Opinion
NO. 2014-CA-001962-ME
07-29-2016
J.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; B.E.A., J.G.A., AND C.J.A., MINOR CHILDREN APPELLEES
BRIEF FOR APPELLANT: Steven B. Strepey Louisville, Kentucky BRIEF FOR APPELLEE: Erika L. Saylor Cabinet for Health and Family Services Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN BYER, JUDGE
ACTION NOS. 13-AD-500272T, 13-AD-500273T, & 14-AD-500348T OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE, ACREE AND MAZE, JUDGES. MAZE, JUDGE: J.A. appeals from a judgment of the Jefferson Family Court terminating his parental rights to three of his children. He argues that the trial court's findings supporting termination were not supported by substantial evidence. We conclude that the trial court made sufficient findings supporting termination as required by KRS 600.090, and that those findings were supported by substantial evidence. Hence, we affirm.
Kentucky Revised Statutes.
Pursuant to CR 73.08, CR 76.03, CR 76.12, and the policy of this Court, cases concerning child custody, dependency, neglect, abuse, and support, as well as domestic violence, are to be given priority, placing them on an expedited track through our Court. That did not occur in this case. Both human error and obsolete case management software resulted in an administrative delay in assigning this case to a merits panel for decision.
On June 24, 2016, after discovering the administrative error, the Clerk of the Court informed the Chief Judge and Chief Judgeelect who, together, assigned the case to a special merits panel of Court of Appeals Judges who have given it the highest priority to offset any delay to the greatest extent possible. Additionally, the Court has sent a letter of explanation and apology to the parties and placed that letter in the record.
Finally, the Court has undertaken efforts to put into effect procedures to ensure that such an error is not repeated.
The essential facts of this action are as follows: G.L.B. (Mother) is the mother of at least four children, N.N.S., B.E.A., J.G.A., and C.J.A. J.A. (Father) is the father of the latter three children. The Cabinet has been involved with the family since the birth of the eldest child in 2002. Shortly after the birth of J.G.A. in 2006, the child was removed from Mother's custody because he was born prematurely with cocaine and alcohol in his system. The court directed both Mother and Father to attend parenting classes. Mother failed to complete her case plan due to drug usage and incarceration. The trial court eventually placed J.G.A. with his maternal grandmother and allowed Father to have unsupervised visitation with the child. The court also ordered Father to pay child support.
In 2009, the Cabinet gave Father temporary custody of J.G.A. because the grandmother was unable to care for the child. Less than a year later, however, the Cabinet filed another petition, alleging that Father had left J.G.A. alone with unapproved caregivers, was not cooperating with the Cabinet, and had failed to complete court-ordered parenting classes and psychological assessment. The trial court placed J.G.A. in the Cabinet's temporary custody and the court ordered Father to complete parenting classes, cooperate with the Cabinet and all other service providers, disclose the names and addresses of all persons with whom he left J.G.A. for child care, permit his Cabinet social worker to visit his home, and undergo random drug screens. The trial court subsequently dismissed that petition against Father and placed J.G.A. in a relative's custody.
In 2012, the Cabinet removed B.E.A. from Mother's custody because he tested positive for cocaine shortly after his birth. The Cabinet also filed an emergency custody petition for N.N.S. and J.G.A. because Mother and Father had been involved in domestic violence in the presence of the children. The petitions further alleged that Mother had a history of untreated substance abuse and mental illness and of being non-compliant with court orders, and that Father had a history of being non-complaint with court orders.
On March 13, 2012, the trial court removed the children to the custody of the Cabinet, where they have remained since that date. The court ordered Father to complete the Batterer's Intervention Program, have supervised visits with the children based on his sobriety and compliance with the court orders, pay child support, establish paternity, refrain from domestic violence, and cooperate with the Cabinet and all other treatment providers. On October 2, 2012, the trial court found J.G.A. and B.E.A. to be abused or neglected based upon Mother's and Father's stipulations.
In 2014, the trial court placed C.J.A. in the Cabinet's emergency custody after he tested positive for cocaine and benzodiazepines at birth. The Cabinet's petition further alleged that Father's parental rights to his other children had been terminated due to non-compliance with previously-ordered parenting classes. The trial court found C.J.A. to be abused or neglected and placed him in the Cabinet's custody on March 4, 2014.
On July 19, 2013, the Cabinet filed a petition to terminate Mother's and Father's rights to J.G.A. and B.E.A. On August 21, 2014, the Cabinet filed another petition to terminate their rights to C.J.A. The petitions were adjudicated at a consolidated trial on October 23, 2014. Only Father actively participated in the termination hearing. On November 6, 2014, the trial court issued findings of fact, conclusions of law and an order terminating the parental rights of Mother and Father to all three children. Father now appeals to this Court.
The petition also named C.S. as the putative father of N.N.S. The judgment terminated the parental rights of Mother and C.S. to that child.
As a preliminary matter, CR 76.12(4)(c)(iv) and (v) requires that an Appellant's brief include Statement of the Case and Argument sections each with ample references to the record. Father's brief contains neither. When an appellate advocate fails to abide by the rules set out in CR 76.12, this Court has the option to: (1) ignore the deficiency and proceed with the review; (2) strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only. CR 76.12(8)(a). See also Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990). However, as a general rule, this Court will not strike a deficient brief in matters involving termination of parental rights or custody of a child.
Kentucky Rules of Civil Procedure. --------
Furthermore, KRS 625.090 requires the trial court to make specific findings prior to granting a petition to terminate parental rights. So long as the trial court makes the findings required by the statute, this Court will not disturb those findings unless no substantial evidence exists on the record. M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008), citing V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). However, it is not the job of an appellate court to search the record for evidence in support of Father's undeveloped argument. Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011).
The trial court's findings clearly meet the requirements of KRS 625.090(1)(a). In prior dependency proceedings, J.G.A., B.E.A. and C.J.A. were each found to be abused or neglected children, as defined in KRS 600.020. Father was a party to each of those proceedings, and he stipulated to the finding with respect to the first two children. The trial court separately found that C.J.A. was an abused or neglected child. Moreover, the record clearly refutes Father's suggestion that the prior findings of abuse and neglect did not apply to him. The trial court set out at length the history of the Cabinet's dealings with Father, including his non-compliance with court orders and his abuse or neglect of his children. Father does not point to any evidence contradicting these findings.
In addition, the family court may not terminate a parent's rights unless it finds, by clear and convincing evidence, one or more of the grounds set out in KRS 625.090(2)(a)-(j). The trial court made findings under KRS 625.090(2)(e) and (g):
(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;
Father challenges the sufficiency of the evidence supporting the trial court's findings under these two sections. The trial court specifically found that, while Father is capable of working and financially supporting his children, he abdicated that responsibility for an extended period of time. While Father has provided some support and has attended some parenting classes, the trial court noted that he has consistently failed to fully comply with all of his obligations in this regard. Father does not point to any other evidence contradicting this conclusion.
Furthermore, we note that the trial court found that J.G.A. and B.E.A. had been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights. KRS 625.090(2)(j). In addition, the court found that the Cabinet had offered all reasonable services to each parent, but Father failed to make sufficient adjustments in his circumstances, conduct, or conditions to make it in any of the children's best interest to return them to his home within a reasonable period of time. KRS 625.090(3)(c) & (d). Lastly, the trial court found that each of the children had made substantial progress while in the Cabinet's custody, and there were prospects for continuing improvement in their welfare if termination was ordered. KRS 625.090(3)(e).
Based upon these findings, the trial court concluded that termination of Father's parental rights would be in the best interests of the children. Father fails to identify any evidence contradicting these findings. Under the circumstances, we must conclude that the trial court made sufficient factual findings under KRS 625.090 to support termination of Father's parental rights, and that those findings were supported by substantial evidence.
Finally, Father raises an unpreserved objection to the introduction of hearsay in the Cabinet's reports and in the testimony of the Cabinet's witnesses. However, he does not identify the particular evidence which was allegedly improper, nor does he allege how the introduction of such evidence affected the outcome of the proceeding. In the absence of any specific information about the evidence at issue, we decline to address this unpreserved issue further.
Accordingly, the judgment of the Jefferson Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Steven B. Strepey
Louisville, Kentucky BRIEF FOR APPELLEE: Erika L. Saylor
Cabinet for Health and Family
Services
Louisville, Kentucky