Opinion
NO. 2012-CA-000011-ME
10-12-2012
S.D.L. APPELLANT v. J.R.A.; T.M.A; CABINET FOR HEALTH AND FAMILY SERVICES; AND A.M.A, a minor child APPELLEE
BRIEF FOR APPELLANT: Jeffrey D. Brunk Covington, Kentucky BRIEF FOR APPELLEE A.M.A., a minor child: Robert J. W. Howell Covington, Kentucky BRIEF FOR APPELLEES J.R.A. AND T.M.A: Stephanie A. Dietz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 11-AD-00055
OPINION
AFFIRMING
BEFORE: NICKELL, TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE: S.D.L. appeals from the Kenton Family Court's November 28, 2011, judgment terminating his parental rights of A.M.A. For the following reasons, we affirm.
S.D.L. is the natural father of A.M.A., a minor child, who was born on September 17, 2010. On December 18, 2010, A.M.A.'s mother died from a drug overdose and S.D.L. was arrested for violating the terms of his probation from a previous arrest upon testing positive for opiates. J.R.A. and T.M.A. (hereinafter collectively referred to as "Appellees"), the aunt and uncle of A.M.A., filed for emergency custody of A.M.A., which the trial court granted on December 27, 2010. A.M.A. has remained in the custody of Appellees since that time.
On April 25, 2011, Appellees filed a petition to adopt A.M.A. and to terminate S.D.L.'s parental rights of A.M.A. Prior to a hearing regarding the petitions, Appellees requested access to the Cabinet for Health and Family Services' ("Cabinet") records on A.M.A. S.D.L. and the Cabinet both objected on the basis that the records were privileged information. Upon briefs filed by the parties on the issue, the court granted Appellees access to the requested records. On November 28, 2011, after a bench trial, the trial court terminated S.D.L.'s parental rights and granted the adoption sought by Appellees. This appeal followed.
On appeal, S.D.L. first argues the trial court erred by granting Appellees access to records on A.M.A. maintained by the Cabinet. We disagree.
Per CR 26.02(1), "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]" Information obtained by the Cabinet is deemed confidential, but may be obtained by "[t]he custodial parent or legal guardian of the child alleged to be dependent, neglected, or abused[,] and "[t]hose persons so authorized by court order." KRS 620.050(5)(b) and (h). In this case, Appellees were granted emergency custody of A.M.A on December 27, 2010. At the time they sought the Cabinet records, Appellees still had custody of A.M.A. Thus, under KRS 620.050(5)(b), they were entitled to the records. Furthermore, KRS 620.050(5)(h) and (6)(a)(3) grant the court authority to order the Cabinet to release records to certain parties. Thus, we find no error by the trial court in granting Appellees access to otherwise confidential information maintained by the Cabinet.
Kentucky Rules of Civil Procedure.
Kentucky Revised Statutes.
Next, S.D.L. argues the trial court abused its discretion by admitting into evidence domestic documents maintained outside of the Commonwealth of Kentucky and by allowing witnesses to testify from those documents. We disagree.
A trial court's ruling on the admission of evidence will not be reversed absent an abuse of discretion. Wiley v. Commonwealth, 348 S.W.3d 570, 580 (Ky. 2010) (citation omitted). If the ruling is arbitrary, unreasonable, unfair, or unsupported by sound legal principles then the trial court abused its discretion. Id. (citation omitted).
KRE 902(4) details the admissibility of self-authenticating official records and provides that records maintained outside the Commonwealth are self-authenticating if they are accompanied by a certificate from "any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of office." Here, the records complained of were kept and maintained in Warren County, Ohio and were certified by a Deputy Clerk by the seal of office. Accordingly, the documents were self-authenticating and properly admitted. As a result, the trial court did not abuse its discretion by admitting the documents and allowing the witnesses to testify from them.
Kentucky Rules of Evidence.
S.D.L. next claims the trial court erred by finding the Cabinet exercised reasonable efforts to re-unify the family. We disagree.
KRS 625.090(3) provides, in part:
In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:Here, A.M.A. was not placed with the Cabinet, and the Cabinet did not petition for the termination of S.D.L.'s parental rights. Since Appellees retained custody of A.M.A., the court was not required to determine if the Cabinet made reasonable efforts to reunite A.M.A. with S.D.L. Accordingly, we find no merit to this claim of error.
. . . .
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents[.]
We note, however, that the Cabinet met with S.D.L. to develop a case plan detailing steps for him to take in order to regain custody, which we detail below. S.D.L. did not comply with the case plan.
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Finally, S.D.L. argues the trial court erred by terminating his parental rights to A.M.A. We disagree.
Our review of a trial court's termination of parental rights is the clearly erroneous standard set forth in CR 52.01. M.E.C. v. Cabinet for Health & Family Servs., 254 S.W.3d 846, 850 (Ky.App. 2008). Therefore, we must determine if the trial court's order was supported by substantial evidence. Id.
Under KRS 625.090, a court may grant a petition to involuntarily terminate parental rights if it finds by clear and convincing evidence that the child is "abused or neglected," termination would be in the best interest of the child, and the presence of any one of the factors listed under KRS 625.090(2), including the following:
(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; [or]KRS 600.020 defines an "abused or neglected" child as one whose health or welfare are harmed or threatened by his or her parent who "[e]ngages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs 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[.]
Here, the record reveals that A.M.A. has remained in the custody and care of Appellees since December 27, 2010. S.D.L. was previously incarcerated for domestic violence in Mason, Ohio after assaulting A.M.A.'s mother while she was pregnant with A.M.A. He was released on September 14, 2010 and placed on probation. S.D.L. was again incarcerated from December 18, 2010 until April 19, 2011 following a failed drug test, which violated the terms of his probation stemming from his previous arrest for domestic violence. He did not have any contact with A.M.A. during this time.
In April 2011, S.D.L. met with the Cabinet to develop a case plan to regain custody of A.M.A. The terms of that case plan required S.D.L. to cooperate with the terms of his probation, submit to drug screens regularly, cooperate with drug treatment services, provide proof of employment, and supervised visitation with A.M.A. S.D.L. did not comply with the case plan: he missed nine drug screenings and tested positive for methamphetamine upon a second arrest in Mason, Ohio for domestic violence on July 20, 2011; he missed two scheduled visits with A.M.A.; he failed to adequately submit documentation of proof of employment; and he failed to complete the drug treatment program. Testimony was also presented that S.D.L. has not provided any financial assistance or provided any clothing, food, shelter, medical care, or education to A.M.A. since his arrest on December 18, 2010. Furthermore, at the time of the court's bench trial in November 2011, S.D.L. was again incarcerated. Both the guardian ad litem and the Cabinet submitted reports for the court's consideration recommending termination of S.D.L.'s parental rights and A.M.A.'s adoption by the Appellees.
Based on the evidence presented, the trial court determined that A.M.A. was an "abused or neglected" child, S.D.L. continuously failed to provide for the child's well being and has shown no signs of improvement in his conduct, and the best interests of A.M.A. are served by terminating S.D.L.'s parental rights and allowing for the adoption of A.M.A. by Appellees. Under the circumstances, we find substantial evidence supports this conclusion. Therefore, the trial court did not err by terminating S.D.L.'s parental rights.
The judgment of the Kenton County Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffrey D. Brunk
Covington, Kentucky
BRIEF FOR APPELLEE
A.M.A., a minor child:
Robert J. W. Howell
Covington, Kentucky
BRIEF FOR APPELLEES
J.R.A. AND T.M.A:
Stephanie A. Dietz
Covington, Kentucky