Opinion
2021-CA-1296-ME
03-18-2022
C.W. APPELLANT v. CABINET FOR FAMILIES AND CHILDREN; J.L.S.; AND E.K.W., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Charles L. Douglas, Jr. BRIEF FOR APPELLEE J.L.S.: Erin N. Hall
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 21-AD-00016
BRIEF FOR APPELLANT:
Charles L. Douglas, Jr.
BRIEF FOR APPELLEE J.L.S.:
Erin N. Hall
BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
OPINION
MAZE, JUDGE
C.W. (Father) appeals from an order of the Greenup Family Court terminating his parental rights to E.K.W. (Child) and granting a petition for adoption filed on behalf of J.L.S., Child's maternal aunt (Aunt). On appeal, Father contends that the family court erred in its findings because it based its decisions solely on his incarceration status. Finding no reversible error in the findings and 1 conclusions of the family court, we affirm its judgment terminating parental rights and judgment for adoption in this case.
Child was born on April 23, 2018. He has lived with Aunt since the fentanyl overdose death of Child's mother on September 2, 2020. He was formally placed in her care on December 15, 2020, pursuant to an order entered in action No. 18-J-00118, based upon a finding of dependency, neglect, or abuse.
On April 23, 2021, Aunt filed her petition for adoption, seeking an order terminating Father's parental rights, arguing that the factors set forth in KRS199.502 have been met. Guardians ad litem were appointed for Child and for Father, based upon his incarceration status. On August 30, 2021, the family court conducted its final hearing on Aunt's petition.
Kentucky Revised Statutes.
She testified that, upon her sister's death, she immediately took Child into her care. She stated that Father has been incarcerated since September of 2020 and that he has not contacted her since that time. She also testified that her sister was not a drug user before meeting Father.
Father testified that he separated from Child's mother for a period of six months after Child's birth. He admitted that during this separation he did not see or care for Child. He also stated that he did have a history of domestic violence against Child's mother. He has never paid child support. He conceded 2 that he has never attended any hearings on cases initiated by the Cabinet regarding Child.
On September 7, 2021, the family court entered its findings of fact and judgment terminating parental rights as well as a judgment for adoption. The court specifically found that Child was abandoned for no less than ninety days as provided in KRS 199.502(1)(a); that Father has failed to provide "essential parental care and protection" for Child for no less than six months without "reasonable expectation of improvement" as provided in KRS 199.502(1)(e); and that Father has also failed to provide "essential food, clothing, shelter, medical care, or education" without "reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child" as provided in KRS 199.502(1)(g). The court then concluded that Father had neglected Child and that termination of his parental rights would be in the best interests of the child. A motion to alter, amend, or vacate the family court's orders was filed on behalf of Father and was overruled on September 29, 2021. Father then filed his notice of appeal on October 28, 2021.
As noted in R.M. v. R.B., 281 S.W.3d 293, 295 (Ky. App. 2009), "KRS 199.502 sets out various conditions for which an adoption may be permitted without the consent of a child's biological living parent, which effectively results in the termination of parental rights. These conditions are the same conditions set 3 forth in KRS 625.090(2) which require clear and convincing evidence to prove whether one of the conditions therein supports the termination of parental rights."
In M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998), the Court addressed our standard of review in termination of parental rights cases, stating that:
[t]he trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
"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." Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934).
Father has argued that the sole basis for the family court's finding of neglect was his incarceration. In J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985), the Court recognized that "[i]ncarceration alone can never be construed as abandonment as a matter of law." However, the Court further noted that "absence, voluntary or court-imposed, may be a factor to 4 consider in determining whether the children have been neglected[.]" Id. at 664. Indeed, the Court therein ultimately concluded that J.H.'s "violence" and "criminal lifestyle" resulted in his children being "substantially and continuously neglected." Id. J.H.'s parental rights were terminated.
Similarly, in Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995), the Court held that "[a]lthough incarceration for an isolated criminal offense may not constitute abandonment justifying termination of parental rights, incarceration is a factor to be considered . . . ." The Court then concluded that Rogeski's consistent failure to support the family was sufficient to support the trial court's findings that he abandoned, abused, or neglected his children, thus warranting a termination of his parental rights. More recently, in M.L.C. v. Cabinet for Health and Family Services, 411 S.W.3d 761, 763 (Ky. App. 2013), the Court took note of the fact that in spite of the fact that she "had spent her entire adult life in prison[, ]" the child's mother had taken advantage of a number of educational programs offered by the institution, such that she had been accepted by four colleges upon release with offers of financial aid.
In A.F. v. L.B., 572 S.W.3d 64, 74 (Ky. App. 2019), the Court found that the family court properly focused not on the parents' incarceration but on "Mother's and Father's conduct while not incarcerated." The family court considered the parents' continued drug use and the fact that neither of them had 5 seen the children for a period of fifteen months. The Court concluded that the family court's findings were not clearly erroneous and affirmed its order terminating the parents' rights and denying their motion to dismiss a petition for adoption of the children.
Most recently, in A.R.D. v. Cabinet for Health and Family Services, 606 S.W.3d 105, 110-11 (Ky. App. 2020), the Court once again recognized that "a parent's incarceration does not, by itself, always establish that parental rights should be terminated." However, it also noted that absence and the choice of a "criminal lifestyle" remain factors for consideration by the trial court. The Court concluded that the trial court's findings that "Father never asked how Child was doing in his contacts with Cabinet personnel"; that "Father was not cooperative in sharing information about what his charges were, who his probation officer was, or what county he was on probation from with Cabinet personnel"; and that "Father had not provided any documentation regarding any programs he has completed while incarcerated" were supported by substantial evidence sufficient to warrant termination of parental rights. Id. at 111.
In reaching its conclusions, the family court herein clearly relied upon the testimony of both Aunt and Father. Its finding of abandonment was supported by the testimony of Aunt that Father has neither seen or provided care to Child for approximately one year and has made no effort to do so. In support of its finding 6 regarding Father's failure to "provide essential parental care and protection," the family court referenced the testimony of Aunt that no such support has been provided since September of 2020. Indeed, Father admitted that he had not provided such care. Similarly, the testimony of both Aunt and Father was cited to support its finding regarding his failure to provide "essential food, clothing, shelter, medical care or education."
The family court did refer to Father's incarceration, indicating that he is presently in the custody of "Southwest Virginia Regional Jail Authority at the Duffield Facility located in Duffield, Virginia." Father testified that he has been charged with felony drug possession and illegal possession of firearms. He also indicated that there are additional charges pending in Boyd County, Kentucky. The court stated in its findings that Father did not know how long he would be incarcerated. However, there is no indication that Father's incarceration played any role in the family court's conclusions. Based upon his history of drug abuse and his adoption of a "criminal lifestyle," as well as a lack of any attempt to take advantage of educational opportunities while incarcerated, it is clear that the family court's findings were grounded in "clear and convincing evidence."
Accordingly, we affirm the judgment of the Greenup Family Court terminating the parental rights of Father and granting Aunt's petition for adoption.
ALL CONCUR. 7