Opinion
NO. 2012-CA-000322-ME
10-26-2012
T.A.L.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; B.G., S.R.; B.J.G., JR., AND INFANT APPELLEES
BRIEF FOR APPELLANT: Nicholas D. Summe Covington, Kentucky BRIEF FOR CABINET FOR HEALTH AND FAMILY SERVICES, APPELLEE: Kelly S. Wiley Assistant Counsel Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 11-AD-00024
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. ACREE, CHIEF JUDGE: T.A.L.P. appeals the Campbell Family Court's January 10, 2012 order terminating her parental rights to her child, B.G., Jr. She contends the family court, in making its best-interest determination, failed to adequately consider the efforts and adjustment T.A.L.P. made in her circumstances to make it in B.G., Jr.'s best interest to return to her care within a reasonable period. We find substantial evidence supports termination of T.A.L.P.'s parental rights; accordingly, we affirm.
I. Facts and Procedure
T.A.L.P. (Mother) is the natural mother of B.G., Jr. (Son), a male child born on May 12, 2010. In June 2010, the Cabinet for Health and Family Services (the "Cabinet"), pursuant to an emergency custody order, removed Son from Mother's care; Son was placed in foster care. Concomitantly, the Cabinet filed a petition in the Campbell Family Court claiming Mother neglected Son because he lacked personal hygiene, endured unsanitary living conditions, and Mother had a substance abuse problem (heroin). Soon thereafter, on July 21, 2010, Mother admitted neglect; however, Cabinet and family court agreed to amend the neglect finding to dependency if Mother adequately worked her case plan.
The identity of Son's natural father is disputed. Initially, Mother alleged in a signed statement that Appellee B.G., Sr., is Son's natural father. Subsequently, at the termination hearing, Mother declared under oath that another man, A.L.B., is Son's natural father. Mother explained Son is bi-racial, and therefore B.G., Sr., could not be Son's natural father because Mother and B.G., Sr., are both Caucasian.
On October 27, 2010, the family court ordered Mother to complete a fourteen task case plan. The tasks included: (1) maintaining consistent and appropriate housing; (2) obtaining and maintaining consistent employment; (3) demonstrating safe, appropriate, and nurturing parenting at all times; (4) participating in consistent visitation with Son; (5) successfully completing a parenting assessment; (6) remaining drug and alcohol free; (7) successfully completing a mental health and substance abuse assessment; (8) resolving all criminal matters involving Mother; (9) completing a domestic violence assessment; (10) refraining from relationships that risk domestic violence; (11) participating in monthly home visits and cooperating with the Cabinet; (12) complying with all court orders, including child support orders; (13) attending court hearings related to her case; and (14) avoiding contact with Son's purported father, B.G., Sr. Mother did not fulfill the tasks assigned to her.
The Cabinet filed its petition for involuntary termination of Mother's parental rights on May 25, 2011. Mother opposed the petition. Following several delays, the Cabinet's petition came on for trial on January 6, 2012.
At trial, Mother described her relationship with Son. Mother disclosed Son only lived with her for approximately 5½ weeks. Since then, Son has resided with one foster family. Mother confessed she has neither seen Son nor contacted the Cabinet concerning Son's welfare since December 2010. Mother also admitted she has not provided Son with any basic living essentials, including clothes, diapers, food, or toys, since his removal in June 2010. Mother agreed Son would not recognize her if he saw her today, but clarified that Son, at the time of trial, was less than two years old. Mother has never paid child support for Son.
Mother has two older children, neither of whom is in Mother's custody. Mother's oldest child, S.L., was born on February 10, 2006. In November 2006, S.L. was removed from Mother's care due to unsanitary and unstable living conditions, and Mother's drug addiction; S.L. was placed in the care of her paternal grandparents. Mother's second child, M.P., was born on April 10, 2007, and immediately removed from Mother's care because Mother tested positive for drugs at the time of M.P.'s birth. M.P.'s natural father was awarded custody.
Mother has a lengthy criminal history. Between 2006 and 2011, Mother has been convicted of the following: shoplifting; second-degree disorderly conduct; alcohol intoxication in a public place (2008); unauthorized use of a motor vehicle; alcohol intoxication in a public place (2010); first- and second-offense alcohol intoxication in a public place (2011); and first-degree possession of a controlled substance/heroin. With respect to the possession charge, in August 2011, the Campbell Circuit Court placed Mother in the felony diversion program for a period of two years, and ordered home incarceration until such time as Mother was accepted into an inpatient treatment program; Mother was released from jail on August 24, 2011, subject to GPS monitoring. Then, in December 2011, Mother missed a "curfew call" and was returned to jail where she remained at the time of trial.
