M.S. v. Cabinet for Health & Family Servs.

THOMPSON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM KENTON FAMILY COURT
HONORABLE DAWN M. GENTRY, JUDGE
ACTION NO. 16-AD-00183 OPINION
AFFIRMING

BEFORE: JOHNSON, SMALLWOOD, AND THOMPSON, JUDGES. THOMPSON, JUDGE: M.S. (father) appeals the judgment of the Kenton Family Court terminating his parental rights to his minor child, D.N.S (child). Father contends the family court's judgment was clearly erroneous because it contradicted findings contained in orders dismissing petitions to involuntarily terminate his parental rights to his other children. For the following reasons, we affirm.

In addition to child, father is the biological parent of siblings S.P.S., K.N.S., M.E.S. and M.A.S. On March 13, 2015, these children were placed in the custody of the Cabinet for Health and Family Services following a dependency, neglect, and abuse action.

On August 19, 2015, child was born to a different mother. Child was placed in foster care seven days later because of her mother's known drug use and subsequently adjudged abused and neglected. Following child's removal from her parents, the Cabinet created a case plan to facilitate reunification. The case plan required father to maintain housing and employment, participate in drug screening, and refrain from future criminal activity.

In April of 2016, father was sentenced to two years' imprisonment. On December 28, 2016, the Cabinet petitioned to involuntarily terminate father's parental rights to all his children, and the cases were consolidated for trial. Father was released from prison in July 2017. By his own admission, he did not complete any of the tasks on his case plan before his release. He then agreed to voluntarily terminate his parental rights to S.P.S. and M.A.S. A trial was held for the termination of his parental rights to child, K.N.S., and M.E.S. The mother of child did not appear to contest the merits of the case.

At the subsequent trial, the family court heard testimony from father and the social worker assigned to his case. Father testified he was currently living in a sober living home but believed he could find suitable housing for his children in the future. Father explained he was participating in an intensive outpatient treatment program but denied any substance abuse issues. He also submitted proof of drug screens beginning in August 2017. However, the screens were not completed pursuant to a Cabinet referral as required under his case plan.

The social worker testified father visited child on only four occasions. According to the social worker, child's foster parents, who child referred to as "mom" and "dad," were able to meet all of her needs and intended to adopt her. The social worker did not believe child would be able to recognize father if he were to walk into a room with her. The social worker also testified father had not contributed to his children's care once they were placed in the Cabinet's custody and owed approximately $11,000 in child support arrearages.

The social worker also testified to the condition of K.N.S. and M.E.S. At the time of the hearing, both children had behavioral problems and were struggling to develop bonds with their foster families. According to the social worker, both children initially improved in foster care but regressed after an encounter with father in which he stated he was "fighting to get them back." Although neither K.N.S. nor M.E.S. were living with foster parents who intended to adopt, the social worker opined the children's behavior would improve once they learned there would be no further reunification efforts with father.

The family court then entered separate findings of fact and conclusions of law for each child. Regarding child, the family court found child's parents had abandoned her for over ninety days; failed to provide parental care and protection for at least six months with no reasonable expectation of improvement considering child's age; failed to provide essential food, clothing, shelter, medical care, or education with no reasonable expectation of improvement considering child's age; and child had resided in foster care for at least fifteen of the most recent twenty-two months. The family court specifically noted both parents' history of substance abuse and incarceration, extended absences from child's life, and instability in housing and income.

The family court reached similar conclusions regarding K.N.S. and M.E.S. but found there was a reasonable expectation for improvement in the parents' conduct. In reaching this conclusion, the family court noted father had, since his release from incarceration, "consistently screened negative for any drugs, has maintained employment, attended intensive outpatient treatment for substance abuse, attempted to contact his social worker to complete items on his case plan, and maintained stable housing." Based on these findings, the family court concluded it would be in child's best interest if father's parental rights were terminated but not the best interests of K.N.S. and M.E.S.; therefore, it denied the Cabinet's petition as it pertained to K.N.S. and M.E.S. but entered a judgment terminating father's parental rights to child. This appeal follows.

Father argues the family court's finding that there was no reasonable expectation of improvement regarding his ability to provide parental care and essential food, clothing, shelter, medical care, or education was contradicted by its findings in relation to K.N.S. and M.E.S. He contends this contradiction compels us to reverse the family court's finding that it was in child's best interest to terminate his parental rights.

The standard of appellate review in a termination of parental rights case is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, which is based on clear and convincing evidence. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky.App. 2008). "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." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).

A court may involuntarily terminate someone's parental rights only if a three-prong test has been met. First, the child must be found to be abused and neglected. Kentucky Revised Statutes (KRS) 625.090(1)(a). Second, termination of parental rights must be in the child's best interest. KRS 625.090(1)(b). The trial court must consider specific statutory factors when determining the child's best interest, including whether the Cabinet has made efforts to reunite the child with the parents; efforts and adjustments the parent has made to make return in the child's best interest; the child's physical, emotional, and mental health and prospects for improvement if termination is ordered; and the natural parent's failure to pay a reasonable portion of the child's substitute physical care. KRS 625.090(3).

The third prong requires evidence of one of the ten grounds for involuntary termination listed in KRS 625.090(2). In this case, the family court found proof of four grounds for termination: (a) abandonment of child for at least ninety days; (e) failure, for at least six months, to provide parental care and protection with no reasonable expectation of improvement considering child's age; (g) failure to provide "essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well-being" with no reasonable expectation of improvement considering child's age; and (j) child has been in foster care for fifteen of the most recent twenty-two months.

Father's appeal depends upon the family court's allegedly contradictory findings that there was a reasonable expectation of improvement in his ability to provide parental care and essential food, clothing, shelter, and medical care for K.N.S. and M.E.S. but not for child. However, an appellate court must affirm a trial court when there is sufficient evidence to support the verdict, even when the trier of fact makes an apparently inconsistent finding on the same evidence. Fister v. Commonwealth, 133 S.W.3d 480, 486 (Ky.App. 2003). In this case, father has not disputed the family court's findings he abandoned child for at least ninety days and that child resided in foster care for fifteen of the twenty-two months preceding the petition for involuntary termination. Proof of only one statutory ground is sufficient to affirm a judgment terminating parental rights. W.L.C. v. Commonwealth, Cabinet for Health and Family Services, 484 S.W.3d 737, 743 (Ky.App. 2016).

There was also sufficient evidence for the family court to find no reasonable expectation father would improve in his ability to provide parental care and essential food, clothing, shelter, medical care, or education. The family court heard testimony regarding father's extended absence from child's life, significant child support arrearages, and failure to contribute to child's care. Although father complains these findings were facially contradictory to those contained in the orders relating to K.N.S. and M.E.S., the family court's findings for each child were based on different evidence. Unlike child, father had an established relationship with K.N.S. and M.E.S. and these children recognized him as their father. Moreover, K.N.S. and M.E.S. were older than child and faced greater difficulty bonding with their foster family. The family court's findings of fact and conclusions of law were nuanced, but they were not contradictory.

The family court's finding that termination was in the best interest of child was supported by testimony concerning child's relationship with her foster family, her parents' extended absences from her life, father's failure to complete his case plan, and lack of significant adjustments in his conduct since child was placed in the Cabinet's care. Each child's unique circumstances in foster care made it rational to find termination of parental rights in the best interest of child but not K.N.S. and M.E.S. Thus, the family court's finding that the Cabinet had satisfied the three-prong test for terminating father's parental rights to child was supported by sufficient evidence.

Based on the foregoing, the judgment of the Kenton Family Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Michael A. Hummel
Ft. Mitchell, Kentucky BRIEF FOR APPELLEE: Abigail E. Voelker
Covington, Kentucky