Opinion
NO. 2012-CA-001624-ME NO. 2012-CA-001625-ME
06-21-2013
A.D.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; and C.A.H., an infant APPELLEES and A.D.H. APPELLANT CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; and S.R.H., an infant APPELLEES
BRIEF FOR APPELLANT: Steven N. Howe Dry Ridge, Kentucky BRIEF FOR APPELLEE: Cynthia Klocker Florence, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 11-AD-00021
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
CASE NO. 11-AD-00022
OPINION
AFFIRMING
BEFORE: COMBS, MAZE, AND NICKELL, JUDGES. COMBS, JUDGE: A.D.H., the biological mother of C.A.H. and S.R.H. (the children), appeals from orders of the Grant Family Court entered on August 1, 2012, that terminated her parental rights to her children. We affirm.
The parental rights of the natural father were also terminated in this proceeding. However, he is not a party to this appeal.
The parties agree on the following facts. Near midnight on February 2, 2011, Deputy Kevin Burke of the Grant County Sheriff's Department responded to the mother's home in response to a call for assistance. He found the mother lying face up and unconscious on the bathroom floor. Her skin was mottled purple, and she appeared to be deceased. The children (approximately 18 months of age and 30 months of age at that time) were observed running around the house naked.
After recovering from the heroin overdose that had severely impaired her on that night, the mother later admitted to Katherine Burke, a Cabinet social worker, that she had been attempting to bathe the children at 1:00 a.m. while under the influence. Alternatively, she said that she was trying to diaper one of the children when she succumbed to the effects of the overdose. Deputy Burke indicated that there had been an unidentified adult male in the house when he arrived. Deputy Burke also testified that while first-responders worked to resuscitate or stabilize the mother for transport to the hospital, he tried to find clothes for the children. Finding nothing suitable, he wrapped the children in blankets. The children's maternal grandparents soon arrived in order to care for them and to assume temporary custody.
The mother admitted that this man had supplied the heroin to her that night and that the two of them had injected the heroin in her bedroom while the children were in need of supervision and care.
On February 4, 2011, the Cabinet for Health and Family Services filed dependency, neglect, and abuse petitions in Grant Family Court. The Cabinet alleged that the mother's habitual use of heroin prevented her from providing necessary care for the children. Following the temporary removal hearing conducted a few days later, the children were placed in the temporary custody of the Cabinet. Because the children's natural father was incarcerated on a drug-related conviction, the children were placed in foster care on February 8, 2011. The mother was ordered to avoid contact with the children and to submit to random drug screenings. Because she did not show up for an initial substance abuse assessment, she could not enter a drug treatment program. Eventually, she was permitted to have supervised visits with the children.
An adjudication hearing was conducted by the family court on March 22, 2011. After considering the evidence presented, the court concluded that the allegations in the petition had been proven by a preponderance of the evidence.
On April 20, 2011, the family court conducted a disposition hearing. After considering the Cabinet's report and recommendations, the court concluded that reasonable efforts had been made to prevent the removal of the children from the mother's home. The court also determined that a return to the mother's care and control was contrary to the children's welfare. The Cabinet's recommendations were adopted by the court, and the children remained committed to the Cabinet.
Despite the Cabinet's assistance, the mother could not meet drug treatment goals, nor could she comply with a case plan designed to reunite the family. On September 14, 2011, the Cabinet filed petitions for the involuntary termination of her parental rights.
On June 8, 2012, the family court conducted an evidentiary hearing on the Cabinet's motion to terminate parental rights. The court heard testimony from Deputy Burke, two Cabinet social workers, the children's maternal grandfather, the children's uncle, the mother's neighbor, the children's foster father, and the mother. Following the hearing, the family court issued findings of fact and an order terminating mother's parental rights to the children. Among the family court's findings of facts were the following items:
8. Kevin Burke, a police officer for the Grant County Sheriff's Department, responded to the home of [the mother] late on the evening of February 2, 2011 and the early morning hours of February 3, 2011. . . . The children entered foster care five days later as the maternal grandparents could not care for the children.Based upon these findings of fact, the family court concluded: that the mother had neglected the children; that despite the Cabinet's attempts to render all reasonable services to her, the mother had failed to provide essential parental care for the children for a period of longer than six months; that there is no reasonable expectation of improvement in her ability to provide parental care and protection, considering the ages of the children; and that it was in the children's best interests to terminate the mother's parental rights.
