Opinion
NO. 2020-CA-1458-ME
04-23-2021
N.Y. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND A.Y., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Christopher D. Wilkie Lexington, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY W. STEIN, JUDGE
ACTION NO. 19-AD-00075 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. MAZE, JUDGE: Appellant, N.Y. (Father), appeals the Fayette Circuit Court's order terminating parental rights to his biological child, A.Y. Father argues the family court's findings were unsupported by substantial evidence and the order was clearly erroneous. After careful consideration, we affirm.
BACKGROUND
Father is the biological and putative father of daughter, A.Y., born on July 10, 2018, in Fayette County, Kentucky. A.Y.'s biological mother, S.R., does not appeal the termination of her parental rights. Additionally, A.Y.'s legal father, J.R., does not appeal the termination of his parental rights. Therefore, we are only analyzing the termination of Father's parental rights of A.Y.
J.R. was married to S.R. at the time of A.Y.'s birth.
The Cabinet for Health and Family Services (Cabinet) became involved in A.Y.'s well-being when she was born. At the time, Father had an open case with the Cabinet involving his older child, S.Y. On July 12, 2018, two days after A.Y.'s birth, through an emergency custody order, the Cabinet placed A.Y. in a foster home with her biological sibling. Father asked the Cabinet to place A.Y. with his parents, but the request was denied after Father's parents' home failed the Cabinet's inspection.
On October 5, 2018, the family court entered a finding of neglect against Father. The Cabinet identified several barriers preventing immediate reunification, including Father's failure to maintain a relationship with A.Y., issues with stability of employment and housing, and not working on a case plan to reunite with A.Y. Also, Father's parental rights to his older child, S.Y., were terminated on October 29, 2018. However, the Cabinet did make a case plan with Father to work toward reunification with A.Y. The plan included cooperating with the Cabinet, following all court orders, maintaining appropriate housing and employment, communicating with social workers, participating in supervised visits, submitting to random drug testing, and completing anger management, substance abuse, and parenting classes.
Father appealed that judgment, and this Court affirmed. See N.Y. v. Cabinet for Health and Family Services, No. 2018-CA-001733-ME, 2019 WL 3059897 (Ky. App. Jul. 12, 2019). --------
Even though it took a year to begin working on the case plan, Father made progress by completing the required classes. He did not begin drug screening until later, but when he did, his tests came back negative. After making substantial case plan progress, the Cabinet offered Father supervised visitation with A.Y. Apparently, a no-contact order had previously been entered due to a threat made in the older child's termination action. Once that order was lifted on November 12, 2019, the Cabinet emailed Father offering dates and times for supervised visitation with A.Y., but Father demanded unsupervised visits.
Trial was held on March 11, 2020. Father testified as a witness for himself, stating he came to this country as a refugee from Burundi. He testified about his job as a security officer, the adequacy of his home, and how he completed classes in compliance with his case plan. He admitted to not having custody of his three other children but testified that two of his children live with their mother and he sees them every other weekend. He explained that he did not want supervised visits with A.Y. because he knew how to parent his child. When asked if the Cabinet told him it would proceed with termination if he did not do visits with A.Y., he said yes, but said he did not want supervised visits. As for why he did not provide any items for A.Y., Father testified that he paid child support, which he thought paid for such items.
On September 29, 2020, the family court entered findings of fact, conclusions of law, and judgment terminating Father's parental rights to A.Y. In its ruling, the family court found, by clear and convincing evidence, that:
• Father failed or refused or had been substantially incapable of providing essential parental care and protection for A.Y. for more than six months, and there was no reasonable expectation of improvement;
• While Father completed parenting classes, he refused to participate in supervised visitation to allow him to build a relationship with A.Y.;
• Father failed to illustrate his protective capacity of the child, as he was unable to articulate the needs of a child A.Y.'s age;
• For reasons other than poverty alone, Father failed to provide or was incapable of providing essential food, clothing, medical care, or education necessary for A.Y.;
• Father had abandoned A.Y. for more than ninety days because he had not seen her since she was born;The family court concluded that it was in A.Y.'s best interest for Father's parental rights to be involuntarily terminated.
• Father's parental rights to another child had been terminated, and the cause for such termination has not been corrected; and
• A.Y. would continue to be neglected if returned to Father.
STANDARD OF REVIEW
"Trial courts are afforded a great deal of discretion in determining whether termination of parental rights is warranted." M.P.R. v. Cabinet for Health and Family Services, 520 S.W.3d 409, 412 (Ky. App. 2017). Because of the deference afforded to trial courts, appellate courts should not "set aside the trial court's findings of fact unless they are clearly erroneous." Id.; see also Kentucky Rules of Civil Procedure (CR) 52.01. Therefore, "the appellate court must determine if the family court's conclusion was based upon clear and convincing evidence and, in so doing, must apply the clearly erroneous standard of appellate review." Commonwealth v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." M.P.R., 520 S.W.3d at 412 (citation omitted).
ANALYSIS
To involuntarily terminate parental rights, a three-pronged test must be met by clear and convincing evidence. First, the child must be deemed abused or neglected, as defined in Kentucky Revised Statutes (KRS) 600.020(1). See KRS 625.090(1)(a). Second, termination must be in the child's best interest, which the family court determines based on a series of factors outlined in KRS 625.090(3)(a)-(f). Third, the family court must find at least one ground of parental unfitness, as set forth in KRS 625.090(2)(a)-(k). Here, the family court held, by clear and convincing evidence, that A.Y. was neglected, termination of parental rights was in A.Y.'s best interest, and multiple grounds of KRS 625.090(2) existed.
The child's best interest under KRS 625.090(3)
In his appeal, Father first argues that termination of his parental rights was not in the best interest of A.Y. Father claims he is employed, has stable housing, is current on child support, and has completed all the tasks required by the Cabinet. As to the Cabinet's concern that Father did not agree to supervised visitation, Father argues that he previously participated in supervised visitation in another matter and it did not produce results. Further, Father states that he does not trust the Cabinet and believes he has proven himself capable as a parent.
In response, the Cabinet acknowledges that Father completed his classes, but he failed to complete the most important case plan task, which was supervised visitation. The Cabinet claims this task was necessary for it to assess Father, for Father to demonstrate his parenting skills, and to develop a relationship with A.Y. Moreover, the Cabinet argues that Father's distrust of the Cabinet is a result of his own actions. Father's parental rights to his older child, S.Y., were terminated because he refused to comply with his case plan. Instead of learning from that case and demonstrating the skills he learned in classes, Father once again failed to complete his case plan. Furthermore, the Cabinet notes that Father knew the potential consequences if he did not comply with supervised visitation yet did not change his conduct.
KRS 625.090(3) states that when considering what is in the best interest of the child, the family court should consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent . . . ;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;Moreover, to determine the best interests of the child, "the family court must ascertain whether reasonable efforts were made by the Cabinet to reunite the parents with the child." C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 162 (Ky. App. 2012). "Reasonable efforts are defined by KRS 620.020(11) as 'the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available . . . necessary to enable the child to safely live at home[.]'" Id.
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
In this case, the family court considered the relevant factors under KRS 625.090(3). The family court found that the Cabinet made reasonable efforts to reunite Father with A.Y. However, Father failed or refused to make sufficient effort or adjustment in his conduct to make it in A.Y.'s best interest to return her to Father within a reasonable time. Moreover, the court found that A.Y. had bonded to her foster family, was thriving, and was expected to continue to improve or benefit from a permanent adoptive placement. Therefore, we conclude that the family court did not err in deciding it was in the best interest of the child to terminate Father's parental rights.
The grounds for parental unfitness under KRS 625.090(2)
Second, Father argues that the Cabinet failed to satisfy at least one of the factors in KRS 625.090(2). Pursuant to KRS 625.090(2), before terminating parental rights, the family court must find by clear and convincing evidence at least one ground for parental unfitness. Here, the family court found four grounds under KRS 625.090(2)(a), (e), (g), and (h) existed:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . .
(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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected[.]
As stated, only one ground must exist to terminate parental rights. Father does not dispute ground (h) exists, as his parental rights to his older child, S.Y., were involuntarily terminated in October 2018. Thus, our analysis could end here. However, we will briefly address Father's arguments regarding grounds (a), (e), and (g).
Father argues that ground (a), abandonment, is not present in the case because he continued to seek reunification with A.Y., completed his assessments, and had negative drug screens. We disagree.
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." S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010) (citation omitted). The family court found that Father had not seen A.Y. since she was born. Also, he had not made efforts to maintain a relationship with A.Y. and, when offered supervised visitation, Father refused and demanded unsupervised visitation, as evidenced by an email exchange between Father and the Cabinet. Moreover, Father acknowledged that he knew the Cabinet would proceed with termination if he did not visit with A.Y., but still refused. Accordingly, the family court did not err in finding that A.Y. was abandoned.
Father also argues that grounds (e) and (g) were not met because there was a reasonable expectation of improvement in his conduct based on his employment, child support payments, and completion of classes. While Father made substantial progress on his case plan, the family court found that a key component of that case plan was to forge a relationship with A.Y. via supervised visitation, which Father refused. Thus, the family court did not err in holding that improvement was unlikely.
The family court's discretion under KRS 625.090(5)
Finally, Father argues that he proved, by a preponderance of the evidence, A.Y. will not continue to be neglected if returned, and the family court should have exercised its discretion, pursuant to KRS 625.090(5), to not terminate his parental rights. Even if the court had concerns about his immediate reunification with A.Y., Father argues the court should have dismissed the petition and allowed A.Y. to remain in the custody of the state so he could continue to improve himself.
This argument ignores A.Y.'s right to a safe and permanent home within a reasonable time. KRS 600.010(2)(b). The family court chose not to exercise its discretion because the evidence proved it was in the best interest of the child to terminate Father's parental rights instead of allowing him additional time. Because the family court has substantial discretion in determining the best interests of the child and the court's decision "was grounded in the evidence and was the result of an exercise of sound discretion," we will not disturb that decision. D.G.R. v. Commonwealth, 364 S.W.3d 106, 115 (Ky. 2012).
CONCLUSION
For the above reasons, we affirm the family court's order to terminate Father's parental rights of A.Y.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher D. Wilkie
Lexington, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky