Opinion
2021-CA-0303-ME
02-18-2022
B.C.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; J.S.M., ACHILD; AND N.S.S. APPELLEES
BRIEF FOR APPELLANT: Mark Pfeifer Owensboro, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HANCOCK CIRCUIT COURT HONORABLE MICHAEL L. MCKOWN, JUDGE ACTION NO. 20-AD-00004
BRIEF FOR APPELLANT:
Mark Pfeifer
Owensboro, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:
Dilissa G. Milburn
Mayfield, Kentucky
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE:
B.C.M. (the Father) appeals the order of the Hancock Circuit Court terminating his parental rights to J.S.M (the Child). The circuit court entered its orders terminating parental rights of the Parents on February 22, 2021. The Father has appealed, arguing that the order granting termination was not based upon clear and convincing evidence and that he was denied due process throughout the proceedings. After carefully reviewing the record and applicable statutory and case law, we affirm.
The family court granted N.S.S.'s (the Mother's) motion to withdraw her appeal. The order was entered in the circuit court record on March 25, 2021. Therefore, this Opinion only pertains to the Father and the involuntary termination of his parental rights.
The Cabinet for Health and Family Services (the Cabinet) became involved with the Child's family in June 2019 after it received an interstate home check request from North Carolina. The order granting emergency custody, dated July 23, 2019, stated the following grounds for placing the Child in the Cabinet's temporary care:
Mother allegedly attempted suicide while Child was in her care. Mother punched Father while Father was driving with Child in the car. Father admitted alcohol and marijuana in system but failed to submit to urine screen. Mother provided GAL [guardian ad litem] with documents evidencing mental health diagnosis that were concerning as well as admitting amphetamine usage w/in last month.
The order also indicated that there was a pending domestic violence action under the same set of facts. At the adjudication hearing, held on November 12, 2019, the petition was amended to dependency, and the circuit court took judicial notice of the testimony given at the domestic violence hearing. In ordering the Child's removal, the court noted, "Parents have not completed case plan and both parents are currently homeless." The order of commitment was entered on November 26, 2019.
On October 5, 2020, the Cabinet filed its petition for termination of parental rights. The circuit court appointed a guardian ad litem for the Child and a warning order attorney for the parents. The matter was set for a pretrial hearing on November 24, 2020. On that date, the circuit court appointed separate counsel for the Mother and the Father.
The final hearing was held on January 22, 2021, and the orders terminating parental rights were entered 30 days later. The Father appeals, making three arguments.
We begin by stating our standard of review, namely:
Broad discretion is afforded to trial courts to determine whether parental rights should be terminated, and our review is limited to a clearly erroneous standard. Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). A trial court's findings are not clearly erroneous if there is substantial evidence in the record to support them. L.D. v. J.H., 350 S.W.3d 828, 829-30 (Ky. App. 2011) (citing Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986)). When the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions which we review de novo. Id. at 830. If the trial court's factual findings are not clearly erroneous and the legal conclusions are correct, we are limited to determining whether the trial court abused its discretion in applying the law to the facts. Id. Finally,
[s]ince the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision . . . will not be disturbed absent an abuse of discretion.
B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005) (internal citations omitted).
The termination of parental rights is a particularly fact-sensitive inquiry, so appellate courts are disinclined to disturb a trial court's findings. K.H., 423 S.W.3d at 211. Where the trial court's findings are not clearly erroneous, and they substantially support the TPR, we will affirm the order. Id. "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, 70 S.W.2d 5, 9 (1934).Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021).
Furthermore,
It is a fundamental right of every parent to raise his or her own child. K.H., 423 S.W.3d at 209. KRS [Kentucky Revised Statute] 625.090 sets forth all the requirements which must be met before a court in Kentucky can involuntarily terminate a parent's rights to his or her child. Because of the heightened value of the right to parent a child, such proof must be clear and convincing in nature. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The
statute requires the court to find three critical elements. First, the court must find that the child has been found to have been abused or neglected by a court of competent jurisdiction. KRS 625.090(1). Second, the court must find at least one of the eleven enumerated grounds for termination exists. KRS 625.090(2). Lastly, even if the Cabinet establishes both of these elements, the court must still determine that termination is in the child's best interest. KRS 625.090(1)(c).H.L.O., 621 S.W.3d at 462 (footnote omitted).
The circuit court based its finding of neglect under KRS 625.090(2)(a), (e), and (g), set forth here:
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . .
(e) That the parent, 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;
. . .
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]
The Father first argues that there was insufficient evidence to support the circuit court's finding of abandonment "for a period of not less than ninety (90) days. KRS 625.090(2)(a). The Father admits that he had no contact with the Child for an extended period of time when he lost his job, then his apartment, but that there was no evidence to indicate that he intended to sever his relationship with the Child.
We disagree. By his own testimony, the Father was adrift for nearly a year, while the Child was placed in foster care and never heard from him. During that time, the Father lived in at least six locations in five different states. At the time of the hearing, the Father was residing in a motel in Florida. He was only sporadically employed and sent no financial support when he did have a paying job. The Father's claimed attempts of contact with the Cabinet were unverified. The finding of abandonment was supported by sufficient clear and convincing evidence. KRS 625.090(2)(a); H.L.O., 621 S.W.3d at 462.
The Father next argues that the record lacked sufficient evidence that there was "no reasonable expectation of improvement" in terms of either parental care and protection (KRS 625.090(2)(e)) or of the Father's conduct regarding "providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being" (KRS 625.090(2)(g). The Father insists that he had found employment (and had, in fact, not missed a day in over a month at the time of the hearing), and that he had saved up sufficient funds to establish a household for the family to be reunited. He also testified that he and the Mother had participated in premarital counseling, and that all of these efforts proved that he had and was continuing to improve.
These alleged efforts notwithstanding, the circuit court's reasoning was nonetheless supported by sufficient evidence to the contrary. The circuit court noted the following justifications to substantiate its finding that there was no reasonable expectation of improvement: the Father's lack of consistent employment and itinerant lifestyle; his failure to complete the tasks on his case plan ("such as substance abuse assessment and treatment, despite his substance use being the basis for the underlying case that resulted in the removal of the child from his custody"); his failure to keep in contact with the Child or provide a working telephone number so that the Cabinet could reach him; his failure to support the Child financially in any way whatsoever; and there were no additional services the Cabinet could provide that "would bring about lasting parental adjustment."
In other words, the circuit court's findings were supported by clear and convincing evidence of the existence of not one but three of the grounds listed in KRS 625.090(2). H.L.O., 621 S.W.3d at 462. We decline to disturb its decision.
The Father lastly maintains that his due process rights were violated by terminating his parental rights. In this vein he contends that the Cabinet "could not provide essential services to parents seeking reunification during the pandemic," and lists his unsuccessful attempts to contact the case worker and the unavailability of in-home services and in-person visitation. The Father further states that, "[i]n order to comport with due process, the Cabinet should have spoken to him specifically about where he needed to get his substance abuse assessment performed and renegotiate his case plan."
The Child was removed in June 2019, well before the COVID-19 pandemic compelled the shutdown of many government agencies. During that critical time in his Child's life, the Father ignored the Cabinet's proffered services and failed to avail himself of the opportunities to improve his family's situation. After government offices closed in March 2020, as the Cabinet points out, telecommunication and virtual participation allowed parents to access services from remote locations, which should have benefitted the Father who was residing in other states and was not required to travel to Hancock County.
The Father was given notice of the proceedings, appointment of counsel, and an opportunity to be heard, all of which comport with due process. "The family court considered the evidence presented, including the testimony of the parties. Considering the clear evidence of . . . neglect, we agree with the family court that the evidence overwhelmingly demonstrated that the father was unfit to parent [the Child]. Thus, the evidence in the record supports the family court's findings." B.C. v. B.T., 182 S.W.3d at 221.
The order of the Hancock Circuit Court terminating the parental rights of B.C.M. (the Father) to the Child is affirmed.
ALL CONCUR.