Opinion
NO. 2013-CA-001476-ME NO. 2013-CA-001477-ME
05-16-2014
B.J.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.L.B., MOTHER; AND N.Y.L.B., AN INFANT APPELLEES AND B.J.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.L.B., MOTHER; AND M.L.B., AN INFANT APPELLEES
BRIEFS FOR APPELLANT: L.B. Lominac III Richmond, Kentucky BRIEFS FOR APPELLEES CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Shelia F. Redmond Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JEFFREY M. WALSON, JUDGE
ACTION NO. 12-AD-00021
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JEFFREY M. WALSON, JUDGE
ACTION NO. 12-AD-00022
OPINION
AFFIRMING
BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES. MOORE, JUDGE: B.J.B., Father, appeals the Clark Family Court's Findings of Fact and Conclusions of Law along with the Orders of Judgment terminating his parental rights to his infant children, N.Y.L.B. and M.L.B. After careful review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The two infant children entered the emergency custody of the Cabinet for Health and Family Services (the "Cabinet") on February 11, 2011, after a referral of child abuse and neglect was received alleging physical abuse of M.L.B., at the time two years old. The dependency, neglect, and abuse petition filed on February 14, 2011 alleged that the child sustained significant injuries to the head and leg, and Mother and her paramour did not seek medical care for the child. On April 21, 2011, M.L.B. was found to be abused and neglected, N.Y.L.B. was found to be at risk of abuse and neglect, and the children were required to remain in foster care.
In the social worker's May 16, 2011 dispositional report, she detailed several incidents of abuse and neglect of M.L.B. stating that the child had been burned on the legs and bottom by scalding hot water, had fallen off of the bed and hit his head, and had sustained injuries to his ears from insertion of a pencil. Mother did not seek medical attention for any of these injuries. Shortly after entering foster care, N.Y.L.B. began to exhibit sexualized behaviors raising concerns of possible sexual abuse. Due to their ages of two and three at the time, the children had limited verbal skills to communicate what had happened to them. Father was unable to be located. The dispositional report stated that it appeared Father had not participated in caring for the children since their birth and does not pay child support. Father was not living with or in a relationship with Mother at the time the children were removed from Mother's custody. The specific efforts to locate Father at the time of the removal were not disclosed.
Father was located at the end of May 2011, and a test was ordered to verify his paternity of the children. On June 4, 2011, Father was incarcerated at the Clark County Detention Center after a conviction for Assault in the Second Degree. An order was entered on June 30, 2011 establishing Father's paternity.
During Father's incarceration, the case worker at the time, Ms. Holly Lovings, visited Father at the Clark County Detention Center and offered to case plan with him. It is not clear from the record when this visit occurred. She advised Father that the primary tasks of his case plan would be to complete parenting classes, obtain and maintain appropriate housing upon his release, and obtain and maintain employment for a period of at least six months upon his release. Her visit was followed sometime later by a visit from Mr. Gordon Shelton, a supervisor from the family services office. Mr. Shelton reiterated to Father what Ms. Lovings had told him previously about the case plan.
On February 9, 2012, an annual permanency review was held. According to the record, Father was present at the permanency hearing. In the annual permanency review report prepared by social services dated February 6, 2012, the present situation described by the social worker was that the Cabinet was not able to locate either parent and that neither parent has completed any case plan tasks or objectives. Also in the report, it was recommended that the goal remain "return to parent" at this point in time. However, the report also stated that depending upon the home evaluation of a paternal aunt to determine if it would be an appropriate placement for the children; the goal recommendation would change to "adoption" if the placement was denied. The Clark Family Court changed the goal to adoption at the hearing. The placement with the paternal aunt was ultimately denied.
It is not clear from the record, but at some point in time Father was transferred from the Clark County Detention Center to the Department of Corrections at Northpoint Training Center in Danville, Kentucky. Father failed to notify the Cabinet of this change. When the termination petition was filed, the Cabinet could not locate Father. A warning order attorney was then appointed for Father; however, the warning order attorney was not able to locate him.
When Father's location at the Northpoint Training Center in Danville, Kentucky was discovered, Father was appointed counsel on March 5, 2013 to represent him in the termination proceedings. Trial was held on June 26, 2013. Father's counsel was present, and Father participated telephonically.
Ms. Helena Bergman, the current case worker, testified on behalf of the Cabinet, and Father also testified. Ms. Bergman testified that neither parent had made any effort to work their case plans or contact, visit, or communicate with the children since they were removed from Mother's custody. She stated that the children were placed together in foster care, and have stayed with the same foster family since February 2011. Ms. Bergman testified that the children have become attached to their foster family and are doing very well. She stated that the foster family was willing to adopt the two children if the parental rights were terminated.
Father testified that he was with the children from their birth until late 2010 when Mother took the children and was keeping them from him. Late 2010 was the last time he had seen the children. He claimed to have called the Cabinet to report abuse of the children by Mother and her paramour after she took the children because he was aware of her substance abuse problems and had heard the children were being abused. Father stated that he was not aware of the dependency action and did not have contact with the Cabinet until May 2011. He acknowledged the visits from Ms. Lovings and Mr. Shelton while he was incarcerated at the Clark County Detention Center regarding his case plan. Father stated that he was doing everything he was able to do that was asked of him; however, at the time of trial in June 2013, he had only completed two out of a series of parenting classes. Also, Father claimed to have been told by Ms. Lovings and Mr. Shelton that visitation with the children was not permitted at the time they visited him in jail. Father testified that his release was currently set for May 2014, but he may get out as early as December 2013.
The children were ages four and five at the time the trial was held in June 2013 and had been with their foster family since February 2011. Father acknowledged that the children probably look to their foster parents as their parents, and they likely share a close bond because he has not seen them since 2010. When the Judge asked Father if he had ever attempted to reach out or contact the children, Father stated that he had not because the social worker did not give him their information.
The Judge acknowledged the Father's limitations on what he was able to do in accordance with the tasks of the case plan presented to him; however, the Judge also understood that Father had placed himself in his current situation. The Judge stated that the children had been in foster care for 28 months as of the time of the trial, and that even if Father got out in December 2013, he would need to find and hold a job for at least six months and find appropriate housing. According to the Judge, it was clear that both Mother and Father had abandoned the children as both were nonexistent in the children's lives since late 2010, and neither had provided any financial support to the children during this time either. The Judge stated that if Father truly cares about the children as he says he does, upon further reflection he will realize that it is in the best interests of the children to remain with their foster family. The Judge then ordered that the rights of both Mother and Father be terminated. Father now appeals.
II. STANDARD OF REVIEW
The standard of review in termination of parental rights cases is the clearly erroneous standard. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). The trial court's "[f]indings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01. This Court will not disturb a trial court's findings if they are supported by substantial evidence on the record. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
III. ANALYSIS
Father argues on appeal that (1) the Cabinet did not make reasonable efforts towards reunification with the children; (2) the Cabinet failed to show by clear and convincing evidence that the required elements of involuntary termination of parental rights were met; and (3) he was denied due process of law because he was not provided notice and was not provided counsel at all critical stages of the underlying dependency proceedings. Each of these contentions will be addressed in turn.
Reasonable efforts by the Cabinet is a consideration in determining the best interests of the children pursuant to Kentucky Revised Statutes (KRS) 625.090(3)(c). KRS 620.020(11) defines "reasonable efforts" as "the exercise of ordinary diligence and care by the department to utilize all preventative and reunification services available to the community . . . which are necessary to enable the child to safely live at home."
Father argues that the Cabinet did not make an effort to develop a case plan with him, stay in contact with him, or place the children with relatives. Father testified that Ms. Lovings, the case worker at the time, visited him in jail and went over the primary tasks he would need to complete for his case plan. Due to his incarceration, Father was clearly limited in certain parts of the case plan, namely obtaining housing and obtaining and maintaining employment. However, at the time of the trial in June 2013, Father had only completed two parenting classes out of a series offered through the correctional facilities. Father was informed about completing parenting classes during Ms. Lovings' visit. Additionally, Father never requested visitation or initiated any contact or communication with the children through the Cabinet.
Father also argues that the Cabinet did not make an effort to place the children with any adult relatives as a dispositional alternative pursuant to KRS 620.140. Father had suggested that the children be placed with a paternal aunt. The Cabinet did complete home evaluations on a maternal grandmother and the suggested paternal aunt. However, both were denied. Ms. Bergman testified that the grandmother was denied because of someone living in her home that was not suitable for the children to be around, and the aunt was denied because she admitted to a partying lifestyle and to abusing substances with Mother. The record clearly demonstrates that based on the circumstances of this case the Cabinet made reasonable efforts toward reunification. Therefore, we cannot say that the trial court's finding that the Cabinet had provided or offered to provide all reasonable services to Father in an effort to keep the family together is clearly erroneous.
Next, Father argues that there was no finding of abuse or neglect against him in the underlying dependency action, and therefore, there is insufficient evidence in the record in this proceeding to terminate his parental rights.
KRS 625.090 allows the circuit court to involuntarily terminate all parental rights if the court finds by clear and convincing evidence that: (1) the child is found or has been adjudged to be an abused and neglected child; (2) termination would be in the child's best interest; and (3) one or more of the following grounds listed in KRS 625.090(2)(a)-(j) exists. "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantive nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998).
Our first inquiry is into whether Father is entitled to an individualized finding of whether he abused or neglected the children, and if so, whether his specific actions rendered the children abused or neglected. KRS 625.090(1)(a)(2) permits the circuit court to determine whether the child is abused or neglected, as defined in KRS 600.020(1), in the termination proceeding. Additionally, the statutory language of KRS 625.090(6) states:
Upon conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either: (a) Terminating the right of the parent; or (b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.(emphasis added). According to the statute, Father is entitled to an individualized finding, and the court could not proceed with terminating his parental rights unless it found by clear and convincing evidence that he had abused or neglected the children as required by KRS 625.090(1).
We must now consider whether the circuit court made such findings as to Father and if those findings are supported by evidence in the record. First, the circuit court found in the termination proceeding that the children were abused and neglected as defined in KRS 600.020. Specifically, the court found that both Mother and Father continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the children; failed to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the children's well being; and had abandoned the children for a period not less than ninety days. KRS 600.020(1)(a)(4), KRS 600.020(1)(a)(8), KRS 600.020(1)(a)(7); KRS 600.020(2)(a).
All of these findings relate to actions of Father and were testified to at trial. Father admitted that he had not seen the children since the end of 2010, and he had not attempted to contact the children since that point in time either. The children were placed in foster care in February 2011, and Father was not incarcerated until June 2011. Additionally, the circuit court found that there was no reasonable expectation of improvement in the parents' conduct or circumstances in the foreseeable future. Father was given information regarding a case plan, yet he had only completed two parenting classes over the course of two years. Due to Father's complete absence from the children's lives and failure to make hardly any progress on his case plan, it was not clearly erroneous for the circuit court to find the children abused and neglected by Father.
The second element in terminating parental rights is whether termination is in the children's best interest. This requires consideration of the six factors enumerated in KRS 625.090(3)(a)-(f). All of the factors listed are not applicable to this particular case, but it is clear from the record and the court's findings that it considered factors (c)-(e). KRS 625.090(3)(c) relates to the reasonable efforts of reunification services provided to the family. Whether proper reunification efforts were provided was previously addressed in this opinion. As a result, we turn to the next factor, "the efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child[ren]'s best interest to return [them] to his home within a reasonable period of time, considering the age of the child[ren]." KRS 625.090(3)(d).
The Judge recognized Father's limitations due to his current circumstances; however, Father's lack of effort throughout the course of these proceedings could not be ignored. Father had not ever attempted to contact the children nor did he ever request visitation. Father had also testified that he had come up for parole, but it was deferred. Father's counsel claims that Father has completed several programs and gotten his GED while incarcerated; however, the only evidence contained in the record is the two parenting courses he completed shortly before trial. Other than the two parenting classes, Father failed to show any adjustments or efforts made since 2010 or to provide any evidence that termination would not be in the children's best interests.
KRS 625.090(3)(e) requires the court to consider "the physical, emotional, and mental health of the child[ren] and the prospects for the improvement of the child[ren]'s welfare if termination is ordered." The court heard testimony from Ms. Bergman, the current case worker, that the children have bonded with their foster family and have been doing very well since their placement in 2011. The foster parents are willing to adopt the children if given the opportunity. Father acknowledged in his testimony that the children probably consider the foster parents as their parents because they have been with them for so long. The Judge also stated that at the time of the trial the children had already been in foster care for 28 months, and that even if Father was released from jail earlier than expected it would still likely be almost another year if not longer that the children would remain in foster care. Based on this evidence, we agree with the circuit court that termination is in the best interests of the children.
And finally, the third element of whether the circuit court may terminate parental rights requires a finding by clear and convincing evidence of at least one or more of the grounds listed in KRS 625.090(2)(a)-(j). The court made several findings regarding grounds listed in KRS 625.090(2)(a), (e), (g), and (j). These include that the parent has abandoned the children for a period of not less than ninety days; has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the children; for reasons other than poverty alone, that the parent has failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary for the child's well being; and that the child has been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights. As all of these grounds have previously been discussed, it has been shown that all are supported by substantial evidence in the record.
Father's final argument on appeal is that he was denied due process because he was never notified nor was he ever appointed counsel at all critical stages of the underlying dependency action. First, in regards to notification of the dependency action, Father was unable to be located by the Cabinet until May 2011. The dependency, neglect, and abuse petition was filed in February 2011 against Mother and her paramour. Ms. Bergman could not attest to the specific efforts employed by the Cabinet to attempt to locate Father because she was not the case worker at the time. However, she did testify to what the Cabinet does generally to locate absent parents, including criminal records checks with the Administrative Office of the Courts, checking local jails, and checks within the Cabinet's computer systems. Father testified that he became aware of the dependency action in May 2011, yet since that time he failed to maintain any contact with the Cabinet, and became incarcerated shortly thereafter.
Secondly, Father argues that his due process rights were violated because he was never appointed counsel in the dependency proceeding. R.V. v. Commonwealth, Depart. of Health and Family Services, 242 S.W.3d 669, 672-73 (Ky. App. 2007) held:
[P]ursuant to both the due process clause of the Fourteenth Amendment to the United States Constitution and KRS 625.080(3) and 620.100(1), that the parental rights of a child may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings. This includes all critical stages of an underlying dependency proceeding in district court, unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case.It is important to observe that KRS 620.100(1) provides custodial parents the right to counsel in dependency proceedings, while KRS 625.080(3) provides routine appointment of counsel to represent indigent parents in termination cases. Father was clearly not a custodial parent, and he was appointed counsel immediately once his whereabouts were discovered for the termination proceeding.
Most notably, Father did not participate in the underlying dependency action. The record does indicate that he was present at the annual permanency review in February 2012, wherein the goal was changed from return to parent to adoption, arguably a critical stage of the proceedings in this case. Yet, this was Father's only appearance or attempt at participation in the dependency action. Additionally, there is no evidence in the record that counsel was not offered or requested at the permanency hearing, only that counsel was not appointed at that point in time. Father also disassociates himself from the dependency action in this appeal by stating that he was never named in the dependency action as responsible for the abuse or neglect of the children.
Father was appointed counsel in the termination proceeding as soon as his whereabouts at the Northpoint Training Center were discovered on March 5, 2013. He was given the opportunity to testify telephonically and explain in the termination proceedings his efforts since 2010, or lack thereof, towards reuniting with his children. Father continually blamed the Cabinet for not contacting him, completing his case plan, or keeping track of his location, yet he failed to reach out to the Cabinet or inquire into what he needed to do to see his children. Father's indifference towards participation, even after the appointment of counsel for the termination proceedings, cannot be overlooked. Despite Father's contentions that he was entitled to notice and counsel during the underlying dependency proceeding, in which he did not actively participate, he was afforded the opportunity to be heard and defend the abuse and neglect allegations during the termination proceeding with his counsel present. Therefore, Father's due process rights were not violated.
IV. CONCLUSION
In closing, the circuit court made individualized findings that Father abused and neglected the children as defined in KRS 600.020(1). Also, the court's findings relating to the three elements of involuntary termination of parental rights found in KRS 625.090 were supported by substantial evidence in the record. And lastly, Father was provided the appropriate due process protections. For these reasons, the judgments and orders of the Clark Circuit Court terminating Father's parental rights to M.L.B. and N.Y.L.B. are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: L.B. Lominac III
Richmond, Kentucky
BRIEFS FOR APPELLEES
CABINET FOR HEALTH AND
FAMILY SERVICES,
COMMONWEALTH OF
KENTUCKY:
Shelia F. Redmond
Lexington, Kentucky