Opinion
NO. 2016-CA-000942-ME
04-28-2017
K.W. AND C.W. APPELLANTS v. J.P.; C.G. AND T.R.G. (A CHILD) APPELLEES
BRIEF FOR APPELLANTS: Rebecca A. Smither Louisville, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM OLDHAM FAMILY COURT
HONORABLE JACQUELYN ECKERT, SPECIAL JUDGE
ACTION NO. 15-AD-00021 OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: K.W. and C.W., the paternal grandmother and paternal step-grandfather (collectively grandparents) of T.R.G. (child) born on November 16, 2014, appeal from an order of the Oldham Family Court denying their petition to adopt child. J.P. (mother) and C.G. (father) are child's unmarried biological parents.
Grandparents present three issues on appeal: (1) whether the trial court's findings that mother had not abandoned child pursuant to Kentucky Revised Statutes (KRS) 199.502(1)(a) is supported by substantial evidence; (2) whether the trial court's finding that grandparents had not met their burden under KRS 199.502(1)(e) or (g) is supported by substantial evidence; and (3) whether the trial court erred when it refused to consider that mother's parental right to two other children had been terminated by order of the Oldham Family Court prior to the hearing concerning child but were pending on appeal. Having reviewed the evidence and applying the appropriate standard of review, we affirm.
Preliminary to our discussion of the facts and issues presented, we note that although represented by counsel at the trial level and no motion to withdraw by either parent's counsel is in the record, neither has filed an appellee's brief. Kentucky Rules of Civil Procedure (CR) permits this Court to take alternative courses of action when an appellee fails to file a brief. CR 76.12 (8)(c) provides:
If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.By the use of the word "may," any consequence to an appellee for the failure to file a brief is discretionary with this Court and we have expressly declined to impose such sanctions in matters involving child custody or support. Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App. 2014). We likewise conclude that to do any other than engage in a full review of the record and law is inappropriate in cases involving a petition to adopt without consent of the natural parents.
We further note that while no appeal can be taken from an order denying a petition to terminate parental rights, an appeal may be taken from an order denying an adoption petition. The Court in C.M.C. v. A.L.W., 180 S.W.3d 485, 490 (Ky. App. 2005) (internal footnotes omitted) explained:
[S]ince a petition seeking adoption of a child against the child's biological parent's wishes is a discrete subset of involuntary termination of parental rights cases, then the statute allowing appeals from adoption proceedings (KRS 199.560) is controlling because it is more narrowly focused than is the general statute forbidding appeals of orders denying involuntary termination of parental rights petitions (KRS 625.110). Furthermore, the general policy in this state is to permit any party aggrieved by a decision of a lower court an appeal with a higher court.Having disposed of any procedural impediments to a full review of the facts and issues, we proceed to the merits.
On November 19, 2014, the Oldham County Cabinet for Health and Family Services filed a dependency, neglect and abuse petition with the Oldham Family Court alleging that child was a dependent child pursuant to KRS Chapter 620 et seq. The petition was based on the Cabinet's interactions with mother regarding two older children who were removed from the home in May 2013 and placed in the Cabinet's custody because of neglect. After three months, the older children were returned to mother's care but after the Cabinet continued to have concerns regarding the care of the children, minimal standards of cleanliness in the home, substance abuse in the home and the children's caretakers, the children were removed again and placed in the Cabinet's custody. A psychological evaluation conducted by Dr. Sally Brenzel from April 1, 2014 through July 21, 2014, concluded that mother presented a high risk of harm to the children that would continue without considerable assistance. The Cabinet further alleged that it had little contact with father but had received reports that he engaged in substance abuse and been violent toward mother.
The Cabinet alleged that mother would be unable to care for child born on November 16, 2014. The Cabinet requested child be removed from mother's and father's custody and placed in the grandparents' custody.
The Oldham Family Court ordered child remain in his parents' custody who were living with grandparents. Mother and father were ordered to comply with the Cabinet's recommendations and maintain a substance and domestic violence free lifestyle.
An adjudication hearing was held on January 8, 2015. Child was found to be a dependent child and the family court ordered that he remain in the mother's and father's custody who continued to reside with grandparents. At the disposition hearing on February 12, 2015, the family court ordered child remain with mother and father in grandparents' home and removed the case from the active docket.
On April 10, 2015, the Cabinet filed a second dependency, neglect and abuse petition regarding child. In addition to reciting the prior history of the case, the Cabinet alleged that father left grandparents' home due to ongoing verbal conflict between him and mother. The petition further alleged that on April 9, 2015, mother engaged in sexual acts with an unknown man in the presence of child and, as a result, grandparents instructed that she leave the grandparents' home by April 17, 2015.
In an amended petition filed on April 13, 2015, the Cabinet alleged that a follow-up visit was attempted with mother and father at a La Grange address agreed upon in a prevention plan developed with mother on April 10, 2015. Upon arrival, the Cabinet learned mother left the residence with child and her whereabouts were unknown. The Cabinet also alleged that in January 2015, father fractured mother's wrist during a dispute that occurred while father was intoxicated and that mother and father struggled over access to a gun. There were further reports of father threatening physical violence toward various people. The Cabinet concluded by stressing its concern about child's safety.
The Oldham Family Court entered an emergency custody order on April 13, 2015, finding child was in danger of imminent death or serious physical injury and placed the child in the emergency custody of grandmother. At that time, mother and father fled with child and, after threatened with criminal charges by the county attorney, returned child on April 16, 2016, the day of the temporary removal hearing.
At the temporary removal hearing, because of domestic violence in mother's and father's home and mother's history, child was ordered to remain in grandmother's custody. On July 10, 2015, child was found to be neglected and ordered to remain in grandmother's custody.
At a disposition hearing held on August 27, 2015, the Cabinet noted neither mother nor father had any contact with child for 136 days, mother and father had not worked toward reunification as directed by the case plan, and grandmother had not been contacted regarding child's well-being. Permanent custody was awarded to grandparents. The court noted that it would reopen the case upon motion by either mother or father, supported by at least two affidavits, showing a change of circumstances. Neither mother nor father sought to reopen the juvenile action, seek a return of custody, or visitation with child. On September 24, 2015, grandparents filed a petition to adopt child.
Childs's Guardian Ad Litem (GAL) reported to the family court that grandparents are loving caregivers and that child thrived while in their care. The GAL stated mother's and father's history rendered it unlikely they would be able to care for child and it was in child's best interest that he be adopted by grandparents. Tennille Stockal, social services clinician with the Cabinet, filed a report also recommending that the adoption be granted.
A trial was conducted on May 19, 2016, at which time grandparents sought adoption of child without the consent of mother and father pursuant to KRS 199.502(1). Mother appeared and testified. Father did not appear.
Katrina Holcombe, a Cabinet social services clinician, testified she worked with mother since June 2013, regarding mother's two older children and continued to do so after child's birth. After the first petition regarding child was filed, a case plan was developed, which mother and father successfully met. After the second petition, the Cabinet implemented a revised case plan. Holcombe testified that father was noncompliant with the revised case plan and she had been unable to locate him. She also testified that she was unable to conduct a home visit with mother because mother would not reveal to Holcombe where she was residing. Mother did not reveal where she lived from April 2015 until January 2016, when at an involuntary termination hearing involving mother's two older children, she produced a lease for an apartment.
When the Cabinet closed its case as to child in August 2015, mother had not completed her case plan. She had not been involved in ongoing mental health treatment, she had not verified her housing, was only partially compliant with drug screening, and had not exercised visitation with child. Likewise, father had not completed his case plan. Holcombe testified she did not believe there were any reasonable grounds for expectation of a change from either mother or father in the foreseeable future. During her testimony, orders entered on February 2, 2016, were entered into the record which terminated mother's rights to her two older children and which mother appealed.
Holcombe testified that the last time mother or father had seen child was in April 2015 and, although both had been given supervised visitation with child, neither had submitted names of any person to supervise that visitation. She did not know the current whereabouts of mother or father.
Karen Olin, court appointed special advocate for child, testified she had been involved with child since May 7, 2015, and stated she had no concerns about grandparents' ability to care for him. Although she made multiple efforts to contact mother, she testified that phone contact was erratic and mother kept conversations brief and did not return her phone calls. She testified that mother never contacted her regarding visitation with child.
Carolyn Smither, program director at CASA for the River Region testified that but for one occasion, she did not receive any inquiry by mother or father regarding the use of a CASA worker to supervise visitation.
Grandmother testified that father moved into grandparents' home in 2013 and between March and April 2014, mother moved in as well. The couple lived in the basement of the home and paid $300 rent which was saved by grandparents to give back to mother and father when they found suitable housing. Grandmother testified that in January 2015, she witnessed domestic violence between mother and father on the home's security system and went to the basement and removed child. After father was loud and acting aggressively in March 2015, he was removed from the home. She allowed mother to stay until April 2015, when she found mother engaging in sex with an unknown man. Mother left the residence with child and did not inform anyone of her location.
Grandmother denied that mother attempted to contact her regarding supervised visits. Around the child's first birthday, she did receive some phone calls but she refused to permit mother to have any contact with child on his birthday. She acknowledged that after mother vacated the home and child was in grandparents' custody, mother provided some breastmilk, left diapers and personal items, and provided occasional gifts for the child. Grandmother further acknowledged she did not inform mother about child's medical visits or daycare arrangements when requested by mother or offer to transport him for visitation. Grandmother testified she intended to file an action for child support in May 2015, but decided against such action knowing she and step-grandfather were going to file an adoption petition.
Step-grandfather testified he witnessed domestic violence between mother and father in the presence of child. He further testified that neither mother nor father had provided any financial support for child except for some toys sent by mother in January 2016.
Mother testified she supplied several names of people to Holcombe who would supervise visitation but never heard that any were approved. She testified that after the case was closed, she attempted to contact grandmother on several occasions. Mother submitted a cell phone statement showing calls to grandmother's phone around the time of child's first birthday. Mother testified she did not file a motion for visitation because she could not afford an attorney.
Mother testified that when she left grandparents' home, she left child's crib and other personal items and instructions for care of child. She continued to pump breastmilk for one month after child was removed from her care that she gave to father to deliver to grandparents. She also sent toys to child in January 2016. Although she had not paid any child support, she believed she soon would be taken to court for the payment of support.
Mother testified that she had not complied with the mental assessment and treatment requirement of her case plan due to her health insurance being terminated. After it was reinstated, she continued to attend treatment sporadically and had drug testing as permitted by her work schedule. After Holcombe found a 24-hour drug testing facility, mother testified she made all required drug screens and they were negative. Mother testified she attended visitation with her older children.
Mother acknowledged that after moving from grandparents' home, she has lived in at least three different residences, including an extended stay hotel. She testified she gave addresses to all residences, except the hotel, to Holcombe. Mother was unemployed at the time of the hearing due to a foot condition. Mother lives in Georgia with her current boyfriend.
At the close of the evidence, grandparents argued that mother's and father's parental rights should be terminated and their petition to adopt child granted. Specifically, the grandparents asserted as grounds for termination KRS 199.502(1)(a), (e), (g) or (h) which provide as follows:
Notwithstanding the provisions of KRS 199.500(1), an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as part of the adoption proceeding that any of the following conditions exist with respect to the child:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . .
(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; [or]
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present adoption proceeding was born subsequent to or during the pendency of the previous termination; and
Mother argued the action was premature and that grandparents had not met their burden of proof.3. The condition or factor which was the basis for the previous termination finding has not been corrected[.]
Regarding mother, the family court found her lack of contact with child was attributable to her own actions as well as grandmother's. The family court found grandmother took affirmative steps to minimize mother's ability to parent child and mother did not abandon child for more than ninety days. It further found mother had provided food, clothing and other items of support for child when she left grandparents' residence and that she has the ability to work and provide child support. The family court also found that due to the young age of child and the stability of his current permanent custody of grandparents, mother should be given the opportunity to learn and practice the necessary skills to provide a safe and healthy home for child. Finally, the family court refused to consider the involuntary termination of mother's rights to her older children because those orders where not yet final as they were pending on appeal.
In regard to father, the family court found that he abandoned child for a period of not less than ninety days and, for a period of not less than six months, failed to provide financial support, or parental care or protection for child. However, because the family court found it was premature to terminate the parental rights of mother to child, it declined to terminate father's parental rights.
The focus of grandparents' appeal is on the family court's findings regarding mother. Although this action is one brought pursuant to KRS 199.502, our review is the same as that for termination of parental rights cases brought pursuant to KRS 625.090. Our review is limited to whether the family court's findings were clearly erroneous and if those findings are supported by substantial evidence, they will not be disturbed. C.M.C., 180 S.W.3d at 493. The limitations upon our review of factual findings in such matters was further explained in D.G.R. v. Com., Cabinet for Health & Family Servs., 364 S.W.3d 106, 114 (Ky. 2012) (internal brackets, quotations and citations omitted):
That one side presents more testimony than the other, or that one side's evidence seems superior to the other's, at least from the appellate perspective, has no bearing. In reviewing a trial court's findings, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. As the court sitting in the presence of witnesses, a trial court is in the best position to evaluate the testimony and other evidence. Indeed, judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Mere doubt as to the correctness of a finding will not justify its reversal, and appellate courts should not disturb trial court findings that are supported by substantial evidence.Thus, as to the family court's factual findings, we must decide whether there is substantial evidence to support the family court's decision. In this case, we must conclude there is such evidence.
First, grandparents argue there was not substantial evidence that mother had not abandoned the child for a period of not less than ninety days. To meet the standard to terminate parental rights based on abandonment, it must be demonstrated by facts or circumstances that the parent had a settled purpose to forego all parental duties and relinquish all parental claims to the child. "Moreover, '[s]eparation to constitute abandonment and neglect must be willful and harsh.'" P.C.C. v. C.M.C., Jr., 297 S.W.3d 590, 593 (Ky. App. 2009) (quoting Kantorowicz v. Reams, 332 S.W.2d 269, 271-72 (Ky. 1959)).
The family court found that grandmother engaged in a pattern of obstructing mother's ability to have contact with child after he was placed in grandparents' custody. There is substantial evidence to support this finding. Mother testified regarding her attempts to contact grandmother, that she sent breastmilk and toys, and that she provided names of those willing to supervise visitations. Although clearly grandmother is not totally at fault in creating the strained relationship between grandparents and mother and perhaps this Court believes her hesitation to bring mother into child's life is understandable, the family court found that at the time of the hearing, mother did not willfully abandon child. Under our standard of review, we cannot disturb the family court's finding.
Again, giving the family court the deference we must, we will not disturb the family court's findings that there was not a reasonable expectation of improvement on mother's part to provide parental care and protection of child, or to provide essential food, clothing, shelter, medical care or education for child. There was evidence that when mother vacated grandparents' residence, she provided food and age-appropriate items of support. Although mother has not provided support since that time, no child support has been sought from her. The family court found that mother has the ability to work and pay any court ordered support obligation. While mother's history of not voluntarily providing support for child raises doubts as to whether she will do so, the family court found mother credible and we may not disturb that finding.
Grandparents also argue that the family court erroneously declined to consider KRS 199.502(1)(h) as a factor allowing the termination of mother's rights. We disagree.
The termination orders applicable to mother's other children did not terminate mother's parental rights because both orders were appealed and, therefore, lacked finality. Furthermore, to hold otherwise could have troubling consequences. If mother's parental right to child was based on the termination orders involving the two older children, child may have already been adopted when the appellate decision is rendered presenting legal complications to the validity of the adoption. Therefore, we hold the family court properly declined to base its decision on KRS 199.502(1)(h). We add the caveat that if affirmed on appeal, the termination orders must be considered in any subsequent consideration of the adoption petition.
We recognize that the evidence indicates grandparents are loving and suitable parents for child. It is equally clear that grandparents, who are hesitant to permit mother, who has a history of drug abuse and troubled relationships, to be in child's life, do not have the burden of facilitating visitation between mother and child. It is incumbent upon mother, through a motion with the family court, to seek visitation at the appropriate time, place and circumstances. Although she testified she had not done so because of financial constraints, there was no evidence that she actively sought legal services. Moreover, her move to Georgia with her current boyfriend renders visitation with child more difficult. However, we cannot say that at the time of the hearing, there was no substantial evidence to support the family court's findings and its ultimate conclusion that termination would be premature. We stress that this opinion in no way alters the grandparents' custody of child and this opinion shall not be construed as prohibiting grandparents from further pursuit of the termination of mother's and father's parental rights and adoption of child.
Based on the foregoing, the order of the Oldham Family Court is affirmed.
MAZE, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANTS: Rebecca A. Smither
Louisville, Kentucky BRIEF FOR APPELLEE: No brief filed.