Opinion
NO. 2015-CA-000114-ME
01-08-2016
W.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; K.M.D.; AND L.D.R. (MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT: Maureen Sullivan Henry Weber Louisville, Kentucky BRIEF FOR APPELLEE: Erika L. Saylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NO. 14-AD-500134 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND JONES, JUDGES. ACREE, CHIEF JUDGE: W.K. appeals the judgment and orders of the Jefferson Family Court terminating his parental rights to L.D.R. (Child). Mindful that the emotional stake is high for every party in cases such as this, and that there is no decision that avoids a painful outcome for someone, we nevertheless conclude the judgment and orders of the family court must be affirmed.
I. Factual and Procedural Background
Child was born on February 26, 2013. Testing established Child was born with opiates in his system. On that basis, and the fact that Mother was a substance abuser during her pregnancy, the Cabinet filed a dependency, neglect, and abuse action on March 13, 2013. W.K. was named as the putative father. Child remained in the neonatal intensive care unit until March 25, 2013, when he was healthy enough to be released. The Cabinet, having been awarded temporary custody, placed Child in a foster home where he remained throughout the case.
Mother was granted supervised visitation with Child so long as she was sober and compliant with her case plan. Mother was ordered to have a substance abuse evaluation and treatment at Jefferson Alcohol and Drug Abuse Center (JADAC), to participate in random drug screens, to cooperate with the Cabinet, and to establish paternity of Child.
At the pre-trial hearing on April 24, 2013, Mother advised the court that she did not know the whereabouts of the putative father, W.K. Mother did not have an address for him, did not know his date of birth, and did not know anyone who could locate W.K. She informed the court that she thought he was originally from North Carolina and that, when she knew him, he was in the military. The Cabinet conducted an absent parent search for W.K., but the search yielded nothing. Despite W.K.'s absence, the court appointed counsel to represent him and continued its previous orders for Mother. This was the last time Mother appeared in court.
On July 18, 2013, the family court held an adjudication hearing, at which it found Mother was abusing Child by her own illegal substance use, placing Child at risk of future harm by the likelihood of her continued substance abuse. Child was committed to the Cabinet and Mother was ordered to have no contact with Child until further order of the court. Child remained in foster care.
Mother contacted the Cabinet in January 2014 and admitted she was still abusing drugs. Contrary to the family court's orders, Mother continuously failed to attend scheduled treatment appointments and random drug screens. Her whereabouts again became unknown.
On March 27, 2014, the family court held its annual permanency review, after which Child's goal was changed to adoption. In early April of that year, the Cabinet conducted another absent parent search for W.K. This time, the search revealed a possible address for him in Cox's Creek, Kentucky. A petition to terminate Mother's and W.K.'s parental rights was filed on April 15, 2014.
Attempts to contact W.K. were unsuccessful. On April 16, 2014, the Cabinet social worker mailed a letter to the Cox's Creek address identifying herself and the purpose of the correspondence. She provided a paternity form and information about case plans. The Cabinet worker received no response. Finally, on April 24, 2014, W.K. was served by Warning Order Attorney at the Cox's Creek Address.
On May 22, 2014, the Cabinet worker received a telephone call from W.K. He stated he had received the termination petition from the warning order attorney, but did not receive any correspondence from the Cabinet worker.
During this same conversation, W.K. revealed he and Mother had been in an intimate relationship for a little over one month. He stated he was present when Mother found out she was pregnant, which was just after their relationship had ended. W.K. stated he was in contact with Mother throughout the pregnancy. W.K. admitted he took Mother to one of her prenatal appointments, but she did not permit him to be in the examining room. W.K. stated he had no details about the conception date or due date of Child. He also told the Cabinet worker that Mother contacted him on the day Child was born, but she did not allow him to be in the delivery room. W.K. revealed that he ended his relationship with Mother because she had physically assaulted him on one occasion; he had discovered she was a part of an escort service; and he did not want to be associated with her lifestyle. W.K. also told the Cabinet worker that he had been in the military while he was involved with Mother, but that he was honorably discharged in May 2013.
The Cabinet worker gave W.K. information to set up paternity testing at the County Attorney's Office. W.K. told the Cabinet worker that he wanted to wait until his paternity was confirmed before he moved forward with the case. The Cabinet worker confirmed that W.K. was aware of the June 5, 2014, date for the pre-trial hearing regarding the termination action.
Between the date of that telephone conversation, May 22, 2014, and the hearing date, June 5, 2014, W.K. did not pursue paternity testing. He did, however, attend that hearing. The following day, June 6, he went to the County Attorney's Office for a paternity test but was told by staff, erroneously, that his parental rights had already been terminated and that they could not help him. W.K. waited until June 25 to contact the Cabinet worker. He explained his difficulties in obtaining a paternity test. The Cabinet worker advised W.K. to contact his attorney to help expedite the testing.
The next contact between W.K. and the Cabinet occurred when W.K. informed the Cabinet on August 20, 2014, that he had still not completed a paternity test, but was waiting to hear back from the County Attorney. W.K. mentioned he had asked Mother for a paternity test during the pregnancy and she became angry. He further stated that he had never tried to see Child or establish paternity on his own because he did not know how to go about doing it and had heard Mother was living with another man claiming him to be the father, not W.K.
The Cabinet worker left voicemails with W.K. on September 19th and September 25th. W.K. returned the Cabinet's calls on September 27th and stated he still had not had a paternity test. The Cabinet then contacted the County Attorney's Office to inquire about the paternity testing and was told it was scheduled for early October 2014. The Cabinet called W.K. on October 28, 2014, to advise him of the results, and W.K.'s paternity to Child was confirmed. Child was twenty months old.
Eight days later, the termination trial was held. W.K., the Cabinet worker, and Child's foster mother testified.
W.K. testified that he enlisted in the Army in November 2009 and was honorably discharged in May 2013 when his son was three months old. After his discharge, W.K. spent a couple of months on leave, then went to North Carolina to work with his brother. W.K. returned to Cox's Creek, Kentucky, on July 22, 2013. In October of that year, he began employment at a car dealership in Louisville. At the time of the termination hearing, W.K. was still employed there. W.K. testified that he lives with his girlfriend and her two children in Cox's Creek.
W.K. repeated in testimony the information he provided to the Cabinet worker in their May 22, 2014 telephone conversation. He admitted Mother told him he might be Child's father but testified he had doubts based on Mother's behavior. He testified that he tried to stay in contact with her throughout her pregnancy. He also acknowledged that Mother contacted him twice after Child was born.
On the first occasion, she said she wanted to buy a breast pump and asked him for money to do so. He told the family court that he was willing to purchase the pump himself and give it to her but, aware of her history of substance abuse, was not willing to give her money.
The second time Mother contacted W.K. was when she wanted to go to the hospital to see Child. However, on their way to the hospital, Mother redirected W.K. to drop her off at her mother's place of work. From there, Mother sent W.K. a text message stating they would not be able to see Child for at least five hours. W.K. testified that he had to be at work, so he left, and the visit never occurred. W.K. stated he did not ever attempt to go to the hospital on his own. He had no further contact with Mother.
Finally, W.K. testified that he believed Child to be with Mother. He also testified that he did not call the police, child protective services, an attorney or anyone else about Child.
The Cabinet worker testified as to the circumstances surrounding the filing of the dependency action in March 2013 and the efforts that followed to locate Father. The Cabinet worker stated that throughout the Cabinet's interactions with Mother, she consistently asserted that W.K. was Child's father. The Cabinet worker also testified that Mother was adamant that Father did not want Child, nor did he want anything to do with her. Shortly after the dependency petition was filed in April 2013, Mother further provided that she thought W.K. was originally from North Carolina and he was in the military. The Cabinet worker testified that no one made any attempt to verify if W.K. was enlisted in the military at that time.
The Cabinet worker testified about the letter she mailed to the Cox's Creek address in April 2014, her May 22, 2014 telephone conversation, and the contact that followed with W.K. The Cabinet worker stated that W.K. never inquired about Child's well-being and never asked for a visit with Child. She testified that Child was happy and healthy in his foster home.
Child's Foster Mother testified that Child has come a long way since leaving the hospital. She testified they began visiting Child while he was still in the hospital to learn how to care for him. The foster family has tended to all of his medical, physical, and emotional needs. Foster Mother stated Child is very much attached to his foster siblings. Foster Mother testified that she and her husband wished to adopt Child if W.K. and Mother's parental rights were terminated.
Following the hearing, the family court did terminate Mother and W.K.'s parental rights. The court drafted an order with several detailed factual findings and, based on those findings, the family court concluded in a separate judgment and order that clear and convincing evidence supported findings under the requirements of KRS 625.090. Specifically, the family court found: Child to be an abused and neglected child as defined in KRS 600.020; Mother and W.K. to have repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for Child for a period of not less than six months; that, for reasons other than poverty, Mother and W.K. have repeatedly failed to provide essential care reasonably necessary for Child's well-being; that Mother and W.K. have abandoned Child for a period of not less than ninety days; and finally, the family court concluded termination to be in the best interest of Child. This appeal followed.
Kentucky Revised Statutes.
II. Standard of Review
The standard of review when parental rights have been terminated is whether the family court's decision was clearly erroneous. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App.1998); CR 52.01. This Court's responsibility is to determine whether the family court's order was supported by substantial evidence on the record. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky.App.1986) ("findings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them"). With this standard in mind, we turn to the issues in W.K.'s appeal.
Kentucky Rules of Civil Procedure. --------
III. Analysis
KRS 625.090 sets forth the grounds for involuntary termination of parental rights. First, the family court may not involuntarily terminate parental rights unless it finds by clear and convincing evidence that a child is or has previously been adjudged an "abused or neglected" child, as defined in KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). And lastly, the family court must also find the existence of one or more of ten specific grounds set forth in KRS 625.090(2).
W.K. argues on appeal that there is insufficient evidence to support the finding that he abused or neglected Child as defined in KRS 600.020(1). Generally, he argues the court's finding that he abandoned Child, and therefore neglected Child's material, emotional, and healthcare needs, is clearly erroneous because the Cabinet failed to exercise reasonable efforts to locate him after Mother informed the Cabinet that Father was in the military in April 2013. We do not agree.
The family court has considerably broad discretion in determining whether a child fits within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977). Upon review of the record by this Court, we cannot say the family court's finding that W.K. had abandoned Child is clearly erroneous. Father places the blame on the Cabinet for not alerting him to the dependency proceedings, but the evidence demonstrates that Father had abandoned Child before the Cabinet ever became involved.
"Generally, abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983) (citing 2 Am.Jur.2d Adoption § 32 (1962)). The family court effectively found that W.K. was sufficiently apprised of factual circumstances - circumstantial proof - that he had impregnated Mother and was Child's father. And yet he evinced a settled purpose to forego, arguably to avoid, his parental duties and to relinquish all claims to his child. His appeal to this Court is premised on an illogical, even clinical, argument that his feelings of fatherhood, and their attendant responsibilities, could only be spawned by concrete, medical, DNA proof of paternity. Requiring such proof as a legal predicate to a finding of abandonment, or so it seems to us, generally demeans the concept of fatherhood and devalues the life of a child.
The cause for W.K.'s two-year long indifference toward Child cannot be laid upon the Cabinet any more than the end of that indifference can be legally presumed on the basis of a DNA test. W.K.'s indifference and his inaction were of his own making. Both were confirmed by Mother's representations to the Cabinet. The family court was not persuaded by W.K.'s testimony of recent paternal stirrings for a child he, for two years, had been content to leave in the care of a woman he thought was a prostitute with a history of substance abuse. We cannot find fault with the court's determination. The clear and convincing standard imposed in these cases does not demand uncontradicted proof. All that is needed "is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted). We agree with the family court that these circumstances demonstrate W.K.'s intent to relinquish his parental rights to Child.
Finding no error here, we conclude Child is appropriately determined to be a neglected child as defined in KRS 600.020(1), and that finding is supported by substantial evidence in the record. This Court, therefore, will not interfere on this basis.
Next, the family court was required to determine whether termination is in the best interests of the child. The court is guided by several factors in KRS 625.090(3), and among them are the criteria of KRS 600.020, just analyzed. W.K. argues that the Cabinet did not demonstrate by clear and convincing evidence that termination of his parental rights is in the best interest of Child. He challenges the family court's findings under several of the factors.
Specifically, he again claims there is insufficient evidence to support a finding of neglect as defined in KRS 600.020. See KRS 625.090(3)(b). As is obvious from our prior analysis under KRS 600.020, we do not agree.
This is not a case in which a man, oblivious even to the existence of a child, is surprised by the prospect that a child is his. Rather, this is the story of a man who had every reason to believe in the possibility, even probability, that he had a son and yet still refused the opportunity of fatherhood until the miracle of DNA science declared him the father. While we have not always had that miracle, we have always had fatherhood - a state of being that has always been capable of legal determination in one way or another. See, e.g., Tackett v. Tackett, 508 S.W.2d 790, 792 (Ky. 1974); Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky. 1972) (offering a brief history of proof requirements for paternity). We cannot accept W.K.'s argument to the effect that today's availability of definitive DNA proof justifies excusing his indifference that, in pre-DNA times, would have satisfied the legal requirement for establishing neglect.
