Opinion
NO. 2018-CA-001662-ME NO. 2018-CA-001734-ME
01-10-2020
T.H.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND L.M.H., A MINOR CHILD APPELLEES AND K.J.T. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND L.M.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT T.H.H.: James C. Jones, II Bowling Green, Kentucky BRIEF FOR APPELLANT K.J.T.: Mark T. Smith Bowling Green, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NO. 18-AD-00021 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Before us are the appeals of T.H.H. (hereinafter referred to as Father) and K.J.T. (hereinafter referred to as Mother). They appeal the involuntary termination of their parental rights to their child, L.M.H. (hereinafter referred to as Child). We hold that the trial court did not err in terminating the parental rights of these parents; therefore, we affirm.
This case involves the neglect of a minor child; therefore, we will not use the names of the parties or the child.
FACTS AND PROCEDURAL BACKGROUND
Child was born on April 5, 2016. Child was removed from Mother's custody on September 20, 2016. The allegations prompting the removal were that Child was left home alone by Mother and that Mother abused drugs. Child was placed in foster care at this time. A worker for the Cabinet for Health and Family Services was able to meet with both parents in October of 2016. At this time, the parents negotiated a case plan. Both agreed to, among other things, maintain stable housing and employment, remain drug free, and comply with all Cabinet recommendations and referrals. Due to drug abuse, multiple incarcerations, and unstable housing, Mother and Father made little progress on their case plans. The parents attended sporadic visitations with Child and employees of the Cabinet testified that it was hard to locate the parents at times. Mother last visited with Child in December of 2017, and Father last visited with Child in November of 2016.
Mother and Father did not live together. At the time of the removal, Mother and Child were living with Child's maternal grandmother.
The Cabinet filed the petition to terminate parental rights on February 8, 2018. The Cabinet alleged that: the parents had abandoned Child for more than 90 days; they were unable to provide parental care and protection for Child; and they were unable to provide food, clothing, shelter, or medical care for Child and that there was no expectation of improvement in this area in the foreseeable future. The Cabinet indicated that it had provided all reasonable services to the family, but that the parents had failed to change their circumstances in such a way as to allow Child to return to their care and custody.
A termination hearing was held on September 13, 2018. During the hearing, two social workers, a Cabinet investigator, a Cabinet support services aide, Mother, and Father testified. The Cabinet's employees testified that Mother and Father did not complete their case plans. They testified that the parents continued to abuse drugs and had become incarcerated. They also testified that neither had stable housing or jobs and both would miss visitation with the child. At the time of the hearing, testimony indicated that Mother had recently been released from prison, but while incarcerated, she was able to complete a drug rehabilitation program. Mother then began living in a sober living house. At the time of the hearing, Father was still incarcerated, but he had begun a substance abuse program.
On October 18, 2018, the trial court entered orders terminating Mother's and Father's parental rights to Child. The court found that the Cabinet had rendered or attempted to render all reasonable services to the parents, but that the Cabinet was unsuccessful in getting them to utilize these services. The trial court focused on Mother's drug use, transient lifestyle, and sporadic visitation as grounds for terminating her parental rights. The court focused on Father's lack of progress on a case plan, his incarcerations, and his lack of contact with the Cabinet as grounds for terminating his parental rights. The trial court also found that it would be in the best interests of Child for the parents' parental rights to be terminated because Child has made substantial improvements since being in foster care. This appeal followed.
ANALYSIS
The statute governing the involuntary termination of parental rights has recently been amended. We will use the version that was in effect in 2018. The 2018 version of the involuntary termination of parental rights statute states:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and 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;
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; or
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(b) Termination would be in the best interest of the child.
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(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 or neglect as defined in KRS 600.020(1) 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.
(4) If the child has been placed with the cabinet, the parent may present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.
(5) If 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.
(6) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
KRS 625.090.(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
The standard for review in termination of parental rights cases is set forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998). Therein, it is established that this Court's standard of review in a termination of parental rights case is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, which is based upon clear and convincing evidence. Hence, this Court's review is to determine whether the trial court's order was supported by substantial evidence on the record. And the Court will not disturb the trial court's findings unless no substantial evidence exists on the record.
Furthermore, although termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met. While the state has a compelling interest to protect its youngest
citizens, state intervention into the family with the result of permanently severing the relationship between parent and child must be done with utmost caution. It is a very serious matter.M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citations omitted).
The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence. "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."V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (citations omitted).
Kentucky Revised Statutes.
We will first begin with Father's appeal, in which he raises only one issue. Father argues that the trial court's finding that the Cabinet rendered or attempted to render all reasonable services in an effort to reunite the family was erroneous. He claims that the social service workers made no attempt to locate him or maintain contact with him; therefore, they provided no services. We disagree.
The testimony provided at the termination hearing indicated that the Cabinet's employees had a difficult time locating Father. Father was incarcerated multiple times, had no permanent address, and at one time was a fugitive living in Tennessee. Father also did not regularly contact the Cabinet. The social workers testified that they attempted to locate Father multiple times via Lexis Nexis address searches and searches of the Warren County jail inmate records. Social workers also sent out certified letters to the last known addresses of Father, but they were always returned undeliverable.
Father negotiated a case plan with a social worker in October of 2016. He was then given three supervised visits. Father was then incarcerated in January of 2017 and made no more progress on his case plan. Father was in and out of jail in 2017. In 2017, Father's paramour contacted the Cabinet and informed the social worker that Father wanted his other daughter to take Child. The social worker testified that she asked the paramour to have Father call her, but he did not. A home study evaluation of Father's other daughter was done; however, she was an inappropriate caregiver. Testimony indicated she was fraudulently receiving food stamps and was caring for an extremely sick relative. Father was located at the Warren County jail in February of 2018. The social worker at that time went to the jail, spoke with Father, negotiated an updated case plan, and informed him of programs he could complete while incarcerated.
Here, Father made no attempt to change his circumstances so as to maintain his parental rights over Child. His multiple incarcerations, lack of residence, and inability to stay in contact with the Cabinet made improvement impossible. It was not until May of 2018 that Father entered a substance abuse program; however, by that time, Child had been in the custody of the Cabinet for 20 months. We believe the trial court did not err in finding the Cabinet made reasonable efforts to reunify Father and Child.
We now move to Mother's appeal. Mother's counsel filed an Anders brief in this case. If appointed appellate counsel in a termination of parental rights case finds an appeal to be frivolous, he or she can file an Anders brief indicating such, ask to be removed from the case, and request that the Court review the record to determine if the case is frivolous. Appellate counsel will also inform Appellant of this issue and Appellant is then given time to file a pro se brief. Mother did not file a pro se brief in this case.
Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (adopted by Kentucky for termination of parental rights cases in A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012)).
We have reviewed the record in this case and watched the recording of the termination hearing. We believe this appeal is without merit. The trial court was correct to terminate Mother's parental rights to Child. Child was removed from Mother's care in September of 2016 due to drug use and lack of supervision. Mother made little progress in her case plan. In November of 2017, she completed a mental health assessment but did not follow the recommendations. In August of 2018, Mother was court ordered to enter a drug rehabilitation center. She completed that program and, at the time of the termination hearing, was living in a sober living home. Mother did not complete parenting classes and she attended only 12 of 40 scheduled visitations. Also, she admitted multiple times to her social workers that she was using drugs. She also had no permanent address, was living a transient life, and was also in and out of jail. At the time of the termination hearing, Child had been in the custody of the Cabinet for almost two years.
This court order was part of a criminal proceeding. --------
The trial court found that Mother had abandoned Child for no less than 90 days, that she had failed to provide parental care and protection for Child, and that she had failed to provide food, clothing, and shelter for the child. The trial court also indicated it had considered the best interests of the child and had considered the factors listed in KRS 625.090(3). These findings are supported by the record.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Warren Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT T.H.H.: James C. Jones, II
Bowling Green, Kentucky BRIEF FOR APPELLANT K.J.T.: Mark T. Smith
Bowling Green, Kentucky BRIEFS FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky