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H.M.R. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

May 19, 2017

H.M.R. APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; L.S.S.; AND H.K.R., JR., A CHILD APPELLEES

          MODIFIED: MAY 26, 2017

         APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE TRACI H. BRISLIN, JUDGE ACTION NO. 15-AD-00024

          BRIEF FOR APPELLANT: Richard F. Dawahare Lexington, Kentucky

          BRIEF FOR APPELLEE: Kristin L. Wehking Lexington, Kentucky

          BEFORE: JOHNSON, JONES, AND THOMPSON, JUDGES.

          OPINION

          JONES, JUDGE:

         Appellant, H.M.R. ("Father"), appeals from the Fayette Circuit Court's termination of his parental rights. After careful review of the record, we reverse.

         I. Background

         Child was born to L.A.S. ("Mother") and Father on September 22, 2007, in Cincinnati, Ohio. Father was listed as Child's biological father on Child's birth certificate. While Mother and Father were never married, they resided together, with Child, for the first three years of Child's life. When Child was three-years-old, Child moved to Lexington, Kentucky with Mother who was caring for her own ailing mother. Father remained in Cincinnati. There was never a formal custody arrangement or a child support order entered. Despite not having a vehicle, Father testified that he "caught rides" with friends twice a month to visit with Child and bring Child gifts and money. When Child was five-years-old, he came to live with Father and Father's sister in Cincinnati, where he resided for approximately 6-8 months. For reasons that are not entirely clear from the record, Child returned to live with Mother in Lexington, Kentucky.

         In November of 2013, the Cabinet for Health and Family Services (the "Cabinet") removed Child from Mother's care due to Child's truancy and Mother's substance abuse issues. A Dependency, Neglect, or Abuse ("DNA") hearing was held on November 20, 2013, at which time Mother stipulated to probable cause of neglect. While there were no claims concerning Father, he was present at the DNA hearing. However, Mother had recently made statements that Father may not, in fact, be Child's father. Accordingly, the trial court ordered Father to submit to a paternity test. Because Father was still living in Ohio, the trial court additionally ordered that Father be drug tested, and that the Cabinet complete an ICPC[1]assessment to determine if Father would be a suitable placement for Child. Child was placed in foster care pending completion of Father's ICPC assessment.

         Father submitted to a full-panel drug test immediately following court, and tested positive for cannabinoids. The test returned negative results for all other substances tested. A finding of neglect was found against Mother on January 8, 2014.[2] However, while Father did attend the DNA proceedings, he was not accused of any abuse or neglect of Child as part of those proceedings.

         Father's blood was taken for the court-ordered paternity test on January 30, 2014. On February 12, 2014, the Cabinet submitted a DNA Dispositional Report to the trial court, which indicated that it had communicated with Father regarding his desires to work a case plan to gain custody of Child, and set up a meeting for him to do so. While both Lauren Barker, Child's case worker, and Father have testified to the fact that Father did attend a family team meeting at some point, there is no indication in the record as to when this meeting occurred. Ms. Barker testified that at this meeting she asked Father to complete several tasks. These included: drug screening when ordered through an Ohio provider, cooperating with the ICPC process, completing a substance abuse assessment, and following the recommendations of that assessment. Any written case plan, or any reference to a case plan for Father, is absent from the record.[3] On June 26, 2014, Father's paternity test was returned confirming that he was Child's father. The reason for the delay in the results is unclear. The Cabinet filed a recommendation with the trial court on July 23, 2014, by which it acknowledged that Father's paternity had been confirmed, and stated that it would complete the ICPC on Father. Additionally, the July 23, 2014, recommendation stated that Father had made contact with the Cabinet and again requested a case plan.

         On October 2, 2014, the Cabinet requested the ICPC home visit at Father's home. The completed ICPC assessment, which denied Child's placement with Father, was filed in Fayette Circuit Court on January 7, 2015.[4] In her letter explaining why she believed custody was inappropriate, the custody director who completed Father's home study stated numerous reasons, including that: Father had initially given his nephew's address, where he received mail, instead of the address where he was currently residing; Father's live-in girlfriend was absent, despite the fact that Father was informed it was imperative that she be present, at the time of the home visit; Father did not have stable employment; Father had four previous drug possession charges, and had additionally been charged with aggravated menacing during the pending ICPC assessment; and that Father had entered a guilty plea and been convicted of sexual battery when he was 17-years-old. In concurrence with filing the ICPC assessment denial, the Cabinet filed a recommendation requesting that the trial court grant waiver of reasonable efforts as to both Mother and Father, and that Child's status be changed to "adoption."

         The Cabinet filed a petition for termination of parental rights on February 20, 2015. Because the Cabinet's petition stated that Father's current whereabouts were unknown, a Guardian ad Litem ("GAL") was appointed for him by the trial court. The GAL filed her report on April 1, 2015. In the report she stated that she had contacted Mother in an attempt to locate Father. Shortly thereafter, she received a telephone call from Father. Father stated that he opposed any attempt to terminate his parental rights to Child. Following this conversation, the GAL forwarded Father a letter explaining the petition; however, the petition was not attached with the letter.

         A termination of parental rights hearing was held on June 22, 2015, at which Father appeared. Ms. Barker testified that she believed Father was uncooperative with the ICPC assessment, although she did agree that Father had been present at every meeting arranged with the custody worker. She further testified that Father had not requested that visitation with the Child be arranged, had not seen the Child since the Child had been placed in foster care, and had not provided support for Child while the Child was in foster care. Father testified, explaining that he had been unable to get to Lexington and did not know where the Child was, besides the fact ...


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