C.A.B. v. Cabinet for Health & Family Servs.

CLAYTON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE J. RICHARD DOWNEY, JUDGE
ACTION NO. 13-AD-00102
OPINION
AFFIRMING

BEFORE: CLAYTON, KRAMER, AND NICKELL, JUDGES. CLAYTON, JUDGE: C.A.B. ("mother") appeals from the Warren Family Court's June 11, 2014 judgment that involuntarily terminated her parental rights to her daughter, K.F.B. After careful consideration, we affirm.

K.F.B. was born on July 19, 2012. C.A.B. is the mother and T.R.B. Jr., (hereinafter T.R.B.) is the legal father. Although T.R.B. is the legal father, he is not the biological father since he was incarcerated at the time of K.F.B's conception. However, he was married to C.A.B. at the time of K.F.B.'s birth and is listed on the birth certificate as her father. No person meets the statutory definition of putative father for the child.

K.F.B. was born with drugs in her system. She was removed from the custody of her mother the next day and committed to the Cabinet for Health and Family Services (hereinafter the "Cabinet"). The child has been committed to the Cabinet since that time. Initially, the mother had visitation with K.F.B. but stopped in October 2012. C.A.B. also has six other children who have been removed from her custody because of her substance abuse issues. These children are in the custody of C.A.B's father.

The Cabinet had prepared a case plan for C.A.B. prior to K.F.B.'s birth. It included supervised visitation with C.A.B.'s older children, UK-TAP assessment, substance abuse treatment, therapy, parenting classes, and a requirement to refrain from criminal activity. C.A.B. was unsuccessful in completing most of the case plan. Further, she did not maintain contact with the Cabinet. In October 2012, the Cabinet set up a new plan, which, for the most part, had the same tasks as the previous case plan. With regards to this case plan, C.A.B. told the Cabinet worker that she completed substance abuse treatment but could not provide documentation. Again, C.A.B. did not maintain contact with the Cabinet.

In January 2013, C.A.B. was arrested on numerous drug charges. Thereafter, she was convicted of trafficking in a controlled substance, first offense; promoting contraband, first-degree; and, tampering with physical evidence. After her incarceration, the Cabinet prepared a new case plan. C.A.B. resumed visitation with the child. And besides the previous tasks, it included attending AA/NA meetings, enrolling and completing the "Life Without a Crutch" substance abuse treatment, attending group therapy, and enrolling in an aftercare task force program to assist her when she was discharged from prison.

C.A.B. never provided any certificates that she participated in these programs. In addition, C.A.B. did not participate in the aftercare task force program because she received shock probation. Furthermore, during her incarceration, C.A.B. never contacted the social worker about K.F.B. nor did she call, write, or send gifts to K.F.B. After C.A.B. received shock probation on January 17, 2014, she was committed to Chrysalis House for an eighteen to twenty-four month, in-patient drug treatment program.

On November 18, 2013, the Cabinet filed a petition for involuntary termination of parental rights pursuant to Kentucky Revised Statutes (KRS) 625.050 et seq. seeking the termination of both parents' rights to the child. A trial was held on April 23, 2014. After hearing the evidence, the family court entered a judgment terminating C.A.B. and T.R.B.'s parental rights and findings of fact and conclusions of law supporting the termination order.

The family court made the following statutory findings: (1) that K.F.B. was an abused and neglected child as defined in KRS 600.020(1); (2) that the child was abandoned for a period of not less than ninety (90) days; (3) that the parents 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; (4) that the parents, for reasons other than poverty alone, 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 immediately foreseeable future, considering the age of the child; (5) that the child has been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights; and, (6) termination was in the best interest of the child.

C.A.B. now appeals from the judgment of termination. T.R.B. is not a party to the appeal. On appeal, C.A.B. stipulates that pursuant to KRS 625.090(1)(a), the Cabinet proved by clear and convincing evidence that K.F.B. was a neglected child as statutorily defined and that at least one of the factors in KRS 625.090(2) was established by clear and convincing evidence. Yet, C.A.B. maintains that because of the current care that she is receiving in her drug treatment program, she has established her willingness and ability to now provide for K.F.B., and hence, the trial court erred in denying the petition for termination of parental rights based on the language of KRS 625.090(5).

Our standard for review in termination of parental rights cases is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, which states "[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." The decision must be based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless substantial evidence does not exist in the record to support the findings. See M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998).

In sum, if the sufficiency of the evidence is challenged on appeal, we are permitted to reverse only where the trial court's findings of fact were clearly erroneous. Cabinet for Health & Family Services v. I.W., Jr., 338 S.W.3d 295, 299 (Ky. App. 2010). A finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Lastly, we note that "[s]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence . . . has sufficient probative value to induce conviction in the minds of reasonable men." Id. (citations omitted.)

In addition, we review under an abuse of discretion standard. C.A.B. contended that the family court erred when it terminated her parental rights since, according to her, she established, by a preponderance of the evidence, that K.F.B. would no longer be an abused or neglected child if returned to her. See KRS 625.090(5). Hence, based on the family court's discretion to make such a decision, it is reviewed for an abuse of discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). "An abuse of discretion occurs when a 'trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted). Finally, application of the law to the facts is reviewed de novo. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010).

With these standards in mind, we turn to the matter before us.

KRS 625.090 permits a family court to involuntarily terminate a person's parental rights if it finds by clear and convincing evidence: (1) that the child is abused or neglected; (2) that termination is in the child's best interest; and (3) the existence of one or more of ten specific grounds for termination. M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007); KRS 625.090(1)(a)-(2)(b). C.A.B. agrees that the Cabinet proved its case for termination of parental rights by clear and convincing evidence. However, C.A.B. points out that even upon satisfaction of all three factors, the family court may exercise its discretion not to terminate if the parents prove by a preponderance of the evidence that the children will not be abused or neglected in the future. KRS 625.090(5); D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 111 (Ky. 2012).

Here, she claims to have proven by a preponderance of the evidence that K.F.B. would not be abused or neglected in the future, and consequently, believes that the family court erred by failing to use its discretion under KRS 625.090(5) to refrain from terminating her parental rights. Second, she argues that KRS 625.090(5) is unconstitutional because it does not provide any protection for parents' fundamental liberty interest in rearing their biological children. Therefore, our review of this case is limited to the implication of KRS 625.090(5).

Regarding C.A.B.'s first argument, we note that the language of KRS 625.090(5) states that "[i]f the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent [sic] the court in its discretion may determine not to terminate parental rights." Notably, the statute does not mandate that a family court must decide not to terminate the parental rights in such a situation. Plainly, the use of the word "discretion" in the statute renders it permissive.

C.A.B.'s statements are based on an assumption that she has demonstrated that she is able to now care for her child. Yet, merely completing some programs in a treatment center did not convince the family court that she had done so. Indeed, the family court had substantial evidence that C.A.B. had only recently begun working on her case plan. In addition, if C.A.B. did not meet the requirements of the treatment program, she would be returned to prison. C.A.B. has completed drug treatment before and become involved in drugs again. Accordingly, the family court's decision to terminate C.A.B.'s parental rights was not clearly erroneous.

As applied to this case, even if C.A.B. proved by a preponderance of the evidence that K.F.B. would not be neglected if returned to her care, the family court still retained the discretion and authority to terminate her parental rights. Here, the family court proceeded in this manner, and we cannot say that, in doing so, the family court's decision was arbitrary, capricious, or unsupported by sound legal principles. Therefore, we conclude it did not abuse its discretion.

Next, C.A.B. argues that KRS 625.090(5) is unconstitutional. Nevertheless, it is unnecessary for us to consider this argument for two reasons. First, C.A.B. did not argue that this statute was unconstitutional before the family court, and therefore, the issue is not preserved for our review. Further, it is well-established that KRS 418.075 and CR 24.03 require a party challenging the constitutionality of a statute to serve the Attorney General with notice of such challenge. See Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000.) The applicable statute states:

In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the
petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the petition and be entitled to be heard.

We affirm the decision of the Warren Family Court.

ALL CONCUR. BRIEF FOR APPELLANT: Kevin R. Croslin
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Mary Gaines Locke
Munfordville, Kentucky