IN RE: THE INTEREST OF T.E.M., A Child L.B. v. CABINET FOR FAMILIES AND CHILDREN COMMONWEALTH OF KENTUCKY
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RENDERED: June 19, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-001413-MR
IN RE:
THE INTEREST OF T.E.M., A Child
L.B.
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE RICHARD FITZGERALD, JUDGE
ACTION NO. 96-FC-1875
CABINET FOR FAMILIES AND CHILDREN
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, JUDGE.
This is an appeal by L.B. from a Jefferson
Family Court order terminating her parental rights to her son,
T.E.M.
L.B. alleges that the trial judge should have recused
himself from hearing the case and that the evidence was insufficient to support an order terminating her parental rights.
affirm.
We
T.E.M. was born out of wedlock on December 26, 1986. His
parents are L.B. and T.M.1
In April 1991, L.B. began physically
abusing T.E.M. Since then the courts and child protective services
agencies have been extensively involved in the situation.
On two
occasions (March 1994 and September 1995) T.E.M. was removed from
his mother because he had been physically abused.
As a result of
the September 1995 incident, L.B. pled guilty to fourth-degree
assault.
On March 28, 1996, the Cabinet for Families and Children
filed a petition for involuntary termination of L.B.'s parental
rights to T.E.M.
Hearings on the matter were held on November 1,
1996, and January 9, 1997.
On May 20, 1997, the trial court
terminated L.B.'s parental rights to T.E.M.
This appeal followed.
In conjunction with a conference held on February 2,
1996, a Department for Social Services form entitled "Case Plan/Out
of Home Care" was completed by an unidentified conference participant.
The form includes the notation "[t]he court recommends that
as a permanency plan for T.E.M. that the Cabinet pursue a relationship for [the] child other than reunification with the mother while
at the same time providing the mother due process to give her [a]
full opportunity to achieve reunification." L.B. argues that trial
judge Richard J. Fitzgerald should have recused himself from the
case on the basis that this recommendation created the appearance
of a conflict of interest.
1
In a separate action, T.M. has acknowledged the child as
his own and consented to a voluntary termination of his parental
rights.
2
Ky. Rev. Stat. (KRS) 26A.015(2)(e) requires a judge to
disqualify himself "[w]here he has a personal bias or prejudice
concerning a party, . . .
or has expressed an opinion concerning
the merits of the proceeding." Canon 3C(1) of the Code of Judicial
Conduct, Sup. Ct. R. (SCR) 4.300, contains a similar provision.
The burden of proof required to demonstrate that recusal of a trial
judge is mandated is an onerous one.
trial
judge
impartial.
is
prejudiced
to
such
It must be shown that the
degree
that
he
cannot
be
Johnson v. Ducobu, Ky., 258 S.W.2d 509, 511 (1953);
Brand v. Commonwealth, Ky. App. 939 S.W.2d 358, 359 (1997).
In
order to successfully seek recusal of a judge, there must be a
showing of facts "of a character calculated seriously to impair the
judge's impartiality and sway his judgment."
wealth, Ky., 348 S.W.2d 759, 760 (1961);
Ky., 925 S.W.2d 449, 452 (1995).
Foster v. Common-
Miller v. Commonwealth,
The mere fact that the trial
judge has indicated or stated his belief in the guilt of the
defendant is not enough to disqualify the judge.
Commonwealth, Ky., 258 S.W. 674 (1924).
Nelson v.
There must be a showing of
bias or prejudice against, or hostility towards, the defendant.
Stamp v. Commonwealth, Ky., 243 S.W. 27 (1922);
White v. Common-
wealth, Ky., 310 S.W.2d 277, 278 (1958).
L.B. has failed to meet her burden of showing that Judge
Fitzgerald was prejudiced to such a degree that he was incapable of
being impartial.
The language attributed to the trial court, when
read in its entirety, belies L.B.'s contention.
Judge Fitzgerald,
in fact, admonished the Cabinet to "provid[e] the mother due
3
process to give her [a] full opportunity to achieve reunification."
In view of this, we find nothing in the record impugning the trial
judge's impartiality and indicating that his decision not to recuse
himself was clearly erroneous.
Judge Fitzgerald was in the best
position
questions
to
determine
whether
raised
regarding
his
impartiality were reasonable. We see no reason to second-guess his
decision.
Jacobs v. Commonwealth, Ky. App. 947 S.W.2d 416 (1997).2
L.B. argues that the trial court erred in terminating her
parental rights due to insufficiency of the evidence. The parental
rights termination statute, KRS 625.090, provides, in pertinent
part, that:
The circuit court may involuntarily terminate all
parental rights of a parent of a named child, if
the circuit court finds from the pleadings and by
clear and convincing evidence that the child has
been adjudged to be an abused or neglected child by
a court of competent jurisdiction or is found to be
an abused or neglected child by the circuit court
in this proceeding and that termination would be in
the best interest of the child. No termination of
parental rights shall be ordered unless the circuit
court also finds by clear and convincing evidence
2
L.B. could have sought disqualification of the trial
judge pursuant to Ky. Rev. Stat. (KRS) 26A.020, but did not.
