Opinion
NO. 2018-CA-000755-ME
04-26-2019
F.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND A.R.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: John R. Kleinschmidt III Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Constance G. Grayson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 17-AD-00001 OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: F.H. (hereinafter referred to as Father) appeals from a judgment of the Bourbon Family Court which involuntarily terminated his parental rights to his daughter, A.R.H. (hereinafter referred to as Child). Father's only argument on appeal is that his due process rights were violated when he was not appointed counsel during the juvenile dependency, neglect, and abuse action. The Cabinet argues that his lack of counsel during the juvenile action did not prejudice him during the termination of parental rights action because he was then represented by counsel and the trial court made the requisite findings to support termination. We agree with the Commonwealth and affirm.
Pursuant to this Court's policy of protecting the privacy of minor children, the names of the child and the family members will not be used.
Child was born on April 2, 2013, to Father and T.P. (hereinafter referred to as Mother). A petition alleging neglect was filed on July 5, 2013, in Fayette County. The petition was only against Mother, but both Mother and Father were appointed counsel. A month later, the case was transferred to Bourbon County and the case was removed from the docket on March 24, 2014. A second neglect petition was filed on September 22, 2014. This petition was filed against Mother and Father. The allegations in the petition against Mother primarily revolved around her drug use. The allegations against Father were that Mother and Father had a history of domestic violence, Father had not established paternity rights, and Father did not have a stable home.
As will be discussed later, Father did not participate in the neglect action; therefore, the allegations raised against him were not extensively discussed or examined by the juvenile court. We will note that the only evidence of domestic violence in the record was perpetrated by Mother against Father. Also, as to Father's paternity, he had not taken a DNA test, but he was listed as the father on Child's birth certificate. Finally, at the time Child was removed from the parents' custody, Mother and Father were living together.
Mother was appointed counsel pursuant to Kentucky Revised Statute (KRS) 620.100, but Father was not. It is unclear why Father was not appointed counsel, but the record suggests that it was because the trial court first wanted him to undergo a DNA test to show paternity. It could also have been because he did not appear before the court and request counsel. In October of 2014, a no contact order was entered between Father and Child. The record is not clear why this order was entered.
The judge who proceeded over the juvenile neglect action was not the same judge who presided over the termination of parental rights action. This helps explain why the record is unclear on some issues.
Mother and Father were living together at the time the second neglect petition was filed so Child was removed from the home and placed with the Cabinet. Mother worked her case plan with the Cabinet; however, on August 4, 2015, due to continued relapses, the permanency goal for Child was changed from reunification to adoption. The Cabinet worker who testified at the termination of parental rights hearing stated that the Cabinet attempted to contact Father, but he and Mother had ended their relationship and the Cabinet had no current contact information for Father.
In May of 2016, Father finally contacted the Cabinet and was given a case plan. He was also informed that he would need to go to court to get the no contact order lifted. From that point on, Father was kept up to date on all court dates, but he did not attend any and he did not seek to have the no contact order lifted.
On January 20, 2017, the Cabinet filed a petition to involuntarily terminate Mother and Father's parental rights. Mother voluntarily waived her rights, but Father did not. Father was appointed counsel and a termination hearing was held on September 8, 2017. Father and a Cabinet social worker testified at the hearing. The court ultimately terminated Father's parental rights and this appeal followed.
The standard for review in termination of parental rights cases is set forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998). Therein, it is established that this Court's standard of review in a termination of parental rights case is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, which is based upon clear and convincing evidence. Hence, this Court's review is to determine whether the trial court's order was supported by substantial evidence on the record. And the Court will not disturb the trial court's findings unless no substantial evidence exists on the record.
Furthermore, although termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met. While the
state has a compelling interest to protect its youngest citizens, state intervention into the family with the result of permanently severing the relationship between parent and child must be done with utmost caution. It is a very serious matter.M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citations omitted).
Father has not contested any of the court's findings of fact or conclusions of law which pertain to the statutory bases for terminating parental rights, so there is no need for us to undertake a review of them. His only argument is that the court violated his due process rights when he was not appointed counsel during the juvenile neglect action.
The Cabinet also argues that this issue was not raised in the trial court, and therefore, not preserved for review. The Cabinet is correct that Father did not raise this issue before the trial court; however, the trial court discussed it in the termination of parental rights judgment. Also, this is an issue which concerns fundamental constitutional rights. For these reasons, we will examine the issue.
A previous panel of this Court has held that
pursuant to both the due process clause of the Fourteenth Amendment to the United States Constitution and KRS 625.080(3) and 620.100(1), that 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. v. Commonwealth, Dep't for Health & Family Servs., 242 S.W.3d 669, 672-73 (Ky. App. 2007). Father argues that he was indigent during the neglect proceedings and that he should have been appointed counsel. The Cabinet argues that the trial court did not rely on any evidence from the juvenile neglect action and made independent findings based on the evidence presented at the termination hearing; therefore, the neglect proceeding had no effect on the termination proceeding.
The statute concerning the appointment of counsel to indigent parents in termination of parental rights proceedings.
The statute concerning the appointment of counsel to indigent parents in dependency, neglect, and abuse actions. --------
We agree with the Cabinet. In its judgment, the trial court specifically stated that it was not relying on evidence presented during the neglect proceeding but was relying solely on evidence gathered during the termination proceeding. In addition,
Father was given the full opportunity to be heard and to defend himself against the allegations. The circuit court made independent and adequate findings of neglect and parental unfitness wholly removed from the district court proceedings against Mother. In other words, the circuit court did not rely on the district court proceedings or any evidence related to that matter in making its termination decision.M.H. v. A.H., No. 2015-CA-000426-ME, 2016 WL 3962285, at *4 (Ky. App. July 22, 2016). See also B.H. v. Cabinet for Health and Family Servs., No. 2010-CA-000664-ME, 2010 WL 4905641 (Ky. App. Dec. 3, 2010); J.L.P. v. Cabinet for Health & Family Servs., No. 2008-CA-001625-ME, 2009 WL 792802 (Ky. App. Mar. 27, 2009). Additionally, Father was aware that Child had been taken into custody by the Cabinet and he testified that Mother informed him of a couple of court dates. Father waited over one and a half years after the removal of Child from his care to first contact the Cabinet. He could have contacted the Cabinet or the court sooner and he likely would have been appointed counsel for the neglect action.
We believe that the underlying neglect proceeding did not affect the subsequent termination case and affirm the judgment on appeal.
ALL CONCUR. BRIEF FOR APPELLANT: John R. Kleinschmidt III
Lexington, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Constance G. Grayson
Lexington, Kentucky