Mother was incarcerated in April 2011 because she violated the terms of a prior jail release when she received these two alcohol-intoxication charges within a twenty-four-hour period.
Mother also discussed her current sobriety status. Mother admitted she was a drug addict addicted to heroin, but currently in recovery. She testified she has been sober since April 24, 2011. Since her release from jail in August 2011, Mother has attended daily Alcoholics Anonymous (AA) meetings and sought treatment for depression at NorthKey. In December 2011, prior to returning to jail, Mother testified she accidentally took a Vicadin tablet prescribed to another family member. Mother admitted prior drug treatment attempts were unsuccessful. However, in accordance with the diversion program discussed above, Mother planned to enter the Women's Residential Addiction Program (WRAP) on January 23, 2012.
Mother clarified that WRAP is a 92-day in-house treatment program with one-year aftercare treatment. Mother testified she could care for Son while attending WRAP. Mother also testified WRAP would assist her in obtaining stable housing and employment. Mother has not been employed for the last two years.
Ashley Taylor, a social worker with the Cabinet, also testified at trial. Taylor clarified Mother last contacted the Cabinet regarding her case plan in January 2011, and last contacted the Cabinet regarding Son in December 2010. Taylor confirmed Mother has never provided any care items for Son. Taylor testified Mother has not completed any of the case plan tasks assigned in October 2010, and never requested a continuance to work on her case plan.
Taylor described Son's relationship with his foster parents. Taylor explained Son smiles often, laughs frequently, and always runs to his foster parents for love and affection. Taylor opined Son's foster parents were, and continue to, meet Son's developmental needs. Son has only resided with this foster family, and they intend to adopt Son.
On January 10, 2012, the family court entered findings of fact and conclusions of law, and an order terminating Mother's parental rights to Son. The family court determined: Son was a neglected child (Kentucky Revised Statute (KRS) 625.090(1)(a)(1)); it was in Son's best interest to terminate Mother's parental rights (KRS 625.090(1)(b)); Mother abandoned Son for a period of not less than ninety (90) days (KRS 625.090(2)(a)); Mother, for a period of not less than six (6) months, continuously or repeatedly failed, refused to provide, or was incapable of providing essential parental care for Son, and there was no reasonable expectation of improvement in parental care and protection (KRS 625.090(2)(e)); and Mother, for reasons other than poverty alone, had continuously and repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for Son's well-being, and there was no reasonable expectation of significant improvement in the parental conduct in the immediately foreseeable future, considering Son's age (KRS 625.090(2)(g)).
The circuit court's January 10, 2012 order also terminated B.G., Sr.'s parental rights - to the extent those rights exist - to Son. B.G., Sr. did not appeal the circuit court's determination, is not a party to this appeal, and, therefore, is not currently before this Court.
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Mother timely appealed the family court's order. As additional facts become relevant, they will be discussed.
II. Standard of Review
The family court's decision to terminate Mother's parental rights will only be reversed for clear error; that is, where there is no substantial, clear, and convincing evidence to support the decision. KRS 625.090(1); Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (noting the appellate court will not interfere with the trial court's findings "unless the record is devoid of substantial evidence to support them"). "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 ordinary prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted).
III. Analysis
KRS 625.090 sets forth the grounds for the involuntary termination of parental rights. Specifically,
KRS 625.090 provides that parental rights may be involuntarily terminated only if, based on clear and convincing evidence, a circuit court finds: (1) that the child is abused or neglected as defined in KRS 600.020(1); (2) that termination is in the child's best interests; and (3) the existence of one or more of ten specific grounds set out in KRS 625.090(2).M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007); KRS 625.090(1)(a)-(b), (2).
We have reviewed the record in detail and find sufficient evidence to support the family court's decision to terminate Mother's parental rights. Turning to the first element - whether Son was abused or neglected as defined by statute - the family court properly took judicial notice of its previous finding that Son was a neglected child as defined by KRS 600.020(1). KRS 625.090(1)(a)(1). In fact, as noted by the family court, Mother stipulated to neglect. Mother does not take issue with the circuit court's neglect finding; this element warrants no further discussion.
With respect to the "best-interest determination," KRS 625.090(3) identifies several circumstances the family court must consider, including:
(a) Mental illness . . . or mental retardation . . . of the parent;KRS 625.090(3).
(b) Acts of abuse or neglect . . . toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet 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 District Court;
(d) The efforts and adjustments the parent has made in his 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, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if 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.
The family court properly considered the factors delineated in KRS 625.090(3) and found substantial evidence supporting the determination that it was in Son's best interest to terminate Mother's parental rights. Notably, Mother failed to obtain stable employment, pay child support, complete any of her case plan tasks, or provide any care or living items for Son. KRS 625.090(3)(d), (f). Moreover, it is uncontroverted that Son has a strong bond with his foster parents, he is doing well, and his needs are being met; if termination is ordered, prospects for improvement of Son's welfare are substantial. KRS 625.090(3)(e). After viewing all the evidence, the family court properly concluded it was in Son's best interest to terminate Mother's parental rights.
The crux of Mother's argument to this Court is that the family court, in making its best-interest determination, failed to recognize Mother has made sufficient progress in her case plan and, as a result, Son could be returned to her in a reasonable time. In support, Mother points to KRS 625.090(3)(d). This subpart requires the family court, in ascertaining the child's best interest, to consider "[t]he 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, considering the age of the child." KRS 625.090(3)(d).
Mother avers she realized in spring 2011 she was "not being the mother she should have been" to Son, and needed to change her life. As a result, Mother testified she has been sober since April 24, 2011, and agreed to enter an in-house treatment program on January 23, 2012. The program would not only help her achieve sobriety, but also provide housing for her and Son, and the ability to obtain both stable work and a stable income to provide for Son's basic living essentials. She further testified she has a support system in place to help her remain sober, she has attended daily AA meetings since August 2011, she has made significant progress in her recovery since April 2011, and she is very serious about her recovery.
While we commend Mother for her efforts to maintain sobriety, those efforts, to the extent they have any bearing on Mother's continued parental rights to Son, have come too late. Son is at a young, vulnerable age. He deserves permanency, and appropriate care; stability is paramount. The Cabinet, in October 2010, gave Mother the opportunity to provide that care by offering Mother several services, including parenting, mental health, and substance abuse assessments. Mother chose not to avail herself of those opportunities. Additionally, Mother did not agree to enter the WRAP program, or any other treatment program, until well after Son was removed from Mother's care in May 2010, and Mother admitted to neglecting Son in June 2010.
Mother claims she has been sober since April 2011. Yet, during Mother's alleged sobriety period, Mother did not visit Son, inquire about his well-being, provide basic living essentials such as food, clothing, or diapers, work her case plan, obtain employment, or pay child support. Mother admits Son would not recognize her if he saw her today. Thus, despite being both sober and free from jail, Mother made no efforts to be involved, in any manner, in Son's life or care.
Furthermore, while Mother has taken steps to improve her personal well-being, she has not taken any steps to improve her parental skills or demonstrated any lasting changes in her ability to parent which would indicate it is in Son's best interest to return to Mother's care within a reasonable period of time. In sum, we find substantial evidence supports the family court's finding that termination of Mother's parental rights is in Son's best interests. KRS 625.090(1)(b).
Finally, KRS 625.090(2) sets forth several statutory factors, one of which must be present before a family court may terminate a person's parental rights. As referenced previously, the family court found those factors enumerated in subsections (a), (e), and (g) were present in this matter. If the evidence supports any of the three findings, we must affirm the family court's conclusion that grounds for termination existed.
Mother does not take issue with the circuit court's findings concerning these factors. Nevertheless, in the interest of thoroughness, we note - and not merely in passing - that the evidence at trial clearly supports the circuit court's determination that grounds existed justifying termination. We again reiterate that Mother admitted at trial she had neither seen Son nor contacted the Cabinet concerning Son's well-being or care since December 2010. Mother's testimony alone constitutes substantial evidence supporting the family court's finding that Mother abandoned Son for a period not less than ninety days. KRS 625.090(2)(a).
Additionally, the evidence at trial established: (1) Mother lost custody to her two other children, S.L. and M.P., in 2006 and 2007, respectively, due to substance abuse problems and unstable living conditions; (2) Mother admitted to a 12-13 year addiction to drugs and alcohol; (3) Mother's prior drug treatments were unsuccessful; (4) Mother has done nothing to support Son, including providing basic living essentials since his removal from her care in June 2010; (5) Mother is currently unemployed and has been for the past 2 years; and (6) Mother failed to complete any of the services offered by the Cabinet in October 2010. This evidence substantially supports the family court's conclusions that Mother: (1) has, for a period of not less than six months, continuously failed to provide essential parental care for Son and there is no reasonable expectation of improvement in parental care; and (2) has, for reasons other than poverty alone, continuously failed to provide for Son's essential food, clothing, shelter, medical care, and education and there is no reasonable expectation of significant improvement in Mother's conduct in the immediately foreseeable future. KRS 625.090(2)(e), (g).
IV. Conclusion
Substantial evidence supports the family court's determination to terminate Mother's parental rights to Son. We affirm the Campbell Family Court's January 10, 2012 order.
MOORE, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Nicholas D. Summe
Covington, Kentucky
BRIEF FOR CABINET FOR
HEALTH AND FAMILY
SERVICES, APPELLEE:
Kelly S. Wiley
Assistant Counsel
Covington, Kentucky