Opinion
NO. 2016-CA-000639-ME
05-12-2017
S.J. APPELLANT v. J.E.H.; L.B.H. AND M.K.J. APPELLEES
BRIEF FOR APPELLANT: James C. Jones, II Bowling Green, Kentucky BRIEF FOR APPELLEE: Elizabeth W. Sigler Timothy E. Bridgeman Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN FAMILY COURT
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
ACTION NO. 14-AD-00087 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES. THOMPSON, JUDGE: S.J. (father) appeals from the Warren Family Court's order terminating his parental rights and granting adoption of his biological child without his consent. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky.App. 2012) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), father's counsel filed an Anders brief stating that no meritorious assignment of error exists. The brief was accompanied by a motion to withdraw which, by order of this Court, was passed to this merits panel. In that same order, father was permitted to proceed pro se and granted thirty days to file a supplemental brief. No pro se brief was filed. After careful review, we agree with counsel's assessment, grant counsel's motion to withdraw by separate order, and affirm the circuit court's order terminating father's parental rights.
Prior to child's birth on March 17, 2014, child's biological mother's children were removed from her care and her parental rights terminated as result of substance abuse problems. While mother was pregnant with child, father committed an act of domestic violence against mother resulting in his incarceration and his release six days prior to the birth of child.
Immediately after child's birth, the Cabinet for Health and Family Services (the Cabinet), became involved with child. Due to substance withdrawal, child remained in the hospital for several weeks. A juvenile case was opened in Jefferson County in April 2014 by the Cabinet. Prior to the temporary removal hearing, father was scheduled to receive a drug screen on March 20, 2014, but failed to appear. After a temporary removal hearing, child was placed in the custody of J.E.H., mother's brother, and his wife, L.B.H, who ultimately received permanent custody of child.
Shortly after the temporary removal hearing, father submitted to a drug test. A hair follicle test was positive for opiates, morphine, codeine and hydrocodone.
In October 2014, J.E.H and L.B.H. initiated proceedings to adopt child. At the time, father was incarcerated having been arrested in Indiana on May 6, 2014, for a probation violation. He remained incarcerated through August 31, 2015. A hearing was held, which mother did not attend.
Cabinet worker Brittany Slaughter testified that father was in jail when the case was assigned to her and she mailed a case plan to father in jail. The plan included parenting classes, substance abuse evaluation, drug screens, establishing paternity, and maintaining stable housing and employment. Slaughter testified the case was closed in August 2015 after J.E.H. and L.B.H. were awarded permanent custody. While the case was open, father did nothing to complete his case plan other than establish paternity and submit to one drug screen, which was positive.
Father testified that he was incarcerated from May 6, 2014, to August 31, 2015. During his incarceration, he sent several letters to the Cabinet requesting assistance in establishing paternity and eventually testing was done, which established him as child's biological father. After his release, he attempted to visit child at J.E.H.'s and L.B.H.'s home, but was refused.
Following his release from jail, father worked a few weeks at a temporary service. He has not worked steadily since 2013.
Sometime in December 2015, father and mother reunited and lived together along with mother's sister. In January 2016, father committed another act of domestic violence against mother and was later convicted of fourth-degree assault/domestic violence and incarcerated from January 1, 2016, through February 8, 2016.
Father testified he had not provided any food, clothing, medical care, protection or essential care for child since his birth. He also has not provided any money for the child's care. Father has not seen child since the temporary removal hearing.
Pursuant to Kentucky Revised Statutes (KRS) 199.502, an adoption may be granted without the consent of the biological living parents if any of the circumstances are found to exist. In this case, the family court found the circumstances in KRS 199.502 (a), (e), (g) which provide as follows:
Notwithstanding the provisions of KRS 199.500(1), an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as part of the adoption proceeding that any of the following conditions exist with respect to the child:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
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(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;
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(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[.]
Although this action is one brought pursuant to KRS 199.502, our review is the same as that for termination of parental rights cases brought pursuant to KRS 625.090. Our review is limited to whether the family court's findings were clearly erroneous and if those findings are supported by substantial evidence, they will not be disturbed. C.M.C. v. A.L.W., 180 S.W.3d 485, 493 (Ky.App. 2005). The limitations upon our review of factual findings in such matters was further explained in D.G.R. v. Com., Cabinet for Health & Family Servs., 364 S.W.3d 106, 114 (Ky. 2012) (internal brackets, quotations and citations omitted):
That one side presents more testimony than the other, or that one side's evidence seems superior to the other's, at least from the appellate perspective, has no bearing. In reviewing a trial court's findings, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. As the court sitting in the presence of witnesses, a trial court is in the best position to evaluate the testimony and other evidence. Indeed, judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Mere doubt as to the correctness of a finding will not justify its reversal, and appellate courts should not disturb trial court findings that are supported by substantial evidence.Thus, as to the family court's factual findings, we must simply decide whether there is substantial evidence to support the family court's decision.
Although abandonment is not defined in KRS 199.502(a), it has been defined by case law. "[A]bandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky.App. 1983). The evidence clearly supports the family court's finding that father abandoned child.
While incarceration for an isolated criminal offense alone is insufficient to constitute abandonment so that parental rights may be legally terminated, it is a factor to be considered. Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995). In this case, father was repeatedly incarcerated before child's birth and continued to commit crimes following child's birth.
Father revealed at the hearing he did not know child's daily activities and needs, father had not provided financial support for child, and had not seen him since April 10, 2014. During the brief period during child's life when he was not incarcerated, father did not take steps to complete his case plan, including submitting to required drug screens, attend parenting classes, or maintain stable housing and employment.
Although there is more than sufficient evidence to support the family court's finding that father abandoned child for a period of at least 90 days, there is also clear and convincing evidence that father failed to provide parental care and protection for child and has not provided any essential food, clothing, shelter, medical care, education or parental care for child for more than six months. The family court also correctly found that based on father's criminal history and lack of progress in completing his case plan or contact with child, there is no reasonable expectation of improvement in the foreseeable future.
Based on the foregoing, the judgment of the Warren Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James C. Jones, II
Bowling Green, Kentucky BRIEF FOR APPELLEE: Elizabeth W. Sigler
Timothy E. Bridgeman
Bowling Green, Kentucky