Opinion
NO. 2013-CA-002137-ME NO. 2013-CA-002150-ME NO. 2013-CA-002138-ME NO. 2013-CA-002147-ME NO. 2013-CA-002148-ME NO. 2013-CA-002149-ME NO. 2014-CA-000042-ME
07-11-2014
D.A.N., SR. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND D.A.N., JR., INFANT APPELLEES AND D.A.N., SR. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.J.N., INFANT APPELLEES AND B.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.A.B., INFANT APPELLEES AND B.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND D.A.N., JR., INFANT APPELLEES B.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE B.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.J.N., INFANT APPELLEES D.A.N, SR. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.J.N., INFANT APPELLEES
BRIEF FOR APPELLANT, B.H. : William R. Adkins Williamstown, Kentucky BRIEF FOR APPELLANT, D.A.N., SR. Steven N. Howe Dry Ridge, Kentucky BRIEF FOR APPELLEES: Cynthia Kloeker Florence, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 12-AD-00019
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 12-AD-00020
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 12-AD-00018
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 12-AD-00019
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 12-AD-00020
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 12-AD-00021
OPINION
AFFIRMING
BEFORE: CAPERTON, JONES, AND MOORE, JUDGES. CAPERTON, JUDGE: Appellants, B.H. and D.A.N., Sr. appeal from the termination of parental rights to their three children; additionally, B.H. appeals the termination of her parental rights to her child with D.M. On appeal, counsel for mother has filed an Anders v. State of Cal., 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), brief, finding no error in the trial court's judgments and asking this Court to independently review the record for any possible error. Counsel requests permission to withdraw from representation for B.H. After our independent review of this matter we are in agreement with counsel that there is no basis warranting relief on appeal and, therefore, affirm the trial court in terminating B.H.'s parental rights. Counsel's motion to withdraw from representation of B.H. is hereby granted. D.A.N., Sr. argues that the court erred in terminating his parental rights. Finding no error, we affirm the termination of his parental rights.
D.M. consented to the termination of his parental rights and has thus not appealed said judgment.
We decline to address this matter any further.
The facts of this appeal were testified to at trial before the court on September 27, 2013. B.H. is the natural mother of the four children who are the subject of the involuntary termination actions filed in the Grant Circuit Court. The eldest was born in February 2005 and her father, D.M., did not contest the termination of his parental rights. D.A.N., Sr. is the natural father of B.H.'s other three children, born between December 2008 and January 2011. D.A.N., Sr. asserted to the trial court below that he resided with the family prior to March of 2011; D.A.N., Sr. and B.H. cohabitated in a trailer owned by B.H.'s mother and stepfather in Grant County beginning in 2006.
There was evidence presented to dispute the assertion that D.A.N., Sr. resided with his children. A paternity complaint for two of the children stated that D.A.N., Sr. did not live in the home in 2010 and 2011. The county attorney attempted to serve D.A.N., Sr. with the paternity complaint in Covington in August of 2010 and then in Dry Ridge in March of 2011.
On or about January 11, 2011, D.A.N., Sr. engaged in criminal conduct which led to a warrant for his arrest being issued for robbery in the first degree by the Kenton Circuit Court. Upon learning of the warrant issued for his arrest, D.A.N., Sr. left the home around March of 2011. He was arrested on March 25, 2011, in Kenton County. He remained incarcerated from March 25, 2011, and was sentenced on October 25, 2011. D.A.N., Sr. pled guilty to the amended charge of theft of a controlled substance and was sentenced to a three-year period of incarceration.
D.A.N., Sr. had prior criminal convictions: one for disorderly conduct and the other involving alcohol.
In May of 2011, shortly after D.A.N., Sr.'s arrest, the Cabinet opened its case regarding the family. The Cabinet opened an in-home case with B.H. due to allegations of drug abuse in the home. The Cabinet reported that the home was in deplorable condition; it was dirty and unkempt. Dirty diapers and old food were strewn around the house. The children were dirty and were behind in their immunizations. B.H. was overwhelmed with parenting four children. The Cabinet offered B.H. in-home services from May to July of 2011. The Cabinet offered her the Family Preservation program, a day care referral, and substance abuse and mental health assessment. B.H. completed the Family Preservation program; the program paid a $500 utility bill for B.H and attempted to assist her with learning parenting skills.
The referral was made in order for her to have time to clean the home and so she would not be overwhelmed with parenting.
