Opinion
2021-CA-1384-ME 2021-CA-1385-ME
05-06-2022
A.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; AND I.R.G., A MINOR CHILD APPELLEES AND A.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; AND J.M. H., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Amy Rollins Craft BRIEF FOR APPELLEE: Dilissa G. Milburn
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 21-AD-00005, 21-AD-00006
BRIEFS FOR APPELLANT: Amy Rollins Craft
BRIEF FOR APPELLEE: Dilissa G. Milburn
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND GOODWINE, JUDGES.
OPINION
GOODWINE, JUDGE
A.C. ("Mother") appeals the October 21, 2021 findings of fact, conclusions of law, and judgments of the Greenup Circuit Court, Family Division, involuntarily terminating her parental rights to her minor children, I.R.G. and J.M.H. After careful review of the record, we reverse and remand.
BACKGROUND
The children were removed from Mother's care by the Cabinet for Health and Family Services (the "Cabinet") on September 6, 2019. In the underlying dependency, neglect, and abuse ("DNA") cases, Mother stipulated to neglect based on her use of illicit substances. The Cabinet was also concerned about the children's lack of educational stability. Throughout the DNA cases, Mother entered into several case plans with the Cabinet, all of which essentially required her to (1) refrain from illegal drug use and maintain a clean and sober lifestyle; (2) submit to random drug screens at the request of the Cabinet and test negative for all medications and substances for which she does not have a prescription; (3) complete drug treatment; (4) obtain and maintain stable, appropriate housing; (5) be able to provide for the children's basic needs; and (6) refrain from associating with any known drug users or anyone with a history of substance abuse. Record ("R.") at Petitioner's Exhibit 4. On September 30, 2020, the goal of the DNA cases was changed from reunification to adoption.
Citations to the record are to appeal number 2021-CA-1384-ME. Records in the two appeals are nearly identical.
The Cabinet filed the petitions to involuntarily terminate Mother's parental rights on January 25, 2021. At trial on October 12, 2021, the court heard testimony from Stacia Moreland, the Cabinet's investigative caseworker; Mary Cochran, the ongoing caseworker; Mother; Nikki Reynolds, the program supervisor for the Boyd County Drug Court; Melissa Reese, Mother's friend and former supervisor at Goodwill; and Patricia Kelley, Mother's current Goodwill supervisor.
The biological fathers of the children were also named in the petitions. Neither father participated in the termination proceedings or the underlying DNA cases. Their parental rights were involuntarily terminated and neither father appealed.
Mother has a long history of substance abuse and related criminal charges. After the children were removed, she was first discharged from K-STEP, a treatment program, for noncompliance. However, she then completed both inpatient and outpatient treatment in 2020. However, she relapsed in late 2020 which resulted in criminal charges. In February 2021, because of the misdemeanor charges to which she pled guilty, Mother entered drug court. Ms. Reynolds testified that Mother was required to attend meetings, appear in court, and comply with drug screens. Mother was fully compliant with the program. She tested positive for an illegal substance once in March 2021 but remained sober since that date. She also completed a second outpatient treatment program. At the time of trial, she had nearly completed the second of four phases of drug court. Ms. Reynolds testified she would soon graduate to phase three and was on track to complete the program on time. She further described Mother as an excellent and active participant in the program.
Although the Cabinet conceded at trial that Mother completed the tasks required of her regarding her substances use, Ms. Cochran, the ongoing caseworker, expressed concern due to "wide gaps" between some of Mother's drug screens in 2020. However, Ms. Cochran also admitted that both the treatment program in which Mother was enrolled during that time and the Cabinet suspended screening due to COVID-19. Ms. Cochran agreed Mother had been fully compliant with screening since entering drug court and had tested negative for all substances since March 2021.
Ms. Cochran further testified that Mother had been employed for most of the duration of the case. Ms. Reynolds confirmed that Mother had been employed since she entered drug court. Since June 2021, Mother has been employed by Goodwill. Ms. Kelley testified that Mother was a full-time employee at Goodwill who had never missed work. She described Mother as a hard worker who had recently interviewed for a management position to which she would likely be promoted.
In the underlying DNA actions, Mother was ordered to pay child support. She paid no support until March 2021. She has made payments since August 2021. She also makes payments toward arrearages resulting from child support she was ordered to pay for her prior-born children who are now adults.
Ms. Reese, who has known Mother for several years, testified that Mother has become a different person since achieving sobriety in March 2021. She is now responsible and hardworking. Ms. Reese described herself as part of Mother's support system, explaining that they saw each other several times per week and stating that she would be there for anything Mother needed.
Mother testified to residing with her paramour and his adult daughter in a two-bedroom home. She admitted her paramour has a history of substance abuse but has been clean for at least one year. Ms. Cochran completed a home visit and agreed the home was appropriate. However, during her testimony, she also expressed concern about the size of the home. Mother explained that, if the children were returned to her, they would stay in the second bedroom with her paramour's daughter moving to another room in the home.
Mother visited with her younger child, J.M.H., as often as allowed by the Cabinet prior to the COVID-19 pandemic. J.M.H. was placed in a residential facility in Covington, Kentucky due to aggressive behaviors approximately a year prior to trial. The facility disallowed visits for a period of time due to COVID-19. During that time, Mother maintained contact with J.M.H. telephonically and sent him a care package. After the facility lifted its ban on visitation, Mother resumed regular visits. When questioned about whether the children would be able to share a room considering J.M.H.'s aggressive behaviors, Mother testified that she and her paramour, within weeks, could move into a larger home owned by their landlord so that the children would have separate bedrooms.
Mother has had limited contact with I.R.G. because, at the time of removal, he did not wish to participate in visits. Mother testified to repeatedly requesting reunification therapy, but no such therapy was granted. Approximately two months prior to trial, I.R.G. initiated contact with Mother and she testified to continuing communication with him since that time. I.R.G. resided in a foster home at some point since entering Cabinet care but, at the time of trial, was living in a respite home. At the time of trial, neither child was residing in a prospective adoptive home. The Cabinet presented no evidence that either child had a prospective adoptive placement or that they had formed bonds with any foster or adoptive family.
Ms. Cochran agreed that Mother completed the tasks required by her case plan with regard to substance abuse treatment, drug screening, parenting classes, and employment. The caseworker also agreed Mother's home was appropriate. However, the Cabinet maintained that Mother could not provide for her children. Ms. Cochran was concerned about Mother's choice to enter a relationship with someone who had a history of substance abuse. However, she also admitted that, rather than informing Mother of this concern or telling her the children would not be returned to her care if she continued to reside with her paramour, the Cabinet added him to the family's case plan and required him to submit to random drug screens. He complied with screening and tested negative for illicit substances on all screens.
At trial, the caseworker reported that Mother's paramour tested positive for alcohol on one occasion.
On October 21, 2021, the family court entered judgments involuntarily terminating Mother's parental rights. In relevant part, the court found the existence of grounds under KRS 625.090(2)(a), (e), (g), and (j). The court found the Cabinet had made reasonable efforts at reunification but that Mother had done "very little on her case plan[.]" R. at 46.
Kentucky Revised Statutes.
While the court acknowledged Mother's sobriety and employment, it determined that "it is concerning that [Mother] did not make any real effort to obtain employment and refrain from drug use until several months after the goal was changed to adoption and then only as part of her Drug Court participation." Id. at 46-47. The court further found
[a]lthough the [c]ourt is hopeful that [Mother] will continue to make progress, she was still not in a position to parent [these children] as of the hearing. [Mother] had not completed parenting, was not providing the minimum basic child support ordered for her child[ren] and was in a two-bedroom residence with two other adults who had not had any contact with the child[ren]. [Mother] indicated that there were plans to remodel and move into a larger place but there was no timeline given for that to happen. The [c]ourt finds that she has not shown, by a preponderance, that the child[ren] would not continue to be neglected or abused if returned to her care.Id. at 47. This appeal followed.
STANDARD OF REVIEW
We review judgments terminating parental rights under the clearly erroneous standard which requires that a family court's judgment be based on clear and convincing evidence. Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (citing CR 52.01). We will not disturb the family court's findings unless no substantial evidence exists on the record to support them. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citation omitted).
Kentucky Rules of Civil Procedure.
Furthermore, although termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and
therefore, is a procedure that should only be employed when the statutory mandates are clearly met. While the state has a compelling interest to protect its youngest citizens, state intervention into the family with the result of permanently severing the relationship between parent and child must be done with utmost caution. It is a very serious matter.Id. (citation omitted).
ANALYSIS
On appeal, Mother raises the following arguments: (1) the Cabinet failed to prove termination was in the children's best interests under KRS 625.090(1)(c); (2) the family court erred in its findings under KRS 625.090(2)(a), (e), and (g); and (3) the family court erred by failing to find the children would not continue to be abused or neglected if returned to her care.
When the Cabinet seeks to terminate an individual's parental rights, KRS 625.090 governs. First, the family court must find "[t]he child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction[.]" KRS 625.090(1)(a)1. Mother does not contest the court's finding that the children had been adjudged to have been neglected. Mother also concedes to the court's finding under KRS 625.090(1)(b).
However, Mother contests the family court's finding that termination was in the children's best interests under KRS 625.090(1)(c).
In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability 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;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(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 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.KRS 625.090(3). Mother argues, under KRS 625.090(3)(d), the family court did not properly consider the efforts and adjustments she had made to improve her conditions and environment for the children. Specifically, Mother contests two of the court's factual findings.
First, the court found Mother "did very little on her case plan tasks, including obtaining stable employment, housing, parenting and not associating with other individuals with a substance abuse history." R. at 45-46. This is directly refuted by evidence presented at trial. According to Ms. Cochran, Mother had completed the tasks on her case plan. She had been employed for most of the case and now had a stable job where she would soon be promoted to a supervisory position. She had been in the same home since March 2021 which Ms. Cochran agreed was an appropriate residence. Ms. Cochran acknowledged that Mother completed a parenting program. Furthermore, while Mother's paramour has a history of substance abuse, Ms. Cochran added him to Mother's case plan and he agreed to participate in drug testing. He tested negative for all illicit substances.
Next, the family court found "it is concerning that [Mother] did not make any real effort to obtain employment and refrain from drug use until several months after the goal was changed to adoption and then only as part of her Drug Court participation." R. at 46-47. However, these findings are also contradicted by the record. Mother pursued substance abuse treatment beginning in October 2019 She completed inpatient and outpatient treatment within a year. Significantly, she relapsed in December 2020 and, as a result, received new criminal charges. However, she then entered drug court and re-entered and completed treatment for a second time. She has had clean drug screens since March 2021 and has been compliant with all requirements of drug court. Furthermore, as previously described, Ms. Cochran agreed that Mother had been employed throughout the case and is now employed full-time with an opportunity for advancement.
Mother also alleges the family court did not properly consider whether the physical, emotional, and mental health of the children would improve if the court terminated her parental rights under KRS 625.090(3)(e). J.M.H. has been institutionalized for approximately one year and is without a foster or adoptive placement. Despite his lengthy institutionalization, the Cabinet presented no evidence that his aggressive behaviors had improved since being removed from his Mother's care. He currently has no bond with a foster family but remains bonded with Mother. The family court's finding that Mother only visited J.M.H. on two occasions after he was institutionalized is not supported by the record. In fact, no witness testified to the precise number of visits Mother had with J.M.H. Instead, testimony presented at trial indicated she visited him at the facility whenever allowed to do so and, after visitation was stopped because of the COVID-19 pandemic, Mother had regular phone contact with J.M.H.
Mother's relationship with I.R.G. has been more troubled. For an extended period of time, he refused contact with Mother. However, two months prior to trial, he initiated contact and had continued to communicate with Mother. Importantly, I.R.G. is currently in respite care with no prospective adoptive placement or bonds with another family.
The lack of bonding with prospective adoptive placements is significant in this case. J.M.H. is bonded to Mother and I.R.G. has pursued a relationship with her. The importance of these bonds is the foundation on which the constitutional protections afforded to parental rights are based. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982) (holding "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State").
With regard to KRS 625.090(3)(b), Mother admitted to neglecting the children when she was under the influence of illegal substances prior to their removal. Furthermore, under KRS 625.090(3)(f), Mother was ordered to pay child support in August 2020. Although she began making regular payments in August 2021, she made few payments during the year prior.
The family court has broad discretion in determining whether termination of parental rights is in a child's best interest. However, this discretion is not without limits. Considering the record in its entirety, we cannot say the family court's findings are supported by substantial evidence. The family court did not properly consider Mother's progress under KRS 625.090(3)(d) or the children's mental and emotional health under KRS 625.090(3)(e) in finding termination of parental rights was in the children's best interest.
Next, Mother contests the family court's findings under KRS 625.090(2)(a), (e), and (g). However, her argument ignores the statutory requirement that the family court must only find, by clear and convincing evidence, the existence of one ground under KRS 625.090(2). In addition to its findings under KRS 625.090(2)(a), (e), and (g), the court found, under KRS 625.090(2)(j), the children had "been in foster care under the responsibility of the [Cabinet] since September 9, 2019, and for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of this petition to terminate parental rights." R. at 43. Mother does not contest this finding and it is supported by the record. Therefore, regardless of whether the family court erred in its findings under the remaining statutory subsections, it has complied with the requirements of KRS 625.090(2).
Finally, Mother argues the family court erred by finding she did not meet her burden under KRS 625.090(5). "If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights." KRS 625.090(5). The well-settled definition of this standard is that Mother must prove it is "more likely than not" that the children would not continue to be neglected if returned to her care. See M.C. v. Cabinet for Health and Family Services, 614 S.W.3d 915, 921 (Ky. 2021).
Mother completed her case plan. We recognize the seriousness of her relapse and the criminal charges associated with it. However, this does not outweigh the substantial progress made to improve her circumstances and environment. The Cabinet acknowledged this progress at trial. In addition to completing treatment, maintaining sobriety, and advancing in drug court, Mother now has stable employment and housing. Mother's home may be crowded but the children will have their own bedroom and there is a prospective larger home available. While her paramour has a history of substance abuse, the Cabinet knew of the relationship and added him to Mother's case plan. He has been clean for at least one year and has consistently tested negative for all illicit substances.
The Cabinet primarily relies on Mother's conduct prior to removal as support for termination of her parental rights, arguing, "[p]ersons with this mindset do not improve. Her past is the best indicator of her future behavior." Appellee Brief at 10. Acceptance of the Cabinet's argument would condone a court's completely overlooking progress made by parents in favor of termination based solely on circumstances which existed prior to intervention by the Cabinet. We reject this contention. Furthermore, Mother proved she had improved her environment and circumstances such that it was more likely than not that the children would not continue to be neglected if returned to her care.
CONCLUSION
Based on the foregoing, we reverse the judgments of the Greenup Circuit Court, Family Division, involuntarily terminating Mother's parental rights, and remand for proceedings consistent with a goal of reunification.
ALL CONCUR.