Opinion
NO. 2012-CA-001702-ME NO. 2012-CA-001703-ME NO. 2012-CA-001704-ME
06-07-2013
C.E.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.C.R., A MINOR CHILD; AND L.R., MOTHER APPELLEES AND C.E.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; C.N.R., A MINOR CHILD; AND L.R., MOTHER APPELLEES AND C.E.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.R.R., A MINOR CHILD; AND L.R., MOTHER APPELLEES
BRIEFS FOR APPELLANT: Lisa A. DeRenard Benton, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Cabinet for Health and Family Services Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARSHALL FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR. JUDGE
ACTION NO. 11-AD-00014
APPEAL FROM MARSHALL FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR. JUDGE
ACTION NO. 11-AD-00015
APPEAL FROM MARSHALL FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR. JUDGE
ACTION NO. 11-AD-00016
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. THOMPSON, JUDGE: C.E.R. (father) appeals from the orders of the Marshall Family Court terminating his parental rights to A.C.R., C.N.R. and A.R.R. (the children). Father argues that the Cabinet for Health and Family Services (the Cabinet) failed to prove the statutory requirements by clear and convincing evidence.
Father and L.R. (mother) were married and lived together with their three children. Father worked while mother primarily took care of the children.
Mother has serious medical and mental health conditions. After mother was hospitalized, the children were left with inadequate supervision. While there was a home health nurse present to look after A.R.R.'s medical needs, the nurse was not responsible for taking care of A.C.R. and C.N.R. when they returned from school.
Father was contacted and stated that it was mother's responsibility to arrange care for the children and refused to make arrangements for their care. When father arrived home from work to a waiting social worker, father was abusive and threatened the social worker. As a result of father's failure to make arrangements for his children's care and his behavior towards the social worker, the children were placed in foster care on November 9, 2009, and father was charged and convicted of terroristic threatening.
On February 5, 2010, the children were found to be neglected and, on March 26, 2010, committed to the Cabinet. The children currently reside in foster care, with A.C.R. and C.N.R. in one placement and A.R.R. in another. On June 9, 2011, at a permanency hearing, the permanency plan was changed to adoption.
At the time of the termination hearing, A.C.R. was almost fourteen, C.N.R. was almost ten and A.R.R. was almost five. Mother and father ceased living together and planned to divorce. Separate termination hearings were held for each parent.
At father's termination hearing, evidence was presented that the children have significant mental or physical needs and require a high degree of supervision and care. A.C.R.'s and C.N.R.'s therapist, social worker Wendy Lay, testified as to their special needs: A.C.R. was diagnosed with attention deficit hyperactivity disorder and autism. C.N.R. was diagnosed with attention deficit disorder, hyperactivity disorder, oppositional defiant disorder and may have a mood disorder. The diagnoses and treatment of A.C.R. and C.N.R. did not begin until they were placed in foster care. A.C.R. recently underwent a partial hospitalization related to his behaviors at school but was returned to his regular placement. The foster family for A.C.R. and C.N.R. maintains a structured environment to meet their behavioral needs. They are not in a prospective adoptive home but qualify for the special needs adoption program. Ms. Lay testified that the children were afraid of father, and their interest in seeing him mainly revolved around their desire to retrieve personal items at his house.
Social worker Andrea Nelson testified as to A.R.R.'s special needs resulting from her congenital disorders. A.R.R. was born with her veins and arteries running in the wrong direction, required heart surgery and has undergone an amputation. She requires future surgeries, has ongoing significant medical needs, is considered medically fragile and is developmentally and intellectually delayed. Despite her difficulties, she is a delightful child and doing well in her current placement.
Ms. Nelson testified that father was angry, hostile, difficult to work with and not willing to pursue the actions requested of him. After father's conviction for terroristic threatening, the Cabinet arranged for him to have supervised visitation with A.C.R. and C.N.R. at the courthouse. After seeing them there, father refused to engage in further visitation at the courthouse. Father has not visited with the children since July 26, 2010, and refused to see his children unless he has unsupervised visitation at his home. Father refused to participate in recommended treatment even after the Cabinet arranged to pay for it and schedule it around his work commitments. His mental health assessment was incomplete, because he failed to disclose pertinent information to the evaluator.
Father failed to pay child support and correct erroneous information on a garnishment order that prevented collection of child support from his wages. He failed to arrange payment despite a court order requiring that he pay child support directly until garnishment began.
Although father made efforts to improve his home for the children and did complete parenting courses, he has not resolved his anger issues or made steps to continue his relationship with his children. Father's testimony showed his unwillingness to acknowledge and take responsibility for his actions. Father tried to minimize his prior threats against a co-worker, a social worker and mother. He refused to acknowledge that his threat to kill a co-worker could be the reason for his dismissal from a job and blamed his termination on leaving work early to visit his children at the courthouse. He failed to pay child support because he did not see the need to pay other people to watch his children when he thought they should be with him. He was not willing to see his children through supervised visitation at the courthouse, because he was not comfortable in that setting.
