Opinion
2022-CA-0653-ME 2022-CA-0656-ME 2022-CA-0657-ME 2022-CA-0658-ME 2022-CA-0659-ME 2022-CA-0660-ME 2022-CA-0661-ME 2022-CA-0662-ME
06-23-2023
E.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND I.S.H.K., A MINOR CHILD APPELLEES AND E.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND E.J.K., A MINOR CHILD APPELLEES AND E.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND K.N.W.K., A MINOR CHILD APPELLEES AND E.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND R.Y.K., A MINOR CHILD APPELLEES AND D.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND I.S.H.K., A MINOR CHILD APPELLEES AND D.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND E.J.K., A MINOR CHILD APPELLEES AND D.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND K.N.K., A MINOR CHILD APPELLEES AND D.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND R.Y.K., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT E.K.: Holly J. McCabe Cincinnati, Ohio BRIEF FOR APPELLEE: Kevin Martz Covington, Kentucky BRIEF FOR APPELLANT D.K.: Daniel T. Guidugli Alexandria, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT HONORABLE LINDA R. BRAMLAGE, JUDGE ACTION NOS. 21-AD-00034, 19-AD-00004, 19-AD-00003, 19-AD-00002, 21-AD-00034, 19-AD-00004, 21-AD-00003, 19-AD-00002
BRIEF FOR APPELLANT E.K.: Holly J. McCabe Cincinnati, Ohio
BRIEF FOR APPELLEE: Kevin Martz Covington, Kentucky
BRIEF FOR APPELLANT D.K.: Daniel T. Guidugli Alexandria, Kentucky
BEFORE: ACREE, EASTON, AND JONES, JUDGES.
OPINION
JONES, JUDGE
D.K. ("Father") and E.K. ("Mother") (collectively referred to herein as "Parents") appeal the termination orders of the Boone Circuit Court ("family court") as to their four minor children. Following careful consideration of the record and all applicable law, we affirm.
I. Background
Mother and Father have four children together: E.J.K., born in 2012; K.N.W.K., born in 2014; R.Y.K., born in 2016; and I.S.H.K., born in 2019. The family court previously terminated Parents' rights to the three oldest children in April 2019. Parents appealed the prior termination orders. Following a careful review of the records, this Court reversed holding that the termination orders were not supported by substantial evidence where Parents had successfully completed their case plans and where the Cabinet had failed to present any medical evidence that "conclusively establish[ed] that the parents lack the mental capacity or ability to properly raise and care for their children." E.K. v. Cabinet for Health and Family Services, Nos. 2019-CA-0709/0710/0711/0712/0713-ME, 2020 WL 6538321, at *6 (Ky. App. Nov. 6, 2020). The matters were remanded to the family court with directions for the Cabinet to either continue working with Parents toward reunification with their children or to refile the parental termination actions after having obtained medical opinions supporting the Cabinet's contentions that Parents lack the capacity to apply the skills obtained from complying with their case plans. Id.
By the time these actions had been remanded, the parties' youngest child, I.S.H.K., was also in the Cabinet's custody. When the Cabinet renewed its termination petitions as to the three older children, it filed an initial petition seeking to terminate parental rights as to I.S.H.K.
While the termination orders for the three older children were pending before this Court, Parents agreed to take part in a parenting assessment as related to I.S.H.K., the youngest child. Dr. David Feinberg conducted this assessment. On remand, Parents agreed to an additional parenting assessment to be conducted by Dr. Paul Ebben. After completion of the parental assessments and further investigation, the Cabinet moved to terminate Parents' rights to the four children. The family court conducted a new evidentiary hearing at which it heard extensive testimony regarding the family's history, the Cabinet's recent observations, and the opinions of Drs. Feinberg and Ebben.
Heather Coyle, the Cabinet's designated social worker for the family, was the first witness to testify. She explained that this family has a long history with the Cabinet going back to 2013. At that time, the Cabinet was alerted to concerns about the state of the family's home and lack of proper supervision by Parents. The Cabinet began working with the family and conducting in-home visits. The two older children were removed from the family's home in 2014 following one such in-home visit. At that time, the home, which lacked electricity, was unbearably hot, cluttered, and unsanitary. The children were not being properly cared for as demonstrated by E.J.K.'s severe diaper rash. Metal staples were found in some of the children's food, and six-month-old K.N.W.K. was playing with a metal twist tie. Dangerous items such as tools were scattered around the home.
In May 2016, the two older children were returned to Parents' care. R.Y.K. was born a few months later in August 2016. All three children were removed in August 2017 after a home visit revealed the home to have reverted to its prior state or worse. There was animal feces and urine throughout the house, which the children were walking on. The children were covered in bites from head to toe, and R.Y.K.'s bottom was bleeding from open sores. Very little food was in the home. Additionally, there was no working plumbing; instead, there was a bucket full of feces and urine in the bathroom that the family was apparently using as their commode. In September 2017, Parents admitted to neglect of the three children.
