Opinion
NO. 2017-CA-001136-ME
06-08-2018
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. K.B.T.A. (NATURAL MOTHER); B.T.J. (NATURAL FATHER); AND K.C.J. (A MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT: Kristy Abel Fulkerson Owensboro, Kentucky BRIEF FOR APPELLEE, K.B.T.A.: Joseph H. Bennet Owensboro, Kentucky BRIEF FOR APPELLEE, B.T.J.: Benjamin W. Hawes, Jr. Owensboro, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS FAMILY COURT, HONORABLE JULIA H. GORDON, JUDGE
ACTION NO. 17-AD-00008 OPINION
REVERSING AND REMANDING
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BEFORE: JONES, KRAMER, AND D. LAMBERT, JUDGES. KRAMER, JUDGE: The Cabinet appeals from the judgment of the Daviess Family Court dismissing its petition to terminate the parental rights of K.B.T.A. (Mother) and B.T.J. (Father) as to K.C.J. (Child). After a careful review of the record, we agree that the family court erred in dismissing the petition. Therefore, we reverse.
Child was born in 2008 and is the oldest of Mother's four biological children. Child is the only one of the four children Mother shares with Father. At the time of Child's birth, Mother was a minor and in foster care in the custody of the Cabinet. As a result, Child was placed in custody of the Cabinet and resided in the same home with Mother. Upon reaching the age of majority in July 2009, Mother left foster care and obtained custody of Child.
The Cabinet filed petitions for all four children on January 27, 2017, and heard testimony concerning all four children at the subsequent final hearing. Ultimately, the family court terminated Mother's parental rights to the three youngest children, along with those three children's biological father. However, as indicated, the family court dismissed the petition pertaining to Child in this case.
Father never lived in the same home as Child. He testified that for the first two months of Child's life, he lived in close proximity and made visits. However, when Child was two months old, Father pled guilty to a burglary charge and was incarcerated until Child was approximately three years old.
Between 2009 and 2014, the Cabinet had sporadic involvement with Mother concerning child protection issues in which cases were opened and services provided. In September 2014, the Cabinet became involved following Mother's arrest for driving while intoxicated with her children in the car. At this time, Mother began working with the START program. Child and her three siblings remained in Mother's home while intensive services were provided to Mother.
"START" stands for Sobriety Treatment And Recovery Team. This is a specialized unit that provides intensive services including quick access to substance abuse and treatment. To qualify for START services, there must be a child under the age of five in the family who has been subjected to abuse or neglect resulting from patent substance abuse issues.
In September 2015, a year after the START services began, Mother was arrested again for driving while intoxicated with her children in the vehicle. As a result, the four children were removed from Mother's care and placed in the Cabinet's custody. Mother stipulated to neglect. Mother never regained custody of her children. As the evidence proved at the hearing, and as the court found, Mother is incapable of taking care of Child.
As previously mentioned, Father was incarcerated when Child was approximately two months old. He remained incarcerated until his release in 2012, when Child was approximately three years old. Upon his release, Father obtained employment; made intermittent visits with Child; and made a few child support payments. However, after a few weeks he was terminated from his place of employment. He had difficulty finding another job; he then returned to a criminal lifestyle. Shortly after being out of prison for approximately three months, Father was arrested and pled guilty to charges of burglary, robbery, and tampering with physical evidence. Father was incarcerated and remained incarcerated on those charges at the time of the final hearing. Father completed several programs while incarcerated the second time. His first opportunity for parole is in 2020. His sentence runs until 2026 if he is not released on parole. Father has been incarcerated all but approximately five months of Child's life. Additional facts will be discussed as they become relevant.
In January 2017, the Cabinet brought this petition to involuntarily terminate the parental rights of Mother and Father. The final hearing was in April 2017, and the court heard testimony from several witnesses, including: (1) Child's therapist; (2) Mother's therapist; (3) Mother; (4) Father; and (5) Child's caseworker from the Cabinet. The family court verbally denied the petition from the bench and entered findings of fact, conclusions of law, and a judgment to that effect in June 2017. The family court stated that the Cabinet sustained its burden as to abuse and neglect (KRS 625.090(1)), and one or more grounds existed under KRS 625.090(2). But, ultimately the court found that termination was not in the best interest of Child because it determined Child's prospects for placement and adoption were unlikely. No other grounds were found by the family court as a basis for denying the petition to terminate the parents' rights.
Kentucky Revised Statute.
