Opinion
NO. 2015-CA-001691-ME
02-03-2017
C.N.E. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, AS GUARDIAN FOR THE MINOR CHILD, M.G.E.; AND M.G.E., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Maureen Sullivan Louisville, Kentucky Henry Weber Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT: Henry Weber Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES: Jennifer E. Clay Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DEE MCDONALD, JUDGE
ACTION NO. 14-AD-500349 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: C.N.E. brings this appeal from an Order Terminating Parental Rights and Order of Judgment entered in the Jefferson Circuit Court, Family Court Division Eight (family court) on October 7, 2015. We affirm.
On July 16, 2009, following a jury trial in Jefferson District Court (Action No. 09-H-0171-1), a disability judgment was entered adjudicating C.N.E. wholly disabled in managing her personal and financial affairs. Kentucky Revised Statutes (KRS) 387.590. C.N.E. suffers from schizophrenia and bipolar disorder. Due to her disability, the district court appointed the Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet), Division of Guardianship (Division of Guardianship) as guardian for C.N.E. While under the guardianship of the Cabinet's Division of Guardianship, C.N.E. gave birth to a baby girl, M.G.E., on May 11, 2013.
Two days after the child's birth, the Commonwealth of Kentucky, Cabinet for Health and Family Services, by and through the Department of Community-Based Services (DCBS), filed a petition for emergency custody of M.G.E. in the family court. The basis of the petition was that C.N.E. and M.G.E. both tested positive for cocaine at the time of M.G.E.'s birth. The family court entered an emergency custody order granting temporary custody of M.G.E. to the Cabinet's DCBS.
Shortly thereafter, DCBS filed a petition in the family court (Action No. 13-J-502408) alleging that M.G.E. was dependent, neglected, or abused based upon the positive cocaine drug screen. DCBS attempted to place the child with the maternal grandmother and with another relative but neither option was deemed appropriate for placement. During this proceeding, C.N.E. was hospitalized due to her mental illness at Central State Hospital. On November 7, 2013, the family court adjudicated M.G.E. an abused or neglected child. Following C.N.E.'s hospitalization at Central State Hospital, she was moved to various treatment facilities around the state. M.G.E. remained continuously in the custody of DCBS following her removal from C.N.E. shortly after her birth.
On August 21, 2014, DCBS filed a petition in family court seeking termination of C.N.E.'s parental rights. Following the filing of the petition, the family court appointed counsel for C.N.E. and subsequently appointed a guardian ad litem (GAL) for her. The court also appointed a GAL for the child, M.G.E. A trial on DCBS's petition to terminate parental rights was conducted on September 22, 2015. Despite objections from C.N.E.'s attorney, C.N.E. participated telephonically from the treatment facility where she was being treated. The family court's findings of fact, conclusions of law, and the judgment terminating C.N.E.'s parental rights to M.G.E. were entered on October 7, 2015. This appeal follows.
The Court's review of an action to terminate parental rights is confined to the clearly erroneous standard of Kentucky Rules of Civil Procedure 52.01 based upon clear and convincing evidence. Com., Cabinet for Health and Family Servs. v. T.N.H., 302 S.W.3d 658 (Ky. 2010). Clear and convincing evidence is not necessarily uncontradicted evidence; rather, it is evidence "of a probative and substantial nature carrying the weight and evidence sufficient to convince ordinarily prudent-minded people." Id. at 663 (quoting M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998)). And, an appellate court must "give a great deal of deference to the family court's findings and should not interfere with those findings unless the record lacks substantial evidence to support the findings. T.N.H., 302 S.W.3d at 663 (citing K.R.L. v. P.A.C., 210 S.W.3d 183 (Ky. App. 2006)).
Initially, C.N.E. contends that DCBS did not prove by clear and convincing evidence that terminating her parental rights was in M.G.E.'s best interest. More specifically, C.N.E. asserts DCBS did not demonstrate any of the grounds set forth in KRS 625.090 by clear and convincing evidence.
