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F.V. v. Commonwealth

Court of Appeals of Kentucky

December 21, 2018



          BRIEF FOR APPELLANT: Kevin Palley Lexington, Kentucky.

          BRIEF FOR APPELLEES: Tiffany L. Yahr Lexington, Kentucky.



          COMBS, JUDGE.

         Appellant, 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.

         Father 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.

         On 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 paternity testing.

         On 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.

         A 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.[2] 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[3], which caused the children to be removed."

         A 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.

         On 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.

         On 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.

         A 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.

         According 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[4] attempted to contact Officer James Bug with immigration to receive an update on the status of [Father] but he has not returned my phone call."[5].

         Paternity 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.

         On May 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."

         The 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.

         On July 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.

         On 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.

         In 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.

         Trial 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.

         Karen 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.

         Keisha 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.

         On 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.

         The 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 ...

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