Opinion
NO. 2018-CA-000082-ME NO. 2018-CA-000111-ME
11-16-2018
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. T.R.Z.; M.E.S.; AND K.N.S., A CHILD APPELLEES AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. T.R.Z.; M.E.S.; AND M.E.S., JR., A CHILD APPELLEES
BRIEF FOR APPELLANT: Abigail E. Voelker Attorney for Cabinet for Health and Family Services Covington, Kentucky BRIEF FOR APPELLEE, T. R. Z.: John J. Osterhage Florence, Kentucky BRIEF FOR APPELLEE, M. E. S.: Michael A. Hummel Ft. Mitchell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 17-AD-00096 APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 17-AD-00097 OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: JOHNSON, MAZE AND NICKELL, JUDGES. NICKELL, JUDGE: The Cabinet for Health and Family Services ("CHFS") appeals from orders of the Kenton Circuit Court, Family Division, dismissing TPR petitions for two biological children of M.E.S. ("Father") and T.R.Z. ("Mother") (collectively "Parents"). The trial court concluded TPR was not in the children's best interest because Father had made strides such that there was a reasonable expectation his conduct would improve significantly in the immediately foreseeable future—a finding with which CHFS strongly disagrees. Focusing almost exclusively on Father, the trial court made practically no findings about Mother—stating only she has been incarcerated much of the time since the children were removed from her care on March 13, 2015, and she had completed some portions of her case plan, "notably Parent Child Interactive Therapy." Absence of complete findings of fact about Mother must be corrected. After careful review, we affirm as to Father but reverse and remand for further findings as to Mother, followed by entry of a judgment consistent therewith.
FACTS
M.E.S. is the father of five children. CHFS petitioned for TPR as to all five children, four of whom were born to Father's union with Mother. Before trial, Parents voluntarily terminated their rights as biological parents to S.P.S. and M.S., two of their four children.
Father is currently married to D.S. Father is characterized as the putative father of D.N.S., a daughter born to D.S. on August 19, 2015.
D.N.S. was separated from D.S. and placed in foster care on August 26, 2015, just days after her birth due to known drug use by D.S. and open CHFS cases naming D.S. and Father.
Following trial, on October 17, 2017, the trial court granted involuntary TPR as to D.N.S.—with whom neither parent had ever bonded—a decision Father challenged unsuccessfully in a prior appeal. On the same day, the trial court denied involuntary TPR as to Father's two other biological children—K.N.S., a daughter born November 1, 2006, and M.E.S., Jr., a son born July 17, 2010 (collectively "Children")—that decision is the sole focus of this appeal.
A separate panel of this Court unanimously affirmed involuntary TPR as to D.N.S. M.S. v. Cabinet for Health and Family Services, 2017-CA-001880-ME, 2018 WL 2460185 (Ky. App. June 1, 2018).
COMPLIANCE WITH RULES OF APPELLATE PRACTICE
We begin by commenting on the proper structure of an appellate brief and the importance of preservation. CR 76.12(4)(c)(v) requires each argument in the brief for appellant to begin with a statement of preservation referencing "the record showing whether the issue was properly preserved for review and, if so, in what manner." The same rule also requires each argument to contain "ample supportive references to the record and citations of authority pertinent to each issue of law[.]" The CHFS brief contains no statement of preservation for any of the issues raised. Its Statement of the Case contains many references to the record as required by CR 76.12(4)(c)(iv). However, those references do not link the facts to the arguments and applicable case law, nor do they tell us where the trial court was given the opportunity to correct the errors of which CHFS now complains, a critical piece of information because "a party may not raise an issue for the first time on appeal." Taylor v. Kentucky Unemployment Ins. Com'n, 382 S.W.3d 826, 835 (Ky. 2012) (citations omitted). It is dangerous for counsel to ignore the rules of appellate procedure.
Kentucky Rules of Civil Procedure.