9. The next witness to testify was Katie Burke, a social worker employed by [the Cabinet] who completed the investigation into the allegation of abuse or neglect that occurred that night.
10. The next witness was [T.H., the children's maternal grandfather]. He is employed as a deputy jailer at the Grant County Detention Center . . . . [T.H.] testified that he noticed that [the mother] was losing an excessive amount of weight and that he observed track marks on [the mother's] arms.
11. [T.H.] testified that in 2009, [the mother and the father] had the children with them when they shoplifted
from Krogers. They were putting steaks in the diaper bag and selling them at bars in Newport and Covington. . . . [The mother] was arrested for theft. . . . [The mother] was then arrested in Hamilton County, Ohio on May 21, 2010. . . .
12. [T.H.] said that [the mother] was next arrested on or around August 18, 2010 for hindering the apprehension of [the father]. . . . [T.H.] testified he assumed custody of the children when [the mother] spent a week in jail. [T.H.] said he went to the apartment to get clothing for the children and he found a spoon that was scorched on the bottom in the children's diaper bag and found used needles and porn lying around the apartment. He also found soiled diapers in drawers and bottles filled with milk in toy boxes and there was no food in the apartment.
13. [T.H.] then testified that [the mother] was evicted from her subsidized apartment at Locust Ridge in October of 2010. [The mother] and the children went to a homeless shelter for one night then they came once again to live with [T.H.] and his wife on condition that [the mother] attend her probation hearings in Ohio, obtain employment and stay away from Locust Ridge. [T.H.] said she began not coming home on time and bringing the children home late without feeding them. [The mother] failed to provide diapers for the children and did not put any shoes on the children when they were out during a snow storm. . . . On November 10, 2010, [T.H.] caught [the mother] stealing from them and [T.H.] told her she had to move. She and the children moved to a trailer with Jeff Combs, a man named Jake and his 3 children.
14. [T.H.] testified that a warrant in Ohio was issued for [the mother's] arrest in December of 2010 for violating the conditions of her probation and that the warrant was still outstanding. [The mother] did obtain an apartment in Corinth in January of 2011. [T.H. and his wife] went to her apartment to bring her pots and pans at 11:00 a.m. . . . [T.H. testified they had to beat on the front door, the back door and [the mother's] window. They saw the children looking out the window but no adult came to the
door. After repeated knocking and hitting on the window, [the mother] finally answered the door. She and the 3 other adults in the apartment were sleeping and did not hear them knocking. No one was awake to watch the children.
15. On February 2, 2011, [the mother] overdosed on heroine. [T.H.] and his wife took the children that night. They could not find weather appropriate clothing and had to wrap them in blankets. [T.H.] said they could not assist [the mother] any longer and placed the children in foster care. . . .
16. [T.H.] testified he and his wife were the designated people to supervise visitation. The maternal grandparents attempted to schedule visitation at locations and times best suited for [the mother], but the parents did not always visit. The May 27, 2011 visit was cancelled as [the mother] tested positive for methamphetamine. [T.H.] said there was no bond between the children and [the mother]. . . .
17. [T.H.] stated that [the mother] went to the WRAP house for drug treatment in December of 2011, but she was discharged from that treatment two weeks later because she tested positive for suboxone . . . . On May 23, 2012, [T.H.] texted [the mother] to arrange a visit. On that day it was 93 degrees. [The mother] was wearing a long sleeve jacket over two tops. She seemed very sluggish and barely able to stay awake. . . .
18. Lacey Marcum testified last for [the Cabinet]. She began working with the family in March of 2011 after the children entered foster care and the work of the investigative worker was completed. . . .
19. Lacey Marcum testified that since the children were removed in February of 2011, [the mother and father] have failed to work their case plans and to make the necessary lifestyle changes so that they could provide appropriate parental care and protection. . . .
20. Lacey Marcum also testified that [the mother] has failed to obtain and maintain stable employment to provide the necessities of life for her children. . . .
21. Ms. Marcum testified that both parents have drug abuse issues which have not been corrected and that their lifestyles have not been changed or corrected so that [the children] would not be abused or neglected if returned to their care.
22. [The mother and father] have child support arrearages for the care and support of these children since they have been in foster care.
* * * * *
24. [The children are] blossoming in foster care and [their] progress is expected to continue if parental rights are terminated so that [they] might be placed for adoption.
On appeal, the mother presents several evidentiary issues for our review. First, she contends that the family court erred by permitting Katherine Burke (as noted earlier, the Cabinet social worker who undertook the investigation following her overdose) to testify concerning the mother's drug screen test results and by permitting records of those results to be admitted into evidence. Second, the mother argues that the court erred by permitting into evidence correspondence from Transitions/WRAP house to Lacie Marcum, the Cabinet social worker who took over the case after Burke had concluded her initial investigation into the matter. Next, she contends that the family court erred by considering evidence indicating that the children's prospective adoptive parents were properly equipped to meet their needs. Finally, the mother claims that the family court erred by failing to find that the children would not likely be abused or neglected in the future. We address each of these issues.
We first address the contention that the family court erred by permitting Katherine Burke to testify concerning the mother's initial drug screen test results and by permitting records of those results to be admitted into evidence. She argues that the testimony and records constitute hearsay under the circumstances. We find no reversible error.
In G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App.1985), we reaffirmed the important and long-accepted principle that a judge acting as a fact-finder is presumed to have disregarded hearsay evidence in reaching his conclusions of law. Because he is trained in the law, a judge is capable of discerning "the grain from the chaff, and to decide the case alone upon the law. . . ." Id. at 715 (quoting Andrews v. Hayden's Adm'rs., 88 Ky. 455, 11 S.W. 428 (Ky. App. 1889)). The admission of unreliable evidence is considered prejudicial (and potentially reversible) only where it is apparent that the trial court erroneously relied upon it to reach its decision.
From the family court's findings in this case, it is clear that it did not rely upon the challenged evidence. There is no indication whatsoever that Burke's testimony or the challenged drugs screen records were a factor in the family court's ultimate conclusion in this matter. Indeed, there is absolutely nothing in the record to support the assertion that the family court considered it. Consequently, we conclude that any error with respect to the admission of the challenged evidence was harmless since it resulted in no prejudice.
Next, the mother contends that the family court erred by permitting the admission of correspondence from Transitions/WRAP house to Lacie Marcum. The disputed letter outlines the mother's unsuccessful stay at the in-house treatment facility based upon her failure to abide by the facility's alcohol and drug use policy.
Counsel also refers to a report prepared by that facility, but it does not appear of record.
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Having examined the record, we also reject this claim of error. There is nothing in the record to suggest that the challenged evidence affected the family court's ultimate conclusion. There is nothing in the record to support her claim that the family court even considered it. Again, we must conclude that any error with respect to the admission of the challenged evidence was harmless since it resulted in no prejudice.
Next, the mother contends that the family court erred by allowing proof indicating that the children's needs would be met in the future by means of adoption. We disagree with this argument.
The provisions of Kentucky Revised Statute[s] 625.090(1)(b) require the family court to consider the interests of the children and to be persuaded by clear and convincing evidence that termination of parental rights would be in the their best interests before ordering a termination of rights. The court properly considered the evidence that was offered to show that the children were "blossoming in foster care" and that they could be expected to continue to grow and develop properly if they were eventually adopted by the foster parents. The court did not err in reviewing this evidence since it directly pertained to the best interests of the children.
Finally, the mother contends that the family court erred by failing to find by a preponderance of the evidence that the children would not likely be abused or neglected by her if they returned to her care. We disagree.
When reviewing a family court's determination of the best interests of a child, we must decide whether the court abused its discretion. D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833 (Ky. App. 2011). Absent a showing that a decision to terminate parental rights was arbitrary or unsupported by sound legal principles, a family court's determination on the issue will not be considered an abuse of discretion.
In this case, the family court was persuaded - under the standard of clear and convincing evidence - that the mother had neglected the children; that she had failed to provide essential parental care for them for a period of longer than six months; that there was no reasonable expectation of improvement in her ability to provide the necessary parental care; and that it was in the children's best interests that parental rights be terminated.
Each of the family court's determinations was supported by substantial evidence. There was substantial and probative evidence of the mother's continuing addiction and complete inability to provide a safe, healthy, loving environment where the children could be expected to grow and develop properly. Similarly, there was substantial evidence indicating that there was little reason to hope for improvement in her ability to parent the children. Evaluated as a whole, the evidence was more than sufficient to support the court's determination that it was in the children's best interests to terminate the mother's parental rights. The family court did not abuse its discretion.
Therefore, we affirm the orders of the Grant Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Steven N. Howe
Dry Ridge, Kentucky
BRIEF FOR APPELLEE: Cynthia Klocker
Florence, Kentucky