Opinion
2020-CA-1502-ME
06-25-2021
C.D.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND D.R.M., A CHILD APPELLEES
BRIEF FOR APPELLANT: MaLenda S. Haynes Grayson, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CARTER CIRCUIT COURT HONORABLE DAVID D. FLATT, JUDGE ACTION NO. 19-AD-00039
BRIEF FOR APPELLANT: MaLenda S. Haynes Grayson, KentuckyBRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
OPINION
ACREE, JUDGE:
C.D.M. (Mother) appeals the Carter Family Court's October 20, 2020 findings of fact and order terminating her parental rights to her son, D.R.M. (child). Mother contends the family court erred by entering the order because there was not substantial evidence justifying a termination under KRS 625.090. Finding no error, we affirm.
Kentucky Revised Statutes.
BACKGROUND
In 2018, the Cabinet for Health and Family Services (Cabinet) became involved with this family due to Mother's drug abuse. After the initial investigation, Mother and Father came to the Cabinet asking for their relatives to receive custody of their child. (Trial Record (T.R.) at 81). The Cabinet filed a dependency, neglect, and abuse action, resulting in the family court entering a temporary removal order granting custody to the paternal grandmother and great-grandmother. (T.R. at 79). The case progressed to adjudication and disposition. At both hearings, Mother claimed she needed more time to work her case plan.On July 12, 2018, the family court held a permanency hearing and found Mother was not cooperating with the Cabinet. (T.R. at 93). Three months later, at a review hearing, Mother was still not working her case plan and continued struggling with substance abuse issues. (T.R. at 96).
Father is not a party to this appeal.
D.R.M. (child) was born September 29, 2016.
At some point in October 2018, the paternal grandmother and great-grandmother were no longer the custodian of the child. Instead, R.P. and H.P. became D.R.M.'s foster parents.
Mother's case plan included: (1) a substance abuse assessment; (2) mental health assessment; (3) parenting classes; (4) drug/alcohol free life-style; (5) random drug screens; (6) stable housing; (7) pay child support; and (8) cooperate with the Cabinet, drug court, probation officers, and foster family.
A year later, the Cabinet filed a petition to terminate parental rights under KRS 625.090. Mother objected. The family court held a hearing on September 17, 2020 via Zoom. At the hearing, the family court heard testimony from multiple Cabinet case workers and from Mother. Upon close of evidence, the family court entered findings of facts and an order terminating Mother's parental rights. The family court found Mother had not had any contact with the child since 2018, did not provide financially for the child, did not attend any medical appointments, had ongoing substance abuse problems, and failed to work her case plan. It stated the child now received proper medical care and had improved his speech and vocabulary since residing with his foster family. Ultimately, the family court terminated Mother's parental rights. This appeal followed.
Due to COVID-19, the court had to participate in virtual hearings.
STANDARD OF REVIEW
The family court has a great deal of discretion in an involuntary termination of parental rights action. M.P.S. v. Cab. for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). The standard of review in a termination case is confined to the clearly erroneous standard in CR 52.01, based upon clear and convincing evidence, and the findings of fact of the family court will not be disturbed unless no substantial evidence exists in the record to support its findings. Id. at 116; V.S. v. Commonwealth, Cab. for Human Resources, 706 S.W.2d 420, 423 (Ky. App. 1986). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
Kentucky Rules of Civil Procedure.
ANALYSIS
Before terminating parental rights, the family court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
Mother acknowledges her child was found to be abused or neglected; thus, this appeal pertains only to the second and third prongs of the analysis. We address each in turn.
Grounds for Termination
No termination shall be granted unless the family court finds by clear and convincing evidence the existence of one or more of the grounds listed in KRS 625.090(2). In this case, the family court found three reasons, by clear and convincing evidence, to terminate Mother's parental rights. It relied on KRS 625.090(2)(a), (e), and (g), finding: (1) that Mother abandoned child for a period of not less than ninety days, KRS 625.090(2)(a); (2) that for a period of not less than six months, Mother was substantially incapable of providing essential parental care and protection for her child and there is no reasonable expectation of improvement, KRS 625.090(2)(e); and (3) Mother continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being. KRS 625.090(2)(g).
Mother's child had been removed from her care in 2018 and remained with relatives since. All the while, Mother struggled with addiction. She continued to abuse illegal substances after the child was removed and failed to seek the appropriate treatment in a reasonable amount of time. Also, Mother failed to satisfy a child support arrearage of $2, 449.21. Based on this, the family court concluded Mother abandoned her child, is incapable of providing essential parental care, and has continuously failed to do so. These findings are supported by substantial evidence.
Mother argues she now has a home, vehicle, employment, and is making steps toward sobriety. However, Mother's history makes it unreasonable to expect improvement in the foreseeable future. Her inability to work through the entirety of the case plan until faced with a termination hearing and her failure to change her lifestyle demonstrate that, for reasons other than poverty, she failed to provide for her children.
Best Interest
KRS 625.090(3) lays out the factors courts shall consider in determining the best interest of a child. These factors are: (a) mental illness that renders the parent unable to care for the child; (b) acts of abuse or neglect toward any child in the family; (c) the Cabinet's reasonable efforts to reunite the child with the parents if the child has been placed with the Cabinet; (d) the parent's efforts and behavioral adjustments that tend to make return of the child to the parent in that child's best interests; (e) the physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare; and (f) the parent's payment or the failure to pay a reasonable portion of cost of the child's physical care and maintenance. KRS 625.090(3)(a)-(f). All factors must be considered but not all need be proven to find termination is in the children's best interest. KRS 625.090(3).
The family court found: (1) the efforts and adjustments Mother made were not adequate to make it in the children's best interest to return the child to her custody; (2) the child is thriving; and (3) the child formed a significant bond and attachment with his foster parents and adjusted well to their home.
In foster care, the child was able to have a much needed dental surgery due to rotten teeth, has improved his speech and vocabulary, is now up-to-date on immunizations, and progressing well with First Steps.
Mother then argues the Cabinet failed to make reasonable efforts to reunite her with her child. We disagree. "Reasonable efforts" are defined as the "exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available . . . which are necessary to enable a child to safely live at home." KRS 620.020(13). The Cabinet offered numerous services to Mother, but she did not comply with her case plan. Mother had a meaningful opportunity to work her case plan but chose to make no effort until recently.
The family court also considered the efforts and adjustments made by Mother. KRS 625.090(3)(d). The evidence presented at trial demonstrated to the family court that Mother's participation in the services offered did not motivate her to make any meaningful lifestyle change until too late. We do not diminish Mother's current efforts or accomplishments, but the family court found these changes did not demonstrate an expectation of improvement. We cannot conclude that such findings were an abuse of the court's discretion.
The family court also considered whether the child has prospects for improvement if termination is ordered. KRS 625.090(3)(e). The family court found affirmatively under this factor, and we conclude the finding was supported by the evidence. The family court found the child "has formed a significant bond and attachment with the foster parents and adjusted well in their home." And further, "[t]he child is thriving in the relative's care." Given that finding, the family court's conclusion is sound, and the child is properly cared for in his foster family.
There is no evidence conclusively demonstrating Mother's ability or willingness to care for her child. A parent's duty to support her child does not require a court order. Barnes v. Turner, 280 S.W.2d 185, 187 (Ky. 1955). In this case, however, Mother was court-ordered to pay child support and she still failed to comply. She has an arrearage of $2, 449.21 and failed to support her child financially. There is clear and convincing evidence supporting the family court's decision.
CONCLUSION
For the foregoing reasons, we affirm the Carter Family Court's October 20, 2020 order terminating Mother's parental rights.
ALL CONCUR.