Opinion
NO. 2018-CA-000810-ME
03-08-2019
K.P. APPELLANT v. D.C.D.; AND B.C.D., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: J. Todd Elmore Mayfield, Kentucky BRIEF FOR APPELLEES: Kevin D. Bishop Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 17-AD-00037 OPINION
VACATING AND REMANDING
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES. JONES, JUDGE: Appellant, K.P., appeals the Graves Circuit Court's findings of fact, conclusions of law, and order terminating her parental rights to her minor child, B.C.D. For the reasons more fully explained below, we VACATE and REMAND this matter to the circuit court for additional findings of fact and reassessment of the evidence consistent with the opinion expressed herein.
I. BACKGROUND
K.P. ("Mother") and D.C.D. ("Father") are the biological parents of Child who was born in December of 2011. Mother and Father were never married. When Mother became pregnant with Child she was married to another man. Prior to Child's birth, Father took Mother to the hospital due to health issues. At the hospital, Mother tested positive for Lortab and benzodiazepines. After testing positive for drugs, Mother was admitted to the hospital and remained there until approximately two weeks later when she gave birth to Child. Due to Mother's drug use while pregnant, the Cabinet for Health and Family Services ("Cabinet") was alerted. After being discharged from the hospital, Child was placed with a foster family.
Mother regained custody of Child a short time later. After Father established paternity, Mother and Father were awarded joint custody and timesharing. This arrangement continued for the next several years. During this time, Mother married a different man. In 2015, Mother called Father and asked him to take Child. She told Father that her new husband was abusive to her, and she did not think it was good for Child to be in that type of environment. Mother requested Father to keep Child until she was able to move out and find new housing.
Mother's request led Father to file a custody action in Graves Circuit Court for sole custody of Child. On June 17, 2015, Mother and Father entered into an agreed order in which Father was granted sole custody of Child. Mother was awarded supervised visitation with the opportunity to regain joint custody if Mother remained drug free. On December 29, 2015, Mother and Father entered into a second agreed order establishing a supervised visitation schedule for Mother. S.B., Mother's mother and Child's maternal grandmother (hereinafter referred to as "Maternal Grandmother"), was designated as the visitation supervisor. It appears from the record that Mother lived with Maternal Grandmother during a portion of the relevant time period.
As part of this termination proceeding, the parties requested the trial court to take judicial notice of the custody proceedings. The trial court granted the parties' request; however, the record from that action was not included as part of the record on appeal. Our discussion of the record from that action is based on the pleadings and testimony received as part of the termination action.
As part of the custody action, Mother was required to submit a hair follicle for purposes of drug testing. Mother's hair follicle drug test came back positive for cocaine and methadone. Aside from the testimony that Mother used drugs while pregnant with Child in 2011, however, there was no proof offered during this termination proceeding that Mother ever used drugs in Child's presence.
On February 1, 2016, Father filed a motion seeking child support from Mother. Child support was initially set at $277.00 a month. However, in order to account for daycare expenses, by order entered on or about August 8, 2016, Mother's child support amount was increased to $477.00 a month. As of March 31, 2018, Mother owed approximately $9,233.00 in child support arrearages.
In some of the pleadings this figure is cited as being $207.00. We do not have a copy of the actual order. The difference between the amounts is immaterial to this appeal.
On December 17, 2017, Father filed a petition for involuntary termination of mother's parental rights. Therein, Father recounted Mother's history with drug abuse, including the fact that she gave birth to a second child on February 1, 2016, who tested positive for cocaine at birth. Father also alleged that on three separate occasions Mother and Maternal Grandmother had become embroiled in verbal and physical altercations with one another while Child was in their care leading him to terminate Mother's visitation with Child.
See Kentucky Revised Statutes ("KRS") 625.050(3) ("Proceedings for involuntary termination of parental rights may be initiated upon petition by the cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth's attorney or parent." (emphasis added)).
As grounds for termination, Father asserted that Child is a "neglected child pursuant to KRS 600.020(1) as said statute pertains to [Mother] by her lack of parenting and repeated pattern of substance abuse." Father also alleged Mother had abandoned child for a period of not less than 90 days; has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for Child; has engaged in a pattern of conduct that renders her incapable of caring for the immediate and ongoing needs of child, including, but not limited to parental incapacity due to alcohol or other drug abuse; and 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 necessary and available for Child's well-being and there is no reasonable expectation of significant improvement in Mother's conduct in the immediately foreseeable future.
Mother appeared in the action and retained private counsel to represent her. Mother admitted many of the allegations in the petition, but took exception to the allegation that she and Maternal Grandmother were ever physical with one another or with Child. She asked the trial court to deny the petition and that she be allowed to reinstate her visitation with Child. A final hearing was conducted by the trial court on April 24, 2018. Mother, Father, Maternal Grandmother, Officer Phillip Burnett, and Rachel Pickering (a social worker with the Cabinet) testified at the final hearing.
We summarize the parties' testimony in a different order than presented at trial so as to place this matter in a more cogent factual context.
Father testified that after he established paternity, he initially shared joint custody and timesharing with Mother. This continued until sometime in 2015. Father did not testify to any grave concerns with Mother's care of Child during this period. In 2015, Mother asked Father to take Child due to domestic abuse perpetrated on her from her then husband. Father did so. He believes Mother acted responsibly as a parent in deciding to have Child removed from this situation. Mother told Father at this time that she wanted him to have sole custody until she was able to move out of her marital home and find new housing away from the domestic violence. Father agreed to take Child and proceeded to file a custody action in Graves Circuit Court. As part of that action, Mother submitted to a hair follicle drug screen that was positive. Thereafter, the parties entered into an agreed order whereby Father would have sole custody of Child. Mother agreed to visitation supervised by Maternal Grandmother. It was further agreed that Mother could attempt to regain joint custody by remaining drug free and completing a drug treatment program. Father testified that Mother enrolled in a program, but he does not know if she completed it. He further testified that Mother has struggled with drug abuse since he first met her.
There is nothing in the record to suggest that Child was abused by Mother's former husband during this time. --------
Father then described a series of three incidents that occurred during Mother's supervised visitation with Child. The first incident took place on June 17, 2016. On that date, Mother called Father and asked him to come pick up Child because she and Maternal Grandmother were in a shouting match with one another. He did so. The second incident occurred on December 9, 2016. On this date, police were dispatched to Maternal Grandmother's residence in response to a verbal altercation between Mother and Maternal Grandmother during Child's supervised visitation time with Mother. The responding officer called Father and requested he pick up Child. The third and final incident occurred on April 15, 2017, which was Easter weekend. Father stated that Maternal Grandmother called him to come get Child because she and Mother were in a dispute. He did so. Father indicated that Child told him that the two women were tugging him in different directions. Father did not indicate that Child was injured during the alleged tugging.
After each of the incidents, Father (or his attorney) sent Mother a notification of termination of visitation rights. Thereafter, it appears that Father refused mother visitation until she obtained a court order. Mother moved the circuit court to reinstate her visitation after the first two incidents, but did not do so after the third. Father testified the last time Child saw Mother was April 17, 2017, when he picked up Child from Maternal Grandmother's house following the Easter-weekend incident.
Father testified Mother sent multiple text messages requesting to see Child each time Father terminated Mother's visitation. Father testified that he would eventually stop responding to Mother. Father testified that following the 2017 Easter-weekend incident, Mother contacted him the following weekend to see Child, but he did not respond to Mother.
Father testified that on two occasions Child had indicated that he missed Mother and wanted to see her. Father also testified even though Mother had not seen Child since Easter weekend, Mother did send presents for his birthday. Father testified that while under his care, Child was happy, healthy, and excelling in school. Father further testified that since having no contact with Mother, Child has had no issues of "emotional disturbances."
Father testified he had never known Mother to have a car, a job, or her own home, and that as far as he knows Mother is poor. Father also testified that Mother was up to date on her child support until the court increased it. Since that time Mother had made only two payments, one for $207.00 and another for $100.00. Father testified that Mother owed him $9,233.00 in child support.
During her testimony, Mother did not deny that she had become involved in verbal disagreements with Maternal Grandmother. She testified that she feels like Maternal Grandmother "over parents" her when it comes to decisions regarding Child. Mother testified she only messaged Father once after the April 2017 incident because Father threatened to take out a charge of harassing communications if she continued to contact him. Mother admitted that she owed Father over $9,000.00 in child support. She explained that after her second child was born, she had difficulty working and affording child care, but that she was looking for work.
Mother also admitted that she has a history of drug abuse. However, she did take issue with some of the particulars. She admitted that she was arrested in January 2018 and charged with possessing illegal drugs. However, she explained that she agreed to take part in a diversion program and that the charges were scheduled to be dismissed. Mother testified she is currently in a voluntary intensive outpatient program where she takes "classes" four days a week, one of which is an individual session, and is drug tested. Mother testified that she was drug tested at the beginning of April as part of her outpatient program. She stated that the drug screening came back clean. She currently has custody of her second Child.
Mother also testified regarding her drug use during her second pregnancy. Mother testified that she did use cocaine during the first four months when she was unaware that she was pregnant with her second child. Mother disputed that the positive cocaine drug screen after the birth of her second child was the product of a urine screen. She testified that the positive screen was based on the baby's meconium and reflected her drug use during the time period that she did not know she was pregnant.
Mother testified that she suffers from various mental health conditions including anxiety and bipolar disorder. Mother testified she was not currently taking medications for her bipolar condition. Mother testified that she is no longer treating her addiction with Suboxone, as she would like a drug-free life. Mother testified that she has received a lot more education throughout the years in order to help maintain her sobriety.
Mother told the trial court that she would never have voluntarily abandoned Child. She explained that she wanted to see Child, but Father would not allow her to do so. Mother testified that she believed her current child support was "a bit excessive" given that she also has a second child.
Rachel Pickering, a social worker with the Cabinet testified regarding Mother's second child, who is not a part of this termination action. Ms. Pickering testified that she became involved with Mother when Mother gave birth to the second child. Mother and the second child tested positive for cocaine following this child's birth in February 2016. Ms. Pickering also testified that Mother's prenatal records revealed positive drug tests on June 29, 2015, November 4, 2015, January 7, 2016, and February 1, 2016. Ms. Pickering testified that because of the positive drug tests, a dependency, neglect, and abuse ("DNA") action was filed against Mother, which resulted in Maternal Grandmother receiving temporary custody of Mother's second child. Ms. Pickering testified that from February 2016 through late May or early June 2017, Mother submitted to random urine drug screenings and had only ever tested positive for Suboxone, which was medically prescribed to Mother. Mother regained custody of her second child in late May or early June of 2017, at which time the Cabinet closed its case.
Maternal Grandmother testified that she and Mother had maybe three or four disagreements. She testified that the incidents between her and Mother were usually over parenting and that sometimes the two got loud. She testified that Mother currently resides with her and the two are getting along much better.
Officer Phillip Burnett, a police officer with the Mayfield Police Department, also testified. Officer Burnett testified that on January 25, 2018, he responded to complaint concerning a verbal altercation at Maternal Grandmother's house. When he arrived, Mother and Maternal Grandmother were involved in a dispute. As Mother was preparing to leave, he noticed that she retrieved some unidentified pills. He also noted a pipe with residue appearing to be methamphetamine and observed Mother trying to conceal a rolled paper containing what he believed was marijuana. As a result, he placed Mother under arrest. He testified that Mother admitted using methamphetamine a few days prior and admitted the marijuana belonged to her. He believed that the charges against Mother were still pending, but did not know the exact terms of any diversion agreement. He could not recall whether any children were present in the home at the time of Mother's arrest.
Following the hearing, the trial court entered an order terminating Mother's parental rights. Specifically, the trial court made the following "findings":
12. The Court finds:
a. [Mother] has neglected [Child] and finds he is a neglected child pursuant to 600.020(1) based upon the lack of parenting and repeated pattern of substance abuse.
b. Termination of [Mother's] parental rights is in the best interest of the minor child.
c. [Mother] has abandoned [Child] for a period not less than 90 days.
d. [Mother] for a period of not less than 6 months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for child and there is no reasonable expectation of improvement in parental care and protection considering the age of the child.
e. [Mother] has engaged in a pattern of conduct that renders her incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol or other drug abuse.
f. [Mother], 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 there is no reasonable expectation of significant improvement in [Mother's] conduct in the immediately foreseeable future, considering the age of the child.
