Opinion
NO. 2019-CA-001189-ME NO. 2019-CA-001190-ME
04-17-2020
K.R.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND B.L.M., A CHILD APPELLEES AND K.R.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND D.M.H., A CHILD APPELLEES
BRIEFS FOR APPELLANT Amy DeRenzo Hulbert Louisville, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 18-AD-500159 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 18-AD-500165 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. DIXON, JUDGE: K.R.K. ("Mother") appeals from judgments of the Jefferson Circuit Court terminating her parental rights to D.M.H. and B.L.M. ("Children"). Discerning no error, we affirm.
The father of D.M.H. appeared before the court in the termination hearing and consented to the voluntary termination of his parental rights. B.L.M.'s father was served by a warning order attorney but did not file an answer to the Cabinet's petition, nor did he appear to contest the termination proceedings.
D.M.H. has turned eighteen during the course of these proceedings, rendering this appeal moot as far as custody and control of D.M.H. Nevertheless, because termination of parental rights may result in collateral consequences, we will consider this case on its merits.
The Cabinet for Health and Family Services ("Cabinet") became involved in this case in May 2017, when Mother was a passenger in a vehicle in Hardin County which contained methamphetamine, and the Children were present in the back seat of said vehicle. The Cabinet filed petitions in Hardin County alleging abuse and neglect of the Children. Mother stipulated to abuse or neglect. Neither of the fathers was available to assume custody, so the Children were removed to the Cabinet's custody and control, where they have remained continuously since that time. The dependency, neglect, and abuse (DNA) case was transferred to Jefferson County, where Mother resides. Mother was later convicted of endangering the welfare of a minor as a result of the incident in Hardin County.
Once the criminal case was resolved, Mother appeared before the family court on September 7, 2017, to work on a plan with the Cabinet. The family court ordered her to complete parenting, substance abuse, and mental health evaluations and treatment. The family court also ordered Mother to submit to random drug screens and to maintain stable housing and employment. Finally, the family court permitted Mother to have supervised visits with the Children until such time as unsupervised visits were deemed appropriate.
Unfortunately, Mother failed to substantially comply with the terms of the plan. She only intermittently showed for her substance abuse treatments and drug screenings. When she did show for screenings, the results were mixed; some drug screens tested negative, some were diluted, and others were positive. When Mother tested positive for methamphetamine, she claimed it was because her roommate had slipped it into her drink. Mother declined additional referrals, asserting that she did not have a drug problem.
Mother submitted to a mental health assessment, but she did not show for individual and group therapy sessions. She also did not show for an evaluation at Centerstone, a community mental health provider. When asked about her failure to attend, Mother said she did not like the therapist because she had tattoos, and she felt the therapist was not qualified to give her an assessment. Finally, the Cabinet recommended Mother for FORECAST assessment, which includes parenting, individual psychotherapy, and psychiatric evaluation. Mother did not show for multiple appointments. Aside from portions of the FORECAST assessment, the only thing Mother successfully completed was her substance abuse evaluation.
Mother was frequently late to her supervised visits with the Children and missed several visits due to illness. During her visits, Mother spent little time bonding with the Children. Instead, she chose to complain about child protective services, leading to a confrontational atmosphere. Mother brought presents for the Children but did not bring clothing or items sufficient to meet the Children's ongoing needs, nor did she provide them with any financial support.
Mother's defense to her frequent nonappearances was that she did not own a vehicle or possess a driver's license, forcing her to rely on rides from friends or public transit. At one point, Mother had insurance which would have provided transportation to needed services, but Mother said she was "too busy" to utilize it. Mother is disabled and suffers from Marfan syndrome, scoliosis, and cardiac issues. She collects monthly income derived from disability payments; however, most of the money goes toward the rent of her three-bedroom house. The Cabinet did not believe the home was suitable, because the house had a known roach infestation. In addition to the home environment's unsuitability, the Cabinet was concerned because Mother had a history of relationships involving domestic violence. On two occasions, Mother sought to amend domestic violence orders to permit non-violent contact.