This statute provides a separate and distinct opportunity to a
party who believes he or she will not receive a fair and impartial trial. Nichols v. Commonwealth, Ky., 839 S.W.2d 263 (1992).
L.B.'s failure to pursue this opportunity does not, however,
affect our review on appeal.
4
the existence of one (1) or more of the following
grounds:
. . . . .
(c)
That the parent has continuously or repeatedly
inflicted
or
allowed
to
be
inflicted
upon
the
child, by other than accidental means, physical
injury or emotional harm;
(d)
That the parent, for a period of not less than
six
(6)
months,
has
continuously
or
repeatedly
failed or refused to provide or has been substantially incapable of providing essential parental
care and protection for the child and that there is
no reasonable expectation of improvement in parental care and protection, considering the age of the
child;
. . . . .; or
(f)
That the parent, for reasons other than pov-
erty alone, has continuously or repeatedly failed
to provide or is incapable of providing essential
food, clothing, shelter, medical care or education
reasonably necessary and available for the child's
well-being and that there is no reasonable expectation of significant improvement in the parent's
conduct
in
the
immediately
foreseeable
considering the age of the child.
5
future,
In summary, the statute requires a finding, supported by
clear and convincing evidence, (1) that the child is an abused or
neglected child;3
(2) that the termination would be in the best
interest of the child; and (3) that one or more of the factors set
out in subsection (1)(a)-(f) are present. In its order terminating
parental rights, the trial court found that T.E.M. was an abused
and neglected child and made additional findings, based on clear
and convincing evidence, supporting this conclusion. The record is
replete with evidence of incidents in which L.B. had physically
abused T.E.M.
In April 1991, L.B. hit T.E.M. across his back and
legs with a metal fly swatter handle.
L.B. admitted that on this
occasion she lost control while disciplining T.E.M. and administered the swats hard enough to cause discoloration.
In December
1991 a social worker observed T.E.M. with blood encrusted about his
nostrils and abrasions near his right eye and left cheek.
T.E.M.
reported that L.B. had kicked him in the nose; L.B. stated that she
had hit T.E.M. on the left side of his face with her hand causing
the child to fall against a bed and injuring the right side of his
face near the eye.
Following this incident, L.B. signed an agreed
3
KRS 600.020(1) defines "abused or neglected child" as:
"a child whose health or welfare is harmed or threatened with
harm when his parent, guardian or other person exercising custodial control or supervision of the child: inflicts or allows to
be inflicted upon the child physical or emotional injury by other
than accidental means; creates or allows to be created a risk of
physical or emotional injury to the child by other than accidental means;...does not provide the child with adequate care,
supervision, food, clothing, shelter and education or medical
care necessary for the child's well-being."
6
order that she would refrain from any further corporal punishment
of T.E.M.
However, in February 1994, a social worker observed
bruising, swelling, redness and a cut around T.E.M.'s left eye.
T.E.M. reported that L.B. had hit him in the eye; L.B. admitted
that she had done this.
L.B. also admitted that in September 1995
she grabbed T.E.M.'s face and caused bruises to the left side of
his face.
As a result of this incident, L.B. pled guilty to
fourth-degree assault.
T.E.M. reported that on another occasion
his mother hit him with a hair brush causing a small knot on his
head.
The trial court has considerable discretion in determining whether the child fits within the abused or neglected category
and whether the abuse or neglect warrants termination.
Department
for Human Resources v. Moore, Ky. App., 552 S.W.2d 672, 675 (1977).
This Court's standard of review in a termination of parental rights
action is confined to the clearly erroneous standard in Ky. R. Civ.
Proc. (CR) 52.01 based upon clear and convincing evidence, and the
findings of the trial court will not be disturbed unless there
exists no substantial evidence in the record to support them.
V.
S. v. Commonwealth, Cabinet for Human Resources, Ky. App., 706
S.W.2d 420, 424 (1986).
"Clear and convincing proof does not
necessarily mean uncontradicted proof.
It is sufficient if there
is proof of a probative and substantial nature carrying the weight
of
evidence
people."
sufficient
to
convince
ordinarily
prudent-minded
Rowland v. Holt, Ky., 70 S.W.2d 5, 9 (1934).
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The record
contains substantial evidence to support the findings of the trial
court that T.E.M. is an abused or neglected child.
The numerous
instances of physical abuse convince us that the trial court did
not clearly err when it determined that T.E.M. was an abused or
neglected child.
The second prong of KRS 625.090 requires a determination
that the termination of parental rights would be in the best
interest of the child.
In determining the best interest of the
child and the existence of a ground for termination, the circuit
court
is
required
to
consider
the
factors
set
forth
in
625.090(2):
(a) Emotional illness, mental illness or mental
deficiency of the parent as certified by a qualified mental health professional, which renders the
parent consistently unable to care for the immediate and ongoing physical or psychological needs of
the child for extended periods of time;
(b) Acts of abuse or neglect toward any child in
the family;
(c) If the child has been placed with the cabinet
or a child-placing agency or child-caring facility,
whether the cabinet has rendered or attempted to
render all reasonable services to the parent which
reasonably
reunion
might
of
testimony
the
be
expected
family,
concerning
bring
including
such
8
to
services
the
and
about
a
parent's
whether
KRS
additional services would be likely to bring about
lasting parental adjustment enabling a return of
the child to the parent within a reasonable period
of time, considering the age of the child;
(d) The efforts and adjustments the parent has made
in his circumstances, conduct or conditions to make
it in the child's best interest to return him to
his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional and mental health of
the child and the prospects for the improvement of
the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable
portion of substitute physical care and maintenance
if financially able to do so.
The
findings
of
the
trial
court,
if
supported
by
sufficient evidence, cannot be set aside unless they are found to
be "clearly erroneous."
CR 52.01; Stafford v. Stafford, Ky. App.,
618 S.W.2d 578 (1981). This principle recognizes that the trial
court alone had the opportunity to judge the witnesses' credibility.
Without the rule, actions would be tried anew upon appeal.
Id. at 579.
The trial court did not err in its determination that
it was in the child's best interest that L.B.'s parental rights be
terminated.
testing
has
In addition to the physical abuse previously detailed
shown
L.B.
to
be
9
an
intellectually
compromised
individual.
Her I.Q. scores place her in the mid-range of mild
mental retardation.
As a result, L.B. has not benefited from
parenting classes and social services counseling.
L.B.
has
been
consistently
unable
to
care
for
In addition,
the
immediate
behavior management and emotional needs of the child for a period
of time in excess of two years.
While L.B. obviously disagrees
with the trial court's findings, when the evidence is conflicting,
we cannot and will not substitute our judgment for that of the
trial court.
Wells v. Wells, Ky., 412 S.W.2d 568, 571 (1967).
The final prong of KRS 625.090 requires a finding by
clear and convincing evidence of one of the factors set forth in
KRS 625.090(1)(a)(f).
In this case, the trial court specifically
found that the grounds set forth in (c), (d) and (f) are present.
There
is
substantial
evidence
to
support
the
trial
court's
determination. The Cabinet has met its burden to establish grounds
for termination by of clear and convincing evidence as required by
KRS 625.090.
Santosky v. Kramer, 455 U.S. 745 (1982); O. B. C. and
F. D. C. v. Cabinet for Human Resources, Ky. App.,
705 S.W.2d 954
(1986); and V. S. and H. S. v. Commonwealth Cabinet for Human
Resources, Ky. App.,
706 S.W.2d 420 (1986).
Finally, the Cabinet alleges that the notice of appeal
filed by L.B. was defective and did not transfer jurisdiction of an
indispensable party to this Court.
It argues that this defect
requires dismissal of the appeal.
True enough, a child is an
indispensable party to an appeal concerning the termination of his
or her parents' parental rights, and the failure to name that child
10
as a party to such an appeal is grounds for dismissal of the
appeal. R. L. W. v. Cabinet for Human Resources, Ky. App.,
S.W.2d 148 (1988).
756
See also City of Devondale v. Stallings, Ky.,
795 S.W.2d 954 (1990).
The instant proceeding, however, involves
a situation which is distinguishable.
As in R. L. W., and Stallings, supra, the child was not
listed as a party in the body of the notice of appeal.
However,
unlike the situations in R. L. W. and Stallings, the child was
named in the caption of the notice of appeal as being the child "in
the interest of" whom the appeal was filed. Moreover, the notice
was served on the child's guardian ad litem.
notice of appeal was poorly drafted.
Obviously, L.B.'s
Nevertheless, Blackburn v.
Blackburn, Ky., 810 S.W.2d 55 (1991), relaxed the standards for
compliance with the requirements of CR 73.03, and so we are
compelled to conclude that the inclusion of the child's name in the
caption of the notice of appeal was sufficient to confer upon us
jurisdiction over the child, to provide the parties with fair
notice of the appeal, and to identify the parties thereto.
The judgment is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
Robert J. Stauble
Louisville, Kentucky
Kathleen L. Patterson
Frankfort, Kentucky
12
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