Opinion
NO. 2019-CA-000912-ME NO. 2019-CA-000913-ME NO. 2019-CA-000914-ME NO. 2019-CA-000915-ME
01-31-2020
C.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND C.C.B., JR., A MINOR CHILD APPELLEES AND C.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.A.B., A MINOR CHILD APPELLEES AND C.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.T.-C.B., A MINOR CHILD APPELLEES AND C.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND W.C.B., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Joseph H. Dahlman Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 18-AD-00018 APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 18-AD-00021 APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 18-AD-00022 APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 18-AD-00023 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: In this consolidated appeal, "C.B." appeals from the findings of fact, conclusion of law and orders of termination of the Woodford Circuit Court terminating his parental rights as to four minor children. He argues that the circuit court erred in concluding that the termination was in the best interests of the children. He also argues that he was improperly denied Due Process under the 14th Amendment to the United States Constitution. For the reasons addressed below, we find no error and AFFIRM the orders on appeal.
This case involves the neglect of minor children. As such, we will not use the names of the parties or the children.
FACTS AND PROCEDUDRAL HISTORY
C.B. (hereinafter "Father") is the biological father of the minor children C.C.B., Jr., J.T.-C.B., M.A.B., and W.C.B. (hereinafter "the children"). C.D. (hereinafter "Mother") is the children's biological mother. Mother is married to B.D., with whom she has two additional children. The Cabinet for Health and Family Services, Commonwealth of Kentucky ("the Cabinet") came into contact with Mother and Father in approximately 2012, as a result of abuse and neglect investigations. Over the years that followed, the Cabinet heard sixteen reports of abuse and neglect involving Father and Mother, resulting in six substantiations. The record reveals an extensive list of interventions conducted by the Cabinet, including the placement of the children in foster care. According to the testimony of Cabinet social worker Lynn Farley, Father and Mother engaged in repeated episodes of domestic violence and drug abuse in the children's presence. Two of the children were born with serious medical issues, and the Cabinet was unable to locate Father during the children's extended hospitalizations. The parents declined Farley's offer of protective daycare in early 2017. In June 2017, the Cabinet could not locate either parent, and it filed a petition for dependency, neglect, or abuse resulting in W.C.B. entering foster care. In August 2017, the Cabinet alleged that Father and Mother had a history of instability, illegal drug use, and failure to provide adequate care. Both parents tested positive for cocaine. On August 28, 2017, the Cabinet petitioned for removal of all four children, after which the children entered foster care where they have remained.
In early 2018, a lower court found that Father had failed to attend inpatient substance abuse treatment as ordered, and he again tested positive for cocaine in April 2018. The court subsequently changed the children's permanence goal to adoption, and waived reunification efforts.
Thereafter, the Cabinet filed a petition pursuant to Kentucky Revised Statutes ("KRS") 625.050 seeking the involuntary termination of Father's parental rights as to the four children. The matter was tried without a jury on April 12, 2019, where several witnesses testified including the Principal at W.R. Castle Elementary School, Therapeutic Support Specialist Courtney Salvito with Benchmark Family Services, Cabinet social worker Lynn Farley, and the foster mother of the six children. Mother and Father also testified.
The petition also sought the termination of Mother's parental rights to the four children, as well as the rights of Mother and her husband, B.D., to two other children. The resolution of those issues is not before us.
On May 16, 2019, the Woodford Circuit Court rendered findings of fact and conclusions of law. After examining KRS Chapter 625 and the Cabinet's burden of proof, the court concluded that: 1) the children were previously adjudged to be neglected; 2) Mother and Father engaged in a pattern of alcohol and drug abuse constituting parental incapacity; 3) Mother and Father failed to make sufficient progress toward identified goals as set forth in their court-approved reunification plan; 4) reunification would clearly not be in the children's best interests based on the parents' ongoing issues with substance abuse, instability and inability to properly care for their children; and 5) the parents were otherwise unfit pursuant to KRS 625.090(2). The court then entered separate termination orders as to each child, and these appeals followed.
ARGUMENTS AND ANALYSIS
Father, through counsel, first argues that the Woodford Circuit Court committed reversible error in ruling that the termination of his parental rights was in the best interests of the children. He argues that there was ample testimony that he completed his case plan, and that he was not given proper credit for the completion of his substance abuse classes. Father asserts that the efforts and adjustments he made in his circumstances and conduct support the conclusion that it is in the children's best interests to return to him in a reasonable time. He also contends that there is no substantial evidence in the record to support a finding of no reasonable expectation of improvement in Father's circumstances. Directing our attention to KRS 625.090, Father argues that the Cabinet sought to reunite the family by establishing a case plan, that he completed the plan, and that he is therefore entitled to reunification.
A circuit court may involuntarily terminate a party's parental rights if it finds by clear and convincing evidence that: 1) the child is abused or neglected as defined by statute; 2) the termination of parental rights is in the child's best interests; and 3) at least one of the statutorily enumerated factors exists which demonstrates parental unfitness. KRS 625.090. A circuit court has broad latitude in determining whether children fit within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977).
Our standard of review in a termination of parental rights action is confined to the clearly erroneous standard based upon clear and convincing evidence, and the findings of the circuit court will not be disturbed unless there exists no substantial evidence in the record to support them. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). "Clear 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." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
The record contains substantial evidence to support the findings of the circuit court. The first prong of the termination statute was satisfied when the children were adjudged neglected by the Woodford Circuit Court in 2017. A finding of neglect in an underlying juvenile case is sufficient to satisfy this requirement. M.A.B. v. Commonwealth, Cabinet for Health and Family Services, 456 S.W.3d 407, 412-13 (Ky. App. 2015). Further, in the proceeding sub judice, the Woodford Circuit Court again found the children to be neglected.
Findings of Fact and Conclusions of Law, May 16, 2019, at p. 35. --------
The second prong requires the court to find that termination of parental rights is in the child's best interests. KRS 625.090(1)(c). This is the focus of Father's claim of error, in which he argues that the evidence was insufficient to make this determination. We conclude that the record supports the circuit court's findings on this issue. In addition to the statutory factors set out in KRS 625.090(3), and as noted by the circuit court, the record evinces a protracted length of time the children have been in foster care, the Cabinet's long history with this family, the many referrals and removals of the children, and Father's ongoing struggle with substance abuse spanning twenty years. As found by the circuit court, the children have faced instability for many years, have been placed in foster care multiple times, have lived in multiple places, and have attended multiple schools. As demonstrated by the record and the testimony presented at trial, the children's behavior and outlook have substantially improved in their current foster environment.
The third and final prong of the statutory scheme is satisfied when the court finds at least one ground of parental unfitness enumerated in KRS 625.090(2). The court expressly found that KRS 625.090(2)(j) was satisfied as to Father because the children have been in foster care under the responsibility of the Cabinet for at least fifteen of the forty-eight preceding months. The court went on to find that Father, for a period of not less than six months, continuously or repeatedly failed or refused to provide essential care and protection to the children as set out in KRS 625.090(2)(e), and for reasons other than poverty alone, failed to provide essential food, clothing, shelter, medical care, or education with no reasonable expectation of improvement. KRS 625.090(2)(g). The record supports these findings.
The dispositive question on appeal is whether the circuit court's conclusions are supported by clear and convincing evidence of record. Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 175 (Ky. App. 2004). Based on the totality of the record, we conclude that the circuit court's decision is supported by such evidence. As to Father's argument that the statutory scheme has not been satisfied, the record documents more than seven years of repeated referrals and removals, multiple changes of fostering, residency and schooling, and Father's acts of domestic violence and drug abuse with no reasonable expectation of improvement. The record supports the circuit court's conclusion that termination is in the children's best interests, and we find no error.
Father also briefly argues that he was improperly denied Due Process in the circuit court proceeding. Specifically, he asserts that the circuit court incorrectly concluded that his participation in treatment classes was "lackluster and disingenuous," that this finding is not supported by the record, and that the court's reliance on this finding effectively denied him due process.
In making the finding that Father's participation in substance abuse classes was "lackluster and disingenuous," the circuit court noted that it took Father six months to undergo the initial assessment, and another five months to complete just eight classes. Throughout this entire period, the children remained in foster care. Father's lack of impetus to begin and complete the program, during which time his children remained in foster care, is the basis for the court's finding on this issue. The record supports the court's finding that Father's participation in substance abuse classes was lackluster and disingenuous, and we do not conclude that this finding is tantamount to a denial of due process.
CONCLUSION
The record supports the circuit court's finding that termination of Father's parental rights was in the children's best interests, and that the elements of the statutory scheme were satisfied. We do not conclude that Father was denied due process in the proceeding below. Accordingly, we AFFIRM the findings of fact, conclusions of law and orders of termination of the Woodford Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph H. Dahlman
Lexington, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky