W. (J. R.) VS. C. (E. W.)
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RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002447-ME
J.R.W.
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE MARGARET HUDDLESTON, JUDGE
ACTION NO. 07-AD-00010
E.W.C.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL, MOORE, AND STUMBO, JUDGES.
NICKELL, JUDGE: J.R.W. (hereinafter Mother) appeals the judgment of the
Warren Circuit Court terminating her parental rights. After reviewing the record in
its entirety, we affirm.
Mother and E.W.C. (hereinafter Father), respectively, are the
biological mother and father of two minor daughters. When their marriage
dissolved, they agreed to share joint custody of the girls with equal timesharing.
Both Mother and Father have since remarried. In September 2005, Father was
granted emergency custody of the girls. Mother’s last contact with them was a
telephone call in January of 2006. Since that time she has provided no support of
any kind to the girls.
Mother is an admitted alcoholic who has participated in various
sobriety treatment programs without success. She is an educated woman, having
earned both a bachelor’s degree and a master’s degree from Western Kentucky
University in social work. At one point she was a member of the permanency team
for the Cabinet for Health and Family Services (“Cabinet”) working with
dependent, abused and neglected children. In 2005 she began a downward spiral
resulting in her arrest for driving under the influence on January 24, 2006, her
arrest for other crimes in February of 2006, and her hospitalization on at least two
occasions for excessive drinking. One of her hospital stays was termed a suicide
attempt by Dr. Bruce Fane (“Dr. Fane”), a licensed psychologist who evaluated
Mother at the request of the Cabinet. Since abandoning her Bowling Green,
Kentucky, home and losing it to foreclosure, Mother has been living in South
Carolina. As of August 30, 2007, she was residing with another alcoholic and
anticipated beginning another 28-day treatment program the next week.
In March of 2007, Father petitioned the court to involuntarily
terminate Mother’s parental rights to both girls. On April 26, 2007, the court
issued an order saying KRS1 625.060 required both the Cabinet and the children to
1
Kentucky Revised Statutes.
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be joined as parties. On May 3, 2007, with the court’s permission, Father filed an
amended petition for involuntary termination of parental rights listing both the
children and the Cabinet as parties.
On April 26, 2007, Mother filed a verified response to the petition
saying she had successfully completed drug and alcohol rehabilitation and was
now healthy. She denied abandoning the children and explained her lack of
contact with them since January 2005 was in their best interest while she was
getting sober.
Father filed a trial memo in which he acknowledged having sole
custody of the children. In support of termination, he stated: while the girls were
in Mother’s custody she drank until incapacitated; she drank within a couple days
of leaving the Lighthouse treatment facility; and, she acknowledged the statutory
requirements for termination of her parental rights had been satisfied.
A guardian ad litem (GAL) was appointed for the two girls. He
reported the children did not desire contact with Mother and there was no
likelihood Mother would improve. He recommended the court sustain Father’s
petition to terminate Mother’s parental rights.
A lengthy hearing occurred August 30, 2007. Those testifying were
Father and his current wife, Leslie; Mother and her estranged husband Bruce; Dr.
Fane; and, Shameika Frazier, a social services clinician with the Cabinet from
Muhlenberg County who investigated the case since Mother was a Cabinet
employee. Following brief closing arguments by counsel for Father and Mother
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and the GAL, the court issued verbal findings from the bench in which she
terminated Mother’s parental rights and awarded custody of the girls to Father and
his wife, Leslie. On September 10, 2007, the court entered formal findings of fact,
conclusions of law, and the judgment from which we now quote:
FINDINGS OF FACT
1.
The Petitioner, [Father], is the biological father of
the subject children, [N.D.C.], DOB 03-05-90 and
[M.K.C.] DOB 07-14-00.
2.
The Petitioner has sole custody of the minor
children pursuant to previous order of this Court in Civil
Action number 02-CI-00065.
3.
The Petitioner and the children have at all times
resided in Warren County Kentucky, and jurisdiction and
venue is therefore proper in this Court.
4.
The Respondent, [Mother], is the biological
mother of [N.D.C.] and [M.K.C.].
