Opinion
NO. 2015-CA-001090-ME
12-22-2016
H.L.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND D.J.A. APPELLEES
BRIEF FOR APPELLANT: Gwendolyn M. Young Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Mary Stewart Tansey Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA J. JOHNSON, JUDGE
ACTION NO. 14-AD-500401 OPINION
AFFIRMING
** ** ** ** **
BEFORE: D. LAMBERT, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: H.L.S. (hereinafter referred to as "Father") appeals from an order of the Jefferson Circuit Court which terminated his parental rights to D.J.A. (hereinafter referred to as "Child"). We find no error and affirm.
Child was born on May 20, 2013, and was removed from his mother on June 4, 2013, by the Cabinet for Health and Family Services. A temporary removal hearing was also held on June 4. At this time Child was placed in the temporary custody of Child's maternal aunt. Father was present at the hearing and stated he was the father of Child. Because Father and the mother were not married, the court ordered Father to cooperate with the Jefferson County Attorney in order to establish paternity. Paternity was eventually established in October of the same year. A dependency, abuse, and neglect ("DNA") trial was held on November 5, 2013. Father was ordered to have a psychological examination, random drug screens, pay child support, cooperate with the Cabinet, and have supervised visitation with Child.
On February 18, 2014, the maternal aunt relinquished custody of Child due to her opinion she could not be a permanent custodian for Child; therefore, the court gave temporary custody to the Cabinet. On the same date, Father was ordered to continue to follow the previous orders of the court and also have a substance abuse evaluation and maintain weekly contact with the Cabinet.
The Cabinet filed a petition to terminate the parental rights of Father on September 22, 2014. A trial on the petition was held April 14, 2015. The trial court ultimately terminated Father's parental rights to Child. This appeal followed.
KRS 625.090 states in relevant part:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit
Court finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(b) Termination would be in the best interest of the child.
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall 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 as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;To summarize, in order for a court to involuntarily terminate a person's parental rights, it must find that the child has been abused or neglected, it would be in the best interest of the child for parental rights to be terminated, and the court must find one or more of the grounds listed in KRS 625.090(2).
(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;
(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.
The standard of proof before the trial court necessary for the termination of parental rights is clear
and convincing evidence. "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."V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (citations omitted).
This [C]ourt's appellate function is confined to the "clearly erroneous" review of the trial court's findings of fact based upon clear and convincing evidence, pursuant to CR 52.01. In addition . . . findings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them.
In the case at hand, Father does not contest that Child had been deemed abused or neglected; therefore, we will only focus on the best interest of the child and the factors listed in KRS 625.090(2). As it pertains to the best interest of the child, the trial court found that Father failed to provide care, protection, supervision, food, clothing or shelter for the child in that Father paid no child support and at the time of the termination trial, had not seen Child in over a year. KRS 625.090(3)(b). The court also found that the Cabinet made reasonable efforts to reunify Father with Child, but that Father did not complete the psychological assessment, maintain contact with the Cabinet, or exercise visitation with Child. KRS 625.090(3)(c). The court also found that Father had made some efforts and adjustments to make it possible for Child to be returned to him, but those efforts were lacking. The court found that Father had completed some drug testing and a partial parenting course, but that he was unemployed even though he was able to work, did not fully comply with the Cabinet's recommendations, and lives in an apartment with his other child and his paramour, who solely pays the rent. KRS 625.090(3)(d). The court found that Child's physical, emotional, and mental health were all being met by Child's foster parents and the foster parents wish to adopt Child. KRS 625.090(3)(e). Finally, the court found that Father paid no child support even though he was ordered to do so. KRS 625.090(3)(f).
We must note that the trial court also found that Father had not completed the substance abuse evaluation. This finding was erroneous and corrected when Father filed a motion to vacate. The trial court denied the motion to vacate, found that Father had completed the evaluation, but held that this would not alter the outcome.
The trial court also held that two of the KRS 625.090(2) factors were present. Those factors were KRS 625.090(2)(e) and (g). The court supported its holding by finding: that Father was unemployed and had been since Child was born even though he is capable of work; that Father did not own his own home or contribute to the rent; that Father had not visited Child in over a year; and that Father had not been paying child support even though he stated he was capable of providing for Child.
We believe the trial court did not err in terminating Father's parental rights. During the termination hearing, the Cabinet social worker, Father, and Child's foster mother all testified. The trial court's findings were all supported by the testimony of these three witnesses and the other evidence found in the record. The court's findings were not clearly erroneous as they were supported by substantial evidence.
Based on the foregoing, we affirm the judgment of the trial court.
THOMPSON, JUDGE, CONCURS.
D. LAMBERT, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
D. LAMBERT, JUDGE, DISSENTING: My colleagues in the majority affirm the order terminating the parental rights of the Father, agreeing with trial court that the Cabinet for Health and Family Services satisfied its burden of proving that the statutory requisites for termination had been fulfilled. I disagree that the evidence adequately proves satisfaction of the elements of KRS 625.090, and I, therefore, must respectfully dissent.
The Supreme Court of the United States has repeatedly held that the right to direct the upbringing of one's own children is a fundamental right. See Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'" (internal citations omitted).); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."); Quillion v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ("natural parents" possess a "fundamental liberty interest in the care, custody, and management of their child."); Washington v Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ("In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by the Due Process Clause includes the righ[t] ... to direct the education and upbringing of one's children."); Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("[I]t cannot now be doubted that the Due Process Clause of the Fourteen Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."). The Court in Stanley even opined that the right of parents to raise their own children is an "essential" right, among the "basic civil rights of man," and "far more precious ... than property rights." Stanley at 651.
Kentucky appellate courts have also held the rights of parents worthy of the highest of protections afforded in the law. "Parental rights are so fundamentally esteemed under our system that they are accorded Due Process protection under the Fourteenth Amendment of the United States Constitution." Cabinet for Health and Family Serv. v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006). When dealing with termination of parental rights, the specific issue presented here, we have held that "[t]ermination can be analogized as capital punishment of the family unit because it is 'so severe and irreversible.'" and trial courts should exercise the "utmost caution" when determining whether to involuntarily terminate so fundamental a right. R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (quoting Santosky v. Kramer, 455 U.S. 745, 759 (1982), and M.E.C. v. Commonwealth, Cabinet for Health and Family Serv., 254 S.W.3d 846, 850 (Ky. App. 2008)).
The trial court's findings downplay the fact that the Father had filed two pro se motions seeking custody of the child after the child was removed from the Mother's custody. One such motion, filed on October 18, 2013, was heard at the same November 5, 2013, hearing at which the Cabinet's dependency neglect and abuse petition was adjudicated. The second motion the Father filed for custody of his own child was filed on December 6, 2013, and then never ruled upon until the Mother's aunt sought to relinquish custody of the child. The Father testified that he had made attempts to exercise his right to visitation but had been thwarted by the Mother's aunt during her tenure as the child's temporary custodian. While the record reflects that the Father never sought visitation after the child was placed with a foster family—friends of the Mother's family—the Father testified that his efforts at visitation would have been likewise frustrated. Nonetheless, the trial court concluded that the Father had abandoned the child.
The Father's attempts to comply with the trial court's orders regarding a substance abuse assessment, psychological evaluation, and random drug screens, were thwarted by the Cabinet's own inaction. For example, the Cabinet presented evidence at the hearing that the Father had not completed his substance abuse assessment, without verifying that he, in fact, had completed the assessment.
The trial court's conclusion that "[b]oth [Mother and Father] are able to pay for the physical care and maintenance of [the child] and simply did not" is blatantly against the evidence. The Father testified that he had no regular income, relying on erratic income from performing odd jobs and food stamp benefits, coupled with the charity of family members, to make ends meet. From the record, it appears that poverty alone caused the Father's failure to pay to support his child, and the trial court's conclusion to the contrary was clearly erroneous.
The trial court acknowledged the Father's efforts to adjust his life to accommodate the child. The Father had begun taking parenting classes of his own volition in order to provide a better home for the child. Paradoxically, the trial court—in the same paragraph containing the acknowledgment of his efforts—concluded that "[the Father] has not changed his circumstances and conditions" and found that termination was in the child's best interests.
I disagree with both the trial court and the majority conclusions that it was proven adequately that the best interest of the child would be served by termination, and that the Father's situation is unlikely to improve to the point at which reunification is possible. I would reverse the trial court, and, thus, I must respectfully dissent. BRIEF FOR APPELLANT: Gwendolyn M. Young
Louisville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Mary Stewart Tansey
Louisville, Kentucky