Opinion
2022-CA-1116-ME
04-07-2023
B.J.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; H.N.G.R., MINOR CHILD; AND T.L.D.R., MOTHER APPELLEES
Brief for Appellant: Rebecca A. Simpson Bowling Green, Kentucky Brief for Appellee Cabinet for Health and Family Services, Commonwealth of Kentucky: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
Appeal From Warren Circuit Court Honorable David A. Lanphear, Judge Action No. 21-AD-00146
Brief for Appellant: Rebecca A. Simpson Bowling Green, Kentucky
Brief for Appellee Cabinet for Health and Family Services, Commonwealth of Kentucky: Dilissa G. Milburn Mayfield, Kentucky
Before: Easton, Lambert, and McNeill, Judges
OPINION
EASTON, JUDGE
The Appellant, B.J.W., appeals from the Warren Family Court's findings of fact, conclusions of law, and order terminating his parental rights to his minor child, H.N.G.R. (hereafter "H.R."). We affirm.
FACTUAL AND PROCEDURAL HISTORY
H.R. was born in October 2020. The Cabinet for Health and Family Services ("Cabinet") believed H.R. was at risk due to her mother's long history of substance abuse and mental health issues with several previous termination of parental rights ("TPR") cases and one ongoing TPR case. The ongoing TPR case also involved B.J.W.
The Cabinet filed a dependency, neglect, or abuse ("DNA") petition pertaining to H.R. She was committed to the custody of the Cabinet when she was released from the hospital two days after birth. H.R. was placed in a Cabinet approved foster home, where she has remained throughout these proceedings with her older sibling, who was the subject of the TPR pending when H.R. was born.
B.J.W. was not named in the DNA action pertaining to H.R. because the mother originally named another man as the child's father. H.R. was the mother's eighth child. B.J.W. was listed as the "legal father" of the mother's seventh child, although subsequent testing would establish another man as the biological father. The record does not indicate the basis for the legal father status, whether by marriage at the time, named on birth certificate, or some other reason. In July 2021, B.J.W. was established as the father of H.R. by genetic testing evidence.
On August 14, 2021, B.J.W. began a period of incarceration in the Warren County Detention Center. He remained in custody until April 29, 2022, after a revocation of his probation in a felony case. He had been sentenced to serve three years for possession of methamphetamine. The Cabinet filed its TPR petition on December 2, 2021.
The first court appearance on the Cabinet's petition was on February 11, 2022. B.J.W. was in custody and appeared in person for this hearing. The family court appointed counsel for B.J.W. The family court set both a pretrial conference and a final hearing, in part to allow time for B.J.W. to work on a plan with the Cabinet. The judge directed B.J.W. to keep in touch with his counsel which B.J.W. acknowledged. The attorney repeated this direction to B.J.W. later before the hearing adjourned. Specifically, the attorney told B.J.W. to "contact me as soon as you're out" which B.J.W. again acknowledged, even confirming the telephone number to call.
Record 2-11-22 at 9:31:53-9:31:56.
Record 2-11-22 at 9:33:35-9:33:45.
When B.J.W. was released from custody, he did not contact his attorney. He did not contact the Cabinet. He did not show up for court as scheduled on June 8, 2022. B.J.W. showed up 45 minutes late for the final hearing on July 21, 2022.
The only explanation offered for his lack of contact was also the only evidence offered by B.J.W. during the final hearing. B.J.W. explained he had taken some unspecified "medicine" within days after his jail release which resulted in a short hospitalization. B.J.W. provided absolutely no evidence about the "medicine," or the hospital stay, or any continuing treatment.
Before conducting the final hearing with reference to B.J.W.'s rights, H.R.'s mother appeared from jail and consented to the termination of her parental rights. The Cabinet then called social worker Casey Logsdon ("Casey") as its only witness. Casey testified that his only face to face meeting with B.J.W. was on November 18, 2021, in the Warren County Detention Center. Casey testified that he went over a case plan with B.J.W. on this date, which included a substance abuse assessment, a mental health assessment, random drug screens, acquire stable housing and employment, and to keep the Cabinet informed of all contact information.
Casey testified B.J.W. signed this case plan. He further testified he had no evidence that any of these tasks were completed. He did acknowledge it would be impossible for B.J.W. to complete most of these tasks while in custody, although he stated he did not know what type of substance abuse program B.J.W. had access to while incarcerated. Casey stated he had no communication from B.J.W. since he was released from jail in April 2022. Casey testified he included his phone number with his case plan when he provided it to B.J.W. while he was in custody.
Casey further testified he believed termination was in H.R.'s best interest. He stated H.R. is with her older sibling in an adoptive home. Casey testified that H.R. is thriving in her foster home. Casey testified H.R. has a strong bond with her foster parents, and he believed her foster home was the best place for her. He stated B.J.W. never had any contact with H.R. and to his knowledge B.J.W. has never provided anything to H.R. Casey acknowledged B.J.W. asked about visitation with H.R. during his jail meeting with him, and Casey stated he told B.J.W. they would discuss it once he was released from custody. B.J.W. never contacted Casey again to discuss it.
On cross-examination, Casey testified the three-month delay in case planning with B.J.W. was due to Casey not knowing where B.J.W. was. Casey acknowledged he did not check the jail website until October 2021. Despite this testimony, the Cabinet's report of September 22, 2021, in the associated juvenile action shows that Casey knew B.J.W. was in custody somewhere on that date. Casey conceded that the underlying DNA action as to H.R. did not make any allegations against B.J.W. He stated the basis for having a case plan and assessments was B.J.W.'s current incarceration due to drug-related offenses.
Casey offered confusing testimony regarding waiver of reasonable efforts. He testified it was his belief that this waiver existed as of October 2021, but further testimony revealed the waiver was requested in October 2021 but was granted in January or February 2022. From our review of the juvenile record, no specific order granting such a waiver is found. The last record we see on this subject was from September 28, 2021. It was on this date that B.J.W. was appointed counsel. It was also the date the family court changed the goal from "Return to Parent" to "Adoption." It states on the docket sheet "Waiver of Reasonable Efforts: October 25, 2021[.]" There is no further record to indicate if any hearing was held at any time after the September 28, 2021, court date.
Casey testified under questioning by the guardian ad litem ("GAL") that B.J.W. never contacted him once he was released from custody. There was some testimony Casey sent a certified letter to B.J.W.'s last known address, but it was unclear whether the letter was returned to him. It is also unclear when this letter was allegedly sent. There was testimony of a letter sent in November 2021, when B.J.W. was still in custody, but also testimony of a letter being sent after B.J.W.'s release. Casey additionally testified he had a history with B.J.W. going back to September 2019. Casey stated he knew B.J.W. had a history of drug use and criminal charges.
B.J.W. then provided brief testimony at the hearing. He testified he was incarcerated from August 14, 2021, through April 29, 2022. He further talked about his hospitalization previously mentioned herein, which he recalled as being from May 2 through May 5, 2022. B.J.W. additionally testified he had several upcoming doctor's appointments to determine the cause of his hospitalization.
Under cross-examination by the GAL, B.J.W. testified he learned he was H.R.'s father during the summer of 2021, but he could not remember the specific date. B.J.W. testified he didn't call the social worker when he got out of jail because he lost the paperwork during his incarceration. He also testified he had financial difficulties which prevented him from obtaining a phone. He did not think to borrow anyone else's phone or make any other effort to contact the Cabinet or his attorney.
The family court judge asked B.J.W. several questions. During these questions, B.J.W. stated that, while he has made some bad choices, he is a good father and loves his children. The judge asked him what would happen to H.R. if B.J.W. relapsed. The judge additionally asked him why he never contacted the Cabinet once he was released. B.J.W. responded that he didn't have a good reason, and he was aware it "didn't make him look good as a father."
The family court issued its findings of facts and conclusions of law and its order terminating parental rights and order of judgment on August 17, 2022. The family court found the child was an abused or neglected child and termination of parental rights would be in her best interest. It found B.J.W. had continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child for not less than six months and there is no reasonable expectation of improvement. The family court additionally found that B.J.W., for reasons other than poverty alone, had continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future. The order states, "All the factors in KRS 625.090(3) were considered."
Kentucky Revised Statutes.
Order Terminating Parental Rights and Order of Judgment, Paragraph 5, rendered August 17, 2022.
STANDARD OF REVIEW
This Court's standard of review of a termination of parental rights case is the clearly erroneous standard in CR 52.01. The factual findings must be supported by clear and convincing evidence. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). The findings of the trial court should not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Services, 706 S.W.2d 420, 424 (Ky. App. 1986).
Kentucky Rules of Civil Procedure.
ANALYSIS
KRS 625.090 is the controlling statute regarding the involuntary termination of parental rights. This statute provides a three-prong test which allows parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that (1) the child has been found to be an abused or neglected child as defined in KRS 600.020(1); (2) that termination is in the child's best interests; and (3) at least one of the grounds set out in KRS 625.090(2)(a)-(k) is present. Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
The family court ruled that the first prong had been met in the case herein. We agree. KRS 600.020 outlines what constitutes an "abused or neglected child." KRS 600.020(1) defines an "abused or neglected child" as "a child whose health or welfare is harmed or threatened with harm" with a list provided of examples.
The family court held an adjudication hearing in the juvenile action on January 29, 2021. In the adjudication order, the family court made a finding of abuse or neglect specifically against the mother. B.J.W. was never referenced. At this point, B.J.W. had not been identified as the biological father of the child.
It is clearly mandated "that the trial court must find that each parent satisfies the three prongs found in the TPR statute, including whether the child qualifies as an abused or neglected child." K.H., 423 S.W.3d at 210 (citing D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 114 (Ky. 2012)). "KRS 625.090 requires the court to make a finding of abuse or neglect as to each parent." Id. (citing D.G.R., 364 S.W.3d at 114). But this does not require a prior adjudication in a DNA action.
The family court here, in its findings of fact and conclusions of law, found that H.R. is an abused and neglected child. It further stated "[B.J.W.] has not provided essential parental care and protection for child. [B.J.W.] has not provided child with adequate care, supervision, food, clothing, shelter, education or medical care." B.J.W. neglected H.R.
Findings of Fact and Conclusions of Law, Paragraph 8.
It is undisputed that B.J.W. was incarcerated soon after the establishment of his paternity of the child. He remained incarcerated until approximately three months prior to the final hearing in this action. Our case law is clear that incarceration alone cannot be the basis of abandonment or neglect, but it can be considered with other factors. In J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 664 (Ky. App. 1985), this Court affirmed the trial court's termination of parental rights because it ruled "J.H. contributed to the infliction of these harms while he was with the family by his violence and his failure to provide for them, but he also substantially and continuously neglected the children because, by his dedication to a criminal lifestyle which incarcerated him, he 'allows to be created a risk of physical or mental injury' to the children."
The Cabinet filed the records of sixteen criminal cases spanning twenty years with B.J.W. as the defendant. One charge, more than ten years old, was for fourth-degree assault, domestic violence, minor injury. This record refers to a contemporaneous protective order.
B.J.W.'s incarceration should not and does not alone support any determination of the family court, but the family court was not required to ignore that evidence or B.J.W.'s conduct after he was released from his latest incarceration in determining if B.J.W. had neglected the child. When we analyze all the evidence, we cannot say the family court's ruling that B.J.W. had abused or neglected the child to be clearly erroneous.
Next, the court must find that at least one of the grounds outlined in KRS 625.090(2) is present. These grounds include:
(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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected[.]
The family court found that B.J.W. for a period of not less than six (6) months, had continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child (KRS 625.090(2)(e)); and, that B.J.W. 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 there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child (KRS 625.090(2)(g)). The family court did not go into detail as to its factual findings that supported these rulings, but B.J.W. does not appear to contest these findings in his brief. The record also could have supported findings under KRS 625.090(2)(a) and (h).
The final consideration in determining the best interest of the child and the existence of a ground for termination, the family court must consider the factors in KRS 625.090(3), which are:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
B.J.W. alleges two errors regarding this final prong of the analysis. He alleges the family court erred in finding a waiver of reasonable efforts and that the family court's ruling that the Cabinet rendered "all reasonable services" is clearly erroneous.
There was conflicting testimony regarding whether the family court granted the Cabinet a waiver of reasonable efforts. Casey testified he believed the family court granted the Cabinet's request for a waiver in either October 2021 or early 2022. However, there is no court order provided indicating if such a waiver was granted. The family court's findings of fact and conclusions of law, rendered simultaneous with the order terminating parental rights, states, "Waiver of reasonable efforts was granted as to [B.J.W.] on January 31, 2022." Again, no court order stating as such was provided in the record.
To determine if a court can grant a waiver of reasonable efforts, we must look to KRS 610.127. This statute states that reasonable efforts "shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction determines that" a parent has "[h]ad their parental rights to another child terminated involuntarily[.]" KRS 610.127(4).
As stated in KRS 625.090(3)(c), there must be written findings by the family court that one of these factors applied to find a waiver. While we are concerned about the lack of specific findings about the waiver, the record clearly establishes the required facts and documents the waiver. We will not remand the case simply to state facts which are plain in the record, especially when the trial court independently found B.J.W. failed to engage in the reasonable efforts actually made by the Cabinet.
Even though a waiver of efforts was noted by the family court, that court also ruled the Cabinet had "rendered or attempted to render all reasonable services to [B.J.W.] in an effort to bring about a reunion of the family, but these services have not been utilized." "Reasonable efforts" is defined in KRS 620.020(13) as "the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home[.]" "Preventive services" is defined in KRS 620.020(12) as "those services which are designed to help maintain and strengthen the family unit by preventing or eliminating the need for removal of children from the family[.]" Finally, "reunification services" is defined in KRS 620.020(14) as "remedial and preventive services which are designed to strengthen the family unit, to secure reunification of the family and child where appropriate, as quickly as practicable, and to prevent the future removal of the child from the family[.]"
Trial court's Findings of Fact and Conclusions of Law, entered August 17, 2022.
B.J.W. argues the Cabinet did not render or attempt to render all reasonable services to reunite the family prior to filing its petition to terminate his parental rights as required by KRS 625.090(3). It wasn't until July 23, 2021, that an order of paternity was entered. At this point, the child was approximately nine months of age. A few weeks later, on August 14, 2021, B.J.W. became incarcerated, which was where he remained until April 29, 2022.
By the Cabinet's own testimony, no one met with B.J.W., or attempted to meet with B.J.W., until November 18, 2021. This was when Casey met with B.J.W. in the detention center to complete a case plan. B.J.W. would be unable to complete most items on the case plan while incarcerated, but B.J.W. did not show any effort about things he could have done such as drug treatment. Casey testified that he did not set up any assessments for B.J.W., as he was in custody and would be unable to do them until he was released.
Despite this, the Cabinet filed its petition for involuntary termination of parental rights on December 2, 2021, approximately two weeks after Casey met with B.J.W. at the detention center. This was prior to the family court's order that a waiver of reasonable efforts existed.
On this record, it is clear reasonable efforts were not required in this case due to the undisputed fact of a prior involuntary TPR. To the extent the Cabinet tried to engage B.J.W. in such efforts, B.J.W. showed no willingness to do so. The Cabinet cannot be blamed for a failure of its efforts when the parent shows no effort to engage in them. B.J.W. did nothing after his latest release from jail in April of 2022 to engage in any plan. In fact, B.J.W. did not even contact the Cabinet or his own attorney about this TPR case, failed to show up for an important pretrial proceeding, and then showed up late without excuse or explanation for the final hearing with no evidence other than his testimony to explain his total lack of effort.
CONCLUSION
The findings of the family court pursuant to KRS 625.090(2)(e) and (g) are not clearly erroneous, even when considering that part of the time during which B.J.W. was incarcerated. Reasonable efforts by the Cabinet were not required in this case. The efforts made by the Cabinet were completely frustrated by B.J.W.'s total failure to engage with the Cabinet. The order terminating B.J.W.'s parental rights to H.R. is AFFIRMED.
ALL CONCUR.