Opinion
NO. 2016-CA-001365-ME
05-05-2017
A.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND A.M.D.Y. APPELLEES
BRIEF FOR APPELLANT: A. David Blankenship Paintsville, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: David T. Adams Paintsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 15-AD-00047 OPINION
VACATING AND REMANDING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. JONES, JUDGE: Appellant, A.C., requests review of the Johnson Family Court's Findings of Fact, Conclusions of Law and Order terminating his parental rights to H.N.F.K. For the reasons more fully explained below, we vacate the order terminating Father's parental rights and remand this matter to the family court. On remand, the family court shall make detailed findings of fact based upon evidence that was presented as related to Father's conduct.
I. Background
The record in this case is extraordinarily sparse. We have not been provided with a copy of the juvenile proceedings that precipitated the child's removal. Likewise, while it is apparent that the family court conducted a termination hearing, the recording of that proceeding is not a part of the record. The lack of a complete record has frustrated our review. Nevertheless, we have done our best to piece together the relevant factual and procedural background from the written record provided to us as well as the parties' briefs.
A.C. ("Father") is the biological father of H.N.F.K. ("Child"). Child's biological mother is A.M.D.Y. ("Mother"). Child was born in January of 2005. Child was committed to the custody of the Cabinet for Health and Family Services in September of 2014, after it was determined that Mother had abused and neglected Child. It does not appear that Father was a party to any dependency, neglect, and abuse proceedings or that he was ever adjudged to have abused or neglected Child prior to the termination order in this matter. In October of 2015, the Cabinet filed a verified petition for involuntary termination of Mother's and Father's parental rights.
The family court conducted a hearing in August of 2016. Following the hearing, the family court entered its findings of fact and conclusions of law as well as a separate order of termination. In relevant part, the family court's "findings of fact" provide as follows:
9. The Courts finds by clear and convincing evidence that the minor child . . . was adjudicated to be neglected by the Johnson Family Court on or about July 7, 2014, and again on September 4, 2014; was committed to the Cabinet for Health and Family Services on or about September 4, 2014.
10. The Court finds by clear and convincing evidence that the minor child . . . has been neglected by the Respondent Parents by risk of harm, a pattern of substance abuse, lack of suitable housing, failure to complete case services within 15 months and failure to provide essential parental care and necessities of life.
11. The Court finds by clear and convincing evidence that the Respondent [Parents] have failed to protect and preserve their child's fundamental right to a safe and nurturing home, and the minor child . . . is a neglected child as defined in KRS 600.020.
12. The Court finds by clear and convincing evidence that the Respondent [Parents], for periods of not less than six months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for their child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child.
13. The Court finds by clear and convincing evidence that the Respondent [Parents], have, for reasons other than poverty alone, continuously or repeatedly failed to provide or are incapable of providing, essential food, clothing, shelter, medical care or education reasonably necessary and available for their child's well-being, and there is no reasonable expectation of significant improvement in parental conduct in the immediately foreseeable future, considering the age of the child.
14. The Petitioner, Cabinet for Health and Family Service[s], has rendered or offered services to the family in its efforts to rehabilitate and reunite the family, but, the parents have not made such efforts or adjustments that it would be in the best interest of the child to be returned to the care of any of the parents, within a reasonably foreseeable time.(R. 59-60).
15. The Court finds by clear and convincing evidence that the child's condition has improved since placement in foster care and continued progress is expected if termination is ordered.
16. The Court finds by clear and convincing evidence that the minor child . . . was placed in foster care under the responsibility of the Cabinet for Health and Family Services by Johnson Family Court and has remained in foster care under the responsibility of the Cabinet for Health and Family Services for more than 15 of the last 22 months.
17. The Court finds by clear and convincing evidence that it is in the best interests of the child, that the parental rights of [Mother] and [Father] be terminated.
This appeal by Father followed.
Mother did not appeal the termination of her parental rights.
II. Analysis
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 Servs. v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006); KRS 625.090. The family 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 family court's findings, we will not disturb them on appeal. Id.
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure. --------
It is important to recognize that Father does not appear to have been a party to the proceedings that led to a neglect finding against Mother. Accordingly, the family court cannot rely on those proceedings to support a conclusion that Father abused and/or neglected Child. See Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 210 (Ky. 2014) ("The family court must make separate findings of abuse or neglect as to each parent . . . .").
Additionally, based on the parties' briefs it appears that there was a dispute with respect to a number of key issues, including whether Father declined to work a case plan. While the family court is free to evaluate the credibility of the witnesses and draw factual inferences from their testimony, in parental termination cases, its written findings must cite to and be based upon actual case-specific evidence. As we explained in M.L.C. v. Cabinet for Health & Family Servs., 411 S.W.3d 761, 766 (Ky. App. 2013), a family court's conclusions of law must be accompanied by ample evidence. Here, they are not. The family court merely parroted the language in the termination statute without providing any evidentiary foundation whatsoever. This is improper. See Anderson v. Johnson, 350 S.W.3d 453, 459 (Ky. 2011).
For this reason, we must vacate and remand this matter to the family court for proper factual findings. On remand, the family court should enter individualized findings with respect to Father based on his conduct. It cannot impute the past determination that Mother was guilty of neglect, to Father. Furthermore, while the family court need not recount the minutia of the evidentiary hearing, its findings must entail more than a regurgitation of the statute with only the names of the parties added. The family court's findings must cite to the evidence and be case-specific so that an appellate court can conduct a meaningful review.
Accordingly, we remand this matter to the Johnson Family Court with "specific directions to enter an order that properly reflects in writing that court's findings of fact and conclusions of law [with respect to Father] based upon the evidence that was presented at the hearing previously held." Keifer v. Keifer, 354 S.W.3d 123, 127 (Ky. 2011).
ALL CONCUR. BRIEF FOR APPELLANT: A. David Blankenship
Paintsville, Kentucky BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES: David T. Adams
Paintsville, Kentucky