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A.P. v. Cabinet for Health & Family Servs.

Commonwealth of Kentucky Court of Appeals
Jan 30, 2015
NO. 2014-CA-000836-ME (Ky. Ct. App. Jan. 30, 2015)

Opinion

NO. 2014-CA-000836-ME

01-30-2015

A.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND X.P., A CHILD APPELLEES

BRIEF FOR APPELLANT: Pamela Ledgewood Lexington, Kentucky BRIEF FOR APPELLEES: Kristin Wehking Lexington, Kentucky


NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 13-AD-00118
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KRAMER AND THOMPSON, JUDGES. KRAMER, JUDGE: A.P., Mother, appeals the Fayette Circuit Court's findings of fact, conclusions of law, and judgment terminating her parental rights to X.P., Child. After careful review of the record, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Child was born on January 27, 2012. A dependency, neglect and abuse petition was filed against Mother on January 30, 2012. Mother stipulated to risk of neglect of Child. Child tested positive for cocaine at birth and was removed from Mother's care upon her discharge from the hospital. Child had been in the care of a relative; however, the relative could not care for Child permanently. When no other appropriate relative placements could be identified, Child was placed in foster care. Child has resided in foster care under the responsibility of the Cabinet for Health and Family Services (the Cabinet) since on or about February 13, 2013. Mother has three other children who have also been removed from her care due to neglect and abuse.

The Cabinet filed a petition for termination of parental rights to Child on May 16, 2013, and a trial was conducted on April 9, 2014. Nakia Walker, social worker for the Cabinet, testified at trial regarding Mother's significant substance abuse history. Ms. Walker stated that the Cabinet had been involved with Mother for at least six years, and referrals received by the Cabinet usually related to her substance abuse. Ms. Walker testified that Mother had recently tested positive for cocaine just a few days prior to trial, and she had tested positive for marijuana in February 2014. Ms. Walker testified that Mother was asked to complete a case plan which included the following services: substance abuse through the PRIDE program, the TAP program, mental health services, and parenting classes. Ms. Walker testified that Mother completed the substance abuse program, yet she continued to use drugs after completion of the program, Mother's participation in the TAP program was inconsistent, and mother refused mental health treatment. Ms. Walker testified to the recommendation of the CATS assessment completed in the juvenile case to not reunify Mother and Child. The CATS evaluation also stated concerns about Mother's significant mental health issues. Ms. Walker also testified that Mother was asked to complete anger management as a part of her case plan because Mother had, at times, become angry and aggressive towards her, and Mother's mother had a domestic violence order against her in 2012. Ms. Walker testified that Child is doing very well in foster care. Child is developmentally on target and is very attached to his foster family. Ms. Walker testified that Child has been with the same foster family since February 2013. If parental rights are terminated, the family wished to adopt Child.

The record from Child's dependency, neglect and abuse case was provided to the trial court and admitted into evidence.

Mother testified that she is currently in cosmetology school and hopes to get a job upon completion of the program. At the time of the trial, Mother was not employed. She testified that she had completed all tasks in her case plan. Mother explained that her recent drug screens that were positive for marijuana were due to the stress from the court proceedings. She denied using cocaine and stated that she tested positive for the drug because she "messes with" a man that does cocaine. Mother testified that she tries to attend NA/AA at least once per week and has gotten help with her anger management issues. Mother also acknowledged recent criminal conduct, including a conviction for receiving stolen property.

