Opinion
2021-CA-0784-ME
08-05-2022
A.G.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES AND J.H., A MINOR APPELLEES
BRIEF FOR APPELLANT: John Fortner Covington, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT HONORABLE ROBERT W. MCGINNIS, JUDGE ACTION NO. 20-AD-00115
BRIEF FOR APPELLANT: John Fortner Covington, Kentucky
BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
BEFORE: JONES, MAZE, AND McNEILL, JUDGES.
OPINION
MAZE, JUDGE:
A.G.P. (Mother) appeals from findings of fact, conclusions of law, and a judgment of the Kenton Family Court terminating her parental rights to her child. We conclude that the family court's findings on all the statutory factors were supported by substantial evidence. Hence, we affirm.
Mother and D.H. (Father) are the parents of J.H. (Child), who was born in November 2018. Mother and Father have three other children who were born before Child. The Cabinet reported a long history with the family dating back to 2008 due to concerns of substance abuse and domestic violence between Mother and Father. The Cabinet became involved with the family again in March 2017 after another incident of domestic violence between Father and Mother. Father was charged with fourth-degree assault. Mother obtained a domestic violence order (DVO) against Father, which required him to have no contact with her for three years.
Around the same time, the Cabinet filed a non-removal petition based on concerns of domestic violence and substance abuse in Mother's home. The family court allowed the children to remain in Mother's home. Both parents admitted to substance abuse and Father acknowledged the domestic violence incident and that two children were present at the time of the incident. Both parents stipulated to neglect at that time.
The Cabinet became involved again in November 2018, after Mother and Child tested positive for drug use following Child's birth. The Cabinet also noted that Mother became pregnant with Child while the DVO against Father was in effect. The Cabinet did not seek removal of the children at that time but allowed the children to remain in Mother's home under the temporary joint custody of Mother and a third party. Social Worker Christina Burgess testified that the Cabinet offered Sobriety Treatment and Recovery Team (START) services to Mother.
Mother was initially involved in intensive outpatient services (IOP) at North Key, as well as following through on her case plan and START services. But by January 2019, Mother became non-compliant with her plan and relapsed. In February, the Cabinet filed neglect petitions on behalf of all the children due to Mother's lack of compliance with her substance abuse treatment services. The petition also alleged that Mother and Father were actively violating the DVO. Father was still living in Ohio and the DVO remained in effect, but he admitted to paternity of the child. Mother stipulated to neglect due to the positive drug test at Child's birth. The court placed the children in the temporary joint custody of Mother and a third party.
Shortly thereafter, the joint custodian stated that she was no longer willing or able to have custody of the children. In addition, Mother had missed several drug screens and was no longer attending treatment. The children were removed from Mother's home at that time. The Cabinet attempted relative placement, but by August 2019, the children were placed in foster care because no appropriate relatives could be found. The children have remained in foster care since that time.
Following the removal of the children, the court adopted the Cabinet's case plan recommendations, which required Mother to: refrain from the use of illegal substances and non-prescribed medications; complete dual-diagnosis IOP; drug screen at START discretion; attend AA/NA meetings four times a week and provide verification; complete sober parenting classes and participate in individual therapy; build a sober support network and provide verification; and maintain stable housing and employment. Social Worker Burgess testified that Mother failed to take advantage of the START services and made only minimal progress on her case plan. Since November 2018, Mother missed 100 out of 132 drug screens. Of the 32 screens she did attend, 10 were positive and 20 screens were negative. Mother admitted to using marijuana and taking non-prescribed medications.
Burgess further testified that Mother failed to complete substance abuse treatment. After her relapse in January 2019, Mother was re-enrolled at North Key with a recommendation that she attend IOP five days a week. However, Mother did not consistently attend IOP and was ultimately discharged from the program. She later enrolled in an IOP program at Sun Behavioral Health. Mother testified that she received a certificate of completion from that program but conceded that her completion may not have counted because she continued to use marijuana while enrolled.
In March 2020, the Cabinet held a case planning conference with Mother and recommended that she be reassessed at North Key for IOP. Burgess testified that Mother did not enroll at North Key, attend regular drug screens, or provide verification of attendance at AA/NA meetings. She also failed to continue her IOP treatment as directed. Due to her lack of cooperation, the Cabinet announced it was changing the permanency goal from reunification to termination of parental rights.
In August 2020, the Cabinet filed petitions against Father and Mother to involuntarily terminate their parental rights to each of the children. The matter proceeded to a bench trial on March 18, 2021. At the hearing, the Cabinet presented records from the dependency/neglect/abuse (DNA) petitions involving the children. In addition to her other testimony, Social Worker Burgess testified she had not observed either parent provide care for the children over the previous six months. Neither parent attended therapy or school meetings. The parents were offered supervised visitation twice a week, but this visitation was reduced to once a week at the recommendation of the therapist. The children's therapist testified about the therapy the children receive and the level of parental involvement required to maintain their stability. Both Father and Mother testified as well. Mother admitted that she was not in a position to care for any of the children at that time.
On June 11, 2021, the family court issued separate findings of fact, conclusions of law, and judgments terminating Mother's parental rights to each of the children, including this Child. Mother now appeals from the findings and judgment terminating her parental rights to Child. Additional facts will be set forth below as necessary.
Father separately filed notices of appeal from the termination of his parental rights to each of the children. This Court affirmed those orders in an opinion rendered earlier this year. D.H. v. Cabinet for Health & Fam. Servs., 640 S.W.3d 736, 738-43 (Ky. App. 2022). The current appeal concerns only the family court's termination of Mother's parental rights to one child.
Before addressing Mother's arguments, we must discuss the failure to comply with multiple briefing requirements set out in CR 76.12. The argument section of Mother's brief contains no citations to the written record or videotape of the final hearing, nor does it state whether any of the issues were preserved and, if so, how. In addition, Mother's brief cites no legal authority for any of her arguments. However, we are not inclined to penalize a party solely due to counsel's errors, particularly because "a termination of parental rights proceeding implicates fundamental constitutional rights." D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 115 (Ky. 2012). Consequently, to the extent the deficiencies allow, we have elected to review the issues on the merits.
Kentucky Rules of Civil Procedure.
KRS 625.090 provides for the involuntary termination of parental rights upon the court's finding that clear and convincing evidence establishes that a child is, or has previously been adjudged, abused or neglected. KRS 625.090(1). Then, the court "must find the existence of one or more of [eleven] specific grounds set forth in KRS 625.090(2)." M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 851 (Ky. App. 2008). Finally, the court must find that termination of parental rights would be in the best interests of the child. KRS 625.090(3). "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).
Kentucky Revised Statutes.
On review of an order terminating parental rights, we ask whether the family court's findings were clearly erroneous. Cabinet for Families & Children v. G.C.W., 139 S.W.3d 172, 178 (Ky. App. 2004). The court's factual findings will not be disturbed unless there exists no substantial evidence in the record to support them. V.S. v. Commonwealth, Cabinet for Human Res., 706 S.W.2d 420, 424 (Ky. App. 1986). "Because termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." D.G.R., 364 S.W.3d at 113.
Mother takes issue with several of the family court's factual findings. However, she merely contends that the findings are erroneous because the supporting documentation was not introduced at trial. Following the filing of her notice of appeal, Mother filed a CR 60.02 motion and motions to supplement the record to introduce these documents. She also filed a motion with this Court to hold this appeal in abeyance. The family court denied her CR 60.02 motion and this Court returned the appeal to the active docket on March 18, 2022. Since this additional evidence was never introduced, we cannot consider any matters outside of the record.
We conclude that the record contains substantial evidence to support the family court's findings under KRS 625.090. Mother concedes that Child was found to be neglected in the prior DNA action. KRS 625.090(1)(a)2. Second, "the circuit court must find the existence of one or more of [eleven] specific grounds set forth in KRS 625.090(2)." M.E.C., 254 S.W.3d at 851. In this case, the family court made findings under KRS 625.090(2)(e), (g), and (j):
(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;
. . . .
(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; [and]
. . . .
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]
Contrary to the family court's findings, Mother alleges that she engaged in the services and case plan offered by the Cabinet. Specifically, she alleges that she attended the AA/NA meetings and completed the IOP. She also contends that she should be allowed additional time to obtain records from North Key. But as noted, the certificates of completion and attendance for these programs were not introduced at trial.
Furthermore, the family court found that Mother failed to complete other elements of her case plan. Mother does not dispute these findings. Likewise, Mother does not dispute that Child has been under the care of the Cabinet since at least March 2019. And while Mother has made some progress on elements of her case plan, she does not dispute the family court's finding that there is no reasonable expectation of improvement in the foreseeable future. In light of the substantial uncontested evidence supporting these findings, we will not disturb the family court's conclusions under KRS 625.090(2).
Lastly, the family court must find termination of parental rights would be in the child's best interests after considering the factors set forth in KRS 625.090(3)(a)-(f). Mother does not specifically contest any of the family court's findings. The family court found that the Cabinet provided reasonable services toward reunification, but no additional services would be likely to bring out lasting parental adjustment to enable a safe return of Child to Mother. The family court also pointed out the history of domestic violence involving Father. While Mother correctly points out the initial acts of domestic violence were not her fault, she fails to recognize her lack of compliance with treatment and her repeated failures to observe the no-contact provisions of the DVO. Mother does not argue that there were other circumstances which would have allowed the family court to exercise its discretion to deny the termination petition. Because the family court's findings on all the statutory factors were supported by substantial evidence, we find no basis to set aside its termination of Mother's parental rights to Child.
Accordingly, we affirm the judgment of the Kenton Family Court.
McNEILL, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY.