Opinion
NO. 2019-CA-001820-ME
05-29-2020
M.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND A.R.H. APPELLEES
BRIEFS FOR APPELLANT: R. Bruce Stith III Robert P. Stith Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 19-AD-00114 OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES. COMBS, JUDGE: M.H. appeals from an order of the Fayette Family Court that terminated parental rights to her minor child, A.R.H. After our review, we affirm.
On May 29, 2019, the Cabinet for Health and Family Services filed a petition to terminate the parental rights of M.H. (Mother) to A.R.H., a twenty-one- month-old child. The trial of the matter occurred over a period of four days. Following the presentation of evidence, the family court rendered extensive findings of fact and concluded that the termination of Mother's parental rights was in the best interests of A.R.H. Judgment was entered on November 18, 2019. This timely appeal followed.
On appeal, Mother acknowledges that the family court's findings of fact accurately reflect the testimony of the witnesses presented. We summarize those findings and Mother's own account of the facts. Born on February 18, 2018, A.R.H. is the youngest of Mother's five natural children. DNA testing indicated that Mother's husband is not the biological father of A.R.H., and the identity of the child's natural father remains unknown.
The Cabinet received a referral regarding Mother and A.R.H. when the baby was born in Fayette County. After an investigation into the facts of Mother's prosecution for previous criminal abuse in Montgomery County, the Cabinet became concerned for the newborn's welfare. The Cabinet took custody of A.R.H. before she left the hospital in which she was born. A.R.H. was placed in the care of foster parents, and she has remained in their physical custody ever since. Mother and Mother's husband have been permitted limited, supervised visitation with A.R.H.
The investigation undertaken by the Cabinet following the birth of A.R.H. revealed that Mount Sterling police officers had been called out in July 2010 to check on the well-being of Mother's two-year-old son, M. Mother denied to officers that the child was in her care and sent them on a wild-goose chase to find him. When the child eventually turned up at the emergency room of a Mount Sterling hospital, it was discovered that M. had been at Mother's home the entire time. M. appeared "shell-shocked" and would not let Mother near him.
Photographs taken at the hospital indicate that dreadful physical injuries had been inflicted upon the child. Both of M.'s eyes were black, with yellowing around one of them. There was a blood clot in his eye near his pupil. There were cuts and bruises on his face; scratches on his back; a healing injury on his neck under his right ear; and marks under his arm. He had what appeared to be cigarette burns on his feet and body and a large, severe burn on the palm of his right hand. There were indications that the injuries had been inflicted at various intervals. Mother explained that M. had been hurt as a result of a fall and denied that she had played any part in causing the injuries. Later, she was indicted as a persistent felony offender and charged with first-degree criminal abuse and first-degree assault.
Mother stipulated to the neglect of each of her children and surrendered her rights to M.; his two older sisters, four and three years of age; and his baby sister. Eventually, Mother pleaded guilty to first-degree criminal abuse of M. and was sentenced to prison. She was imprisoned at the Kentucky Correctional Institution for Women in Pewee Valley from 2010 through 2017. Within months of her release from prison, Mother became pregnant with A.R.H.
On appeal, Mother argues first that the family court erred by terminating her parental rights to A.R.H. because the child was never abused or neglected. She indicates that she "has not had custody of [the child] one day of her life"; that she "has done absolutely nothing wrong with respect to A.R.H."; and that she "has successfully completed every program the Cabinet has asked her to complete." Mother contends that her parental rights were terminated based solely upon the crime she committed ten years ago. We disagree.
Pursuant to the relevant provisions of KRS 625.090, a family court may involuntarily terminate the rights of a parent where it finds by clear and convincing evidence that the parent has been convicted of a criminal charge relating to the physical abuse of any child and that physical abuse, neglect, or emotional injury to the child named in the termination proceeding is likely to occur if the parental rights are not terminated; that the Cabinet has filed a petition with the court pursuant to the provisions of KRS 620.180; and that termination would be in the best interests of the child. KRS 625.090(1). Additionally, the court must find by clear and convincing evidence that at least one of a number of specified grounds of parental unfitness exists. KRS 625.090(2). One of these enumerated grounds of unfitness is that the parent has been convicted of a felony that involved the infliction of serious physical injury to any child. KRS 625.090(2)(d).
Kentucky Revised Statutes. --------
Mother argues that the Cabinet failed to present clear and convincing evidence that she is not a fit parent and that "there is no reasonable opportunity for improvement." She insists that she has "shown remorse for her actions every day since 2010, beginning with her incarceration." She claims that she has: remained clean and sober since her incarceration; successfully completed every case plan presented by the Cabinet; maintained gainful employment; presented expert testimony indicating that she is a fit parent; and participated in every visit with A.R.H. allowed by the Cabinet.
Despite the evidence presented in her favor, the family court found by clear and convincing evidence that the Cabinet filed a petition with the court pursuant to the provisions of KRS 620.180; that Mother had been convicted of a criminal charge relating to the physical abuse of her son, M.; that physical abuse, neglect, or emotional injury to A.R.H. is likely to occur if Mother's parental rights were not terminated; and that termination of parental rights was in the child's best interest. Finally, the family court found by clear and convincing evidence that Mother had been convicted of a felony that involved the infliction of serious physical injury to her son, M., demonstrating her unfitness to parent any child. Because of the opportunity of the family court to judge the credibility of the witnesses, we must afford it broad discretion and deference in making its findings. See Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008). Moreover, Mother acknowledges that the findings were adequately supported by the evidence.
Mother's parental rights were not terminated based solely upon her criminal abuse of her child, M. Instead, the family court was persuaded by evidence tending to show that Mother had intentionally misrepresented to social workers in 2018 the nature of the injuries that she had inflicted upon her son, M., years earlier. While she admitted to "back-handing" and burning the child with a cigarette lighter, she denied that the injuries that she had inflicted upon him were serious.
The court made a series of significant findings: that M.H. had an extensive criminal history and a history of severe substance abuse; that she exhibits manipulative and impulsive behavior, a lack of empathy, and primal rage; that she had been diagnosed with bi-polar disorder and post-traumatic stress disorder and failed to address sufficiently her mental health issues; that she had tortured M. for hours (and perhaps days) on end; that she had pled guilty to first-degree criminal abuse of a child, a felony that involved the infliction of serious physical injury to M.; that she is unable to prevent a repeat of the abuse she inflicted upon M.; and that there are no services or programs that the Cabinet could put into place that would mitigate the grave risk that Mother posed to the welfare of A.R.H. Finally, the family court was convinced by evidence presented by the Cabinet that A.R.H. was thriving in foster care with the only parents she has ever known and that she would continue to do well with permanent, adoptive placement with them. Based on its extensive and thorough findings, the court's conclusion that Mother's rights should be terminated wholly complies with the statutory requirements enacted by the legislature.
Next, Mother contends that the family court's judgment violates her constitutional right to bear and raise a child. Without elaboration, she declares that the family court's termination of her parental rights to A.R.H. denies her the fundamental right to procreate. Mother's assertion lacks both logic and citation to any legal precedent.
Mother also discusses the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). As the Supreme Court observed in Troxel, parents generally enjoy a constitutionally protected liberty interest in rearing their children without government interference. However, Mother's right to raise a child as she "sees fit" ended where the grave danger that she poses to A.R.H. was established. We conclude that competent evidence presented to and summarized by the family court proves that Mother poses just such a danger. Mother's constitutional rights were not violated by the termination order.
Therefore, we AFFIRM the judgment of the Fayette Family Court.
ALL CONCUR. BRIEFS FOR APPELLANT: R. Bruce Stith III
Robert P. Stith
Lexington, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Tiffany L. Yahr
Lexington, Kentucky