Opinion
NO. 2018-CA-000190-ME NO. 2018-CA-000192-ME NO. 2018-CA-000193-ME NO. 2018-CA-000194-ME NO. 2018-CA-000210-ME NO. 2018-CA-000214-ME NO. 2018-CA-000216-ME
11-02-2018
R.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.G.; D.T.; AND D.R.T., A MINOR CHILD APPELLEES AND R.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.G.; D.T.; AND D.M.G., A MINOR CHILD APPELLEES AND R.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.G.; D.T.; AND P.R.N.M., A MINOR CHILD APPELLEES AND R.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.G.; D.T.; AND D.M.G., A MINOR CHILD APPELLEES AND D.T. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.T., A MINOR CHILD; AND R.J.M. APPELLEES AND D.G. CROSS-APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; JEFFERSON COUNTY ATTORNEY; R.M., MOTHER; D.M.G., A MINOR CHILD; AND D.T. CROSS-APPELLEES AND D.G. CROSS-APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; JEFFERSON COUNTY ATTORNEY; D.M.G., A MINOR CHILD; R.M., MOTHER; AND D.T. CROSS-APPELLEES
JOINT BRIEF FOR APPELLANT PARENTS: Justin R. Key Jeffersonville, Indiana Elizabeth Bricking Louisville, Kentucky John H. Helmers, Jr. Louisville, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES: Sarah Steele Jackson Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500457 AND 16-AD-500457T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500458 AND 16-AD-500458T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500459 AND 16-AD-500459T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500460 AND 16-AD-500460T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500457 AND 16-AD-500457T CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500458 AND 16-AD-500458T CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GINA KAY CALVERT, JUDGE
ACTION NOS. 16-AD-500460 AND 16-AD-500460T OPINION
AFFIRMING
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BEFORE: KRAMER, J. LAMBERT, AND NICKELL, JUDGES. LAMBERT, J., JUDGE: R.M. (the Mother), D.G. (Father One), and D.T. (Father Two) appeal from the Jefferson Circuit Court's orders involuntarily terminating their parental rights to four children. We affirm.
The children involved in these actions are: D.M.G. (Child One, a boy, born in 2006); P.R.N.M. (Child Two, a girl, born in 2010); D.R.T. (Child Three, a boy, born in 2012); and D.M.G. (Child Four, a boy, born in 2015). R.M. is the mother of all four children. D.G. is the father of Child One and Child Four, and the putative father of Child Two. D.T. is the father of Child Three.
The Cabinet for Health and Family Services has been involved with this extended family for a number of years; it first filed a petition for temporary removal in January 2015. The children were placed the following week with family members, where they remained until August of that year. The Mother and Father One stipulated to their extensive substance abuse, and Father Two stipulated that he had an extensive criminal history relating to illegal substances. All three Parents acknowledged that their actions placed the Children at risk of harm. However, their stipulations specifically stated that "nothing in this stipulation is to be construed as admitting that the facts which are stipulated in this agreement could be proven by clear and convincing evidence."
In October 2015, the Mother and Father One violated the terms of the court order which stated that they only participate in supervised visitation with the Children. Also, both continued to use illegal substances and failed to make significant progress with their drug programs and prevention plans. Father Two remained under a no contact order. He was incarcerated in January 2016 and remained in jail until February 2017.
Petitions for involuntary termination of parental rights (TPR) (for all three Parents, to all four Children) were filed by the Cabinet in October 2016. The actions were consolidated, and the termination hearings were held on August 17 and September 22, 2017. Father Two participated by telephone from the Bath County Detention Center (where he was incarcerated for having committed domestic violence). The circuit court's initial findings, conclusions, and order terminating the Parents' rights to these Children (dated October 17, 2017) was amended on January 5, 2018. The Parents' appeals were filed timely; the matter was ordered expedited, and the parties' motion to consolidate was granted by this Court's order entered July 17, 2018.
