Opinion
2022-CA-0023-ME
08-12-2022
E.M.S. (M.) APPELLANT v. C.E.M. AND T.J.M., AN INFANT CHILD APPELLEES
BRIEF FOR APPELLANT: James M. Frazer Monticello, Kentucky BRIEF FOR APPELLEE C.E.M.: Frank V. Phillips Monticello, Kentucky BRIEF FOR APPELLEE T.J.M.: John Paul Jones, II Monticello, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE CIRCUIT COURT HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE ACTION NO. 20-AD-00006
BRIEF FOR APPELLANT: James M. Frazer Monticello, Kentucky
BRIEF FOR APPELLEE C.E.M.: Frank V. Phillips Monticello, Kentucky
BRIEF FOR APPELLEE T.J.M.: John Paul Jones, II Monticello, Kentucky
BEFORE: DIXON, McNEILL, AND TAYLOR, JUDGES.
OPINION
DIXON, JUDGE
E.M.S. (M.) (Mother) appeals the judgment of the Wayne Circuit Court, entered December 9, 2021, terminating her parental rights to T.J.M. (Child). After careful review of the record, the briefs, and the law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Six months after Child was born in June 2014, Mother and C.E.M. (Father) separated. As part of the separation, Mother and Father agreed to an informal shared custody arrangement with each parent having Child for part of the week. At a custody exchange on October 18, 2015, Father noted bruising on both of Child's cheeks which Mother explained were the result of Child falling into a coffee table. Later that evening, however, Father observed that Child had additional injuries, including handprint shaped bruising from his waistline to his shoulder blades and scars/burns on each shoulder blade.
K.M., Father's girlfriend (now wife), immediately took photos and contacted her stepfather, a police detective, for advice. The following morning, Father took Child to Child Protective Services and then to the hospital for an examination. At the hospital, staff documented eleven separate injuries consistent with physical abuse.
Thereafter, Mother entered an admission to abuse pursuant to North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970), in a Pulaski Family Court dependency, neglect, and abuse (DNA) action, and sole custody of Child was granted to Father. Additionally, Mother pled guilty to criminal abuse in the second degree, and on March 4, 2016, the Pulaski Circuit Court sentenced her to five years' incarceration, suspended for five years, and further ordered Mother to have no contact with Child during this period. On May 23, 2017, Mother motioned the Pulaski Circuit Court to lift the no contact provision, but her motion was denied. Pursuant to the various orders of the court, Mother has had no contact with Child since November 2015.
Kentucky Revised Statutes (KRS) 508.110, a Class D felony.
On April 9, 2020, Father filed the underlying petition seeking to terminate Mother's parental rights to Child. A final hearing was held on May 17, 2021. At the hearing, Father and K.M. testified that Child had a happy, normal disposition prior to October 2015, but thereafter, Child threw tantrums; beat his head; was nonverbal; hoarded food; gorged himself routinely to the point of illness; and demonstrated a fear of water, hair dryers, vacuum cleaners, and anything with a small motor. Child was diagnosed with attention deficient hyperactivity disorder (ADHD), global delay disorder, and as being nonverbal. To overcome these challenges, Child has remained in therapy since the abuse and takes medication for his ADHD. In order to provide continuous care and to transport Child to his various therapy appointments, K.M. quit her job.
Through their efforts, Father and K.M. reported that Child has made significant strides. Specifically, Child has stopped hoarding food, gorges himself with less frequency, is now verbal, is no longer shy, and is doing well in school. Father and K.M. expressed concerns that reunification with Mother would undermine Child's hard-won progress and result in further abuse. Father admits Mother has regularly paid child support but testified he could meet Child's financial needs on his own. Father and K.M. opined that the termination of Mother's parental rights is in Child's best interest.
Mother denied that she caused Child's injuries and explained that Child's bruises resulted from his falling into the coffee table or on the playground the week before he went to his Father's home, and the scars/burns occurred when Child fell against a burn barrel while in the care of her boyfriend the night before the custody exchange. Mother testified that she only noticed the scars/burns, not the hand-shaped bruises, prior to the custody exchange, but she did not think to tell Father about them until he asked. Mother acknowledged that she had both entered an admission and pled guilty to abusing Child, but she attributed these actions to her attorney's advice and her fear of being incarcerated, and not her guilt. Mother testified negatively regarding the quality of her attorney's representation and vehemently denied that she would have pled guilty had she known it could be used as a basis for termination of her parental rights.
Mother testified as to the efforts she has made toward reunification, which include complying with the no contact provisions, remaining current with child support, regularly procuring items such as clothes and toys for Child, completing three separate parenting classes, and voluntarily engaging in Moral Reconation Therapy. Mother opined that she is capable of safely caring for Child as she regularly provides care for young children without incident. This testimony was corroborated by three witnesses: Mother's long-time friend, Child's maternal grandmother, and Child's maternal aunt. While Mother acknowledged that her reintroduction would be difficult for Child, she argued that she should be able to be a part of Child's life and that he deserves to know her and see the change in her.
After the close of evidence, Child's guardian ad litem [GAL] submitted a report recommending Father's petition be granted. On December 1, 2021, the court entered its initial findings of fact, conclusions of law, and judgment terminating Mother's parental rights. However, Mother successfully moved to alter or amend these orders pursuant to CR 59.05, and amended orders were entered on December 9, 2021. This appeal followed after Mother's subsequent CR 59.05 motion was denied. Additional facts will be introduced as they become relevant.
Kentucky Rules of Civil Procedure.
STANDARD OF REVIEW
The trial court's findings of fact are subject to the clearly erroneous standard. CR 52.01. Consequently, we give great deference to the trial court's findings and will only set them aside if the record is devoid of substantial evidence to support them. D.G.R. v. Commonwealth, Cabinet for Health and Family Servs., 364 S.W.3d 106, 113 (Ky. 2012). Application of the law to the facts, however, we review de novo. Id.
ANALYSIS
Involuntary termination of parental rights (TPR) actions are governed by KRS 625.090. TPR may be granted only if the trial court finds that a three-prong test has been met by clear and convincing evidence. Id. First, the court must find that one of the four criteria listed in KRS 625.090(1)(a)1.-4. has been met. Second, the trial court must find the existence of at least one statutory ground for termination as set forth in KRS 625.090(2). Third, termination must be found to be in the best interest of the child after consideration of the factors listed in KRS 625.090(3).
On appeal, Mother challenges the court's conclusion that Father satisfied the first prong. On this issue, the court made two findings: (1) that Child had been adjudged abused or neglected by the Pulaski Family Court, and (2) that Mother has been convicted of a felony involving serious physical injury of Child and, further, such injuries are likely to occur to Child absent termination, satisfying both KRS 625.090(1)(a)1. and 4. Though Mother contends that both findings are erroneous, because we disagree that the court's latter finding is improper, and because only one finding was required, we need not address Mother's argument pertaining to the court's reliance on the DNA adjudication. Accordingly, we will address in turn Mother's claims as to the court's finding that Child was at risk of future harm.
We note that the constitutional implications of a family court's adjudication of abuse or neglect, which is made pursuant to the preponderance of the evidence standard, being used as a statutory ground for TPR have been raised but not decided in various unpublished decisions of the court. See, e.g., S.S. v. Cabinet for Health and Family Servs., No. 2020-CA-0508-ME, 2021 WL 519718 (Ky. App. Feb. 12, 2021), and Commonwealth, Cabinet for Health and Family Servs. v. T.G., Nos. 2007-SC-000436-DGE and 2007-SC-000821-DGE, 2008 WL 3890033 (Ky. Aug. 21, 2008).
First, Mother asserts that the court's finding that further abuse was likely to occur absent termination of her rights does not comply with the requirements of KRS 625.090(1) and, therefore, cannot be sustained. KRS 625.090(1) states that "[t]he Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that [all requirements have been met.]" (emphasis added). Mother argues that since Father's petition did not mention the likelihood of further abuse, the court was precluded by the plain language of the statute from rendering such a finding. Mother further reasons that her interpretation of KRS 625.090(1) is consistent with the general rule that where a right is given by statute and a liability which did not exist at common law is created, the method, if any, provided by the statute for enforcement of the right is exclusive and must be strictly pursued. In support, Mother cites Hawkins v. Department of Welfare, 303 Ky. 128, 197 S.W.2d 98 (1946); Marshall v. Whitt, 287 Ky. 290, 152 S.W.2d 945 (1941); Martin v. Board of Council of City of Danville, 275 Ky. 142, 120 S.W.2d 761 (1938); and Grimes v. Central Life Insurance Company, 172 Ky. 18, 188 S.W. 901 (1916).
These cases illustrate that when a right is created by statute, the rule is that the language of the statute dictates who and in what manner - whether by administrative review or an appeal to a higher court - the right can be enforced. The rule, however, does not change the pleading requirements or the burden of proof applicable to the court's determination on the merits of a claim; hence, Mother's reliance thereon is misplaced. Moreover, Mother's restrictive reading of KRS 625.090(1) is contrary to Kentucky's well-established notice pleading standard which merely requires that a pleading provide fair notice and identify the claim. Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233, 240-41 (Ky. 2020). Thus, we disagree with Mother and conclude that the court's finding was not barred by KRS 625.090(1).
Second, Mother contends that the court's finding that further abuse or injury was likely absent a termination of her rights was not proven by clear and convincing evidence where the only support for the finding was the speculative testimony of Father and K.M. that Child may regress if reintroduced to Mother. Assuming arguendo that Mother is correct that the cited testimony alone is insufficient, Mother's claim fails to address the court's additional findings in support. Specifically, the court found that Mother was, at a minimum, in a caretaking role at the time Child was injured; that Child had multiple injuries, which the hospital determined were consistent with abuse; that Mother failed to protect Child, by either causing the injuries herself or by creating an environment in which they could occur; and that Mother's failure to acknowledge her culpability indicates that further abuse is likely to occur. As these findings are supported by substantial evidence, the court did not err in concluding that Father had satisfied the first prong to sustain termination of Mother's parental rights.
Next, Mother argues the court used the incorrect standard when determining Child's best interest. We note that while Mother framed the issue as the court's failure, her chief complaint is that the GAL erroneously utilized the best interest standard set forth by KRS 403.270 instead of KRS 625.090(3). The court, however, made no such error as its findings of fact and conclusions of law clearly cite KRS 625.090(3) and apply the enumerated factors. Further, contrary to Mother's assertion otherwise, the court clearly contemplated Mother's financial support of Child, as evidenced by the express finding required by KRS 625.090(3)(f).
Finally, Mother maintains that because she proved by a preponderance of the evidence that Child would not continue to be abused or neglected if returned to her care, the court erred in failing to exercise its discretion under KRS 625.090(5) to deny the TPR. The test for abuse of discretion is whether the court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). While Mother is correct that both she and her witnesses testified positively regarding her ability to care for children, given that we have affirmed the court's finding that Child was at risk of future abuse or neglect if Mother's rights were not terminated, we cannot say the court abused its discretion in granting the TPR.
CONCLUSION
Therefore, and for the foregoing reasons, the judgment of the Wayne Circuit Court terminating Mother's parental rights is AFFIRMED.
McNEILL, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.