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J.R.E., III APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; AND N.M.E., A MINOR CHILD APPELLEES
Appellant, J.R.E., III (Father), appeals the Jefferson Family Court's February 22, 2022 order terminating parental rights and order of judgment, wherein the family court terminated Father's parental rights to N.M.E. (Child). Finding no error, we affirm.
Mother gave birth to Child on February 17, 2020; Mother is not a party to this appeal. Child has an older sibling who the Cabinet for Health and Family Services (Cabinet) previously removed from Mother's custody due to the sibling witnessing domestic violence in the home, among other reasons.
The day after Child was born, the Cabinet filed a motion with the family court for emergency custody which was granted. After obtaining emergency custody of Child, the Cabinet filed a dependency, neglect, and abuse (DNA) petition as to both parents on February 20, 2020. The Cabinet alleged in its petition that Father had a history of domestic violence against Child's mother as well as a criminal history; the Cabinet noted that, at the time it filed its petition, Father was incarcerated for domestic violence against Mother.
Following a temporary removal hearing on February 21, 2020, the Cabinet obtained temporary custody of Child. Father was present at this hearing and, because there was a question regarding paternity, the family court ordered that Father establish paternity; Father could have no contact with Child until he established paternity. At a March 12, 2020 pretrial conference, the family court explained to Father what he would need to do to establish his paternity of Child and informed him that the Cabinet had custody of Child. The court subsequently directed Father to complete a parenting assessment and to follow any recommendations.
Father was released from jail in March of 2020 and almost immediately began committing crimes, specifically on March 12, April 3, April 30, June 11, July 30, and August 12, 2020. He pleaded guilty to these crimes and was convicted. These convictions included multiple offenses of domestic violence against Mother, including three convictions for assault in the fourth degree, one conviction for strangulation in the second degree, and two convictions for wanton endangerment in the first degree – in both instances of wanton endangerment, Father held a gun to Mother's head. His other offenses included burglary in the third degree, two counts of possession of a firearm by a convicted felon, three counts of terroristic threatening in the third degree, receiving stolen firearm, and theft by unlawful taking over 500 dollars.
Father returned to incarceration in August of 2020. He had not established custody at the time of his reincarceration. While incarcerated, Father took a paternity test that established his paternity of Child. Father stipulated to abuse or neglect on July 8, 2021, and Child was committed to the Cabinet that same day.
On February 7, 2022, the family court held a hearing concerning termination of both parents’ parental rights to Child, during which the Cabinet called Rebecca Harbin, the family's assigned caseworker, as a witness. Harbin testified that Father did not cooperate with the Cabinet, did not contact the Cabinet, and did not complete his assigned case plan. She discovered in May of 2021 that he had absconded from his parole during his release, and she later discovered Father had been reincarcerated. Harbin also testified that his history of domestic violence and his incarceration were obstacles to Father being reunified with Child. She noted Father had been incarcerated for most of Child's life. She also testified that Cabinet workers have regularly visited Child in the foster home, and that Child's physical, emotional, and mental needs are being met.
The Cabinet also called Child's foster mother as a witness. She testified that Father has not had contact with Child. Father contacted her multiple times between April 4 and April 8, 2020, but Father otherwise did not contact the foster mother or attempt to contact Child. The foster mother testified that she inquired of the Cabinet regarding arrangements for Child, while still a newborn, to visit Father in jail, but the Cabinet rejected the idea for safety reasons.
Father testified on his own behalf but called no other witnesses. He testified he had been incarcerated since August of 2020, and that he was incarcerated when Child was born in February of 2020. He testified that, though he was released in March of 2020 and that he obtained employment during his release, he admitted he did not attempt to establish paternity during that time and that he did not pay any child support. Though he was present at the February 21, 2020 temporary removal hearing and the March 12, 2020 pretrial conference, he testified he did not know that Child Protective Services was involved with Child.
The family court entered its order terminating parental rights and order of judgment, with accompanying findings of fact and conclusions of law, on February 22, 2022. Father now appeals.
The trial court has broad discretion in an involuntary termination of parental rights action. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). The standard of review in a termination case is confined to the clearly erroneous standard in CR 1 52.01, based upon clear and convincing evidence, and the findings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. Id. at 116; V.S. v. Commonwealth, Cabinet for Hum. Res., 706 S.W.2d 420, 423 (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, 70 S.W.2d 5, 9 (Ky. 1934).
A family court may only terminate parental rights if each requirement of KRS 2 625.090 has been met by clear and convincing evidence. First, the child must have “been adjudged to be an abused or neglected child” as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be “in the child's best interest.” KRS 625.090(1)(c). Third, the court must find at least one of the grounds of parental unfitness set forth in KRS 625.090(2). Because Father stipulated to abuse or neglect, we need only discuss the second and third elements of the analysis.
Best Interest of the Child
KRS 625.090(3) provides six factors that a family court must consider when determining whether termination of parental rights is in the best interest of a child. These factors are as follows: (a) mental illness that renders the parent “consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time”; (b) acts of abuse or neglect toward any child in the family; (c) if the child has been placed with the Cabinet, whether the Cabinet has made reasonable efforts to reunite the child with the parent; (d) the parent's efforts and adjustments made in his “circumstances, conduct, or conditions” that make it in the child's best interest to return to the parent; (e) the child's physical, emotional, and mental health, and the prospects for improvement of the child's welfare if parental rights are terminated; and (f) the parent's payment or failure to pay a reasonable portion of the child's substitute physical care and maintenance if financially able.
Father argues the Cabinet has an affirmative obligation under KRS 625.090(3)(c) to make reasonable efforts to reunify parent and child and asserts that the Cabinet made no attempt at all toward reunification. This statement is factually incorrect. The Cabinet did engage in reasonable efforts toward reunification. As both Father and the Cabinet note in their briefs, “reasonable efforts” is defined by statute as “the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home[.]” KRS 620.020(13). The Cabinet created a case plan and mailed it to Father, had contact with Father, and attempted to locate him after he became uncooperative. Harbin discovered that Father had absconded from parole and could not locate him. Harbin testified that Father has no access to reunification services now that he has been incarcerated. In our view, there is no error in the family court's conclusion that the Cabinet engaged in reasonable efforts toward reunification, considering the circumstances of this case and the difficulty Father created for the Cabinet.
Other evidence considered by the family court supports the remaining relevant KRS 625.090(3) factors. Child's sibling, by witnessing domestic violence and substance abuse at home, was subjected to abuse or neglect. Father's efforts and adjustments in his circumstances, conduct, or conditions were plainly inadequate; Father pleaded guilty to fourteen crimes, several of which involved domestic violence against Mother. Father committed these crimes during his short release from incarceration, did not cooperate with the Cabinet, failed to complete his case plan, and failed to comply with remedial orders of the family court. As Harbin testified, Child's needs have been met in foster care. Whether Father was financially able to support Child or not, the family court did not err when it determined removal was in Child's best interest upon application of the KRS 625.090(3) factors.
A family court may not terminate parental rights unless the court “also finds by clear and convincing evidence the existence of one (1) or more” of the grounds listed in KRS 625.090(2) indicating parental unfitness. First, the family court relied upon KRS 625.090(2)(a) which asks whether the parent has abandoned a child for a period of ninety days or greater. The family court noted that Father was incarcerated for most of the time following filing of the DNA petition; however, during his five-month period of release Father only attempted to contact Child through the foster parent over a four-day period from April 5 to April 8, 2020 and did nothing to establish paternity during that time. Thus, the family court properly relied upon proof that during the period which Father was released from confinement – a period greater than ninety days – Father had abandoned Child as abandonment is defined by KRS 625.090(2)(a).
Father nevertheless argues in his brief that his incarceration does not demonstrate abandonment of Child. Both parties cite to J.H. v. Cabinet for Human Resources, wherein this Court stated that “incarceration alone [is] not enough to terminate parental rights.” 704 S.W.2d 661, 663 (Ky. App. 1985). Rather, “[a]bandonment is a matter of intent which may be proved by external facts or circumstances; otherwise, servicemen, prisoners of war, ship captains or persons requiring prolonged hospitalization would be likely candidates to have their parental rights terminated.” Id. Abandonment is demonstrated in “ ‘neglect and refusal to perform natural and legal obligations to care and support, withholding of parental care, presence, opportunity to display voluntary affection and neglect to lend support and maintenance.’ ” Id. (quoting Hafley v. McCubbins, 590 S.W.2d 892, 894 (Ky. App. 1979)).
As evidence of record demonstrates, Father, by his behavior during his short release from incarceration, manifested an intent to abandon Child. While not incarcerated, Father favored a life of crime, including domestic violence against Child's Mother, over the better choice of fatherhood. He made no attempt even to establish paternity, and failed to support Child, financially or otherwise. We cannot say there is a lack of substantial evidence to support the finding of abandonment. The family court did not err in so finding pursuant to KRS 625.090(2)(a).
Though the application of one of the KRS 625.090 grounds is all that is necessary to demonstrate parental unfitness, the family court found two additional grounds: KRS 625.090(2)(e) and (g). Under KRS 625.090(2)(e), a parent is deemed unfit if he:
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[.]
KRS 625.090(2)(e). Under KRS 625.090(2)(g), a parent is unfit if he:
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 find no error in the family court's determination that Father is incapable of providing essential parental care and protection under KRS 625.090(2)(e) and that he demonstrates no reasonable expectation of improvement in that regard. We also find no error in the family court's determination that Father has failed or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for Child's well-being pursuant to KRS 625.090(2)(g) and that, again, he demonstrates no reasonable expectation of improvement regarding this deficiency. As the family court observed, Father never paid child support while released from jail nor did he otherwise assist in Child's care; thus, he did not provide essential parental care under KRS 625.090(2)(e), nor did he provide the supplies and services contemplated by KRS 625.090(2)(g). He never attempted to establish paternity, though he received instructions as to how to do that. He attempted to contact Child over just a few days of his months-long release. It is also quite apparent that there is no reasonable expectation of improvement in either his willingness or ability to provide care to Child, based both on his criminal lifestyle during his release from confinement and his repeated episodes of domestic violence against Mother.
Because clear and convincing evidence of record supports the family court's conclusion that Father is unfit to parent Child, the family court did not err in terminating Father's parental rights.
Based on the foregoing, we affirm the Jefferson Family Court's February 22, 2022 order terminating parental rights and order of judgment.
1. Kentucky Rules of Civil Procedure.
2. Kentucky Revised Statutes.
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Docket No: NO. 2022-CA-0429-ME
Decided: April 28, 2023
Court: Court of Appeals of Kentucky.
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