5.
The Petitioner and Respondent were divorced in
the Warren Circuit Court, Civil Action No. 02-CI-00065.
6.
The Respondent, [Mother] has failed to maintain
any contact with the minor children for a period of time
greater than one year.
7.
The Respondent has failed and refused to provide
any monetary support or other parental support
whatsoever for the children for reasons other than
poverty alone for more than six months.
8.
The Respondent has abandoned the children for
more than ninety days.
9.
The Respondent, [Mother], has repeatedly
exhibited a pattern of substance abuse behavior, which is
detrimental to the interests of the children.
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10. While in Respondent’s care, the children have
been exposed to incidents of domestic violence and the
Respondent has been intoxicated to the point of
incapacitation.
11. The Respondent was offered services and failed to
avail herself thereof, and likewise has failed to avail
herself of available court processes to attempt to have
contact with the children.
12. The Respondent has exhibited a settled purpose to
forego her parental duties and is by her own admission
incapable of caring for the children.
13. The Respondent remains in a state of transition or
flux, having last relapsed by her own admission in July
2007.
14. The Respondent made a conscious decision not to
go into rehab immediately after her July relapse, instead
expressing an intention to do so after the trial of this
matter.
15. The Respondent, [Mother], has failed to protect
and preserve [N.D.C.] and [M.K.C.]’s fundamental rights
to a safe and nurturing home. The children are found by
this Court to be neglected by the Respondent within the
meaning of the Kentucky Revised Statutes.
16. There is no reasonable expectation of improvement
in parental care and protection on the part of the
Respondent, [Mother], considering the age of the
children and the length of abandonment.
17. Considering the children’s mental development
and ages, the Court finds they need permanency, which
the stepmother is willing and quite capable of providing
and in fact has been providing.
18. The best interests of the children dictate
termination of Respondent’s parental rights.
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19. The children need to maintain the stability they
have achieved with their father and stepmother, who
should retain custody of the children.
CONCLUSIONS OF LAW
1.
This Court finds that by clear and convincing
evidence that the children are the subject of this action
are neglected by the Respondent, [Mother], as defined in
KRS 600.020(1). Based on the Respondents (sic) failure
to parent the children, termination of the Respondent’s
parental rights is in the children’s best interest. The
children’s health and welfare have been harmed and or
threatened with harm by the Respondent’s engaging in a
pattern of drug and alcohol abuse which has rendered her
incapable of caring for the children’s basic needs.
2.
The Respondent as (sic) dedicated herself to a
lifestyle of addiction to alcohol, which has resulted in her
having no contact with the children for a period in excess
of a year.
3.
The Respondent’s performance as a parent to the
children that are the subject of this action has been
grossly inadequate. For over a year, the children’s food,
clothing, shelter, medical care, and education have been
totally provided and paid for by the Petitioner and
[Leslie].
4.
By clear and convincing evidence, this Court finds
that the Respondent willfully abandoned the children
who are the subject of this action and has made no effort
to contact them or provide for any of their care.
5.
The Respondent has continuously failed and/or
refused to provide the children that are a subject of this
action with adequate parental care, supervision, clothing,
food, shelter, education and medical care necessary for
their well being.
6.
There is no reasonable expectation of improvement
in the Respondent’s conduct in the future.
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7.
It is in the best interest of the children that are the
subject of this action that the Respondent’s parental
rights be terminated.
JUDGMENT DECREEING TERMINATION OF
PARENTAL RIGHTS
It is therefore Ordered and Adjudged as follows:
1.
The parental rights of [Mother] to the minor
children that are the subject of this action are hereby
terminated;
2.
There being no just case (sic) for delay, this is a
final an (sic) appeal able (sic) Order and Judgment.
On September 20, 2007, Mother moved the court to alter, amend or
vacate its prior judgment saying there was a likelihood she could be rehabilitated.
Father responded saying Mother had offered no proof she would improve and
numerous attempts to rehabilitate her had already failed. On October 31, 2007, the
trial court entered an order overruling the motion to alter, amend or vacate because
termination of the biological mother’s parental rights was in the best interests of
the children and the requirements of KRS 625.090 had been satisfied. This appeal
followed attacking both the judgment and the order overruling post-judgment
relief. We affirm.
As a threshold matter we must determine whether the errors alleged
are properly before us for review. CR2 76.12(4)(c)(v) requires a statement at the
beginning of each argument “with reference to the record showing whether the
issue was properly preserved for review and, if so, in what manner.” It is
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Kentucky Rules of Civil Procedure.
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mandatory that an attorney cite to the record where the
claimed assignment of error was properly objected to or
brought to the attention of the trial judge. This
amendment is designed to save the appellate court the
time of canvassing the record in order to determine if the
claimed error was properly preserved for appeal.” Elwell
v. Stone, 799 S.W.2d 46, 47-8 (Ky.App. 1990) (citing 7
Bertelsman and Phillips (sic), Kentucky Practice, CR
76.12(4)(c)(iv) [now (v)], Comment 4 (4th ed. 1989 PP)).
If the required citation is not included in the brief for appellant, the omission may
be cured by providing the citation in the reply brief for appellant. Hollingsworth v.
Hollingsworth, 798 S.W.2d 145, 147 (Ky.App. 1990).
This is another in a long line of recent cases in which the brief for
appellant does not conform to the requirements of CR 76.12(4)(c)(v) as it does not
reveal whether or how either of the two claims argued to this Court were presented
to the trial court. The brief for appellee does not comment on preservation. As a
result of Mother’s noncompliance with the rule, we have the discretion to strike her
brief and summarily affirm the trial court’s judgment. Cornette v. Holiday Inn
Exp., 32 S.W.3d 106, 109 (Ky.App. 2000). We also have the option of reviewing
the complaints, determining whether they were argued to the trial court, and
granting relief only if we are convinced manifest injustice has occurred. Elwell v.
Stone, 799 S.W.2d 46, 48 (Ky.App. 1990), quoting Combs v. Knott County Fiscal
Court, 283 Ky. 456, 141 S.W.2d 859 (Ky. 1940). Because of the seriousness of
terminating parental rights we have chosen not to strike the brief for appellant.
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Mother’s first complaint is the trial court failed to explain why it
found Mother had not demonstrated a reasonable expectation her conduct would
significantly improve in the immediately foreseeable future. CR 52.04 directs:
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 a
written request for a finding on that issue or by a motion
pursuant to Rule 52.02.
After combing the record, we find no request for a specific finding on any issue.
While the motion to alter, amend or vacate filed on Mother’s behalf says, “the
Respondent states that there is a reasonable likelihood that she can be rehabilitated
and be restored to a good and caring mother like she was during the marriage and
initially after the divorce,” it does not provide any support for the statement and it
does not ask the court to explain why it reached a contrary conclusion. Mother
may disagree with the trial court’s decision, but she has not demonstrated it to be
clearly erroneous as required for reversal under CR 52.01. M.P.S. v. Cabinet for
Human Resources, 979 S.W.2d 114, 116-7 (Ky.App. 1998). Thus, we affirm the
judgment.
Mother’s second complaint is the trial court failed to require the
Cabinet to enter an appearance and participate in the proceedings. Father counters
by noting there was no reason for the Cabinet’s involvement because the children
were never in the Cabinet’s care. Furthermore, the Cabinet was added as a party at
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the insistence of the trial court and a Cabinet employee, Shameika Frazier, testified
at the August 30, 2007.
We have scoured the record and have located no mention of this
alleged error during the trial court proceedings. As a reviewing Court, our
consideration is limited to arguments raised in the trial court. Lawrence v. Risen,
598 S.W.2d 474, 476 (Ky.App. 1980). Since the issue was not called to the trial
court’s attention and the trial court was not given an opportunity to rule upon it, we
will not consider it for the first time on appeal.
For the foregoing reasons, the judgment of the Warren Circuit Court
terminating Mother’s parental rights and the order overruling a subsequent motion
to alter, amend or vacate that judgment are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven O. Thornton
Bowling Green, Kentucky
Wesley V. Milliken
Bowling Green, Kentucky
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