Opinion
2020-CA-1126-ME
03-04-2022
A.N.B. (NOW C.) APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.A.S, A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: James Paul Brannon Paris, Kentucky. BRIEF FOR APPELLEE: Kevin J. Martz Covington, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM BOURBON CIRCUIT COURT HONORABLE LISA HART MORGAN, JUDGE ACTION NO. 19-AD-00010
BRIEF FOR APPELLANT: James Paul Brannon Paris, Kentucky.
BRIEF FOR APPELLEE: Kevin J. Martz Covington, Kentucky.
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
OPINION
MAZE, JUDGE.
A.N.B. (now C.) (Mother), appeals from an order of the Bourbon Family Court terminating her parental rights to L.A.S. (child). Mother's primary contention in this appeal is that the family court erred in concluding that termination is the child's best interest. Finding no reversible error in the findings and conclusions of the Bourbon Family Court, we affirm its judgment in this case.
The child who is the subject of this appeal was born April 25, 2017, to Mother and D.A.S. (Father) who was adjudged to be the child's father via genetic testing. In July 2017, a petition alleging Mother's use of Percocet without a prescription throughout her pregnancy resulted in the child being placed in the joint custody of Mother and the child's maternal grandmother. However, due to Mother's continued positive drug screens, the Bourbon Family Court removed the child to the custody of the Cabinet for Health and Family Services (the Cabinet) and he has remained in foster care since February 2, 2018. Because of Mother's repeated failed drug screens and failure to make progress on the child's case plan, the Cabinet ultimately filed a petition to terminate both Mother and Father's parental rights on June 21, 2019.
D.A.S. has not appealed from the termination of his parental rights.
After conducting a July 2020 hearing on the Cabinet's termination petition, the family court entered extensive findings of fact and conclusions of law to support its determination that Mother's rights should be terminated. Those findings and conclusions included the following: (1) that the child had been adjudged to be an abused or neglected child by order entered on February 20, 2018; (2) that Mother had engaged in a pattern of conduct that rendered her incapable of caring for the immediate and ongoing needs of the child due to alcohol and drug abuse; (3) that Mother had failed to provide essential care and protection for the child; (4) that Mother had failed to provide the child adequate care, supervision, food, clothing, shelter, educational, or medical care necessary for the child's wellbeing; (5) that Mother failed to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child, causing the child to remain committed to the Cabinet and in foster care for fifteen of the most recent forty-eight months; and (6) that the best interests of the child would be served by terminating Mother's parental rights. This appeal followed.
Because termination of parental rights involves a fundamental liberty interest, the statutory findings must be supported by clear and convincing evidence. Cabinet for Health & Fam. Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). "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." Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (quoting M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998)). We review the trial court's factual findings under a clearly erroneous standard, giving due regard to the ability of the trial court to evaluate the credibility of witnesses and to judge the weight of the evidence. CR 52.01. However, the sufficiency of the trial court's findings, as well as the trial court's application of the law to those findings, are issues of law which we review de novo. D.G.R. v. Commonwealth, Cabinet for Health & Family Servs., 364 S.W.3d 106, 113 (Ky. 2012).
Kentucky Rules of Civil Procedure.
KRS 625.090 sets out the findings necessary to support an involuntary termination of parental rights. First, the trial court must find that the child is "an abused or neglected child." KRS 625.090(1)(a)(2). "The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination." K.S., 585 S.W.3d at 209. In this case, the family court had previously found the child to be abused and neglected.
Kentucky Revised Statutes.
Second, the trial court "must find the existence of one or more of [the] specific grounds set forth in KRS 625.090(2)." M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 851 (Ky. App. 2008). In this case, the family court specifically found under KRS 625.090(2)(j): "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[.]"
Mother does not directly challenge any of these findings in this appeal, focusing instead on the family court's determination that termination is in the child's best interests. Because the family court's findings concerning the child's best interests under KRS 625.090(3) are pivotal to this appeal, we quote them extensively:
14. Based on the testimony and documentary evidence presented at trial and considering the factors outlined in KRS 625.090 (3), the Court finds that it is in [the child's] best interests that the parental rights of [Mother] be terminated.
15. [Mother] has committed acts of abuse or neglect as defined in KRS § 600.020(1) toward any child in the family. Respondent mother is the mother of two (2) children older than [child] who were removed contemporaneously with [him] by the Bourbon Family Court for reasons of abuse or neglect. Those two children had not been returned to respondent mother at the time of trial on the instant petition to terminate parental rights.
16. The Cabinet for Health and Family Services has attempted to render services either directly or by referral in an effort to keep the family together including working with the family while the child was placed in foster care Despite services being offered, [Mother has] failed to make lasting parental changes. . . .
In support of these findings, the family court cited the testimony of Cabinet case worker David Crawford. Crawford stated that Mother had been provided a written case plan which was ultimately adopted by the family court. That case plan required Mother to:
1) comply with all Court Orders,
2) cooperate with [the Cabinet],
3) drug screen with Paragon,
4) remain compliant with requirements of suboxone treatment,
5) complete substance abuse and mental health assessments and follow any recommendations,
6) complete parenting classes,
7) complete a domestic violence assessment and follow any recommendations,
8) maintain stable housing and employment,
9) be open and honest with [the Cabinet] and the Family Court.
Regarding Mother's compliance with the requirements of her plan, the family court cited Crawford's testimony that, following a brief return of the child in late 2017, Mother tested positive for oxycodone several times in January 2018, leading to the child's removal from her care in February 2018. Crawford also stated that he had made several attempts with no success to conduct a home visit with Mother and T.C., who is the father of her two older children. Mother admitted at the hearing that she did not make herself available to Crawford in early 2018 due to her knowledge that she would fail a drug screen.
Mother again tested positive for oxycodone in May 2018 shortly after her release from a thirty-three (33) day incarceration for a probation violation. Despite her claim at trial that she did not use the drug, Mother tested positive in July 2018 for cocaine. In August 2018, Mother tested positive for MDMA (ecstasy) but, again, denied having used that substance at trial. Crawford testified that Mother also consistently tested positive for alcohol despite the prohibition against consumption of alcohol in her suboxone treatment.
Due to Mother's frequent relapses during 2018, Crawford and the family court stressed the idea of entering an inpatient treatment facility for her addiction problems. However, Mother repeatedly rejected the idea of inpatient treatment, advising Crawford that she was in control of her issues with un-prescribed pain pills. In addition, Crawford stated that Mother had been discharged from Counseling of the Bluegrass in September 2018 due to missed appointments at the recommended intensive outpatient program. Moreover, Crawford testified that Mother could have fulfilled several of the case plan requirements at Counseling of the Bluegrass had she not been discharged from their program. Crawford also stated that he notified Mother that Counseling of the Bluegrass could assist her in such tasks as the domestic violence assessment and parenting classes, as well as the requirement to follow all recommendations of the assessments. The family court emphasized Crawford's assessment that, as a whole, Mother had not been cooperative with the Cabinet.
The family court also noted Mother's testimony that she had not been honest with Crawford or the family court regarding her living arrangement and relationship status with T.C., whom she has since married. Importantly in this regard, the family court specifically found that in recognition of T.C.'s satisfactory progress in his case plan with regard to his two children with Mother, it had returned the children to him contingent upon compliance with the following conditions: 1) that Mother was not in a current relationship with T.C.; 2) that T.C. and Mother would not be residing together; and 3) that Mother would have no unauthorized contact with her two children with T.C. These conditions did not apply to the child at issue in this appeal. Mother admitted at trial that she had not been honest with Crawford or the family court in regard to her relations with T.C. and their two children. Furthermore, Crawford testified to his suspicion that Mother had also been dishonest over the course of the case with regard to employment, housing, and transportation. After a full hearing in May 2019, the family court waived reasonable efforts and the Cabinet thereafter petitioned to terminate Mother's parental rights in June 2019.
After outlining the above testimony, the family court concluded that there are no further available and reasonable reunification services which the Cabinet could offer which would be likely to bring about lasting parental adjustment enabling a return of the child to Mother within a reasonable time, given the age of the child. Particularly pertinent to the issues Mother raises in this appeal, the family court noted that Mother is currently doing well in her recovery and "applaud[ed] her for that personal progress." However, the court emphasized that the long history of this case was occasioned by Mother's failure to cooperate in the case plan and those failure to cooperate had allowed the child to form an attachment to his current caretaker. In concluding that the child's need for permanency demanded termination of Mother's rights, the family court stated:
The Court finds it troubling that on both occasions of returns of either [the child] or his older siblings (in late 2017 and 2018, respectively), respondent mother has relapsed on pain pills (2017) or lied to the Court and [the Cabinet] regarding her relationship with [T.C.] (2018). On both occasions, [Mother] had been made aware that the return of all three children to her care demanded strict adherence to the Court's orders.
The family court also cited Mother's extensive criminal and substance abuse history which it found "poses a risk to any child in her care." Both Crawford and Mother herself testified to her long history of substance abuse issues. Mother admitted that she has been on suboxone treatment for more than four years and the Cabinet provided certified copies of Mother's criminal convictions, one of which is a felony for which she remains on probation.
The family court also noted developmental and behavioral improvements in the child since coming into foster care and found that these improvements were expected to continue. Again, citing Crawford's testimony, the family court found that the child has formed a bond with his foster mother and that he has thrived in her care. Concerning the child's need for permanency in his life, the family court found that foster mother had expressed a desire to adopt the child if termination is granted. In light of the fact that the child had lived in foster mother's home for two and half years at the time of trial, the family court concluded that it would be contrary to his best interests to transition him back out of his current placement "despite [Mother's] recent progress."
Mother challenges the family court's finding on best interest alleging that it failed to properly consider KRS 625.090(3)(d): "[t]he 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[.]" Mother cites her testimony at trial that she has remained drug-free, obtained housing, and full-time employment. She alleges that her two older children have been returned to her care and also points to language in a post-termination letter Crawford submitted to the family court that the child appears attached to Mother and T.C. Mother insists that the family court failed to give adequate weight to these factors in its finding on best interests. We disagree.
We find no evidence of record to support Mother's allegation that her two older children have been returned to her care after the termination hearing. Further, in Crawford's post-termination letter to the court, he states that the child's "two half-siblings currently [] reside in the temporary custody of their paternal grandfather." While Crawford acknowledges in that letter that the child does appear attached to Mother and T.C. during their supervised visitations, he also noted that the child appears to be thriving in his foster home and has formed a healthy and positive attachment to his foster mother and her immediate family.
In concluding that termination of parental rights would be in the child's best interests, the family court is required to consider the factors set forth in KRS 625.090(3)(a)-(f). Here, the family court thoroughly discussed the applicable factors, finding that Mother failed to make reasonable efforts or adjustments in her circumstances and that the Cabinet had provided reasonable efforts and services toward reunification. The family court also addressed the progress which the child has made while in foster care and his prospects for adoption. Again, we find no basis for disturbing the family court's findings.
The family court made all the required findings for termination of Mother's parental rights under KRS 625.090. The family court's factual findings on all statutory factors were supported by clear and convincing evidence. As previously noted, clear and convincing proof does not necessarily mean uncontradicted proof: "[i]t is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." K.S., 585 S.W.3d at 209. The family court fully explained its rationale for concluding that despite Mother's recent efforts to turn her life around, termination is the child's best interest. Giving due regard to the ability of the family court to evaluate the credibility of witnesses and to judge the weight of the evidence, and considering the evidence of record, we perceive no basis upon which we might disturb the decision of the family court.
Accordingly, we affirm the judgment of the Bourbon Family Court terminating Mother's parental rights.
ALL CONCUR.