LATRIS JONES v. HON. RICHARD FITZGERALD, Jefferson Family Court, Division 9; COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN; J.N.J., an
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RENDERED: MAY 18, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003136-MR
LATRIS JONES
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE RICHARD J. FITZGERALD, JUDGE
ACTION NO. 99-FC-005554
v.
HON. RICHARD FITZGERALD, Jefferson Family
Court, Division 9; COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN; J.N.J., an
infant; and K.L.J., an infant
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI, and MILLER, Judges.
COMBS, JUDGE: Latris Jones appeals from the September 20, 1999,
orders of the Jefferson Circuit Court terminating her parental
rights to her children, J.N.J. and K.L.J.
We affirm.
Jones is the natural mother of J.N.J. and K.L.J., both
daughters, born August 7, 1992, and December 20, 1989,
respectively.
The children were initially committed to the care
of the Cabinet for Families and Children on a dependency petition
in February 1993; they remained committed until September 1994.
During that time, Jones’s alcohol addiction prevented her from
being able to care for them.
After regaining custody of her
children, Jones managed to keep her addiction in check for a
period of time.
However, she became romantically involved with a
man who was physically violent with her and who sexually abused
J.N.J.
In 1997, he burned Jones’s house.
That relationship
ended, but Jones had returned to using alcohol and drugs and
exhibited inappropriate parenting behaviors, again necessitating
the Cabinet’s intervention on behalf of the children.
On August 6, 1997, the children were returned to the
custody of the Cabinet.
For more than a year, Cabinet employees
worked with Jones in an effort to facilitate reunification of the
family.
In March 1999, however, the agency’s goal changed to
that of adoption for the children as it became apparent that
Jones could not sustain sobriety in order to care for them.
A
petition for involuntary termination of her parental rights was
filed on April 20, 1999, alleging:
that J.N.J. and K.L.J. were
“abused and neglected” as defined by KRS 600.020; that it was in
their best interest for Jones’s parental rights to be terminated;
that Jones had “continuously or repeatedly failed to provide”
essentials for them; that there was “no reasonable expectation or
significant improvement” in her conduct in the “immediately
foreseeable future”; that she had “failed to consistently
implement appropriate parenting techniques and follow treatment
for her drug abuse problems”; that the children had been in
foster care for fifteen (15) of the most recent twenty-two (22)
months; and that the Cabinet had “provided all reasonable and
available services to promote a successful reunification.”
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After a hearing, the trial court entered orders
terminating Jones’s parental rights with respect to each child.
The trial court’s findings were extensive and reflected upon her
struggle with substance addiction -- alcohol and cocaine -- and
her inability to maintain sobriety.
It specifically found that
Jones:
has not successfully addressed sobriety, drug
rehabilitation and relapse prevention. There
had not been significant improvements in the
mother’s lifestyle which would improve the
prospect of these children who have been [in]
foster care since the date of their
commitment within a reasonable period of
time.
. . . [Jones] was clearly told in the
juvenile proceedings the expectation of her
to be clean and sober and to cooperate. She
was required to complete an intensive outpatient program at J.A.D.A.C.1 and comply
with their recommendations. Being clean and
sober was clearly spelled out as no alcohol,
no cocaine, no marijuana or unprescribed
medication.
. . .
By her continued use of controlled
substance[s] she has failed to protect and
preserve the children’s right to a safe and
nurturing home. The children have been
neglected both by her originally leaving the
children with various caretakers without
prearrangement as well as her failure to
achieve reunification through sobriety.
. . .
Based on her history of failed
treatments, there is not a reasonable
expectation of significant improvement in her
conduct in the immediately foreseeable future
considering the ages of the children.
The trial court also found that it was in the best interest of
the children that they become free to be adopted.
1
Jefferson Alcohol and Drug Abuse Center.
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In this appeal, Jones argues that her due process
rights were violated and that reversible error occurred because
of the failure of the trial court to conduct a hearing within the
sixty-day time period mandated by KRS 625.080(5).
While so
contending, however, Jones has failed to comply with Kentucky
Rule of Civil Procedure (CR) 76.12(4)(c)(iv), which requires a
statement at the beginning of each argument containing “reference
to the record showing whether the issue was properly preserved
for review and, if so, in what manner.”
Our review of the record
reveals that Jones never complained about the date set for the
hearing on the Cabinet’s petition — nor did she raise the issue
of the non-compliance with KRS 625.080(5) before the trial court
in any manner.
As the Supreme Court held in Skaggs v. Assad, By
and Through Assad, Ky., 712 S.W.2d 947, 950 (1986), in order “to
be considered for appellate review [error] must be precisely
preserved and identified in the lower court.”
This court “is
without authority to review issues not raised in or decided by
the trial court."
Regional Jail Authority v. Tackett, Ky., 770
S.W.2d 225, 228 (1989); see also, Commonwealth v. Phillips, Ky.,
15 S.W.3d 376, 379-380 (2000).
Because of the gravity of the violation alleged, we
have reviewed this issue despite the preservation problem and
have found no error.
We agree with the Commonwealth that Jones
waived the sixty-day time period when her attorney acquiesced to
a hearing beyond the prescribed period.
Jones argues that waiver
cannot be presumed or inferred merely because of her silence,
urging that it was the Cabinet’s burden to comply with the
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pertinent time limits.
She relies on Roberson v. Commonwealth,
Ky., 913 S.W.2d 310 (1994), a case concerning the issue of a
criminal defendant’s waiver of the time limits contained in the
Interstate Agreement on Detainers:
[a]s long as [the prisoner] did not
affirmatively request the court to follow a
procedure inconsistent with the IAD, it was
not necessary that he demand the court comply
with the IAD, since, as stated previously,
the burden of complying with the IAD is on
the Commonwealth.
Id. at 315.
Roberson, however, has been superseded and pre-empted
more recently in New York v. Hill, 528 U.S. 100, 110, 120 S.Ct.
659, 145 L.Ed.2d 560 (2000), in which the United States Supreme
Court has re-visited the waiver issue.
In that case, the Court
held that defense counsel could be deemed to have effectively
waived a defendant’s right to be brought to trial within the time
periods specified under the IAD by agreeing to a trial date
outside the time period.
The Supreme Court found that scheduling
matters are generally within the control of counsel and that
requiring a defendant’s express consent for scheduling
determinations would serve no apparent purpose.
Id.
Thus, Jones
is deemed to have waived her statutory right to have the
termination proceedings conducted within the time prescribed by
KRS 625.080.
Next, Jones contends that the trial court erred in
retroactively applying KRS 625.090(2)(j), as amended effective
March 17, 1998, which provides an additional justification for
termination of parental rights where the child “has been placed
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in foster care under the responsibility of the Cabinet for
fifteen (15) of the most recent twenty-two (22) months preceding
the filing of the petition.”
At the time the petition was filed
in April 1999, this statute had been in effect for more than a
year.
Nonetheless, Jones insists that the trial court’s use of
this provision amounted to improper retroactive application of
the statute resulting in a violation of her due process
protections.
She reasons that although her children were in
foster care for fifteen months, the first three months of this
period of time occurred before the statute’s effective date.
Once again, Jones has not cited to the record to
indicate where this issue was preserved for review.
Our review
of the record reveals that the issue was neither raised in nor
considered by the trial court and thus is not properly before us
for review.
Although Jones was put on notice by the allegations
contained in the petition that the Cabinet intended to proceed
under KRS Chapter 625, et. seq., as amended in 1998, and
specifically, KRS 625.090(2)(j), she lodged no objections.
record is devoid of any complaint in this regard.
be found — has thus been waived.
The
Error — if any
Additionally, since the trial
court based its decision to terminate Jones’s parental rights on
several other statutory factors, any arguable error in its
application of KRS 625.090(2)(j) was rendered harmless.
Jones next argues that the evidence fails to support
several of the trial court’s findings of fact.
M.P.S. v. Cabinet
for Human Resources, Ky.App., 979 S.W.2d 114, 116 (1998) has
defined our standard of review as being:
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confined to the clearly erroneous standard in
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
its findings.
See also V.S. v. Commonwealth, Cabinet for Human Resources,
Ky.App., 706 S.W.2d 420, 424 (1986).
taped recording of the hearing.
We have reviewed the video-
With one minor exception, we
find no merit to Jones’s argument that the evidence is
insufficient to support the trial court’s findings.
On the
contrary, we believe that there is abundant evidence to support
the trial court’s findings — particularly with respect to Jones’s
Jones inabilityutorovercomecheroaddictionatocdrugssandnalcohol.ncerning
s partic la ly criti al f the tri l ourt’ fi dings co
two of the criteria for termination in KRS 625.090(2)(e): (1)
that she is “incapable of providing essential parental care” and
(2) that there is “no reasonable expectation of improvement in
parental care and protection.”
She contends that the finding
that she was not clean and sober is clearly erroneous and points
to her testimony that she completed a substance abuse program
through the Wayside Christian Mission.
She also states that
“[i]n light of the uncontroverted testimony regarding [her]
recovery, the Trial Court’s finding of no reasonable expectation
of improvement is clearly erroneous.”
Jones asserts that uncontroverted evidence established
that she was no longer abusing drugs and alcohol.
record reveals otherwise.
However, the
Velva Poole, the social worker
responsible for Jones’s case, testified that one of the reasons
that the Cabinet’s goals changed from reunification to adoption
was Jones’s repeated failure to have drug screenings performed as
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well as her failure to complete the drug program at J.A.D.A.C.
Although Jones testified that she was clean and sober, she did
admit that during the pendency of this case and just days before
the birth of another child on May 28, 1999, she had used both
alcohol and cocaine — and that her new born child tested positive
for cocaine.
She also admitted to buying, packaging, and selling
cocaine in order to earn money.
The evidence demonstrated that
although Jones has been clean and sober for various periods of
time, she has been unable to exhibit the consistency necessary to
provide and maintain a safe and secure environment for her
children.
Jones also disputes the trial court’s finding with
respect to KRS 625.090(f), contained in both orders of
termination, that she “has caused or allowed the child to be
sexually abused or exploited.”
However, evidence was presented
that K.L.J. was sexually molested by Jones’s live-in boyfriend;
we agree that evidence was more than sufficient to support the
trial court’s finding.
However, there was no evidence that
J.N.J. had suffered any sexual abuse; thus, we agree that the
finding in the order pertaining to her is erroneous.
However, we
do not find that this mistake rises to the level of reversible
error since other adequate statutory grounds were relied upon and
were articulated by the trial court in terminating Jones’s
parental rights to J.N.J.
We believe that any error with regard
to J.N.J. is harmless.
Jones last argues that the orders omitted a finding
mandated by KRS 615.100(1), which states in pertinent part:
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If the circuit Court determines that parental
rights are to be terminated involuntarily in
accordance with the provisions of this
chapter, it shall enter an order that the
termination of parental rights and the
transfer of custody are in the best interest
of the child, and that each petitioner is
fully aware of the purpose of the proceedings
and the consequences of the provisions of
this chapter.
Jones maintains that there is no finding which “remotely
addresses” her awareness of the purposes of the proceedings or
its consequences.
She urges that this court must, therefore,
vacate the orders of termination.
Jones has not alleged that she
was unaware of the nature of the proceedings or the potential
outcome.
Despite her awareness of the nature of the proceedings,
which is abundantly clear from our review of the record, she
argues that the omission of a finding on this point in the
proceedings below is a fatal flaw.
We agree with the Cabinet that KRS 625.100 is not
implicated in this matter as Jones was not the “petitioner” but
the respondent.
Actions for the involuntary termination of
parental rights can be brought by entities and individuals other
than the Cabinet — including “any child-placing agency licensed
by the cabinet, any county or Commonwealth’s attorney or parent.”
KRS 625.050.
Thus, KRS 625.100(1) is designed to ensure that
those persons seeking to obtain the involuntary termination of
another’s parental rights are aware of the serious and
irrevocable nature of such an action.
Although the trial court was not required to make such
a finding as to Jones, she again has waived the error she alleges
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by virtue of her failure to comply with CR 52.04, which provides
that:
a final judgment shall not be reversed or
remanded because of the failure of the trial
court to make a finding of fact on an issue
essential to the judgment unless such failure
is brought to the attention of the trial
court by written request for a finding on
that issue or by a motion pursuant to Rule
52.02.
Our review of the record reveals that Jones did not request a
specific or additional finding of fact by the trial court
regarding her level of awareness of the purpose for the
proceedings.
Any
deficiency was thus waived.
See Cherry v.
Cherry, Ky., 634 S.W.2d 423, 425 (1982).
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
COMMONWEALTH OF KENTUCKY
CABINET FOR FAMILIES AND
CHILDREN:
John H. Helmers, Jr.
Rebecca L. Adams
Louisville, KY
Robert L. Bell, Sr.
Louisville, KY
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