Opinion
2021-CA-0301-ME 2021-CA-0302-ME
01-14-2022
C.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; B.W., A MINOR CHILD; AND C.W. APPELLEES AND C.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; C.W.; AND D.W., MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Nancy Barnes Paducah, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN FAMILY COURT HONORABLE DEANNA WISE HENSCHEL, JUDGE ACTION Nos. 20-AD-00071, 20-AD-00072
BRIEF FOR APPELLANT: Nancy Barnes Paducah, Kentucky
BRIEF FOR APPELLEE: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: DIXON, McNEILL, AND K. THOMPSON, JUDGES.
OPINION
THOMPSON, K., JUDGE
C.H. (mother) appeals from the McCracken Family Court's orders terminating her parental rights to B.W. and D.W. (children).
Children were born to mother and C.W. (father). D.W. was born in February 2010 and B.W. in July 2014.
Father does not appeal from the termination of parental rights. We only discuss father's actions as needed to review the termination of mother's parental rights.
In October 2018, mother was in an automobile accident while intoxicated. Both children were in the car and received injuries which required hospitalization. Mother was arrested and criminally charged. Consequentially, the children were taken into care by the Cabinet for Health and Family Services (the Cabinet) and have remained in foster care since that time.
On October 5, 2018, in the juvenile dependency, neglect, and abuse (DNA) case, the Cabinet was granted emergency custody of children. In November 2018, mother made a stipulation to risk of harm pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and was adjudicated to have abused or neglected the children. In December 2018, the disposition hearing resulted in the children being committed to the Cabinet.
In March 2019, mother pled guilty to operating a motor vehicle under the influence (DUI) second, two counts of fourth degree assault, two counts of first degree wanton endangerment, and failure to maintain insurance. She received a total sentence of three years. However, mother was released in October 2019.
After mother was released, she was given a case plan to follow but had trouble maintaining sobriety and working her case plan. Given both parents' lack of progress, on August 31, 2020, the Cabinet filed a petition to terminate parental rights on multiple grounds.
On February 4, 2021, the termination trial was held remotely via Skype. Neither parent appeared, but both were represented by counsel. Testimony was provided by social worker Cher Youngblood, court appointed special advocate volunteer Martha Ryan, and the current foster father.
Youngblood testified she was the ongoing worker for the family. She explained the children came to the attention of the Cabinet in October 2018 when mother, who was driving from Kansas to Tennessee, was in an automobile accident while passing through Kentucky. When the accident occurred, the children were in the car and were injured. B.W. suffered a concussion, cuts, and abrasions, and D.W. had cuts and scrapes. Mother had a blood alcohol level of .12 and was charged with two counts of fourth-degree assault, two counts of wanton endangerment, and aggravated DUI. Youngblood testified that when the Cabinet asked father, who lives in Tennessee, to come and get the children, he stated he could not get them, he was living in a hotel, did not have a vehicle, and was in active substance use.
Youngblood testified that in 2010 mother received a DUI while D.W. was in the vehicle. She noted that there was previous Cabinet history from the time the parents lived with the children in Louisville consisting of domestic violence between the parents, substance abuse (with mother having a history of alcohol abuse and past methamphetamine use), and physical abuse. The Cabinet had received a report that D.W. was physically abused and had bruising to his face, and parents admitted to domestic violence which children witnessed.
Youngblood testified mother made some progress with her original case plan while incarcerated, completing moral reconation therapy (MRT) and some parenting classes and keeping in contact with children through letters. Therefore, the Cabinet filed for an Adoption and Safe Families Act (ASFA) exemption from having to pursue termination based on the amount of time that the children were in care, to allow mother more time to make progress with her new case plan, which was negotiated after mother was released in October of 2019.
Youngblood explained that under the new case plan, mother was required to obtain and maintain employment, obtain and maintain safe, stable, and appropriate housing; obtain a domestic violence assessment and follow all recommendations; obtain a substance abuse assessment and follow all recommendations; and complete a parenting assessment and follow all recommendations. Youngblood testified, however, that mother failed to make the hoped-for progress, not completing any of these requirements, and did not have any sustained period of sobriety after she was released. Youngblood was concerned about mother's drinking because she had previously driven with the children while intoxicated.
Youngblood testified mother moved to Paducah, Kentucky, in February 2020 and admitted in March 2020 to drinking alcohol again. Then, that summer, mother moved to Kansas where her family lives. Youngblood testified that she made sure mother was aware that moving to Kansas would make it more difficult to get her children back as it would require compliance with the Interstate Compact on the Placement of Children (ICPC).
Youngblood testified that in July 2020, mother finally submitted to a substance abuse assessment, but delayed returning for service until October 2020. Mother refused the recommendation that she engage in inpatient treatment. Mother instead agreed to do intensive outpatient treatment, but after attending a couple of sessions in October and one in November, on November 7, 2020 she tested positive on a drug screen for methamphetamine, THC, and alcohol. Youngblood explained that after mother failed to return to the program, she was discharged for noncompliance in December 2020.
Youngblood confirmed that mother had admitted to using alcohol, marijuana, and "dumber" things in the review in October 2020. She also confirmed that while mother thought she could do better by returning to Kansas where her support was, she did worse in Kansas. Youngblood explained that mother's housing situation is unstable with her having lived with various family members. Youngblood stated that mother is currently living with her mother, who is not appropriate. Youngblood noted that mother had a serious relapse in Kansas. Youngblood opined mother is not ready to parent at all.
Youngblood testified the Cabinet tried to pursue a placement with mother's half brother (uncle), but he did not complete the ICPC forms. Youngblood also testified about other relative placement options they had considered and explored, including an aunt who had called two days earlier, but explained that the appropriate relatives did not want to be considered or did not pursue placement and the aunt seemed satisfied after she was told the children were in a good, adoptive placement.
Youngblood testified mother did engage in Zoom visits with children but expressed concern with how mother behaved during these visits. She noted that mother was sometimes erratic and spoke about inappropriate things with them, but the children tried to keep her engaged. Youngblood denied that mother ever provided material support for the children.
Youngblood testified the children are doing well in their concurrent placement, which they have been in since July 2020, and are the happiest she has seen them since they have been in foster care. She noted D.W. is very excited about his foster brother who is the same age. She opined that adoption is in their best interest.
Ryan testified she observed visits between mother and the children, and agreed with Youngblood's assessment of the visits. She explained that while some weeks the visits were better than others, the visits are chaotic. Still, Ryan opined that the children love their mom and are excited to have the visits. Ryan testified the children are happy and in a good placement, but because of COVID-19 she has been unable to visit this home.
The foster father testified the children are doing well in his home and he and his wife plan to adopt the children after the termination is finalized. He testified the children settled in easily, relate well to his biological children, are doing well in school, want to be part of their family, and are doing well overall.
Several exhibits were introduced into evidence during Youngblood's testimony, including mother's criminal records, lab reports, mother's case plans, the ICPC rejection for uncle, and the complete DNA records. These exhibits were consistent with Youngblood's testimony.
At the conclusion of the evidence, the guardian ad litem (GAL) recommended that the termination be granted under multiple grounds.
The family court expressed that this was a sad situation, but that termination was in the best interest of the children. The family court made oral findings that the grounds for termination sought in the petition were met.
On February 9, 2021, the written orders were entered terminating the parents' parental rights to children. As to mother, the family court found that in the DNA case it was previously determined that mother had abused or neglected the children, but also found that mother neglected the children by: (1) continuously and repeatedly failing or refusing to provide essential parental care and protection for the children, considering the ages of the children; (2) not providing the children with adequate care, supervision, food, clothing, shelter, education, or medical care necessary for the children's well-being; and (3) failing to make sufficient progress towards identified goals as set forth in the court-approved case plan to allow for the safe return of the children that resulted in children remaining committed to the Cabinet and remaining in foster care for fifteen cumulative months out of forty-eight. The family court explained that mother failed to provide any care to children for twenty-eight months, since October 2018, resulting in them lingering in foster care during this time, with reunification not feasible in the foreseeable future based on lack of progress on mother's case plan.
The family court found it to be in the children's best interest that mother's parental rights be terminated, noting that the Cabinet rendered all reasonable reunification services, but mother made insufficient adjustments to her circumstances to safely parent children. The family court found that mother "is still actively using illegal drugs and abusing alcohol. She did not complete any items on her case plan." The family court also found children to be thriving in their current placement and that mother failed to financially support children.
The family court found the following grounds of parental unfitness as to mother: (1) for a period of not less than six months, mother had continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care or protection for children and there is no reasonable expectation of improvement in parental care and protection considering the age of the children; (2) the children have been in foster care under the responsibility of the Cabinet for fifteen months out of forty-eight months preceding the filing of the petition to terminate parental rights; (3) mother, 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 children's well-being and there is no reasonable expectation of significant improvement in her conduct in the immediately foreseeable future considering the age of the children; (4) mother has inflicted or allowed to be inflected upon the children, by other than accidental means, serious physical injury; and (5) mother has been convicted of a felony that involved the infliction of serious physical injury to any child. The family court also found that mother failed to offer any testimony concerning the need for additional services to bring about reunification and failed to prove that the children will not continue to be abused or neglected if returned to her. The family court noted that mother is not in a position to care for children, the children have lingered in foster care long enough, mother failed to show up at the final hearing, and mother is still abusing drugs and alcohol. The family court then made the legal conclusions that each ground needed for termination was established and termination was appropriate.
Mother appealed. Her counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky.App. 2012). In the Anders brief, counsel explained that there were no valid appellate issues to raise on mother's behalf. Counsel filed a motion to withdraw which was passed to the merits panel. Although mother was informed by counsel of her right to obtain alternative counsel or to file a pro se brief, and granted time to do so via Court order, mother did not take any action.
We grant counsel's motion to withdraw in a separate order.
Whether termination is appropriate depends upon whether the statutory requirements contained in Kentucky Revised Statute (KRS) 625.090 are met.
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a three-part test. 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)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).B.E.K. v. Cabinet for Health & Family Servs., 487 S.W.3d 457, 464 (Ky.App. 2016).
Because the family court has wide discretion in deciding to terminate parental rights, "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." Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "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." Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
There was sufficient evidence to support the termination. The family court made findings on all the required grounds for termination, finding that children were abused or neglected, finding parental unfitness established on multiple grounds, and finding that it was in the children's best interest that mother's parental rights be terminated. These findings were supported by the evidence presented at the termination hearing. We are satisfied that mother's failure to resolve her addiction problems and failure to complete the other goals needed for reunification justify the termination of her parental rights.
We are also satisfied that the Cabinet made a serious effort to assist mother, even seeking an ASFA exemption from having to pursue termination based on the amount of time that the children were in care, so that mother might have additional time to complete her assessments, follow recommendations, and achieve sobriety. It is very evident that everyone involved in this case wanted mother to make sufficient progress so that the children could be safely reunited with her. However, mother failed to make progress even during this extended time frame and without an appropriate relative placement option, mother's time to remedy her situation has simply expired.
Accordingly, we affirm the McCracken Family Court's termination of mother's parental rights to children.
ALL CONCUR.