Mother became pregnant with I.S.H.K. in 2018 but was not aware of her pregnancy and did not receive any prenatal care. After giving birth, hospital staff instructed Mother not to sleep with the infant because it was not safe, but staff repeatedly observed her doing so. While in the hospital, Mother reported experiencing auditory and visual hallucinations. Hospital staff contacted the Cabinet, and I.S.H.K. was removed from Parents prior to leaving the hospital by order of the family court due to remaining environmental concerns about the family home and Mother's apparent mental instability.
Social Worker Coyle testified about the numerous services the Cabinet provided Parents and the details of their extensive case plans, which included supervised parenting time, completing various parental assessments and classes, paying child support, receiving counseling, maintaining employment, and keeping a clean and animal-free home. According to Social Worker Coyle, Mother and Father completed all the tasks the Cabinet required. Nevertheless, she was not satisfied that they had the ability to independently care for their children. She described her interactions with Parents as "talking in circles." Parents could do what was directed but seemed unable to make proper parenting decisions on their own. For example, they could fix a cabinet door when told to do so but seemed unable to recognize the danger it might pose to the children without being specifically told.
Next, the family's assigned CASA worker since 2017, Eileen Donahue, testified. Ms. Donahue's concerns were similar to the concerns expressed by Social Worker Coyle. She noted that Parents seemed unaware of the dangers certain items like space heaters could pose, and she noted that despite being ordered not to keep animals in the home, Mother was nursing a sick mouse to health and had mouse food in the cabinets. Ms. Donahue testified that Mother did not believe the house was unsanitary when the children were removed, telling her that she had just cleaned it the evening before.
Court appointed special advocate.
Dr. Feinberg testified next. He conducted parental capacity evaluations in January 2020 as related to Parents' capacity to care for the youngest child. Dr. Feinberg noted that Parents arrived unkempt and seemed not to appreciate the importance of proper grooming and hygiene. Dr. Feinberg concluded that Father had very low verbal comprehension, attachment difficulties due to his own traumatic childhood, and a defensive personality. It was Dr. Feinberg's opinion these issues make it extremely unlikely that Father will be able to appropriately bond with and safely care for any child notwithstanding the numerous services he has received from the Cabinet. Dr. Feinberg diagnosed Mother with schizotypal personality disorder, which compromises one's recognition of reality. Dr. Feinberg concluded that Mother's inability to recognize reality means she will likely always struggle with parental adaptiveness, and he opined that there is no likelihood that she will be able to change her behavior sufficient to allow her to safely and independently parent her children.
Dr. Ebben also testified. After remand, he evaluated Parents and the three oldest children. Dr. Ebben concluded that Father has a heightened selfimage, which does not lend itself to being receptive to instruction, making him unable to apply the skills he was taught during his case planning with the Cabinet. Dr. Ebben diagnosed Mother as suffering from a mood disorder, depression, and hypomanic traits. He indicated that Mother needs psychological treatment but that she is not inclined to receive it. Dr. Ebben also explained that Mother did not accept her and Father's past parental shortcomings making it unlikely that she will be able to change her parenting behavior in the future.
The three older children reside together with the same foster family. Their foster father testified about the many physical and emotional issues the children had when they first came to the family. He testified that overall, the children have improved but that they experienced regression after visits with Parents. When parental visitation was stopped in 2019, the children began steady improvement without regression. He believes the children are bonded to the foster family and testified that they do not ever ask or talk about their Parents. Foster father and his wife desire to adopt the children.
I.S.H.K. was placed with a different foster family. He came to the family as a newborn and has never resided with Parents. At the recommendation of his pediatrician, I.S.H.K. had tubes surgically placed in his ears to prevent chronic ear infections and another surgery to correct his exotropia (colloquially known as cross-eyes). Foster father testified that Mother was against the surgeries believing I.S.H.K. should learn to live with his vision problem and that he would likely out-grow his ear problems.
Father's mother also testified at the hearing. She last observed the children with Parents approximately three years prior to the hearing. At that time, she had no concerns regarding Parents' ability to care for the children. She believed Parents acted appropriately toward the children and were overall good parents.
Father testified next. He explained that he has done everything the Cabinet requested of him, and he disagreed that he has any mental or emotional limitations that prevent him from being able to care for the children. He testified that he understood why the children were removed from his care. He blamed his prior failures regarding the home's state on his work schedule. While he admitted that reunification would take some time given the length of time the children had been away, he believed it was in their best interests to be returned to him and Mother.
Mother's sister was called to testify next. Although she had not seen Mother interact with the children in many years, she testified that she never had any concerns about Mother's ability to properly parent them. She testified that Mother was always appropriate and responsive to the children's needs. If Mother had questions regarding the children's care, she always reached out to her for advice.
Mother was the last witness to testify. She testified that the children were removed because of "clutter" in the home, which she described as primarily consisting of bags of old clothing and some tools that needed to be moved to a shed that the family eventually purchased. Mother admitted to having on-going hallucinations, which she attributed to her Wiccan beliefs rather than any mental illness. Mother admitted that she was not taking any mental health medications or receiving any on-going counseling.
Following the hearing, the family court entered orders terminating Parents' rights to all four children. These appeals by Mother and Father followed.
II. Standard of Review
Termination of parental rights cases are tried in private hearings before the family court. KRS 625.080. After the hearing, the family court is required to make findings of fact and conclusions of law supporting its decision on the termination petition. Id. "Broad discretion is afforded to [family] courts to determine whether parental rights should be terminated, and our review is limited to a clearly erroneous standard." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021).
Kentucky Revised Statutes.
Factual findings which are supported by substantial evidence of record are not clearly erroneous. R.M. v. Cabinet for Health and Family Services, 620 S.W.3d 32, 37-38 (Ky. 2021). "Substantial evidence is that which is sufficient to induce conviction in the mind of a reasonable person." Id. at 37. "When the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions which we review de novo. If the [family] court's factual findings are not clearly erroneous and the legal conclusions are correct, we are limited to determining whether the [family] court abused its discretion in applying the law to the facts." H.L.O., 621 S.W.3d at 462 (citations omitted).
III. Analysis
KRS 625.090 sets forth the requirements which must be met before a court in Kentucky can involuntarily terminate a parent's rights to his or her child. First, as it concerns these appeals, the family court must determine that the child is an abused or neglected child or that the child was previously determined to be an abused or neglected child by a court of competent jurisdiction. KRS 625.090(1)(a)1.-2. Second, a petition seeking the termination of parental rights must have been filed by the Cabinet pursuant to KRS 620.180. KRS 625.090(1)(b). Third, the family court must find that termination is in the best interest of the child. KRS 625.090(1)(c). Finally, the family court must find by clear and convincing evidence the existence of one or more of the eleven grounds (a) through (k) listed in KRS 625.090(2). Even if all these requirements are met, the family court may choose in its discretion not to terminate a parent's parental rights if the parent has established by a preponderance of the evidence that the child will not continue to be an abused or neglected child if returned to the parent. KRS 625.090(5).
Mother and Father present similar arguments on appeal. While they do not appear to contest that grounds for termination may exist, they argue that the family court failed to properly consider any positive benefit the children could derive from being reunified with their natural parents in assessing whether termination was in the best interests of the children and likewise erred by concluding that the children would likely continue to be neglected if returned to their care. They further point out that their ability to demonstrate proper parenting was frustrated by the Cabinet's refusal to allow them additional visitation with the children. With respect to child support, they further assert that the family court shifted the burden on them to back up their testimony that they paid their support with documentation.
While Mother and Father may disagree with the family court's conclusions, having reviewed the record we are confident that they are supported by substantial evidence of record. It is beyond dispute that Parents failed to meet children's needs when they were in Parents' care. While Parents may disagree with the opinions expressed by Dr. Feinberg and Dr. Ebben, the family court found them convincing. Both opined Mother and Father were unable to properly parent despite having completed their case plans, and that the children would likely be neglected and/or abused if returned to Parents' care.
As to best interests, the family court properly considered all the testimony and evidence. The family court did not improperly minimize the testimony that was positive for Parents as they contend. In fact, the family court acknowledged that Parents harbored genuine love and affection for their children as demonstrated by their willingness to comply with their case plans. Nevertheless, the family court concluded that despite Parents' best intentions, they were not able to care for the children without exposing them to a substantial and ongoing risk of further abuse and/or neglect. In doing so, the family court made detailed findings and conclusions for each of the best interest factors. KRS 625.090(3)(a)-(f). Each of the family court's findings is supported by substantial evidence.
We cannot credit Parents' arguments that the Cabinet placed an insurmountable burden on them by limiting their visitation. While the Cabinet should work toward reunification whenever possible, it is not required to support unsupervised visitation where it justifiably believes such visitation would place the children in its custody at a risk of harm. Such was the case here. Social Worker Coyle, Ms. Donahue, Dr. Feinberg, and Dr. Ebben each convincingly testified that Parents lacked the ability to appreciate the dangers their behaviors - such as leaving tools laying around the house or unlatched cabinet doors - posed to small children.
Lastly, we note that even if we were to agree with Parents that the family court improperly shifted the burden to them regarding the payment of child support, it would at best be harmless error. While the family court found that Parents did not pay child support as ordered, this was just one factor of many the family court determined supported termination. In addition to child support, the family court determined that Parents had failed to meet the children's medical, emotional, and educational needs. Even if we assume that Parents did in fact pay their child support as they testified, their failure to meet the children's nonmonetary needs is sufficient in and of itself to support termination.
IV. Conclusion
For the foregoing reasons, we affirm the orders of the Boone Circuit Court terminating Mother's and Father's parental rights to these four children.
ALL CONCUR.