Opinion
NO. 2013-CA-001427-ME
07-11-2014
B. M. APPELLANT v. L. A. R.; L. A. S. R.; H. C.; J. C., A CHILD; AND CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
BRIEF FOR APPELLANT: Martin A. Haas, Jr. Covington, Kentucky BRIEF FOR APPELLEES: John R. Kummer Ft. Wright, Kentucky Guardian Ad Litem for J.C., a child: Larisa I. Schneider Florence, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 12-AD-00046
OPINION
AFFIRMING
BEFORE: LAMBERT, MAZE AND MOORE, JUDGES. LAMBERT, JUDGE: B.M. appeals from the Kenton Family Court's order terminating his parental rights to his child, J.C. After careful review, we affirm the court's order.
On July 5, 2004, the child, J.C., was born to H.C. (hereinafter the mother). Court involvement began on November 5, 2009, when a neglect charge against the mother was filed in Casey County District Court. The mother was incarcerated and could not care for the child. At this time B.M. (hereinafter the father) was not involved in the child's life in any way.
On July 15, 2010, the Appellees, L.A.R. and L.A.S.R., received temporary custody of the child by order of the Casey District Court. L.A.R. is the maternal cousin of the child, J.C., and L.A.S.R. is L.A.R's wife. On March 20, 2012, they filed a petition for adoption of the child. At the time the Appellees received temporary custody, the father was not involved.
Pro se pleadings filed by the mother indicated that the father knew about the child prior to his birth and shortly thereafter. By letter dated September 7, 2012, the mother stated that she had advised the father of her pregnancy, at which time he stated that he did not want a child. In that same letter, the mother advised the court that she had taken the child to see the father, and the father had put a gun to her head while she was holding the child. The mother further stated that she had attempted to have the father and his family accept the child, but that they all denied the child.
The father sent a letter to the Cabinet for Health and Family Services (the Cabinet) on December 20, 2011, requesting DNA testing to determine if he was the child's biological father. On May 8, 2012, the court ordered the father to submit to a DNA test. Test results from LabCorp, Laboratory Corporation of America, Burlington, N.C. dated June 22, 2012, show the probability of paternity is 99.99%.
The father is incarcerated in the Green River Correctional Complex and is considered to be a violent felon. He has been incarcerated in Ohio for robbery, aggravated burglary, and two counts of kidnapping, all involving firearms. He is currently incarcerated in Kentucky for four counts of robbery. The father was eligible for parole in Kentucky in July 2013, but parole was denied. He is not eligible for parole again until July 2014, and upon that parole, if granted, he has a "holder" for his remaining Ohio sentence.
The father testified at the termination hearing that he had completed the Chemical Dependency Treatment Program at the Green River Correctional complex. On October 8, 2012, he completed the requirements of the Green River Correctional Complex's IOP/Living in Balance Program. On January 15, 2013, the father completed the Malachi Dad Program, and on March 13, 2013, he completed the self-help Boundaries program. On May 14, 2013, he completed the anger control program "Cage Your Rage." On May 20, 2013, the father completed the Moral Recognition Therapy Program.
The family court terminated the parental rights of the parents by judgment entered July 16, 2013. The father filed a motion to proceed in forma pauperis and a notice of appeal on August 9, 2013. The mother did not appeal the termination of her parental rights.
On appeal, the father's only argument is that the court failed to recognize that he has made sufficient and sustained progress in his rehabilitation, resulting in his ability to be unified with his recently discovered child in the foreseeable future.
Our standard of review in termination of parental rights cases is set forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998):
The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, Ky.App., 552 S.W.2d 672, 675 (1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, Ky.App., 706 S.W.2d 420, 424 (1986).Furthermore, "[t]he findings of the trial judge may not be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses." Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995), citing CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Reichle v. Reichle, 719 S.W.2d 442 (Ky. 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, 726, 70 S.W.2d 5, 9 (1934).
Under KRS 625.090, the Cabinet must meet a three-prong test in order to involuntarily terminate parental rights and establish that 1) the child is abused or neglected; 2) termination would be in the child's best interest; and 3) one of several listed grounds exists as enumerated in KRS 625.090(2).
The father urges this Court to consider Z.T. v. M.T., 258 S.W.3d 31, 33-34 (Ky. App. 2008), wherein this Court emphasized the fundamental right of a parent to be free from governmental interference when parenting a child. The father argues that his actions by taking parenting and dependency classes while incarcerated show that he has a strong desire to have a relationship with his child. While we agree there is some evidence that he desires to have a relationship with the child, it is not the only factor to determine if termination of parental rights is in the best interest of the child.
Based upon the testimony presented at the hearing and the records provided to the court, the court found that the child was neglected or abused by both parents and that both parents had engaged in conduct rendering them incapable of providing for the immediate and ongoing needs of the child due to parental incapacity, alcohol and/or drug abuse. The court also found that they had failed to provide essential parental care and protection for the child considering the child's age, had abandoned the child, and had failed to provide the child with adequate care, supervision, food, clothing, shelter, education or medical care necessary for the child's well being. The Court further found by clear and convincing evidence that the parental rights of both parents should be terminated, because they had both abandoned the child for a period of not less than 90 days and had for a period of not less than six months continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection for the child and that there was no reasonable expectation of improvement. Finally, the court found that the best interests of the child would be served by terminating parental rights of both parents and granting the adoption sought by the Appellees.
A review of the record indicates that the family court's findings of fact and conclusions of law are supported by the evidence. While the father contends that the trial court used his incarceration as the only factor in terminating his parental rights, the record clearly indicates otherwise. The record indicates that the father has never been involved in the child's life; despite his knowledge prior to his birth and immediately thereafter that the child was his. The record further indicates that the father has been incarcerated for the majority of the child's life and has never had any relationship with the child whatsoever. The evidence reflects that the child has reacted negatively after speaking with the father on the phone, just during the brief period that the termination proceedings were ongoing. The evidence also indicates that the child has been residing with the adoptive parents for several years and considers L.A.R. to be his father and L.A.S.R. to be his mother. While the record indicates that the trial court considered both parents' incarceration when terminating their parental rights, it does not indicate that the trial court used that as the only factor.
Because the trial court's findings are supported by the record, we cannot say they are clearly erroneous. Discerning no reversible error, we affirm the July 16, 2013, judgment terminating B.M.'s parental rights to his child, J.C.
ALL CONCUR. BRIEF FOR APPELLANT: Martin A. Haas, Jr.
Covington, Kentucky
BRIEF FOR APPELLEES: John R. Kummer
Ft. Wright, Kentucky
Guardian Ad Litem for J.C., a child: Larisa I. Schneider
Florence, Kentucky