W.K. then asserts that under the third factor listed in KRS 625.090(3), the Cabinet did not make reasonable efforts to locate W.K. and reunite him with Child. W.K. again maintains that the Cabinet had sufficient information about him to locate him; specifically, Mother told the Cabinet that W.K. was in the military. The Cabinet conducted absent parent searches for W.K. in April 2013 and April 2014. Based on the facts and circumstances of this case, the Cabinet exercised ordinary diligence in attempting to locate W.K. based on its information about him. It appears from the record, and it appears the family court concluded, that W.K. always had better information to find his child than the Cabinet had to find W.K.
We also note that from the time W.K. came into contact with the Cabinet in the spring of 2014 until his paternity was established half a year later, he declined to take advantage of any services suggested by the Cabinet. That was so even after testing determined W.K.'s paternity. The record shows the Cabinet did make efforts to find him. W.K.'s abdication of parental responsibilities was the result of his own lack of interest in Child, not the failure of the Cabinet's efforts.
The fourth factor listed in KRS 625.090(3) relates to the efforts and adjustments of the parent including circumstances, conduct, or conditions that make it in the child's best interest not to terminate parental rights but, on the contrary, to work to return the child to the parent's home within a reasonable time considering the age of the child. KRS 625.090(3)(d). All too often in termination of parental rights cases, courts see parents disadvantaged and struggling to obtain and maintain employment, stable housing, and an appropriate lifestyle conducive to raising children. What is unusual in this case is that W.K. seemingly has had the ability to offer Child such a life, but chose not to do so.
There was not much in the record on the positive side of W.K.'s conduct and efforts for the family court to consider. He deserted Mother and Child and never sought a paternity determination on his own when he had an opportunity to do so. He lost contact with Mother after Child was born and did not seek to re-establish it. The family court found:
Even if [W.K. were to] immediately engage[] in visits and treatment services and was fully compliant, at best it would take several months before reunification could be considered for this man and [Child], who at this time is a stranger[.] In sum, although he was named by [Mother] as a putative father of this child from the very beginning of the pregnancy, [W.K.] did nothing to assert any rights to his son for more than a year and has yet to ever provide for [Child] or even to ask to visit [Child].(Order, Jefferson Circuit Court, Family Court, Division Eight, dated December 9, 2014, Record (R.) 93).
Additionally, the family court heard testimony from Child's foster mother and the Cabinet worker about Child's progress from a drug-dependent state in the hospital as a premature newborn to a thriving toddler with no apparent developmental delays or medical problems. Child refers to his foster parents as "mom" and "dad" and has a deep bond with his foster parents and siblings. Again, W.K. has not put forth any evidence of his effort to establish a relationship with Child. We find no error in the family court's holding on this point.
Finally, W.K. takes issue with the family court's finding that he failed to financially support Child. W.K. argues that it is the obligation of the biological father to provide financial support, and until his paternity was established, he could not be obligated or ordered by a court to pledge any monetary support to Child. This is the argument of a man seeking to avoid parental responsibility, not one demanding his right to now engage in it. The argument is unpersuasive in the latter context.
As the family court's order observes, W.K. appears to have had the means to offer some form of support to Child. Yet, he offered virtually nothing. The family court's findings state that W.K. never offered to make any material provisions for Child, never inquired into Child's well-being, and never requested to visit with or see Child. All the while, W.K. maintained his position that without DNA verification of his paternity he would not be a father. By his criteria, he was not Child's father then; by the legal criteria the family court applied, he is not Child's father now. We find nothing in the record to convince us that this is not a correct result.
Additionally, the record indicates that W.K. received the termination petition packet on April 24, 2014. Even then, W.K. sensed no urgency to determine whether Child was his. It was approximately two months later, in June, that he first contacted the Jefferson County Attorney's Office, about a paternity test. Still, there was delay until the end of October 2014 when it was concluded that biology alone made him Child's father.
Based on the foregoing, we believe there to be substantial evidence to support the family court's determination that termination of W.K.'s parental rights is in Child's best interest.
IV. Conclusion
For the reasons stated, the judgment and orders terminating W.K.'s parental rights to Child are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Maureen Sullivan
Henry Weber
Louisville, Kentucky BRIEF FOR APPELLEE: Erika L. Saylor
Louisville, Kentucky