2024-CA-0075-ME
06-21-2024
D.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; S.W.; AND S.W., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Martin A. Haas, Jr BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp
COMBS, JUDGE:
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT HONORABLE THOMAS A. RAUF, JUDGE ACTION NO. 23-AD-00003
BRIEF FOR APPELLANT: Martin A. Haas, Jr
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES.
OPINION
COMBS, JUDGE:
Appellant, D.S., appeals from a Judgment of the Kenton Circuit Court terminating his parental rights. After our review, we affirm.
D.S. (Father) is the father of a female child who was born in 2019. The child's natural mother is S.W. On January 6, 2023, the Cabinet for Health and Family Services (Cabinet) filed a petition for the involuntary termination of parental rights. The action was tried on August 24 and October 6, 2023.
On December 14, 2023, the circuit court entered Findings of Fact and Conclusions of Law and Judgment Terminating Parental Rights. The court made the following findings of fact:
Based upon clear and convincing evidence presented at trial . . .
...
6. The child . . . has resided in foster care since 722-2021. [The child] was committed to the Cabinet . . . by order of the Kenton Family Court, on 9-28-21 Court Action No. 21-K-400 and has remained committed during the entirety of these proceedings.
...
12. [The Cabinet worker] provided that [Father] has been incarcerated throughout the case . . . [and] has a concerning criminal history, including charges that occurred while the children involved in this matter were present.
13. [Father] is currently serving time for Burglary 2nd Degree, Possession of Handgun by a Convicted Felon as well as Wanton Endangerment 1st Degree.
14. [The Cabinet worker] testified that she was able to speak with [Father] one time while incarcerated but thereafter the facility ceased offering zoom visits and provided difficult hours to complete a visit. [The Cabinet
Social Worker] testified that she directed [Father] to take advantage of services while incarcerated.
...
17. [The Cabinet worker] testified that neither parent has sent any type of food or clothing or participated in medical appointments.
...
19. [The Cabinet worker] testified that all the children are placed together and have made progress in their foster home . . . [and] that if termination is granted the foster placement is adoptive.
20. [Father] also testified. [Father] testified about the programs that he has taken advantage of while incarcerated and what he has learned from the programs and the changes he wishes to make upon release in his life. [Father] discussed issues in his own childhood and how he is utilizing skills to better deal with what he has been through.
21. [Father] agreed that he does have a concerning criminal history that involves domestic violence and violent crimes, including charges while these children were present. [Father] agreed that he consistently engaged in criminal behavior since this child was born. [Father] acknowledged that there was an EPO with respondent mother in this case while she was pregnant with [the child].
The other children have different fathers.
The circuit court concluded that the child is an abused or neglected child; that grounds for termination exist, including that the child has been in in foster care under the responsibility of the Cabinet for fifteen (15) of forty-eight (48) cumulative months preceding the filing of the petition; and that it is in the child's best interests that the parental rights of each parent be terminated.
Father has appealed. As our Supreme Court explained in R.M. v. Cabinet for Health and Family Services, 620 S.W.3d 32 (Ky. 2021):
The right of every parent to raise his or her own child is a fundamental right of utmost constitutional concern. While the Commonwealth of Kentucky may deprive a parent of this right when the circ*mstances require, KRS 625.090 ensures this right is protected by measures of due process. Namely, the statute establishes three substantive elements necessary for TPR, all of which the Commonwealth must prove by clear and convincing evidence, (a) starting with a finding of abuse or neglect by the parents, (b) then determining that TPR is in the child's best interest, and finally (c) that any one of the grounds for termination listed in KRS 625.090(2)(a)-[(k)] exists.Id. at 38 (footnotes omitted).
Kentucky Revised Statutes.
The standard of our review is described as follows:
The trial court has a great deal of discretion in an involuntary termination of parental rights action. The standard of review in a termination case is confined to the clearly erroneous standard in Kentucky Rules of Civil Procedure (CR) Rule 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. 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.C.A.W. v. Cabinet For Health &Family Services, Commonwealth, 391 S.W.3d 400, 403 (Ky. App. 2013) (internal quotation marks and citations omitted).
Father does not dispute the circuit court's finding that the child is an abused or neglected child. Nor does he dispute that grounds for termination exist. See Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000) ("Any part of a judgment appealed from that is not briefed is affirmed as being confessed.").
The sole issue which Father raises on appeal pertains to whether termination of parental rights is in the child's best interest. "In conducting a best interest analysis, a trial court must consider the six factors enumerated in KRS 625.090(3) (a)-(f)[,] but need not provide analysis of inapplicable factors for which there is no evidence presented." Cabinet for Health and Family Services v. D.W., 680 S.W.3d 856, 873-74 (Ky. 2023) (square brackets in original, internal quotation marks, and citation omitted).
Father argues that the trial court failed to recognize that he has made "sufficient and sustained progress resulting in his ability to be reunified with his child in the foreseeable future." (Bold-face, upper-case, and underline deleted.) Father submits that KRS 625.090(3)(d), (e), and (f) are the relevant best-interest factors in this case. Those KRS 625.090(3) factors are:
(d) The efforts and adjustments the parent has made in his circ*mstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.Father contends that "the court should consider" the efforts and adjustments he has made and the child's prospects upon termination. His argument on appeal is substantially a re-argument of his case.
The circuit court properly conducted a best-interest analysis in the case before us. As set forth above, the court did consider the efforts and adjustments that Father has made. The evidence before the court also included the testimony of the Cabinet worker, Elizabeth Bailey. She testified about her continued concerns regarding Father -- that he is currently incarcerated for a violent crime and that he needs more time to be released from incarceration -- and then upon release, to start a process to establish his own stability, to meet his own needs, and to learn how to parent a child safely. Ms. Bailey's testimony further established that the child has resided with her siblings in the same foster home since 2021 and that she is doing well. Ms. Bailey described her personal observations of the improvements and progress which have occurred in foster care. As the Cabinet notes, "KRS 625.090(3)(e) identifies such improvements in a child's welfare to be further indication that it is in the child's best interests for a termination of parental rights to occur." C.A.W. v. Cabinet, supra, at 406.
From our review of the record, we are satisfied that there is a substantial evidentiary foundation supporting the circuit court's determination that termination of parental rights is in the child's best interests. Thus, we may not disturb it on appeal.
We affirm.
ALL CONCUR.
