SCOTCH POLICK v. COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN; AND A.P., AN INFANT
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RENDERED:
SEPTEMBER 5, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000746-MR
SCOTCH POLICK
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 01-AD-00026
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN;
AND A.P., AN INFANT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Scotch Polick (Scotch) appeals from the
Campbell Circuit Court’s order terminating his parental rights
in his infant daughter and order of judgment vesting the Cabinet
for Families and Children (Cabinet) with the infant daughter’s
full care, custody and control.
On appeal, Scotch argues that
there was not sufficient evidence to prove under KRS 600.020
that he neglected his daughter, thus subjecting him to
involuntary termination of his parental rights under KRS
625.090.
Finding no error, we affirm.
Crystal Rose Qualls (Crystal), then 16 years old, gave
birth to A.P on July 6, 1999, in Campbell County, Kentucky.
Scotch is A.P.’s natural father, and he was 19 years old when
A.P. was born.
After A.P.’s birth, Crystal, Scotch and A.P.
resided with Crystal’s mother, although Crystal’s father had
legal custody of Crystal after her parents’ divorce.
The Cabinet became involved with Crystal and Scotch
soon after A.P.’s birth because, when asked, neither Crystal nor
Scotch could remember the last time anyone had changed or fed
A.P., nor could the couple remember how much or how often she
should be fed.
As a result, the Cabinet brought services into
the home to assist Crystal and Scotch and developed a case plan
for the couple to follow.
Part of the plan required Crystal and
Scotch to attend parenting classes.
At one point, the social
worker assisting the couple recommended that Scotch should not
be left alone with A.P.
Moreover, Scotch was to leave the room
if he was with A.P., and he started hearing voices.
More of
Scotch’s psychological profile will be developed later in this
opinion.
At the beginning of November of 1999, Crystal moved
from her mother’s home to her father’s home.
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Crystal’s father
did not permit Scotch to move in with Crystal.
Scotch and
Crystal’s father argued frequently.
On November 9, 1999, Crystal ran away with Scotch and
took A.P., age 4 months, with her.
According to Crystal’s
father, who reported Crystal missing, the couple did not take
any supplies for A.P., including food, diapers or clothing.
Eight days later, Crystal showed up at her mother’s house with
A.P.
After this incident, the Cabinet asked the Campbell
District Court for temporary custody of A.P. to keep her safe,
which the court granted.
The Cabinet placed A.P. in foster care and continued
to work with Crystal and Scotch in developing a case plan to
reunite them with their daughter.
Specifically, as of December
6, 1999, Scotch was to (1) attend parenting classes (preferably
with Crystal); (2) get a psychological/parenting assessment; (3)
get a CD assessment; (4) work with a resource mom; (5) work with
the family preservation program; (6) obtain stable housing; (7)
attend counseling; and (8) get a steady job and create a budget.
In addition, the Campbell District Court later ordered Scotch to
pay monthly child support of $120.
Scotch made little or no
effort to comply with the case plan.
Crystal and Scotch ran away again in early January of
2000 and remained on the run for at least a couple of weeks,
during which time they failed to visit A.P. and failed to attend
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her doctor’s appointments.
They also did not attend a
disposition hearing regarding A.P.
As a result of running away with Crystal, the Campbell
County Grand Jury charged Scotch with custodial interference.
Scotch pleaded guilty to the charge on March 2, 2000.
The court
sentenced him to confinement in the Campbell County Detention
Center and further ordered him to have no contact with Crystal
or her family.
At the time that Scotch pleaded guilty to custodial
interference, there were already charges against him in Campbell
Circuit Court for second degree burglary stemming from his
actions on August 28, 1999.
Scotch initially entered a plea of
not guilty; however, he changed his plea to guilty on March 16,
2000, and received a sentence of five years in prison.
Scotch
was to remain in the Campbell County Detention Center for the
remainder of his six month sentence on the custodial
interference charges, and then he was to be committed to the
Kentucky Department of Corrections.
On April 20, 2000, while on work release, Scotch
escaped from the Campbell County Detention Center, and the
Campbell County Grand Jury charged him with second degree
escape.
Scotch pleaded guilty to this charge, and the court
sentenced him to 18 months in prison, to be served consecutively
with his second degree burglary charge.
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Prior to his arrest for custodial interference, in
August of 1999, Scotch sought treatment at a community care
center for having staring spells when he started to get the
shakes and hearing voices that sometimes told him to hurt
himself.
The nurse who conducted the initial interview with
Scotch noted that Scotch came from an abusive childhood with
alcoholic parents and that he was apparently of limited
intellectual ability.
His preliminary diagnoses were psychotic
disorder not otherwise specified, provisional; alcohol abuse, in
remission; and, with later treatment, the community care center
was to rule out mood disorder.
They scheduled a couple of
follow-up appointments with Scotch, but Scotch failed to keep
the scheduled appointments.
While incarcerated, Scotch underwent a psychiatric
evaluation.
Upon completing this evaluation, the initial
diagnostic impression was depressive disorder not otherwise
specified; history of alcohol abuse; and personality disorder
not otherwise specified.
On June 26, 2001, the Cabinet filed a petition for
involuntary termination of parental rights against Crystal and
Scotch.
The trial court appointed a guardian ad litem to
represent Scotch.
2002.
The case proceeded to trial on January 22,
Scotch testified at trial.
After the trial on March 26,
2002, the trial court issued its findings of fact and
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conclusions of law.
Specifically and without repeating those
facts set out above, based upon the clear and convincing
evidence presented by the Cabinet at trial, the trial court
found and concluded as follows:
(1)
A.P. has been in foster care since November 24,
1999.
(2)
On January 26, 2000, the Campbell District Court
committed A.P. to the Cabinet.
(3)
A.P. is an abused and neglected child.
(4)
Crystal and Scotch failed to protect and preserve
A.P.’s fundamental right to a safe and nurturing
home.
(5)
Crystal and Scotch, for a period of not less than
six months, continuously or repeatedly failed or
refused to provide or were substantially
incapable of providing essential parental care
and protection for A.P.
(6)
There is no reasonable expectation of improvement
in parental care and protection of A.P.
considering her age.
(7)
Crystal and Scotch, for reasons other than
poverty alone, have continuously or repeatedly
failed or refused to provide or are incapable of
providing essential food, clothing, shelter,
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medical care or education reasonably necessary
for A.P.’s well-being.
Moreover, there is no
reasonable expectation of significant improvement
in the parents’ conduct in the immediately
foreseeable future, considering the age of the
child.
(8)
A.P. has been in foster care under the
responsibility of the Cabinet for fifteen of the
most recent twenty-two months preceding the
filing of the petition to terminate parental
rights.
(9)
Scotch has adopted a criminal lifestyle, which
has resulted in his repeated and current
incarceration.
(10) Prior to his incarceration, Scotch failed to pay
his child support as ordered by the court.
(11) The Campbell District Court entered an order on
June 13, 2001 waiving reasonable efforts to
reunite A.P. to Scotch.
(12) Scotch has been consistently unable to care for
the immediate and ongoing physical or
psychological needs of his child because of
emotional illness, mental illness, mental
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deficiency and the condition has been diagnosed
by a qualified medical health professional.
(13) The Cabinet has attempted to render services to
the family since July 1999 in an effort to keep
the family together, including working with the
family while A.P. was placed in foster care.
(14) A.P. has made substantial improvements while in
foster care and is expected to make more
improvements upon termination of parental rights.
(15) Termination of parental rights is in A.P.’s best
interest, and the Cabinet has facilities
available to accept the care, custody and control
of her and is the agency best qualified to
receive custody.
Based on the findings and conclusions listed above,
the trial court terminated both Scotch and Crystal’s parental
rights.
Moreover, the trial court ordered and adjudged that the
full care, custody and control of A.P. be vested in the Cabinet
with authority to place her for adoption and that A.P. shall be
and hereby is made a ward of the state of Kentucky.
Scotch
appeals the trial court’s order involuntarily terminating his
parental rights.
Crystal did not appeal.
In his one-page brief, Scotch attacks the sufficiency
of evidence before the trial court upon which the termination of
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parental rights would be proper.
Notwithstanding the fact that
Scotch did not properly preserve his argument for our review
because he failed to raise it at the trial court level, even if
we now consider his argument on the merits, the record refutes
his position.
See Barnard v. Stone, Ky., 933 S.W.2d 394, 396
(1996) (holding that question not raised at the trial court
level was not properly preserved for appellate review).
“The standard of proof before the trial court
necessary for the termination of parental rights is clear and
convincing evidence."
V.S. v. Com., Cabinet for Human
Resources, Ky. App., 706 S.W.2d 420, 423 (1986).
“This court’s
appellate function is confined to the ‘clearly erroneous’ review
of the trial court’s findings of fact based upon clear and
convincing evidence, pursuant to CR 52.01.”
Id. at 424.
“[F]indings of fact are clearly erroneous only if there exists
no substantial evidence in the record to support them.”
Id.
Statutorily, under KRS 625.090, “[t]he 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:” (1) the child is an
abused or neglected child, as defined in KRS 600.020(1), and (2)
termination would be in the best interest of the child.
Under KRS 600.020(1), an
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“[a]bused or neglected child" means 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:
. . .
(d) Continuously or repeatedly fails or refuses
to provide essential parental care and protection
for the child, considering the age of the child;
. . .
(h) Does not provide the child with adequate
care, supervision, food, clothing, shelter, and
education or medical care necessary for the
child's well-being . . . or
(i) Fails to make sufficient progress toward
identified goals as set forth in the courtapproved case plan to allow for the safe return
of the child to the parent that results in the
child remaining committed to the cabinet and
remaining in foster care for fifteen (15) of the
most recent twenty-two (22) months[.]
Under KRS 625.090(2), however, a court shall not order
termination of parental rights unless it also finds by clear and
convincing evidence the existence of one or more of a number of
enumerated grounds including, in relevant part, a finding
(e) 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;
. . .
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(g) That the parent, for reasons other than
poverty 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 future, considering the age of the
child;
. . .
(j) That the child has been 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 to terminate
parental rights.
KRS 625.090(3) specifies those factors that a court
shall consider in determining the best interest of the child and
the existence of a ground for termination.
Such factors are as
follows:
(a) Mental illness as defined by KRS 202A.011(9),
or mental retardation as defined by KRS
202B.010(9) 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;
. . .
(c) If the child has been placed with the
cabinet, whether the cabinet has, prior to the
filing of the petition made reasonable efforts as
defined in KRS 620.020 to reunite the child with
the parents unless one or more of the
circumstances enumerated in KRS 610.127 for not
requiring reasonable efforts have been
substantiated in a written finding by the
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District Court;
(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.
In this case, concerning the facts of abuse and
neglect presented to the trial court, we conclude the proof is
substantial; therefore, it is not clearly erroneous.
On the
issue of abuse and neglect, the Cabinet presented proof that
Scotch repeatedly failed to provide adequate care, supervision,
food, clothing, shelter, and education or medical care necessary
for A.P.’s well-being.
Specifically, when A.P. was only weeks
old, Scotch could not remember how much he was supposed to feed
her and how often.
There is no record of Scotch ever holding a
job or providing a home for A.P.
Moreover, after the Cabinet
became involved, they recommended that Scotch not be left alone
with A.P. because he heard voices telling him to hurt himself.
When A.P. was only a couple of months old, Scotch
turned to criminal activity.
In rapid succession, he
burglarized someone’s home, ran away with Crystal while her
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father had legal custody of her, and then escaped from the
detention center.
While incarceration alone is insufficient to
terminate parental rights, see M.P.S. v. Cabinet for Human
Resources, Ky. App., 979 S.W.2d 114, 117 (1998), the record as a
whole supports the conclusion that Scotch simply did not provide
for A.P.’s well-being and failed to follow any directives of the
Cabinet and the courts that were formulated to prevent
involuntary termination of his parental rights.
The Cabinet
told Scotch over and over again what he needed to do to keep his
daughter, and over and over again, he failed to comply.
The Cabinet also presented substantial evidence to
support the trial court’s conclusion that termination of
Scotch’s parental rights would be in A.P.’s best interest.
Specifically, a qualified health professional diagnosed Scotch
as having a mental illness.
Scotch made no effort in his
conduct or circumstances to make it in A.P.’s best interest to
return to him.
Despite Scotch’s assertion that he wishes to
keep his daughter, his actions show a consistent pattern of
superficially beginning to comply with case treatment plans and
failing to follow through.
Moreover, the Cabinet presented substantial evidence
that A.P.’s physical and emotional health improved when she was
no longer in Crystal and Scotch’s care.
At age four months,
when the Cabinet removed A.P., she had a misshapen head due to
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being placed in one position all the time, and she had urinary
reflux disease, which required medication over a six-month
period to treat.
In addition, when the Cabinet first took
custody of A.P., her care providers felt that she was distant
and unresponsive.
Her emotional well-being also improved in
foster care.
Because the Cabinet presented clear and convincing
evidence that A.P. was an abused or neglected child and that it
would be in her best interest to terminate Scotch Polick’s
parental rights, we affirm the trial court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Scotch Polick, Pro se
Dayton, Kentucky
Cynthia Kloeker
Covington, Kentucky
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