In its extensive findings, the family court found there was clear and convincing evidence that father was unable to provide essential parental care to his children because he refused to address his mental health treatment goals and build a renewed relationship with his children. The court explained that father refused to participate in treatment to address his unpredictable and explosive behavior, instead minimizing the results of his own actions and failing to take responsibility for them. Father insisted that all conditions be met on his own terms rather than cooperate with visitation and be responsive to the children's special needs. The court determined that father's failure to address his mental health needs made him unable through treatment to improve his interactions with other adults or build a renewed relationship with his children. The court also found that father abandoned his children by refusing to engage in visitation at the courthouse and failed to provide essential support for his children by failing to correct erroneous information so that his wages could be garnished for child support.
Father appears to believe that the family court was unwilling to return the children to him because it believed that he had been physically or sexually abused as a child and needed therapy to deal appropriately with underlying issues with such abuse to avoid continuing to neglect the children. From a thorough review of the record, it appears that the family court did not conclude that father had suffered abuse, but was concerned that father was not dealing with the issues that caused his anger problems and improper conduct toward other adults. It was father's present conduct that made the family court believe that father would not be able to improve in the future, rather than negative assumptions about the reasons that father was placed in foster care as a teenager.
The family court determined that termination was appropriate pursuant to KRS 625.090 based on its legal conclusions that (1) the children are neglected; (2) father has abandoned the children for a period of not less than ninety days; (3) father has for a period of not less than six months, continuously or repeatedly, failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the children and there is no reasonable expectation of improvement in parental care and protection, considering the ages of the children; (4) father has, for reasons other than poverty alone, 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 father's conduct in the immediately foreseeable future, considering the ages of the children; (5) the Cabinet has made reasonable efforts to reunite the children with father; (6) father has failed to make reasonable efforts or adjustments in his circumstances, conduct or conditions to make it in the children's best interest to return home within a reasonable period of time, considering the ages of the children; (7) father has failed to prove by a preponderance of the evidence that the children will not continue to be neglected children if returned to father's care; (8) the children's physical, emotional and mental health have improved since removal from father and the prospects are for greater improvement in their welfare if termination is ordered; (9) termination of father's parental rights is in the best interest of the children; and (10) the Cabinet is best qualified to receive custody of the children and place them for adoption.
A family court has a great deal of discretion in determining whether children are neglected and whether the neglect warrants termination. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky.App. 1998). A family court's decision to terminate parental rights must be based upon clear and convincing evidence, which we review under the clearly erroneous standard. D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 836 (Ky.App. 2011). "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." W.A. v. Cabinet for Health & Family Services, Commonwealth, 275 S.W.3d 214, 220 (Ky.App. 2008). We defer to the family court's ability to assess the credibility of witnesses:
It has long been held that the trier of fact has the right to believe the evidence presented by one litigant in preference to another. The trier of fact may believe any witness in whole or in part. The trier of fact may take into consideration all the circumstances of the case, including the credibility of the witness.Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996) (internal citations omitted). If there is clear and convincing evidence to support the findings of neglect, any of the listed grounds for termination relied upon and termination would be in the children's best interest, we must affirm.
Father argues that the family court erred by not joining his and mother's termination trials because he wished to contest whether he could have known the seriousness of her medical condition when he left the children with her. Father had no right to a joint trial with mother. The decision to try them jointly or separately was within the sound discretion of the family court. CR 41.01. Father can show no prejudice because the family court's reasons for terminating his parental rights do not rely upon a finding that it was inappropriate for him to leave the children alone with mother, but upon his course of conduct after he was informed that the children needed supervision.
Father argues that the family court erred by not considering the testimony of Aloha Romay, a mental health professional, who opined that father did not require mental health services. The family court rejected her report and testimony because Ms. Romay had not considered the family court's prior rulings and relied on father's self-reporting in order to make her recommendation. The family court has discretion to weigh the evidence and make determinations as to the credibility of witnesses.
Father argues that the family court erred by relying on testimony not in evidence. Father was under notice from a court order that the family court would take judicial notice of previous evidence introduced in the case. The family court did not err in relying upon evidence introduced during the earlier hearings involving the children's commitment to the Cabinet that father had threatened to kill a co-worker.
Father argues the family court erred by determining that he abandoned the children by refusing to exercise visitation at the courthouse. The evidence supports the family court's interpretation as to father's conduct.
Father argues that the family court erred by failing to prove by a preponderance that the children would not continue to be neglected if returned to his care when he followed the recommendations given to him. The family court considered contradictory evidence and did not find credible father's assertions of full compliance. The court found that father was not taking responsibility for his own actions. There was no reason to believe that given father's history of engaging in unpredictable and explosive behavior and failure to address that history, that his children would not continue to be neglected.
Father argues that the family court erred by determining that A.R.R. was in a prospective adoptive placement. The termination of father's parental rights did not depend on the likelihood of A.R.R.'s future adoption with a particular family.
After reviewing the record, we conclude that clear and convincing evidence existed to support the family court's findings that the children were neglected and that termination of father's parental rights was in the children's best interest. Accordingly, we affirm the Marshall Family Court's termination of father's parental rights to A.C.R., C.N.R. and A.R.R.
ALL CONCUR. BRIEFS FOR APPELLANT: Lisa A. DeRenard
Benton, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Dilissa G. Milburn
Cabinet for Health and Family
Services
Mayfield, Kentucky