The Fayette Circuit Court terminated Mother's parental rights in its findings of fact, conclusions of law, order and judgment entered on April 24, 2014. The trial court found Child to be a neglected child as defined in KRS 600.020; that Child's parents had, for a period of not less than six months, failed or refused to provide or have been substantially incapable of providing essential parental care and protection for Child, and there is no reasonable expectation of improvement considering the age of Child; that for reasons other than poverty alone, Child's parents have failed to provide or have been incapable of providing essential food, clothing, shelter, medical care, or education necessary and available for Child's well-being, and there is no reasonable expectation of improvement in the immediately foreseeable future, considering the age of the child; Mother was found to have neglected other children born to her, resulting in the removal of those children from her care; Father abandoned Child for a period of not less than 90 days; the Cabinet offered or provided all reasonable services to the family for possible reunification, but the parents have failed or refused or have been unable to make any changes in their circumstances, conduct, or conditions which would allow Child to be safely returned to their care; and finally, the trial court found that termination of parental rights was in Child's best interest, and the Cabinet is the agency best qualified to accept the care, custody, and control of Child. Mother now appeals.

Father has not appealed the judgment terminating his parental rights to Child.

STANDARD OF REVIEW

The standard of review in termination of parental rights cases is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, based upon 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." Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934). Therefore, this Court will not disturb the trial court's findings unless no substantial evidence exists on the record. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).

ANALYSIS

The statutory requirements to involuntarily terminate parental rights are set forth in KRS 625.090. The circuit court must find, by clear and convincing evidence, that the child has been found to be abused or neglected as defined in KRS 600.020, that termination would be in the child's best interest, and the existence of at least one of the grounds listed in KRS 625.090(2).

The only ground for termination that Mother challenges on appeal is that termination is not in Child's best interest. Mother first argues that the trial court's decision to terminate her parental rights operates against Child's best interest because the court failed to consider relative placements as an alternative to adoption, Child should be placed in the custody of a relative with Child's other siblings, and Child's foster care placement is culturally insensitive.

Mother's two older children are in the custody of Mother's mother. Ms. Walker testified that the Cabinet inquired into whether Mother's mother would be an appropriate placement for Child and determined that it would not. Mother's younger child is currently placed with his father.
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In determining the best interest of the child and the existence of a ground for termination, KRS 625.090(3) requires the circuit court to 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.

Despite Mother's claims, there is substantial evidence in the record supporting the trial court's finding that termination of her parental rights is in Child's best interest. Child was in the care of a relative for approximately one year after being taken from Mother's care. The record is clear that Child's initial placement with the relative was not permanent, and after Child's relative was no longer able to provide care, another appropriate relative placement could not be identified by the Cabinet. Also, there is no evidence indicating that Child's placement is culturally insensitive.

The court considered the factors listed in KRS 625.090(3) as indicated in its April 24, 2014 judgment. The court acknowledged Mother's previous acts of neglect and abuse toward her two older children. The court also heard testimony regarding Mother's history of substance abuse and her struggle to satisfactorily complete a case plan. Ms. Walker testified that Child is doing well in foster care, is very attached to his foster family, and has developed a healthy bond with them. Accordingly, the trial court's determination that termination of Mother's parental rights is in Child's best interest is not clearly erroneous as it is supported by substantial evidence in the record.

Mother also contends that the trial court violated her constitutional right to parent Child in terminating her parental rights. However, as Mother concedes in her brief, this argument was not presented to the trial court; and therefore, it is not properly preserved for appellate review. "The Court of Appeals is one of review and is not to be approached as a second opportunity to be heard as a trial court. An issue not timely raised before the circuit court cannot be considered as a new argument before this Court." Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky. App. 1980). As a result, we will not address this argument.

CONCLUSION

For these reasons, the judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Pamela Ledgewood
Lexington, Kentucky
BRIEF FOR APPELLEES: Kristin Wehking
Lexington, Kentucky


Summaries of

A.P. v. Cabinet for Health & Family Servs.

Commonwealth of Kentucky Court of Appeals
Jan 30, 2015
NO. 2014-CA-000836-ME (Ky. Ct. App. Jan. 30, 2015)
Case details for

A.P. v. Cabinet for Health & Family Servs.

Case Details

Full title:A.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 30, 2015

Citations

NO. 2014-CA-000836-ME (Ky. Ct. App. Jan. 30, 2015)