On May 1, 2018, the Cabinet petitioned the family court for an involuntary termination of Mother's parental rights. The termination hearing took place on May 22, 2019. During the hearing, the family court heard testimony from the Cabinet in accord with the aforementioned narrative. The Cabinet also provided testimony indicating the Children's lives had improved during their time in foster care. Mother provided testimony from a family friend, who asserted Mother was a good parent to the Children. Mother also testified in her defense, asserting she had done everything she could in light of her health, her finances, and her transportation limitations. She also said she would do "whatever she has to do" to get the Children back. However, her Children's guardian ad litem asked how she could do "whatever she has to do," when she had previously demonstrated an unwillingness to actually do these required steps the first time.
In its very thorough findings of fact and conclusions of law, the family court specifically found the statutory requirements for termination had been met and that it was in the Children's best interest to terminate Mother's parental rights. The family court emphasized how it was "not persuaded that the Petitioner children would not continue to be abused or neglected if returned to parental custody[.]" Mother now appeals.
The family court recited several factors pursuant to Kentucky Revised Statutes (KRS) 625.090 to support its decision: The Children were previously adjudged to be abused or neglected; Mother continuously failed to provide essential parental care for the Children; for reasons other than poverty alone, Mother continuously failed to provide for the Children's essential food, clothing, shelter, medical care, or education, with no reasonable expectation Mother's conduct would improve in the immediate future; and the Children had been in foster care for more than fifteen months preceding the filing of the petition. --------
Parental rights "can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so." Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006); KRS 625.090. The trial court's findings of fact are entitled to great deference; accordingly, this Court applies the clearly erroneous standard of review. Kentucky Rules of Civil Procedure (CR) 52.01; M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Where the record contains substantial evidence to support the trial court's findings, we will not disturb them on appeal. Id.
Mother asserts the family court erred by finding abuse or neglect pursuant to her stipulation to abuse or neglect in the removal proceeding. According to Mother, the removal proceeding only required a preponderance of the evidence, but termination requires the family court to find abuse or neglect by the higher standard of clear and convincing evidence. Furthermore, Mother asserts the family court erred in finding termination was in the Children's best interest. Finally, Mother asserts the family court erroneously found the Cabinet had met its burden in showing Mother was unfit for return of the Children pursuant to KRS 625.090(2)(e) and (g).
None of Mother's arguments has merit, however. The family court did not rely on Mother's earlier stipulation of abuse or neglect, but instead found abuse or neglect under KRS 600.020(1), based on the Children "being subjected to scenes of domestic violence in the home, to illicit drug use, to neglect of their material, emotional, and healthcare needs, and to having been abandoned for a period of not less than ninety (90) days." The family court also observed that Mother failed to comply with its remedial orders and the Cabinet's case treatment plan.
Next, the family court determined that termination was in the Children's best interest under KRS 625.090(3)(e), based on a comparison of their previous state with how they were progressing in foster care. The family court found the Children were "doing much better since removal from parental custody and are attached to the foster parents[.]" The family court also determined that the Children were thriving, with "no further behavioral problems" and "a great deal of academic progress."
Finally, we disagree with Mother's arguments regarding error by the family court in finding grounds for unfitness under KRS 625.090(2)(e) and (g). Only one of the grounds under KRS 625.090(2) is necessary to support the court's decision to terminate parental rights. Mother admits not having provided "essential parental care and protection" for more than six months, pursuant to KRS 625.090(2)(e), but she contends she could do so "if given the opportunity." The family court disagreed; its reasons are supported by the record, and we defer to the family court's judgment.
In this matter, the family court was the fact-finder and was vested with broad discretion to weigh the evidence and assess witness credibility. CR 52.01. The Cabinet presented significant testimony regarding Mother's history with the Children which supported termination. The record indicates the court made specific factual findings based on this testimony and applied the statutory factors set forth in KRS 625.090(2)-(3) to conclude termination of parental rights was in the Children's best interest. After careful review, we conclude substantial evidence supported the family court's decision. We discern no clear error.
For the reasons stated herein, the judgments of the Jefferson Circuit Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT Amy DeRenzo Hulbert
Louisville, Kentucky BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky