APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES COMMONWEALTH OF KENTUCKY AND AN INFANT APPELLEES

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Court of Appeals of Kentucky.

C.E.T. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY;  AND A.N.T., AN INFANT APPELLEES

NO. 2011–CA–001615–ME

Decided: May 04, 2012

BEFORE:  TAYLOR, CHIEF JUDGE, ACREE AND CAPERTON, JUDGES. BRIEFS FOR APPELLANT:  Annie O'Connell Louisville, Kentucky BRIEF FOR APPELLEE, THE CABINET FOR HEALTH AND FAMILY SERVICES:  G. Thomas Mercer Louisville, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

The Appellant, C.E.T., appeals the August 2, 2011, order of the Jefferson Circuit Court, terminating his parental rights (TPR) to the minor child A.N.T. On appeal, C.E.T. argues that the Cabinet for Health and Family Services failed to meet its burden of proving, by clear and convincing evidence, that involuntary termination was warranted.   Having reviewed the record, the arguments of the parties and the applicable law, we affirm.

On December 24, 2009, the minor child, A.N.T., was born to T.L.B. and C.E.T. Approximately three weeks later, in early January 2010, a worker from the Cabinet for Health and Family Services arrived at the home of T.L.B., where the couple was residing with A.N.T. Shortly thereafter, on January 14, 2010, the Cabinet filed a dependency, neglect, and abuse petition, offering a number of statements in support of A.N.T.'s removal from the home.   These statements included the fact that T.L.B. had previously had her other eight children removed from her custody and that T.L.B. had an I.Q. assessment of 57.   Additionally, the affidavit indicated that C.E.T., by his own admission, struggled with drinking issues.   The worker also expressed concern about both the mother and father meeting the daily needs of the child due to lack of stable housing and limited income and resources.   The petition also indicated the criminal history of C.E.T.

Thereafter, on January 19, 2010, following a temporary removal hearing, the family court entered an order requiring that A.N.T. be placed in the temporary custody of the Cabinet.   The court ordered the parents to attend a parenting assessment and to follow all recommendations.   Additionally, C.E.T. was ordered to have a substance abuse evaluation and follow all recommendations “once paternity is established.”   The court also ordered that T.L.B. and C.E.T. could have supervised visitation with A.N.T. C.E.T. was ordered to cooperate with the County Attorney's office to establish paternity and to cooperate with the Cabinet as well as all treatment and service providers.

The parties returned to court a number of times while awaiting DNA confirmation of C.E.T.'s paternity with respect to A.N.T. That paternity was confirmed in the record on June 22, 2010.   At that time, C.E.T. was ordered to submit to random drug screens and to pay child support in the amount of $56.77 per week.

Subsequently, on August 10, 2010, a trial was held on the dependency, neglect and abuse petition.   At that time, the court accepted a stipulation of abuse, neglect, and/or dependence from C.E.T., who, according to the record, “admits that due to his ongoing alcohol abuse, [A.N.T.] was placed at risk of neglect.”   The family court also determined that A.N.T. was an abused or neglected child within the meaning of Kentucky Revised Statutes (KRS) 600.020(1), and ordered that A.N.T. remain in the temporary custody of the Cabinet at that time.

At a disposition hearing on October 12, 2010, A.N.T. was committed to the custody of the Cabinet.   At that time, the court ordered C.E.T. to have a substance abuse evaluation, to follow all recommendations ensuing as a result thereof, and to submit to random drug screens.   The court held that C.E.T. could have supervised visitation as long as he remained compliant with court orders, remained clean and sober, paid child support, cooperated with the Cabinet and all treatment and service providers, and maintained stable housing and employment.

The Cabinet's assigned caseworker, Amanda Harris, testified that as of the date of the filing of the petition in the TPR action, the parents had not been fully compliant with, or had been dilatory in complying with, the Cabinet's court-approved case treatment plan and reunification services out of the dependency action. Double

Harris further testified that she had to make two referrals for C.E.T. to the Jefferson Alcohol and Drug Abuse Center (JADAC) program for assessment because he did not attend his first assessment date.   C.E.T. was subsequently recommended for intensive outpatient treatment (IOP) on January 17, 2011, which he had to restart on March 11, 2011, due to a positive drug screen.   Harris testified that eventually C.E.T. completed IOP with JADAC and was recommended for aftercare with four Alcoholics Anonymous meetings a week as well as weekly meetings with his sponsor.   Harris testified that, aside from a “no show” for a screening on June 1, 2011, C.E.T.'s drug screens had been negative since March 2, 2011.

Concerning C.E.T.'s provision for A.N.T., Harris testified that, aside from a few birthday or holiday gifts, C.E.T. had provided nothing for A.N.T. in the way of food, shelter, clothing, medical care, or education since A.N.T. had been in the Cabinet's custody, nor had he provided financial assistance in substitution of same.   Further, Harris testified that according to Cabinet records, C.E.T. was over three thousand dollars in arrears on his child support obligation for A.N.T.

Harris also testified that she had visited A.N.T. in her foster home Double at least monthly since the child had been placed in the Cabinet's care, and that she had observed A.N.T. to be doing very well and to be very bonded to the foster parents and other children in the home.   Harris stated that if, in the event parental rights were terminated, then the foster parents had indicated their willingness to adopt A.N.T.

When questioned as to whether, under the circumstances of the case, there were any other services to which she could refer C.E.T. or T.L.B. in order for them to be safely reunited with A.N.T., Harris testified that there were not.   With respect to C.E.T. particularly, Harris noted that he had not engaged with social services until the child was in foster care for a year because he lived in a one-room residence which was inappropriate for A.N.T. C.E.T. stated that he lived with the mother,Double whom Harris believes represents a risk to the child.   Further, Harris noted that C.E.T. could not verify employment or ability to support the child.   Additionally, Harris testified that the mother had her parental rights terminated to other children born prior to A.N.T, that she had named C.E.T. as the father to one of those children, and that the circumstances and conditions which existed at the time of that action still exist at present, including the same concerns about the mother's limited functioning, physical abuse, and home environmental factors. Double

On March 2, 2011, the Cabinet filed a petition for involuntary termination of parental rights against both parents of A.N.T., including C.E.T and the child's mother, T.L.B., who has not appealed.   Following a trial on July 13, 2011, the Jefferson Family Court entered findings and a judgment terminating the parental rights.   In issuing that order, the family court found that A.N.T. was an abused and neglected child as that term is defined in KRS 600.020.   Further, the

court found that termination was warranted pursuant to KRS 625.090(2)(e), Double (g), Double and (h). Double It is from that judgment that C.E.T. now appeals to this Court.

Prior to addressing the arguments of the parties on appeal, we note that considerable deference is given to the findings of the trial court in a termination of parental rights case, and the court has a great deal of discretion to determine whether a child fits within the abused or neglected category, and whether the abused or neglected condition warrants a termination of parental rights.  Department of Human Resources v. Moore, 552 S.W.2d 673 (Ky.App.1977).   Indeed, the findings of the trial court cannot be disturbed unless there is no substantial evidence to support them.  Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172 (Ky.App.2004).

As set forth in Kentucky's termination statute, KRS 625.090, a court may involuntarily terminate parental rights if the court finds by clear and convincing evidence that a three-prong test has been met.   First, the child must have been found to have been an abused or neglected child as defined by KRS 600.020,Double or the circuit court must find that the child's parent has been criminally convicted of abusing any child and that the abuse or neglect is likely to occur to the child that is the subject of the instant termination action if the parental rights are not terminated.  KRS 625.090(1)(a).   Secondly, the court must find that at least one of a number of specified grounds of parental unfitness exists.  KRS 625.090(2).   Finally, termination of parental rights must be in the child's best interest.  KRS 625.090(1)(b).  We also note that the trial court has a great deal of discretion in an involuntary termination of parental rights action.  M.P.S. v. Cab't for Human Resources, 979 S.W.2d 114, 116 (Ky.App.1998).   Thus, the findings of the court below will not be disturbed unless no substantial evidence in the record exists to support its findings.  Id. We review the arguments of the parties with these standards in mind.

On appeal, C.E.T. essentially makes two arguments.   First, that his stipulation in the dependency action was not truly an admission of child abuse or neglect as set forth in KRS 625.090(1)(a)(1), and secondly, that there was insufficient evidence presented at the trial to establish that C.E.T. had personally abused or neglected A.N.T. Accordingly, he argues that the trial court erred in terminating his rights.

As his first basis for appeal, C.E.T. argues that the Cabinet failed to meet its burden of proving that A.N.T. was an abused and neglected child as required by KRS 600.020(1).   While acknowledging that he entered into a “stipulation” concerning his ongoing alcohol abuse, C.E.T. argues that he did not actually admit abuse or neglect, merely “the risk” of neglect.   C.E.T. argues that the language of his stipulation did not fit within the statutory definition of an “abused or neglected” child and is, therefore, inadequate to serve as the basis for the Cabinet's burden of proof to terminate his rights in this instance.   In his reply brief to this Court, C.E.T. concedes that this issue was unpreserved below but asks this Court to review this alleged error for manifest injustice.

Essentially, C.E.T. asserts that he never admitted to being incapable of caring for A.N.T, and that nothing in the record established that he was incapacitated as a result of his alcohol abuse.   Further, he argues that during the course of the hearing, the Cabinet presented no evidence that A.N.T. suffered any direct emotional or physical injury from C.E.T. He also notes that he routinely kept his supervised visits with A.N.T. after she was taken into the Cabinet's custody.   Accordingly, C.E.T. argues that the Cabinet failed in its burden to prove by clear and convincing evidence that A.N.T. was an abused or neglected child.

Furthermore, C.E.T. argues that the Cabinet did not provide clear and convincing evidence of any of the additional grounds for termination cited in the court's order terminating his parental rights.   Specifically, he disagrees with the court's conclusion that there was no reasonable expectation of improvement in parental care and protection considering the age of the child.   C.E.T. argues that the evidence presented at trial establishes the opposite, and that he has demonstrated a clear improvement in parental care and protection. Double He also disagrees with the court's conclusion that, for reasons other than poverty alone, he 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.   Again, C.E.T. argues that he has demonstrated evidence of significant improvement, and that any shortcomings highlighted by the Cabinet, particularly his irregular employment and failure to make regular child support payments, are rooted in poverty.

Finally, C.E.T. disputes the court's conclusion that his parental rights had previously been terminated. Double C.E.T. asserts that in that particular case, T.L.B. named “Charlie T.” as the father of “D.B.,” but indicated in this case that C.E.T. was not that child's father.   Further, C.E.T. testified that he was not the father of D.B. and notes that records indicate that in the termination proceedings concerning D.B., the father was not actually present in court and was instead represented by a warning order attorney.   Thus, he argues that there is no clear and convincing evidence that C.E.T. was the father whose rights were terminated in that case.

Alternatively, C.E.T. argues that even if this Court were to agree that the Cabinet has supplied sufficient evidence to support a finding that he was the named father in the previous termination action, it must still prove that the conditions or factors which were the basis for the previous termination have not been corrected.   He notes that in the case of D.B., the father had little involvement in the child's life, whereas in the present case, C.E.T. asserts that he has been involved in A.N.T.'s life on some level since she was born, including scheduling parent visitation and attempting to comply with court orders concerning alcohol treatment, parenting, and improvement of living conditions.   For all of these reasons, C.E.T. argues that the court below erroneously terminated his parental rights.

In response to the arguments made by C.E.T., the Cabinet argues that the trial court's finding that the Cabinet proved by clear and convincing evidence that C.E.T.'s parental rights should be terminated was not clearly erroneous.   It asserts first that C.E.T. failed to preserve the alleged error regarding his stipulation concerning abuse and neglect.   Alternatively, it argues that the statute at issue does not require proof of a specific perpetrator in determining whether the child falls into the abused and neglected category and, moreover, that a “risk” of neglect or abuse is sufficient to meet the requisite burden of proof.   Further, the Cabinet argues that the decision of the court below was amply supported by clear and convincing evidence.   We address the arguments of the parties in turn.

We briefly address C.E.T.'s first argument, namely, that his stipulation was an insufficient basis upon which to classify A.N.T. as an abused and neglected child.   This alleged error was unpreserved;  C.E.T. requests a review for manifest injustice.   This Court is of the opinion that no error, let alone one which would cause manifest injustice, occurred sub judice.

While C.E.T. has argued against the termination of his parental rights on many grounds, he does not dispute that the proof submitted was sufficient to establish abuse and neglect of A.N.T., insofar as the child's mother, T.L.B., was concerned.  KRS 625.090(1)(a)(2) provides only that, “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 ․” A plain reading of KRS 625.090, or of KRS 600.020(1) to which it refers, does not require that any one particular parent be the perpetrator in order for this element to be satisfied.   Indeed, this initial element determines only whether or not the child before the court falls within the protected class of children that the legislature has determine are entitled to treatment and protection reasonably calculated to improve their condition. Double

It is only after this first element is established that the other two prongs of the statute come into play, both of which require an extensive evaluation of parental fitness concerning the individual parent at issue.   Below, the trial court found that no less than three of the enumerated statutory grounds of parental unfitness applied to C.E.T, as set forth in KRS 625.090(2)(e), (g), and (h).  C.E.T. argues, as his second basis for appeal, that there was insufficient evidence to support the court's findings in this regard.   Again, we disagree.

As we have stated hereinabove, the trial court has great discretion in an involuntary termination of parental rights action.  M.P.S. v. Cab't for Human Resources, 979 S.W.2d 114, 116 (Ky.App.1998).   And, as our courts have repeatedly held, clear and convincing proof does not necessarily mean uncontradicted proof.  Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (Ky.App.1934).   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.  Id. It is not the province of this court to review the factual evidence in a termination action de novo, and we decline to do so in this instance.   Below, the court had the discretion to consider various factors, including emotional problems, domestic violence, and lack of parenting skills, as well as the possibility of repetition of past neglect.   See G.G.L. v. Cab't for Human Resources, 686 S.W.2d 826, 828 (Ky.App.1985).   Ultimately, the evidence submitted below was of a nature sufficient enough to support the decision of the court.

Below, supporting evidence included social worker Harris's testimony that the child, A.N.T. had lingered in foster care for a year before C.E.T. began to engage his case treatment plan to work toward reunification.   Further, C.E.T. conceded that the residence where he and A.N.T.'s mother now live is inappropriate for the child, despite the fact that the task of obtaining and maintaining stable and appropriate housing was part of his court-approved case treatment plan.   Moreover, evidence indicated a failure to obtain and maintain steady employment as well as arrears on child support.   Finally, the evidence indicated that C.E.T. continues to reside with T.L.B., who had criminally abused another child in her care, that T.L.B. had her parental rights involuntarily terminated to three other children, and that all nine of her children had been removed due to parental unfitness.   As a result of all of these facts, the trial court was well within its discretion to reasonably conclude that A.N.T. was an abused or neglected child within the meaning of the statute.   Accordingly, we are compelled to affirm.

Wherefore, for the foregoing reasons, we hereby affirm the August 2, 2011, order of the Jefferson Circuit Court terminating the parental rights of C.E.T. to the minor child A.N.T., the Honorable Joan L. Byer presiding.

ALL CONCUR.

CAPERTON, JUDGE: