Opinion
NO. 2018-CA-000952-ME
03-29-2019
E.K.B. APPELLANT v. CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.J.A.B. (A MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT: Rene Heinrich Newport, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Abigail E. Voelker Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 15-AD-00059 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. KRAMER, JUDGE: E.K.B. (Father) appeals from the Campbell Family Court's order terminating his parental rights to M.J.A.B. (Child). After a careful review of the record and applicable law, we affirm.
This order also terminated the parental rights of Child's mother. Her appeal, enumerated as 2018-CA-000950-ME, is addressed in a separate opinion.
The Cabinet has been involved with this family for several years. Father and B.A.B. (Mother) have three children together. Father and Mother remain married, but have been separated and living apart since 1999, approximately five years before Child was born. Mother lives in the Northern Kentucky area, and Father resides in Cincinnati, Ohio. Their two oldest children had already reached the age of majority at the time of the instant termination proceedings.
Child was first removed from Mother's home in October 2006 when he was two years old. Of note, Child has never resided full time with Father and has not returned to his Mother's home since this removal. Thereafter, the Cabinet petitioned to terminate both parents' parental rights as to all three of their children in November 2008. The family court denied that petition and held that the Cabinet failed to prove that the children were abused and neglected by clear and convincing evidence. This Court affirmed that decision in October 2009. The family court did not return Child to either parent at that time; instead, it directed the Cabinet to create new case plans for Mother and Father.
Child's two older siblings were still minor children at the time the Cabinet petitioned for termination in 2008.
Commonwealth, Cabinet for Health and Family Servs. v. B.B., No. 2009-CA-000448-ME, 2009 WL 3321414 (Ky. App. Oct. 16, 2009).
In that case plan, Father was ordered to: (1) obtain and maintain full-time (forty hours per week) employment; (2) provide proof of child support payments; (3) obtain suitable housing; (4) establish financial independence; (5) complete parenting classes; (5) complete family therapy; (6) complete a psychological assessment; and (7) identify schools, doctors, and therapists for Child in Ohio. Of those tasks, Father only completed one. He identified a school Child could attend if he moved in with Father. Father did pay some child support; however, he never consistently provided proof as required. And while he attended family therapy in the time period leading up to the termination hearing, Father did not begin the therapy until approximately six years after it was ordered. Identifying a therapist was especially important because Child has significant mental health issues.
This was added to the case plan in approximately 2011.
The Cabinet petitioned to terminate Father's parental rights in October 2015. At the time the petition was filed, Child had been in the custody of the Cabinet, or his foster family, for more than nine consecutive years. A termination hearing began in September 2017 but was continued until March 2018. At the hearing, the parties made several stipulations and the family court heard testimony from: (1) three of Child's social workers; (2) Child's and Father's family therapist; and (3) Father. A forensic psychological report from Dr. Ed Connor, Psy.D., was also entered into the record. Ultimately, the family court entered an order terminating Father's parental rights in May 2018. This appeal followed. Further facts will be discussed as they become relevant.
A deficiency order was entered by this Court regarding Father's brief on September 5, 2018. Father's brief was deficient because the order being appealed from was not in the appendix, and the family court judge was not notated in the certificate of service. These are both requirements under CR 76.12. On September 17, 2018, counsel for Father tendered a new brief with the family court judge notated in the certificate of service. However, Father never corrected the issue regarding the order in the appendix. Currently, a deficient brief is still before this Court. We caution Father's counsel that full compliance with an order of this Court is mandatory.
On appeal, Father argues that: (1) the family court's finding that Child was abused or neglected was not supported by substantial evidence; (2) the family court's finding that at least one ground of parental unfitness under KRS 625.090(2) was present was not supported by substantial evidence; and (3) the family court's decision was barred by the law of the case doctrine.
Kentucky Revised Statute.
When reviewing a family court's termination of parental rights, this Court applies the clearly erroneous standard of review under CR 52.01. The family court's factual findings must be upheld if they are supported by substantial evidence in the record. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998).
Kentucky Rule of Civil Procedure.
Involuntary termination proceedings are governed by KRS 625.090, which provides that a family court may involuntarily terminate parental rights only if the court finds by clear and convincing evidence that a three-pronged test has been met. First, Child must be deemed abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination of parental rights must be in Child's best interest. KRS 625.090(1)(c). Third, the court must also find at least one ground of parental unfitness listed in the statute. KRS 625.090(2). Father does not dispute the family court's best-interest finding. Instead, he takes issue with the family court's findings regarding the first and third prongs.
Regarding the first prong of the test, the family court found that Child was abused or neglected according to KRS 600.020(1)(a)(9). That subsection states that a child is abused or neglected when a parent "[f]ails 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) cumulative months out of forty-eight (48) months[.]" There was substantial evidence in the record to support this finding.
At the time of the final hearing, Child had been committed to the cabinet for over 130 consecutive months. Father admitted that he had not made any progress in obtaining full-time employment and waited six years to begin family counseling. One of the social workers testified that Father stated he did not complete the parenting classes because he "did not need them." ICPC denied Father's home for placement of Child on five different occasions due, in part, to Father's lack of income. In response, Father did not do anything to change his circumstances despite the fact that he had multiple degrees and the capacity to earn an income that could support Child. Instead, Father made the decision to work part-time for a church while his children were raised by another family. While Father did intermittently pay child support over the past decade, he rarely provided proof as required and stopped paying altogether in 2017. Testimony of three separate social workers showed that Father was repeatedly given the same simple tasks and goals, but failed to demonstrate sufficient progress. This may not have been enough for a finding of neglect in 2008; however, after years of the same unwillingness to work a case plan, Father's actions have progressed from what could at best be described previously as excusable indifference, to clear and convincing statutory neglect.
ICPC stands for "Interstate Compact on the Placement of Children."
In rebuttal, Father first argues that "the statute requires intent for a parent to neglect a child." Curiously, in support of this assertion he quotes a case that states "[a]bandonment is a matter of intent[.]" Under KRS 600.020, there are nine separate definitions of an abused or neglected child. Only one definition need be present to make a finding of abuse or neglect. Abandonment is one of those definitions. KRS 600.020(1)(a)(7). However, the family court did not find that Father abandoned Child. As stated above, the family court found Child neglected under KRS 600.020(1)(a)(9). The plain reading of that particular subsection does not include any element of intent; therefore, Father's intent argument fails. Father further argues in his brief that "[he] has met all his goals in his attempt at reunification, as he has done for almost a decade." However, Father points to no evidence to support this assertion and, in fact, it is directly refuted by Father's own testimony at the hearing wherein he admitted he had not completed a substantial portion of his case plan. Therefore, the finding that Child was neglected was supported by substantial evidence.
J.H. v. Cabinet for Human Res., 704 S.W.2d 661, 663 (Ky. App. 1985) ("Abandonment is a matter of intent which may be proved by external facts and circumstances[.]").
Regarding the third prong of the TPR test, the family court found multiple grounds of parental unfitness. Specifically, as it pertains to Father, the family court found that the grounds in KRS 625.090(2)(e),(g) and (j) were present. Simply put, there was substantial evidence presented to support this finding.
Those subsections state, in pertinent 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.
As previously mentioned, only one ground of parental unfitness in KRS 625.090(2) need be present to terminate parental rights. Most notably, Father satisfied the parental unfitness ground in subsection (g). Father has not been consistent in child support payments, has never attended an educational meeting with Child, and has not been to any medical appointments with Child despite Child's unique mental health needs. Most troubling is the evidence of Father's resistance to the idea that Child needs mental health medication and continued counseling. Although Father testified otherwise at the hearing, the record is replete with his apprehension to acknowledge Child's diagnosed mental health issues. Subsection (j) is easily satisfied as well because Child had been in the Cabinet's custody for approximately 108 consecutive months preceding the filing of the termination petition.
In total, Child has been in the Cabinet's custody for approximately 130 consecutive months at the time of the final hearing. --------
Father argues the family court erred in these findings because he has only had visitation with Child on the weekends. In his view, he has not had a meaningful opportunity to show that he can parent Child. Again, Father provides no caselaw to support that this assertion is indicative of clear error. In fact, as previously mentioned, the Cabinet afforded Father approximately ten years to make the changes required for placement of Child at his residence in Ohio. Father did not make the requisite changes; therefore, the family court's findings regarding the third prong of the test were supported by substantial evidence.
That aside, Father argues that family court was precluded from terminating Father's parental rights under the law of the case doctrine. In his view, the evidence was substantially similar in this termination proceeding to the evidence presented in the 2008 proceeding; therefore, according to the law of the case rule, the family court was barred from terminating Father's parental rights.
Regarding the law of the case rule, in M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998), a panel of this Court stated:
The law of the case rule requires a comparison of the evidence presented in the two cases to determine if the substance and probative effect of the evidence presented in the second case were equal or superior to the evidence presented in the first case. A former opinion becomes the law of the case only where the facts are substantially identical, or the same, upon the trial of each case.
The evidence presented at the instant proceeding was not substantially identical to the evidence presented at the 2008 proceedings. In the 2008 termination hearing, the Cabinet only called one witness, which was the children's social worker. Commonwealth, Cabinet for Health and Family Servs. v. B.B., No. 2009-CA-000448-ME, 2009 WL 3321414, at *3 (Ky. App. Oct. 16, 2009). Here, the Cabinet called three social workers and introduced the detailed findings of a court appointed psychologist to address the termination issue. "The evidence produced by the Cabinet in this proceeding is substantially greater than in the former case, and, in view of this, the law of the case doctrine is not controlling in our review of this appeal." M.P.S., 979 S.W.2d at 116. Moreover, nearly ten years has passed since the prior appeal in this case with Father's continuing failure to make meaningful progress on his case plan. Clearly, the law of the case doctrine does not apply to the Father's case.
In light of the foregoing, the order of the Campbell County Family court terminating Father's parental rights is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Rene Heinrich
Newport, Kentucky BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES: Abigail E. Voelker
Covington, Kentucky