Opinion
NO. 2016-CA-000420-ME
01-20-2017
N.A.M. APPELLANT v. CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; M.A.M.; AND M.F.M. APPELLEES
BRIEF FOR APPELLANT, N.A.M.: Leonard W. Taylor Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH & FAMILY SERVICES: Erika Saylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 15-AD-500189 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: N.A.M. (the Father) has appealed from an order of the Jefferson Circuit Court terminating parental rights to his daughter, M.F.M. (the Child). We find neither error nor abuse of discretion, and we affirm.
The Child was born on May 3, 2013; she is the daughter of N.A.M. and M.A.M. (the Mother). The Child originally was removed from her parents' custody and placed with relatives on June 17, 2013, because she tested positive for opioids in her system at birth; additional allegations of abuse and neglect at that time were the Mother's continued substance abuse and the Father's criminal lifestyle. Both the Mother and the Father stipulated to the Cabinet's allegations of neglect in that action. The Mother acknowledged that her continuing drug use put the child at risk; the Father stipulated that his neglect was based on inappropriate living arrangements owing to his criminal behavior.
The Child was returned to the parental home on January 29, 2014. The case remained active until the following June; during that time the Father and the Mother completed in-home services provided by the Cabinet, and the Cabinet closed the case in June 2014, satisfied that both parents would continue their care of the Child.
Within two weeks the Cabinet was again required to intervene, this time for domestic violence occurring in the presence of the Child. The Mother was given temporary custody of the Child, and the Father was ordered to have no contact with the family and to complete a Batterers' Intervention Program (B.I.P.). Later that year an Emergency Custody Order (ECO) was issued; the Cabinet was granted custody of the Child, and she resides with that foster family to this date. The Father has been incarcerated since December 2014. He was scheduled to serve out his time by October 2016 but then was required to face unresolved criminal felony charges in Indiana upon completion of his service in Kentucky.
The Cabinet initiated a Termination of Parental Rights (TPR) petition in May 2015. The allegations versus the Child's parents were: The Mother had abandoned the Child for a period of not less than ninety (90) days; both parents had failed or refused or been incapable of providing care and protection for the Child, with no reasonable expectation for improvement in parental care and protection; and both parents, for reasons other than poverty alone, have failed to provide essential food, clothing, shelter, medical care, or education for the Child, with no reasonable expectation of significant improvement in the immediately foreseeable future, considering the age of the child.
The TPR hearing was originally scheduled to be heard on December 3, 2015. It was postponed at the request of the Father and was rescheduled for February 1, 2016. On that date, immediately preceding the hearing in the Father's case, the Mother voluntarily terminated her rights to the Child, stating on the record that she believed it was in the best interest of the Child for her to be adopted by the family with whom she has been residing since removal from the parents' custody. At the request of the Cabinet, the Jefferson Circuit Court withheld entry in the Mother's case pending the hearing and outcome in the Father's termination of parental rights hearing.
The Father, who was incarcerated in the Breckenridge County Jail, participated in the hearing via teleconference. He was represented by counsel throughout these proceedings. The Mother did not testify, but her attorney participated as did the Child's guardian ad litem (G.A.L.).
The Cabinet's sole witness was Velva Poole, supervisor for child protective services with the Cabinet. Ms. Poole testified that she had been involved with this family since the Child's birth. According to Ms. Poole's testimony (and supporting documents) the Father had failed to complete court-ordered programs (specifically, he was discharged as non-compliant for multiple unexcused absences); he had six criminal convictions (four of which were drug-or alcohol-related crimes, and the other two involved domestic violence); he had violated the DVO by continuing to live with the Mother; and he had no stable housing and no steady employment. According to Poole, in order for the Father to be considered a suitable placement for the Child, he would need to be released from incarceration, become integrated into society, demonstrate a clean and sober lifestyle for a minimum of six months, and have supervised visitation with the Child. Meanwhile the Child would have to remain in the Cabinet's custody, where she had been for over half of her young life.
Poole further testified that the Child was thriving with her foster family with whom she was very "bonded and attached." There were no suitable blood relatives willing to accept or with whom the Cabinet could place the Child.
The Father testified that he had completed programs while in custody; that he had the promise of steady employment once he was released from jail; that his failure to comply with the court-ordered programs was because he was working or incarcerated at the time; that he was the one who made the Mother report her opioid use during pregnancy; and that he had the commitment of family members to provide housing until he was able to live on his own.
At the conclusion of the hearing the trial court found that it was in the best interest of the Child to terminate the Father's parental rights. The trial court noted the duration of the Child's custody with the Cabinet, the Father's numerous incarcerations (which were the result of his own poor choices, all within his control), and the speculative nature of his future plans for reunification with the Child. The order terminating the Father's parental rights was entered in Jefferson Circuit Court March 2, 2016. This expedited appeal now follows.
The Father argues that the findings upon which the trial court based its decision to terminate his parental rights were clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01. The Father concedes that the Child has been previously adjudicated as abused or neglected as required under Kentucky Revised Statutes (KRS) 625.090(1). But he disagrees that termination is in the Child's best interest (KRS 625.090(1)(b)) and argues that the circuit court's findings do not support the remaining statutory requirements set forth in KRS 625.090(2). He also asserts that he was denied due process of law.
The Cabinet based its petition for TPR on KRS 625.090(2)(a), (e), and (g) (with KRS 625.090(2)(a) applied versus the Mother only). The parts of that statute which pertain to the Father's TPR read:
(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:
. . .
(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.
We disagree with the Father's arguments. The trial court need only find that one of the Cabinet's alleged grounds be supported by clear and convincing evidence. KRS 625.090(2). The Cabinet's evidence at the TPR hearing was unrefuted. The Father's testimony did little more than promise to do better in the future. It was within the trial court's discretion to determine the witnesses' credibility and weigh the options available for the best interest of the Child. See M.P.S. v. Cabinet for Health and Family Services, 979 S.W.2d 114, 116 (Ky. App. 1990).
Therefore there was substantial compliance with the "clear and convincing" evidence standard enunciated in Santosky v.Kramer, 455 U.S. 745, 769 (1982); accord J.E.H. v. Department for Human Resources, 642 S.W.2d 600, 603 (Ky. App. 1982).
We have examined the record in its entirety, including the videotaped proceedings and the Court's notes pertaining to same. We can discern no error in the circuit court's findings, conclusions, or order terminating parental rights of the Father.
The order of the Jefferson Circuit Court terminating the Father's parental rights is affirmed.
THOMPSON, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT,
N.A.M.: Leonard W. Taylor
Louisville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH & FAMILY
SERVICES: Erika Saylor
Louisville, Kentucky