The Cabinet now appeals, arguing that the family court erred in denying the petition. Involuntary termination proceedings are governed by KRS 625.090, which provides that a family court may involuntarily terminate parental rights only if the court finds by clear and convincing evidence that a three-pronged test has been met. First, Child must be deemed abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination of parental rights must be in Child's best interest, and the court is provided with a series of factors that it shall consider when making this determination. KRS 625.090(1)(b); KRS 625.090(3). Third, the court must also find at least one ground of parental unfitness listed in the statute. KRS 625.090(2).
We are mindful that termination of parental rights is a grave matter that must be afforded the most meticulous due process protection. Therefore, "[t]hey can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so." Cabinet for Health and Family Servs. v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006). On appeal, this Court applies the clearly erroneous standard of review under CR 52.01. The family court's factual findings must be upheld if they are supported by substantial evidence in the record. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
Kentucky Rule of Civil Procedure. --------
In this case, there is no factual dispute that Child is neglected, as required under KRS 625.090(1). Furthermore, there is also no dispute that the parents have failed to provide essential care for the children and that there is no reasonable possibility for improvement of the situation in the immediately foreseeable future. KRS 625.090(2)(e) & (g). The only question is whether termination is in Child's best interest. Although the overall standard of review in termination cases is the clearly erroneous standard, when reviewing a family court's determination of the best interest prong of the termination test, we review for abuse of discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). "Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained." D.J.D. v. Cabinet for Health and Family Servs.,350 S.W.3d 833, 837 (Ky. App. 2011).
The Cabinet argues that the family court abused its discretion and that the court considered irrelevant factors in determining that termination would not be in the best interest of Child. The Cabinet also asserts that the family court failed to consider Child's need for permanency, as required by the Adoption and Safe Families Act of 1997 (AFSA), 42 U.S.C § 671 et. seq. (2010). The Cabinet maintains that the family court clearly erred by finding that termination was not in Child's best interest. Specifically, the Cabinet contends that the family court's rationale for its best-interest finding, based on Child's adoptability, is not a proper consideration to determine whether termination of the parents' rights would be in her best interest. In response, Father asserts his counter argument that the family court's decision should be affirmed because incarceration, in and of itself, cannot stand alone as a justification of terminating parental rights. Mother asserts that the family court's decision should be "accorded great deference" and therefore affirmed.
At the outset, we will address the Cabinet's argument. The statutory framework provides the following criteria to guide a family court in its consideration of the best interest of a child in the context of an action to terminate parental rights:
In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
. . .
(b) Acts of abuse or neglect as defined by KRS 600.020(1) toward any child of the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents[.]
(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;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered[.]KRS 625.090(3).
The Cabinet's primary argument is that the family court's only reason for not terminating Mother's and Father's parental rights is because the court reasoned that the adoption of Child was unlikely. In the Cabinet's view, this is not a proper consideration. We agree.
Regarding a best-interest determination, in Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 178 (Ky. App. 2004), the Court stated, "[t]he [family] court's finding that adoption of the children is unlikely is not a relevant consideration[.]" (Emphasis added.) Here, upon reading the family court's order denying the petition, this is the only reason given by the family court for not terminating the parental rights of Mother and Father. After detailing facts demonstrating that two prongs of the three-pronged termination test were met, the family court wrote the following two paragraphs concerning Child's best interest:
16. While [Child] is a neglected child and the Cabinet . . . has shown, by clear and convincing evidence, that [Mother] has engaged in a pattern of conduct rendering herself incapable of caring for the immediate and ongoing needs of [Child]; that [Mother] has failed to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of [Child] to [Mother]; and that [Child] has been in care for twenty (20) of the twenty-two (22) months preceding the filing of the petition, this court cannot
find that termination of parental rights would be in the best interest of [Child].
17. [Child]'s siblings are in a concurrent planning foster home. [Child] remains at St. Joseph, a residential treatment facility. [Mother] testified that her biggest fear is that [Child] will never reach permanency. The Court shares this concern. The Cabinet . . . has been unable to locate a prospective placement for [Child], and all previous placements have failed . . . . She is now in a residential placement, with only vague plans for her future permanency - plans that are uncertain, at best. The Court cannot find that termination of parental rights, and severing all familial ties that this child has, would be in [Child]'s best interest.
Reading these paragraphs in conjunction with the rest of the factual findings, it is apparent the family court denied the petition because it thought Child's prospects of adoption were unlikely. As noted in G.C.W., this is not a relevant consideration. Id. Furthermore, this decision was not supported by the evidence presented at the final hearing.
While it is true that Child has had some failed placements in the past due to her behavioral issues, Child's therapist went into detail regarding Child's improvements since being admitted to St. Joseph's. For example, Child showed "significant improvement" behaviorally; had gone several months without any behavioral incidents; and was improving in her interaction with her peers. The therapist primarily attributed this improvement to the structured environment at St. Joseph's, Child's ability to attach to the staff, and her ability to maintain a consistent medication schedule. The therapist confirmed that Child had improved to the point of transitioning to a foster home with hopes of an adoptive placement should she be made available. The court made no reference to a finding that Child's therapist was not credible. She testified that after Child adjusted to the facility, Child became "one of the best kids at the cottage." As of the date of the final hearing, the therapist testified that Child was receiving Trauma Informed Care Treatment due to incidents with Mother that led to removal.
Child's therapist further testified there had been such an improvement in Child's physical, emotional, and mental health that the prospects for continued improvement were positive as long as she continued to receive the proper structure and treatment. Cabinet social worker Davina Havener has been involved with the family since September 2014. She testified that Child had made "great strides" since getting treatment at St. Joseph's and that she would be visiting a pre-adoptive foster family with plans of placement soon after the hearing. Mother and Father presented nothing to contradict any of this testimony. Further, they presented no evidence to indicate that either of them could provide the recommended home setting, consistent medication management, consistent and structured living environment, or that they could ensure that Child attends therapy. Considering the therapist's and social worker's uncontroverted testimony, and the fact that the only basis for denying the petition has been held by this Court to be an improper consideration in termination proceedings, the family court's decision is unsupported by sound legal principles and it abused its discretion in finding that termination is not in the best interest of Child.
Lastly, we address Father's argument that, "incarceration, in and of itself, cannot stand alone as a justification of terminating parental rights." Father cites J.H. v. Cabinet for Human Resources, 704 S.W.2d 661 (Ky. 1985), for this proposition. However, Father's application of this case is misguided. J.H. held that:
Abandonment is a matter of intent which may be proved by external facts and circumstances; otherwise, servicemen, prisoners of war, ship captains or persons requiring prolonged hospitalization would be likely candidates to have their parental rights terminated.Id. at 663. (Emphasis added.)
Wherefore, whether abandonment occurs through incarceration sufficiently to support terminating parental rights must be strictly scrutinized. Incarceration alone can never be construed as abandonment as a matter of law.
In J.H., the father's incarceration itself did not warrant termination; nonetheless, the evidence was sufficient to support termination of father's parental rights where he had continually neglected the children and "pursued a lifestyle incompatible with parenting." Id. at 664. In Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995), the Supreme Court explained that "[a]lthough incarceration for an isolated criminal offense may not constitute abandonment justifying termination of parental rights, incarceration is a factor to be considered[.]"
In the case before us, the Cabinet did not argue, and the family court did not hold that Father abandoned Child. Instead, the court found that the Child had been continually neglected by Father because: (1) he continuously or repeatedly failed or refused to provide essential parenting care and protection for Child and there is no reasonable expectation of improvement in parental care and protection (KRS 625.090(2)(e)); (2) he failed to make reasonable efforts or adjustments in circumstances, conduct, or conditions to make it in Child's best interest to return home within a reasonable period of time (KRS 625.090(3)(d)); and (3) Child has been in foster care for at least fifteen of the most recent twenty-two months (KRS 625.090(3)(c)). As Father admitted on cross examination, he had a chance following his release from incarceration in 2012 to establish a relationship and provide support to Child. However, following his termination from employment, he voluntarily chose to revert to a criminal lifestyle. As a result, he was again incarcerated to Child's detriment. According to the family court's findings, Father has been incarcerated all but five months of Child's life and has had very little contact with Child. This is not an "isolated criminal offense"; instead, Father has shown a pattern of placing his pursuit of criminality over the needs of Child. Because of this pattern, he neglected Child for the first eight years of her life. Therefore, this argument fails.
In light of the foregoing, the family court's determination that termination is not in Child's best interest is not supported by substantial evidence nor binding legal precedent. Therefore, the decision to deny the Cabinet's petition is clearly erroneous. Child's best interest dictates that Mother's and Father's parental rights be terminated.
The judgment of the Daviess Family Court is REVERSED, and this matter is REMANDED for entry of judgment consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Kristy Abel Fulkerson
Owensboro, Kentucky BRIEF FOR APPELLEE, K.B.T.A.: Joseph H. Bennet
Owensboro, Kentucky BRIEF FOR APPELLEE, B.T.J.: Benjamin W. Hawes, Jr.
Owensboro, Kentucky