these six factors and other evidence in this case, the trial court did not err by finding TPR as to Father is in the children's best interests. Father's reliance on KRS 625.090(5) to prevent TPR is unconvincing. This part of the statute allows the trial court to use its discretion to choose not to terminate a parent's rights, even if the Cabinet proves its case, if the parent proves by a preponderance of the evidence the child will not be subject to abuse or neglect if returned to the parent's care. KRS 625.090(5); see also D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 111 (Ky. 2012).
Father's evidence shows admirable intentions but lacks solid support. Although Father made improvements in his life on the eve of trial, he has not received treatment for substance abuse, completed parenting classes, or documented his new employment or housing. Under these facts, the trial court found Father did not prove the children would not be neglected if returned to his custody. Even if the trial court found Father proved the children would no longer be neglected, the trial court retained authority to terminate his parental rights. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Based on the record, the trial court had ample evidence to support TPR in this case. Therefore, we conclude the trial court did not abuse its discretion.
There is substantial evidence supporting Father's TPR. For a period of not less than six months, Father failed or was substantially incapable of providing essential care for the children, had not financially supported the children, and, Father tested positive for illegal drug use as recently as a month before trial. During a period of ninety days or more, Father abandoned the children. Risking further instability while awaiting parental compliance would not be in the best interests of the children. V.S., 706 S.W.2d at 424 ("The risks are too great to experiment further with the children's future."). The trial court's determination of abuse and neglect and subsequent TPR as to Father satisfied statutory requirements, was in the children's best interests, and was supported by clear and convincing evidence.
For the foregoing reasons, the orders of the Fayette Circuit Court, Family Division, terminating Father's parental rights to S.M.K.B. and D.G.K.J., and granting custody to the Cabinet, are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mindy G. Wilson
Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr
Lexington, Kentucky