Opinion
NO. 2015-CA-000636-ME
01-27-2017
D.A.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.D.R.B. (MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT: Joy R. Colvin Louisville, Kentucky BRIEF FOR APPELLEE: Erika Saylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 14-AD-500366-T OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. ACREE, JUDGE: D.A.H. (Father) appeals the March 23, 2015 findings of fact, conclusions of law, and order of judgment terminating his parental rights to J.D.R.B., his minor child (Child). Father asserts the family court erred in terminating his parental rights because certain statutory findings were not supported by clear and convincing evidence. After careful review, we affirm.
Factual and Procedural Background
The Jefferson Family Court first became involved with this case when the Cabinet for Health and Family Services (the Cabinet) filed a petition on September 17, 2012, alleging that Child and three siblings had all been abused or neglected or were at risk of abuse resulting from excessive corporal punishment by Mother. The petition also noted extensive criminal histories of the parents. Mother stipulated to having abused the children; however, the children were permitted to remain in her custody conditioned upon compliance with court-ordered services.
On October 25, 2013, the Cabinet filed another petition alleging Child, and now four siblings, were victims of abuse or neglect as a result of Mother's substance abuse, inadequate supervision, untreated mental health issues, lack of compliance with court-ordered treatment services, and ongoing criminal lifestyle. The children were committed to the custody of the Cabinet. The children were ultimately found to have been abused or neglected due to repeated physical abuse and Mother's noncompliance with treatment services.
Mother was offered extensive treatment services, but made only superficial and sporadic efforts to participate in the services. The Cabinet filed its petition to terminate Mother's and Father's parental rights to Child on September 4, 2014.
This appeal relates only to Father and his parental rights to J.D.R.B., his minor child. Child was born in March 2008, and Father's paternity was established thereafter. In March 2009, Father was ordered to pay $186 per month in child support for Child. Father and Child never resided together although they saw each other frequently, several times a week. When Child was just two years old, Father began an extended period of incarceration in July 2010; he was released in July 2014. During that time, he did not see Child. When Father received notice of the dependency action, he contacted his mother to find out what he needed to do. Father was provided a case plan and maintained contact with the Cabinet while he was incarcerated through a paternal relative.
Upon his release in July 2014, Father expressed interest in reunification with Child. He initially resided in a halfway house and worked in construction. He met with the Cabinet worker on July 30, 2014, to discuss his case plan. Father's case plan tasks included: maintain contact with the Cabinet; provide verification of stable housing and employment; pay child support; cooperate with service providers; and support the treatment and mental health of Child. Father eventually requested visitation from the family court on October 15, 2014.
Therapeutic visitation between Father and Child was suggested as it had been several years since they had last seen each other. The initial visit was to occur on December 1, 2014. However, Father was going to be approximately two hours late, so the visit was canceled. The next visit was scheduled for December 15, 2014. Father did attend this visit. It was the first time he had seen Child in four years. Father had to be redirected during the visit not to make promises of reunification to Child, and Child expressed fear and sadness to the therapist following the visit. Father did not show up nor did he provide excuse or explanation when he missed the third scheduled visit on January 5, 2015. Father and Child next visited with each other on January 26, 2015. Overall, the visit was positive and Child spoke positively of Father following the visit and did not exhibit any negative behaviors. Father and Child have not had any other visits.
The termination trial was held on March 19, 2015. The court heard testimony from Mother, Father, foster parents, and several Cabinet workers involved in the case.
The Cabinet worker initially assigned to Child's case retired in January 2015, and a new worker was assigned. The current Cabinet worker provided testimony to the family court on Child's case. The Cabinet worker testified that the barriers to reunification between Father and Child were Father's lengthy criminal history dating back to 2004, and the significant absence from Child's life. The Cabinet presented evidence of sixteen convictions, mostly related to drug and alcohol criminal offenses and most occurred subsequent to Child's birth.
Father did maintain fairly consistent contact with the Cabinet in accordance with his case plan; however, he made no contact with the Cabinet since the original worker retired. The current Cabinet worker did not have Father's housing and employment status as of the time of trial. The Cabinet worker did testify to the therapeutic visitation between Father and Child. She further testified to the substantial mental health and behavioral needs and therapeutic treatment for Child. The Cabinet worker testified that Father had provided documentation of programs he had completed while incarcerated, including a substance abuse treatment program, student of the week certifications, participation in church programs, and completion of an NA/AA program.
Child's Foster Mother testified. She stated that when Child first came into her care in October 2013, he was very aggressive and had problems with bedwetting. After much therapy and treatment, his behaviors have mostly stabilized. She testified that Child is now much calmer, helps out around the house, and is doing well in school. Child requires medication and regularly attends counseling for management of his behaviors. Foster Mother stated that Child never spoke of Father prior to visits. After the visits, she stated Child spoke of Father positively and exhibited no negative behaviors.
Father testified that he had been incarcerated from July 2010 until July 2014. Prior to that he saw Child multiple times each week. Father testified to the completion of several programs while he was incarcerated. He stated he participated in an after-care substance abuse program upon his release, and he regularly attends NA/AA meetings. Father testified that he is compliant with his probation and parole. He testified that he has been employed since he was released. He initially worked in construction, and at the time of trial, he was working for a company that builds cabinets. Father testified that he resides in a rent-to-own home. Although it was not verified by official records, Father testified that child support had been garnished out of his last three paychecks. He did acknowledge that prior to these most recent garnishments, he had never paid child support despite being ordered to since 2009. Father admitted he had not ever provided essentials for Child. Father testified that he has nine other children but has custody of none. Father testified that he was very glad to be able to finally visit with Child and stated he believed the visits went well. He did express frustration over the scheduling of the visits.
After hearing all of the testimony, the case was submitted. On March 23, 2015, the family court entered findings of fact, conclusions of law, and orders terminating Father's parental rights to Child. The family court found Child to be abused or neglected. KRS 625.090(1)(a). It also found that termination was in Child's best interest, KRS 625.090(1)(b), and found that Father was unfit to parent Child because: (a) he had abandoned Child for a period of not less than ninety days; (b) he failed to offer essential parental care and protection; (c) he failed to provide basic necessities for Child for reasons other than poverty alone. KRS 625.090(2)(a), (e), (g). Father now appeals.
Standard of Review
This Court will only disturb a family court's decision to terminate a person's parental rights if clear error occurred. If there is substantial, clear, and convincing evidence to support it, the decision stands. KRS 625.090(1); Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). The clear and convincing standard does not demand uncontradicted proof. All that is needed "is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted).
Because the family court is in the position to best judge the credibility of the evidence, we will not substitute our opinion for that of the trial court with regard to the weight given to certain evidence, including the testimony of witnesses. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
Analysis
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a three-part test. Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
Father first takes issue with the family court's findings relating to parental unfitness under KRS 625.090(2). Specifically, Father argues: (1) the evidence is not clear and convincing that he has been incapable of providing essential parental care and protection to Child; (2) the evidence is not clear and convincing that Father has failed to provide or is incapable of providing essential food, clothing, medical care, and education to Child; and (3) the evidence is not clear and convincing that Father had abandoned Child for a period of not less than ninety days. KRS 625.090(2)(e), (g), and (a).
Father claims he has demonstrated that he is capable of providing essential parental care and protection to Child because he has complied with the tasks of his case plan and has maintained stable housing and employment since his release from prison in July 2014. The court observed that this particular statutory ground, KRS 625.090(2)(e), allows the family court to make reasonable inferences regarding future parental conduct. The family court acknowledged that Father had finally begun to secure some stability in his life, but also recognized that up until very recently, Father had not demonstrated the permanency necessary to provide for a young child with significant mental health and behavioral challenges. There was no substantial evidence to the contrary.
Father had only seen Child twice in nearly five years. The testimony elicited at the termination trial disclosed that Father had made no material provisions for Child of any kind, even prior to his incarceration. Despite a child support order in effect since 2009, Father's wages had only lately been garnished for child support on three occasions just prior to trial. Additionally, Father has nine other children, but custody of none. Based upon Father's current and ongoing recovery from an addiction to drugs and drug trafficking, his lack of material provisions for Child for the majority of Child's life, Child's mental health and behavioral concerns, and the absence of an established relationship with Child, the evidence supporting this statutory factor is substantial. Accordingly, we find no error.
Only one ground of parental unfitness is needed to satisfy KRS 625.090(2) (termination shall only be ordered if the family court finds the existence of at least one of the statutory grounds enumerated in KRS 625.090(2)). In this case, the family court found three grounds under this statutory element. Although unnecessary, we will address the remaining elements with which Father also takes issue.
Father next argues that the evidence is not clear and convincing that he has failed to provide or is incapable of providing essential food, clothing, medical care, and education to Child under KRS 625.090(2)(g). Father claims that he is now in a position to provide such essentials to Child because he followed the requirements of his case plan and participated effectively in Child's therapeutic visitation. Father states the testimony showed the visits went well as Child did not exhibit negative behaviors after conclusion of the visits.
Again, however, the evidence suggested to the family court that while Father had made recent efforts to adjust his lifestyle, he had yet to demonstrate a lasting ability to provide for the significant needs of Child. KRS 625.090(2)(g), like subsection (e), allows the court to make reasonable inferences regarding future parental conduct. Father had certainly made recent efforts toward reunification with Child. However, the family court expressed concern over Father's ability to handle Child's behavioral needs, especially in light of Father's and Child's limited contact during Child's life for various reasons.
Father relies on two recent visits with Child to support his claim. At the time of trial, only four visits between Father and Child had been scheduled, only two of which occurred. The first scheduled visit was canceled because Father was approximately two hours late. Father appeared for the second visit but, for the third visit, failed to show up or explain such failure. The fourth scheduled visit occurred as planned. It is not clear from the record why there was a delay in scheduling visitation with Child after Father was released or why so few visits occurred. However, the December 2014 visit was the first time Father had seen Child since before Father was incarcerated in 2010. While the two meetings between Father and Child appeared to have gone as well as one could have hoped, the length of time the two had been apart was for a considerable part of Child's young life. Despite Father's satisfaction with the two visits, Father has not identified any evidence which convinces this Court the family court's findings in relation to KRS 625.090(2)(g) are not supported by substantial evidence.
Next, Father claims the evidence is not clear and convincing that he had abandoned Child for a period of not less than ninety days. Father argues that he had no intention of failing to care for his child while he was incarcerated and made every attempt to demonstrate this after his release from prison in July 2014. However, Father's incarceration was not the only evidence supporting termination of his parental rights. Intent to abandon one's child "may be proved by external facts and circumstances." J.H. v. Cabinet for Human Res., 704 S.W.2d 661, 663 (Ky. App. 1985).
Father had little meaningful contact with Child for a significant period of Child's life, much of which included the time he was incarcerated, but not all. Father blames the Cabinet for failing to schedule more therapeutic visits between him and Child. Yet, of the few appointments scheduled, Father missed half of them. Such evidence is representative of Father's efforts to establish a relationship with Child, whom he had not seen in several years. Father admittedly failed to pay child support or provide other basic life necessities for Child even before Father was incarcerated in 2010. He chose a criminal lifestyle which prevented him from providing parental care and protection to Child. The family court was not persuaded by Father's testimony that he had finally chosen a lifestyle conducive to raising children. Based on the foregoing, we find there to be substantial evidence to support the family court's finding under KRS 625.090(2)(a).
Lastly, Father argues that the family court's determination that termination of Father's parental rights is in Child's best interest is not supported by clear and convincing evidence. The court, in conducting a best interest analysis, is guided by several factors enumerated in KRS 625.090(3). Those factors include: the mental illness or an intellectual disability of a parent; acts of abuse or neglect toward any child in the family; reasonable efforts made by the Cabinet to facilitate reunification; the efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child; the physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and the payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so. KRS 625.090(3)(a)-(f).
Father's argument mainly takes issue with the Cabinet's efforts in this case. He claims the Cabinet worker's motivation for testifying that termination was in Child's best interest was Father's failure to regularly visit with Child. Father again suggests the Cabinet is at fault for the lack of scheduled visits with Child.
However, the Cabinet worker's testimony was that the barriers to reunification between Father and Child were Father's lengthy criminal history, the considerable absence of Father from Child's life, Father's lack of material provisions for Child, and Child's significant mental health and behavioral needs. The Cabinet was in contact with Father while he was incarcerated and after he was released. Father was provided a case plan. The Cabinet could not explain the delay or lack of scheduled therapeutic visits between Father and Child because the scheduling was done through Child's therapist. In sum, Father has not convinced this Court that the Cabinet's efforts for reunification were unreasonable.
Father also argues that because Child's foster home is not a concurrent foster home, termination is not in Child's best interest because Child will have to adapt to a new placement in the future. We are not persuaded. It is clear to this Court that the physical, emotional, and mental health of Child and the prospects for the improvement of Child's welfare were undoubtedly considered. The family court was aware and expressed concern to Father about his ability to care for Child's significant behavioral challenges in the future. Child's behaviors had stabilized since entering foster care in 2013, but Child still required consistent and effective care to continue that improvement. Despite Father's recent improvements to his circumstances, the family court was not convinced Father had demonstrated the ability to provide for a child with such significant needs. We cannot say the family court's determination is clearly erroneous.
Regarding the other remaining relevant best interest factors, by Father's own admission, he has not cared or provided food, clothing or other essentials Child for Child's entire life. And, there is no meaningful relationship between Father and Child as Father's criminal activities essentially rendered him incapable of caring for Child's needs throughout Child's life.
Based on the foregoing, we find there to be substantial, clear, and convincing evidence to support the family court's determination that termination of Father's parental rights is in Child's best interest.
Conclusion
The Jefferson Family Court's March 23, 2015 findings of fact, conclusions of law, and order of judgment is affirmed.
KRAMER, CHIEF JUDGE, CONCURS.
D. LAMBERT, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
LAMBERT, D.: I would reverse the family court's decision to terminate the Father's parental rights. I, therefore, must respectfully dissent from my colleagues.
I believe the Cabinet moved with unnecessary haste in pursuing termination of the Father's parental rights. He was released from custody on July 1, 2014, and though he missed a hearing concerning the child on July 9, 2014, he actively pursued a relationship with the child, as reflected by the home visit on July 30, 2014. Despite the lack of evidence of a "settled purpose to forego all parental duties and relinquish all parental claims to the child" (O.S. v. C.F., 655 S.W.2d 34, 34 (Ky. 1983)), the Cabinet filed its petition to terminate on September 4, 2014, against both Mother and Father.
The evidence established that Father formally requested visitation in October. This event contradicts the Cabinet's assertions and the trial court's findings in that they evince a settled purpose to assert his parental rights to the child rather than to relinquish them. Moreover, no period of 90 days lapsed without an attempt by the Father to assert his parental rights. While the Father was admittedly not present in the child's life during his incarceration, this Court has previously held that incarceration cannot be considered abandonment. J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985). The Father did not abandon the child for a period longer than 90 days, and to the extent the trial court's judgment may have found otherwise, I would hold it unsupported by substantial evidence and thus clearly erroneous.
I would also emphasize the fact that the foster family in whose custody the child currently resides has no intention of providing a home for him on a permanent basis, which will necessitate the very disruption of the child's life the trial court's ruling would seek to prevent. Such disruption, when a natural parent is willing and—with Cabinet assistance—able to assume a parental role with the child, does not serve the child's best interests.
Accordingly, I would reverse the trial court's ruling. BRIEF FOR APPELLANT: Joy R. Colvin
Louisville, Kentucky BRIEF FOR APPELLEE: Erika Saylor
Louisville, Kentucky