We have three options when a brief is noncompliant: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only." Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). Because this case pertains to children and parental rights—two items in which the state has a vital interest—we will review the alleged deficiencies but warn counsel the Court may not be so lenient in the future. The rules are "lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated." Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977)).
LEGAL ANALYSIS
CHFS argues the trial court erred when it: 1) made findings unsupported by substantial evidence; 2) made conflicting findings based on identical evidence; and, 3) improperly considered the Children's adoptability. We will address each argument and introduce additional facts as needed.
A trial court's decision on a TPR petition is reviewed for clear error. CR 52.01; see also D.G.R. v. Com., Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012). We give significant deference to the trial court's findings and interfere only when the record is devoid of substantial evidence to support the findings. D.G.R., 364 S.W.3d at 113.
Involuntary TPR is governed by KRS 625.090. It may be granted only if the trial court finds a three-pronged test has been met by clear and convincing evidence. Id. First, the child must be deemed abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, the trial court must find existence of at least one statutory ground for termination listed in KRS 625.090(2). Third, termination must be found to be in the child's best interest after consideration of factors listed in KRS 625.090(3).
Kentucky Revised Statutes.
After a hearing, the trial court entered judgment finding TPR was statutorily permitted and in the best interest of D.N.S. As to Children, however, the trial court found only one of the three prongs for involuntary TPR had been established. While the trial court found Parents provided neither "essential parental care and protection" as required by KRS 625.090(2)(e), nor "essential food, clothing, shelter, medical care or education" as required by KRS 625.090(2)(g), the court made no finding of abuse or neglect; specifically found TPR was not in Children's best interest; and, dismissed the TPR petitions against Parents.
CHFS moved to alter, amend or vacate dismissal of the TPR petitions. In its supporting memorandum of law, CHFS argued TPR was in Children's best interest because substantial evidence did not support the trial court's belief Father had significantly improved his life making return of custody to him a reasonable expectation. CHFS maintained Father's reality was he had produced one negative drug screen at the time of trial; he was staying in a sober living home without stable accommodations for Children; he claimed he was working but offered no proof of employment; he acknowledged having a case plan but offered no proof of completion of any task stated in the plan; and, at the time of trial, he was more than $11,000 in child support arrears having never made a payment. CHFS further argued the trial court had reached inconsistent results based on the same evidence because it had granted TPR as to D.N.S., but denied TPR as to Children when the evidence of Father's conduct was the same.
Curiously, the CR 59.05 motion makes no mention of Mother—save two uses of the phrase "respondent parents" and one use of the phrase "parental rights" which would include her. Like the trial court's findings and conclusions, the motion, which was overruled without explanation, focused on Father and did not request specific findings explaining why Mother should retain her parental rights.
CHFS asserted the only distinction between D.N.S. and Children was the outlook for adoption—good for D.N.S.; grim for Children. A closer reading of the trial court's findings and conclusions shows a major distinction between D.N.S. and Children—D.N.S. was removed from Father and D.S. at the hospital when she was about one week old. As explained in M.S.,
[D.N.S.] was placed in foster care . . . because of her mother's known drug use and subsequently adjudged abused and neglected. Following [her] removal from her parents, the Cabinet created a case plan to facilitate reunification. The case plan required father to maintain housing and employment, participate in drug screening, and refrain from future criminal activity.Id. at *1. Father and D.S. had no real opportunity to bond with D.N.S. In contrast, Father had a relationship with Children who recognize him as their parent.
In April of 2016, father was sentenced to two years' imprisonment. On December 28, 2016, the Cabinet petitioned to involuntarily terminate father's parental rights to all his children, and the cases were consolidated for trial. Father was released from prison in July 2017. By his own admission, he did not complete any of the tasks on his case plan before his release.
In its first claim of error on appeal, CHFS disputes the trial court's finding there is a reasonable expectation of significant improvement in Father's parental conduct in the immediately foreseeable future. The trial court found since being released from incarceration, Father has consistently screened negative for drugs, maintained employment, attended intensive outpatient (IOP) treatment for substance abuse, attempted to contact his social worker to complete items on his case plan, and maintained stable housing. CHFS asserts these findings are not supported by substantial evidence.
At the hearing, CHFS presented one witness, the ongoing social worker. She testified a case plan for reunification was made with Father and approved by the trial court. Father's case plan required him to: drug screen at CMS on a particular schedule, obtain and maintain housing and employment, refrain from criminal activity, complete parenting classes through Family Nurturing Center, and complete a substance abuse and mental health assessment through NorthKey Community Care. The social worker testified Father had not completed any task on his case plan except one or two drug screens—which were positive—in April 2015.
Father did not controvert this testimony and conceded the drug screens mentioned by the social worker were the sum of his compliance with the case plan prior to his release from incarceration. However, Father also detailed steps he had taken in the nearly eleven weeks since his release, including: random drug screening at Drugs Don't Work; completion of a mental health and substance abuse assessment at NorthKey; participation in IOP; attempting to enroll in parenting classes, but being denied by NorthKey until he "phases up" in IOP; finding full-time employment in construction; and residing in a sober living facility while saving sufficient money to secure appropriate housing for himself and his children.
Father provided the trial court copies of his drug screen results; however, the exhibits introduced at the final hearing are not contained in the appellate record. It is Appellant's obligation to ensure there is a complete record for review. When portions of the record are missing, this Court presumes the missing record supports the trial court's determination. Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006). --------
On appeal, CHFS argues the trial court's finding Father has stable housing is refuted by his own testimony. He stated he is residing in a sober living home which CHFS maintains is inappropriate for children. The trial court did not find Father presently had stable housing appropriate for Children, but merely he had maintained stable housing. Father's testimony he had resided in the sober living home since his release was uncontroverted and unrefuted. Father also testified about his ability and efforts to promptly secure appropriate housing for Children. Notably, Father's case plan did not require him to maintain housing for himself and his children, but only for himself.
Next, CHFS questions the validity or weight the trial court should have afforded Father's clean drug screens due to his failure to screen at the place or on the schedule required by the case plan and because he had only recently begun screening. CHFS argues Father lacked credibility because he denied having a substance abuse issue, was only submitting to drug testing as part of parole, and failed to provide any proof of employment.
CHFS's argument fails. "[J]udging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." D.G.R., 364 S.W.3d at 114 (quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (emphasis in original)). The trial court has extremely broad discretion in its fact-finding and may choose to believe or disbelieve any part of the testimony presented. Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007). The trial court obviously believed Father's testimony regarding his efforts at parental improvement. Ultimately, we cannot say these findings of fact are clearly erroneous as they are supported by Father's testimony.
In its second claim of error, CHFS argues the trial court made inconsistent, and therefore, clearly erroneous findings based on identical evidence when it found TPR was in the best interest of D.N.S. but not in the best interest of Children. CHFS took the opposite position—and won—when Father argued this same point in M.S.
TPR decisions are fact-sensitive. The plain language of the TPR statute requires a court to consider whether the parent has made sufficient improvement to allow reunification within a reasonable amount of time, considering the age of the child, and whether the child's physical, emotional, and mental health is likely to improve if termination is ordered.
Although testimony about Father's efforts towards improvement was undoubtedly the same, D.N.S. was not in the same circumstances as Children. It is undisputed Father had only seen D.N.S. a few times since birth and not since she was about two months old. D.N.S. entered CHFS custody directly from the hospital, and never knew Father as her parent. Despite Father's efforts to improve, it was not unreasonable to find reunification with D.N.S. could not be completed within a reasonable time and termination would improve D.N.S.'s emotional health. The social worker, however, admitted Children, who were older and had resided with Father prior to removal, knew him and recognized him as their father. These facts lend support to the trial court's decision to differentiate findings as to Children.
Furthermore, the mere fact the trial court reached different conclusions about each child's best interest does not automatically render the findings clearly erroneous. See Fister v. Commonwealth, 133 S.W.3d 480, 486 (Ky. App. 2003). The relevant question is whether the best interest finding as to Children, individually, was clearly erroneous. Because the trial court's decision was supported by substantial evidence, we conclude it was not.
In its third and final claim of error, CHFS argues the trial court improperly considered the Children's adoptability, rendering its best interest determination clearly erroneous under Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172 (Ky. App. 2004). CHFS further argues the trial court not only ignored the statutory criteria, but also the overwhelming evidence TPR was in Children's best interest.
We note at the outset, adoptability of Children was only one factor considered by the trial court in determining the result which would be in their best interest. Additionally, G.C.W. is distinguishable. The mother in G.C.W. conceded she was not ready to resume custody, acknowledged her children would likely never live with her again, and instead sought overnight visitation with her children. Id. at 174. Denial of TPR in G.C.W. would have resulted in the children lingering in foster care until the age of majority. Herein, the trial court expressly found Children could be returned to Father's custody within a reasonable amount of time.
We hold the trial court did not impermissibly consider Children's adoptability, nor did it ignore the statutory criteria for determining Children's best interest. As stated above, the plain language of the termination statute requires a trial court to consider whether a parent has made sufficient improvement to allow reunification within a reasonable amount of time and whether the child's physical, emotional, and mental health is likely to improve if termination is ordered. KRS 625.090(3)(d)-(e). KRS 625.090(5) further provides, "[i]f the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child . . . if returned to the parent[,] the court in its discretion may determine not to terminate parental rights."
CHFS is correct. Evidence it presented could have supported a finding of TPR being in Children's best interest. However, just because "one side presents more testimony than the other, or that one side's evidence seems superior to the other's, at least from the appellate perspective, has no bearing." D.G.R., 364 S.W.3d at 114. Once again, the question before this Court is whether the trial court's findings are supported by substantial evidence.
At the hearing, the social worker was adamant Children would thrive if given a stable environment and conceded they were not presently in a permanent placement. The trial court's findings merely reflect this fact and the reality that, while the next foster placement is anticipated to be permanent, there is no way to guarantee any particular result. Therefore, even granting TPR would not secure the increased stability the children need. This, coupled with the trial court's finding Father had made sufficient improvement to regain custody within a reasonable time, formed the basis of its conclusion TPR was not in Children's best interest. The trial court's findings are in accordance with the applicable statutory provisions and are not clearly erroneous as to Father. Thus, we affirm as to Father.
We turn now to Mother. The trial court's judgments, findings of fact and conclusions of law focus almost entirely on Father. The trial court referenced Mother's lengthy incarceration, and completion of Parent Child Interactive Therapy as well as some other unspecified tasks, but otherwise gave the impression Mother simply rides on Father's coattails. Because he has improved, she has improved. The record does not support such a conclusion. Mother is an individual with her own rights, responsibilities and consequences. KRS 625.090 reads in relevant part:
(6) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
(Emphasis added). The trial court's failure to make a good faith effort to state facts in the written order specific to Mother—even though no party requested such findings—requires us to reverse the case for such findings. CR 52.01; Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011). Our Supreme Court has emphatically directed family courts "to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions." Keifer v. Keifer, 354 S.W.3d 123, 125 (Ky. 2011). Here, we discern no basis for the trial court's dismissal of the TPR petition as to Mother. Thus, we must reverse that portion of the judgments and remand the matter to the trial court for complete findings of fact and conclusions of law as to Mother, followed by entry of a judgment consistent therewith.(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
For the foregoing reasons, the judgments of the Kenton Circuit Court, Family Division, as to Father are AFFIRMED. The judgments as to Mother, are REVERSED and REMANDED for complete findings and entry of an appropriate judgment.
ALL CONCUR. BRIEF FOR APPELLANT: Abigail E. Voelker
Attorney for Cabinet for Health and
Family Services
Covington, Kentucky BRIEF FOR APPELLEE, T. R. Z.: John J. Osterhage
Florence, Kentucky BRIEF FOR APPELLEE, M. E. S.: Michael A. Hummel
Ft. Mitchell, Kentucky