Opinion
NO. 2017-CA-000773-ME
06-07-2019
D.J.V. APPELLANT v. G.W.D., S.A.D. AND M.R.V., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Marcus D. Gale Florence, Kentucky BRIEF FOR APPELLANT: D.J.V., pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Gretta Hoffman Walker Florence, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 16-AD-00055 OPINION
AFFIRMING
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BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES. THOMPSON, K., JUDGE: D.J.V. (father), father of M.R.V. (child), appeals from Boone Family Court's findings of fact and conclusions of law terminating father's parental rights to child and the judgment of adoption of child by G.W.D. (grandmother) and S.A.D. (grandfather) (collectively grandparents). Father argues he received ineffective assistance of counsel, it was improper for his rights to be terminated because he could still enjoy visitation with child while incarcerated and it was not in child's best interest for his parental rights to be terminated and for her to be adopted. As the standards for termination and adoption were satisfied, we affirm.
Child was born to father and M.H. (mother) in February 2014. Child lived with father, mother and older half-siblings until May 2017, when child was removed from father's and mother's care by the Cabinet for Health and Family Services based on abuse and neglect and placed in the temporary custody of grandparents.
On June 5, 2015, mother died. Father was subsequently indicted for mother's murder (domestic violence), tampering with physical evidence and falsely reporting an incident. Father subsequently pled guilty to the reduced charge of first-degree manslaughter and the other counts as charged. On September 2, 2016, he was convicted and sentenced to eighteen-years' incarceration for manslaughter and five years on the tampering charge to be served consecutively for a total of twenty-three years' incarceration.
Grandparents, who received custody of child, filed a petition for adoption in July 2016, which was subsequently amended to add a petition for termination of father's parental rights.
At the termination trial, father was represented by counsel and participated via telephone. The family court heard testimony from grandmother, Erin Heis (a social worker for the Cabinet), father and P.V. (paternal grandmother).
Grandmother testified to incidents regarding father's conduct toward mother and child that she observed which made her believe that child was being neglected or abused by father. She testified that on or about October 5, 2014, after being told by child's brother that father was beating mother, drinking and drove away with child, grandmother went to their home. Grandmother testified mother appeared intoxicated, had black eyes and there was blood everywhere. Grandmother saw in their home a scale, tin cup with money, a container with marijuana residue, a handgun and shells.
Grandmother testified she saw father return home from driving with child and father appeared to be intoxicated. Grandmother testified she tried to persuade father to give her child. Father responded by threatening to leave again with child and grabbing a shotgun and threatening grandmother with it. Grandmother went to her van and called 911; as she was backing out, father threw his gun in his truck, picked up a paver stone and threw it at her van. She drove down the street and parked nearby and father came after her in his truck, got out and began beating on the van, but left and drove away before the police arrived. Grandmother testified the police later arrested father for DUI.
Grandmother testified that on May 5, 2015, she went to father's and mother's home to drop off child's brother, whom she picked up from a school field trip after no one came to get him. When grandmother arrived at father's and mother's home, she went inside to find father or mother. Grandmother testified she could not find father, but believed he was at home because his truck was in the driveway and he was on house arrest. She found mother asleep in bed and child (who was about fifteen months old) and child's brother (who was seven years old) unsupervised.
Grandmother testified that around noon on or about May 17, 2015, she went to check on mother and her family after she was not able to contact mother or father. Grandmother testified that when she arrived, music was blaring loudly and the children were alone in the house without food and wearing soiled clothing. She testified child's sister told grandmother that she had not seen her parents since that morning. Grandmother testified she found mother asleep in a hammock outside the house with two black eyes and a mark across her nose; grandmother was unable to wake mother after pulling her head up three times. She found father in the basement, naked, in a fetal position and non-responsive. Grandmother testified she believed both father and mother were intoxicated. She took the children and called the police. Grandmother testified after she reported the incident the Cabinet filed an emergency custody order and child was placed with her.
