Opinion
2021-CA-1092-ME 2021-CA-1093-ME
02-25-2022
J.B.N., NATURAL FATHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; A.K.N., NATURAL MOTHER; AND J.P.N, A MINOR CHILD APPELLEES AND J.B.N., NATURAL FATHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; A.K.N., NATURAL MOTHER; AND H.J.N., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Paul A. Zimlich Taylorsville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SHELBY CIRCUIT COURT HONORABLE S. MARIE HELLARD, JUDGE ACTION NOS. 21-AD-00011, 21-AD-00010 1
BRIEF FOR APPELLANT: Paul A. Zimlich Taylorsville, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE, JUDGES.
OPINION
CLAYTON, CHIEF JUDGE
J.B.N. appeals from the Shelby Family Court's findings of fact, conclusions of law, and orders of judgment terminating his parental rights to his two sons. Upon careful review, we affirm.
J.B.N. ("Father") and A.K.N. ("Mother") were married in 2007. They are the biological parents of H.J.N., who was born in 2010, and J.P.N., who was born in 2012.
The Cabinet for Health and Family Services ("Cabinet") became involved with the family in February 2020 after receiving a report that Father and Mother were using methamphetamine in their home and that the home was unsanitary. Father voluntarily enrolled in a drug treatment program at Landmark 2 Recovery. Mother refused to allow Cabinet workers entry into the home and appeared at the office of the Department of Community Based Services ("DCBS") with visible track marks on her arms. She was asked to take a drug screen but failed to do so. It was also reported that the children were not regularly attending school.
The Cabinet filed a petition for dependency, neglect, and abuse against the parents in Shelby Family Court. At the temporary removal hearing, the children were placed in the care of relatives. At the adjudication hearing on March 5, 2020, Father stipulated to neglect by admitting to illegal drug use and the family court made a finding of neglect against Mother.
Mother and Father were each provided with case plans which directed them to engage in visitation with the children; maintain a stable and clean home; maintain stable employment; complete protective parenting classes; and submit to random drug testing. Mother was directed to complete mental health and substance abuse assessments and follow all recommendations and Father was required to complete his treatment at Landmark Recovery. A conference was held in February 2020 to discuss the case plans, which Father attended but Mother did not.
Mother and Father were provided with visitation with the children at the Butterfly House, a private facility. Mother never visited the children. Father 3 visited the children twice per week. According to Beverly Hilger, the owner and operator of the Butterfly House, the facility has a sliding scale of cost for visitation. Because Father reported an income of greater than $25,000, his fee was set at $35.00 per visit. Hilger testified that Father brought food and gifts for the children, that his visits were appropriate, and the children were well bonded with him.
In April 2020, Father completed his drug treatment program at Landmark Recovery and went to a halfway house. He later moved back into the family home. In July 2020, the children were removed from the relative placement and placed in foster care. The frequency of Father's visits with the children began to decline because he was having difficulty paying the fee. In October 2020, Father's visits with the children were suspended for failing to comply with procedures regarding missed visitation sessions. At that time the family court entered a child support order. Father made child support payments of $299 on October 5, 2020; $2,064.06 on October 28, 2020; $138 on December 14, 2020; $138 on January 11, 2021; $138 on January 26, 2021; $138 on February 8, 2021; and $138 on February 22, 2021.
Apart from Father's visitation with the children and his completion of the Landmark Recovery program, the parents did not comply with their case plans. Casey Turner, the Cabinet case manager for the family, testified that conferences 4 were scheduled for August 2020 and January 2021 to discuss the case plans, but neither Father nor Mother attended. In March 2021, the goal for the children was changed to adoption.
On April 7, 2021, the Cabinet filed a petition to involuntarily terminate Mother's and Father's parental rights. Father received personal service of process but did not file an answer to the petition. Neither parent was present at the final hearing on July 21, 2021, although they were both represented by individual counsel.
At the final hearing, Turner testified that she provided Mother and Father with a copy of all their case plans via regular mail and that she made repeated attempts to reach out to them via email and letters. She received a reliable address for the parents from relatives who reported that they continued to live at their home. Turner testified that none of her letters to the parents were ever returned. Apart from visitation with the children at the Butterfly House and his completion of the Landmark Program, Father provided no proof of completion of any other program in his case plan, even though he was asked to do so. Turner was unsure whether Father ever completed his halfway house treatment. Father had no visits with the boys since October 2020.
Turner testified that she and other Cabinet workers had made attempts to visit the parents' home but no one ever answered the door. Consequently, they 5 were unable to confirm if the parents had safe, stable housing for the children. Turner testified that Father contacted her by phone fairly frequently but that this lessened over time and after October 2020 there was no contact until March 2021, with the exception of one occasion when he gave permission for the boys to go away on vacation with their foster parents.
When Father met with Turner in March 2021, he told her he wanted to renew visitation with the boys and to obtain additional drug treatment, but he did not follow through. From his comments about resuming drug treatment, Turner inferred that he was still struggling with drug abuse.
Turner testified that she could not think of any other service the Cabinet could offer the parents and also opined that there was no reasonable chance of improvement.
Upon examination by Father's counsel, Turner admitted that her earlier testimony that Father made no child support payments was inaccurate and she apologized. Documentation of Father's child support payments was placed in the record.
At the end of the hearing, the family court requested the Cabinet to tender proposed findings of fact and conclusions of law. The family court thereafter entered the Cabinet's tendered findings and conclusions as well as an 6 order and judgment terminating parental rights. These consolidated appeals by Father followed. Mother did not appeal.
Kentucky Revised Statutes ("KRS") 625.090 provides that a family court may involuntarily terminate parental rights if the court finds by clear and convincing evidence that a three-pronged test has been met. First, that the child has been previously adjudged or is found to be abused or neglected, as defined by KRS 600.020(1), or has been diagnosed with neonatal abstinence syndrome at the time of birth, or the parent must have been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that abuse, neglect, or injury is likely to occur to the child at issue. KRS 625.090(1)(a). Second, the court must also find the presence of at least one of the eleven grounds listed in section (2) of the statute. KRS 625.090(2)(a)-(k). Third, termination of parental rights must be in the child's best interest, and the court is provided with a series of factors that it shall consider when making this determination. KRS 625.090(1)(c); KRS 625.090(3).
"[T]o pass constitutional muster, the evidence supporting termination must be clear and convincing. Clear and convincing proof is that of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (internal quotation marks and citations omitted). "Pursuant to this 7 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. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (citation omitted).
Under the first prong, the family court found that the children were neglected pursuant to KRS 625.090(1)(a)1. on the basis of the underlying dependency action and under KRS 625.090(1)(a)2. on the basis of the evidence presented at the termination hearing.
Under section (2) of the statute, the family court found that the parents had abandoned the children for a period of not less than ninety days. KRS 625.090(2)(a). It further found, pursuant to KRS 625.090(2)(e), that the parents, for a period of not less than six months, had continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection for the children and there was no reasonable expectation of improvement. Under KRS 625.090(2)(g), the family court found that the parents, for reasons other than poverty, had continuously or repeatedly failed to provide or were incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well-being, and that there was no reasonable expectation of significant 8 improvement in the immediately foreseeable future, considering the age of the children.
Under the third, "best interest" prong, the family court found that the Cabinet had rendered or attempted to render all reasonable services to the parents that might be expected to bring about a reunion of the family and that no additional services were likely to bring about parental adjustments that would enable the return of the children to the parents' custody within a reasonable time. KRS 625.090(3)(c) and (d). It further found that the Cabinet had met the children's physical, emotional, and mental needs since their removal from parental custody and that the prospects were for continuing improvement in the children's welfare if termination was ordered. KRS 625.090(3)(e).
In its findings, the family court observed that Father last had contact with the children in October 2020. The family court also noted that the parents had not maintained regular contact with their case worker and had not availed themselves of the reunification services provided by the Cabinet. Father was reported to have completed his treatment at the Landmark treatment facility in February 2020 and entered a halfway house thereafter, but he did not provide any proof of completion. He did not complete any other case plan recommendations except for his visitation with the children. 9
The family court acknowledged Father's payment of child support. The family court also found that the parents are both capable of working, but that neither had done so on a sustained basis. It attributed the parents' failure or inability to meet the material needs of their children either to abandonment and/or drug abuse.
As a preliminary matter, we address Father's claim that he had no knowledge that the final hearing was being held because he was in drug rehabilitation at the time. This is a serious allegation implicating Father's due process right to receive notice and an opportunity to be heard. K.D.H. v. Cabinet for Health and Family Services, 630 S.W.3d 729, 741 (Ky. App. 2021), discretionary review denied (Oct. 20, 2021). Father's brief cites to Turner's testimony to support this assertion, but her testimony was simply that Father had expressed interest in resuming drug treatment, not that he was currently participating in it nor that it rendered him unable to attend the hearing. Furthermore, Father's counsel never raised the issue of Father's absence at the hearing. Because the allegation is without any foundation in the record, it will not affect the disposition of this appeal.
Father argues that he was unable to continue visitation with his children because he was required to pay a fee by Butterfly House, despite being found to be indigent. He contends it is a violation of due process to allow a private 10 facility to assume the role of the court or the Cabinet in controlling a father's access to his children. The evidence in the record shows that Father was able to pay the visitation fee for several months. No evidence or explanation was ever offered by Father to indicate when, why, or how his financial situation changed. There was no evidence that he reported a reduction in his income to Butterfly House, although Hilger testified that if Father lost his job, the visitation fee would be reduced. There was also no evidence that Father reported his difficulty in paying the visitation fee to his case worker, although she testified that she tried to maintain regular contact with him. Under these circumstances, his arguments regarding a due process violation are simply unfounded.
Father further argues that there was not clear and convincing evidence to sustain the family court's finding that he failed to provide material support and care for his children. He points to the fact that he made significant child support payments and argues that the court improperly held that his efforts were insufficient to constitute material support. He contends that the court made an impermissible inference that he failed to make child support payments after March 2021. According to the Cabinet, the child support records it tendered at the hearing were the most recent available. Father did not offer to supplement the record with evidence of any payments of child support after March 2021. Although Father points out that he made his child support payments during the 11 period of the COVID-19 pandemic shutdowns when "many Kentuckians" were unemployed, he offers absolutely no evidence regarding where and for what period he was employed or the amount of his income. This information could have come only from Father, yet he never provided it to his case worker or the family court. The family court fully acknowledged that Father made child support payments. There was simply no evidence offered regarding why he ceased making the payments and whether he would be able to support his children in the future.
Father acknowledges that he struggled with addiction and relapsed but argues that the family court gave insufficient weight to his March 2021 conversation with Turner in which he indicated his intent to re-enter drug rehabilitation. He argues that this evidence undermines the family court's finding that he abandoned his children. Although Father did visit the children and paid some child support, he did not complete any other parts of his case plan and never followed up on his remarks to Turner about resuming drug rehabilitation. In the absence of clear and convincing evidence to the contrary, the family court's conclusions regarding abandonment will not be disturbed.
Next, Father argues that the family court erred in finding that the Cabinet had made reasonable efforts to reunite Father with his children. He contends that the services provided by the Cabinet should be readily accessible and not contingent on a parent's financial means, and repeats his argument that his 12 visitation with the children was improperly conditioned upon his payment of the fee to the Butterfly House, a private entity. He reiterates that the ability to access and pay for required services should not be a deciding factor in whether impoverished residents are reunited with their children. He further points out that the family's case worker had never personally observed his visitation with the children, was misinformed about his child support payments, and had difficulty remembering whether either parent had any criminal history.
The termination of Father's parental rights was not based solely on his alleged inability to continue paying for visitation with his children or his failure to pay the full amount of child support. Father did not complete any of the other parts of his case plan and, most significantly, did not show any signs of wishing to do so. There was no evidence that he reported any financial difficulties to his case worker, even though the undisputed evidence showed that he had her contact information and that she reached out to him on numerous occasions. Furthermore, his contacts with the case worker and his efforts to comply with his case plan actually declined over time. The family court's conclusion that there was no reasonable expectation of significant improvement in the immediately foreseeable future is supported by clear and convincing evidence. Father cannot point to any evidence, except for his comment that he wished to re-enroll in a drug treatment program, to indicate any hope of improvement in his future parenting capacity. 13
For the foregoing reasons, the Shelby Family Court's findings of fact, conclusions of law, and orders of judgment terminating Father's parental rights are affirmed.
ALL CONCUR. 14