Opinion
2021-CA-1156-ME 2021-CA-1157-ME 2021-CA-1158-ME
03-04-2022
A.D.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND A.D.M., A MINOR CHILD APPELLEES AND A.D.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND I.M.M., A MINOR CHILD APPELLEES AND A.D.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND A.M.M., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Benjamin D. Rogers Glasgow, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM METCALFE CIRCUIT COURT HONORABLE MICA WOOD PENCE, JUDGE ACTION NO. 21-AD-00001, 21-AD-00002, 21-AD-00003
BRIEF FOR APPELLANT:
Benjamin D. Rogers
Glasgow, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:
Leslie M. Laupp
Covington, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE, JUDGES.
OPINION
CETRULO, JUDGE:
The Metcalfe Circuit Court granted the Petition of the Appellee, Commonwealth Cabinet for Health and Family Services, (the "Cabinet") for Involuntary Termination of Parental Rights of Appellant A.D.M. ("Father") and S.N.B.M. ("Mother"), the biological parents of I.M.M., A.M.M., and A.D.M. (the "Children"). The Cabinet filed petitions individually for each of the Children, and all three orders terminating parental rights were consolidated in this appeal. After reviewing the record and applicable law, we affirm.
Mother did not participate in the underlying action, was not at the termination hearing, nor is she a party to this appeal.
FACTUAL AND PROCEDURAL HISTORY
In a little under two and a half years, Father and Mother had three children: A.D.M. was born October 1, 2016 (the "Youngest Child"); A.M.M. was born March 31, 2015 (the "Middle Child"); and I.M.M. was born May 21, 2014 (the "Oldest Child"). The Cabinet's involvement with this family began in July 2016, after Father was arrested for manufacturing methamphetamine and possession of drug paraphernalia. Father pled guilty on both charges, along with two charges of endangering the welfare of a minor. The Cabinet removed the Oldest Child and Middle Child at the time of the arrest and placed them in foster care (the Youngest Child was not born yet). Seven months later, in February 2017, Father stipulated to a finding of neglect as to the Middle Child and Oldest Child, and the circuit court placed both of them back in Father's custody. As part of the arrangement, Father agreed that he and the Children would continue to live with his mother ("Grandmother"). By that time, the Youngest Child was born and was in Father's care as well.
Mother was also arrested on drug charges.
The record is not clear concerning the whereabouts of the Youngest Child from birth to February 2017. All that is clear is that Mother's address was listed as a residential treatment center in August 2016; Mother had the Youngest Child on October 1, 2016; Mother's whereabouts became unknown; and all three Children were in Father's care in February 2017.
About a year later, in 2018, the Cabinet again became involved with the family when a Head Start program worker noticed bruising on the Middle Child's back. Mary Hensley (the "Investigations Worker") investigated the claims and testified at trial that the Cabinet substantiated neglect, citing Father's decision to leave the Children alone with Grandmother, who was not physically capable of caring for them. The Cabinet developed a prevention plan with Father to ensure someone was in the home to assist Grandmother in caring for the Children while he was at work. Father testified that despite the plan, he continued to leave the Children alone with Grandmother.
By that time, the Youngest Child had been born and all three Children were involved.
Grandmother had health issues, no vehicle, and no telephone.
Then, in January 2019, Father was arrested for a parole violation. The Investigations Worker testified that the parole officer contacted the Cabinet because Father had left the Children alone with the Grandmother again. The day of that arrest, the Cabinet filed a petition for emergency custody of all three Children, which the circuit court granted, and placed the Children in foster care, where they remain today.
When Father was released from incarceration, the Investigations Worker developed a case plan with him that included five items: complete a substance abuse assessment, undergo random drug screens, participate in parenting classes, and maintain stable housing and employment. The Investigations Worker testified that Father was non-compliant with that plan and had a positive drug screen for methamphetamine in February 2019. The Children's foster mother testified that Father inconsistently attended visits during that time. Then, on February 28, 2019, the circuit court held an adjudication hearing and Father again stipulated to a finding of neglect, this time for all three Children. After Father's second positive drug screen for methamphetamine in March 2019, the circuit court ordered Father to attend a six-month residential treatment program. Father entered the program in April 2019 and successfully completed it in October 2019.
During Father's stay in the program, his case was transferred to Julie Carter ("New Worker"), who testified that she negotiated a new plan with him. Then, in late October 2019, the circuit court ordered Father to participate in therapy at the recommendation of the Children's therapist to better understand their needs and struggles. Father began working with two therapists at Life Skills: therapy with Ms. Pedigo ("Therapist Pedigo") to address parenting concerns; and starting in November 2019, mental health and substance abuse counseling with Ms. Wells ("Therapist Wells").
The new plan included that Father must refrain from drug or alcohol use, maintain sobriety, seek inpatient treatment if recommended, comply with court orders, complete and follow all recommendations from a substance abuse assessment, participate in AA/NA meetings, participate in random drug screens, and maintain stable housing and employment.
In December 2019 - one month after starting substance abuse therapy and two months after completing his inpatient rehabilitation program - Father was again arrested for possession of methamphetamine. Officer Robinson testified at trial that Father arrived at the police department in December 2019 stating that someone was in his car threatening him at gun point. Father maintained that accusation and recount of events at trial. Officer Robinson testified that he searched every part of Father's car (even under the hood), but no one was found in the car that day.
Following that arrest, a motion to revoke Father's probation was filed and he was referred to drug court. Shortly after beginning drug court, he was arrested for a drug court violation and remained incarcerated for 60 days. Between Father's periods of incarceration, he continued his therapy at Life Skills; however, the New Worker testified that Therapist Pedigo noted he was not making progress because he was not able to identify any areas of concern related to his parenting abilities. Therapist Wells testified that Father was compliant with treatment, but his case was closed in July 2021 because he could not identify further treatment goals. Therapist Wells further testified that it was unusual that Father could not identify goals related to his parenting, given the current termination proceedings.
In addition to Father's Life Skills treatment, he met with the Children's therapist for two family therapy sessions. After those sessions, the Children's therapist recommended the Children cease visits with Father until he could acknowledge that he was saying inappropriate things to the Children. Consequently, in February 2020, the court suspended Father's visitation until he progressed further in therapy and demonstrated an understanding of how his actions affected the Children.
In June 2020, the Cabinet filed a motion to waive reasonable efforts and change the goal to adoption, which the circuit court denied because Father was reengaged in his Life Skills treatment and compliant with the drug court program at that time. Instead, the circuit court found that the Cabinet had provided all services it could until Father achieved sobriety and recommended that the Cabinet file a petition for termination of parental rights. The New Worker testified that since June 2020, Father has had clean drug screens and remained compliant with the drug court program. Father also maintained housing and employment. Then, in March 2021, Father had a psychological evaluation with Dr. Bruce Fane ("Psychologist") at the Cabinet's referral.
The Psychologist testified that Father was evasive during his evaluation and minimized or denied any current problems. Further, the Psychologist found that Father had difficulty associating his current situation with his behaviors and tended to externalize the blame rather than accepting his responsibility and committing to make the changes necessary to reunite with the Children. The Psychologist did not recommend reunification.
Although visitation resumed, the foster mother testified that Father did not attend consistently. Further, the foster mother and CASA worker testified that the Youngest Child did not like to participate in visits with Father. After a visit in February 2021, where Father continually repeated how much he loved the Middle Child and asked her to reciprocate the affection, the Middle Child became suicidal and has not had contact with Father since. Additionally, the Middle Child's therapist testified that the Middle Child became withdrawn and would shut down when the therapist discussed the biological family. Notwithstanding therapist's attempts to improve Father's responses to the Middle Child's emotional needs, Father still struggled to understand the emotional distress and hesitation.
Court-appointed special advocates are volunteers who juvenile court judges appoint to advocate for children who are living in foster care as a result of abuse or neglect. Kentucky Revised Statute ("KRS") 620.500(4).
The New Worker testified that despite Father's recent compliance with services, he lacked insight and failed to take responsibility for the Children's removal. Additionally, the New Worker testified that she was "extremely concerned" when Father denied any drug use since the Children's removal. The New Worker testified that in her professional opinion, after two years of foster care, termination of parental rights was in the best interests of the Children.
Finally, on March 1, 2021, the Cabinet submitted petitions to terminate parental rights for each of the Children. On April 19, 2021, at a status conference, the circuit court scheduled a two-day trial to begin August 23, 2021. The Children's petitions were tried together without a jury. Father, along with his counsel, Mother's counsel, and the Children's guardians ad litem were present.
The circuit court's findings of fact, conclusions of law, and judgment terminating parental rights for each of the Children laid out a detailed explanation of its determination, "based upon clear and convincing evidence presented at trial[.]" In pertinent part, the circuit court found that the Children were committed to the Cabinet on January 11, 2019; the Children were abused and neglected, as defined in KRS 600.020(1); termination of parental rights was in the best interests of the Children; and Father had met at least one of the KRS 625.090(2) enumerated factors.
Father appealed these findings, specifically claiming that (1) the trial was untimely under KRS 625.080(5); and (2) the circuit court did not find termination was in the best interests of the Children by clear and convincing evidence. We disagree on both claims and affirm the circuit court's findings.
STANDARD OF REVIEW
We use the clearly erroneous standard when reviewing whether the termination of parental rights was lawful. C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 160 (Ky. App. 2012). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (internal quotation marks and citation omitted); see also CR 52.01. Substantial evidence is evidence that, when "taken alone or in the light of all the evidence[, ] . . . has sufficient probative value to induce conviction in the minds of reasonable men." Blankenship v. Lloyd Blankenship Coal Co., Inc., 463 S.W.2d 62, 64 (Ky. 1970).
Kentucky Rule of Civil Procedure.
ANALYSIS
A. Timeliness of Trial
First, Father claims that the circuit court violated KRS 625.080(5), which states "[t]he hearing under this chapter shall be held within sixty (60) days of the motion by a party or the guardian ad litem for a trial date." Father argues that because the circuit court held the trial more than 60 days after the motion, it violated the statute. At the pre-trial conference on April 19, 2021, the parties decided a two-day trial was necessary to hear from all witnesses. The circuit court scheduled the trial for a time when its docket could accommodate a two-day trial: starting August 23, 2021. Neither party objected to this schedule. Notwithstanding Father's failure to properly preserve this issue for appeal, the claim fails.
This issue was not properly preserved. "We have long held in Kentucky that an issue not raised in the circuit court may not be presented for the first time on appeal." Jones v. Commonwealth, 239 S.W.3d 575, 577-78 (Ky. App. 2007) (citations omitted); CR 76.12(4)(c)(v).
Father states that the Legislature "meant what it said" in the statute and clearly intended for parental rights cases to be timely and not suffer unnecessary delay. We agree. However, Father provides no discussion or supporting caselaw suggesting that this was an unnecessary delay. As the Cabinet notes, the circuit court scheduled this trial when it was able to accommodate the length of time the parties requested (i.e., two days). Further, Father argues no remedy for the delay - and the statute provides none - nor does he identify any prejudice or violations of due process the delay caused.
In fact, at trial, Father orally motioned to continue the trial, after arriving two and a half hours late.
Importantly, when the circuit court scheduled the trial more than 60 days out, Father did not object. As the Cabinet correctly identified, when Father failed to object, he waived such defect. See Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (quoting Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) ("Almost all issues are subject to waiver[, except subject matter jurisdiction], whether from inaction or consent, even in a criminal case, and '[a] new theory of error cannot be raised for the first time on appeal.'")).
Therefore, Father waived any issue he may have had with the trial date when he failed to object to its alleged untimeliness at the time the circuit court scheduled it.
B. Children's Best Interests
KRS 625.090 governs involuntary parental right terminations. It says, in pertinent part,
that a circuit court may involuntarily terminate parental rights if it finds, by clear and convincing evidence, that the child is an abused or neglected child as defined in KRS 600.020(1) and that termination serves the best interest of the child. KRS 625.090(1)(a)-(b). Lastly, the circuit court must ascertain under KRS 625.090(2) that clear and convincing evidence has been provided to show the existence of one or more of ten factors.C.J.M., 389 S.W.3d at 160 (emphasis added).
The statute lays out a three-part analysis: the circuit court must find (1) the child was abused or neglected, according to KRS 600.020(1); (2) termination is in the child's best interest; and (3) one of the enumerated factors is KRS 625.090(2) is present. Id.
Father argues only that the Cabinet did not meet its burden of clear and convincing evidence under part 2 of the analysis: the child's best interest. Accordingly, we will focus our analysis there. KRS 625.090(3)(a)-(f) outline the six factors a circuit court must consider when determining the child's best interest and a ground for termination. See K.H., 423 S.W.3d at 212.
There is no dispute that the circuit court properly supported its findings for parts 1 and 3 of the analysis.
As an initial matter, we note that the circuit court need not specifically address each factor for the findings to "lead us to believe that each factor was properly considered." Id. at 212 (citing D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 115 (Ky. 2012)). Therefore, the question is simply whether the circuit court properly considered the factors. Id.; see also R.M. v. Cabinet for Health and Family Services, 620 S.W.3d 32 (Ky. 2021). This becomes clear after thorough review of the circuit court's order and the nature of the evidence cited to substantiate its findings. See Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citations omitted). For the sake of brevity, we will not discuss KRS 625.090(3)(a) in detail. There has been no evidence presented to indicate that Father suffered from a mental illness or intellectual disability that has been qualified by a mental health professional. KRS 625.090(3)(a). We will analyze each of the remaining factors in more detail.
The circuit court's order stated that "all the factors in KRS 625.090(3) were considered."
The Kentucky Supreme Court clarified that in making such determination, "[c]lear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Id.
There was mention of a couple of Father's seemingly dissociative episodes; however, there is not evidence suggesting these have been qualified by a mental health professional.
Generally, the circuit court noted that it based its findings on the "clear and convincing evidence presented at trial," and it referenced many of the facts in the factual and procedural history, above.
KRS 625.090(3)(b) states that the circuit court must consider "[a]cts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family[.]" In addition to Father's stipulation to acts of abuse or neglect, as defined in KRS 600.020, the circuit court also noted that Father continually left the Children with an inappropriate caregiver and did not provide essential parental care to the Children. The circuit court explained that Father had not provided adequate care, supervision, food, clothing, shelter, education, or medical care to the Children. This evidence is substantial and undisputed. The circuit court did not abuse its discretion when it found Father had abused or neglected the Children, as defined in KRS 600.020(1).
Next, KRS 625.090(3)(c) states that the court must consider "whether the [C]abinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents[.]" The circuit court discussed the Cabinet's attempts to render all reasonable services to Father in an effort to reunite the family, and Father's failure to adequately utilize them throughout the two-plus years Children have been in foster care. The Cabinet had offered Father multiple case plans, opportunities for visitation, and access to therapy. The circuit court found that despite those efforts, Father failed to adequately complete the tasks listed in his case plan, had positive drug screenings, did not adequately complete therapy and parenting classes, and inconsistently attended visitation. The circuit court supported its findings with substantial evidence and did not abuse its discretion.
The next factor the circuit court must consider is KRS 625.090(3)(d): 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[.]" Father claims that he worked most of his case plan, had been sober since June 2020, had stable employment and housing, attended therapy sessions and parenting classes, and attended visitation with two of the Children. Father also claims that he regularly attends Narcotics Anonymous meetings. Father argues that the circuit court did not properly consider these efforts under subsection (d).
However, the circuit court noted that while Father was making some efforts and following portions of the case plans, it was not adequate to allow for reunification. Specifically, the court detailed that although Father attended inpatient drug rehabilitation, he relapsed two months later. Subsequently, the court noted, Father was arrested for possession of methamphetamine and pled guilty to that charge. Despite multiple positive drug screens and arrests involving drugs, Father maintains that he does not have a drug problem and has never had a positive drug screen.
The court further cited that although Father attended a few parenting classes, the last progress report said that no progress had been made. The circuit court recounted that Father's visitation with the Children was inconsistent and the Middle Child had not been involved with visits in over two years. At the beginning of the case, the court noted, Father attended only three of the first 12 in-person visits. Although Father attends Zoom visits, he often said inappropriate things to the Children and he often needed to be redirected. Additionally, the court noted that the Children are always excited to see the CASA worker during visits but say they do not want to talk to Father. Although Father provided evidence to contradict the circuit court's finding, "[c]lear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." See T.N.H., 302 S.W.3d at 663 (citations omitted). Here, the court provided proof of a substantial nature, so its findings were not clearly erroneous.
Penultimately, the circuit court must "take[ ] into account the child's physical, emotional, and mental health coupled with whether improvement will continue if termination is ordered." K.H., 423 S.W.3d at 213 (citing KRS 625.090(3)(e)). The circuit court provided ample details as to the Children's progress while in foster care.
The court noted that the Youngest Child started as a bruised, reserved two year old and is now a talkative four year old with typical behaviors. The Middle Child had bruises and threw uncontrollable fits when placed in foster care but has since made progress. The Middle Child still becomes withdrawn when discussing Father and states that Father is scary, even after two years of foster care. The Oldest Child started in foster care with serious speech delays and was almost non-verbal. The Oldest Child also had an eye condition requiring surgery, which Father never scheduled. If the Oldest Child had the surgery while in Father's care, it would have required one surgery; however, because the surgery was delayed, it could take up to four surgeries to resolve the issues. The Oldest Child also suffers from anxiety, difficulty focusing, sleep problems, and defiance; and has been diagnosed with fetal alcohol exposure and complex attention deficit hyperactivity disorder. Now, the Oldest Child attends occupational therapy, physical therapy, speech therapy, mental health therapy, and music therapy.
The circuit court noted the Children's substantial improvements while in foster care and the expectation for more improvements upon termination of parental rights. Further, the circuit court concluded that termination of parental rights was in the best interests of the Children because they need the stability provided by a permanent home, through adoption. The circuit court concluded that Father had no insight into the Children or what he did that led to the Children being in placement. The circuit court determined that Father did not take any responsibility for Children being placed in foster care. Those findings were supported by ample evidence and were not an abuse of discretion.
Lastly, the circuit court must consider "[t]he 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)(f). Father argues that he attended visitation and provided gifts and items to the Children throughout the year. Father also contends that he is current on his child support payments through the juvenile action and that he has provided care and maintenance to the Children while they have been in foster care. However, Kentucky caselaw makes it clear that such evidence alone is not enough to find a circuit court's decision to be clearly erroneous. R.M., 620 S.W.3d 32 (citations omitted); see also S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010).
In R.M. v. Cabinet for Health and Family Services, the Kentucky Supreme Court found that when a circuit court considered such information as presented here, the findings were based on substantial evidence and were not clearly erroneous. R.M., 620 S.W.3d at 43. There, the parents stipulated to abuse or neglect of the children; did not contribute substantially to the children's upbringing after separation, other than occasional gifts; and the experts involved thought that termination of parental rights was in the children's best interests. Id. Further, there, the Court noted the value of permanency and stability to a developing child, as demonstrated by the children since their removal. Id.
Similarly, here, the circuit court cited numerous details from trial to support its findings that Father stipulated to neglect of the Children, contributed the occasional gift while Children were in foster care, and the experts - the Psychologist as well as New Worker - testified that reunification was not in the best interests of the Children. While Father did also contribute child support payments while the Children were in foster care, this court has found that such payments do not preclude a finding that it is in the child's best interest to terminate parental rights. S.B.B., 304 S.W.3d at 716 ("Although payment of support is a significant factor in determining whether a parent has abandoned a child, Hafley v. McCubbins, 590 S.W.2d 892 (Ky. App. 1979), it is but one factor to be considered.").
Additionally, the circuit court noted that it is in the best interests of the Children that they be awarded the permanency and stability that adoption would provide. Importantly, the circuit court here, like the Kentucky Supreme Court in R.M., spoke at length about the Children's "remarkable improvement, physically, mentally, and socially since entering foster care and undergoing treatment." R.M., 620 S.W.3d at 43. There, the Kentucky Supreme Court found such improvement to be supportive evidence. Id.
The circuit court's order contains substantial evidence supporting its decision to terminate Father's parental rights and that such termination is in the best interests of the Children. It is clear from the evidence presented that the circuit court considered each of the necessary factors to make its determination. That evidence "has sufficient probative value to induce conviction in the minds of reasonable men." Blankenship, 463 S.W.2d at 64 (Ky. 1970). We therefore do not find the circuit court's decision to be clearly erroneous.
CONCLUSION
For reasons contained herein, we AFFIRM the circuit court's order to terminate Father's parental rights.
ALL CONCUR.