Opinion
NO. 2019-CA-001695-ME NO. 2019-CA-001696-ME NO. 2019-CA-001697-ME
04-24-2020
C.R. AND M.R. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND L.I.R., A MINOR CHILD APPELLEES AND C.R. AND M.R. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND C.R.R., A MINOR CHILD APPELLEES AND C.R. AND M.R. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES AND B.W.R., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANTS: Christopher Reed Stanford, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 19-AD-00009 APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 19-AD-00008 APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 19-AD-00010 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND JONES, JUDGES; BUCKINGHAM, SPECIAL JUDGE. COMBS, JUDGE: Appellants, C.R. (Father) and M.R. (Mother), appeal from orders terminating their parental rights to their three minor children: C.R.R., a female, born in 2009 (No. 19-AD-00008); L.I.R., a male, born in 2013 (No. 19-AD-00009); and B.W.R., a male, born in 2014 (No. 19-AD-00010).
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
On April 4, 2019, the Cabinet filed petitions for the involuntary termination of parental rights of the three children at issue in this appeal. The cases were tried on September 6, 2019. Each child was before the court through service on a guardian ad litem, Jonathan Baker, who appeared on the behalf of each child. Father was present and was represented by counsel; Mother was also present and was represented by counsel. Elaine Mahaffey, recently retired, was the social worker assigned to the case by the Cabinet. She testified on behalf of the Cabinet. Mother and Father also testified.
On October 5, 2019, the court entered detailed findings of fact and conclusions of law along with orders terminating parental rights and orders of judgment as to each of the children.
In its findings of fact, the trial court summarized the testimony presented. It found that each child has previously been adjudged to be a neglected child on March 7, 2016, by the Lincoln County Family Court. It found that each child is an abused or neglected child as defined in KRS 600.020(1)(a)4,8, and 9.
Kentucky Revised Statutes.
The court found that termination of parental rights was in the best interest of each of the children as follows:
1. Prior to the filing of this petition, reasonable efforts have been made by the Cabinet to reunite the child with his [or her] mother and father, but those efforts have been unsuccessful.As part of its best-interest analysis for each child, the court further found that:
2. The Cabinet for Health and Family Services has offered or provided all reasonable services to the family, including case planning, referrals to numerous community partners, and supervised visitation.
3. Despite the availability of these services [Mother] and [Father] have failed, refused or have been unable to make sufficient effort and adjustments in their circumstances, conduct or conditions to make it in the interest to return [the child] to their home within a reasonable period of time, considering the age of the child.
4. [C.R.R.] is currently in an adoptive home. She has a strong bond with her adoptive parents and is placed with her biological brothers. She has a number of medical needs, including constant speech and physical therapy. She has a chromosomal issue, which will only lead to more apparent delays as she ages. She will most likely need a guardian for the rest of her life. She struggles socially with her peers and the foster family have been working with her to help her develop relationships with others. She has severe behavioral issues, including sexually acting out behaviors, urinating in dresser drawers, and severe nightmares. She requires constant structure in her environment. Despite her issues, her needs are being met in her foster placement and she is thriving.
4. [L.I.R.] is currently in an adoptive home. He has a strong bond with his adoptive parents and is placed with her [sic] biological siblings[.] He has a number
of medical needs, including constant speech and physical therapy. He has a chromosomal issue, which will only lead to more apparent delays as he ages. He will most likely need a guardian for the rest of his life. He has vision issues, which are being addressed. He has exhibited sexually acting out behaviors, and requires constant supervision. He struggled [sic] with OCD and requires a clean and orderly environment, as well as a very structured daily routine.The trial court also found that grounds exist for termination of parental rights of Mother and Father as to each of the children pursuant to KRS 625.090(2)(e),(g), and (j).
4. [B.W.R.] is currently in an adoptive home. He has a strong bond with his adoptive parents and is placed with her [sic] biological siblings. He has a number of needs and struggles with serious OCD and anger issues. He needs a neat, orderly home with a daily routine. He struggles to play with other children and struggles with separation anxiety. He also has sexually acted out in the past and requires supervision.
KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). On appeal, our standard of review is to determine whether the findings of the trial court are clearly erroneous. CR 52.01.
The trial court has a great deal of discretion in an involuntary termination of parental rights action. . . . [F]indings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. 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.C.A.W. v. Cabinet For Health & Family Services, Commonwealth, 391 S.W.3d 400, 403 (Ky. App. 2013) (citations and internal quotation marks omitted).
Kentucky Rules of Civil Procedure.
As a preliminary matter, we address the Cabinet's pending motion. On December 23, 2019, the Cabinet filed an objection and motion to strike appellants' brief for failure to comply with the substantial requirements of CR 76.12, contending that the brief fails to provide citations to the record. Additionally, the Cabinet correctly notes that Appellants cite testimony in their brief which is not in evidence - namely, testimony from a Jess Farmer, who did not testify at the trial, and testimony from a goal change hearing. The Cabinet explains that although the underlying juvenile records were introduced as evidence at trial, the video recordings from the goal change hearings were not included.
CR 76.12(8)(a) provides that "[a] brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12." --------
On January 10, 2020, this Court entered an order reciting that no response to the Cabinet's motion had been filed and passed the motion to this merits panel.
CR 76.12(c) mandates that:
The organization and contents of the appellant's brief shall be as follows:
. . .
(iv) A "STATEMENT OF THE CASE" consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.
(v) An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
We agree that Appellants' brief is grievously deficient. It contains not one reference to the record. Although the Statement of the Case does contain a brief summary of procedural events, it provides no facts to apprise us of the underlying circumstances which ultimately led to the termination of parental rights. They are outlined in the trial court's findings and in the Cabinet's brief, and we need not repeat them here. But again, they are wholly absent from the Appellants' brief. Moreover, the Argument does not contain any preservation statement. Regardless of these serious deficiencies, we decline to strike the brief because this case involves the termination of parental rights. Another panel of this Court recently explained in J.A. v. Cabinet for Health and Family Services, No. 2014-CA-001962-ME, 2016 WL 4098731, at *2 (Ky. App. July 29, 2016), as follows:
[A]s a general rule, this Court will not strike a deficient brief in matters involving termination of parental rights or custody of a child.
Furthermore, KRS 625.090 requires the trial court to make specific findings prior to granting a petition to terminate parental rights. So long as the trial court makes the findings required by the statute, this Court will not disturb those findings unless no substantial evidence exists on the record. M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008), citing V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). However, it is not the job of an appellate court to search the record for evidence in support of Father's undeveloped argument. Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011).
Additionally, we note that: "[i]f evidence is missing from the record, we must assume that the trial court's decision is supported by the record." Ford v. Ford, 578 S.W.3d 356, 367 (Ky. App. 2019) (citation omitted). Therefore, by separate order, we DENY the motion to strike Appellants' brief.
With the benefit of that reasoning in mind, we now consider the substantive issues before us.
Appellants' first argument is captioned, "Abuse or Neglect." Appellants contend that they did not engage in any specific act with the intent to abuse or neglect their children, citing K.S. v. Cabinet for Health and Family Services, No. 2018-CA-000088-ME as controlling on this point. But the Cabinet correctly notes that K.S. v. Cabinet was reversed in Cabinet for Health and Family Services v. K.S., 585 S.W.3d 202, 213 (Ky. 2019) ("We conclude that the Court of Appeals erred by applying an intent requirement to the statutory provisions invoked by the family court in this case to terminate K.S.'s rights.").
In the cases before us, the trial court found that each child had previously been adjudged to be a neglected child by the Lincoln County Family Court. Certified copies of the underlying juvenile records were admitted into evidence at trial. Thus, the first prong of the tripartite test has been satisfied. KRS 625.090(1)(a)1 ("The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction[.]").
Appellants' next argument is captioned, "Reasonably Foreseeable Improvement." Appellants argue that the court based its opinion on KRS 625.090(2)(e), (g), and (j) and that "critical to both" subsections (e) and (g) "is that there must not be a reasonable expectation for improvement in the foreseeable future." KRS 625.090(2) is the third prong of the tripartite test and provides in relevant part:
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:
. . .
(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;
. . .
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative
months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]
Appellants contend that under subsections (e) and (g), there must be no reasonable expectation for improvement in the future. They argue that the court erred in finding that there was no reasonable expectation for future improvement, noting that the finding "is contrary to the testimony of Elaine Mahaffey and Jess Farmer." However, Jess Farmer did not testify at trial; and there is no citation to the record with respect to Ms. Mahaffey's testimony. "Video tape recordings require significantly more time to review than written transcripts and, given the fact that our courts have consistently refused to search written records in cases in which the briefs have failed to make reference to the record, we likewise decline to do so here." Robbins v. Robbins, 849 S.W.2d 571, 572 (Ky. App. 1993). KRS 625.090(2) requires the existence of only one ground. By the time the petitions were filed on April 9, 2019, the children had been in foster care for fifteen cumulative months out of the forty-eight preceding months. That fact satisfies KRS 625.090(2)(j) and constitutes the third prong of the tripartite test.
Appellants' remaining argument is captioned, "Cabinet must provide services based upon individuals." Appellants contend that the Cabinet, "as a state actor, has an obligation to comply with the requirements of the American's [sic] with Disabilities Act and Rehabilitation Act." Or as the Cabinet more clearly explains, Appellants' argument is that the Cabinet failed to provide a case plan tailored to their disabilities resulting in a failure to provide reasonable efforts. In its statement of the case, the Cabinet asserts that "[w]hile Appellants try to make this case about their IQ level, the real issue revolves around their parental attitude and lack of compliance with their case plans."
There is no preservation statement at the beginning of Appellants' argument. Appellants again erroneously rely upon K.S. v. Cabinet, which, as noted above, was reversed. Appellants maintain that some of our sister states have begun requiring agencies equivalent to the Cabinet to tailor services based upon the parties' disabilities. They attach what appears to be a Letter of Findings dated January 29, 2015, from an investigation of the Massachusetts Department of Children and Family Services by the U.S. Departments of Justice and Health and Human Services. Appellants provide no other case authority in support of their argument -- nor any references to the record. They note testimony from the goal change hearing, which, according to the Cabinet, is not of record. Thus, there is nothing for us to consider. "It is not our function as an appellate court to research and construct a party's legal arguments, and we decline to do so here." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
The remaining prong of the tripartite test is the best interest of the child. KRS 625.090(3) requires the trial court to consider the following enumerated factors in determining the best interest of the child.
(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.
In reviewing the determination of the best interest of a child by a family court, we must apply the standard of abuse of discretion. "Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained." D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 837 (Ky. App. 2011) (citation omitted). As set forth in our review, the trial court carefully conducted a best-interest analysis as to each child. It properly addressed the applicable statutory factors, and its findings are amply supported by the record. We find no abuse of discretion.
Accordingly, we AFFIRM the orders of the Lincoln Family Court terminating parental rights in these three consolidated cases.
ALL CONCUR. BRIEF FOR APPELLANTS: Christopher Reed
Stanford, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky