Opinion
NO. 2012-CA-001236-ME
05-17-2013
R.A.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; D.Q.R.M., J.R.M., AND J.R.R.M., THE MINOR CHILDREN; AND RESPONDENT MOTHER, D.D.C. APPELLEES
BRIEF FOR APPELLANT: David S. Davis Kyle A. Burden Louisville, Kentucky BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES: Erika L. Saylor Louisville, Kentucky BRIEF FOR APPELLEE, GUARDIAN AD LITEM FOR INFANTS: Elizabeth O. Pepa Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NOS. 11-AD-500355T, 11-AD-500356T AND 11-AD-500357T
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. NICKELL, JUDGE: R.A.M. appeals from the Findings of Fact and Conclusions of Law and three orders entered by the Family Division of the Jefferson Circuit Court on June 21, 2012, terminating his parental rights (TPR) to three minor children under KRS 625.090. Having reviewed the record, the briefs and the law, we affirm.
Kentucky Revised Statutes.
R.A.M. is the biological father of J.R.M. (a male born May 2, 1999); and J.R.R.M. (a male born April 26, 2001). R.A.M. testified he is not the biological father of D.Q.R.M. (a male born December 3, 1996), but is listed as the child's father on his birth certificate and thus claims parental rights to the boy.
D.D.C. is the biological mother of all three children. She was jointly named as a respondent on the TPR petition filed by the Cabinet for Health and Family Services (CHFS) in September 2011. D.D.C. did not appear at the final trial on May 31, 2012. Her parental rights were terminated in the same order that terminated R.A.M.'s parental rights. D.D.C. has not filed an appeal.
FACTS
CHFS became involved with R.A.M.'s family in November 2009 upon receipt of a report that R.A.M. had abused D.Q.R.M. According to the juvenile dependency, neglect and abuse (DNA) petition alleging neglect and abuse filed on behalf of all three children in December 2009, D.Q.R.M. denied suffering any physical abuse, marks or bruises, but his younger brother, J.R.R.M., said R.A.M.:
was upset about [D.Q.R.M.] getting into trouble at school and he whipped [D.Q.R.M.] and punched him. [J.R.R.M.] stated that he saw [D.Q.R.M.] fall down but [J.R.R.M.] did not see [R.A.M.] put his knee in [D.Q.R.M.'s] neck. [J.R.R.M.] stated that he did not seeThe DNA petition was heard December 9, 2009 during a temporary removal hearing. At its conclusion, temporary custody of all three boys was awarded to R.A.M.'s brother and sister-in-law. R.A.M. was directed to "get permanent housing & stable employment" and cooperate with CHFS.
a large bruise on [D.Q.R.M.'s] neck because he was not looking for it. [J.R.R.M.] stated that [R.A.M.] has physically abused him and his siblings but always told them to say it never happened. [J.R.R.M.] stated that he lives with his [paternal uncle and aunt, T. and J. M.] and he wants to stay there. [Paternal aunt, J.M.] stated that she saw the bruise but did not know where it came from, and that [R.A.M.] and [D.Q.R.M.] do not live at her home and that this is the problem as [R.A.M.] has not (sic) stable residence for [children]. During the course of the investigation, it was determined that [R.A.M.] was evicted from his previous apartment, has no stable employment and based on an 11/3/09 random drug test, he tested positive for marijuana. Since the 11/3 facilitated staffing, [R.A.M.] has not found permanent housing, has no job that can be verified, and has not had contact with [children, J.R.M. and J.R.R.M.] other than one phone call.
According to the calendar for the temporary removal hearing dated December 2, 2009, J.R.M. and J.R.R.M. had been living with the paternal uncle and aunt since June 2009.
At the DNA trial on March 24, 2010, R.A.M. stipulated he had "inappropriately disciplined" D.Q.R.M. and placed his "other children at risk." The court ordered the children to remain in the temporary custody of their paternal aunt and uncle and allowed R.A.M. to have supervised visitation. R.A.M. was "encouraged to increase occasions of exercised visitation." He was also "to complete abusive parent classes; . . . have random drug screens; (and) . . . continue to maintain employment & residence[.]" The court noted on the calendar that R.A.M. "has only visited with CH x 2 since Ct on 1-20-10!" At a dispositional hearing on July 7, 2010, the court ordered R.A.M. "to visit regularly [with his children] & complete abusive parenting classes." On December 8, 2010, the three children were committed to CHFS and both parents were directed to pay child support although no amount or timetable was specified.
On September 27, 2011, the Cabinet filed petitions to involuntarily terminate R.A.M.'s parental rights to all three boys. As of January 6, 2012, the paternal aunt and uncle had no desire to adopt the boys and a search was launched for a new foster home.
A permanency hearing was scheduled for January 18, 2012. By that time, R.A.M. had completed parenting classes but had not received his certificate due to nonpayment. He was still not visiting regularly with the boys—although he had begun weekly visits with them in November 2011. Furthermore, he had not been in contact with CHFS. At the Cabinet's request, the hearing was delayed for three months.
The TPR petition was finally heard on May 31, 2012. A therapist testified: each child had been diagnosed as being neglected and suffering from adjustment disorder; the boys were afraid of R.A.M. and did not believe his progress was genuine; and, the boys suspected R.A.M. was putting on an act. Testimony further established, while R.A.M. had made progress toward working his case plan, his progress was very slow; although steadily employed, R.A.M. never paid child support; R.A.M. occasionally bought gifts, food and clothes for his sons, but did not provide enough to meet their daily needs; R.A.M. paid rent to his sister; and, R.A.M. "whooped" D.Q.R.M. with a belt but testified he never left a mark or bruise on him.
A major impediment to R.A.M. having custody of the boys was his failure to secure stable housing for himself and the boys—the best he could find was a one-bedroom apartment. When the Cabinet referred him to Louisville Metro Housing Authority for almost immediate housing, he did not take steps within his control to expedite the application process. At trial, R.A.M. said he could secure housing in as little as two months but could not explain why he had not arranged for housing in the preceding thirty months. At the conclusion of trial, the court told R.A.M. he could not send the boys home with him because he had no home.
Another impediment to custody was R.A.M.'s lack of contact with his children. At one point, the trial court ordered R.A.M. to visit his children who were living with R.A.M.'s brother less than two miles away; R.A.M. did not comply. During R.A.M.'s testimony, the trial court stated, "Your children aren't in [foster] care because you're poor; they don't take kids away because you're poor; they took 'em away because you beat 'em with a belt. I want that real clear. Okay?"
On June 21, 2012, the trial court entered Findings of Fact and Conclusions of Law finding in relevant part each of the following. R.A.M. abused and neglected his children by inappropriately disciplining them and failing to materially support them. CHFS reasonably tried to reunite the family by making referrals for "substance abuse counseling; parenting classes; individual, group and family counseling; Abusive Parenting classes, and various other services." R.A.M. had not fully complied with the trial court's orders in that he had not: secured a permanent home; cooperated with CHFS; or paid child support (even when working). R.A.M. had failed to make his children and their needs a priority. The children did not trust R.A.M. and he could not say when he would be ready and able to provide for his children's daily needs. Since coming into the Cabinet's care seventeen months before, the boy's needs had been met and continued improvement was expected. Finally, termination of parental rights was in the best interest of each child.
That same day, the trial court entered an order terminating parental rights and order of judgment for each child stating: each was an abused and neglected child under KRS 600.020; the parents, "for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for [each] child and there is no reasonable expectation of improvement in parental care and protection, considering the age of [each] child"; R.A.M., "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 [each] child's well being and there is no reasonable expectation of significant improvement in [his] conduct in the immediately foreseeable future, considering the age of [each] child"; and, "[t]ermination of parental rights is in the best interest of [each] child." This appeal followed.
ANALYSIS
The gist of this appeal is that the trial court considered the acts of the parents as a whole and did not distinguish between their individual actions such that aspects of mother's bad parenting were imputed to R.A.M. Upon careful review of the record and the trial court's rulings, we disagree with R.A.M's premise.
R.A.M.'s first allegation of error is that there was no evidence he personally abandoned his children. While parental abandonment by both father and mother was alleged in the Cabinet's TPR petition, the order entered by the trial court stated only that "Respondent mother has abandoned the child for a period or periods of not less than ninety (90) days." R.A.M. acknowledges in his brief that the finding of abandonment was limited to mother. Since the trial court did not find R.A.M. had abandoned his children there could be, and was, no error in this regard.
R.A.M.'s second allegation of error is that the trial court referenced "Respondent parents" multiple times in its findings, conclusions and orders. While the trial court made statements applicable to both parents, the trial court also made specific findings and conclusions unique to each parent. For example, in the TPR order, the court wrote:
The Respondent parents, for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child.This was certainly true of R.A.M. who had failed to provide a home for his children for thirty months; had not regularly visited them (despite being ordered to do so and living less than two miles away from their relative placement); had paid no child support (despite being under court order to do so) or even attempted to provide money for their daily needs, but still found $1,200.00 to buy a car; and, when asked, could not suggest when he would be able to care for his children.
The above reference to "Respondent parents" was followed by a finding unique to R.A.M. that read:
The Respondent father, 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 there is no reasonable expectation of significant improvement in the parents' (sic) conduct in the immediately foreseeable future, considering the age of the child.This, too, was indicative of R.A.M.'s lackadaisical approach to parenting—doing things on his own schedule without regard to the substantial time his children were without a stable home and an active parent. Thus, while the court made findings applicable to both parents; it also made findings unique to each parent.
Furthermore, while R.A.M. eventually complied with portions of his case plan, he never secured permanent stable housing for his family—something his sister-in-law recognized was a problem and his boys sorely needed. Interestingly, in her closing statement, the children's guardian ad litem admitted R.A.M. had become more interested in his children in November 2011, after the filing of the TPR petition, but still had done only the "bare minimum" to try to reunite his family; responded to the boys with violence; and lacked the necessary tools to parent children in crisis. At the conclusion of all the closing statements, the trial court expressed concern that the case had dragged on for thirty months when permanency should have been achieved in a maximum of twelve months. The court went on to say R.A.M. had been given "every—every opportunity" and the court doubted he had done even the "bare minimum. If he had, I could return these—I'd dismiss this case and send the children home." The court finally explained that while R.A.M. testified he could secure housing within two months, he had inexplicably failed to do so for thirty months; the boys were scared of him; and the boys did not believe R.A.M. was trying.
Clearly, the trial court viewed the testimony differently than R.A.M., as is its prerogative. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal citations omitted). Unlike R.A.M., we agree with the trial court and see no indication of the trial court penalizing R.A.M. for his co-respondent's (mother's) behavior.
R.A.M.'s third allegation of error is a multifaceted claim that the trial court terminated his parental rights without clear and convincing evidence his conduct was not reasonably expected to significantly improve in the immediately foreseeable future. KRS 625.090(2)(g). Initially, he suggests the trial court transformed his pointed testimony that he did not know how long it would take for him to secure stable housing into a blanket statement that "he remained unable to resume responsibility for or custody of his children and could not provide a date at which time he would be ready to provide for their daily needs." This is a case in which the trial court found R.A.M.'s actions spoke louder than his words. While the challenged testimony was made in the context of an explanation about the lack of, and prospects for, stable housing, it was indicative of the entire case. While R.A.M. was slowly attaining some of the goals set by the Cabinet, his three children remained in limbo. The court had already given R.A.M. an additional eighteen months (for a total of thirty months) to reach his goals, and there had been no real change since the first court date in December 2009 when the trial court had ordered him to obtain housing and get a stable job—R.A.M. did not have a home then, and he was still without a home in May 2012.
To properly preserve this particular claim for our review, R.A.M. should have moved the trial court to amend its findings of fact and conclusions of law under Kentucky Rules of Civil Procedure (CR) 52.02. No such motion was made.
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According to the December 8, 2010, court calendar, R.A.M. objected to the children being committed to CHFS for the record, but [realized] "that conditions being as they are, agrees that children should be committed." While R.A.M. may not have personally testified he was unable to care for his children, the record showed he had not been providing them housing or daily support and gave no indication of when he could. The past being a strong indicator of the future, in the trial court's eyes, there was no reasonable expectation of improvement on the housing front. We have no basis upon which to disagree with the trial court's evaluation of the evidence.
Next, R.A.M. claims the family therapy sessions were a sham because the children's concerns (fear of father, father putting up a front, lack of trust in father, father not working hard enough to support and house them, disbelief father wanted them in his life) were not revealed to him until the Cabinet social worker testified at trial. The children were going to R.A.M.'s home for overnight visits and according to them, R.A.M. would respond with anger to details the children disclosed during therapy sessions. To protect the children, the social worker and therapist chose not to reveal the children's comments to R.A.M., preferring to encourage the children to become more trusting of R.A.M. and share their concerns directly with him. While R.A.M. accepted some responsibility for the removal of the children from his care, he attributed much of the blame to D.Q.R.M., thus minimizing his own use of force in disciplining the child as the reason for the removal. R.A.M. also blamed decisions made by his brother for limiting the time he could spend visiting with his children.
On March 24, 2010, R.A.M. stipulated he had inappropriately disciplined D.Q.R.M. and placed his other two sons at risk. During his testimony at the TPR trial in May 2012, he described five separate incidents involving Child Protective Services. Since 2009, he had continuously failed to: house his children; provide for their material needs; obey all court orders (including regular visitation with his boys) and Cabinet recommendations; and, establish trust with his children. Based upon all these factors, it was entirely reasonable for the trial court to conclude the risk of further abuse to or neglect of these children was high.
Next, R.A.M. maintains the trial court erred in finding CHFS had met its burden of having made reasonable efforts to reunite his family because it did not refer him to Louisville Metro Housing Authority until February 2012. Candidates are not referred to this program until all steps toward reunification— except housing—have been completed.
KRS 620.020(11) defines "reasonable efforts" as:
the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home[.]Yet again, R.A.M. seeks to deflect responsibility for his predicament from himself to another entity—this time, CHFS. In light of the social worker's testimony that she was unaware of anything more the Cabinet could do to expedite reunification of the family, and the list of services already offered, we affirm the trial court's finding that significant improvement in R.A.M.'s conduct in the immediately foreseeable future could not be reasonably expected.
R.A.M.'s fourth allegation of error is that there was no evidence he willfully failed to pay child support or "a reasonable portion of substitute physical care and maintenance if financially able to do so" under KRS 625.090(3)(f). While the trial court had ordered the "parents to pay child support" as early as December 8, 2010, the record does not show the frequency or amount of such payments to be made. R.A.M. does not indicate where in the record, or whether, he called this failure to the trial court's attention. As a court of review, we consider only those issues that were first presented to and ruled upon by the trial court. Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986) ("errors to be considered for appellate review must be precisely preserved and identified in the lower court"). See also Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990). If R.A.M. did not wish the lack of child support payments to be considered in the TPR hearing, he should have called the absence of a payment schedule to the trial court's attention.
Having heard no argument about this issue during our review of the trial, and there being no statement of preservation in his brief, we have nothing to review and therefore, discern no error. Furthermore, KRS 625.090(3)(f) requires the trial court to consider whether a parent has paid or failed "to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." R.A.M. testified he had not paid any child support while his children were in the Cabinet's custody, nor had he provided them any money. Thus, discounting any mention of child support, there was no proof R.A.M. had paid a reasonable amount of the children's care and maintenance.
R.A.M.'s fifth allegation of error is that there was no clear and convincing evidence TPR was in the children's best interests. Trial courts have wide latitude in determining whether a child is abused or neglected and his/her interests would be best served by TPR. C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 160 (Ky. App. 2012). We will set aside a trial court's decision only if it is clearly erroneous meaning it is unsupported by substantial evidence. R.C.R. v. Commonwealth Cabinet for Human Res., 988 S.W.2d 36, 38 (Ky. App. 1998); CR 52.01.
During the TPR trial, Steven Klump, the family youth specialist and therapist working with the family, was asked about the prognosis for the children in the event of TPR or continued failed reunification attempts. Klump testified that if the boys returned to a stable home where their parenting needs were met, it was likely their current difficulties (aggressive behavior, feeling of lack of stability and academic woes) would subside. However, if they returned to an unimproved parenting situation without attachment to their parents, their current difficulties would continue. Klump testified the boys have been in their current foster home since February 24, 2012, and are becoming attached to their foster mother. He went on to say TPR would be a stressful event, but he would expect it to resolve within three months. In contrast, continuing unsuccessful reunification attempts would be an ongoing stressor and defeat the boys' shared desire—a stable home life. In light of the ages of the boys (the oldest is seventeen), the lack of R.A.M.'s progress, and the totality of the evidence, we cannot say the trial court committed clear error in ordering TPR.
R.A.M.'s final allegation of error is that the trial court should have made specific findings of fact and drawn conclusions of law unique to each child. He argues that because proof of actual abuse was offered only as to D.Q.R.M., ordering TPR as to all three children made the orders a nullity. We disagree.
KRS 600.020(1)(a)(2) allows a finding of abuse or neglect based on risk alone. C.J.M., 389 S.W.3d at 161. R.A.M. stipulated on December 8, 2010, that he inappropriately disciplined one child and placed his "other children at risk[.]" This stipulation was sufficient to satisfy KRS 600.020. Each of the three orders was individualized as it pertained to and named a single child. If R.A.M. deemed this insufficient, he should have requested additional findings under CR 52.04. He did not.
For the foregoing reasons, the Findings of Fact and Conclusions of Law and three orders entered by the Family Division of the Jefferson Circuit Court on June 21, 2012, terminating R.A.M.'s parental rights to his three minor children are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David S. Davis
Kyle A. Burden
Louisville, Kentucky
BRIEF FOR APPELLEE,
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH & FAMILY SERVICES:
Erika L. Saylor
Louisville, Kentucky
BRIEF FOR APPELLEE,
GUARDIAN AD LITEM FOR
INFANTS:
Elizabeth O. Pepa
Louisville, Kentucky