Opinion
NO. 2020-CA-0616-ME
03-05-2021
A.M.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES COMMONWEALTH OF KENTUCKY; D.A.S.; AND L.A.R. APPELLEES
BRIEF FOR APPELLANT: William Joseph Fooks Paris, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany Lorraine Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT FAMILY COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 19-AD-00059 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: A.M.S. (father) appeals from Scott Family Court's order terminating his parental rights to D.A.S. (child) on the basis that he and L.A.R. (mother) were never given notice and opportunity to participate in the underlying dependency, neglect, and abuse (DNA) proceedings or provided with counsel for that action. Father also argues that regarding the termination case, the Cabinet for Health and Family Services (the Cabinet) failed to meet its burden to prove that termination was proper. Underlying both of father's arguments is that a relative placement during the DNA proceedings would have rendered termination unnecessary and inappropriate.
As mother did not appeal, we only discuss her as necessary to explain the facts relevant to father's arguments.
Child was born to father and mother in August 2011. Father is listed on child's birth certificate and was also the subject of a paternity action before the Scott Family Court brought by the Cabinet in December 2017 to establish child support.
When child was born, he lived with mother and N.M., who is mother's sister and would later become his guardian (maternal aunt/guardian). The following year, child's younger brother, J.R. (brother), was born to mother and a different father. Maternal aunt helped care for the children. Father regularly visited with child until he was incarcerated when child was about eighteen months old.
On July 9, 2013, maternal aunt obtained a court-ordered guardianship of child and brother after mother was incarcerated, based upon the consent of both parents. About two years later, mother unsuccessfully tried to terminate guardian's guardianship of the children.
On May 8, 2018, the Cabinet filed a DNA petition in which child's father was listed as unknown. The Cabinet was granted an emergency custody order removing children from guardian's care based upon allegations of sexual abuse of brother. On May 11, 2018, following a temporary removal hearing, an order was entered finding child's parents were incarcerated, his caretaker had not established a legal claim to custody and was concurrently charged for failure to protect child, and that child's best interest required a change of custody from guardian.
We only briefly discuss the specifics of the underlying incidents of abuse and neglect that led to child's removal because these incidents are not relevant to the termination case against father. It is undisputed that father was not directly or indirectly responsible for guardian's actions as he was incarcerated the entire time that child was under guardian's care. There are no allegations that father abused or neglected child by consenting to the guardianship years earlier. Father does not dispute that the Cabinet and the family court responded properly in removing the children.
The Cabinet apparently made no effort to locate or contact father about child's removal from guardian's home and placement in foster care, involve father in planning for child, or serve him as a party in the DNA case. However, eventually, father learned from mother that child was in the custody of the Cabinet.
In August 2018, father contacted the Cabinet. He explained he was released from jail the previous month and was waiting for sentencing on different charges in September 2018. Father discussed a possible placement of child with his mother (grandmother) who lived out of state but did not provide the Cabinet with her contact information.
In September 2018, the Cabinet sent letters to family members regarding potential placement of child. These included a letter to grandmother at an address the Cabinet located. The Cabinet received no response.
On September 19, 2018, the Cabinet filed an amended DNA petition alleging child was exposed to guardian's paramour (who had past sexual abuse reports and was listed on the sex offender registry) and that brother had been abused by brother's natural father. Despite father's contact with a Cabinet investigator the month before, father was again listed as unknown on the amended petition, and he received no notice of the proceedings.
In April 2019, father received a letter from mother telling him that although the children were still in the custody of the Cabinet, she was hopeful she could get the children back or that one of her family members could take custody of them.
On June 3, 2019, the family court indicated in its docket order that "Court will need to determine whether all necessary parties have been notified and properly brought before the Court if necessary." Although father was located by the Cabinet and a letter was sent to him in prison later that month, it was returned because he was being transferred between prison facilities. No further steps were taken by the Cabinet to locate father at that time.
Child continued in the custody of the Cabinet, with the adjudication hearing in the DNA case partially heard on August 29, 2019. In a docket order, the family court noted that father was currently incarcerated and had been incarcerated throughout the proceedings. The rest of the hearing was repeatedly continued due to problems securing witnesses.
On September 12, 2019, the Cabinet filed a petition to terminate father's and mother's parental rights to child on multiple grounds. A termination case regarding brother was simultaneously filed.
In October 2019, father was finally contacted by the Cabinet when he received a letter from ongoing caseworker Jennifer Smith. She informed father that the Cabinet was seeking to terminate his parental rights.
Father responded that same month to Ms. Smith with two letters of his own. In them, father requested that grandmother or other members of his immediate family, who lived out of state, be considered to take custody of child. He indicated grandmother would contact the Cabinet and requested information on further steps to be taken, but he did not provide contact information for any of his family members. Also, in October 2019, father's sister S.S. (paternal aunt) contacted the Cabinet about possibly taking custody of child.
While it is disputed what exact conversations took place between father and the Cabinet investigator in August 2018 and paternal aunt and Ms. Smith in October 2019, what is undisputed is that further steps were not taken to place child with grandmother or paternal aunt, notify father about the DNA case, or have him participate in any planning decisions for child. Father was never given a case plan to facilitate reunification or provided any means for engaging in contact with child.
The one and only time a Cabinet worker reached out to father to try to set up a meeting with him was in January 2020, when Ms. Smith called his current prison facility. When Ms. Smith was disconnected while being transferred to father's case manager, she did not call back and made no other efforts to contact father.
The adjudication hearing in the DNA case was finally completed on January 29, 2020. An order was entered in which the family court found that child was neglected or abused by other persons exercising custodial control on a number of counts. The family court found: "Both parents incarcerated, no other relatives or fictive kin available, child well bonded in foster placement and has made significant improvement since removal." It changed child's permanency goal to adoption, noting that the termination of parental rights trial was already scheduled.
On February 10, 2020, father filed a motion to dismiss or continue further proceedings in the DNA case to determine a less restrictive placement for child other than foster care on the basis that the Cabinet violated father's and mother's rights by failing to serve them with either DNA petition, appoint them with counsel, or join them as necessary parties. Father noted that his identity was not unknown and he had a right to participate in proceedings involving the placement of his child. While acknowledging that he was not the target of the DNA case, father identified the removal of child and placement with the Cabinet as being the most critical stage vis-à-vis himself as it started the clock running for purposes of termination of parental rights. He argued it was inappropriate for the Cabinet to place child without considering the statutory preference for placement with relatives, considering the wishes of child's parents.
On February 18, 2020, the family court denied father's motion in a docket order.
The termination hearing was held on February 21, 2020. The family court heard testimony from Ms. Smith, paternal aunt and father.
Ms. Smith testified as to the circumstances that resulted in the removal of child and brother from guardian's care, the Cabinet's contact with father and the efforts made to locate relatives for potential placement, and the improvements child made after being placed in foster care. She testified child was developmentally behind when placed in foster care as he was still wearing a pull-up, did not know how to use silverware, and was breaking things.
Smith noted that the children were temporarily placed in separate homes after they were observed to be sexually acting out on each other, but after receiving counseling were able to be placed together again. She explained that child was diagnosed with ADHD and PTSD and continues to receive counseling.
Smith testified that the children were in the same foster home for most of the time they were in foster care and made many improvements in their behavior. While Smith admitted child and brother received a new foster home placement in December 2019, after their foster family moved out of state, she testified the children were continuing to do well and continued to see the same counselor. She testified that the children had become attached to their new foster family and it was an adoptive home. Smith opined that child and brother were very attached to each other and separating them could be detrimental to their well-being.
Ms. Smith testified that paternal aunt, while willing to take placement of child, was hesitant to also take placement of brother and did not pursue placement. Ms. Smith testified that father never visited with child and never provided for child in any way.
Ms. Smith testified about father's extensive criminal history and, specifically, what crimes he had committed since child's birth. These included convictions for: trafficking heroin, trafficking cocaine, and complicity to being a convicted felon in possession of a handgun in 2019; tampering with physical evidence and possession of marijuana in 2018; three counts of trafficking heroin and three counts of trafficking in carfentanil in 2018; possession of marijuana in 2018; promoting contraband and trafficking marijuana in 2013; and two counts of being a felon in possession of a firearm and possession of cocaine in 2013.
Paternal aunt testified she would like to be considered for placement of child and possibly brother. She testified she had no criminal or social services history, could provide for child, and that Ms. Smith failed to contact her about further steps to take to be considered for placement.
Father testified he was involved in child's care before his incarceration but admitted he had not provided materially for child since child was placed in foster care. Father acknowledged his criminal history but testified he was doing well while incarcerated, had completed several classes, and expected that with his good time credits he would be released to a halfway house in the next six months. Father acknowledged he could not care for child while incarcerated, but he opined child should be placed with paternal aunt.
Father also introduced several exhibits including: pictures of child, either alone or with father; the letter father received from the Cabinet, the letters he sent to the Cabinet, and the letter he received from mother; the reclassification of custody form which indicated father is parole eligible on April 24, 2023, has a minimum sentence expiration date of May 17, 2026, and had no disciplinary reports in the last twelve months; father's prison bank account balance sheet, which showed he receives $300 monthly income; and the paternity action complaint in which he was named as father.
In the findings of fact and conclusions of law entered on April 1, 2020, and the order terminating parental rights, the family court reviewed the evidence from the trial, made appropriate findings, and adjudged that termination was appropriate. The family court found and adjudged child an abused or neglected child in the termination action pursuant to Kentucky Revised Statutes (KRS) 625.090(1)(a)2, under definitions in KRS 600.020(1)(a)2-4, based upon father: (1) creating or allowing to be created a risk of physical harm or emotional injury by other than accidental means; (2) engaging in a pattern of conduct that renders him incapable of caring for the immediate and ongoing needs of the child including parental incapacity due to alcohol and other drug abuse; and (3) continuously or repeatedly failing or refusing to provide essential parental care and protection for the child, considering his age. The family court explained that father had a dedication to a criminal lifestyle that included ten separate criminal actions committed after child's birth, including drug convictions which rendered him incapable of caring for child.
The family court found and adjudged that termination of father's parental rights would be in the best interest of child as required under KRS 625.090(1)(c), (3)(c)-(f), because: the Cabinet made reasonable efforts to reunite child with parents but those efforts were unsuccessful; the Cabinet provided all reasonable services to family which included seeking out and attempting to find relative placement for this child, noting that "placement with relatives is not mandatory and once the conditions for termination of parental rights have been met, placement with relatives may be an option for consideration but nothing more"; parents failed or refused or have been unable to make sufficient effort and adjustments in their circumstances, conduct or conditions to make it in the best interest to return child to either of their homes within a reasonable period of time considering child's age; child is currently in an adoptive home, doing well, bonded and expected to continue to improve with a permanent adoptive placement; and father failed to pay a reasonable portion of the cost of child's substitute physical care and maintenance, never providing any care for child materially or otherwise despite father having income of at least $300 per month.
The family court found and adjudged that the grounds for termination existed as to father pursuant to KRS 625.090(2)(e), (g), and (j). As to KRS 625.090(2)(e), the family court determined that for periods of not less than six months, father failed or refused to provide or was substantially incapable of providing essential parental care and protection of child and there is no reasonable expectation of improvement in parental care and protection considering the age of the child. The family court explained that after father contacted the investigator about child he made no steps to become involved in the case regarding his child, remained incarcerated, had not provided any care for child since at least 2013, and had a lengthy criminal history for crimes committed after child's birth. While acknowledging that father had taken classes in prison to improve himself and hoped to be paroled in the next six months, the family court determined that even if paroled "this Court would need evidence to show [father] actually applied these new skills to his lifestyle outside of prison to find the risk of continued maltreatment for this child has abated."
As to KRS 625.090(2)(g), the family court stated that father, for reasons other than poverty alone, failed to provide or has been incapable of providing essential food, clothing, shelter, medical care or education necessary and available for child's well-being and there was no reasonable expectation of significant improvement in the immediately foreseeable future, considering the age of child. The family court explained that the same facts as discussed for KRS 625.090(2)(e) applied here.
Furthermore, the family court determined that pursuant to KRS 625.090(2)(j), child had been in foster care for fifteen cumulative months out of forty-eight preceding filing of the petition, as child was in foster care for more than sixteen months when the Cabinet filed the termination petition.
Finally, the family court considered that pursuant to KRS 625.090(4)-(5), the Cabinet offered reunification services, but there were no additional services that were likely to bring about lasting parental adjustment enabling child's return, he would continue to be an abused or neglected child if returned to father, and the Cabinet could care for child. Therefore, the family court entered an order terminating father's parental rights.
This case comes to us on review of the termination case, rather than the DNA case, so our discussion of father's arguments regarding the DNA case must necessarily be focused on determining the extent to which failures during the DNA proceeding may have prejudiced him during the termination process. Father argues two distinct due process errors occurred regarding the DNA case: (1) he did not receive notice and an opportunity to be heard; and (2) although indigent, he did not receive representation by appointed counsel.
Father does not argue there was any error in the family court's concluding that guardian abused and neglected child and child should not be returned to her custody. Therefore, father's arguments about his lack of involvement in the DNA case is a procedural objection.
Although father's argument focuses on just the DNA case itself in regard to his lack of notice and opportunity to be heard, we also address his lack of notice and opportunity to be heard in the more informal processes the Cabinet engages in with regard to case planning for child as we believe this encompasses his claim that if he was given further involvement, child could have been placed with his relatives.
It is well established that parents have a liberty interest in the custody of their children which entitles them to due process protections. Cabinet for Health and Family Services v. K.S., 610 S.W.3d 205, 212 (Ky. 2020). The constitutional requirements of due process apply to both custodial and noncustodial parents in DNA cases. R.V. v. Commonwealth, Dep't for Health and Family Services, 242 S.W.3d 669, 672 n.2 (Ky.App. 2007).
The DNA statutes repeatedly refer to "parent or other person exercising custodial control or supervision" as who is entitled to notification and to participate in the DNA process. KRS 620.070(2); KRS 620.080(1); KRS 620.090(1)-(2); KRS 620.180(2)(a)1; KRS 610.125(3), (5). We are confident that this "or" is neither intended, nor can it constitutionally be interpreted, to exclude a noncustodial parent from participating in a DNA case involving that parent's child. The "or" is instead meant to additionally include a person exercising custodial control or supervision, if such a person exists, whether or not there is also a parent.
Our statutes and regulations form a cohesive whole in providing reasonable procedures for the removal of children from parental care, mandating what efforts must be made to reunite parents with their children, and ultimately, for termination of parental rights if sufficient progress is not made to safely return children to their parents. For this system to function properly, the Cabinet must faithfully fulfill all its statutory and regulatory duties to the children in its care and their parents. These include: holding a case conference within ten days of removal and then case reviews at six months, and thereafter every three months if child is still in the custody of the Cabinet; locating the children's parents within thirty days; engaging in appropriate permanency planning pursuant to a written court-approved case plan which must be filed within thirty days; filing written case progress reports with the family court every six months; and initiating annual permanency hearings. See KRS 620.180(2)(a)1, (c)1-2 (case conferences and case reviews); KRS 620.230 (case permanency plans); KRS 620.240 (case progress reports); KRS 610.125(1) (permanency hearings); 922 Kentucky Administrative Regulations (KAR) 1:140 (permanency planning). A lack of sufficient parental progress on a case plan can justify a change in a permanency goal, constitute abuse or neglect, and the subsequent elapse of time can be grounds for termination of parental rights. KRS 600.020(1)(a)9; KRS 625.090(2)(j); 922 KAR 1:140 § 5(2).
All these processes require that parents be located and given mandatory notice of their right to participate.
Pursuant to 922 KAR 1:140 § 3(3):
If a child entering the custody of the cabinet has an absent parent, an absent parent search shall:
(a) Be conducted within thirty (30) days of a child entering the custody of the cabinet;
(b) Be conducted to gather as much information as possible related to the person and the person's location, which may include:
1. Date of birth;
2. Social Security number;
3. Present or previous employers;
4. Present or most recent address; and
(c) Include a written record of all search attempts, written correspondence, and telephone contacts with any person to assist in locating a parent or relative.
Pursuant to KRS 620.180(2)(a)1, case conferences are periodically held on children placed with the Cabinet "for the purpose of establishing a specific treatment plan which may include preventive and reunification services for the child and his parent[.]" The statute states that the parent and his counsel, if any, have the right to be notified of, be present at, and participate in such conferences. The parent's right to be present and participate is so important that the statute states this right twice with slightly different wording in this same paragraph.
Every twelve months a permanency hearing is to be held on children the Cabinet has removed. KRS 610.125(1). The parent has a right to notice, to be heard, and to "present any evidence relevant to the determination of a permanency goal for the child." KRS 610.125(5). The right of the parent to be heard is so important that it is stated in both KRS 610.125(3) when grouped with notice and in KRS 610.125(5) when grouped with presenting evidence.
Although the Cabinet must often act rapidly to remove children from harmful situations and may receive emergency custody through ex parte orders, KRS 620.060(1), this cannot excuse the Cabinet for its failure to involve father in all stages of the DNA case and in the Cabinet processes regarding child.
The Cabinet's initial task was to locate father. It appears that the Cabinet was entirely dilatory in this required task. This is unacceptable where father was known and knowable. Father was listed on child's birth certificate. Guardian and mother knew who father was. The Cabinet should have known who father was from its own paternity action.
Father's location was also easy to determine. The family court found in its temporary removal order that father was presently incarcerated. Therefore, the Cabinet knew this fact. Father could have been rapidly located with a simple online search. See KOOL, Kentucky Offender Search - Kentucky Department of Corrections - Offender Online Lookup System, http://kool.corrections.ky.gov/ (last visited Jan 27, 2021) (allows members of the public to search current inmates by name).
However, even if the Cabinet was somehow, despite diligent efforts, unable to locate father, the Cabinet learned where father was and who he was at the latest when father contacted its investigator. However, even after this time, father was not named in the amended petition, and the Cabinet did not provide him any notice or opportunity to be heard regarding case planning for child or, later, child's permanency hearing. As child's parent, father had an unequivocal right to participate in all these proceedings.
It appears that both the family court and the Cabinet focused on guardian and treated father as superfluous to the DNA case. However, our statutes and regulations do not justify such a response or provide exceptions to father's right to participate on the basis that child was not removed from his custody, he was not the target of the DNA case, or his incarceration status. There is no reason that even if father could not be physically present, father could not have participated telephonically or through alternative means in both the DNA case and in the Cabinet's case planning.
While the family court and the Cabinet failed in their duties to father during the DNA case, father also failed in his parental duties once father learned that child was in the custody of the Cabinet. Father did not seek to visit with child during his brief release from custody, he did not seek to have any contact with child once he was back in custody (such as writing child letters), he did not pay any child support despite having the means to make at least token payments, and he did not take requested steps to help facilitate a possible relative placement. While father may not have known about his right to participate in the DNA case and planning for child, he should have known that as a father he needed to do more than wait for the Cabinet to contact him. Father could not assume that mother or his extended family members would work out a relative placement for child with the Cabinet.
We next address the related issue of whether father's lack of counsel in the DNA case served to deprive him of his right to due process in the termination case. In Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 32-33, 101 S.Ct. 2153, 2162-63, 68 L.Ed.2d 640 (1981), the United States Supreme Court declined to hold that parents have an absolute due process right to counsel even in termination of parental rights cases, instead stating that a case-by-case determination is all that is constitutionally required. However, it noted that states which provide for appointed counsel in parental termination proceedings and also dependency and neglect proceedings are "enlightened and wise." Id. at 34, 101 S.Ct. at 2163.
By statute, in Kentucky indigent parents have "a categorical right to counsel in several child welfare proceedings." K.S., 610 S.W.3d at 213 (footnote omitted). In termination cases:
the General Assembly has eliminated the need for a case-by-case determination by enacting KRS 625.080(3), which specifically provides that "[t]he parents have the right to legal representation in involuntary termination actions." The statute further authorizes the trial court to appoint counsel for a parent who is found to be indigent under the provisions of KRS Chapter 31.S.S. v. Commonwealth, Cabinet for Health and Family Services, 537 S.W.3d 834, 836 (Ky.App. 2017).
In DNA cases, only custodial parents are absolutely entitled to counsel. R.V., 242 S.W.3d at 672. KRS 620.100(1) provides generally that in a DNA case "the court shall advise the child and his parent or other person exercising custodial control or supervision of their right to appointment of separate counsel[.]" However, the statute then clarifies that "[t]he court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel pursuant to KRS Chapter 31[.]" KRS 620.100(1)(b) (emphasis added).
However, there is an intersection in these contrasting rights to counsel as explained in R.V., which held:
the parental rights of a child may not be terminated unless that parent has been represented by counsel at
every critical stage of the proceedings. This includes all critical stages of an underlying dependency proceeding in district court, unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case.R.V., 242 S.W.3d at 673. This holding was further clarified in B.L. v. J.S., 434 S.W.3d 61 (Ky.App. 2014) and C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155 (Ky.App. 2012).
B.L. involved whether a biological father should have been entitled to representation of counsel during a neglect case and whether the lack of counsel then adversely affected him in an involuntary adoption case. The Court held that the biological father was not statutorily entitled to counsel during the neglect case because he was both incarcerated (and so not a target of the neglect case) and uninvolved and therefore did not qualify as someone exercising custodial control or supervision of the minor child. B.L., 434 S.W.3d at 66. The Court further determined that the father's lack of representation in the neglect case did not prejudice him in the involuntary adoption case because separate findings were made in the involuntary adoption case before the petition for adoption was granted, rather than the family court relying on findings made in the neglect case. Id. at 67. Additionally, the court was not persuaded by father's argument that the lack of counsel in the DNA case prejudiced him because he did not fully understand the neglect proceedings, explaining, "Biological Father's understanding of the neglect proceedings is not relevant with respect to Biological Father's termination proceeding." Id.
Parents have a right to counsel in an involuntary adoption case pursuant to KRS 625.0405(1).
In C.J.M., indigent parents in a termination case claimed error because in the DNA case in which they were accused of neglect, they did not have counsel at a critical stage. They were initially represented by appointed counsel in the DNA case but later dismissed counsel and waived appointment of future counsel. While there was a question as to whether this error was preserved, the Court declined to find either manifest injustice or any error, explaining that "[n]either parent has proven that their decision to be unrepresented occurred at a critical stage of the underlying dependency proceeding." C.J.M., 389 S.W.3d at 163. It further noted "no statutory or caselaw provisions indicates [sic] that counsel must be foisted on parties who decline representation" and focused on the provision of KRS 625.080(3) which states that if a parent is determined indigent the court shall inform the parent of the right to counsel and "upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the parent[.]" C.J.M., 389 S.W.3d at 163-64.
In C.J.M., the Court did not clarify whether the finding of abuse or neglect in the termination case was based upon the finding of neglect by the father and stipulation by the mother in the DNA case while they were unrepresented or whether separate findings were made in the termination case itself. However, the Court did note that the parents apparently conceded child was abused or neglected as they did not contest that. Id. at 161.
Because father was not the custodian from whose home child was removed in the DNA action and no findings from the DNA proceeding were used against father, father is incorrect that he was entitled to court-appointed counsel in the DNA case. Although the lack of involvement of father in the DNA case is unjustified, because separate findings of abuse and neglect were made against father in the termination proceeding, the DNA proceeding did not particularly impact whether termination could be obtained against father. Therefore, while it was an error not to provide notice to father regarding the DNA proceeding, his parental rights were not thereby jeopardized except to the extent that the Cabinet involvement shined a light on his lack of parental involvement. Accordingly, we proceed to considering whether termination of father's parental rights was justified by the evidence produced during the termination proceeding.
Whether termination is appropriate depends upon whether the statutory requirements contained in KRS 625.090 are met.
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a three-part test. 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).B.E.K. v. Cabinet for Health and Family Servs., 487 S.W.3d 457, 464 (Ky.App. 2016).
Because the family court has wide discretion in deciding to terminate parental rights, "our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence." Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "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." Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Where the family court relies on multiple grounds for termination of parental rights, our affirmance of the termination is still proper if we agree that any of the grounds for termination under KRS 625.090(2) was found by clear and convincing evidence.
When the Cabinet is granted temporary custody of a child following a removal hearing, it is required to "use the least restrictive appropriate placement available" with "[p]reference . . . given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known." KRS 620.090(2). Later, when making permanency decisions, the Cabinet may consider permanent relative placement or guardianship by relatives as a permanency option instead of termination of parental rights. 922 KAR 1:140 §§ 7-8.
While "[t]he cabinet shall request an exception for proceeding with involuntary termination of parental rights . . . if . . . relative or fictive kin placement has been secured[,]" 922 KAR 1:140 § 6(2)(a), the existence of relatives who may be willing and able to provide a home for child but have not yet done so does not prohibit the termination of parental rights when the conditions for terminating parental rights have been met. P.S. v. Cabinet for Health and Family Services, 596 S.W.3d 110, 118-19 (Ky.App. 2020). "Although the Cabinet is required to consider any known and qualified relatives in its determination of proper placement, [the relevant statutes and rules] do not mandate that the Cabinet choose a relative placement over other options." P.W. v. Cabinet for Health and Family Services, 417 S.W.3d 758, 761 (Ky.App. 2013). The least restrictive appropriate placement available may not be placement with relatives. G.P. v. Cabinet for Health and Family Services, 572 S.W.3d 484, 492 (Ky.App. 2019). There is no due process violation of parental rights when the Cabinet chooses to proceed with termination rather than relative placement. J.L.C. v. Cabinet for Health and Family Services, 539 S.W.3d 692, 694-95 (Ky.App. 2018); V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 426 (Ky.App. 1986).
We have no difficulty in concluding that termination of father's parental rights was justified based upon the evidence because the family court had valid grounds for finding that father abused or neglected child, that it was in child's best interest that termination take place, and there were grounds for termination. Although father focuses on the lapse of time not justifying termination, the lapse of time was not a basis for a finding of neglect, and there were other grounds for termination.
It was well established that father abused and neglected child by creating a risk of harm to him and not parenting child under definitions in KRS 600.020(1)(a)2-4, and the failure to parent child also provided grounds for termination under KRS 625.090(2)(e) and (g). Although ongoing incarceration might make it difficult to provide care and necessities for child, there was no evidence that it was father's incarceration alone which prevented him from providing these things. Instead, the conduct that led to father's incarceration supported the family court's conclusion that father had a "dedication to a criminal lifestyle" that is "incompatible with parenting[.]" J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 664 (Ky.App. 1985). Additionally, father made no request for involvement in child's life or any attempt to provide child with even token support although he had the means to do so. While we are hopeful that father may indeed reform his ways, it was appropriate for the family court to find that there was a lack of reasonable expectations for father's improvement in providing essential parental care and essential necessities for child.
We disagree with the family court that the elapse of time pursuant to KRS 625.090(2)(j) was an appropriate ground for termination. While this provision simply reads: "That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[,]" we do not believe it is appropriate to terminate on this ground where there was a lengthy delay in father being informed that child was placed with Cabinet which was solely attributable to the Cabinet's failure to follow the statutory and regulatory requirements that father be located and allowed to participate in proceedings involving child's continued removal from child's home. However, because there are two other valid grounds for termination, this error has no effect upon the ultimate outcome in this case.
There was also ample evidence to support the family court's finding that child's best interests were served by termination of parental rights. While there was the possibility that father might be paroled soon, there was no certainty that father would be released sooner than 2026. Additionally, even if father were to be released, there is no certainty that child could safely be returned to his care within a reasonable period of time and not still be at risk of abuse or neglect. The choice the family court faced during the termination trial was not whether father's parental rights should be terminated or child placed with paternal aunt, but whether there was an appropriate basis for termination.
While we disagree with the family court that the Cabinet offered father appropriate reunification services, there is no factual basis for concluding, given the family court's other findings, that had appropriate services been offered to father they would have been likely to bring about lasting parental adjustment enabling child's return. Father's dedication to a criminal lifestyle and the length of his current sentence make it impossible for child to return to his care within a reasonable time without risk of still being an abused or neglected child.
Accordingly, we affirm the Scott Family Court's termination of father's parental rights to child.
ALL CONCUR. BRIEF FOR APPELLANT: William Joseph Fooks
Paris, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Tiffany Lorraine Yahr
Lexington, Kentucky