Opinion
NO. 2012-CA-000922-ME
06-07-2013
H.Z. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.P.M., A CHILD APPELLEES
BRIEF FOR APPELLANT: Bryan N. Coomer Louisville, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Barbara M. Gunther Shelbyville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 11-AD-00036
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND VANMETER, JUDGES. CLAYTON, JUDGE: This comes before us as an appeal from an order of the Bullitt Circuit Court terminating the rights of appellant, H.Z., to her child. Based upon the following, we will affirm the decision of the Bullitt Circuit Court.
BACKGROUND INFORMATION
H.Z. is the parent of a minor child, A.P.M. On November 22, 2011, H.Z. was served with copies of a summons and petition in an action seeking the involuntary termination of her parental rights. H.Z. was incarcerated when she was served, but was released from jail prior to the beginning of the trial on March 23, 2012. James D. Winchell was appointed by the Bullitt Circuit Court to act as H.Z.'s Guardian Ad Litem in the action. The father of A.P.M. was also served with the petition and participated in the trial. He is not a party to this appeal.
On the trial date, counsel for H.Z. asked for a continuance; however, the court denied the request and the trial was held over a period of three days. A.P.M.'s Guardian Ad Litem, J. Scott Wantland, recommended to the court that H.Z.'s rights be terminated. After a hearing, the court agreed with the Cabinet for Health and Family Services ("the Cabinet") and terminated H.Z.'s parental rights. H.Z. then brought this appeal. She contends that the trial court committed palpable error in denying her motion for a continuance which was a denial of her due process rights. She also argues that the trial court erred in finding that the Cabinet rendered or attempted to render reasonable efforts to effectuate the reunification between herself and A.P.M. and in finding that there was no reasonable expectation of improvement in her conduct in the immediately foreseeable future, considering the age of the child. Finally, she asserts that the court erred in finding that H.Z. abandoned A.P.M. for a period of not less than ninety (90) days.
STANDARD OF REVIEW
Kentucky Rules of Civil Procedure (CR) 52.01 provides that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given the opportunity of the trial court to judge the credibility of witnesses." J.M.R. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 239 S.W.3d 116, 120-121 (Ky. App. 2007). Findings are considered to be clearly erroneous if they are manifestly against the weight of the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008); Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967). CR 92(2) provides that the granting of a motion for a continuance shall only be for good cause and is at the discretion of the trial court. It may only be disturbed if the appellate court finds that the trial court has clearly abused its discretion. Corns v. Corns, 343 S.W. 3d 622 (Ky. App. 2011). With these standards in mind, we review the trial court's decision.
DISCUSSION
H.Z. first asserts that the trial court committed palpable error in denying her motion for a continuance, thus denying her due process. She argues that the fact that she was released from jail only eight days prior to the trial did not allow her counsel time for adequate trial preparation. H.Z. argues that the trial court abused its discretion in overruling her motion.
In Corns, supra, the denial of a continuance was upheld where the party was aware of the hearing date, but did not retain counsel in a timely manner. In this case, H.Z. was served with the summons and petition on November 22, 2011, while she was in prison and was appointed a Guardian Ad Litem. The order setting a trial date was entered on January 25, 2012. Discovery was tendered by the Cabinet to H.Z.'s counsel in mid February 2012, and another copy was tendered the day before trial. Counsel had contact with H.Z. while in jail, but H.Z. was released from jail and failed to contact her counsel. She was also out of jail for over a week prior to the start of the trial. H.Z. was also not present when the proceedings began on March 23rd. The trial court's decision to deny her motion was not an abuse of discretion.
Next, H.Z. asserts that the trial court erred in terminating her parental rights. Under Kentucky Revised Statutes (KRS) 625.090(1), the court may terminate a parent's rights if there is clear and convincing evidence that the child has been adjudged abused or neglected (as set forth in KRS 600.020(1)) by either a court of competent jurisdiction or by the circuit court in proceedings before it. Specifically, KRS 600.020(1) provides that a child is abused or neglected "whose health or welfare is harmed or threatened when his parent, guardian or person exercising custodial control or supervision of the child" takes or fails to take actions set forth in the statute.
The Cabinet contended that H.Z. had neglected A.P.M. by failing to provide essential care and protections of her. H.Z. was arrested in July of 2010 and charged with Hindering Prosecution, second-degree, and Endangering the Welfare of a Minor. A.P.M. was five years old at that time and was placed in the custody of the Cabinet. Since July of 2010, H.Z. has lived in five different places and has been incarcerated three different times. We agree with the circuit court that H.Z. did not provide essential care for A.P.M.
The Cabinet also contends that H.Z. neglected A.P.M. by failing to provide her with adequate care, supervision, food, clothing, shelter, and education as well as necessary medical care. H.Z. also failed to make sufficient progress toward the goals identified and set forth in the plan approved by the court to allow A.P.M.'s safe return. Testimony at the hearing by Fausta Luchini from Seven Counties Services, Inc., indicated that H.Z. did not follow through with either group or individual counseling as was recommended.
Finally, the Cabinet asserted at trial that H.Z. had abandoned A.P.M. KRS 600.020(1)(a)(7) provides that as a reason for termination of parental rights. While part of the reason for abandonment was incarceration, H.Z. also failed to visit her child even after she was released from jail.
In deciding to terminate H.Z.'s parental rights, the trial court found that A.P.M. was a neglected child as defined in KRS 600.020(1) and that it was in her best interest for H.Z.'s parental rights to be terminated. The trial court set forth specific findings that A.P.M.'s parents had failed to provide for her essential care and protection; food, shelter and clothing; and that she had made no efforts to adjust her living circumstances to provide for A.P.M. Further, the court found that the child had been in foster care for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition for termination of parental rights. These are findings which are not erroneous under KRS 600.020.
We therefore find that the Bullitt Circuit Court's termination of the parental rights of H.Z. was not clearly erroneous and affirm its decision.
ALL CONCUR. BRIEF FOR APPELLANT: Bryan N. Coomer
Louisville, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Barbara M. Gunther
Shelbyville, Kentucky