D.W.B., JR. v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, A CHILD
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RENDERED: July 28, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002162-ME
D.W.B., JR.
v.
APPELLANT
APPEAL FROM WARREN FAMILY COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 05-AD-00050
COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILY SERVICES,
AS NEXT FRIEND OF K.J.R.,
A CHILD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI, JUDGE; BUCKINGHAM,1 SENIOR JUDGE; MILLER,2
SPECIAL JUDGE.
BUCKINGHAM, SENIOR JUDGE:
D.W.B., Jr., appeals from an order of
the Warren Family Court terminating his parental rights to his
child, K.J.R.
We affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
On May 10, 2004, E.A.R. gave birth to a male child,
K.J.R.
The birth certificate makes no reference to the child’s
father.
Due to continuing drug problems, E.A.R. entered a drug
rehabilitation program in early October 2004.
E.A.R. left
K.J.R. in the care of a friend.
While in the care of E.A.R.’s friend, K.J.R. was taken
to the hospital on October 16, 2004.
child had ingested cocaine.
It was determined that the
As a result, the Cabinet for Health
and Family Services was contacted.
Two days later, K.J.R. was
placed in the Cabinet’s custody.
After the Cabinet learned that D.W.B. was alleged to
be the child’s father, a Cabinet social worker assigned to the
case set up a case plan involving D.W.B.
While the plan set out
goals and objectives for D.W.B., the Cabinet was unable to
locate him to inform him of the plan.
Meanwhile, another branch
of the Cabinet had been able to locate D.W.B., who was in
prison, and it had initiated a paternity action against him on
October 13, 2004.
The court appointed a guardian ad litem for
D.W.B. in that case, and the guardian ad litem was able to
maintain contact with D.W.B. throughout D.W.B.’s various
transfers in the prison system.
Based on E.A.R. admitting that she had left the child
in the care of an inappropriate provider, on November 30, 2004,
the court entered a finding of neglect.
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Because E.A.R. was in
jail at the time, the court found that K.J.R. should remain in
the Cabinet’s custody.
As the dependency, neglect, and abuse case was
proceeding, D.W.B. continued to deal with the paternity action.
A paternity test was ordered by the court on January 12, 2005.
The court did not receive results of the paternity test until
June 6, 2005.
During the period from October 2004 when the
action was filed until June 2005 when the paternity test results
were received, D.W.B. remained in prison and made no attempt to
become involved in the child’s life.
During the period E.A.R. continued to struggle with
her addictions, the Cabinet social worker assigned to K.J.R.’s
case managed to discover more specific identifying information
on D.W.B.
Because E.A.R. continued to have substance abuse
problems, the Cabinet elected to change its permanency plan for
K.J.R. from reunification to involuntary termination of parental
rights and adoption.
This decision was made on April 4, 2005,
more than two months before the paternity test results would be
available.
The petition for termination of the parental rights
of E.A.R. and D.W.B. was filed by the Cabinet on May 13, 2005.
On June 19, 2005, the family court entered a summary
judgment in the paternity case, determining that D.W.B. was the
father of K.J.R.
The judgment specifically stated that
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visitation was “reserved until such time as the respondent is
released from custody.”
A hearing was held in the termination of rights case
on August 31, 2005.
D.W.B. participated in the hearing and
presented evidence through his own testimony, as well as
testimony from his sister.
E.A.R. elected to proceed without
presenting any additional evidence on her behalf.
Further,
witnesses testified on behalf of the Cabinet.
The court found that D.W.B. had failed to provide
K.J.R. with essential parental care and protection for more than
six months.
The court also found that D.W.B., for reasons other
than poverty alone, had failed to provide or was incapable of
providing essential food, clothing, shelter, medical care, or
education.
Following the entry of findings of fact and
conclusions of law and the entry of an order terminating his
parental rights on September 9, 2005, D.W.B. filed this appeal.
As noted by this court in O.S. v. C.F., 655 S.W.2d 32
(Ky.App. 1983), the parent’s interest in a termination of rights
proceeding has a constitutional dimension to it.
Citing to
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982), the court stated:
Parental rights are so fundamentally
esteemed under our system that they are
accorded due process protection under the
14th Amendment to the United States
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Constitution, when sought to be severed at
the instance of the state.
O.S. v. C.F. at 32.
In a subsequent case, L.B.A. v. H.A., 731
S.W.2d 834 (Ky.App. 1987), this court again emphasized the
constitutional dimension to parental rights when, quoting
Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31
L.Ed.2d 551 (1972), it stated:
The Court has frequently emphasized the
importance of the family. The rights to
conceive and to raise one's children have
been deemed "essential," ... "basic civil
rights of man," ... and "[r]ights far more
precious ... than property rights."
The
integrity of the family unit has found
protection in the Due Process Clause of the
Fourteenth Amendment, ... and the Ninth
Amendment. (Citations omitted.)
Id. at 835.
Given this constitutional dimension, the burden of
proof placed on the Cabinet is one of clear and convincing
evidence.
See O.S. v. C.F., 655 S.W.2d at 32; KRS3 625.090(1).
This case was tried before the court without a jury.
As such, the trial court heard the evidence and entered its
findings of fact and conclusions of law.
On appellate review,
such “[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.”
52.01.
CR4
In addition, in reviewing findings of fact by the trial
3
Kentucky Revised Statutes.
4
Kentucky Rules of Civil Procedure.
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court, “the test is not whether we would have decided it
differently, but whether the findings of the trial judge were
clearly erroneous or that [s]he abused [her] discretion.”
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
The grounds for the involuntary termination of
parental rights are set out in KRS 625.090.
As noted by this
court in Cabinet for Families and Children v. G.C.W., 139 S.W.3d
172 (Ky.App. 2004),
Before a circuit court may terminate such
rights, it must find--by clear and
convincing evidence--(1) that the child is
an "abused or neglected child, as defined by
KRS 600.020(1)" and (2) that termination
would be in the child's best interest. KRS
625.090(1). After that threshold is met,
the court must find the existence of one of
the numerous grounds recited in KRS
625.090(1) (including abandonment,
infliction of serious physical injury or
emotional harm, sexual abuse, or neglect in
providing access to basic survival needs) in
order to terminate parental rights.
Id. at 175-76.
KRS 625.090(1) sets forth two parts that must be
satisfied before termination can be considered:
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;
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2. The child is found to be an
abused or neglected child, as defined in KRS
600.020(1), by the Circuit Court in this
proceeding; or
3. The parent has been convicted
of a criminal charge relating to the
physical or sexual abuse or neglect of any
child and that physical or sexual abuse,
neglect, or emotional injury to the child
named in the present termination action is
likely to occur if the parental rights are
not terminated; and
(b) Termination would be in the best
interest of the child. (Emphasis added.)
See KRS 625.090 (1).
If the threshold requirements are met, the
court must then find by clear and convincing evidence that one
or more of the grounds listed in KRS 625.090(2) are present
before termination can be ordered.
The grounds found by the
court to be applicable to D.W.B. include:
(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
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immediately foreseeable future, considering
the age of the child;
See KRS 625.090 (2).
In regard to the first part of the necessary
requirements, the court concluded the threshold requirements had
been established.
First, the court found K.J.R. had been
adjudged by a court of competent jurisdiction in a prior
dependency, neglect, and abuse action to be neglected.
In
particular, the court recognized its own finding of neglect
entered November 30, 2004.
Second, the court found termination
would be in K.J.R.’s best interests.
Neither of these findings
has been challenged by D.W.B.
As to the second part of the requirements under KRS
625.090, the court concluded:
E.A.R. and D.W.B. Jr., for a period of not
less than six (6) months, have continuously
or repeatedly failed or refused to provide
or have been substantially incapable of
providing essential parental care and
protection for the child and there is no
reasonable expectation of improvement in
parental care and protection, considering
the age of the child.
E.A.R. and D.W.B. Jr., for reasons other
than poverty alone, have continuously or
repeatedly failed to provide or are
incapable of providing essential food,
clothing, shelter, medical care or education
reasonably necessary and available for the
child’s well-being and there is no
reasonable expectation of significant
improvement in the parents’ conduct in the
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immediately foreseeable future, considering
the age of the child.
As it relates to D.W.B., the court took particular notice of the
fact that he did not come forward and seek involvement with
K.J.R. after the paternity action was filed in October 2004.
Nor did he come forward to actively seek involvement in May 2005
when the termination action was filed.
Rather, he waited until
he received the results of the paternity test in June 2005.
As
to alternative placement with D.W.B.’s sister or mother, the
court noted that neither of the women came forward to actively
seek a role with the Cabinet.
Finally, the court noted that
while D.W.B. was eligible for parole in January 2006, there was
no guarantee parole would be granted.
D.W.B. argues the court terminated his rights based on
the actions of E.A.R.
Alternatively, he claims it was based
solely on the fact that he was incarcerated.
D.W.B. argues that
neither ground supports the findings under KRS 625.090(2).
D.W.B. insists that the court, in effect, “treated both of the
parents in this case as a package deal[.]”
D.W.B.’s argument ignores the actual findings of the
court in this case.
While it is true that this court in J.H. v.
Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky.App. 1986),
concluded that “incarceration alone can never be construed as a
abandonment as a matter of law[,]” the trial court here did not
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find D.W.B. should be terminated for abandonment.
Rather, the
court considered D.W.B.’s continuing absence as a factor when
making its actual findings.
The court in J.H. further stated
that “absence, voluntary or court-imposed, may be a factor to
consider in determining whether the [child has] been
neglected[.]”
Id.
This position was reiterated by the Kentucky Supreme
Court in Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660
(Ky. 1995).
In that case the court stated that incarceration
for an isolated criminal offense may not alone justify the
termination of parental rights, but it is a factor to be
considered.
Id. at 661.
See also M.P.S. v. Cabinet for Human
Resources, 979 S.W.2d 114 (Ky.App. 1998).
Under these
circumstances, we cannot say the court erred in considering
D.W.B.’s continuing incarceration as a factor in making its
decision.
Further, D.W.B.’s argument makes little effort to
address the other facts the court considered.
D.W.B. does point
out that the Cabinet filed the termination action prior to the
establishment of paternity.
D.W.B.’s sole explanation for
taking no action until he received the results of the paternity
test rests on his assertion that, given E.A.R.’s lifestyle and
substance abuse, he could not be sure he was, in fact, K.J.R.’s
father.
While these assertions have merit from D.W.B.’s point
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of view, they ignore the fact that K.J.R. remained fatherless
and left in the Cabinet’s care while D.W.B. waited on the
results of the paternity test.
A review of the record demonstrates that the Cabinet
moved for termination before D.W.B.’s parental rights had even
been established.
In addition, the Cabinet presented evidence
that it refused to allow E.A.R., K.J.R.’s mother, visitation
while she was in the Warren County Jail.
Given that it was the
Cabinet’s policy to deny visitation to parents who are
incarcerated when the child is of this age, there is no reason
to believe D.W.B., who had yet to establish paternal rights,
would have been allowed visitation while he remained in prison.
Further, we note that the Cabinet made no effort to
contact D.W.B. after it obtained his address in May 2005. Nor
did it bother to respond to his attempt to contact them by
letter in June 2005.
These facts all weigh against termination.
However, the standard is not whether we would decide the case
differently, but whether the court’s findings were clearly
erroneous.
See Cherry, supra; C.R. 52.01.
In this case, the
court’s findings are supported by evidence of record.
Thus,
those findings are not clearly erroneous, and we find no abuse
of discretion in this regard.
The judgment of the Warren Family Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
D.W.B., Jr., Pro Se
Fredonia, Kentucky
Mary Gaines Locke
Cabinet for Health and Family
Services
Munfordville, Kentucky
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