TAYLOR, JUDGE
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 14-J-00573 APPEAL FROM HARDIN CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 14-J-00571 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. TAYLOR, JUDGE: E. B., father, brings Appeal Nos. 2015-CA-000565-ME and 2015-CA-000590-ME from orders of the Hardin Circuit Court, Family Court Division, entered March 20, 2015, adjudicating that he had neglected his children and placing them in the custody of the Cabinet for Health and Family Services (Cabinet). We affirm.
E.B., father, and T.S., mother, had two children together. C.B. was born on February 11, 2011, and S.B. was born on December 14, 2011. The couple and both children lived together in Elizabethtown, Kentucky. E.B. moved from Elizabethtown to Lexington sometime in 2013. C.B. and S.B. continued to live with their mother, T.S., in Elizabethtown. After moving to Lexington, E.B. rarely had contact with the children. On December 5, 2014, an Emergency Custody Order was entered in the Hardin Circuit Court, Family Court Division, removing both C.B. and S.B. from the custody of their mother, T.S.
The petition for dependency, neglect and abuse filed against T.S., mother, was a separate action and is not part of the record on appeal, nor relevant to the disposition of this appeal. --------
Relevant to this appeal, also on December 5, 2014, the Cabinet filed a dependency, neglect, and abuse petition against E.B. as to C.B. and S.B. in the Hardin Circuit Court, Family Court Division (Action No. 14-J-00573 and 14-J-00571). Subsequently, on December 10, 2014, a temporary removal hearing was conducted upon the petition against E.B. At the hearing, a social worker for the Cabinet, Cindy Melson, testified, and E.B. also testified. By order entered December 11, 2014, the family court removed C.B. and S.B. from the custody of E.B. and placed them in the emergency custody of the Cabinet. Following an adjudication hearing, the family court entered an order on January 22, 2015, adjudicating that E.B. had neglected C.B. and S.B. The children were placed in the temporary custody of the Cabinet. Thereafter, a dispositional hearing ensued. By order entered March 20, 2015, the circuit court found that C.B. and S.B. were neglected by E.B. and that the children's best interests required the Cabinet be given custody. This appeal follows.
E.B. maintains that the evidence was insufficient to support the family court's finding that E.B. had neglected S.B. and C.B. We disagree.
Neglect is defined in KRS 600.020, in relevant part, as:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
. . . .
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
. . . .
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being
. . . .
And, the family court must find neglect by a preponderance of the evidence following an adjudicatory hearing. KRS 620.100(3). The burden of proof is upon petitioner or "complainant." KRS 620.100(3). However, the family court has broad discretion in determining whether a child has been neglected as set forth in KRS 600.020(1)(a), and the court's findings of fact will not be disturbed on appeal if supported by substantial evidence.
M.
P.
S.
v.
Cabinet for Human Res.,
979 S.W.2d 114 (Ky. App. 1998).
In its order finding that S.B. and C.B. had been neglected by E.B., the family court particularly found that E.B. had neglected the children per KRS 600.020(1)(a)4 by consistently failing to provide essential parental care and per KRS 600.020(1)(a)8 by failing to provide food, shelter, clothing, and adequate care. In support of these findings of neglect, the family court set forth in detail evidence to support same:
Cindy Melson, worker for the Cabinet for Health and Family Services, testified that the natural father had not had contact with the children for six (6) months but did have the children for one (1) week in July of 2014. He had not been providing child support for the children. The petitions in this matter were filed in November.
Ms. Melson stated that the natural mother said that the natural father was not involved in the lives of the children and that he would not pay child support. When the children saw their father in July, [sic] 2014, it has been since December, [sic] 2013 that they had last seen him. Prior to that, he had seen the children in May, [sic] 2013.
The natural father was noted to have filed a dependency petition in 2013 against the natural mother in
the Fayette County court system. He provides no financial support for the children whatsoever.
The natural mother, [T.S.] testified that the natural father had the children in December, [sic] 2013 and then in July, [sic] 2014. She added the he has paid no child support and refuses to even help for diapers. She indicated that he was a good dad, but he was "never there." She stated in summary that he does not provide for or visit with the children on a regular basis.
[T.S.] further testified that the paternal grandmother did transport the children for visits. The children were with the paternal grandmother for four (4) days while the father did not bother to go see them there. She added that the last time he did something for his children was in the summer of 2013.
[T.S.] stated that the children are currently three (3) and five (5) years old. She indicated that she has provided all of the support for them. Their father does not call to speak with them and has only bought them clothes two (2) times in their lives. She offered that she did receive $261.00 per month for three (3) years in public assistance for the children when their father would not help.
March 6, 2014, Order at 1-2.
Upon review of the evidence, there exists substantial evidence in the record to support the family court's findings of neglect as to S.B. and C.B. under KRS 600.020(1)(a)4 and 8. Moreover, the family court properly exercised its discretion in so finding. The family court heard conflicting evidence, and in the end, the family court is vested with the sole authority to access the weight and credibility of such evidence. See Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Accordingly, we conclude that the family court did not err by finding that E.B. had neglected S.B. and C.B.
E.B. also asserts that the dependency, neglect, and abuse petition filed on December 5, 2014, "failed to contain allegations sufficient to give rise to a charge or claim of neglect." E.B.'s Brief at 13. E.B. points to the testimony of Cindy Melson, a social worker for the Cabinet for Health and Family Services. Melson testified that she only intended to allege that the children were dependent and inadvertently checked the boxes alleging neglect and abuse on the form petition for dependency, neglect, and abuse. E.B. maintains that the circuit court was limited to determining the "truth or falsity" of the allegations in the petition by KRS 620.100(3) and, thus, could only have found that E.B. and C.B. were dependent.
KRS 620.100(3) reads:
The adjudication shall determine the truth or falsity of the allegations in the complaint. The burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence. The Kentucky Rules of Civil Procedure shall apply.
We do not read KRS 620.100(3) as strictly limiting the family court to only considering the allegations contained in the petition as to a finding of child abuse, neglect, or dependence. The circuit court conducts at least three hearings in such cases - the temporary removal hearing, the adjudication hearing and dispositional hearing.
KRS 620.080 particularly empowers the family court to "determine whether there are reasonable grounds to believe that the child would be dependent, neglected or abused if returned to . . . the custody of his parent." These reasonable grounds may be based upon the evidence adduced at the hearing. Consequently, we conclude the family court may find neglect of a child based upon the evidence presented at a hearing even though insufficiently alleged in the petition for dependency, abuse, and neglect. We, therefore, reject E.B.'s assertion that the allegations contained in the December 5, 2014, petition were insufficient to support a finding of neglect.
E.B. also alleges that the family court erred by failing to make findings of fact as to the veracity of the allegations contained in the petition for dependency, abuse, or neglect at the adjudication hearing pursuant to KRS 620.100(3). We disagree.
KRS 620.100(3) mandates the family court to "determine the truth or falsity of the allegations in the complaint." E.B. maintains that there were three allegations in the petition that the circuit court failed to determine the veracity of and cites same as error. These three allegations are: (1) "the child is believed to be a Dependent Child," (2) "It is reported that E.B. has not had consistent contact with the children" and (3) "Natural Mother T.S. reports that [E.B.] has not saw [sic] the children but a total of three times during their lives." E.B.'s Brief at 10-12. We address each seriatim.
As to the first allegation that S.B. and C.B. were dependent, the family court considered the evidence presented and found the children were neglected within the meaning of KRS 600.020(1)(a)4 and 8. We do not believe the family court violated KRS 620.100 by finding that S.B. and C.B. were neglected rather than dependent children. Thus, the family court did consider and properly rejected the claim that S.B. and C.B. were dependent.
As to the second and third allegations, the family court specifically found that E.B. had consistently failed to care for the children and particularly cited to only three visits with the children since E.B. moved to Lexington in 2013. As hereinbefore pointed out, the family court set forth substantial evidence to support its findings of fact in the March 20, 2015, order. Upon the whole, we conclude that the family court fulfilled its duty under KRS 620.100(3).
E.B. further contends that the family court erred by not placing the children with him following the disposition hearing rather than committing them to the custody of the Cabinet. E.B. specifically alleges that it was an abuse of discretion not to place the children with him despite the finding of neglect.
The statute relevant to the disposition of the children is contained in KRS 620.140 and provides, in relevant part:
(1) In determining the disposition of all cases brought on behalf of dependent, neglected, or abused children, the juvenile session of the District Court, in the best interest of the child, shall have but shall not be limited to the following dispositional alternatives:
. . . .
(c) Removal of the child to the custody of an adult relative, other person, or child-caring facility or child-placing agency, taking into consideration the wishes of the parent or other person exercising custodial control or supervision. Before any child is committed to the cabinet or placed out of his home under the supervision of the cabinet, the court shall determine that reasonable efforts have been made by the court or the cabinet to prevent or eliminate the need for removal and that continuation in the home would be contrary to the welfare of the child[.]
KRS 620.140(1)(c). The family court's decision to commit a child to the custody of the Cabinet must be upheld where there is substantial evidence "to support a finding that either: (1) all less restrictive means were attempted, or (2) no feasible alternative to commitment existed."
J.
S.
v.
Com.,
304 S.W.3d 67, 70 (Ky. App. 2009). And, the court's failure to make written findings of fact as to the "inadequacy of available alternatives is not fatal to commitment" so long as the record "indicate[s] that less restrictive alternatives were attempted or determined unfeasible."
Id. at 70.
In the case sub judice, the family court indicated on the disposition order that it had reviewed the recommendations of the Cabinet regarding the disposition alternatives. The family court found that the best interests of the children required that they be removed from the custody of their parents, that continuing in the home was contrary to their welfare, and that reasonable efforts were made to prevent removal from the home. These findings were supported by substantial evidence, and we cannot say that the family court abused its discretion by not placing the children with E.B.
We view any remaining contentions of error by E.B. as moot or without merit.
For the foregoing reasons, the orders of the Hardin Circuit Court, Family Court Division, are affirmed.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT: Lewis H. Graham
Elizabethtown, Kentucky BRIEFS FOR APPELLEES,
CABINET FOR HEALTH AND
FAMILY SERVICES AND HARDIN
COUNTY ATTORNEY: Amy L. Newsome
Assistant Hardin County Attorney
Elizabethtown, Kentucky ORAL ARGUMENT FOR
APPELLEES, CABINET FOR
HEALTH AND FAMILY SERVICES
AND HARDIN COUNTY
ATTORNEY: Melanie Biggers
Elizabethtown, Kentucky BRIEFS AND ORAL ARGUMENT
FOR APPELLEE GUARDIAN AD
LITEM FOR S.B. AND C.B.: Dawn Lonneman Blair
Elizabethtown, Kentucky