The family court took judicial notice of father's convictions in Boone County and received certified copies of father's convictions in Kenton County. Father's convictions included manslaughter first, assault fourth, harassment, tampering with evidence, filing a false report, three DUIs, driving on a suspended license and carrying a concealed weapon. The family court found father was currently serving a sentence of twenty-three years for the charges regarding the death of mother, who died from severe head trauma.
Erin Heis, a Cabinet social worker, testified the Cabinet's reports about father all related to spouse/partner abuse and neglect of children. The first report in 2011 was for abuse of mother and involved father banging mother's head into the ground multiple times causing her to have black eyes, though mother stated she fell down the stairs. The finding was "unable to locate" father.
Heis testified the second report in 2011 was derived from child's brother reporting there was domestic violence in the home. During the investigation, mother was observed to have black eyes but mother again denied abuse. The finding was "unable to locate" father.
Heis testified that in 2014, the Cabinet substantiated neglect against father after he drove drunk with child. She testified that during the investigation it was observed there were firearms in the home, there was blood throughout the kitchen and there were cuts on mother's head and nose. The investigation also resulted in a finding of neglect regarding child's sister.
Heis testified that in February 2015, the Cabinet substantiated a neglect claim after child's brother reported he was afraid to be in the home because father and mother were fighting. Ultimately, the Cabinet determined that services were not needed after mother's death and father's incarceration.
Heis testified that at the disposition hearing in the juvenile matter in September 2015, father was present and represented by counsel. She testified the Cabinet recommended various services for father but the Cabinet never received any documentation of compliance.
Heis testified she met with father at the Boone County Jail in November 2016. Father refused to speak with her without an attorney, told her the Cabinet had ruined his life and took on a very aggressive stance, clenching his fists and leaning forward, causing Heis to be afraid for her safety. She tried to schedule a new meeting with father and father's attorney but a time was never worked out.
Heis testified she has met with grandparents and observed child with them. She testified grandparents use appropriate discipline, are very nurturing, have an appropriate home and child calls them "Mom" and "Dad." Heis recommended termination of father's parental rights and adoption by grandparents.
Father testified and provided alternative accounts for grandmother's testimony about the incident regarding drunk driving with child and child being left unsupervised while mother was sleeping. He did not provide an alternative explanation for the incident in which grandmother discovered mother and father unresponsive which ended in the removal of child.
Father testified that regarding the incident involving drunk driving with child, he and mother had gone out leaving child's brother to babysit and while they were gone child's brother drank most of a bottle of Jack Daniels and was shooting firearms in the backyard; when they returned child's brother pushed mother down causing her face to hit the ground. Father claimed he was trying to leave with child because mother was intoxicated and out of control. Father testified that the incident in which grandmother found mother sleeping and not tending to children, he must have been out of the house driving mother's car and this must have been before he was placed on home incarceration for his DUI.
Father testified before his incarceration that he supported mother and children as a manager of an internet gaming room. Father denied selling drugs but admitted to using marijuana.
Father testified child recognized him as "Dad" during visitation when he was permitted visitation. He testified he wanted to continue to be her father and for grandparents to be her grandparents rather than become her parents and it would be more appropriate for child's familial relationships to continue to be the same, rather than for child to become an aunt to her siblings and no longer have a legal relationship with his side of the family.
Father claimed he pled guilty to manslaughter not because he was guilty, but because he was facing life in prison and was offered eighteen years for manslaughter and five for tampering with evidence and believed he would likely be paroled in thirteen years. He testified mother's death was a terrible accident and he wanted to be reunited with child. He asked that the family court award grandparents full custody or allow paternal grandmother to share in custody of child until he could be reunited with child following his release.
Father's guilty plea was not entered into evidence. However, there is no indication that father's guilty plea was an Alford plea, so it appears that father would have acknowledged his guilt as part of his plea. See Toppass v. Commonwealth, 80 S.W.3d 795, 796 n.1 (Ky.App. 2002) ("A defendant entering an Alford plea declines to acknowledge guilt, but admits that the Commonwealth can present strong evidence of guilt.").
Father denied being under any obligation to complete the Cabinet's recommendations and stated he could not get any services while at the Boone County Jail because he was in maximum security. Father admitted that although he receives money from paternal grandmother, he did not use any of it to support child. He testified he did not believe he was under an obligation to pay child support.
Paternal grandmother testified she took child to see father in jail when father was allowed to see child. She testified child recognized him as "Daddy," gave him high fives through the glass separating them, blew him kisses and said, "love you Daddy," though the last statement may have been prompted by paternal grandmother.
Paternal grandmother testified she visited child's home with father and mother three times between October 2014 and March 2015; she testified at those times the home appeared suitable and food was available. Paternal grandmother testified there was no indication of any problem except she observed mother to have black eyes during one visit. Paternal grandmother admitted that all her visits to child's home were planned in advance and she never reported mother's black eyes to authorities or grandparents.
Paternal grandmother testified she knew about father's multiple DUIs, that he has a bad temper, yells a lot and can be verbally abusive but she denied knowing that he was physically abusive. She admitted she was concerned about his temperament.
Paternal grandmother testified she never saw father intoxicated around the children or any physical abuse of the children by father but admitted she was not in child's home very often. She thought father was doing well with parenting until he began drinking heavily and did not know about his parenting problems until grandmother found father and mother passed out. She knew father used marijuana and used to have a problem with crack.
The family court made the following findings: Father was incarcerated for acts he committed and would not be released for at least thirteen years. Father received gifts of money from his mother while incarcerated but did not use any of that money to support child.
Based upon the testimony of grandmother, the family court found that child was abused or neglected by father because father:
inflicted physical or emotion injury to the child by other than accidental means; has engaged in a pattern of conduct that renders him incapable of caring for the immediate and ongoing needs of the child; continuously or repeatedly failed to provide essential parental care and protection for the child, considering the child's age; has abandoned the child; does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being; and, has failed 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.
The family court found pursuant to the testimony of grandmother that there was clear and convincing evidence that father:
abandoned the child for a period of not less than ninety (90) days; . . . 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 child and there is no reasonable expectation of improvement in parental care and protection considering the age of the child; and . . . 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[.]
The family court found reasonable efforts to preserve or reunify the family were inconsistent with the best interests of child and the child's permanency plan. The family court found by clear and convincing evidence, that it would be in the best interest of child for the parental rights of father to be terminated, explaining as follows:
[father] failed to make any parental efforts or adjustments to make it in the child's best interest to return to him due to his failure to work the Cabinet's plan for him; . . . child's welfare has a great chance for improvement if [father's] rights are terminated given [the grandparents'] bond with the child and the nurturing environment [they] have created for the child; and . . . [father] failed to contribute financially to the . . . child even [in what father was] capable of doing in that when [paternal grandmother] gave him money he did not pass any on to the child.
The family court found that adoption would be in child's best interest, finding grandparents are of good moral character, reputable standing in the community and are able to properly maintain and educate child. The family court also found that the guardian ad litem recommended the adoption and the Cabinet recommended termination of father's rights and adoption of child by grandparents.
The family court then terminated father's parental rights and granted the grandparents a judgment of adoption.
Father appealed. Because his counsel could find no meritorious grounds for an appeal, counsel filed an Anders brief. Father chose to file his own pro se brief.
Although this was a civil action for adoption, because father did not consent, it was also a proceeding for the termination of his parental rights. C.M.C. v. A.L.W., 180 S.W.3d 485, 489 (Ky.App. 2005). Kentucky Revised Statutes (KRS) 199.500(4) provides that "an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child."
Whether termination is appropriate depends upon whether the statutory requirements contained in KRS 625.090 are met.
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a three-part test. First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).B.E.K. v. Cabinet for Health & Family Servs., 487 S.W.3d 457, 464 (Ky.App. 2016). KRS 199.502(1), which sets out when an adoption can take place without the consent of a child's biological living parents, contains identical language to KRS 625.090(2).
Because the family court has wide discretion in deciding to terminate parental rights, "our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence." Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Counsel appropriately followed the procedure set out in A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361, 371-72 (Ky.App. 2012), regarding filing an Anders brief. In our independent review of the record, we agree that the family court appropriately found: (1) child was neglected or abused pursuant to KRS 600.020(1); (2) grounds for termination were present pursuant to KRS 199.502(1)(a), (e) and (g) and KRS 625.090(2)(a), (e) and (g); and (3) it was in best interest of child that termination take place pursuant to KRS 625.090(3). However, we briefly review the grounds father raised to explain why the family court's decision was proper.
Father argues that his counsel was ineffective because he allowed false testimony to be presented, failed to object and failed to present his side of the case and present the facts. Father argues his counsel failed to ask him or grandparents any questions during the termination trial, present any kind of case for him and did not even know his name.
Father is correct that he was entitled to effective representation by counsel. As explained in T.W. v. Cabinet for Health & Family Servs., 484 S.W.3d 302, 306 (Ky.App. 2016) (quoting Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky.App. 2008)), "because this Commonwealth recognizes that due process and statutory law require counsel during critical stages of a termination proceeding, '[i]t is logical that the parent's right to counsel includes effective representation.'" See A.C., 362 S.W.3d at 366-67.
However, this right is not necessarily as extensive as the right to counsel in a criminal proceeding. In Z.T., 258 S.W.3d. at 36, the Court held "if counsel's errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective." The Court noted that such a "burden is onerous." Id. at 37. As was the case in Z.T., father's general allegations of counsel's errors or deficiencies in performance are insufficient to establish he was deprived of due process. Id.
Father's specific arguments about how his counsel was ineffective are refuted upon our review of the video record. Father's assertion that counsel did not question grandparents or him during the trial are contradicted by the video record. Counsel questioned grandmother, father and all of the witnesses. Father was permitted to testify and present his side of the story. In fact, counsel even asked father if there was anything else he wanted the court to know and father was permitted to give a long statement about why he did not think it would be in child's best interest to be adopted by grandparents. Counsel referred to father by name and argued why termination was not appropriate, but counsel could not make the facts more favorable than they were or force the family court to rule in father's favor.
Grandfather did not testify. Therefore, counsel could not question grandfather without calling him as a hostile witness. Father does not argue that his counsel was ineffective for failing to call grandfather as a witness.
As explained in Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984), "a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." While father argues that counsel permitted false testimony to be presented, counsel is not a fact finder and cannot keep witnesses from testifying. In our adversarial system, each side is allowed to present its side of the story and it is for the family court to decide issues of credibility. Objections are only appropriate when evidentiary rules are arguably being violated; grandmother was properly allowed to testify about what she personally observed, and her lay witness opinions were properly based on her personal observations. Father, likewise, was properly permitted to present his version of the events at issue. As the fact finder, it was the family court's role to determine who was more credible.
The family court found grandmother to be credible and her testimony was sufficient to establish each ground for termination. Her testimony was consistent with that of all the other witnesses except father. Father's unhappiness with the ultimate result does not mean that his counsel was ineffective.
Father argues it was improper for his rights to be terminated because he could still enjoy visitation with child even while incarcerated, grandparents wrongfully withheld visitation from him and it was improper to terminate his parental right to child only because he was incarcerated.
Father is correct that normally a non-custodial parent is entitled to reasonable visitation rights "unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health." KRS 403.320(1). However, KRS 403.325(1) provides as follows:
Notwithstanding the provisions of KRS 403.320, if a parent of a child is convicted of murder or manslaughter in the first degree of the other parent, a court shall not grant the convicted parent visitation rights with respect to that child unless the court, through a hearing, determines that visitation is in the child's best interest.Once father was convicted of the manslaughter of mother, father lost the right to visitation with child. Father could have sought visitation but instead took no action. Although father blames grandparents for the lack of visitation, it was his own actions that deprived him of visitation with child and a termination trial is not the proper forum to complain about lack of visitation.
Father is correct that "[i]ncarceration alone can never be construed as abandonment as a matter of law[,]" however, father neglects to consider the accompanying precept that "absence, voluntary or court-imposed, may be a factor to consider in determining whether [a child has] been neglected[.]" J.H. v. Cabinet for Human Res., 704 S.W.2d 661, 663-64 (Ky.App. 1985). A parent may neglect a child by pursuing a "criminal lifestyle" which is "incompatible with parenting." Id. at 664.
The family court specifically found that father neglected child not by being unavailable due to incarceration but based on acts he committed prior to being incarcerated. Child was living under intolerable conditions because of father's actions even before mother's death and father's subsequent incarceration.
The substantial length of father's sentence and how much time he must serve while incarcerated before he is eligible for parole is also highly significant and appropriate for consideration. Father was convicted of manslaughter in the first degree which is a Class B felony. KRS 507.030(2). Pursuant to KRS 439.3401(1)(c), he is classified as a violent offender because he committed "[a] Class B felony involving the death of the victim[.]" As a consequence of being a violent offender, he must serve 85% of his eighteen year manslaughter sentence pursuant to KRS 439.3401(3)(a).
The family court specifically found father would be unavailable to parent child for at least thirteen years. It is the natural consequence of father's specific crime which resulted in father's lengthy incarceration and subsequent unavailability to serve as child's parent.
Furthermore, father's actions after he was incarcerated more than amply supported the family court's findings that three grounds for termination were established pursuant to KRS 199.502(1)(a), (e) and (g) and KRS 625.090(2)(a), (e) and (g). Father abandoned child pursuant to subsection (a) by failing to seek any contact with child after his conviction. Father failed to provide essential care for child pursuant to subsection (e) and failed to provide essential items for child pursuant to subsection (g) by committing a crime which eliminated any opportunity to function as a parent for many years, failing to make even a token payment toward child's support and failing to take any action to work the Cabinet's case plan or take any actions on his own to improve himself as a parent or deal with any of the issues which led to his neglect and abuse of child. While father is correct that financial inability to pay child support cannot be held against him, the evidence fully supported the family court's finding that paternal grandmother did gift father some funds and father did not spend so much as one cent to support child. The only evidence was that father was combative with Cabinet personnel and showed no willingness to acknowledge his failures and try to work on himself.
The family court found that reasonable efforts need not be exercised under the circumstances and we agree that assessment was appropriate pursuant to KRS 610.127(8).
Additionally, there could be no reasonable expectation of improvement in father's ability to parent as relevant to (e) and (g) while he remains incarcerated and unwilling to try to work on improving his fitness to parent. Even if father were doing so to the best of his ability while incarcerated, he will continue to be incapable of rendering appropriate parental care in the foreseeable future while he continues to be incarcerated. Compare with M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 854-55 (Ky.App. 2008). Therefore, the family court appropriately found grounds for terminating father's parental rights.
Finally, father argues it was not in child's best interest for his parental rights to be terminated and for her to be adopted.
As the prior discussion indicates, father is not an appropriate person to raise child based on his prior neglect and abuse of child and what he was convicted of doing to mother, his failure to do anything to try to improve himself or strengthen his ability to parent, and the length of the sentence that he must serve. While father has not been functioning as a father, grandparents have been fully caring for child's needs. The family court's findings that father has failed to make any efforts or adjustments to make it in child's best interest to return to him is fully supported by the record. Likewise, it is undisputed that child has been well cared for by grandparents, who are bonded with child, have created a nurturing environment for her, are of good moral character, have a reputable standing in the community and are able to properly maintain and educate child.
Although father argues that adoption is not in child's best interest because it will preclude child from receiving mother's social security death benefits, there is no indication that grandparents cannot support child.
Father would have child continue in limbo for perhaps her entire childhood on the chance that she might wish to be reunited with him after he is paroled. The only person who would benefit from this would be father and not child. Under the circumstances we will not gainsay the family court that it is in child's best interest for father's parental rights to be terminated and to be adopted by grandparents.
We very much doubt that most children would want to be reunited with a parent who caused the death of their other parent in such a manner. --------
Accordingly, we affirm the Boone Family Court's termination of father's parental rights and judgment of adoption.
ALL CONCUR. BRIEF FOR APPELLANT: Marcus D. Gale
Florence, Kentucky BRIEF FOR APPELLANT: D.J.V., pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Gretta Hoffman Walker
Florence, Kentucky