Opinion
NO. 2019-CA-001487-ME NO. 2019-CA-001493-ME
04-17-2020
K.L.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.J.K., A CHILD APPELLEES AND K.L.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND C.W.T., A CHILD APPELLEES
BRIEF FOR APPELLANT: Peter A. Roush Covington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER MEHLING, JUDGE
ACTION NO. 19-AD-00052 APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER MEHLING, JUDGE
ACTION NO. 19-AD-00051 OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES. ACREE, JUDGE: K.L.B. (Mother) appeals the Kenton Family Court's findings of fact, conclusions of law, and judgment terminating her parental rights to her two children, C.W.T. and K.J.K. Mother argues the finding that termination is in the children's best interest is not supported by substantial evidence. Finding no error, we affirm.
BACKGROUND
The Cabinet became involved with this family in 2017. At that time, Mother had a two-year-old, C.W.T. After Mother was arrested for drug possession and drug use while C.W.T. was in her possession, the Cabinet filed a petition for emergency custody. Mother confessed to using heroin every day, including while caring for C.W.T., which led to her admittance to the Women's Residential Addiction Program (WRAP) for inpatient treatment. Ultimately, C.W.T. came into the care of the Cabinet.
We note the Cabinet has been involved with Mother and her older children since 2007. The Cabinet's involvement beginning in 2017 relates to the younger children of this current action. Since 2007, Mother has given birth to four other children. Three of them tested positive for cocaine, opiates, and/or oxycodone. The only time Mother gave birth to a child with no drugs in its system was when Mother was incarcerated. All four of her previous children are in the custody of relatives.
The family court adjudicated C.W.T. abused or neglected. A case plan was set into place for Mother. It required Mother to: (1) complete a substance abuse assessment and follow recommendations; (2) complete a mental health assessment and follow recommendations; (3) obtain stable housing and employment; (4) follow court orders and; (5) refrain from further criminal activity.
At the time of the disposition hearing, Mother continued her involvement with WRAP, provided negative drug screens, and participated in supervised visitation with C.W.T. Because of this progress, she began unsupervised visits, but started missing drug screens and visits a few months later. Around this time, a contempt motion was filed because of Mother's discharge from WRAP for lack of progress.
Mother was found guilty of contempt of court orders and she was also incarcerated for possession of a controlled substance. Eventually, she was conditionally released and entered treatment at WRAP for the second time. Shortly thereafter, in 2018, Mother gave birth to K.J.K. At the time, Mother resided with K.J.K. at Healthy Newborn House. However, Mother overdosed during this time and the Cabinet filed another emergency custody petition regarding K.J.K. The Cabinet alleged Mother overdosed with K.J.K. in her care. This incident led to K.J.K. coming into the Cabinet's protection. Again, Mother was incarcerated.
In 2019, as a condition to her probation, she entered a long-term recovery program at the Brighton Center. Mother has been compliant and is in "phase one" of the program. Once she reaches "phase two," she will be required to complete mandatory Alcoholics Anonymous meetings and participate in weekly drug screens. The Brighton Center will help her obtain housing and employment when the time comes. Because of her success so far, Mother believes she will be ready to have custody of her children in six months.
However, the Cabinet filed a petition to terminate Mother's parental rights to parent C.W.T. and K.J.K. The family court held a trial and ultimately found Mother's rights should be terminated. This appeal followed.
STANDARD OF REVIEW
The trial court has a great deal of discretion in an involuntary termination of parental rights action. M.P.S. v. Cab't for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). The standard of review in a termination case is confined to the clearly erroneous standard in CR 52.01, based upon clear and convincing evidence, and the findings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. Id.; V.S. v. Commonwealth, Cab. for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). "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." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
Kentucky Rules of Civil Procedure.
ANALYSIS
Before terminating parental rights, the family court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
Kentucky Revised Statutes. --------
Mother acknowledges her children were found to be abused or neglected; thus, this appeal pertains only to the second and third prongs of the analysis. We address each in turn. Grounds for Termination
No termination shall be granted unless the family court finds by clear and convincing evidence the existence of one or more of the grounds listed in KRS 625.090(2). In this case, the family court found two reasons, by clear and convincing evidence, to terminate Mother's parental rights. It relied on KRS 625.090(2)(e) and (g), finding: (1) that for a period of not less than six months, Mother was substantially incapable of providing essential parental care and protection for her children and there is no reasonable expectation of improvement, KRS 625.090(2)(e); and (2) Mother continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well-being. KRS 625.090(2)(g).
Mother's two children, C.W.T. and K.J.K., remained in foster care for twenty-three months and eight months, respectively. All the while, Mother struggled with addiction. She made multiple attempts to remain sober but has yet to complete a substance abuse treatment program. Throughout this process, Mother missed drug screens. To the contrary, she relapses from her recovery, engages in conduct that leads to her arrest, or offers questionable excuses for her failure to participate in drug screening. Mother never voluntarily entered treatment but did so only when it was a condition of her parole. She has yet to demonstrate an ability to remain sober on her own.
Additionally, there is no evidence showing Mother ever paid court-ordered child support, ever maintained stable housing, or ever maintained stable employment. The family court's conclusions that Mother is incapable of providing essential parental care and protection to her children, and that there is no reasonable expectation of improvement, are supported by substantial evidence. Mother's history makes it unreasonable to expect improvement in the foreseeable future. Her inability to work through the entirety of the case plan and her failure to change her lifestyle demonstrate that, for reasons other than poverty, she failed to provide for her children. Best Interest
KRS 625.090(3) lays out the factors courts shall consider in determining the best interest of a child. These factors are: (a) mental illness that renders the parent unable to care for the child; (b) acts of abuse or neglect toward any child in the family; (c) the Cabinet's reasonable efforts to reunite the child with the parents if the child has been placed with the Cabinet; (d) the parent's efforts and behavioral adjustments that tend to make return of the child to the parent in that child's best interest; (e) the physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare; and (f) the parent's payment or the failure to pay a reasonable portion of the cost of the child's physical care and maintenance. KRS 625.090(3)(a)-(f). All factors must be considered but not all need be proven to find termination is in the children's best interest. KRS 625.090(3).
The family court wrote detailed findings of fact. Those findings of fact support its conclusions of law. Mother argues the family court failed to specifically delineate why it was in the best interest of the children to have her parental rights terminated. However, this Court finds no such lack of specificity or clarity in the court's judgment.
The family court found: (1) the efforts and adjustments Mother made were not adequate to make it in the children's best interest to be returned to her; (2) the children are doing well and on target developmentally, with an expectation of continued improvement; (3) the children bonded with their foster family; and (4) the Cabinet made reasonable efforts to place the children with family members.
Mother then argues the Cabinet failed to make reasonable efforts to reunite her with her children. We disagree. Reasonable efforts are defined as the "exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available . . . which are necessary to enable the child to safely live at home[.]" KRS 620.020(13). The Cabinet offered numerous services to Mother. This Court is unaware of any additional services that could have been provided and Mother directs the Court to none. Clearly, the family court's greatest concern was Mother's substance abuse which she demonstrated an inability to overcome, even as it was imposed upon her as a condition of her parole. Mother had a meaningful opportunity to work her case plan but continued to use drugs.
The family court also considered the efforts and adjustments made by Mother. KRS 625.090(3)(d). The evidence presented at trial demonstrated to the family court that Mother's participation in the services offered did not motivate in her any meaningful lifestyle change. We do not diminish Mother's current efforts or accomplishments, but she has been unable to maintain sobriety for a sufficient time to demonstrate her success is in the offing. Rather, she demonstrated an inability or unwillingness to change her circumstances every time she used drugs or missed drug screens. She never fully accomplished any of the tasks assigned by the family court or the Cabinet, nor did Mother demonstrate any significant effort or adjustment. This sufficiently supports the family court's finding that Mother's efforts and adjustments were inadequate under KRS 625.090(3)(d) to make it in the children's best interest for them to return to Mother's home. We find no error regarding the family court's analysis under this factor.
The family court also considered whether the children have prospects for improvement if termination is ordered. KRS 625.090(3)(e). The circuit court found affirmatively under this factor, and we conclude the finding was supported by the evidence. As a starting point, the family court found the children "have made improvements since entering into foster care and those improvements are expected to continue. The children have bonded with their foster family and their foster parents wish to adopt them if termination is granted." And further, "[b]oth [children] are doing well and on target developmentally." Given that K.J.K. is considered medically fragile and needs monthly nurse visits and medication management, the family court's conclusion is sound that the children are properly cared for in their foster family.
There is no evidence demonstrating Mother's ability to care for her children. A parent's duty to support her child does not require a court order. Barnes v. Turner, 280 S.W.2d 185, 187 (Ky. 1955). In this case, however, Mother was court-ordered to pay child support and she still failed to comply. The evidence does not support Mother's contention that it would be in the children's best interest to reside with her while she attempts to gain sobriety. There is clear and convincing evidence supporting the family court's decision and we affirm.
CONCLUSION
For the foregoing reasons, we affirm the Kenton Family Court's August 29, 2019 order terminating the parental rights of Mother to C.W.T. and K.J.K.
ALL CONCUR. BRIEF FOR APPELLANT: Peter A. Roush
Covington, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky