Opinion
NO. 2020-CA-1546-ME
05-14-2021
F.J.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND L.F.W-B., A CHILD APPELLEES
BRIEF FOR APPELLANT: Kendra L. McCardle Florence, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin J. Martz Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JENNIFER R. DUSING, JUDGE
ACTION NO. 20-AD-00007 OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES. KRAMER, JUDGE: F.J.B. ("Father") appeals from the Boone Family Court's Findings of Fact, Conclusions of Law, and Judgment Terminating Parental Rights to his minor child ("Child"). We affirm.
The court also terminated the parental rights of Child's mother ("Mother"). Mother did not appeal.
Child was born August 12, 2008. Mother testified at the termination hearing that she and Father cohabitated until Child was approximately one and one-half years old. Mother testified that she left due to physical abuse by Father. It is uncontroverted that Father has not seen Child since 2013. The Cabinet for Health and Family Services ("CHFS") became involved in 2017 due to allegations of sexual abuse by Child regarding Mother's paramour. Child was initially placed in the custody of a relative, but was removed and placed in the custody of CHFS in July 2017, where she has since remained. CHFS worker Lauren Jones testified that she was diligent in her efforts to locate Father from April 2017 until the summer of 2018, to no avail. Father admitted at trial that he was aware Child was in the custody of CHFS in 2018. Father, who lives in Maine, called Jones in June 2018, and left a voicemail, but when Jones returned the call, the phone number was no longer in service. Father made no other attempts to contact CHFS until 2019. Child's current ongoing CHFS worker, Emily Sherlock, testified that the family court attempted to involve Father in the juvenile case proceedings by telephone, but he never answered the telephone calls, nor otherwise participated in the proceedings.
Father testified that he recently rented a one-bedroom apartment in Cincinnati, Ohio, but that he planned to eventually return to Maine after the termination proceedings. Although he rented an apartment in Cincinnati, he was unemployed at the time of the hearing. --------
CHFS filed a petition for involuntary termination of parental rights on January 9, 2020. The family court held a trial on October 16, 2020, and Father's parental rights were subsequently terminated. This appeal followed.
In Kentucky, termination of parental rights is proper upon satisfaction, by clear and convincing evidence, of a tripartite test. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, Kentucky Revised Statute (KRS) 625.090(1)(a) requires that a child be adjudged neglected or abused. Second, KRS 625.090(1)(c) requires that termination must be in the child's best interest. Third, at least one of the conditions set out in KRS 625.090(2) must be established. The family court's termination decision will be reversed only if it is clearly erroneous. Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Such a decision is clearly erroneous if there is no substantial, clear, and convincing evidence to support the decision. Id.
Father makes two arguments on appeal. We first note that he does not contest the family court's findings regarding the first or second parts of the tripartite test for termination of parental rights. Nevertheless, the record before us supports the family court's findings that Child is abused or neglected and that termination is in Child's best interest. Although Father does not argue those findings, he takes issue with the third part of the tripartite test. He first asserts that "[t]here was no proof provided by [CHFS] that Father was unable to provide and care for [Child]." We note that the entirety of Father's argument is one paragraph in length. Although he does not cite to any legal authority, we interpret his argument to mean that he disagrees with the family court's findings pursuant to KRS 625.090(2)(e) and (g), which state:
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
. . . .
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]
We agree with the family court's findings because the evidence was uncontroverted that Father had been unwilling or unable to assume a parenting role since Child was removed from Mother's custody in 2017. He has not provided any parental care to Child whatsoever since 2013, and Mother testified that even when the parties were living together very early in Child's life, Father provided little to no care to Child. He has provided no life necessities to Child and made no provisions for her care.
Father admitted to a criminal history, including a conviction for assault, and admitted Child was present during the incident. Father was also convicted of criminal mischief. Mother sought four orders of protection against Father for domestic violence, and she testified extensively regarding ongoing harassment and threats from Father. Father also admitted to a criminal conviction for failure to pay child support for Child. At the time of his conviction in 2011, Father was over nine thousand dollars in arrears. He testified that he had paid only fifteen hundred dollars ($1500.00) towards his arrearage since 2011.
The record supports, by clear and convincing evidence, that the conditions set forth in KRS 625.090(2)(e) and (g) were satisfied. CHFS was required to satisfy only one of the conditions of KRS 625.090(2) but, here, three of the conditions were satisfied because the family court also found that Father abandoned Child for a period of not less than ninety (90) days pursuant to KRS 625.090(2)(a). Father does not dispute that finding. Father has not seen Child since 2013 and has provided no parental care to Child for at least the same amount of time. He did not make himself available to CHFS even after he knew Child had been removed from Mother's care. "Generally, abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." K.M.E. v. Commonwealth, 565 S.W.3d 648, 656 (Ky. App. 2018) (citation omitted). The evidence contained in the record before us supports the family court's finding that Father abandoned Child.
Father also argues briefly that CHFS did not provide him with a case plan. We agree with the family court's reasoning and CHFS's argument that CHFS provided all reasonable services to Father due to (1) the length of time Child had been in foster care at the time Father finally made contact with CHFS; (2) Father's failure to present himself to CHFS or the family court during the juvenile proceedings; and (3) the fact that Father had no contact with Child since 2013 (i.e., four years before Child was removed from Mother's care).
Father next argues the family court erred by not finding that Father had demonstrated, by a preponderance of evidence, that Child will not be abused or neglected in the future. KRS 625.090(5) states
[i]f the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.(Emphasis added.)
Father's argument must fail. The record does not support his assertion, by a preponderance of evidence or otherwise, that Child would not be abused or neglected in the future if placed in his care. Further, a plain reading of KRS 625.090(5) shows that, even if Father had proven by a preponderance of evidence Child would not continue to be abused or neglected, the family court was not required to deny the petition for termination of parental rights. Rather, the decision was within the family court's discretion. See, e.g., C.A.W. v. Cabinet For Health & Family Services, 391 S.W.3d 400, 407 (Ky. App. 2013).
Accordingly, the judgment of the Boone Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kendra L. McCardle
Florence, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Kevin J. Martz
Covington, Kentucky