On July 28, 2011, after completion of the Family Preservation program, the Cabinet and a deputy with the Grant County Sheriff's Office went to the home after receiving a report of abuse and neglect. Pictures were taken of the condition of the home and testimony was presented to the court regarding the state of the children on July 28, 2011. One child was very dirty; he was sticky and smelled of urine. His diaper was swollen due to being laden with urine. Dirty, wet, moldy clothing was lying in piles and in bags throughout the home. Wiring was exposed within the reach of the children. The children risked food poisoning by eating the old food on the table. There were dirty diapers lying on the kitchen table next to the spoiled, old food with flies over it. B.H. admitted to using valium which was not prescribed to her to deal with the children. Once one of the children was removed from his crib, he began banging his head on the floor, which B.H. allowed him to do until he stopped.
At least one child attempted to eat food left out while the Cabinet was there.
The children were removed and initially placed with a maternal grandfather and a maternal aunt on July 28, 2011; this placement did not last and the children entered foster care on August 2, 2011. The Grant District Court found these children to be abused or neglected children on January 3, 2012.
The children have had numerous difficulties which the foster parents have attempted to overcome with therapy. The children are doing better with the structure provided in foster care.
The Cabinet gave B.H. a case plan once the children entered foster care on August 2, 2011. She failed to complete said plan. B.H. sporadically saw her children; she stopped contacting the Cabinet social worker; and the last time B.H. saw her children was on September 2, 2012. In September of 2012, the Cabinet attempted to contact B.H. to no avail. B.H. was arrested on federal charges in 2013.
During this time, D.A.N., Sr. was incarcerated from March 2011 until he was paroled on March 7, 2012. While he was incarcerated, D.A.N., Sr. met with the Cabinet and a case plan was developed for him centered on his substance abuse, his lack of parenting due to the lifestyle choices he made, lack of stable housing, and questionable legal employment. When D.A.N., Sr. was paroled on March 7, 2012, he did not report to the halfway house in Louisville as he was required to do. Instead, he absconded and was arrested again on June 19, 2012, for the new offense of trafficking in methamphetamine; he was incarcerated again from June 19, 2012, until August 1, 2013. During the time he was not incarcerated, well over ninety days, D.A.N., Sr. did not have contact with either the Cabinet or his children. When he was released from prison on August 1, 2013, he again did not contact the Cabinet. Instead, the Cabinet learned he was out of prison when they went to remove his new wife's grandchildren from her care.
At the time of trial D.A.N., Sr. had failed to complete any service on his plan. He stated that he had called a phone number for parenting classes but decided he wanted to go to a different parenting class and had not called that number yet. The last time he saw his children was prior to their removal in July of 2011.
D.A.N., Sr. married his co-defendant in the methamphetamine conspiracy.
At trial, D.A.N., Sr. testified that during the period from June 19, 2012, until August 1, 2013, he worked as a handyman for his uncle while he also sold methamphetamine. D.A.N., Sr. testified that he has stable employment, working for the same uncle. No documentation was provided establishing that D.A.N., Sr. legally worked for his uncle. D.A.N., Sr. testified that a different uncle wanted custody of his children but that this uncle never contacted the Cabinet nor did he testify in court.
When asked about stable housing, D.A.N., Sr. testified that he intended to stay at the Race Street address; when reminded of his notice of eviction, he said he received it, but before the notice was posted he was looking for a bigger house. He testified that he and his wife were getting a house in Owenton; when questioned that his wife said the Owenton house fell through due to his having a felony conviction, he testified that they were looking at another house there.
After hearing the evidence, the court terminated the parental rights of B.H. and D.A.N., Sr. The court found that the children were abused and neglected.
The court entered a judgment terminating the parental rights of B.H. to her eldest child and then entered judgments terminating the parental rights of B.H. and D.A.N., Sr. to the three remaining children. The court entered corresponding findings of fact and conclusions of law with the termination of parental rights.
The court then made the following statutory findings: (1) that the parents had, for a period of not less than six months, continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the children and there was no reasonable expectation of improvement in parental care and protection considering the age of the child; (2) that the children were abandoned for a period of not less than ninety (90) days; (3) that the parents, for reasons other than poverty alone, continuously or repeatedly 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 there is no reasonable expectation of significant improvement in the parental conduct in the immediately foreseeable future, considering the age of the child; (4) that the children were 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; and (5) termination was in the best interest of the children. Additional facts will be discussed as necessary.
On appeal, D.A.N., Sr. argues: (1) the court erred in that there was insufficient evidence to support the findings of fact and conclusions of law terminating his parental rights; and (2) the court erred by failing to find that D.A.N., Sr. demonstrated by a preponderance of the evidence that the children will not be abused or neglected in the future. The Commonwealth disagrees and argues that there was sufficient evidence to support the court's findings and judgment terminating D.A.N., Sr.'s parental rights.
Prior to addressing the arguments of the parties on appeal, we note that considerable deference is given to the findings of the trial court in a termination of parental rights case, and the court has a great deal of discretion to determine whether a child fits within the abused or neglected category, and whether the abused or neglected condition warrants a termination of parental rights. Department of Human Resources v. Moore, 552 S.W.2d 673 (Ky. App. 1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in Kentucky Rules of Civil Procedure (CR) 52.01, based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
As set forth in Kentucky's termination statute, Kentucky Revised Statutes (KRS) 625.090, a court may involuntarily terminate parental rights if the court finds by clear and convincing evidence that a three-prong test has been met. First, the child must have been found to have been an abused or neglected child as defined by KRS 600.020, or the circuit court must find that the child's parent has been criminally convicted of abusing any child and that the abuse or neglect is likely to occur to the child that is the subject of the instant termination action if the parental rights are not terminated. KRS 625.090(1)(a). Secondly, the court must find that at least one of a number of specified grounds of parental unfitness exists. KRS 625.090(2). Finally, termination of parental rights must be in the child's best interest. KRS 625.090(1)(b).
KRS 625.090 sets forth:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(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;(2) 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:
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or(b) Termination would be in the best interest of the child.
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
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;
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
(a) Mental illness as defined by KRS 202A.011(9), or mental retardation 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;(4) If the child has been placed with the cabinet, the parent may present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.
(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.
(5) If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.
(6) Upon the 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.
KRS 600.020(1) sets forth the definition of an abused or neglected child:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when his parent, guardian, or other person exercising custodial control or supervision of the child:
(a) Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
(b) Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
(c) Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;
(d) Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
(e) Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
(f) Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
(g) Abandons or exploits the child;
(h) Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child; or
(i) Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months. . . .
In making such findings, the trial court has a great deal of discretion in an involuntary termination of parental rights action. M.P.S. v. Cab't for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Thus, the findings of the court below will not be disturbed unless no substantial evidence in the record exists to support its findings. Id. Moreover, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008).
Sub judice, the family court found that the requirements of KRS 625.090 were met and that termination of D.A.N., Sr.'s parental rights was in the best interest of the children. D.A.N., Sr. argues on appeal that (1) the court erred in that there was insufficient evidence to support the findings of fact and conclusions of law terminating his parental rights; and (2) the court erred by failing to find that D.A.N., Sr. demonstrated by a preponderance of the evidence that the children will not be abused or neglected in the future.
In support of these arguments, D.A.N., Sr. directs this Court to the testimony below that while he resided with the children, they were not neglected; thus, he argues they are unlikely to be neglected in the future. Moreover, it was due to his incarceration he could not complete his plan; that the court erred in finding that he abandoned his children for more than ninety days when he failed to utilize the time between incarcerations to establish contact with either them or the Cabinet; and that D.A.N., Sr. neglected his children by the lifestyle choices he made which resulted in his incarceration.
D.A.N., Sr. also alleges that he was not provided counsel initially as the Cabinet opened an investigation solely with B.H. D.A.N., Sr. has not asserted that his due process rights were violated; it is uncontroverted that the Cabinet informed D.A.N., Sr. while he was incarcerated of his plan which would prevent his loss of parental rights. At the termination of parental rights hearing D.A.N., Sr. was represented by counsel.
D.A.N., Sr. argues that the court incorrectly recited the date of his second arrest. While this may be the case, it ultimately has no bearing on our decision; there were still more than ninety days D.A.N., Sr. was out between incarcerations. As such, this was harmless error. See CR 61.01.
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The Commonwealth directs this Court to the ample evidence within the record that directly contradicts D.A.N., Sr.'s arguments; specifically, that D.A.N., Sr. had little contact with his children since he was incarcerated, that he did not contact them or the Cabinet between incarcerations, that he did not notify the Cabinet of the second time he was paroled, that he had made little progress on his case plan, and that his employment and housing were questionable.
As our courts have repeatedly held, clear and convincing proof does not necessarily mean uncontradicted proof. Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (Ky. App. 1934). 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. Id. It is not the province of this court to review the factual evidence in a termination action de novo, and we decline to do so in this instance.
Ultimately, the evidence submitted below was of a nature sufficient to support the decision of the court to terminate D.A.N., Sr.'s parental rights. Consequently, we affirm.
JONES, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT, B.H. : William R. Adkins
Williamstown, Kentucky
BRIEF FOR APPELLANT, D.A.N.,
SR.
Steven N. Howe
Dry Ridge, Kentucky
BRIEF FOR APPELLEES: Cynthia Kloeker
Florence, Kentucky