Opinion
NO. 2011-CA-001471-ME
04-19-2013
G.J.D. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.M., A CHILD APPELLEES
BRIEF FOR APPELLANT: D. Keith Wilcutt Bowling Green, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Mary Gains Locke Munfordville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
ACTION NO. 10-AD-00026
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. DIXON, JUDGE: G.J.D. (Mother) appeals the order of the Warren Family Court which terminated her rights to D.M. (Child), who is now seven years of age. After our review, we affirm.
The rights of Child's biological father were also terminated. He is not a party to this appeal.
On February 3, 2009, the Cabinet for Health and Family Services (the Cabinet) removed Child—who was not quite three years old—from Mother's home. The reasons for the removal were twofold: (1) the Cabinet had received anonymous reports of methamphetamine use by Mother and (2) the Cabinet suspected that a substantiated sex offender was living in the home.
Eventually the Cabinet filed a motion to involuntarily terminate Mother's parental rights, and a hearing was held on May 19 and again on June 17, 2011. The evidence primarily centered on Mother's drug treatment, drug screens, and anger management issues. While Mother had completed some substance abuse therapy, because she refused to take drug screens, the Cabinet was prevented from determining whether she continued to use illegal substances. There was a great deal of testimony about Mother's anger issues, her denial of substance abuse, and her refusal to take responsibility for her actions as having led to her situation.
Social workers testified that Mother kept most of her appointments for visitation with Child but was often late, only coming to the visit after being called by the Cabinet. Counselors and social workers alike testified that usually Mother acts appropriately with Child and that she possesses the skills to parent Child as long as substance abuse and other issues do not interfere. However, Mother staunchly refuses any additional drug testing, despite her arrest and indictment for manufacturing methamphetamine during the pendency of this matter.
On July 14, 2011, the court entered its order terminating Mother's parental rights. Mother appeals to this Court, arguing that the Commonwealth, through the Cabinet, did not meet its burden pursuant to KRS 625.090, in order to terminate her parental rights to Child.
"Parental rights are so fundamentally esteemed under our system that they are accorded due process protection under the 14th Amendment to the United States Constitution when sought to be severed at the instance of the state." O.S. v. C.F., 655 S.W.2d 32, 33 (Ky. App. 1983). Termination of parental rights is a grave matter that should only be upheld in the face of clear and convincing evidence. Waters v. Cabinet for Human Resources, 736 S.W.2d 365, 366 (Ky. App. 1987); Kentucky Revised Statute[s] (KRS) 625.090(1). Courts must meticulously insure that statutory mandates are scrupulously adhered to in the termination process. M.E.C. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). In a termination of parental rights case, the trial court's decision must be based upon a clear and convincing standard. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky.App. 1998). We may only reverse when a trial court's judgment is clearly erroneous. CR 52.01. Moreover, "[b]ecause termination decisions are so factually sensitive, appellate courts are generally loath[] to reverse them, regardless of outcome." D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012). As observed in M.E.C., the trial court is in the best position to assess the credibility and weight of the evidence and our review is limited to determining whether the trial court's findings are supported by substantial evidence on the record. This Court cannot disturb the trial court's findings unless no substantial evidence on the record exists. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky.App. 1986). "Under this standard, an appellate court is obligated to give a great deal of deference to the trial court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." D.G.R., at 113. With these criteria in mind we turn to the trial court's decision here.
KRS 625.090 sets forth the requirements that must be met in order for termination to be appropriate. The first is that the child has been adjudged to be abused or neglected as defined by KRS 600.020(1) or that the parent has been convicted of abuse or neglect of any child -- and that abuse or neglect is likely to occur to the child in question if the parent's rights are not terminated. The statute then provides an exhaustive list of factors that the court must consider in determining whether the termination is in the best interest of the child.
In the case before us, the trial court first determined that Child was abused or neglected according to KRS 600.020(1). Mother does not dispute this finding. Nonetheless, she focuses upon the ten factors of KRS 625.090(2) and argues that the court erred in its findings under that statute and that it also erred in its findings regarding the best interests of the child.
The trial court relied on two of the ten statutory grounds of KRS 625.090(2):
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(g) That the parent 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 child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child.
The court reasoned as follows:
Mother left her children with her brother unsupervised against Cabinet's prevention plan knowing such brother is a known sex offender. Mother did not admit to her substance abuse counselor that she had alcohol abuse issues during the entire 12 week treatment, even though her prior incomplete counseling she attended at Lifeskills had diagnosed her with alcohol abuse. Mother has drug issues. Mother has mental health issues. Mother had to be asked to leave visits on several occasions due to her speaking inappropriately in presence of the child and she often refused and police would have to be called. Mother is somewhat compliant with her case plan, but refuses to get random drug screens. The Cabinet had reports of methamphetamine use by the mother. The mother has refused to take random drug screens since early 2009 to present. Mother was court-ordered and requested by the Cabinet to take a hair follicle drug test at the Cabinet's expense due to her stating she could not afford this test, but she refused. Mother would not accept responsibility for her situation and would not cooperate and comply with Cabinet recommendations for random drug screens. Such drug screens are a major part of her treatment plan since there are drug issues.
Mother has two other children who were not subject to the underlying action; nor are they parties to this appeal.
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The trial court's determination that Mother is not interested in cooperating with the Cabinet in order to prove that she does not use drugs is clearly supported by the evidence. Moreover, evidence was presented at the hearing that Mother had been arrested and indicted for possession of a controlled substance and manufacturing methamphetamine during the pendency of the termination action. While Mother claims that she passed several drug tests, the Cabinet presented testimony that Mother passed some random screens which were not taken on the day ordered by the Cabinet. Because methamphetamine leaves the user's system in approximately twenty-four hours, the Cabinet does not consider a late test to be a clean test. Mother further refused to take any additional drug tests and has not taken one since February 2009. Therefore, we are persuaded that the trial court's findings under the factors of KRS 625.090(2) were supported by the evidence.
Next, the trial court must find that termination is in the best interest of the child. KRS 625.090(3) requires the following factors to be considered by the circuit court:
(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;
(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 . . .
(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.
Pursuant to KRS 625.090, the court made the following additional findings:
13. It is in the best interest of [Child] that termination of parental rights be ordered because the child needs the stability provided by [the Cabinet] placing him for adoption.
14. [The Cabinet] has rendered or attempted to render all reasonable services to [Mother] in an effort to bring about a reunion of the family, but these services have not been utilized. Mother did not comply with her Lifeskills counseling. Mother refused to take drug tests which were requested by substance abuse counseling provider Community Resource Center and refused those requested by the Cabinet.
15. [Child] was removed for neglect when he was allowed to be around a sexual perpetrator. [The remainder of this section has been previously quoted].
16. [Child] has made substantial improvements while in foster care and he is expected to make more improvements upon termination of parental rights.
17. [Child's] Guardian Ad Litem recommends that this termination petition be granted and states that such termination of parental rights is in the best interests of [Child].
Ample evidence supports the trial court's findings. Child was removed from Mother's home before he turned three years old. The only contact Child has had with Mother has been supervised visits during these past four years. The uncontroverted testimony at the termination hearing was that Mother was often an hour late for these weekly visits, greatly distressing Child. Although Child has bonded with Mother, he has also bonded with his foster family. While Child has had a stable foster home during these past four years, the testimony at trial indicated that Mother has moved often and had only been living at her current address two months prior to the hearing in this matter.
The court found that the Cabinet had made reasonable efforts to reunite the family. Mother has been offered a myriad of services but has completed few. She has not attended parenting classes. Nor has she addressed her mental health issues. Moreover, Mother's hostility and anger toward all of those charged with assisting her in reunification is disturbing. Shaun Rich testified that home visits with Mother were stopped because of safety concerns due to threats she had made toward social workers. In fact, the nature of these threats was serious and startling. There were four incident reports wherein Mother had yelled and cursed the Cabinet's staff saying she wished the Cabinet offices would blow up, that the staff would die, and that the staff's children would die. Child has witnessed at least some of these outbursts.
Additionally, Bruce Fane, a licensed psychologist who completed a psychological evaluation on Mother, found her to have several issues standing in her way to be able to parent Child. These issues include her defiant attitude, her non-compliance with the Cabinet, her anger, and her refusal to take responsibility. Dr. Fane testified that Mother has difficulty controlling her hostile impulses and that he was not surprised that it was difficult for the social workers, the court, and attorneys to deal with her.
Furthermore, Karen Garrity, the clinical director of addiction services at LifeSkills, a treatment provider, testified that Mother repeatedly missed appointments and eventually stopped coming altogether. Kathy Miller, the owner of another drug treatment center testified that Mother refused to take any drug tests and that she completed group sessions several months late due to many missed meetings. She also noted that Mother would never acknowledge even having a drug problem. Several other social workers and treatment providers testified to similar conduct.
Termination of parental rights is never a pleasant duty. Yet, our court system is charged with the responsibility to protect those who are too young to protect themselves. The trial court heard several hours of testimony, evaluated the evidence, and concluded termination of parental rights was appropriate. That decision, as noted, is supported by substantial evidence and we must defer to these findings. The record demonstrates that the Cabinet sought to work with Mother for over two years to reunify her with Child. Sadly, rather than accept the assistance the Cabinet offered, Mother chose to fight those attempts, and in turn lost her parental rights to Child. Accordingly, we affirm.
CAPERTON, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: The reasoning of the majority opinion in this case is sound and persuasive. There is no doubt that Mother's defiance and refusal to cooperate with the Cabinet have critically - indeed, fatally - undermined her ability to deal with the system that is empowered with terminating her parental rights. Mother has not disputed the finding that Child was abused or neglected under the statutory criteria, which are objective in nature.
She does dispute, however, that termination is in the best interest of the child, a determination that is a bit more subjective in nature under the statutory criteria. There is compelling evidence in the record that termination would not be in the best interest of this child despite Mother's unsavory behavior - and that in fact, termination would have a traumatic impact of serious proportions on this little boy.
In reviewing the record, I have also watched the recording of the entire hearing. Nearly all of the evidence presented focused upon Mother's belligerent attitude. Wholly absent from the court's findings is any substantive evaluation of the best interest of the child - although the close relationship between Mother and Child was revealed in the course of the testimony.
Shaun Rich, the current social worker assigned to Mother and Child, testified about Child in some detail. He testified that Child and Mother have a strong bond. He also testified that Child is excited to see Mother at visitation, noting that he is crazy about his mother and that "his face lights up" as soon as he sees her. Mother's problems with visitations have all related to adults. She is appropriate with Child; in Shaun's words, "she does great" with him. Shaun admitted that he did not know what was best for Child but that Child would love to be returned to Mother. Furthermore, Child is nearly seven years old, and Shaun testified that Child would definitely need therapy if termination occurred. Shaun did not refer to any specific improvements that Child has made in foster care. Both Shaun and a psychologist testified that Mother possessed the skills to be a good parent if she did not let drugs interfere.
Lynn Westover, the social worker who preceded Shaun Rich on this case, also testified. She noted that Mother visited with Child and that she had never abandoned him. Mother was affectionate with child during visits. Westover said that Mother's home was presentable and that she had never observed Mother under the influence.
This is a very difficult case. Both the majority opinion and this dissent are in total harmony on that point. On the one hand, Mother has demonstrated that she has prioritized drugs and insists on having her own way. On the other hand, other than her own bad behavior, she has never abused child, has not abandoned him, and has bonded closely with him. Termination of parental rights is a grave matter - capital punishment for a family unit. I am not satisfied that the effect of termination on Child was given sufficient consideration by the court. Shaun Rich, testifying for the Cabinet, believed that termination would necessitate therapy for the child; nonetheless, the court failed to consider or to address this factor at all in its findings. Although it paraphrased the language of the statute, the court did not apply much of the evidence, which alone can substantiate and flesh out statutory intent. I am persuaded that the findings were deficient and clearly erroneous as to the best interests of this Child.
Accordingly, I would vacate and remand for further proceedings, directing the trial court to give the requisite attention to this important portion of the evidence on the best interest of the child before ordering the irreversible result of termination. BRIEF FOR APPELLANT: D. Keith Wilcutt
Bowling Green, Kentucky
BRIEFS FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
Mary Gains Locke
Munfordville, Kentucky