Opinion
2021-CA-0601-ME 2021-CA-0602-ME
03-31-2023
A.R.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.K.R., A CHILD; AND R.K.R. APPELLEES AND A.R.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.L.B., A CHILD; AND R.T.H., JR. APPELLEES
BRIEF FOR APPELLANT: JOHN VALENTINE LOUISVILLE, KENTUCKY BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: LESLIE M. LAUPP COVINGTON, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION HONORABLE DENISE D. BROWN, JUDGE ACTION NO. 20-AD-500246T, 20-AD-500247T
BRIEF FOR APPELLANT: JOHN VALENTINE LOUISVILLE, KENTUCKY
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: LESLIE M. LAUPP COVINGTON, KENTUCKY
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE
A.R.R. brings this appeal from Findings of Fact and Conclusions of Law and Order Terminating Parental Rights and Order of Judgment entered April 22, 2021, in the Jefferson Circuit Court, Family Court Division, terminating her parental rights to M.L.B. and M.K.R. We affirm.
A.R.R. is the biological mother of two children: M.L.B., born on July 6, 2005, and M.K.R., born on July 15, 2010. R.T.H., Jr., is the legal father of M.L.B.; R.K.R. is the legal father of M.K.R.
The biological fathers of A.R.R.'s two children, R.T.H., Jr., and R.K.R., were both parties to the proceedings below; however, neither of them has pursued an appeal to this Court but both were named as appellees herein.
On September 6, 2018, the Commonwealth of Kentucky, Cabinet for Health and Family Services, (Cabinet) filed a dependency, neglect, and abuse petition in the Jefferson Circuit Court, Family Court Division (family court) (Action Nos. 17-J-504237 and 17-J-504238). Therein, it was alleged that for the 2017 - 2018 school year, M.L.B. had 45 unexcused absences and 10 unexcused tardies while M.K.R. had 35 unexcused absences and 23 unexcused tardies.
The Cabinet for Health and Family Services, Commonwealth of Kentucky, previously filed dependency, neglect, and abuse petitions in the Bullitt Circuit Court (Action Nos. 17-J-0164 and 17-J-0165) on April 13, 2017, also alleging educational neglect of M.L.B. and M.K.R. Therein, it was alleged that M.L.B. and M.K.R. each had 57 unexcused absences from school.
A temporary removal hearing was subsequently conducted in the family court. By order entered September 11, 2018, M.L.B. and M.K.R. were placed in the temporary custody of the Cabinet as the family court found the children were at "risk of educational neglect." September 11, 2018, Order at 3. The September 11, 2018, order also included requirements A.R.R. was ordered to complete as part of her case plan with the Cabinet. The requirements included a substance abuse evaluation, random drug screens, remain clean and sober, and have a mental health assessment. The September 11, 2018, order further provided that A.R.R. could have supervised visitation only if she was compliant with the Cabinet's case plan as set forth in the family court's order. As A.R.R. was not compliant with the order, she was unable to exercise the visitation.
The matter was scheduled for trial on February 5, 2019. At the trial, A.R.R. stipulated to educational neglect of M.L.B. and M.K.R., and both children were committed to the custody of the Cabinet. By order entered February 5, 2019, A.R.R. was ordered "to work on reunification [case] plan as established by [the Cabinet]." February 5, 2019, Order at 3.
On October 8, 2019, the matter came before the family court for a review. The family court noted that M.L.B. and M.K.R. were "doing well in concurrent foster home" and that A.R.R. was "not compliant" with her reunification plan. October 8, 2019, Order at 3. The matter was again before the family court for a review on February 4, 2020. By order entered February 4, 2020, the family court noted that A.R.R. had "not been involved with treatment plan or children. Last scheduled a meeting in December, 2019 but did not show. [Cabinet] moving forward with T.P.R. [termination of parental rights] and adoption." February 4, 2020, Order at 3.
The Cabinet ultimately filed Petitions for Involuntary Termination of Parental Rights as to both M.L.B. and M.K.R. on June 24, 2020. By Findings of Fact and Conclusions of Law and Order Terminating Parental Rights and Order of Judgment entered April 22, 2021, the family court terminated A.R.R.'s parental rights as to M.L.B. and M.K.R. These appeals follow.
The applicable standard of appellate review upon findings made by the family court in a termination of parental rights case is the clearly erroneous standard of Kentucky Rules of Civil Procedure 52.01; and the findings of fact will not be set aside if supported by substantial evidence. M.L.C. v. Cabinet for Health and Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013) (citation omitted). A family court has broad discretion in determining whether the best interests of the child warrant termination of parental rights. C.J.M. v. Cabinet for Health and Family Servs., 389 S.W.3d 155, 160 (Ky. App. 2012) (citation omitted).
In Kentucky, the involuntary termination of parental rights is provided for in Kentucky Revised Statutes (KRS) 625.090. Under KRS 625.090, parental rights may be terminated only if the family court finds by clear and convincing evidence that the following three-prong analysis has been satisfied: (1) the child is abused or neglected as defined by KRS 600.020(1); (2) one or more of the factors set forth in KRS 625.090(2) exists; and (3) termination of parental rights is in the child's best interest. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). Our review proceeds accordingly.
The primary argument raised by A.R.R. is that the second prong of the termination analysis above was not satisfied. More specifically, A.R.R. asserts that there was not sufficient evidence to support the findings of fact made by the family court pursuant to KRS 625.090(2)(e), (g), and (j).
KRS 625.090(2) provides, in relevant part:
(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[.]
In the case sub judice, based upon our review of the record, it was demonstrated by clear and convincing evidence that one or more of the factors enumerated in KRS 625.090(2) existed. Relevant to KRS 625.090(2)(e), (g), and (j) the family court specifically found that M.L.B. and M.K.R. had been removed from A.R.R.'s care and placed in the temporary custody of the Cabinet by order entered September 11, 2018. The removal was based upon the educational neglect of M.L.B. and M.K.R. due to the numerous aforementioned absences and tardies from school. The family court was also aware of A.R.R.'s drug-related criminal history and ordered A.R.R. to complete certain requirements including a substance abuse evaluation and random drug screens. A.R.R. never completed the evaluation and failed to cooperate with the random drug screens. Due to A.R.R.'s failure to comply with the Cabinet's case plan as set forth in the family court's orders, A.R.R. was not permitted to have contact with the children. Therefore, for a period of not less than six months, A.R.R. continuously failed, refused, or was incapable of providing essential parental care for the children and no reasonable expectations of improvement in parental care existed. See KRS 625.090(2)(e). Likewise, due to A.R.R.'s failure or refusal to comply with the Cabinet's case plan as set forth in the family court's order, A.R.R. continuously and repeatedly failed to provide food, shelter, clothing, medical care, or education for her children and there was no reasonable expectation of improvement. See KRS 625.090(2)(g). Finally, M.L.B. and M.K.R. had been in foster care since September of 2018, under the responsibility of the Cabinet for more than 15 cumulative months out of the 48 months preceding the filing of the petition to terminate parental rights. As the family court found by clear and convincing evidence that one or more of the factors enumerated in KRS 625.090(2) were present, we believe A.R.R.'s contention to the contrary regarding KRS 625.090(2) is without merit.
A.R.R. also asserts that the family court erred as to the third prong of the termination of parental rights analysis. More particularly, A.R.R. contends that the family court erred in the Court's best interest of the children analysis under KRS 625.090(3). We emphasize that the language of KRS 625.090(3) provides that a best interest determination merely requires the family court to "consider" the factors set forth in subsections (a)-(f) of KRS 625.090(3); the statute does not require the court to make a finding of fact as to each and every factor. As previously articulated by our Supreme Court, "the statute itself notes, the factors [in KRS 625.090(3)(a)-(f)] are to be 'considered' in deciding whether termination is in the child's best interest. They do not necessarily dictate a result and are always subordinate to the best-interest finding that the court is tasked with making." D.G.R. v. Commonwealth, Cabinet for Health and Fam. Servs., 364 S.W.3d 106, 115 (Ky. 2012).
In the case sub judice, the family court was merely required to "consider" the factors set forth in KRS 625.090(3)(a)-(f) in making its best interest determination. From a review of the family court's judgments terminating A.R.R.'s parental rights, we believe the factors enumerated in KRS 625.090(3)(a)-(f) were properly considered, and we will address each seriatim. See Cabinet for Health and Fam. Servs. v. K.H., 423 S.W.3d 204, 212 (Ky. 2014).
Our analysis begins with KRS 625.090(3)(a), which provides that the family court shall consider any mental illness or intellectual disability of a parent. Relevant to this factor, the family court specifically stated that "due to [A.R.R.'s] non-compliance with court orders for mental health assessment, the Court did not have sufficient evidence to [make] a determination as to mental illness." A.R.R.'s Brief at 10. A.R.R. asserts that the Cabinet's social worker acknowledged that A.R.R. did submit to a psychological evaluation but believed the evaluation was stale as it was more than a year old. It does not appear that mental illness or intellectual disability was at issue in this case, or at least not an issue the family court considered in its determination that termination of A.R.R.'s parental rights was in the best interest of M.L.B. and M.K.R.
Next, KRS 625.090(3)(b) requires the family court to consider whether A.R.R. committed acts of abuse or neglect toward M.L.B. and M.K.R. Just before trial, A.R.R. stipulated to educational neglect of M.L.B. and M.K.R.; thus, the family court properly considered this factor in determining the best interest of M.L.B. and M.K.R.
KRS 625.090(3)(c) requires the family court to consider whether the Cabinet made reasonable efforts to reunite A.R.R. with the children. The family court found that the Cabinet did make reasonable efforts to reunite M.L.B. and M.K.R. with A.R.R. A review of the juvenile records submitted as exhibits at trial demonstrated that the Cabinet offered various services to A.R.R., including a psychological evaluation, substance abuse assessment, and parenting assessment in an attempt for A.R.R. to maintain contact through supervised visitation. A.R.R. maintains that the family court failed to consider that she participated in a parenting program. Even if A.R.R. did participate in a parenting program, the Cabinet offered numerous other services to A.R.R. that she did not participate in. Given the numerous services offered by the Cabinet and A.R.R.'s inability or refusal to participate, there is certainly substantial evidence in the record to support the family court's finding that the Cabinet made reasonable efforts to reunite M.L.B. and M.K.R. with A.R.R.
KRS 625.090(3)(d) requires the family court to consider the efforts and adjustments A.R.R. made in her circumstances, conduct, or conditions to enable the return of M.L.B. and M.K.R. to be in their best interest. Once again, A.R.R. asserts the family court failed to consider that she participated in a parenting program; however, A.R.R. did not provide the Cabinet with proof of her participation. And, again we note that even if A.R.R. did participate in one parenting program, she failed to participate in numerous other opportunities. A.R.R. did not submit to drug screens, a substance abuse assessment, or a parenting assessment. And, A.R.R. did not make any meaningful adjustments to her circumstances, conduct, or conditions that would support the return of her children to her children.
Pursuant to KRS 625.090(3)(e) the family court must also consider the physical, emotional, and mental health of the children and the prospect for improvement of their welfare if termination is ordered. A social worker for the Cabinet testified that M.L.B. and M.K.R. had received therapeutic intervention and were well-adjusted, appeared happy, and were attached to the foster family. In fact, the foster mother testified that M.L.B. and M.K.R. had not expressed any desire to have contact with A.R.R. Thus, we believe that the family court had clear and convincing evidence upon which to base its determination regarding the prospects for improvement of the children's welfare if termination was ordered.
Finally, KRS 625.090(3)(f) provides that the family court must consider any payments or any failure to pay a portion of the substitute care and maintenance for the children. A.R.R. testified to providing some payments, toys, and clothing to the foster parents for M.L.B. and M.K.R.; however, those were minimal in comparison to the actual cost of the children's care. The foster mother acknowledged that A.R.R. made two payments during the 27-month period and provided clothing and a paint set on one occasion. We do not believe this minimal amount of financial support provided by A.R.R. precludes the family court from determining that termination of A.R.R.'s parental rights was in M.L.B. and M.K.R.'s best interests.
Based on our review of the record, the family court did not commit reversible error by involuntarily terminating A.R.R.'s parental right to M.L.B. and M.K.R. The findings in support thereof are not clearly erroneous.
For the foregoing reasons, the Findings of Fact and Conclusions of Law and Order Terminating Parental Rights and Order of Judgment entered by the Jefferson Circuit Court, Family Court Division, is affirmed.
ALL CONCUR.