COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.J.S.V., A MINOR CHILD APPELLEES AND F.V. APPELLANT
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND V.M.V., A MINOR CHILD APPELLEES
FROM FAYETTE CIRCUIT COURT HONORABLE LUCINDA CRONIN
MASTERTON, JUDGE ACTION NOS. 16-AD-00204, 16-AD-00205
FOR APPELLANT: Kevin Palley Lexington, Kentucky.
FOR APPELLEES: Tiffany L. Yahr Lexington, Kentucky.
BEFORE: COMBS, D. LAMBERT AND SMALLWOOD,  JUDGES.
F.V. (Father), appeals from Orders of the Fayette Circuit
Court terminating his parental rights to his two minor
children in these consolidated appeals. After our review, we
vacate and remand.
and the children's mother had two children, L.J.S.V., a
male born on July 26, 2012, and V.M.V., a female born on
September 16, 2015. We cite from certified juvenile records
made a part of the record below in order to set forth the
pertinent background of this case.
September 23, 2015, the Cabinet filed dependency, neglect,
and abuse petitions after V.M.V. tested positive for heroin
and codeine at birth. Her mother also tested positive for
heroin and admitted that she had been using on a daily basis
for more than a year. Father was identified as putative
father. He did not attend the September 25, 2015,
adjudication hearing at which the mother stipulated to risk
of neglect based on drug use during pregnancy. L.J.V.S. was
placed with a maternal cousin, and the court ordered
November 2, 2015, the children were placed in the
Cabinet's custody after UK hospital refused to discharge
V.M.V. to the cousin due to her inability to provide
appropriate care. Both children were placed in a foster home.
February 3, 2016, a report of a guardian ad litem
(GAL) reflects as to the children in foster care: "each
have [sic] their own bed and room in the
home. The foster parent works and the children
go to daycare . . . ." The caregiver described the
children as adjusting well. She described L.J.S.V. "as
crying and using the bathroom on himself when he sees his
parents. [L.J.S.V.] told the caregiver that he is using the
bathroom on himself because he was 'told' if he does
so he'll go home." The child sometimes had behavior
problems for a few days after visits and was upset when
neither parent showed up for a visit. "The caregiver
said that the parents are appropriate during the
visits." According to the foster parent, neither child
was currently having medical problems. L.J.S.V. "did
have significant dental issues but those were resolved."
The GAL recommended that the parents needed to work their
case plans. "To date they have done little to address
the drug use, which caused the children to be
review by the Cabinet on February 8, 2016, reflected that
Father had not completed any case plan. The children were
taken for DNA testing on January 21, 2016. Results were
pending. V.M.V. had fewer withdrawal symptoms. When L.J.S.V.
entered care, he was taken for a dental appointment. He had
multiple cavities and possibly needed dental surgery. Parents
were compliant with biweekly visitation -- except for two
missed visits. The Cabinet recommended that the children
should remain in custody with the goal to return to parent.
February 8, 2016, the court entered an order that the
children remain with the Cabinet after having found that the
parents were not working case plans and were missing visits.
The next hearing was scheduled for May 9, 2016.
February 16, 2016, Father was arrested on an outstanding DUI
warrant while riding as a passenger in the mother's car.
As a non-citizen from Guatemala, he was transferred to the
custody of Immigration Control and Enforcement (ICE) and was
detained until December 20, 2016.
report of the Fayette Foster Review Board dated May 3, 2016,
noted that Father was in the Boone County jail and might be
deported; additionally, the report provided:
Judge stated that additional services needed to be offered to
family, but I feel reunification is remote with a heroin
addicted mom & deported father. Offer services, but
don't hesitate to move quickly to TPR & adoption if
plan is not followed.
to the review by the Cabinet of May 9, 2016, Mother reported
that she and Father had been stopped by police for a loud
muffler, that Father was in the Boone County jail, and that
he might be deported to Guatemala. The Cabinet had had no
contact with Mother since February 22, 2016. The report
further reflected that "[o]n 4/18/16, SSW attempted to
contact Officer James Bug with immigration to receive an
update on the status of [Father] but he has not returned my
test results received on February 18, 2016, established
Father as the biological father. Father's last visit with
the children occurred on February 9, 2016. V.M.V. was meeting
developmental milestones. L.J.S.V. underwent oral surgery on
May 2, 2016, and recovered well. The recommendation was that
the children remain in the Cabinet's custody.
9, 2016, the court ordered that the children remain with the
Cabinet, finding that: "Parents aren't working their
case plans; Cabinet is pre-perming for goal change."
Cabinet's next review was dated June 13, 2016. According
to the mother, Father "was shipped to Chicago for a
month then to Guatemala. She said his next immigration court
date is in July." The Cabinet recommended a goal change
to adoption. On June 13, 2016, the court conducted an annual
permanency hearing and ordered that the permanency plan
should be adoption.
11, 2016, the Cabinet filed petitions for termination of
parental rights as to each child. On August 15, 2016, the
Cabinet's counsel filed an affidavit for appointment of a
warning order attorney, stating that Father had been located
at the McHenry County Jail in Woodstock, Illinois, reportedly
on an immigration detainer. On September 30, 2016, the
warning order attorney filed a report that he had received a
response from Father, who unequivocally and adamantly
challenged any attempt to terminate his parental rights.
October 25, 2016, the United States Immigration Court entered
a decision in Father's favor in the removal proceeding.
Father, pro se, had appeared and prosecuted the
matter successfully. It found that Father, a citizen of
Guatemala, was taken into custody in February 2016. He had a
history of DUI convictions. It was not disputed that Father
spent a total of 25 days in jail for all of the DUI's
combined. While incarcerated, he attended Alcoholics
Anonymous (AA) meetings. The court concluded Father was
eligible for cancellation of removal. It found, inter
alia, that he had not been convicted of an offense that
would bar cancellation of removal. The court was convinced
that he would continue to rehabilitate himself from
dependence on alcohol.
December 2016, Father was released from detention as outlined
more fully below in the testimony presented at trial. He
immediately sought visitation with the children, which was
not allowed. In March 2017, Father's counsel filed a
motion requesting visitation. The motion was denied.
began on May 30, 2017. Father appeared and was represented by
counsel. Mother did not appear, and her counsel was granted
permission to withdraw. The GAL appeared on the
children's behalf. The court noted that Father had been
compliant in taking alcohol and drug assessment classes in a
positive effort at rehabilitation.
Callahan, the investigative worker, testified. She became
involved after V.M.V. tested positive for heroin and codeine
at birth. Ms. Callahan identified each child's birth
certificate and testified that no father was listed. The
mother related that Father was a boyfriend; she was not
really sure he was the father because they did not live
together. After the mother named him as the possible father,
Callahan spoke to him. According to Callahan, Father believed
that he was the children's father, but he also was not
sure. He did not know about the mother's drug use because
he did not have regular contact with them. Father saw
L.J.S.V.-- but not on any regular schedule.
Williams, ongoing social worker since 2015, testified. The
children came into the Cabinet's custody on November 2,
2015. Initial case planning took place on November 18, 2015.
Father's case plan required him to undergo substance
abuse and parenting assessments and to follow all
recommendations; to drug screen; to obtain and to maintain
stable housing and employment; and to participate in
supervised bi-weekly visits. Initially, Father stated that he
was not going to work the case plan until DNA was
established. He did not undergo drug screening. Ms. Williams
testified that the parents were not consistent with visits.
However, the Cabinet's review of February 8, 2016,
reflects that the children's mother and Father were
compliant with visitation -- except for two missed visits.
February 16, 2016, Ms. Williams received a phone call from
Mother and learned that Father had been incarcerated at Boone
County jail and that at some point was transferred to Chicago
on an ICE detainer. Ms. Williams contacted Boone County jail,
and they gave her contact information for the immigration
officer, James Bugg. Ms. Williams testified that she tried to
contact Mr. Bugg numerous times without success. He left her
a voice message on one occasion.
permanency goal was changed on June 15, 2016. There had been
no movement in the case. At that time, Ms. Williams only knew
that Father was being held somewhere in Illinois. On August
11, 2016, Ms. Williams received a voice mail from the
deportation officer, Mr. Arrias, reporting that Father was ...