Opinion
NO. 2020-CA-0029-ME NO. 2020-CA-0127-ME
01-29-2021
D.H. APPELLANT v. COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; A.N.D.; AND I.N.H., A MINOR CHILD APPELLEES AND A. D. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES AND I.N.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT A.N.D.: Mary Rives Chauvin Louisville, Kentucky BRIEF FOR APPELLANT D.H.: Courtney Preston Kellner Louisville, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 19-AD-500279T OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND L. THOMPSON, JUDGES. COMBS, JUDGE: This is a consolidated appeal in which the Appellant, D.H. (Father), and Appellant, A.N.D. (Mother), separately challenge the order of the Jefferson Circuit Court terminating their parental rights. After our review, we affirm.
Mother is the natural mother of a female child born on August 13, 2013. Father is the child's legal father because his name was placed on the child's birth certificate. KRS 213.046(4). The trial court's Findings of Fact and Conclusions of Law entered December 17, 2019, provide a summary of the background of this case as follows in relevant part:
Kentucky Revised Statutes.
This Court first became involved with this family in 2018 when an Emergency Custody affidavit was filed on January 12, 2018 followed by a Dependency Neglect and Abuse petition which was filed on January 16, 2018. The petition alleged that Respondent father had taken the child to Baptist East Hospital stating that Respondent mother had placed a microchip in the child's knee, demanding hospital staff remove it, and becoming irate at the facility, slamming doors, and yelling at staff, causing them to have concerns for his mental health. Dependency, Neglect, and Abuse File ("DNA File"), Cabinet's Exhibit 2.
A temporary removal hearing was held on January 18, 2018 and at that time the child was placed in the temporary custody of her paternal grandmother. It was further ordered that Respondent father have a psychological evaluation and follow all recommendations, attend counseling through Centerstone and follow all recommendations, and take all medication as prescribed; that Respondent mother attend a parenting assessment and follow all recommendations; that both parents submit to a hair follicle drug screen and if there is a positive result, then random drug screens, remain clean and sober, and have supervised visitation. DNA File, Cabinet's Exhibit 2. The matter came on for pretrial on March 8, 2018 which was passed to March 22, 2018 due to a pending investigation regarding the temporary custodian. The child was placed in the temporary custody of the Cabinet at this time. DNA File, Cabinet's Exhibit 2. When the matter came back before the court for the second pretrial on March 22, 2018, this Court ordered that the child remain in the Cabinet's temporary custody; that Respondent father have random drug screens, attend counseling and follow all recommendations, and take all medications as prescribed; and that both parents remain clean and sober and have visitation if compliant with court orders. DNA File, Cabinet's Exhibit 2. The matter was set for trial on April 12, 2018, but Respondent Father was removed from the courthouse by law enforcement. The child was returned to Respondent mother and the case was scheduled for a new trial on September 13, 2018. DNA File, Cabinet's Exhibit 2.
However, before the second trial date arrived, a second emergency custody affidavit and a second Dependency, Neglect, and Abuse petition were filed on July 25, 2018 and July 27, 2018, respectively. The second petition alleged that Respondent mother was
shown on video[] to have been yelling and holding the child down on the bed while hitting her with a hair brush on the buttocks and legs and to have hit the child in the face while shoving her and picking her straight up by her pony tail and pushing her to the ground. The petition further alleged that while bathing the child Respondent mother held her in a chokehold and put her head in the water and made threats to the child such as that she would hit her in the head and kill her. DNA File, Cabinet's Exhibit 2. The matter came on for a temporary removal hearing on July 30, 2018 and at that time the child was placed in the temporary custody of her paternal grandfather and orders to the parents were as follows[:] Respondent mother was ordered to attend a parenting assessment and follow all recommendations, and to have a psychological evaluation and follow all recommendations. Respondent father was ordered to attend counseling and follow all recommendations. Both parents were ordered to have random drug screens, take all medication as prescribed, and have supervised visitation if compliant with other court orders. DNA File, Cabinet' Exhibit 2.
The matter came before the Court on September 20, 2018 and that that time [sic], the proposed relative placement advised that she could not take temporary custody. The child was once again placed in the temporary custody of the cabinet and prior consistent orders remained in effect. DNA File, Cabinet's Exhibit 2. The matter came before the Court for trial on March 14, 2019. At that time, this Court made a finding that the child had been placed at risk of abuse and neglect due to Respondent father's behavior. Respondent mother stipulated to a finding of neglect or abuse and stipulated to inappropriate discipline of the child. DNA File,
Cabinet's Exhibit 2. Disposition was held on May 30, 2019 and the child was committed to the Cabinet. Prior consistent orders remained in place. DNA File, Cabinet's Exhibit 2.(Italics original.)
Toward the end of the TPR trial, the court asked the Cabinet's witness, Ms. Gadsden, about the video. She explained that there is one and that she still has it in her office. However, the video was never entered into evidence apparently because Mother stipulated to a finding of a risk of neglect or abuse in the DNA action.
On May 28, 2019, the Cabinet filed a Petition for Involuntary Termination of Parental Rights (TPR) and for appointment of a guardian ad litem (GAL). The case was set for trial on November 1, 2019. On that date, Father's counsel moved for a continuance -- in part because the Cabinet had failed to timely comply with the trial court's order that it disclose its witness list and exhibits at least 15 days before trial. Mother's counsel joined in the motion. The court granted the continuance. On November 1, 2019, the Cabinet served an amended pre-trial compliance response upon counsel, which reflects that the records listed as exhibits therein were hand delivered to counsel in digital format (Father's Appellant's Brief, Appendix 5).
Trial was conducted on November 19, 2019. We have carefully reviewed the recorded proceeding. Both parents were present and were represented by their respective appointed counsel. Father arrived late. Amanda Gadsden, the caseworker, testified on behalf of the Cabinet. We discuss her testimony below as relevant to the issues before us.
It does not appear that the Cabinet's trial exhibits were included in the record on appeal. The record in 2020-CA-00029-ME (Father's appeal) contains one small manila envelope marked "Exhibits," which contains only a "Report of Guardian Ad Litem." We note that the February 19, 2020, Certification of Record on Appeal reflects that the record on appeal contains one envelope of Exhibits. "It is the responsibility of the appellant to ensure that this Court receives the complete record. We must presume that the missing parts of the record support the findings of the trial court." Brannock v. Brannock, 598 S.W.3d 91, 95 (Ky. App. 2019) (citations omitted).
The Cabinet moved to introduce the certified psychological evaluation of Mother. Mother's counsel objected because the certification was not included when the records were provided by the Cabinet. Father's counsel joined in the objection as it pertained to him. The Cabinet explained that they had provided copies of the evaluation to counsel. However, because the facility did not have a notary on staff, it had to find a notary to get the records certified. The court overruled the objection. Explaining that although it would have sustained an objection to entry of the records if they had not been certified, the court noted that they now were certified and that counsel had actual notice of the copies. Further discussion ensued regarding notarization of the psychological evaluation in context of the Cabinet's introducing records from Centerstone. The Cabinet explained that the entire original packet of records was taken back to the facility to be notarized. Based on that representation, the court overruled the objection as it pertained to the "psych."
On December 17, 2019, the trial court entered Findings of Fact and Conclusions of Law and entered an Order Terminating Parental Rights and Order of Judgment as to each parent.
Both parents appeal. In Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204 (Ky. 2014), our Supreme Court explained that:
KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.Id. at 209. The standard of our review is a determination as to whether the trial court's findings are clearly erroneous. CR 52.01.
The trial court has a great deal of discretion in an involuntary termination of parental rights action. . . . [F]indings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. 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.C.A.W. v. Cabinet for Health & Family Services, Commonwealth, 391 S.W.3d 400, 403 (Ky. App. 2013) (citations and internal quotation marks omitted).
Kentucky Rules of Civil Procedure.
On appeal, Father raises several issues. He first contends that the Cabinet did not meet its burden of proof. Next, he raises an issue regarding discovery and certification of the psychologist's evaluation report. In addition, Father contends that KRS 625.090(1) is unconstitutional. He also asks this Court to revisit A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. 2012), with respect to the appointment of counsel without compensation in a TPR appeal.
On appeal, Mother contends that there was insufficient evidence to sustain a finding that the child was abused or neglected, that the trial court erred in its findings as to Mother under KRS 625.090(2)(a)(c)(e) and (g), and that the court erred in finding that termination was in the child's best interest. Mother also raises an issue regarding the admission of psychological records. She contends that KRS 625.090(1)(a) is unconstitutional and she also asks us to revisit A.C. v. Cabinet, supra.
The same issues are involved in the last three arguments propounded both by Mother and by Father. We address those first.
Father and Mother contend that the trial court should have excluded the psychological records. As set forth above, the trial court overruled the objection because the records had been certified at the time the Cabinet sought to introduce them at trial. We find no abuse of discretion. D.L.B. v. Cabinet for Health and Family Services, 418 S.W.3d 426 (Ky. App. 2014) (standard of review of trial court's evidentiary rulings is abuse of discretion).
Father and Mother also argue that KRS 625.090(1)(a) is unconstitutional, contending that the statute effectively lowers the standard of clear and convincing evidence required in TPR cases by allowing the trial court to adopt a finding of neglect or abuse from an underlying DNA proceeding, which is based upon the lower standard of preponderance of the evidence. KRS 418.075(2) requires that:
In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal appellate courts in any forum which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant's brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect.(Emphasis added.)
Neither Appellant complied with this statute by serving the Attorney General with a copy of the Notice of Appeal specifying the challenged statute and nature of alleged constitutional defect. Accordingly, we cannot consider the issue. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008) ("[S]trict compliance with the notification provisions of KRS 418.075 is mandatory . . . .").
Father and Mother separately but similarly ask us to revisit A.C. v. Cabinet -- specifically, whether appointed trial counsel must continue representation without compensation at the appellate level. We decline to do so. In A.C., this Court concluded that "the Kentucky legislature, by virtue of KRS 625.080(3), intended to provide for the appointment of counsel for indigent parents at all stages of the termination proceedings, including any appeal." 362 S.W.3d at 367. It articulated its reasoning as follows:
This Court believes that counsel who accepts appointment to represent an indigent parent in a termination case is obligated to see the case through the entire proceeding, including the appeals process, despite the rather meager compensation provided appointed counsel. See KRS 625.080(3) (authorizing a $500 maximum fee for appointed counsel in termination of parental rights cases)[.]362 S.W.3d at 367 n.10. We agree with the reasoning of another panel of this Court that we are "unauthorized to ignore that cap on fees. That is the province of the General Assembly . . . ." R.M. v. Cabinet for Health and Family Services, No. 2018-CA-000190-ME, 2018 WL 5778770, *3 (Ky. App. Nov. 2, 2018) (citation omitted).
Next, we turn to Father's remaining argument that the Cabinet did not meet its burden of proof. We disagree. The trial court determined that the child has been adjudged to be abused or neglected as defined in KRS 600.020(1) by a court of competent jurisdiction, having found in the DNA proceeding that the child had been placed at risk of abuse and neglect due to Father's behavior. That finding satisfied the first prong of the tripartite test under KRS 625.090(1)(a)1.
The trial court also independently found the child "in this proceeding to be abused or neglected, by each Respondent parent, as defined in KRS 600.020(1)." (Findings of Fact and Conclusions of Law, p. 12.) Father made a conclusory assertion that no additional evidence was presented at the TPR trial to allege abuse or neglect based upon clear and convincing evidence. We disagree. Ms. Gadsden's testimony at trial supports the court's findings with regard to Father; i.e., that he failed to consistently treat for his mental illness and to take his medication as prescribed and that his behavior at supervised visits was inappropriate. We agree with the Cabinet that substantial evidence supports an independent finding of neglect under KRS 600.020(1).
The second prong is the best interest of the child. Father made at best a generalized argument that the Cabinet "failed to present why" termination would be in the child's best interest, noting only that the child had been in multiple placements and had been hospitalized in Our Lady of Peace. "In conducting a best interest analysis, a trial court must consider the six factors enumerated in KRS 625.090(3)(a)-(f)." K.H., 423 S.W.3d at 212. Those six statutory factors are:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;KRS 625.090(3).
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
The standard of our review on appeal is as follows:
When reviewing a family court's determination of the best interests of a child, we must apply the abuse of discretion standard. Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained.D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 837 (Ky. App. 2011) (citations omitted).
The trial court's best-interest analysis is set forth at pages 8-11 of its ample Findings of Fact and Conclusions of Law, and we need not repeat them. The trial court carefully considered the statutory factors and made detailed findings as to each parent in concluding that termination of parental rights was in the child's best interest. We are satisfied from our review of the record before us that there was no abuse of discretion. Thus, the second prong of the tripartite test was met.
The third statutory prong requires that at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists -- and only one is required. The trial court determined that:
The Respondent parents, for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child.(Findings of Fact and Conclusions of Law, p. 12.) In determining a ground for termination, the trial court must consider the same factors as it does when conducting its best-interest analysis. KRS 625.090(3).
In its analysis, the trial court found that Father had consistently failed to attend counseling and take his medication as prescribed and that as a result, the child was unable to return safely to parental custody, remaining in the Cabinet's care and custody for not less than a year. Ms. Gadsden's testimony supported the trial court's findings. She did not believe that it would be appropriate for Father to have unsupervised visitation because he was inconsistent in taking medication and attending counseling. Ms. Gadsden testified that Father's behavior was sporadic, that while he talked to her, he became upset when she was just answering a question. He told Ms. Gadsden that he did refer to the child with a racial slur when he was not on his medication. There were issues with Father's behavior toward the supervisor, and they were considering stopping the visitation. Ms. Gadsden confirmed that there were safety issues as to Dad's behavior causing the Cabinet not to allow him to have unsupervised visitation. Ms. Gadsden believes that the child would be at risk if she were unsupervised in the care of Father.
We agree with the Cabinet that it proved by clear and convincing evidence that one or more grounds for termination under KRS 625.090(2) exists. As to Father, the three-prong test of KRS 625.090 has been satisfied, and we affirm the trial court's order terminating Father's parental rights.
We address Mother's remaining arguments. She contends that there was insufficient evidence to sustain a finding that the child was abused or neglected under prevailing Kentucky law. We disagree. Mother stipulated in the underlying DNA case that she had placed the child at risk of neglect or abuse. Therefore, the trial court determined that the child has been adjudged to be an abused or neglected child as defined in KRS 600.020(1) by a court of competent jurisdiction. That finding properly satisfied the first prong of the tripartite test under KRS 625.090(1)(a)1.
"As stated in KRS 600.020(1)(a)(2), a court can find neglect if an individual 'creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means.'" Cabinet for Health and Family Services on behalf of C.R. v. C.B., 556 S.W.3d 568, 576 (Ky. 2018).
Moreover, the trial court independently found the child "in this proceeding to be abused or neglected by each Respondent parent, as defined in KRS 600.020(1)." In its analysis, the trial court found specifically as to Mother that she failed to obtain stable housing in an appropriate home -- despite being told by the caseworker that the adult with whom she was living with would pose a risk of harm to the child. Mother also failed to follow the recommendations of her psychological evaluation, particularly with regard to completing protective parenting and maintaining consistent treatment for her mental illnesses. Ms. Gadsden's testimony at trial supported these findings and provided a substantial evidentiary foundation for the trial court's determination that the child is an abused or neglected child as defined in KRS 600.020(1).
With respect to the remaining two prongs, Mother contends that the trial court erred in its findings under KRS 625.090(2) and that it erred in finding that termination was in the child's best interest. We address the latter contention first. As noted above, the trial court's best-interest analysis is set forth at pages 8-11 of its Findings of Fact and Conclusions of Law.
Mother argues that the Cabinet failed to make reasonable efforts to reunite her with her daughter. We disagree. KRS 625.090(3)(c) requires the trial court to consider reasonable reunification efforts if the child has been placed with the Cabinet prior to the filing of the petition. The trial court determined that the Cabinet had made "appropriate referrals to drug screening, parenting assessments and classes, individual counseling, supervised visitation sessions and various other services." The trial court noted that the Cabinet social worker testified that "she was unaware of any other services" that would allow for safe reunification in a reasonable time considering the child's age. Ms. Gadsden's testimony provided substantial evidence to support the trial court's findings. We find no abuse of discretion.
Mother's final argument is that the trial court erred in its findings under KRS 625.090(2). We disagree. The trial court found as follows:
The Respondent parents, for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of
improvement in parental care and protection, considering the age of the child.(Findings of Fact and Conclusions of Law, p. 12.) In its analysis, the trial court found that Mother had failed to abide by the order that she follow all recommendations of the psychological evaluation, and she had not completed the recommended protective parenting classes. The trial court found that Mother also failed to obtain appropriate housing in a stable home and that she continued to reside with a person identified by her caseworker as a risk to the child.
To recapitulate, Ms. Gadsden's testimony provided ample support for the trial court's findings. Mother was not admitted to protective parenting due to her accountability issues and her self-reporting that she had untreated bipolar symptoms. Mother was ordered to obtain stable housing in January 2018. Mother was living with a friend who was the owner of the home; however, that person was not appropriate. In March or April of 2019, Ms. Gadsden talked to Mother and told her she would have to find different housing. At that time, Mother understood that she could not get the child back in her care if she continued to live with that person.
Mother also contends that the trial failed to consider the age of the child. We disagree. The trial court was not persuaded from the totality of the evidence presented that the child would not continue to be abused or neglected if returned to parental custody. We agree with the Cabinet that the trial court correctly determined that there was no reasonable expectation of improvement considering the age of the child.
The Cabinet met its burden of proving that an enumerated ground for termination exists under KRS 625.090(2)(e). Again, as noted above, proof of only one ground is required, and we need not address Mother's remaining arguments regarding the other grounds.
We AFFIRM the trial court's order terminating Mother's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT A.N.D.: Mary Rives Chauvin
Louisville, Kentucky BRIEF FOR APPELLANT D.H.: Courtney Preston Kellner
Louisville, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY CABINET FOR
HEALTH AND FAMILY
SERVICES: Tiffany L. Yahr
Covington, Kentucky