Opinion
NO. 2016-CA-000399-ME
12-22-2016
C.L., SR. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND C.L., JR., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Joseph h. Dahlman Lexington, Kentucky BRIEF FOR APPELLEE: Jerry M. Lovitt Regional Counsel, Bluegrass Fayette Region Cabinet for Health & Family Services Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 15-AD-00236 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MAZE, AND STUMBO, JUDGES. MAZE, JUDGE: C.L., Sr. (Father) appeals from an order of the Fayette Family Court terminating his parental rights to his son, C.L., Jr. (child). He argues that the Cabinet for Health & Family Services (the Cabinet) failed to consider relative placement prior to removing the child from his care. This issue is not preserved for review, and in any event, would not support setting aside the termination of Father's parental rights. Since Father does not raise any other allegation of error, we affirm.
The child was born in May 2004 in California. Father was not identified as a parent on the child's birth certificate, but he admitted paternity. K.S.D. (Mother) placed the child in Father's care and has not appeared in this matter. On April 30, 2014, the Cabinet filed a dependency, neglect, and abuse (DNA) petition, alleging that the child had been locked out of Father's apartment late at night while he was entertaining women and using drugs. The petition also alleged other instances of neglect and substance abuse. Based on the petition, the family court entered an emergency custody order on May 12, 2014, granting custody of the child to the Cabinet. Following a hearing, the trial court entered an order on July 10, 2014, directing that the child remain in the custody of the Cabinet. The child has been in foster care since that time.
The Cabinet prepared a case plan for Father which required him to undergo drug testing, complete drug treatment programs, maintain housing and employment, and pay child support. In periodic reviews, the Cabinet noted that he had not consistently complied with his case plan. He failed to complete drug treatment and he was incarcerated several times. The Cabinet contacted Mother, but she stated that she could not care for the child.
In August 2015, the Cabinet changed its permanency goal from reunification to adoption. Thereafter, on September 29, 2015, the Cabinet filed a petition for involuntary termination of parental rights. The trial court appointed a guardian ad litem for the child and counsel for both parents. Father was constructively served and had actual notice of the proceeding. The Cabinet attempted constructive service on Mother, but could not confirm that she received notice of the proceeding.
The matter came before the court for an evidentiary hearing on February 19, 2016. Neither parent was present, but both were represented by appointed counsel. At the completion of the hearing, the trial court entered findings of fact, conclusions of law, and a separate order terminating their parental rights. Father filed a motion to vacate the judgment, which was denied. He now appeals from the order terminating his parental rights.
Father does not contest the trial court's findings in the termination order. However, he argues that the DNA proceedings were deficient because the trial court failed to give preference to available and qualified relatives of the child prior to granting temporary custody to the Cabinet, as required by KRS 620.090. The Cabinet points out that Father did not raise this issue before the trial court. As a reviewing Court, our consideration is limited to arguments raised in the trial court. Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011).
Kentucky Revised Statutes.
Even if the argument were preserved, the record clearly refutes Father's contention. Father cites to Baker v. Webb, 127 S.W.3d 622 (Ky. 2004), in which the Supreme Court of Kentucky overturned an adoption proceeding after the second cousins of the adopted minor, who had failed to file a pleading with their motion for intervention, were denied intervention in the adoption proceeding. Specifically, the Court held that KRS 620.090 and the Cabinet's regulations created a strong preference for relative placement in adoption proceedings. Id. at 625. Based on the Cabinet's failure to comply with this requirement, the Court ordered that the cousins be permitted to intervene in the adoption proceeding. Id. at 625-26.
We do not read Baker v. Webb as allowing a parent to use the Cabinet's failure to comply with KRS 620.090 as a defense to termination of his parental rights. In addition, Father admits that he did not provide the names of any relatives with whom the child could be placed. The Cabinet's social worker, Bambi Baldridge, testified that Father declined to provide any names because he wanted to be reunified with the child himself. While the Cabinet was aware that the child had relatives in California, no relatives came forward seeking custody of the child. The Cabinet has no duty to endlessly search for unknown possible relatives. P.W. v. Cabinet for Health & Family Servs., 417 S.W.3d 758, 761 (Ky. App. 2013).
The trial court made detailed findings of fact and conclusions of law finding that termination of parental rights was in the best interests of the child under the standards set out in KRS 625.090. We review the trial court's findings for clear error. See M.E.C. v. Com., Cabinet for Health & Family Servs., 254 S.W.3d 846, 851 (Ky. App. 2008). See also CR 52.01. In the absence of any allegation of error concerning those findings, we decline to address the matter further.
Kentucky Rules of Civil Procedure. --------
Accordingly, we affirm the order of the Fayette Family Court terminating Father's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph h. Dahlman
Lexington, Kentucky BRIEF FOR APPELLEE: Jerry M. Lovitt
Regional Counsel, Bluegrass Fayette
Region
Cabinet for Health & Family Services
Lexington, Kentucky