This appeal followed.
II. STANDARD OF REVIEW
In Kentucky, trial courts are afforded a great deal of discretion in determining whether termination of parental rights is warranted. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Our "review is limited to a clearly erroneous standard which focuses on whether the [trial] court's order of termination was based on clear and convincing evidence." Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the [trial] court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Id. (quoting Cabinet for Health & Family Servs. V. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010)).
"Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Res. & Envtl. Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994).
III. ANALYSIS
KRS 625.090 governs the involuntary termination of parental rights. According to KRS 625.090, the termination of parental rights is proper upon satisfaction of a three-pronged test. First, the child must be found to be abused or neglected, as defined in KRS 600.020(1), by a court of competent jurisdiction. KRS 625.090(1)(a). Second, the trial court must find that at least one or more of the enumerated factors in KRS 625.090(2) are present. KRS 625.090(2). Finally, the trial court must find that it is in the best interest of the child that parental rights be terminated. KRS 625.090(3).
On appeal, Mother argues that the trial court's findings of fact are not supported by substantial evidence. Specifically, Mother argues that it was error for the trial court "to terminate [her] parental rights because the grounds for termination are the result of Father denying Mother access to child." As such, Mother maintains the trial court's findings were not based on clear and convincing evidence. Father counters that he terminated Mother's visitation rights after the incident between Mother and Maternal Grandmother on April 17, 2017, and that Mother has demonstrated her abandonment of Child of by failing to seek an order from the court to continue her visitation. Father explains in his brief to this Court,
[Father] gave notice under KRS 403.240 to [Mother] of termination of her visitation in an effort to protect minor child from the domestic violence issues between [Mother] and [Maternal Grandmother] who was the visitation supervisor. The termination of her visitation was not a court order but merely a notice. The remedy for [Mother] to regain visitation was to file a motion seeking court order to restart visitation. . . . [Mother] never took any action to restart her visitation. Despite her complaints of blaming everyone else, it was her choice not to proceed that resulted in her visitation being terminated since Easter of 2017. . . . Despite [Mother's] choice not to hire an attorney to file a motion to restart visitation after Easter of 2017, [Mother] did hire an
attorney to represent her in the termination case. Further, she should have had copies of the two prior motions her prior attorneys had filed and she should have been able to file a pro se motion. [Mother] simply chose to not make the effort to restart visitation.(Appellee Br. at 16-17).
The trial court found that Mother's failure to see child since April 2017 was based on Father's termination of her visitation rights via a KRS 403.240 notice. While it is undisputed that Mother has not seen Child since April 2017, we cannot agree that her failure was either willful or occasioned by her substance abuse problems.
Like far too many parents, Mother has a substance abuse problem. And, most certainly, drug usage can lead to parental neglect and abuse. In this case, however, there was no testimony that since having regained custody of Child following his birth, Mother ever used drugs in Child's presence or neglected him while he was in her care. Mother voluntarily agreed to give Father sole custody of Child in order to protect Child from domestic abuse. Despite her drug issues, Mother paid child support for several months and exercised her supervised visitation rights. There was no evidence that Mother ever physically harmed Child, neglected him during her visitation, or otherwise endangered his physical well-being.
Father testified that he unilaterally stopped Mother's visitation because of the verbal disputes that occurred between Mother and Maternal Grandmother during Mother's supervised visitation. Moreover, Father admitted that after the third incident, Mother called Father seeking her visitation, but Father refused to allow it and ignored her calls and texts. The trial court apparently believed Father was justified in doing so because he sent Mother a "notice" that he was terminating visitation pursuant to KRS 403.240.
A valid order was in place giving Mother the right to supervised visitation with Child. Father had no right to unilaterally terminate Mother's visitation. If modification was necessary, Father could have moved the court with jurisdiction over the custody matter to modify visitation. In the event Father had filed such a motion, the court would have been required to consider whether modification was in Child's best interests. To this end, KRS 403.320(3) provides:
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.Id. (emphasis added).
Because Father did not move the court for modification, there were never any findings made that stopping Mother's supervised visitation was in Child's best interests or that continuing visitation with Mother was likely to seriously endanger Child's physical, mental, moral or emotional health. Likewise, no consideration was ever given to whether there were less restrictive options available than stopping all visitation between Mother and Child such as selecting a different supervisor for visitation, even if that meant reducing the overall length of Mother's visits with Child.
Instead of moving the trial court for modification of the visitation order, Father sent Mother a "notice" he was terminating visitation pursuant to KRS 403.240. KRS 403.240 does not allow one parent to indefinitely and unilaterally stop all future visitation. And, it was not intended to be used in the way Father used it. In relevant part, KRS 403.240 provides:
(2) The failure of either party, without good cause, to comply with a provision of a decree or temporary order or injunction, including a provision with respect to visitation or child support shall constitute contempt of court, and the court shall remedy the failure to comply.KRS 403.240. By its clear and unambiguous terms, KRS 403.240 deals with contempt. It offers a party a defense when faced with a contempt motion. However, it is not substitute for seeking modification of visitation from the court. At most, it should be relied upon by a party only until a court has the opportunity to render a decision on visitation. The burden of seeking modification falls on the party who wants it changed, in this case Father.
(3) Good cause not to comply with a provision of a decree or temporary order or injunction with respect to visitation shall include mutual consent of the parties, reasonable belief by either party that there exists the possibility of endangerment to the physical, mental, moral, or emotional health of the child, or endangerment to the physical safety of either party, or extraordinary circumstances as determined by the court.
(4) The court may, if no reasonable cause is found for denial of visitation, award attorney's fees to the prevailing party.
Mother should not have been required to file a motion to "restart" her supervised visitation as no order was ever entered stopping it. Mother had a right to visit with Child. Father admittedly prevented her from exercising her right. Given the testimony, it is impossible to conclude that Mother's actions in failing to visit with Child were voluntary. This determination calls into question the trial court's findings and conclusion of law. KRS 625.090(2). Given the trial court's inappropriate reliance on Mother's failure to visit with and parent Child following the Easter-weekend incident, we find it necessary to vacate the termination order and remand for additional findings and fact and conclusions of law.
Equally problematic is the trial court's lack of any actual findings to support its conclusion that termination of Mother's parental rights is in Child's best interest. "Consideration of matters affecting the welfare and future of children are among the most important duties undertaken by the courts of this Commonwealth. In compliance with these duties, it is imperative that the trial courts make the requisite findings of fact and conclusions of law to support their orders." Keifer v. Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011). Upon review, we are compelled to conclude that the trial court did not make adequate findings regarding the best interests of Child. The trial court's order simply states in wholly conclusory terms that termination of Mother's parental rights is in Child's best interests. The trial court did not include any specific written facts to support its best interests conclusion.
KRS 625.090 is clear that a trial court must make individualized findings of fact when termination is sought. Subsection (6) states: "[u]pon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent . . . ." KRS 625.090(6). Our Supreme Court has been clear that written, particularized findings are essential in cases involving the welfare and future of children. Keifer, 354 S.W.3d at 125-26. Remand is required if the trial court fails to support its conclusions with appropriate written findings of fact. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011).
The trial court's findings of fact, conclusions of law and judgment terminating Mother's parental rights does not make any specific, particularized findings with respect to Child's best interests. In fact, other than noting Child's birthdate, there is no discussion of Child's emotional state and the effect, if any, termination would have on Child. This omission is troubling in light of the fact that KRS 625.090 requires the trial court to consider "[t]he physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered" as part of its best interest analysis. On remand, the trial court must make individualized and specific findings regarding Child's best interests as required by KRS 625.090.
IV. CONCLUSION
For reasons set forth above, we VACATE the order of the Graves Circuit Court terminating Mother's parental rights and REMAND this matter back to the circuit court.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Todd Elmore
Mayfield, Kentucky BRIEF FOR APPELLEES: Kevin D. Bishop
Mayfield, Kentucky