Opinion
2022-CA-1170-ME
05-12-2023
T.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND K.M.M., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Steven L. Boling Owensboro, Kentucky BRIEF FOR APPELLEE: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE ACTION NO. 22-AD-00039
BRIEF FOR APPELLANT: Steven L. Boling Owensboro, Kentucky
BRIEF FOR APPELLEE: Kevin Martz Covington, Kentucky
BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.
OPINION
GOODWINE, JUDGE
T.M. ("Father") appeals the August 25, 2022 findings of fact, conclusions of law, and judgment of the Daviess Circuit Court, Family Division involuntarily terminating his parental rights to his child. After careful review, we vacate and remand.
BACKGROUND
The child was born on October 21, 2018. He was removed from Father's care and placed in the emergency custody of the Cabinet for Health and Family Services ("Cabinet") on May 4, 2020. In the dependency, abuse, and neglect ("DNA") action, Father waived his right to a formal adjudication hearing and stipulated to dependency without admitting to the Cabinet's allegations. The family court adopted the Cabinet's case plan at disposition on September 20, 2020. The Cabinet then petitioned for involuntarily termination of Father's parental rights on April 26, 2022. At trial, the family court heard testimony from Kim Bennett ("Bennett"), the child's art therapist; E.K. ("Foster Parent"); Patricia Benton ("Benton"), the family's Cabinet caseworker; Susan Law ("Law"), the supervisor from the visitation center; and Father.
The child's biological mother ("Mother") was also party to the DNA case and her parental rights were involuntarily terminated in the action below. She did not appeal the judgment and is not a party to this appeal.
Evidence at trial showed the child was removed from Father's care because the child was found unsupervised outside his home. At removal, the child did not have any known health conditions and the Cabinet did not allege Father neglected his medical care. The Cabinet's case plan required Father to: (1) complete a parenting assessment; (2) participate in a mental health assessment; and (3) cooperate with the Cabinet. Father was allowed weekly supervised visitation. In the September 15, 2020 dispositional report, the Cabinet noted Father was "making great strides in working his case plan" and the goal of the case was to return the child to Father's custody.
Father successfully completed his case plan by March 2021, approximately ten months after the child was removed from his care. As a result of the parenting assessment, he completed parenting classes. His mental health assessment did not result in any recommended treatment. Based on his compliance with the Cabinet, Father was allowed unsupervised visitation in March 2021. However, the Cabinet instructed Father not to take the child to the home from which he was removed because of high levels of lead in the home and lack of sewer service. Therefore, during his overnight visitation, Father and the child either stayed with Father's stepfather or in a hotel room.
The Cabinet halted Father's unsupervised visitation in July 2021. The Cabinet did so because Benton discovered Father had taken the child to the home from which he was removed on more than one occasion. Father testified he did so because he could not afford to rent a hotel room for every visit and his stepfather's home was unavailable on those occasions. Father further explained he struggled to obtain independent housing because of poor credit.
Benton also expressed concern because Father allowed Mother to have contact with the child when she was not cooperative with the Cabinet and had not worked her case plan. During his unsupervised visits, Father allowed Mother to briefly visit with the child on two or three occasions. Father was present during the entirety of these visits. He explained that, as a former child in foster care, he worried about the impact denying Mother contact would have on the child. However, he admitted this was a poor decision and acknowledged the importance of preventing contact when Mother was noncompliant with the Cabinet.
Mother has a history of substance abuse and was ordered to complete treatment.
After the Cabinet stopped Father's unsupervised visitation, he was again allowed two one-hour supervised visits per week. According to Law, there were no issues with Father's visits. He interacted positively with the child. The child was always happy to see Father and went willingly to Father during visits. Father attended all visits and Benton did not have any concerns about the visits.
In April 2021, after Father completed his case plan, the child was diagnosed with muscular dystrophy. The child was diagnosed by physicians at Norton Healthcare and continues to have biannual appointments with those doctors. According to Foster Parent, the child also attends weekly speech therapy, bimonthly physical therapy, bimonthly art therapy, and weekly occupational therapy. Foster Parent reported the child engaged in regular exercises and stretching to treat his muscular dystrophy. The Cabinet did not provide any documentation or specific testimony detailing these exercises. The child is also required to wear ankle braces during the day but does not need mobility assistance. The child has not been prescribed medication for his condition.
Prior to his diagnosis, the child exhibited no symptoms of muscular dystrophy. He was not diagnosed with the condition until after removal because doctors recommended testing after the child's half-sibling was diagnosed with the condition. There is no allegation Father should have known of the child's condition or failed to provide necessary medical care prior to the child's removal.
Art and speech therapies are not related to the child's muscular dystrophy.
Benton's May 13, 2021 report to the family court noted Father's unsupervised visitation stagnated because of his "inability to maintain appointments." Testimony indicated the child was dropped from speech therapy because Father missed or was late for two or three virtual appointments. Father testified he missed the appointments because of a poor internet connection. Foster Parent was asked by the Cabinet to document when Father attended the child's medical and therapy appointments. During her testimony, the Cabinet presented a document she created to track Father's attendance. According to Foster Parent, Father attended six of seven of the child's physical therapy appointments, one of two occupational therapy appointments, and fourteen of twenty speech therapy appointments. Father attended the child's appointment at Norton but did not attend an MRI appointment. Benton was responsible for informing Father of appointments. She admitted documentation showed Father was informed of only one of the nine appointments he failed to attend.
Bennett has provided art therapy to the child every other week for approximately three months. She reported the child was enrolled in art therapy for anxiety. Due to his anxiety, the child acts out by biting objects or sometimes throwing items. The child's anxiety appeared to increase when there was uncertainty or inconsistency in his routine. Bennett has treated the child's anxiety by teaching him coping skills. Bennett and Foster Parent testified the child's anxiety could be addressed by hugging him tightly, swinging, or spinning in an office chair. Foster Parent also mentioned employing parenting strategies such as putting the child in timeout when he threw a toy.
Bennett also testified to the child having "sensory issues," but she does not treat those issues. She also does not treat the child's muscular dystrophy and did not testify to the condition or its treatment.
Bennett speculated returning the child to Father's custody could increase his anxiety. She testified the child needs a caregiver who "really understands" his anxiety but did not provide any specific education Father or any other caregiver would need to obtain to care for the child or help him develop coping skills. Bennett did not prepare reports or other materials for the child's caretakers. Father was not informed the child was enrolled in art therapy. Bennett spoke only to Foster Parent who attends appointments with the child due to his age.
Benton informed Father he could not restart unsupervised visitation until he obtained stable housing. Father struggled to find an apartment because of financial issues and bad credit. In December 2021, Father leased an apartment and informed Benton that he had secured housing. She did not inspect the apartment until April 2022, but agreed it was safe, clean, well-kept, and appropriate for the child. Even with Benton's approval, Father was not granted unsupervised visitation.
The record indicates Father maintained employment for most of the duration of the case and the underlying DNA action. During the pendency of the DNA action, he accepted new employment because it was more conducive to the child's medical and therapy schedule than his prior job. His supervisor agreed to schedule his hours around the child's appointments so long as Father gave adequate notice. After trial, the family court entered a judgment terminating Father's parental rights on August 25, 2022. This appeal followed.
Father's employment is first noted in the record in September 2020, prior to disposition in the DNA action.
STANDARD OF REVIEW
The Supreme Court of the United States has defined parental rights as essential civil rights which are "far more precious . . . than property rights." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (citations omitted).
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). Termination of parental rights has been equated to a death sentence for the family unit because it is one of few state actions which is "both so severe and so irreversible." Id. at 759, 102 S.Ct. at 1398.
The Commonwealth's termination statute "reflects a default preference against termination[.]" D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 112 (Ky. 2012). Such a profound deprivation of rights demands an accurate and just decision. Santosky, 455 U.S. at 759, 102 S.Ct. at 1397 (citing Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981)). Courts must proceed with "utmost caution" in actions for involuntary termination of parental rights. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). The judgment must be based on clear and convincing evidence. Id. (citation omitted). On review, we must ensure the judgment is "supported by substantial evidence on the record." Id.
ANALYSIS
To involuntarily terminate an individual's parental rights, the family court must find (1) the child is or has been adjudged to be abused or neglected; (2) the existence of at least one of the grounds listed in KRS 625.090(2); and (3) considering factors in KRS 625.090(3), termination is in the child's best interest. KRS 625.090.
Kentucky Revised Statutes.
First, Father argues the family court erred in finding the existence of grounds for termination under KRS 625.090(2)(e) and (g). The statute requires the court to find the existence of only one ground under KRS 625.090(2). In addition to its findings under subsections (e) and (g), the court determined "the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]" KRS 625.090(2)(j). Father does not contest this finding and it is clearly supported by the record. Regardless of the correctness of the family court's findings under subsections (e) and (g), its finding under subsection (j) is determinative. Father's argument must fail.
Next, the Cabinet argues Father has raised no other issues and, as such, concedes to the family court's finding of best interest. Where an appellant does not adequately cite to supportive authority, we may deem an argument waived as it is not the function of the appellate courts to construct an appellant's legal arguments. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citation omitted). However, this is not mandatory. Father broadly argues evidence in the record does not support the family court's finding of best interest under KRS 625.090(3). Although Father's argument is not well-articulated, we will proceed with our review of the merits because termination is such a profound deprivation of rights. See D.G.R., 364 S.W.3d at 112 (citation omitted); see also V.S. v. Commonwealth, Cabinet for Health and Family Services, 194 S.W.3d 331, 333 (Ky. App. 2006).
Hadley was rendered prior to the adoption of the Kentucky Rules for Appellate Procedure ("RAP") and cites to Kentucky Rules of Civil Procedure ("CR") 76.12(4)(c)(v). Hadley remains applicable because RAP 31 and 32 contain briefing requirements which are nearly identical to those in their predecessor rule, CR 76.12.
It is well-settled that the appellant must first raise an issue before the trial court and the trial court must decide the issue to preserve it for appeal. Brooks v. Byrd, 487 S.W.3d 913, 919 (Ky. App. 2016). Father has done so.
To determine the best interest of the child, the family 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 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.KRS 625.090(3).
Subsection (a) does not apply to this matter. Father has no mental illness or intellectual disability.
Regarding subsection (b), the family court found the child to be a neglected child under KRS 600.020(1)(a)2., 3., 4., 7., 8., and 9. KRS 600.020(1)(a)2. defines neglect as instances when a custodian "[c]reates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means[.]" Evidence in the record supports the family court's finding Father created a risk of physical injury when the child was found outside the home without supervision on May 4, 2020. This is the initiating incident for the DNA case. While this singular event is sufficient to establish the child has been neglected under KRS 600.020(1), the record does not support the remainder of the court's findings under KRS 600.020(1)(a).
Under KRS 600.020(1)(a)3., the record does not show Father has engaged in a pattern of conduct which renders him incapable of caring for the child's immediate and ongoing needs. He does not suffer from substance use disorder. Furthermore, he completed his case plan; attended all but one of the child's medical and therapy appointments of which he was aware; consistently engaged in positive visits with the child; found employment with a schedule conducive to the child's medical needs; and obtained safe and appropriate housing. Although Father made mistakes along the way, the Cabinet proved no pattern of conduct which renders him incapable of caring for the child and his needs.
Under KRS 600.020(1)(a)4., Father has not continuously or repeatedly failed or refused to "provide essential parental care and protection for the child, considering the age of the child[.]" Other than the incident in 2020, Father has consistently completed every task required by the Cabinet. He has interacted with the child in an appropriate and positive manner. He has attended medical and therapy appointments. He worked to provide a safe and appropriate environment for the child, including finding appropriate housing and stopping Mother's contact with the child.
Father has neither abandoned nor exploited the child. KRS 600.020(1)(a)7. The Cabinet has made no allegation of exploitation. Furthermore, "abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (citation omitted). A parent's actions must be both willful and harsh. P.C.C. v. C.M.C., Jr., 297 S.W.3d 590, 593 (Ky. App. 2009) (citing Kantorowicz v. Reams, 332 S.W.2d 269, 271-72 (Ky. 1959)). The record clearly does not support a finding of abandonment. Instead, Father has consistently exhibited a commitment to the child and a desire to do what is required to regain custody of him.
Father can provide the child with "adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being[.]" KRS 600.020(1)(a)8. He has stable employment and an appropriate and safe home. Evidence at trial showed he attended the child's medical and therapy appointments and understood the child's medical needs.
As has been thoroughly discussed, Father has made sufficient progress toward identified goals as set forth in his case plan. KRS 600.020(1)(a)9. In fact, he completed his case plan in March 2021 and has continued to comply with the Cabinet's requirements.
Next, under KRS 625.090(3)(c), the family court found that the Cabinet made reasonable efforts to reunite the family. Reasonable efforts are defined as "the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home[.]" KRS 620.020(13). Here, Father completed every task required by the Cabinet. Benton agreed he completed his case plan by March 2021, maintained employment, and obtained safe and appropriate housing.
The Cabinet claims to have provided Father with all available services but remains convinced he should not have custody of the child because of his muscular dystrophy diagnosis. However, Benton's testimony shows Father missed only one medical appointment, of which he was informed. Father was otherwise diligent in attending the child's appointments and ensuring his schedule would allow him to do so if he was granted custody.
Furthermore, no medical professional familiar with the child's muscular dystrophy diagnosis testified at trial. The Cabinet did not introduce medical records or treatment plans. Instead, Foster Parent testified to the child stretching but did not specify what stretches were required, how they are performed, or how often they are required. Both she and Father testified to the child wearing ankle braces during the day. Father testified he educated himself on the child's condition and ensured the child wore his braces except for a singular brief time during one supervised visit when the child was playing in a swimming pool. The Cabinet did not show Father neglected the child's medical needs.
Under subsection (d), evidence in the record shows Father made significant efforts and adjustments to his circumstances, conduct, and conditions to make it in the child's best interest to return the child to his care within a reasonable period of time, considering the child's age. KRS 625.090(3)(d). The child was born in October 2018 and was removed from Father's custody at approximately eighteen months of age. Father completed his case plan in ten months, when the child was two years old. The child was then diagnosed with muscular dystrophy, causing delays in the case outside Father's control.
The Cabinet points to two lapses in judgment as proof of Father's unfitness. First, when allowed unsupervised visitation, Father took the child to the home from which he was removed on two or three occasions. The home was deemed unsuitable because of the presence of lead and lack of sewer service. Father explained he did so because he could not afford a hotel room on those weekends, and his stepfather's home was unavailable. He described struggling to find an apartment because of credit problems. However, he obtained an apartment in December 2021 and notified Benton. Despite Father's notification, the Cabinet did not visit and approve the apartment until April 2022. Benton reported it was safe, clean, and appropriate for the child. Despite Father's remedy of the housing issue, the Cabinet did not allow unsupervised visitation to resume or return the child to Father's custody.
It is unclear where lead was present in the home and how the Cabinet discovered it.
Additionally, Father allowed Mother to see the child on more than one occasion. He did not leave Mother and the child unsupervised. He did not inform Benton of the contact. He explained, as a former foster child, he worried about the effect severing communication with Mother would have on the child. However, he admits this showed poor judgment and agreed he would not allow any contact in the future unless Mother was compliant with the Cabinet.
Perfection is not the standard to which parents are held in termination of parental rights actions. We do not require them to be model caregivers. Santosky, 455 U.S. at 753-54, 102 S.Ct. at 1394-95. Father has shown occasional poor judgment. However, he has acknowledged and remedied those errors. He complied with the mental health and parenting assessments. He completed parenting classes. He attended every visit. He attended all but one appointment of which he was notified by Benton. He obtained safe and appropriate housing. He not only found employment but chose a position which allowed him the flexibility to accommodate the child's medical and therapy appointments. He has participated in programming to which he was referred by the Cabinet.
In light of Father's exemplary progress, the Cabinet relies on the vaguely supported assertion that he cannot care for a child with medical needs. No witness testified to an unwillingness or inability on Father's part to ensure the child wears his ankle braces, stretches, and attends medical appointments. Instead, the Cabinet attempted to prove Father was inconsistent in attending the child's appointments. However, documentation indicates Father missed only nine of forty appointments and, of those nine, he was informed of only one. A single missed doctor's appointment is clearly insufficient to prove Father's inability to parent the child.
The Cabinet then points to Father's admission that he has not completed stretches with the child during his twice weekly, hour-long supervised visits, one of which was apparently conducted at a public park. However, no evidence indicated stretches were necessary during those limited times. Foster Parent testified to conducting the stretches with the child. Nothing in the record shows duplicating those stretches would have been helpful or even safe for the child. Furthermore, Father was never asked to engage in stretching or told proving he could execute these exercises was required for the child to be returned to his care. Instead, because of his failure to stretch during his limited time with the child, the Cabinet asserts he is unable to care for the child. This is insufficient.
The family court failed to address subsection (e) which requires consideration of whether termination would improve the child's physical, emotional, and mental health. KRS 625.090(3)(e). We have addressed the child's physical health at length and the record clearly indicates the Cabinet did not prove Father was incapable of providing for the child's physical needs even with his muscular dystrophy diagnosis. Father showed he can provide a safe and clean home, ensure the child attends medical and therapy appointments, and care for the child.
Furthermore, evidence shows the child's emotional and mental health would not be improved by termination. The child is bonded with his foster family. However, he is also bonded with Father. He is always happy to see Father and interacts well with him. Foster Parent testified to the child acting out after visits, sometimes requiring a firm hug or other soothing strategies. Bennett diagnosed the child with anxiety and reported a need for coping strategies. While these strategies may be necessary, nothing in the record shows Father has been incapable or unwilling to implement them. In fact, Father was neither informed the child was attending art therapy nor given an opportunity to attend appointments or speak with Bennett to learn about coping strategies.
Under subsection (f), the court found no evidence Father provided a "reasonable portion of substitute physical care" for the child except for providing diapers. KRS 625.090(3)(f). The Cabinet did not produce an order for Father to pay child support associated with the DNA action. A.G. v. Cabinet for Health and Family Services, 621 S.W.3d 424, 431 (Ky. 2021). Because there is no evidence in the record that the state sought child support from Father, this finding is clearly erroneous. Id.
The family court's finding that the termination of Father's parental rights is in the child's best interest is not supported by substantial evidence. Following the incident necessitating the child's removal, Father completed every task the Cabinet required of him. Although he made mistakes, he consistently improved and made decisions in the child's best interest. He entirely altered his circumstance to provide a better environment for the child. He adjusted to accommodate the child's medical diagnosis. Considering the great strides made by Father, we are left only with the singular incident in May 2020, a few poor decisions which Father addressed, and Father's failure to pay support where none had been ordered as evidence that termination would be in the child's best interest. This is wholly insufficient under KRS 625.090(3).
CONCLUSION
The family court's finding that termination of Father's parental rights is in the child's best interest is not supported by substantial evidence on the record. On this basis, the judgment of the Daviess Circuit Court, Family Division is vacated and remanded.
We must caution Father's counsel, despite the outcome of this appeal, adherence to the RAP, including all briefing requirements, is of the utmost importance in appellate practice. A brief may be stricken for failure to substantially comply with briefing requirements. RAP 31(H)(1). The leniency we extended here cannot be guaranteed in the future.
ALL CONCUR.