Opinion
NO. 2019-CA-000811-ME NO. 2019-CA-000812-ME
05-29-2020
L.Y.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND I.J.S., A MINOR CHILD APPELLEES AND L.Y.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND B.G.S., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: David C. Perkins Hodgenville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HART CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 17-AD-00016 APPEAL FROM HART CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 17-AD-00018 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND DIXON, JUDGES; AND BUCKINGHAM, SPECIAL JUDGE. DIXON, JUDGE: L.Y.S. ("Mother") appeals the May 6, 2019, orders of judgment from the Hart Circuit Court terminating her parental rights to the minor children I.J.S. and B.G.S., twins born February 21, 2008 ("the children"). After careful review of the record, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
The father's parental rights were terminated by the LaRue Circuit Court in a separate action on May 3, 2011.
BACKGROUND
The Cabinet for Health and Family Services ("Cabinet") became involved with the family in December 2014 when it received a report that the children had severe bruising. During the Cabinet's investigation, the children repeatedly said the bruises occurred because Mother spanked them and threw VHS tapes at them. When questioned, Mother said she did not know how the bruises came to be on the children; however, she said the children were hyperactive and offered a variety of activities that could have caused the bruising.
The Cabinet filed an emergency custody petition, thereby initiating a dependency, neglect, and abuse (DNA) action, in LaRue District Court. The children were removed from Mother's care and placed with their older half-brother and his wife ("foster parents"). When the children were first removed from the home, the foster parents reported I.J.S. was wetting the bed and throwing tantrums so severe she would harm herself. B.G.S. was reported to have night terrors and to have defecated on himself, played in the feces, and smeared it on the wall on at least two occasions. Both children suffered in school, exhibited behavioral issues, and were afraid of the dark. Soon after gaining custody of the children, the foster parents enrolled the children in therapy, and they are now thriving.
In June 2015, there was an adjudication hearing; however, in December 2015, the LaRue District Court accepted Mother's stipulation to dependency. Around this time, Mother negotiated a case plan with the Cabinet wherein she was to complete an anger management assessment and follow all recommendations, complete parenting education classes, and comply with mental health counseling. Additionally, she was ordered by the LaRue District Court to complete a parental capacity evaluation.
Mother's parental capacity evaluation report concluded that she did not meet minimally adequate standards of parental function. Dr. Kelli Marvin, the psychologist who performed the evaluation, diagnosed Mother with recurrent and severe major depressive disorder, as well as delusional disorder. At trial, Dr. Marvin testified this was a conservative diagnosis because Mother was not forthcoming with her symptoms. Notably, Mother refused to acknowledge she has a mental illness or that it might affect her ability to parent her children. Dr. Marvin also said Mother exhibited signs of paranoia, which elevates a tendency toward violence, and expressed homicidal ideation. As a result, it was recommended Mother participate in ongoing counseling.
The family's caseworker testified Mother made significant progress on her case plan until her insurance lapsed. At that point, Mother stopped going to counseling for approximately three months but returned sporadically thereafter. In 2016, Mother's case plan was amended to include requirements that she utilize the skills she learned in parenting education, participate in family therapy with the children, find stable housing and employment, work with the Cabinet, and follow visitation guidelines. Again, Mother made progress on this case plan but failed to provide the Cabinet with information regarding whether she was attending counseling regularly or following her therapist's recommendations.
In the following years, Mother's progress on her case plan began to decline. Mother was visiting the children; however, there were times when she would not show for appointments, although the children had already been transported to the visitation location, and she would not comply with the visitation rules (i.e., she was not to discuss the court case with the children). Mother attended three family counseling sessions, but these sessions were stopped because Mother discussed the case with the children instead of rebuilding her relationship with them. Most concerning was Mother's failure to follow the recommendations of her mental health assessment, which included ongoing counseling and medication management.
In October 2017, the Cabinet filed a petition for the involuntary termination of Mother's parental rights ("TPR") in Hart Circuit Court. After answering the amended TPR petition, Mother filed a motion to dismiss based on the doctrine of res judicata. Said motion was denied, and a termination hearing took place on December 7, 2018, as well as February 22, 2019. At the close of the hearing, Mother renewed her motion to dismiss, which was again denied. On May 6, 2019, the circuit court made findings of fact and conclusions of law and entered an order terminating Mother's parental rights. These appeals followed.
At some point, the DNA actions were transferred from LaRue District Court to Hart District Court.
ANALYSIS
Kentucky Revised Statute ("KRS") 625.090 sets forth the grounds by which a parent's rights may be terminated. As a preliminary matter, the court must first find by clear and convincing evidence that,
(a)1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction; [or]KRS 625.090(1). Mother argues the Cabinet should not have passed this initial test for two reasons. First, Mother asserts the court could not have made a finding of abuse and neglect as required by the statute because she stipulated to dependency in a separate DNA action. Because of the stipulation, she posits the doctrine of res judicata precluded the court from making a finding of abuse and neglect, meaning the TPR action should have failed as a matter of law. Second, Mother suggests that even if res judicata did not apply, the court's finding of abuse and neglect was not supported by clear and convincing evidence. For the following reasons, both arguments are without merit.
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding;
. . .
(b) The Cabinet for Health and Family Services has filed a petition with the court pursuant to KRS 620.180; and
(c) Termination would be in the best interest of the child.
THE CIRCUIT COURT WAS NOT PRECLUDED
FROM FINDING ABUSE OR NEGLECT BASED
ON THE DOCTRINE OF RES JUDICATA
Given that res judicata is a question of law, our review of the circuit court's refusal to apply the doctrine in the case herein is de novo. Humber v. Lexington-Fayette Urban County Government, 553 S.W.3d 273, 276 (Ky. App. 2018) (citing Sedley v. City of W. Buechel, 461 S.W.2d 556 (Ky. 1970)). The purpose of the doctrine is to bar repetitious lawsuits involving the same cause of action. Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464 (Ky. 1998).
The doctrine of res judicata is formed by two subparts: 1) claim preclusion and 2) issue preclusion. Claim preclusion bars a party from re-litigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action. The issues in the former and latter actions must be identical. The key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts. If the two suits concern the same controversy, then the previous suit is deemed to have adjudicated every matter which was or could have been brought in support of the cause of action.Id. at 464-65 (citations and footnote omitted). Again, the key question regarding res judicata is whether the cause of action or the issue presented is essentially the same.
Detrimental to Mother's first argument is the fact that DNA actions and TPR actions are statutorily different causes of action. To begin, only the circuit court has jurisdiction to hear TPR actions. KRS 625.020. The district court however, has concurrent jurisdiction with the circuit court when it comes to DNA actions. KRS 610.010; KRS 620.027. Additionally, both actions require the filing of separate petitions. KRS 610.020; KRS 625.050. To further illustrate these are different causes of action, KRS 620.140 outlines several dispositional possibilities in a DNA action; however, termination is not among those options. The only two outcomes in a TPR action are termination or dismissal. KRS 625.090(6).
Further, the very nature of these actions means the issues raised therein will not be the same. The purpose of a DNA action is to protect the fundamental rights of children. KRS 620.010. When enacting the DNA statutes, the legislature recognized that sometimes it would be necessary to remove children from their parents to protect those rights. Id. "The custody rights of parents, while important, are not the trial court's priority in such cases." C.K. v. Cabinet for Health and Family Services, 529 S.W.3d 786, 790 (Ky. App. 2017) (citation omitted). "If the court orders the removal or continues the removal of the child, services provided to the parent and the child shall be designed to promote the protection of the child and the return of the child safely to the child's home as soon as possible." KRS 620.130(2). As a result, the issues arising in a DNA action include, but are not limited to: whether the child was abused or neglected; whether the child needs to be temporarily removed from parental custody; and whether it is possible to reunify the family.
Conversely, the purpose of a TPR action is to dissolve the legal relationship between parent and child. KRS 625.100.
[C]onstitutional jurisprudence holds that parental rights are "essential" and "basic" civil rights, "far more precious . . . than property rights." Thus, there is no greater sanction to the parent/child relationship than the involuntary termination of a parent's rights.A.P. v. Commonwealth, 270 S.W.3d 418, 420 (Ky. App. 2008) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). The penalty is so severe it has been termed the "death penalty" of family law. Commonwealth, Cabinet for Health and Family Serv. v. S.H., 476 S.W.3d 254, 259 (Ky. 2015). Therefore, the only issue for the court's consideration in a TPR action is whether a parent's fundamental right to parent their child should be severed.
Moreover, it is uncontested that Mother stipulated to dependency in the DNA action in district court. However, Mother's contention that her stipulation to dependency precludes an abuse and/or neglect determination is an argument from an illogical false dichotomy. There is no indication the district court made any determination as to whether Mother's actions constituted abuse or neglect. Stated another way, just because the Commonwealth failed to pursue a finding of neglect or abuse (since the result in the district court proceeding would be the same), such does not mean Mother was, therefore, innocent of those allegations.
For these reasons, the circuit court did not err in denying Mother's motions to dismiss based upon res judicata.
THE CIRCUIT COURT'S FINDING OF ABUSE
AND NEGLECT IS SUPPORTED BY CLEAR
AND CONVINCING EVIDENCE
Our review of the circuit court's order terminating Mother's parental rights is under the clearly erroneous standard.
The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings.M.L.C. v. Cabinet for Health and Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013) (internal quotation marks and citations omitted).
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.
Kentucky Rule of Civil Procedure.
Under KRS 625.090, to terminate parental rights, the circuit court must find by clear and convincing evidence that the child was abused or neglected pursuant to KRS 600.020(1), that termination is in the best interest of the child, and that one of several other listed grounds exists. In her brief, Mother only argues the court lacked clear and convincing evidence to make a finding of abuse or neglect. Because Mother failed to brief the other two grounds necessary to terminate parental rights, we need not address them.
"[A] reviewing court will generally confine itself to errors pointed out in the briefs and will not search the record for errors. An appellant's failure to discuss particular errors in his brief is the same as if no brief at all had been filed on those issues. Consequently, the trial court's determination of those issues not briefed upon appeal is ordinarily affirmed." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) (citations omitted).
The circuit court's findings of fact and conclusions of law were nearly identical to KRS 625.090.
Child was removed in December 2014 when he was physically abused by mother. At that time child was placed with relatives. Child had bruises on his upper leg, back, stomach, and arm. The bruises on child's arm and back were long linear bruises. Mother has completed several of the objectives on her case plan, but is not compliant with her mental health counseling and has never admitted causing injury to child. Dr. Kelli Marvin, a licensed forensic psychologist, testified that mother accepts no responsibility as to her mental illness and also no responsibility as to treatment of child. Dr. Marvin further testified that a return of child to mother's home would place him at an unacceptable risk of acts of abuse/neglect due to mother's severe and persistent
mental illness. Dr. Bruce Fane, a licensed psychologist, testified that his major concern with mother was her refusal to accept responsibility for anything that had happened to child and mother's lack of treatment for her mental health issues. It was the testimony of Cabinet staff that mother has not sought any on-going mental health services since at least August 2017. Family therapy was started in August 2017, but was stopped because mother was not compliant with the rules of the family therapy sessions, i.e. mother discussed issues in the case with child. Mother was living with her father, but he kicked her out after they were involved in an altercation. At that time mother moved into independent housing, but is now living in another house which her father owns. Mother's employment has been sporadic. Mother has never maintained a job for more than six (6) months. Mother refuses to sign a case plan with the Cabinet. Mother has not negotiated a new case plan with the Cabinet since November 2017.Based on these factual findings, the circuit court determined the children met several criteria under KRS 600.020(1) to be defined as abused or neglected.
The quoted finding is from B.G.S.'s TPR case. The finding in I.J.S.'s case states "[c]hild had bruises on her leg, back, and upper arm." --------
We have reviewed the hearing testimony and the evidence admitted therein. Most notably, two highly qualified psychologists, one of whom was retained by Mother, met with her and expressed concern at the hearing over her refusal to acknowledge she has a mental illness. They both also noted her refusal to take responsibility for the bruising on the children, even when confronted with the knowledge the children repeatedly claimed she caused the bruising. Moreover, the Cabinet workers testified Mother refused to seek treatment for her mental health issues. This alone would have been sufficient for the court to determine the children were abused and neglected.
The circuit court's findings are consistent with the testimony and evidence presented. Thus, we ascertain no error in the circuit court's determination the children were abused and neglected.
CONCLUSION
For the foregoing reasons, we affirm the orders of the Hart Circuit Court terminating Mother's parental rights to the children.
ALL CONCUR. BRIEF FOR APPELLANT: David C. Perkins
Hodgenville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky