Opinion
NO. 2020-CA-00328-ME
01-15-2021
A.N.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, DEPARTMENT FOR COMMUNITY BASED SERVICES, KIPDA RURAL/SALT RIVER SHELBY COUNTY PROTECTION AND PERMANENCY; A.D.J.; CM.; AND A.L.J., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT Jean Kelley Cunningham Shelbyville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, DEPARTMENT FOR COMMUNITY BASED SERVICES, KIPDA RURAL/SALT RIVER SHELBY COUNTY PROTECTION AND PERMANENCY: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 19-AD-00037 OPINION
AFFIRMING
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BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES. MCNEILL, JUDGE: A.N.B. ("Mother") appeals from Findings of Fact, Conclusions of Law, and an Order Terminating Parental Rights and Order of Judgment entered by the Shelby Circuit Court, Family Division, on February 6, 2020, terminating her parental rights to A.L.J. After careful review, we affirm.
In early 2017, the Cabinet for Health and Family Services ("Cabinet") received a report Mother was passed out in her vehicle due to possible substance abuse, with A.L.J. in the backseat. A second report received shortly thereafter alleged Mother had been admitted to a psychiatric hospital over concerns about her mental health. Based upon these allegations, the Cabinet filed for and was granted emergency custody, and A.L.J. was placed in foster care.
The Cabinet's case plan for Mother required that she cooperate with the Cabinet, submit to random drug screens, complete a chemical dependency assessment, complete a mental health assessment, take all medications as prescribed, follow all orders in her criminal cases, complete parenting classes, demonstrate parenting skills during her visitation, and obtain and maintain stable housing and employment.
Mother complied with most of the Cabinet's recommendations; however, there was an ongoing concern with her parenting skills and capacity, as observed through her visits and interactions with her son and agency staff. At this time, Mother had completed parenting classes and was receiving one-on-one training from Centerstone. Therefore, the Cabinet requested a psychological assessment to determine what other services could be offered to assist in reunification.
Mother underwent a psychological assessment with Dr. Paul Ebben, a licensed clinical psychologist, on February 22, 2018. As to treatment recommendations, Dr. Ebben's report did not provide much guidance other than she continue with mental health and substance abuse treatment. The report indicated Mother was defensive, evasive, and uninsightful during her examination. It further noted Mother's prognosis was poor if she remained so.
Prior to receiving Dr. Ebben's report, Mother was granted unsupervised visitation with A.L.J. based on progress in her case plan. However, after only a few unsupervised visits, A.L.J. showed significant regression in his behavior. Based upon these new concerns and Dr. Ebben's report, the Cabinet requested Mother complete a parental capacity evaluation with Dr. David Feinberg, another licensed clinical psychologist. A parental capacity evaluation assesses a parent's ability to meet a child's specific and special needs.
As in her previous assessment, Mother was defensive and uncooperative. At times she would be open but at other times tell obvious untruths. Additionally, Mother showed a lack of insight, refusing to acknowledge her problems. Dr. Feinberg diagnosed Mother with borderline personality disorder with borderline paranoid features as well as anxiety disorder. The report concluded, "[t]here is very little data indicating that [Mother] is able or will be able to meet [A.L.J's] needs. As a result . . . it is not recommended that reunification occur and that [A.L.J's] needs are best served if permanency is sought through termination of [Mother's] parental rights."
On July 25, 2019, the Cabinet filed a petition to terminate Mother's parental rights to A.L.J. A trial was held on January 17, 2020. At trial, Dr. Feinberg testified that because Mother was not aware of her problems, correcting them in any functional way was very unlikely. He noted that personality is hardwired and does not change. While certain behaviors could be changed, it requires specific treatment and consistent medication. And because people with personality disorder often present differently each time, it is hard to treat.
The petition also sought to terminate father's parental rights; however, father subsequently agreed to voluntary termination.
Dr. Feinberg testified Mother did not have the ability to meet A.L.J.'s needs based upon A.L.J.'s developmental, emotional, and anger problems which will require significant therapy. A.L.J. needed stability and consistency. Dr. Feinberg testified that, in his opinion, Mother did not have the emotional capacity to care for A.L.J.
He noted Mother had been in treatment most of her life without much discernable change and was not optimistic someone could put together a treatment plan that would be effective. He further could not think of any accommodations the Cabinet could offer that would help her parent A.L.J. He noted that Mother would require significant long-term mental health therapy and that A.L.J. could not wait for her to get herself well enough to parent him.
On February 6, 2020, the family court entered orders terminating Mother's parental rights to A.L.J. In its conclusions of law, the court held there had been a previous finding of neglect, made a new finding of neglect, and found that termination would be in the child's best interest. The court further found: (1) Mother had continuously failed or refused to provide essential parental care and protection for the child for the past six months and there was no reasonable expectation of improvement, KRS 625.090(2)(e); (2) Mother had failed to provide for the child's essential needs for reasons other than poverty alone and there was no reasonable expectation of improvement, KRS 625.090(2)(g); and (3) the child had been in foster care for fifteen of the most recent forty-eight months prior to the filing of the petition for termination, KRS 625.090(2)(j). This appeal followed.
Kentucky Revised Statutes.
A family court has wide discretion in terminating parental rights. Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "Thus, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence." Id. (citing CR 52.01). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Id. (citation omitted).
Kentucky Rules of Civil Procedure.
KRS 625.090 provides that a court may involuntarily terminate parental rights if it finds by clear and convincing evidence that: (1) the child has been abused or neglected; (2) termination would be in the child's best interest; and (3) one or more of several listed grounds for termination are present. In determining the best interest of the child, the family court must ascertain whether reasonable efforts were made by the Cabinet to reunite the parents with the child. KRS 625.090(3)(c).
See KRS 625.090(2)(a)-(k).
On appeal, Mother does not challenge grounds one and three, and therefore the family court's findings under KRS 625.090(a) and KRS 625.090(2)(a)-(k) are affirmed. See Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000) (citation omitted) ("Any part of a judgment appealed from that is not briefed is affirmed as being confessed.").
Instead, Mother makes three arguments: (1) the family court failed to consider the Americans with Disabilities Act ("ADA") in terminating her parental rights; (2) the Cabinet failed to provide a case plan tailored to her disabilities; and (3) KRS 610.127 and KRS 625.090(3)(a) and (c) are in direct conflict with the ADA and Section 504 of the Rehabilitation Act of 1973. We construe argument two as alleging the Cabinet failed to make reasonable efforts at reunification as required by KRS 625.090(3)(c).
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.
See 29 U.S.C. § 701 et seq. --------
As an initial matter, Mother's brief does not state how she preserved any of her arguments in the family court in violation of CR 76.12(4)(c)(v), which 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." Further, after reviewing the record, it appears Mother's arguments that the family court failed to consider the ADA in terminating her parental rights and that KRS 610.127 and KRS 625.090(3)(a) and (c) conflict with the ADA and Section 504 of the Rehabilitation Act of 1973 were never made to the family court. "[A]n appellate court cannot consider items that were not first presented to the trial court." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Because these issues are unpreserved, we will not address them on appeal.
This leaves Mother's argument that the Cabinet failed to make reasonable efforts to accommodate her disability pursuant to KRS 625.090(3)(c), in violation of the ADA. Our Supreme Court recently addressed this same argument, raised by a dissenting opinion, in Cabinet for Health & Family Services. v. K.S., 585 S.W.3d 202 (Ky. 2019). The Court cited a case from the Michigan Court of Appeals, In re Terry, 610 N.W.2d 563 (Mich. Ct. App. 2000), which held that if a parent believed a state agency was "unreasonably refusing to accommodate a disability, the parent should claim a violation of her rights under the ADA, either when a service plan is adopted or soon afterward." K.S., 585 S.W.3d at 216 (citing Terry, 610 N.W.2d at 570).
Relying upon Terry, our Supreme Court stated, "there is no indication that prior to the termination hearing [mother] (or her attorney) raised the issue that she had not been provided appropriate services as they relate to her disability." Id. Therefore, it concluded "because [mother] did not raise a challenge to the services that were being provided to her at the time, the issue has been waived for our review." Id.
Similarly, here, there is no indication that Mother ever argued that the Cabinet's services did not accommodate her disability prior to the termination hearing; therefore, we consider this issue waived. Nevertheless, even if the issue were properly before us, the family court correctly found by clear and convincing evidence that the Cabinet provided "reasonable efforts," as defined in KRS 620.020(13), to reunify A.L.J. and Mother. The court noted that the Cabinet offered Mother five case plans containing "numerous and relevant services, including mental health treatment; medication management; substance abuse treatment; random drug screens to keep her accountable; parenting classes; supervised visitation with her child; and more."
The family court specifically rejected Mother's argument that the Cabinet failed to offer her additional accommodations under the ADA, citing the Cabinet paying for Mother to be assessed by two licensed psychologists to identify additional services the Cabinet could offer. It further mentioned the many services the Cabinet offered Mother, including one-on-one parenting services, individual therapy services, beyond trauma classes, psychiatric services, and medication management.
Accordingly, the family court did not err in terminating Mother's parental rights. Therefore, the orders of the Shelby Circuit Court, Family Division, are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT Jean Kelley Cunningham
Shelbyville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, DEPARTMENT FOR
COMMUNITY BASED SERVICES,
KIPDA RURAL/SALT RIVER
SHELBY COUNTY PROTECTION
AND PERMANENCY: Leslie M. Laupp
Covington, Kentucky