Opinion
NO. 2015-CA-000783-ME
01-29-2016
R.L.L. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; C.B.L. (A CHILD); AND C.R.L. APPELLEES
BRIEF FOR APPELLANT: Thomas L. Conn Lexington, Kentucky BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Kristin Wehking Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCINDA CRONIN MASTERTON, JUDGE
ACTION NO. 14-AD-00063 OPINION
AFFIRMING BEFORE: NICKELL, STUMBO, AND VANMETER, JUDGES. NICKELL, JUDGE: R.L.L., the biological father of a boy, C.B.L., born on July 13, 2009, appeals from a final judgment entered by the Fayette Circuit Court, Family Court Division, on April 24, 2015, involuntarily terminating his parental rights (TPR) to his son. Rights of the mother, C.R.L., were also terminated, but she has not filed an appeal. Upon review of the record, the briefs and the law, we affirm.
Pursuant to Court policy, the boy at the heart of this appeal will be referred to by his initials, "C.B.L.," only. Similarly, the parents will be referred to by their initials only to further protect the child's identity.
FACTS
In March 2014, the Cabinet for Health and Family Services (CHFS) petitioned the Fayette Circuit Court for TPR of C.B.L.'s mother and father. R.L.L. maintained the petition stemmed from a report the child was outside unsupervised while R.L.L. was at work.
Trial was held on November 19, 2014. Vanessa Dennis, a Social Services Clinician II with CHFS, was the first witness. She had been the family's caseworker when the petition was filed; Joy Burton was the family's caseworker at the time of trial. The child's mother did not contest the action and did not appear at trial. R.L.L. contested the petition, but was unable to personally appear because he could not arrange for transportation from his home in Portsmouth, Ohio, to Lexington, Kentucky. R.L.L. was represented by counsel at trial; R.L.L. testified later that day via telephone.
According to Dennis, C.B.L. was committed to CHFS by the Fayette Circuit Court. He was adjudicated a neglected and abused child as a result of substance abuse by the parents and environmental issues within the home. CHFS determined both parents had abandoned C.B.L., their last visit occurring with him on May 8, 2013.
With C.B.L. residing in foster care fifteen of the last twenty-two months, on March 11, 2014, CHFS petitioned for TPR and placement of the child for adoption. In support of the petition, Dennis testified: the parents for periods of not less than six months had failed to, refused to, or could not provide essential parental care and protection for C.B.L. and there was no reasonable expectation of improvement; the parents had, for reasons other than poverty, continuously failed to, or could not, provide essential food, clothing, shelter, medical care or education for the child and there was no reasonable expectation of improvement; the parents had abandoned the child for not less than ninety days; the parents had engaged in substance abuse rendering them incapable of caring for C.B.L.; and, CHFS had offered, or provided, services to the parents, but no documentation of compliance with the case plan was ever provided allowing C.B.L.'s safe return to the family home.
According to the petition, C.B.L. was placed in foster care on September 6, 2012.
Dennis testified the case plan for reunification called for both parents to develop parenting skills, undergo domestic violence assessments and address substance abuse issues. Other than inconsistent attempts at visitation, neither parent submitted documentation of having completed any of the recommendations. Additionally, neither parent paid child support and C.B.L. was "doing wonderful" in his adoptive placement in a foster home.
On cross-examination, Dennis stated R.L.L. had claimed he had completed some drug screens and intended to attend a substance abuse center, but again, offered no documentation of doing either. When asked about R.L.L.'s home, Dennis responded R.L.L. had claimed he was "camping down by the river." While looking through the record, the court noted it appeared R.L.L. had been compliant for awhile, but then his progress ceased and he moved to Ohio. Dennis confirmed R.L.L. had done nothing in the last year toward completing his case plan.
Hon. Rob Stith was appointed to represent C.B.L. as a guardian ad litem (GAL). Stith noted the child had bonded with, and become attached to, his foster family. Stith recommended TPR.
With trial proof complete for the day, the court offered to leave the record open to allow R.L.L. an opportunity to tell his side of the story. Defense counsel suggested the court attempt to reach R.L.L. via telephone which it did.
Under oath, R.L.L. portrayed himself as being caught between CHFS demands and treatment provider opinions. He stated a case worker named Heather Clifford had wanted him to attend in-house drug rehabilitation, but a drug treatment provider named Arnett said he did not need drug counseling, only a drug prevention plan. R.L.L. said he did not have funds to pay for rehabilitation and claimed he was still on a waiting list to enter the program. He said he was disabled due to liver disease, and missed no visitation with C.B.L. until his father died.
R.L.L. admitted telling Burton he had a terminal disease. He explained he believed he was dying until a doctor told him all he needed was medication and now has a life expectancy of perhaps thirty years. R.L.L. testified he had participated in parenting classes for about two months and had a certificate of completion which he said he had e-mailed to his attorney and thought someone else had provided it to the court.
R.L.L. denied having an extensive drug history. He said he had been convicted only once—for possession of marijuana and drug paraphernalia (rolling papers). He testified he had attended drug counseling at a center that closed due to a government investigation and he was unable to procure attendance records due to the center's legal problems. He indicated while attending counseling he was tested for drugs thrice weekly; a dirty drug test would have resulted in elimination from the program. He said he lives alone and has been at his current residence for about one year. He stated his wife—who has since left him—has a drug problem; he does not.
Under cross-examination by CHFS, R.L.L. admitted he had not completed in-house drug rehabilitation. He also admitted when C.B.L. was removed from his home, R.L.L. was routinely using marijuana laced with cocaine. He stated he could not be considered for low-income housing due to his drug conviction. He also stated two other sons were removed from his home because his wife had drug problems. He acknowledged using $3,000.00 in Social Security Disability back pay to buy a car, rather than begin drug rehabilitation.
When questioned by the GAL, R.L.L. did not recall testing positive for cocaine on September 14, 2013, and again on September 20, 2013. He did testify he took a daily dose of Suboxone for about two months.
C.B.L.'s foster mother was the last person to take the witness stand. She stated the boy had lived in her home since January 3, 2014. While C.B.L. had mentioned his stepsister, he had not mentioned his brothers and she did not believe he remembered them.
At the conclusion of trial, the court directed R.L.L. to meet with the foster parents during the coming month. On January 6, 2015, R.L.L. executed a consent to adoption. On January 28, 2015, the trial court entered an Order of TPR and Order of Judgment stating R.L.L. had "consented to voluntarily terminate his parental rights to the child." This was quickly followed by the filing of a motion to alter, amend or vacate on February 3, 2015, due to R.L.L. having "changed his mind" and no longer wanting to voluntarily consent to TPR.
On April 24, 2015, the trial court entered amended findings of fact and conclusions of law, as well as an amended order of TPR and order of judgment. R.L.L. now appeals the final judgment.
ANALYSIS
We review a TPR order for clear error under CR 52.01. We give great deference to the trial court's findings and will disturb them only if the record is devoid of substantial evidence to support them. K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006). We review the trial court's application of the law to the facts on a de novo basis. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010). R.L.L. complains TPR was not based on substantial evidence. We disagree.
Kentucky Rules of Civil Procedure.
As a predicate to ordering involuntary TPR, a trial court must find by clear and convincing evidence the child was previously adjudicated an abused or neglected child or make such a finding in the current proceeding. KRS 625.090(1)(a)(1) and (1)(a)(2). Here, there is no dispute C.B.L. was adjudicated an abused and neglected child by both parents.
Kentucky Revised Statutes. KRS 625.090(1)(a)(3) addresses a parent convicted of a criminal abuse charge when more abuse is likely, but such was not at issue in our facts. --------
Next, the trial court must find evidence of at least one ground listed in KRS 625.090(2). Dennis testified to at least four of them—abandonment for at least ninety days under KRS 625.090(2)(a); failure to provide parental care and protection for at least six months with no expectation of improvement under KRS 625.090(2)(e); failure to provide essential food, clothing, shelter, medical care, or education with no expectation of improvement under KRS 625.090(2)(g); and, the child had resided in foster care fifteen of the most recent twenty-two months under KRS 625.090(2)(j). Proof of only one ground was required; CHFS offered proof of four which R.L.L. did not address at trial and clearly did not refute. The trial court found all four grounds existed.
Consistent with KRS 625.090(3), the trial court heard testimony from CHFS about the case plan it developed to reunify the family—apart from inconsistent attempts by R.L.L. to visit with his son, there was no proof R.L.L. had made strides toward completing the plan or any part of it. He claimed he had attended parenting classes and drug counseling sessions, but offered proof of doing either. If anything, he deflected responsibility for his situation to others—his caseworker disagreed with the treatment provider; he did not have a drug problem—only his wife has a drug problem; he e-mailed the certificate of completion of parenting classes and figured someone else had supplied it to the court; he attended drug counseling but could not prove participation because the counseling center was closed due to its own legal troubles. R.L.L. even acknowledged an attempt to play the system by telling his mother (who has custody of his three other children) to say she could not take C.B.L. so the child would remain in Lexington and he could have visitation with him. As the trial court found, CHFS offered and/or provided reasonable services to R.L.L., but he put forth no effort to change his circumstances, conduct or conditions. As a result of the foregoing, the trial court concluded TPR was in the child's best interests and entered judgment in favor of CHFS.
R.L.L. relies on D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106 (Ky. 2012), to claim there was no substantial proof supporting TPR. D.G.R. was marked by a wide divergence in evidence introduced by CHFS and the parents. That cannot be said of the facts we review today. Here, we agree with the trial court's decision. As R.L.L. did during trial, his appellate brief places responsibility for recurring substance abuse issues on his wife—whom he claims has now left him. This attempt to deflect responsibility ignores R.L.L.'s conviction for possession of marijuana, his admission of repeatedly smoking marijuana laced with cocaine, and his positive tests for cocaine on both September 14 and September 20, 2013—after his son had been in foster care for one year. These facts do not evince progress toward reunification. The trial court's findings were supported by substantial evidence and will not be disturbed.
WHEREFORE, we affirm the judgment of the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas L. Conn
Lexington, Kentucky BRIEF FOR APPELLEE,
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Kristin Wehking
Lexington, Kentucky