Opinion
2022-CA-1437-ME 2022-CA-1438-ME
05-19-2023
E.Y.O-S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; B.M.L.; AND K.D.L., A MINOR CHILD APPELLEES AND E.Y.O-S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; B.M L.; AND K.D.L., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Rebecca A. Smither Louisville, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NOS. 22-AD-00003, 22-AD-00004
BRIEF FOR APPELLANT:
Rebecca A. Smither
Louisville, Kentucky
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES:
Kevin Martz
Covington, Kentucky
BEFORE: COMBS, McNEILL, AND TAYLOR, JUDGES.
OPINION
COMBS, JUDGE:
The Appellant, E.Y.O-S. (Mother), appeals from Orders of the Oldham Family Court terminating her parental rights to her two minor children in this consolidated appeal. After our review, we affirm.
Mother is the biological mother of two minor children: K.D.L., a male child born on March 10, 2018 (older child), and K.D.L., also a male child, born on October 19, 2019 (younger child). Their father is B.M.L.
B.M.L.'s parental rights were also terminated; he has not appealed.
On March 9, 2022, the Cabinet filed petitions for the involuntary termination of parental rights (TPR) as to each child.
The actions were tried on September 27, 2022. On October 31, 2022, the family court entered Findings of Fact and Conclusions of Law (FFCL) and Orders Terminating Parental Rights and Orders of Judgment as to each child. In its FFCL, the family court explained in relevant part as follows:
This Court first became involved with this family in 2021. The Cabinet received three (3) separate reports of alleged abuse or neglect to these children from February-April 2021. These reports alleged the children were exposed to domestic violence and ongoing parental substance abuse in the family home. At that time, the children were residing with [Mother] and her paramour.
The Respondent father was neither with nor living with the children at that point.
After receipt of the three (3) reports, the Cabinet filed petitions alleging the . . . children to have been abused or neglected. . . . The children initially were permitted to remain in their mother's custody, but she unfortunately failed to cooperate with this Court's ordered services and so additional petitions were filed and both children were removed from her care soon thereafter. . . . The . . . children have remained continuously in the Cabinet's custody and control since those removals . . . on April 22, 2021. . . . Subsequently, this Court found both children to have been abused or neglected as a result of the ongoing domestic violence and substance abuse by their mother . . . . This Court ordered [Mother] to complete substance abuse treatment, random drug screens, protective parenting classes, mental health treatment, domestic violence treatment, and to maintain stable housing/employment for at least six (6) months, to have contact with her children at the Cabinet's discretion, and to update the Cabinet within 72 hours of any moves. . . . After almost a full year of non-compliance with these orders, this Court ordered a waiver of the Cabinet's statutory obligation to make additional reasonable efforts to reunite this family on May 5, 2022.
The family court noted that the Cabinet worker had completed a case plan for Mother incorporating the substance of its Orders on May 13, 2021, but that instead of engaging in any of those services, Mother had moved around to various motels in Henderson, Kentucky, with her boyfriend until August 2021. During that time, Mother had only sporadic contact with the Cabinet, and admitted continuing domestic violence and daily methamphetamine use. In August 2021, Mother advised that she had entered a sober living home in Louisville. In September 2021, Mother moved to Evansville, Indiana, with her abusive boyfriend, staying in various motels and shelters. In March 2022, Mother entered Ladies of Promise sober living home after having parted from her boyfriend.
The court found that although Mother purportedly engaged in substance abuse and mental health treatment programs, she failed to provide documentation to the Cabinet. She did provide negative drug screens from March until June 2022, but she had attended no screens since that time. "While the Cabinet was able to verify that [Mother] remains compliant with the Ladies of Promise program, the specific terms and details of their services remain unclear and undocumented."
The family court further found that at the time of trial, Mother admitted that:
she has yet to secure stable housing for herself and her sons and only began employment the week of this trial. Her current housing is not a place for children to live. She also admitted that she has yet to even begin her protective parenting treatment and has yet to fully complete her substance abuse and mental health treatment. [Mother] acknowledged being diagnosed with Bipolar Disorder, Post-Traumatic Stress Disorder, and Severe Anxiety Disorder and having begun medication management of those conditions. She also admitted that she has had no contact with her sons since April 2022 and has failed to provide the Cabinet with any financial or other material support for their care since that time.
While [Mother's] current engagement in substance abuse and mental health services is commendable, she
admits that almost a full year of her son's lives passed in foster care without any efforts by her to engage in treatment or reunite with them. She remains several months, at minimum, from completion of other necessary treatments and from demonstration of financial and housing stability. Additionally, [Mother] admits that years of drug use and violence and neglect proceeded [sic] her sons' removal from her custody and that they suffer from significant trauma as a result. She also admits that she has several outstanding warrants for her arrest and pending criminal charges yet to be resolved. . . . As such, she remains without the ability to provide appropriate care and protection for these children.
The family court explained that in considering grounds for termination, it is required to consider the factors in KRS 625.090(3) as well as deciding whether termination is in the children's best interests. In conducting its best interest analysis, the family court addressed each of those statutory factors as set forth in detail at pages 7-9 of its FFCL.
Kentucky Revised Statutes.
The family court continued as follows:
From the totality of the circumstances presented, this Court is not persuaded that the . . . children would not continue to be abused or neglect as described in KRS 600.020(1) if returned to parental custody. Even if this Court had been persuaded that the . . . children would not continue to be abused or neglected . . . under the circumstances of this case, this Court would not be inclined to exercise the discretion granted it by KRS 625.090(5) to do so. . . . [i.e., to determine not to terminate parental rights.]
The family court determined: that each child was found to be abused or neglected as defined in KRS 600.020(1) by a court of competent jurisdiction; that each child was found to be abused or neglected in this proceeding by each of the parents as defined in KRS 600.020(1); and that it is in the best interest of each of the children that the parental rights of Mother and the children's father be terminated. The court recited as follows:
The . . . 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 . . . children and that there is no reasonable expectation of improvement in parental care and protection, considering the age of each child.
The . . . parents, for reasons other than poverty alone, have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future, considering the age of each child.
The family court also concluded that the children's father had abandoned the children for not less than 90 days.
Mother then filed this appeal.
KRS 625.090 governs the involuntary termination of parental rights. In R. M. v. Cabinet for Health and Family Services, 620 S.W.3d 32 (Ky. 2021), our Supreme Court addressed our role in analyzing this complex issue as follows:
In an appeal from a TPR order per KRS 625.090, we determine whether the decision was supported by substantial evidence of record. Substantial evidence is that which is sufficient to induce conviction in the mind of a reasonable person. We will accept the trial court's findings of fact unless they are clearly erroneous. Where the trial court's findings are not clearly erroneous, and they substantially support the TPR, we will affirm the order. The termination of parental rights is a particularly fact-sensitive inquiry, so appellate courts are disinclined to disturb trial-court findings. . . .
. . .
The right of every parent to raise his or her own child is a fundamental right of utmost constitutional concern. While the Commonwealth of Kentucky may deprive a parent of this right when the circumstances require, KRS 625.090 ensures this right is protected by measures of due process. Namely, the statute establishes three substantive elements necessary for TPR, all of which the Commonwealth must prove by clear and convincing evidence, (a) starting with a finding of abuse or neglect by the parents, (b) then determining that TPR is in the child's best interest, and finally (c) that any one of the grounds for termination listed in KRS 625.090(2)(a)-(j) exists.Id. at 37-38 (footnotes omitted).
Mother does not appear to challenge the family court's findings of abuse, and we are satisfied from our review of the record that they have a substantial evidentiary foundation.
In the caption of her Argument, Mother identifies as her primary issue her contention that family court erred in terminating her parental rights because it was not in the children's best interest. However, Mother does not focus her discussion on the family court's best interest analysis. Instead, she contends "that evidence was lacking" to support the following factors:
Specifically, in the case at hand, the Trial Court found that [Mother] had for a period of less than six (6) months, continuously or repeatedly failed or refused to provide, or had been substantially incapable of providing essential parental care and protection for the . . . children and there was no reasonable expectation of improvement in the parental care and protection considering the age of the children. . . . [F]urther . . . that, for reasons other than poverty alone, [Mother] had continuously or repeatedly failed to provide or was incapable of providing essential [f]ood, clothing, shelter, medical care or education reasonably necessary and available for the . . . children's well-being and there was no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the children. Because these two subsections are similar in nature, [Mother] addresses these findings . . . together.
Those factors are among the statutory grounds for the termination of parental rights set forth in KRS 625.090(2) -- respectively, subsections (e) and (g). The statute requires that the circuit court find by clear and convincing evidence the existence of one or more of the enumerated grounds before it can terminate parental rights.
Mother contends that the evidence showed that "she did all that was permitted" given that she was not allowed contact with the children and had not been ordered to pay financial support. Mother further contends that the evidence at trial showed she had achieved employment, sobriety, and "the first step in creating a successful and sober life for herself and the children." She argues that it was "clearly" erroneous for the family court to find no reasonable expectation of improvement. We cannot agree.
Both KRS 625.090(2)(e) and (g) require a showing of no reasonable expectation of improvement considering the age of the child. When this case was tried in September 2022, the ages of the children were four and one-half years and almost three years. They had been in the Cabinet's custody placed with a maternal aunt since their removal on April 22, 2021 -- a significant portion of their young lives. Although the family court acknowledged that Mother's recent efforts were commendable, it concluded that she still lacked the ability to provide appropriate care and protection for her children at the time of trial.
The aunt is also a foster parent.
At trial, Mother testified that she had just started working a week ago. She had outstanding bench warrants for violation of emergency protective orders and theft. Mother was going to turn herself in "this Friday," but she had known about those warrants since March. Mother testified that she had been sober for almost seven months. However, she did not start working on her sobriety for almost a full year after the children had been removed from her care. Mother admitted instances of domestic violence in front of the children involving both her former boyfriend and the children's father. Mother admitted that the children were sometimes present when she was on drugs. She also admitted a previous criminal conviction for leaving one of the children alone in a vehicle in a parking lot. Mother understands that the children have trauma issues dating from the time before their removal. At the time of trial, Mother had not yet started protective parenting classes. Mother acknowledged that she would need six months "from now" to demonstrate stability pursuant to the court's order that she maintain stable housing and employment for at least six months.
The record fully supports the family court's determination that grounds for the termination of Mother's parental rights exist by clear and convincing evidence under both (e) and (g) of KRS 625.090(2). There is no basis for us to disturb it. Nor is there any basis for us to disturb the family court's determination that termination of Mother's parental rights is in each child's best interest. The family court carefully and properly considered each of the statutory factors in conducting its best interest analysis, and its detailed findings have a substantial evidentiary foundation.
Mother notes KRS 625.090(5), which provides that "[i]f the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights." Mother contends that the family court erred in terminating her parental rights and that it abused its discretion by finding that these children would continue to be abused or neglected. However, the family court directly addressed the discretionary latitude afforded to it by this statute and explained that it was not persuaded from the totality of the circumstances presented that the children would not continue to be abused or neglected as described in KRS 600.020(1) if returned to parental custody. The court directly observed that even were it so persuaded, it would not be inclined to exercise the discretion granted by KRS 625.090(5). We find no error nor any abuse of discretion.
Accordingly, we affirm.
ALL CONCUR.