Opinion
2023-CA-0050-ME
05-26-2023
D.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.M., AN INFANT CHILD; AND M.C., MOTHER APPELLEES
BRIEF FOR APPELLANT: Martin A. Haas, Jr. Crescent Springs, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT HONORABLE ACENA JOHNSON BECK, JUDGE ACTION NO. 22-AD-00042
BRIEF FOR APPELLANT: Martin A. Haas, Jr. Crescent Springs, Kentucky
BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
BEFORE: DIXON, GOODWINE, AND KAREM, JUDGES.
OPINION
KAREM, JUDGE:
D.M. ("Father") appeals from the Kenton Circuit Court's order terminating his parental rights to D.M. ("Child"). After reviewing the record and applicable law, we affirm the circuit court's order terminating Father's parental rights to Child.
FACTUAL AND PROCEDURAL BACKGROUND
Child was born on July 30, 2020, and a paternity judgment was entered on October 7, 2021, declaring Father to be Child's father. Thereafter, the Cabinet for Health and Family Services (the "Cabinet") petitioned to terminate Father's parental rights to Child on March 23, 2022. The Kenton Circuit Court held a hearing on the petition on November 8, 2022.
The Cabinet also petitioned the court to terminate Child's biological mother's parental rights, which the court ultimately granted. Mother did not file an appeal or join in this appeal.
The Cabinet became involved with this family upon Child's birth, as Child tested positive for buprenorphine and marijuana. At that time, Father was incarcerated for possession of cocaine. The Cabinet subsequently petitioned for Child's emergency removal on August 22, 2020, less than a month after Child's birth. The Kenton Circuit Court granted the petition, and Child was placed in foster care, where he remains.
Once Father's paternity was established, the Cabinet met with Father in prison and negotiated a case plan. Due to his incarceration, Father's case plan was limited to engaging in any available services at the facility and contacting the Cabinet upon his release. However, the record reflects that Father failed to engage in any services at the prison. Further, Father failed to notify the Cabinet when he was released from incarceration, although he was quickly re-incarcerated for a substance use probation violation. Moreover, the Cabinet caseworker expressed her concerns at the termination hearing that Father did not have a plan to remain sober or refrain from further criminal activity upon his release.
The Cabinet caseworker also testified at the termination hearing regarding Child's progress since residing in his foster placement. She explained Child has developmental delays and sensory issues and was receiving occupational and speech therapy. The caseworker believed that Child was doing well in his placement and that his foster family was meeting all his needs. She further testified that it would not be in Child's best interest to wait on Father to be released from incarceration and participate in a case plan, as Child has no bond or relationship with Father.
Lastly, Father testified at the termination hearing. He explained that he was incarcerated for possession of cocaine and believed that he would be released in either February or April 2023. Father testified he had been participating in substance abuse treatment for six months, where he had also learned parenting skills. Father indicated that he had two more weeks of treatment and would then enroll in a recovery program and anger management classes.
To maintain sobriety upon release, Father testified he would use the skills he had acquired in substance abuse treatment, surround himself with good influences, and live with his mother. Father indicated that he would enter sober living upon his release and acknowledged that he had a lengthy criminal and substance abuse history that had prevented him from having a relationship with Child. Moreover, Father admitted that he had much to accomplish in his case plan before he could adequately care for Child.
On December 8, 2022, the Kenton Circuit Court entered findings of fact, conclusions of law, and an order terminating Father's parental rights to Child. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
i. Standard of Review
An appellate court will only reverse a trial court's decision to terminate a parent's rights if such a decision is clearly erroneous, meaning there is no substantial, clear, and convincing evidence to support the decision. Kentucky Rules of Civil Procedure ("CR") 52.01; Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). "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." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)). Therefore, we will only disturb the circuit court's findings if no substantial evidence exists in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986) (citation omitted).
ii. Discussion
Kentucky Revised Statute ("KRS") 625.090 states that a circuit court may involuntarily terminate a parent's rights only if the court finds, by clear and convincing evidence, that a child is abused or neglected as defined in KRS 600.020(1), that termination is in the child's best interests, and the existence of one or more specific grounds set out in KRS 625.090(2). KRS 625.090(1)(a)-(b), (2); M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007). Further, KRS 625.090(3) lays out factors for the trial court to consider in determining the child's best interests and the existence of grounds for termination.
In this case, the circuit court complied with all relevant statutory mandates to terminate Father's parental rights to Child. While there was no prior finding of abuse or neglect in the underlying dependency action, the circuit court made an independent finding of neglect under KRS 625.090(1)(a)2. in the termination hearing proceeding, and we find substantial evidence in the record to support such findings.
Specifically, under KRS 600.020(1)(a)3., the circuit court concluded that Father had engaged in a pattern of conduct - specifically, substance abuse and criminal activity - that rendered the parent incapable of caring for the immediate and ongoing needs of Child. Additionally, under KRS 600.020(1)(a)4., Father had failed to provide essential parental care and protection for Child, as Father had been incarcerated for Child's entire life. Additionally, Father abandoned Child under KRS 600.020(1)(a)7. Finally, the circuit court concluded that Father's failure or inability to comply with the Cabinet's court-approved case plans prevented the circuit court from returning Child to his custody safely and resulted in Child remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months. KRS 600.020(1)(a)9.
In this case, we find substantial evidence in the record to support the court's finding of abuse or neglect. Father continuously abused drugs and participated in criminal activity resulting in incarceration throughout Child's entire life; Father failed to pay or was sporadic with child support and did not provide other necessities for Child's benefit while Child was in the Cabinet's custody; and Father was unable to complete his case plan, resulting in Child being in the Cabinet's custody and out of Father's care for over two (2) years at the time of the termination hearing. Accordingly, the circuit court was not clearly erroneous in finding that Child had been abused or neglected.
Next, the circuit court correctly found that the Cabinet had met multiple grounds for termination under KRS 625.090(2). The statute only requires the existence of one of the grounds to be proven by clear and convincing evidence. KRS 625.090(2).
In this case, the Cabinet presented evidence to support the circuit court's conclusion under KRS 625.090(2)(a) that Father had abandoned Child for a period of not less than ninety (90) days. Father failed to participate in reunification services until after the Cabinet filed for termination of his parental rights and as previously discussed, Child had remained in foster care for over two (2) years.
Additionally, the Cabinet provided evidence pursuant to KRS 625.090(2)(e) that Father, for a period of not less than six (6) months, had continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection for Child and that there was no reasonable expectation of improvement in parental care and protection, considering Child's age.
Specifically, the Cabinet provided evidence and testimony that, although Father testified to his intentions to maintain his sobriety, Father presented no evidence that he could maintain sobriety or stability outside of an incarcerated setting. Moreover, the circuit court supported its conclusions with findings that Father had not meaningfully participated in the Cabinet's case plans until the past couple of months and that there was no reasonable expectation of improvement in parental care and protection considering Child's age. Thus, Father failed to remedy the concerns that caused Child's removal and was unable to put himself in a position to provide parental care and protection or the necessities of life.
Additionally, although the trial court may not rely entirely on past behavior when considering the possibility of reasonable improvement on Father's part, it may look to a parent's past behavior to predict future actions, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. T.N.H., 302 S.W.3d at 663 (citation omitted). In this case, the circuit court appropriately considered Father's history of non-compliance with the court's remedial orders to make an educated prediction about his future behavior.
Moreover, one must balance the expectation of Father's improvement and Child's age. After being with the same foster family his entire life, Child deserves permanency and stability. Accordingly, we discern no error with the circuit court's findings under KRS 625.090(2).
Finally, the circuit court considered each of the best interest factors and correctly found that the Cabinet proved by clear and convincing evidence that it was in Child's best interest to terminate Father's parental rights. KRS 625.090(3). When analyzing a circuit court's determination of the best interest prong of the parental termination test, we review for an abuse of discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009) (citations omitted). "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 Services, 350 S.W.3d 833, 837 (Ky. App. 2011) (citation omitted).
The record also supported the court's findings in this regard. The circuit court considered that the Cabinet had made reasonable efforts to reunite Father with Child. KRS 625.090(3)(c). Testimony included that the Cabinet offered Father a case plan that encouraged Father to participate in prison programs and services. The foregoing is sufficient to conclude that the Cabinet made reasonable efforts in this case. See C.A.W. v. Cabinet for Health & Family Services, Commonwealth, 391 S.W.3d 400, 405 (Ky. App. 2013).
Additionally, the record reflects that the Cabinet was meeting Child's physical, mental, and emotional needs while in the Cabinet's care and custody. KRS 625.090(3)(e). The Cabinet social worker testified that she had visited with Child while in his foster home and that he was attached to his foster family. Moreover, the record reflected that Child would continue to improve if the circuit court ordered the termination of Father's parental rights. Therefore, the circuit court correctly concluded that it was in Child's best interest to terminate the Father's parental rights.
As a panel of this Court stated in C.A.W., "[w]hile [Father has] taken some positive steps, the record indicates that they are just the first steps on the long road toward reunification and were not sufficient adjustments to [his] circumstances to warrant reunification with [Child], especially considering [his] history of continued substance abuse, mental health concerns, parenting concerns, non-compliance and instability." 391 S.W.3d at 405-06.
CONCLUSION
In this case, the circuit court's findings were supported by substantial evidence from the record. Accordingly, we affirm the Kenton Circuit Court's findings of fact, conclusions of law, and order terminating Father's parental rights to Child.
ALL CONCUR.