Opinion
2021-CA-1475-ME 2021-CA-1476-ME
12-16-2022
M.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES AND A.R.F., A MINOR CHILD APPELLEES AND M.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; D.G.; AND S.L.G., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: John C. Helmuth Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KATHY W. STEIN, JUDGE ACTION NO. 21-AD-00080, 21-AD-00082
BRIEF FOR APPELLANT: John C. Helmuth Lexington, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: COMBS, GOODWINE, AND McNEILL, JUDGES.
OPINION
GOODWINE, JUDGE
M.G. ("Mother") appeals the November 2, 2021 judgment of the Fayette Circuit Court, Family Division involuntarily terminating her parental rights to her two minor children. After careful review, we affirm.
BACKGROUND
The Cabinet for Health and Family Services ("Cabinet") has been involved with the family since 2003, when Mother's oldest child was a minor.Over the years, the Cabinet investigated the family twenty-three times. Over the years, the Cabinet's involvement was prompted by allegations of sexual abuse, drug use, environmental neglect, and truancy.
The oldest child is now an adult. These appeals pertain to the two younger children, S.L.G. and A.R.F.
S.L.G., born in 2008, has been in Cabinet care since May 2019, although she has been removed from Mother's care prior to this action. A dependency, neglect, and abuse ("DNA") case was initiated in Harrison County, Kentucky based on the children's school being concerned about their poor hygiene. The Cabinet also discovered Mother had multiple outstanding warrants for which she was arrested, and an emergency custody order was entered for removal of the children from her care. At adjudication, the family court found the children had been neglected and they were committed to the Cabinet. In November 2019, A.R.F. was born and tested positive for illicit substances. On this basis, she was removed from Mother's care.
This matter involved both S.L.G. and Mother's oldest child.
D.G. ("Father") was a party to the case below but did not appeal from the termination of his parental rights and is not involved in these appeals.
The DNA cases were transferred to Fayette County, Kentucky in December 2019. Mother participated in case planning with the Cabinet. The plan required her to: (1) complete an assessment with the University of Kentucky's Comprehensive Assessment and Training Services Project ("CATS") and follow all recommendations; (2) engage in therapy and other resources with Beyond Birth; (3) resolve her legal issues; (4) submit to pill counts; (5) maintain appropriate housing and employment; (6) comply with drug screens; (7) complete a mental health assessment and follow all resulting recommendations; (8) complete a substance abuse assessment and follow all resulting recommendations; and (9) not reside with anyone with a history of involvement with the Cabinet. The Cabinet made all necessary referrals for Mother to complete these tasks.
In the underlying DNA cases, the goal for the family was changed to adoption on March 15, 2021. The Cabinet then petitioned the family court to involuntarily terminate Mother's parental rights on May 10, 2021. Mother was present and represented at trial. On behalf of the Cabinet, the court heard testimony from Dr. David Feinberg, a licensed psychologist who completed a parental capacity evaluation for Mother; Madison Gray, a prior Cabinet worker assigned to the family's case; and Keisha Williams, the current Cabinet worker assigned to the family's case. Mother testified on her own behalf.
Father also testified on his own behalf.
Evidence at trial showed Mother made some progress on her case plan but was noncompliant with several requirements. She completed parenting classes and visited with the children. However, Williams expressed concern about some of Mother's behaviors during visits. Due to Mother's cancellation, the Cabinet was unable to inspect her residence. Mother was also inconsistent with drug screening. At trial, Williams reported Mother had not screened since May 2021. During the duration of the case, Mother tested positive for THC, alcohol, opiates, and oxycodone. As recently as April 2021, Mother tested positive for THC. Other than snacks and gifts Mother brought to visits, she provided no substantial support for the children. Additionally, CATS declined to work with the family because Mother was not addressing her mental health issues.
Dr. Feinberg described Mother as highly emotional and defensive during his evaluation. She minimized or denied issues even when shown evidence of them, especially when confronted with her own history of trauma and abuse. She believed she was an excellent parent and, when asked if she could improve upon anything, she said she could not. She refused to acknowledge or accept responsibility for issues which affected the children. She showed no recognition of the impact her actions had on her children. Dr. Feinberg confirmed Mother's history of substance abuse and employment instability. Mother refused to acknowledge her substance abuse and blamed her positive tests on others. Mother claimed to have been clean for five years which is contradicted by records.
Regarding Mother's mental health, Dr. Feinberg spoke to a history of depression and an inability to care for herself. She denied attempting suicide despite two hospitalizations. Although she has an extensive criminal history with multiple incarcerations during the children's lives, Mother minimized the significance of her criminal problems. Dr. Feinberg described this as indicative of a lack of impulse control and Mother's propensity to make choices based on herself rather than her children.
When confronted with claims of sexual abuse against Father, Mother expressed doubt. She also minimized Father's violence toward her by claiming he only choked her once. Mother reported that she did not want to be alone and, although she said she would choose her children over Father, she had not permanently separated from him. She returned to living with him for a period during the case.
After testing, Dr. Feinberg found Mother to be literate but borderline low functioning. Testing indicated she had elevated profiles for depression, antisocial personality, and schizophrenia. Mother has a family history of schizophrenia. Mother scored very low on the warmth scale, consistent with her anti-social behavior score and indicative of an inability to care for and nurture others.
Dr. Feinberg also interviewed S.L.G. He found her to be at a pivotal point in development where stability is crucial. He described this as a tipping point for whether she would be able to maintain stability for herself in the future like she has had in foster care or whether she would face the same struggles as her parents including instability and anger. Dr. Feinberg concluded for her to experience the best outcome, the child needs a predictable, calm environment.
Regarding Mother's ability to parent, Dr. Feinberg found she would not be able to effectively parent without acknowledging her history. He did not believe anything would change Mother's behaviors and, if the children were returned to her care, the same patterns of neglect would continue. Dr. Feinberg found it would be a danger to the children's psychological health to return them to her care. He concluded that it was important for the children to remain in stable placements. If returned to Mother, Dr. Feinberg reported the oldest child would likely have no possibility of a positive future.
Based on the evidence presented at trial, the family court entered judgments involuntarily terminating Mother's parental rights. This appeal followed.
STANDARD OF REVIEW
The family court has a great deal of discretion in termination of parental rights matters. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998) (citation omitted). "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 [circuit] court will not be disturbed unless there exists no substantial evidence in the record to support its findings." Id. To be clear and convincing, evidence must not be uncontroverted, but only probative and substantial so as to "convince ordinarily prudent-minded people." Id. at 117 (citation omitted).
Kentucky Rules of Civil Procedure.
ANALYSIS
Mother raises the following arguments on appeal: (1) termination of her parental rights was not in the best interest of the children; (2) the Cabinet failed to make reasonable efforts to reunify the family; and (3) the family court failed to find she proved the children would not be abused or neglected if returned to her care.
Under KRS 625.090, involuntary termination of parental rights requires the family court to find, by clear and convincing evidence, (1) the child has been abused or neglected; (2) termination is in the child's best interest considering the factors enumerated in KRS 625.090(3); and (3) at least one of the termination grounds listed in KRS 625.090(2)(a)-(k) exists. See Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
Kentucky Revised Statutes.
We will consider Mother's first two arguments together because the Cabinet's reasonable efforts must be considered along with several other factors to determine the child's best interest. The court must consider:
(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 of neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the [C]abinet, whether the [C]abinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the [Family] Court;
(d) The efforts and adjustments the parent has made in [her] 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, consider the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for improvement of the child's welfare of 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.KRS 625.090(3).
Herein, to support the finding that termination was in the children's best interest, the family court found:
1. Prior to filing of this petition, reasonable efforts have been made by the Cabinet to reunite the child[ren] with [their] parents, but those efforts have been unsuccessful.
2. The [Cabinet] has offered or provided all reasonable services to the family, including case planning, referrals to community partners, and supervised
visitation.
3. Despite the availability of these services, [Mother] and [Father] have refused or [have] been unable to make sufficient effort and adjustments in their circumstances, conduct or conditions to make it in the interest to return [children] to their home with a reasonable period of time, considering the age[s] of the child[ren].
4. [Child] is currently doing well in foster care. She is placed with her biological sister and has been in the care of the foster family for approximately 27 months. She has been making progress in her therapy and has been improving in school. She has some special needs and has an IEP in school. All her medical needs are being met and she has a bond with the foster family. It is expected that she will continue to improve with a permanent, stable placement.Record ("R.") at 40-41.
Citations are to the record on appeal in No. 2021-CA-1476-MR, the case regarding S.L.G. Findings in the judgment regarding A.R.F. are nearly identical with the exception that she is not in school and there is no finding that she has special needs. The younger child has lived with her foster family for nearly her entire life and is bonded with them.
These findings are corroborated by the record and are sufficient to support termination of Mother's parental rights. Dr. Feinberg's evaluation indicated Mother persistently refused to acknowledge there were any issues with her parenting skills. She would not acknowledge her substance abuse problem or mental health issues. She refused to accept the harm caused by Father or separate completely from him. These facts support the family court's findings and are sufficient under KRS 625.090(3)(d).
The family court also made extensive findings as to the children's wellbeing and progress since being removed from Mother's care. This is especially true for S.L.G. Dr. Feinberg determined the child's only chance for having a successful future was to remain in the stable and calm environment provided by her foster family. A.R.F. has been with the foster family for nearly her entire life and has also benefited from the environment they provide. These facts are sufficient to support the court's finding under KRS 635.090(3)(e).
As to the Cabinet's efforts, the record clearly shows the Cabinet made all reasonable efforts to reunite Mother with the children. Over the course of two years, Mother was given multiple case plans. The Cabinet made all necessary referrals for her to complete those plans. The Cabinet scheduled visitation. They scheduled a home visit, which Mother cancelled. They facilitated drug screens with which Mother did not comply. Despite the Cabinet's efforts, Mother chose not to complete her case plan. As noted by Dr. Feinberg, she repeatedly made poor decisions and did not put her children's needs first. Dr. Feinberg concluded nothing more could be offered to improve Mother's parenting skills. The record supports the family court's finding of reasonable efforts under KRS 625.090(3)(c).
Mother points to no facts in the record which controvert the family court's findings under KRS 625.090(3). Instead, she alleges the Cabinet should have increased her visitation while she awaited her evaluation with Dr. Feinberg. However, she cites no authority to support the assertion that the Cabinet should increase visitation where a parent has not completed her case plan. At that time, although she had completed some parts of the plan, she had not completed all requisite tasks. Most importantly, she had not addressed her mental health issues and was noncompliant with drug screening and, when she complied, tested positive for illicit substances. Furthermore, Dr. Feinberg's conclusions clearly show increased visitation would not have been in the children's best interest. Therefore, we find no error in the family court's findings under KRS 625.090(3).
Where a party cites to no authority, we will not construct her legal arguments. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citation omitted).
Finally, Mother did not prove the children would no longer continue to be abused or neglected if returned to her care. The statute allows, "[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." KRS 625.090(5).
The facts Mother alleges to support her claim under KRS 625.090(5) are refuted by the record. First, Mother claims to have a residence where the children could live with her. However, this could not be confirmed because Mother cancelled the Cabinet's home visit. Next, Mother claims she is now aware the children suffered because of her parenting mistakes. While this may be true, Dr. Feinberg's evaluation shows Mother has a history of failing to acknowledge her own history or issues relating to parenting, substance abuse, and domestic violence. Although Mother may sincerely wish to raise her children, the record clearly shows she has been and will likely be unable to do so in the future. The children's mental health would likely be harmed if returned to Mother's care because they would be subjected to the same patterns of neglect as they were prior to their removal. Therefore, we find no error in the family court's decision not to exercise its discretion under KRS 625.090(5).
CONCLUSION
Based on the foregoing, the judgments of the Fayette Circuit Court, Family Division are affirmed.
ALL CONCUR.