FROM JEFFERSON CIRCUIT COURT HONORABLE DOLLY WISMAN BERRY,
JUDGE ACTION NO. 17-AD-500253T, 17-AD-500254T.
FOR APPELLANT: Vincent F. Mallon Louisville, Kentucky.
FOR APPELLEE: Mary Stewart Tansey Louisville, Kentucky.
BEFORE: KRAMER, J. LAMBERT, AND NICKELL, JUDGES.
("Father") is the putative father of K.H.J.W.
("Son"), born July 17, 2007, and K.D.W.
("Daughter"), born June 17, 2008. Father challenges
orders and judgments entered in two cases by the Jefferson
Circuit Court, Family Division, ordering involuntary TPR and
awarding custody of children to the Cabinet for Health and
Family Services ("CHFS") with authorization to
place them for adoption. We will consider two of the three
issues raised by Father-whether CHFS proved statutory grounds
justifying TPR and whether CHFS made reasonable efforts to
reunite the family. A third issue, seeking reconsideration of
A.C. v. Cabinet for Health and Family Services, 362
S.W.3d 361 (Ky. App. 2012) ($500 maximum fee for attorney
representing indigent parent through completion of case which
includes appeal), is not properly before us and will not be
considered. Following review of the record, briefs and law,
AND PROCEDURAL BACKGROUND
Daughter were originally placed with Father following a
temporary removal hearing on August 8, 2013, occasioned by
the filing of a petition alleging substance abuse by
L.S.E.W., the children's biological mother
("Mother"). On October 31, 2013, the children were
deemed abused and neglected based on Mother stipulating her
drug usage placed the children at risk.
January 12, 2016, Father called the CHFS hotline stating he
wanted to relinquish custody of the children because they
were out of control. He described the children as stealing
food and candy-both of which he said they could have had on
request. He also claimed the children were stealing alcohol,
watching pornography on the computer and bullying other
children. Father stated the children did not want to live in
his home and he could not handle them due to his and his
wife's health issues.
custody petition filed in early March 2016 alleging Father
physically abused Daughter by whipping her with paint sticks
wrapped in duct tape, leaving significant bruising on the
child's right forearm, left wrist, and lower back. Father
stipulated his use of "inappropriate corporal
punishment" in writing, prompting trial court to find
Father abused or neglected his children, remove Son and
Daughter from Father's home, and give temporary custody
of both children to CHFS where they have remained since June
2016. Order of disposition required Father to pay child
support, cooperate with CHFS and actively participate in
treatment and social service programs. According to Angela
Swartz, the family's second caseworker,  since the
children entered state custody, Father has paid no child
support and has provided no parental care or protection to
either child. Swartz also stated she had no reason to believe
Father would change his ways in a reasonable amount of time
given the ages of his children. Swartz expressed concern
Father could not discipline the children without using
corporal punishment. The March 2016 petition, and the
single-day trial convened on October 4, 2017, form the basis
of these appeals.
trial, Sarah Herzog-a licensed professional counselor
associate and qualified mental health professional-testified
she became Daughter's therapist in March 2016. Herzog
testified Daughter has been diagnosed with adjustment
disorder and oppositional defiance, both of which she
exhibits through tantrums, not listening, and not following
directions. Herzog testified she became Son's therapist
in May 2016. Son has been diagnosed with adjustment disorder,
oppositional defiance and post-traumatic stress disorder. He
exhibits aggression, anger and physical fighting at school.
Both Son and Daughter take medication for mental health
used behavior modification, cognitive interventions, play and
expressive therapy with the children. Both children improved
over time and she views their prognosis as good with
consistent parental oversight. She considered adoption to be
an appropriate goal. On April 27, 2017, the trial court
approved a CHFS petition to change the permanency goal to
directed one family therapy session in late May 2016.
Attended by Son, Daughter, and Father, the session went well
until Father announced he was relocating to Michigan within
the week. In the wake of Father's revelation, the focus
of the session shifted to helping the children process
Father's imminent departure. Father relocated to Michigan
as of May 29, 2016, ending Herzog's contact with him.
continued working with the children until April 2017, and
again from September 2017 through November 2017. Herzog
testified she is familiar with the children's foster
family which is addressing the children's medical,
mental, and emotional needs. Herzog evinced concern about
lingering harm and neglect from the initial referral.
to Swartz, reunification services ordered for Father
included: attend abusive parenting classes; participate in
supervised visitation; cooperate with CHFS; submit to random
drug screens; and, complete a substance abuse assessment
after any positive drug test. In describing Father's
compliance, Swartz testified he submitted to some drug
screens. According to the trial court's findings of fact,
Father tested positive for marijuana, but failed to complete
the substance abuse assessment. Swartz referred Father to
abusive parenting classes at Centerstone Transitions where he
attended only two classes-on April 18 and 25, 2016, before
being discharged from the program. Via letter to Sisson, Amy
Noll, Principal Therapist/Supervisor at the Transitions Unit
of Seven Counties Services, Inc., described Father's
performance in those classes.
During each of those sessions [Father] reported that he did
spank his daughter but denied that this was abusive in any
way. [Father] was offered the opportunity to complete the
accountability statement (statement describing the incident
and how it was abusive) and a follow up appointment but he
Transition's Parenting After Abuse Group is based on the
parent's ability to take responsibility for the behaviors
that led to the injury to their child. [Father] has denied
responsibility for any physical abuse to the child.
Therefore, he does not meet the criteria for our program at
this time. To meet the criteria for the recommended
treatment, [Father] will need to be able to discuss the
abusive incident and the impact of the abuse on his child.
moving to Michigan, Father routinely telephoned the children
in Kentucky and regularly communicated with Swartz. He also
completed nurturing parenting classes in Michigan,
knowing they did not qualify as the court-mandated abusive
parenting classes. Paperwork from Sisson indicates Father was
told it was fine to take the nurturing parenting classes in
Michigan, but they would not substitute for the court-ordered
abusive parenting classes.
4, 2017, CHFS filed TPR petitions for both children naming
both parents. Citing KRS 625.090(2)(a), (e), and (g), CHFS
petitioned for termination of Father's rights on three
grounds-abandonment, failure/inability to provide essential
care and protection to the children for not less than six
months, and failure/inability to provide "essential
food, clothing, shelter, medical care, or education
reasonably necessary and available for the child's
well-being" without reasonable expectation of
returned to Kentucky in early August 2017 to avoid TPR and
work his case plan, remaining in the Commonwealth about one
month. During that month he resumed working in Kentucky,
underwent more drug ...