Involuntary termination of parental rights is governed by KRS 625.090. To involuntarily terminate parental rights under KRS 625.090, the family court must find by clear and convincing evidence that the following three-prong test is satisfied: (1) the child was found or adjudged to be abused or neglected as defined in KRS 600.020(1), (2) termination of parental rights is in the child's best interest, and (3) the existence of at least one of the grounds enumerated in KRS 625.090(2). Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204 (Ky. 2014).
In the case sub judice, the first prong of the test for terminating parental rights was satisfied as the family court found by clear and convincing evidence that M.G.E. was an abused or neglected child pursuant to KRS 600.020(1). In support thereof, evidence was presented that both C.N.E. and M.G.E. tested positive for cocaine at the time of M.G.E.'s birth. M.G.E. suffered from symptoms of drug withdrawal following her birth and remained in the hospital for some eight weeks. There was also evidence presented that C.N.E. had been diagnosed as suffering from schizophrenia and bipolar disorder. As a result of her mental illness, C.N.E. had been under the guardianship of the Cabinet's Division of Guardianship since 2009, and M.G.E. had been placed in the temporary custody of the Cabinet's DCBS shortly following her birth. Thus, sufficient evidence was presented that C.N.E. had continuously failed to provide essential care and protection to M.G.E. Evidence was also presented to demonstrate that C.N.E. had not made sufficient progress toward the goals of her case plan with DCBS.
An individualized case plan for ensuring safe return of the child to C.N.E. could not be achieved as a case plan had not been established. Department of Community-Based Services could not formulate a case plan for C.N.E. because she never submitted to drug testing as directed and never completed the University of Kentucky CATS assessment. Without those tasks being completed, a case plan could not be established for C.N.E. --------
The second prong of the analysis for termination of parental rights is that such termination must be in the child's best interest. KRS 625.090(3) requires consideration of several factors when determining whether terminating parental rights is in the child's best interest. In this case, the relevant factors considered under KRS 625.090(3) were: any mental illness of the parent, any acts of abuse or neglect of the child per KRS 600.020(1), whether DCBS made reasonable efforts to reunite the child with the parent, and whether the efforts and adjustments made by the parent ensured that the child's best interest was served by the child being returned to the parent in a reasonable amount of time. Also relevant were the physical, emotional, and mental health of the child, and the prospect for improvement in the child's welfare if termination is ordered.
In this case, there was substantial evidence presented regarding the factors set forth in KRS 625.090(3). There was testimony and documentation submitted into evidence to substantiate C.N.E.'s mental illness. C.N.E. suffered from schizophrenia and bipolar disorder. As a result, C.N.E. had been adjudicated wholly disabled in managing her personal and financial affairs in 2009. Also, DCBS was unable to establish an individualized case plan for ensuring M.G.E.'s safe return to C.N.E. because C.N.E. did not submit to drug testing or have a CATS assessment completed. Without a completion of those tasks, DCBS was not able to establish a case plan for C.N.E. Therefore, we believe the family court properly concluded there was sufficient evidence that terminating C.N.E.'s parental rights was in M.G.E.'s best interest.
Under the third prong of the analysis for terminating parental rights, the family court must find the existence of one or more of the grounds set forth in KRS 625.090(2). The evidence presented demonstrated that C.N.E. for a period of not less than six months had continuously or repeatedly failed or was incapable of providing essential care and protection of M.G.E. C.N.E. was 25 years of age when M.G.E. was born in 2011 and under the guardianship of the Cabinet for her disability. C.N.E. failed to provide any care or protection for M.G.E. up to the filing of the petition by DCBS in August of 2014. While the entire guardianship record from the district court proceedings was not admitted into evidence at trial, the Judgment from the proceeding was admitted and the family court could certainly take judicial notice of those proceedings. Accordingly, there was no reasonable expectation of improvement considering M.G.E.'s age and C.N.E.'s disability. KRS 625.090(2)(e). Thus, one or more grounds enumerated in KRS 625.090 was demonstrated. The three-prong analysis of KRS 625.090 was sufficiently satisfied as there was clear and convincing evidence presented that termination of C.N.E.'s parental rights was in M.G.E.'s best interest.
C.N.E. next contends that the family court erred by denying her motion to dismiss the petition for termination of parental rights filed by the Cabinet's DCBS. C.N.E. specifically asserts the Commonwealth of Kentucky, Cabinet for Health and Family Services had a conflict of interest because the Cabinet's Division of Guardianship represented C.N.E.'s interest as her guardian and the Cabinet's DCBS was proceeding against C.N.E. in the termination of parental rights proceeding.
We do not perceive any conflict between the Cabinet's duty as guardian for C.N.E. and the Cabinet's duty to pursue termination of parental rights against C.N.E. We have been unable to locate an applicable statute or controlling precedent to support C.N.E.'s assertion of this alleged conflict. C.N.E. asserts that a recent case decided by our Kentucky Supreme Court, T.N.H., 302 S.W.3d 658, supports her conflict of interest theory. In T.N.H., a fourteen year old girl gave birth to a son. Shortly thereafter, both she and her son were committed to the custody of the Cabinet. The Cabinet eventually sought termination of the minor mother's parental rights. Unfortunately, the conflict of interest issue was not squarely addressed by the Supreme Court because it had not been preserved for appellate review. Therefore, the Supreme Court did not address the mother's argument that while she was committed to the custody of the Cabinet, the Cabinet could not pursue termination of parental rights against her. Thus, we do not believe T.N.H. is dispositive of the conflict of interest issue currently before us. See id. Additionally, there was no evidence presented at trial that the two branches of the Cabinet had acted in collusion to terminate C.N.E.'s parental rights. The Cabinet was merely fulfilling its statutory duties under KRS Chapter 387 as guardian for C.N.E. and also its duty under KRS Chapter 620 to seek permanency for M.G.E., a child committed to its custody in a neglect or abuse proceeding. Accordingly, we perceive no error.
C.N.E. finally contends that the family court erred by allowing the report of the GAL for M.G.E. "to be entered into the record after trial without providing the opportunity to cross-examine." C.N.E.'s Brief at 15. C.N.E. relies upon this Court's opinion in S.E.A. v. R.J.G., 470 S.W.3d 739 (Ky. App. 2015) as support for her position. In S.E.A., this Court relied upon Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) for the proposition that a GAL is the lawyer for the child:
[T]he guardian ad litem is a lawyer for the child, counseling the child and representing him or her in the course of proceedings by, among other things, engaging in discovery, in motion practice, and in presentation of the case at the final hearing. The guardian ad litem neither testifies (by filing a report or otherwise) nor is subject to cross-examination.S.E.A., 470 S.W.3d at 743 (citation omitted). However, the Court in S.E.A. concluded that if the family court "relies on a GAL report, due process demands that the other parties must be afforded an opportunity to question/cross-examine the GAL." Id. at 743.
In the case sub judice, at the close of the evidentiary hearing upon the DCBS's petition to terminate parental rights, the GAL for the child informed the family court that she intended to file her report in the record after the hearing was concluded. The attorney representing C.N.E. objected. The family court did not rule upon the objection. We have reviewed the record on appeal and have been unable to locate a report prepared by the child's GAL. In its findings of fact and conclusions of law, the family court stated the GAL "for the Petitioner child has made a report in favor of termination of parental right as requested in the Cabinet's petition." Findings of Fact and Conclusions of Law at 2. The family court made no other reference to the report and made no specific finding that the GAL's report was utilized as a basis for its findings. Without any reference to the content of the report or other statements by the family court regarding its reliance thereon, we cannot conclude that the family court improperly relied upon the report of the GAL or that such report was improperly admitted into evidence. Therefore, we do not perceive any error and to the extent there was any error, we conclude it to be harmless.
For the foregoing reasons, the Order Terminating Parental Rights and Order of Judgment of the Jefferson Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Maureen Sullivan
Louisville, Kentucky Henry Weber
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLANT: Henry Weber
Louisville, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEES: Jennifer E. Clay
Louisville, Kentucky