The Parents, in their first argument, urge this Court to declare Kentucky Revised Statute (KRS) 625.090(1)(a)(1) "unconstitutional as a matter of law," stating that "the statute effectively lowers the burden of proof from 'clear and convincing' to the lesser standard used in dependency cases." We disagree. This issue was argued before the circuit court prior to the taking of any evidence in the TPR hearing. The circuit court, after denying the Parents' motion to strike the statute as unconstitutional, stated on the record that it would be making independent findings of fact "from the evidence presented in this action."
That statutory subsection allows for involuntary termination of parental rights if "[t]he child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction." KRS 620.100(3) states that "a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." Thus, argue the Parents, the prior determination of abuse or neglect rested on a lower burden of proof by the Cabinet. Its use here as a basis for termination would violate their right to hold the Cabinet to the higher burden of clear and convincing evidence. --------
The trial court made independent findings of neglect and abuse after it considered the testimonial and documentary evidence taken during the two-day TPR hearing. It did not rely solely on the evidence taken at the emergency removal hearing. See Cabinet for Health and Family Resources v. T.G., 2007-SC-000436-DGE and 2007-SC-000821-DGE, 2008 WL 3890033, at *5 (Ky., Aug. 21, 2008) (an unpublished decision cited pursuant to CR 76.28(4)(c)), citing J.M.R. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 239 S.W.3d 116, 120 (Ky. App. 2007) (overruled on other grounds by Colvard v. Com., 309 S.W.3d 239, 244 (Ky. 2010))).
The trial court went on to consider, in painstaking detail, all the factors laid out in KRS 625.090(3), as well as the Parents' lack of proof to contradict any of the Cabinet's evidence (KRS 625.090(4) and (5)) before concluding that it would be in the Children's best interests that the Parents' rights be permanently terminated.
Therefore there was substantial compliance with the "clear and convincing" evidence standard enunciated in Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 1403, 71 L.Ed.2d 599 (1982); accord J.E.H. v. Department for Human Resources, 642 S.W.2d 600, 603 (Ky. App. 1982).
The Parents' second assertion is that the findings of fact were not supported by clear and convincing evidence. The record belies this argument.
In Kentucky, the involuntary termination of parental rights is governed by [Kentucky Revised Statute] KRS 625.090. Under that statute, termination of parental rights is proper upon satisfaction of a three-pronged test. First, the child must be found to be abused or neglected, as defined in KRS 600.020(1). KRS 625.090(1). Second, the court must find that at least one of the enumerated factors in KRS 625.090(2) is present. Finally, the court must find that it is in the best interest of the child that parental rights be terminated. KRS 625.090(3).M.P.R. v. Cabinet for Health & Family Servs., 520 S.W.3d 409, 412 (Ky. App. 2017) (footnote omitted). Without belaboring this opinion with a verbatim repetition of the circuit court's findings, it is this Court's holding that the determination of neglect was supported by the clear and convincing evidence presented by the Cabinet as well as the Parents' own admissions made during their testimony at the TPR hearing. The circuit court found that three of the factors enumerated in KRS 625.090(2) were present, namely (2)(a), (e), and (g). And the circuit court found that it was in the best interests of the Children that parental rights of the Mother, Father One, and Father Two be terminated, listing KRS 625.090(3)(b) - (f) as factors supporting its reasoning. The three prongs of M.P.R. were satisfied.
Father Two argues that the circuit court erred in its finding that he had abandoned Child Three. In this vein he contends that the circuit court's finding of abandonment was based on incarceration alone. It was Father Two's explanation for his non-involvement that he thought that Child Three had been returned to the Mother's care and that he (Father Two) was merely abiding by the no contact order entered by the circuit court. That was not the case. The circuit court found that Father Two was "never compliant" with court orders: Father Two failed to show up for Cabinet appointments, did not participate with visitation, trafficked in narcotics, smoked marijuana regularly, failed to have regular employment, and did not submit to random drug screens, all while not incarcerated. He did complete a program while incarcerated but testified that it was not very beneficial to him. And as the circuit court stated in its findings pertaining to Father Two, he admitted that "he was involved in activities that were dangerous to his son's safety." The circuit court's finding of abandonment was not based solely on Father Two's incarceration. See Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995); and W.A. v. Cabinet for Health & Family Servs., Com., 275 S.W.3d 214, 223 (Ky. App. 2008). Cf. J.H. v. Cabinet for Human Resources., Com., 704 S.W.2d 661 (Ky. App. 1995).
Father Two also argues that no reasonable efforts at reunification with his son were made on behalf of the Cabinet. He insists that while he was incarcerated there was no communication, no case planning, and no information provided to him by the Cabinet about the child's placement. Father Two asserts that his parents were found to be a suitable placement for Child Three, and Father Two maintains that merely not wishing to separate the Children from each other was insufficient reason for the circuit court not placing Child Three with Father Two's family. Again, the record does not support Father Two's assertions that the Cabinet failed in its reunification efforts on his behalf. The circuit court duly noted the attempts made by the Cabinet in this regard and that Father Two failed to utilize the case planning and programs offered to him. We find no error in this regard.
The Parents dispute that termination of their rights was in the best interests of the Children. KRS 625.090(3). The Parents state that all four Children were enjoying "regular, ongoing relationships with family members" and that termination would be "devastating" to the Children. The circuit court devoted seven pages to the factors enumerated in this statutory section in its analysis of the best interests of the four Children. We adopt those findings and analysis as if fully set out herein. "We find that substantial evidence supports the family court's decision, and the court did not abuse its discretion in terminating the parents' rights, as the criteria set forth in KRS 625.090 were met." W.A., 275 S.W.3d at 223.
The Parents lastly urge this Court to reconsider A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 366 (Ky. App. 2012), which held that "the Kentucky legislature intended to afford indigent parents the benefits of counsel during the entire course of the termination proceedings, including any appeal." The Parents maintain that fairness dictates that there should be additional compensation for counsel at the appellate stage. See also T.W. v. Cabinet for Health & Family Servs., 484 S.W.3d 302, 305 (Ky. App. 2016).
We disagree. Footnote 10 of A.C. states:
This Court believes that counsel who accepts appointment to represent an indigent parent in a termination case is obligated to see the case through the entire proceeding, including the appeals process, despite the rather meager compensation provided appointed counsel. See KRS 625.080(3) (authorizing a $500 maximum fee for appointed counsel in termination of parental rights cases); [Commonwealth, Cabinet for Health and Family Services v.] K.B.H., [No. 2004-CA-001760-ME, 2005 WL 2108126,] at *3 [(Ky. App. Sept. 2, 2005)] (explaining "the amount of $500 provided by KRS 625.080(3) is the statutory maximum that may be awarded to appointed counsel in termination proceedings - regardless of whether the services are rendered at trial, on appeal, or in the course of both stages of litigation"); Dep't for Human Resources v. Paulson, 622 S.W.2d 508, 509 (Ky. App. 1981) (emphasizing "acceptance of the appointment" to represent an indigent parent in a termination of parental rights matter is voluntary and, in doing so, counsel has advance statutory notice of the
"limited fee" available. Accordingly, appointed counsel is not "unconstitutionally deprived of his property or time").A.C., 362 S.W.3d at 367. The statute clearly sets the maximum fee in TPR cases at $500.00, and this Court is unauthorized to ignore that cap on fees. Paulson, 622 S.W.2d at 509. That is the province of the General Assembly, which has declined to raise the maximum fee in the many years since it was increased from $300.00 to $500.00. We shall not reconsider A.C. in this opinion.
The orders of the Jefferson Circuit Court terminating the Mother's and Fathers' parental rights are affirmed.
ALL CONCUR. JOINT BRIEF FOR APPELLANT
PARENTS: Justin R. Key
Jeffersonville, Indiana Elizabeth Bricking
Louisville, Kentucky John H. Helmers, Jr.
Louisville, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH & FAMILY SERVICES: Sarah Steele Jackson
Louisville, Kentucky