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

Court of Appeals of Kentucky

June 2, 2017



          BRIEF FOR APPELLANT: Vincent F. Mallon

          BRIEF FOR APPELLEE: Erika L. Saylor



          JONES, JUDGE:

          M.P.R. appeals the Jefferson Circuit Court's Findings of Fact, Conclusions of Law, and Order terminating his parental rights over his minor child, M.P.W.R. For reasons more fully explained below, we AFFIRM.

          I. Background

         M.P.W.R. ("Child") was born on February 20, 2015, to M.P.R. ("Father") and N.R.T. ("Mother"). Less than a month after his birth, Child was removed from parental custody and placed in temporary custody of the Cabinet for Health and Family Services (the "Cabinet") due to him testing positive for amphetamines and his parents' histories of substance abuse and domestic violence. Father was present at the removal hearing, and the court ordered him to have supervised visits with Child, to submit to random drug screenings, to attend three Alcoholics Anonymous or Narcotics Anonymous meetings a week, and to complete individual counseling. Child spent the first four weeks of his life in intensive care withdrawing from amphetamines. After leaving the hospital, Child went to live with his foster parents, with whom he still resides.

         In May of 2015, both Mother and Father stipulated to abuse and neglect of Child. That same day, the Court reissued its previous treatment orders to Father, as he had failed to comply with them. On June 1, 2015, Father appeared in the Bullitt County Court on previous criminal charges. Father was drug tested and tested positive for methamphetamines, buprenorphine, and THC, for which he was held in contempt of court. Father received a probated ten-year sentence on the criminal charges. Later in June, Father again appeared in court for contraband charges. His probated sentence was revoked. Father has been in custody since June 1, 2015.

          On December 21, 2015, the Cabinet filed a petition for involuntary termination of parental rights ("TPR"). Mother voluntarily terminated her parental rights on March 24, 2016. On March 25, 2016, the trial court held a hearing on the TPR petition. The Child's foster mother and the Child's social worker, Sara Wilson, testified on behalf of the Cabinet. Father appeared telephonically and testified on his own behalf. Ms. Wilson testified that she received the case file for Child on April 20, 2015. A review of her notes indicated that the previous investigative worker for the Cabinet had reached out to Father on March 20, 2015, and spoke with him about scheduling a meeting to put together a case plan for Father. While Father indicated interest in doing so, he did not come to the meeting. The records stated that the investigative worker attempted to contact Father three additional times, but received no response. Further, the records indicated that Father had submitted to drug screening once, on April 27, 2015. At that time he tested positive for oxycodone. Ms. Wilson testified that, once she received the case file, she attempted to contact Father several times, both via mail and telephone, but was never able to get in contact with him. In May of 2015, Ms. Wilson met with Child's paternal grandmother, who expressed interest in obtaining custody of Child. Child's grandmother told Ms. Wilson that she had no way to get in touch with Father. She later decided against pursuing custody of Child, and the Cabinet's evaluation of her home did not support placing Child in her custody. Ms. Wilson stated that in December of 2015, she sent a letter containing a potential case plan to Father at the Henderson County jail, where he was being held at that time, and requested that Father contact her. He did not do so. Additionally, Ms. Wilson testified that Father has never made child support payments and has never visited with Child. She stated that, even if Father were to be released on shock probation, it would be at least two months before Father could initiate visits with Child, and several more months before reunification could be considered.

         Father testified that he was unaware of the requirements for him to attend counseling and drug screenings, although he acknowledged that he was present in court on the days those orders were issued. He stated that he never received the case plan sent to him by Ms. Wilson. Father vehemently opposed termination of his rights over Child. He stated that he was unable to take part in drug counseling programs at this time, but that he had prepared applications to begin doing so when able. Father acknowledged that he had never visited with Child and that he had never sent Child any kind of support, either before or after being incarcerated; however, Father contended that the he did not know to whom he should send support. Father espoused his belief that he would be able to form a bond with Child, and stated that he had recently received $8, 000.00 in inheritance, which he intended to use to obtain a home for himself and Child upon his release.

         The trial court entered its Findings of Fact and Conclusions of Law and Order terminating Father's parental rights on April 5, 2016. This appeal by Father followed.

         II. Standard of Review

          Trial courts are afforded a great deal of discretion in determining whether termination of parental rights is warranted. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Accordingly, appellate courts will not set aside the trial court's findings of fact unless they are clearly erroneous. CR[1]52.01. Findings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them. Yates v. Wilson, 339 S.W.2d 458 (Ky. 1960). "The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence." V.S. v. Commonwealth of Kentucky, Cabinet for Human Res., 706 S.W.2d 420, 423 (Ky. App. 1986). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient ...

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