Opinion
NO. 2011-CA-002260-ME
06-21-2013
CESAR BATZ APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; S.C., A CHILD; AND D.N.C. APPELLEES
BRIEF FOR APPELLANT: Marianne S. Chevalier Ft. Mitchell, Kentucky NO BRIEF FOR APPELLEES.
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 11-AD-00033
OPINION
AFFIRMING
BEFORE: NICKELL, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Cesar Batz brings this appeal from a November 16, 2011, order of the Kenton Circuit Court, Family Court Division, (Kenton Family Court) denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate a judgment involuntarily terminating his parental rights as to S.C. We affirm.
S.C. was born on October 16, 2003. Following a paternity action (No. 05-J-00384) in the Boone Circuit Court, Family Court Division, (Boone Family Court) appellant was adjudicated the biological father of S.C. Thereafter, the family court ordered appellant to pay child support as S.C. resided with her biological mother.
On March 8, 2011, the Cabinet for Health and Family Services, Commonwealth of Kentucky, (Cabinet) filed a petition for involuntary termination of parental rights in Kenton Family Court. The petition identified appellant as S.C.'s biological father and spelled his name "Cesar Butz." The petition also identified appellant's address as "7415 Montgomery Road, Cincinnati, OH 45236." Attached to the petition was the affidavit of a Cabinet employee requesting appointment of a warning order attorney for appellant. By order entered on March 17, 2011, the Kenton Family Court appointed a warning order attorney for appellant, and the warning order attorney reported that he was unable to locate appellant. The Kenton Family Court conducted an evidentiary hearing on the Cabinet's petition on July 1, 2011. Appellant was represented by counsel at the hearing.
By Findings of Fact and Conclusion of Law entered July 14, 2011, the Kenton Family Court found that S.C. was an abused and neglected child, and by judgment entered July 14, 2011, the family court involuntarily terminated the parental rights of appellant as to S.C. The judgment terminating parental rights was final and otherwise not timely appealed by appellant.
The July 14, 2011, judgment involuntarily terminating the parental rights of S.C.'s biological parents erroneously identified her biological father as "Jose Gomez Pascual." Pascual is actually the biological father of S.C.'s half-siblings, and his parental rights as to those children were being terminated simultaneously with S.C. We view such error as clerical in nature which the family court may correct pursuant to Kentucky Rules of Civil Procedure (CR) 60.01.
On October 31, 2011, appellant filed a CR 60.02 motion to vacate the July 14, 2011, judgment involuntarily terminating his parental rights as to S.C. Therein, appellant asserted that he did not receive notice of the termination action and sought to have the judgment terminating his parental rights set aside. Specifically he argued:
In the instant matter the Court entered a Judgment Terminating Parental Rights on July 14, 2011. That document incorrectly lists the father of [S.C.] as Jose Gomez Pascual, not the actual father, Cesar Batz. The father of [S.C.], Cesar Batz, was served by constructive service when actual service could not be perfected. The report of the Warning Order Attorney, Hon. Pete Rousch, was filed on or about May 3, 2011. That report indicates that Mr. Roush was instructed to find Cesar Butz, not Cesar Batz. Counsel also made attempts to find Mr. Batz but could not do so. Because both the Warning Order Attorney and the trial attorney were unable to make contact with the father, the case went forward to trial on July 1, 2011[,] without the attendance or input of Mr. Batz, [S.C.]'s father.By order entered November 16, 2011, the Kenton Family Court denied appellant's CR 60.02 motion. This appeal follows.
Under CR 60.02, the movant must make a substantial showing and affirmatively set forth grounds justifying relief. Our standard of review upon a circuit court's denial of a motion pursuant to CR 60.02 is an abuse of discretion. Brown v. Commonwealth, 932 S.W.2d 359 (Ky. 1996). So, the circuit court's denial of the CR 60.02 motion will not be disturbed on appeal absent an abuse of discretion. Id.
Appellant maintains that the family court erred by denying his CR 60.02 motion. Appellant argues that he was in Guatemala during the termination proceedings, S.C.'s mother actively misled him as to S.C.'s well-being, he never received notice of the termination proceedings, and his name was misspelled throughout the termination proceedings. Appellant claims entitlement to CR 60.02 relief upon the bases of newly discovered evidence, reasons of extraordinary nature justifying relief, and other just reasons. CR 60.02(b) and (f).
In the case sub judice, the Cabinet began investigating alleged neglect of S.C. in March 2009. A report was made to the Cabinet that S.C. was abandoned by her natural parents for some four months. After conducting an investigation, the Cabinet eventually filed a Petition for Dependency, Neglect and Abuse in July 2009. By order entered September 28, 2010, S.C. was placed in the temporary custody of the Cabinet. During the Cabinet's lengthy involvement, appellant never contacted the Cabinet, visited S.C., or came forward in any way to inquire as to S.C. The Cabinet reported that it was unable to locate appellant and that the social security number he previously provided was "false."
Upon filing the involuntary termination of parental rights petition, the record demonstrates that a warning order attorney was appointed for appellant upon affidavit of the Cabinet. By report entered in the Kenton Family Court, the warning order attorney averred that he mailed a letter to Cesar Butz at his last known address, 7415 Montgomery Road, Cincinnati, Ohio, 45036, and the letter was not returned. Additionally, the warning order attorney stated that he attempted to otherwise locate appellant but to no avail.
Appellant maintains that the constructive service via the warning order attorney was fatally flawed because the Cabinet improperly identified him as "Cesar Butz" when his name is actually "Cesar Batz." However, included in the record on appeal is an order of child support for S.C. entered in the Boone Family Court in the paternity action (No. 05-J-00384). In this order, appellant is clearly identified as Cesar Butz, and Butz is ordered to pay child support on behalf of S.C. And, appellant does not aver that he has ever sought to correct the alleged misspelling of his name in the paternity action (No. 05-J-00384). Therefore, for purposes of the official court record, S.C.'s biological father was identified as Cesar Butz. As a result, the Cabinet, as well as the warning order attorney, reasonably relied upon the official record to obtain the proper spelling of appellant's name.
Additionally, appellant's mere allegation of being misled by S.C.'s biological mother is insufficient to warrant relief under CR 60.02. Appellant failed to offer any proof thereof, and appellant also bears the duty to keep abreast of his child's needs and to provide for such needs. Here, the Cabinet reported that appellant had no contact with S.C. for over a year, failed to provide any support for S.C., and further failed to take any steps to gain information as to S.C.
In sum, we hold that appellant failed to demonstrate entitlement to CR 60.02 relief and that the circuit court did not abuse its discretion by denying his CR 60.02 motion.
For the foregoing reasons, the order of the Kenton Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Marianne S. Chevalier
Ft. Mitchell, Kentucky
NO BRIEF FOR APPELLEES.