Opinion
NO. 2014-CA-001051-ME
03-13-2015
B.D. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND T.B.W., A CHILD APPELLEES
BRIEF FOR APPELLANT: Richard D. Null Paducah, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 13-AD-00018
OPINION
VACATING
BEFORE: ACREE, CHIEF JUDGE; STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: B.D. (hereinafter referred to as Mother) appeals from an order terminating her parental rights to her youngest child. We find that the trial court erred when it terminated Mother's parental rights; therefore, we vacate that order.
This case involves allegations of sexual abuse against one of Mother's children; therefore, we will not identify people by their full names.
In 2010, Mother and her three children were in the process of moving to Colorado to be closer to family members who lived there. Mother, Mother's boyfriend, and the oldest child moved to Colorado first. Mother's other two children were left in Kentucky with the children's grandmother, but would eventually move to Colorado. While in Colorado, allegations were made that Mother's boyfriend had sexually abused the oldest child. Colorado's social services were informed and that agency removed the oldest child from Mother's care. That agency also contacted Kentucky's Cabinet for Health and Family Services (hereinafter referred to as the Cabinet) to inform them of the allegation. Based on this allegation, the Cabinet took custody of the other two children.
In December of 2011, a Colorado court terminated Mother's parental rights to the oldest child. During the pendency of that termination action, Mother became pregnant. Mother gave birth to a fourth child (hereinafter referred to as Child 4) on February 14, 2012. The Cabinet removed Child 4 from Mother's custody two days later. Child 4 is at the center of the case before us.
In order to regain custody of Child 4, the Cabinet gave Mother a case plan that she would have to work. That case plan included taking parenting classes, attending domestic violence classes, going to anger management classes, attending mental health counseling sessions, and finding a suitable home for her and her children. Mother completed the parenting, domestic violence, and anger management classes. She also found a suitable home. Mother attended some mental health counseling sessions, but was unable to continue them due to her finances. She testified that she sold her car in order to attend the sessions, but ultimately the sessions were too expensive for her to continue attending.
Mother was required to undergo mental health assessments and counseling because the Cabinet and court believed she was depressed and had anger issues. Mother acknowledged her depression and anger during her testimony at the termination of parental rights hearing. She stated that she had been diagnosed with situational depression. This is depression brought on by a situation or event, which in this case was the removal of her children from her custody.
After Mother's parental rights to the oldest child were terminated, she moved back to Kentucky. Although not clear from the record, it appears as though she initially lived with the children's grandmother.
On October 25, 2012, only eight months after Child 4 was removed from Mother's custody, the trial court changed the permanency plan from reunification to adoption. Then, on August 26, 2013, the Cabinet petitioned the Calloway Family Court to terminate Mother's parental rights to Child 4. A hearing was held on this matter on April 30, 2014. A cabinet social worker, the grandmother, and Mother testified at the hearing. On May 29, 2014, the court entered an order terminating Mother's parental rights to Child 4. This appeal followed.
There were two Cabinet social workers assigned to this case during its duration. The first social worker was on the case until November 2012. The second social worker, who testified at the termination hearing, was on the case from that point forward.
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. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008).
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. V.S. v. Commonwealth, Cabinet for Family Services, 194 S.W.3d 331, 335 (Ky. App. 2006).
KRS 625.090 sets forth the standard in which a person's parental rights can be involuntarily terminated. KRS 625.090 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.
In this case, the trial court found that Child 4 had been adjudged to be abused or neglected and that it would be in the child's best interest that Mother's parental rights be terminated. Further, the court found that KRS 625.090(2)(e), (g), (h), and (j) applied. Unfortunately, the trial court did not cite specific facts that it considered in order to support its findings. This Court has reviewed the record, including the termination hearing, and find that the trial court's findings regarding KRS 625.090(2)(e), (g), (h), and (j) are clearly erroneous because they are not supported by substantial evidence. KRS 625.090(2)(e): Essential parental care and protection.
We find that there was no evidence to support the finding that this statutory section applied to Mother's case. Child 4 was taken from Mother two days after birth and is only allowed two supervised visits a month; therefore, it is hard to imagine what essential parental care and protection Mother has failed to provide. The evidence presented at the termination hearing showed that Mother used her visitation time and if a visitation was cancelled, it was rescheduled. Further, the abuse that led to the termination of parental rights to Mother's oldest child occurred prior to Child 4's birth. At the time of the hearing, Mother was no longer with the abusive boyfriend. In addition, Mother had completed parenting, domestic violence, and anger management classes and had participated in some mental health counseling. There was also no evidence presented that the Cabinet did not expect Mother's parental care and protection to improve. KRS 625.090(2)(g): Food , clothing, shelter, etc.
We also find that there was no evidence presented to support the trial court's utilization of this statutory factor. Again, Child 4 was removed from Mother two days after birth; therefore, there is no information regarding her ability to provide food, clothing, shelter, medical care, or education for the child. There was no evidence presented at the hearing, or otherwise in the record, that Mother was ordered to pay child support for Child 4 and she was not asked whether or not she voluntarily did so. Mother was also not asked if she voluntarily provided food and clothing for Child 4.
What was evinced at the hearing is that when Mother was required to find a suitable house for her and her children, she did so. She then later moved to another residence in order to be closer to her job. There was no testimony that these two residences were inappropriate. Also, prior to each move, Mother informed the social worker assigned to Child 4's case of her intent to move and was never told such a move would be inappropriate.
The residence Mother first obtained was located in Tennessee. Calloway County is right on the Kentucky and Tennessee border. Mother testified that she was not trying to run away from the Cabinet when she moved to Tennessee. Her residence was only 15 minutes away from Murray, Kentucky, which is in Calloway County. The social worker who testified at the hearing felt that moving to Tennessee was inappropriate; however, when Mother first moved to Tennessee, the first social worker was still assigned to the case. Although that social worker did not testify at the hearing, Mother testified that the social worker was not concerned with the move into Tennessee.
The evidence presented concerning Mother's financial ability to provide for Child 4 was that Mother was currently working for Applebee's restaurant, had been working for this company for six years, was recently promoted, made $15 an hour, had child support payments, paid rent, and had student loan debt. It would appear to this Court that because Mother has had stable employment and was recently promoted, her future ability to financially provide for Child 4 was excellent. KRS 625.090(2)(h): Previous involuntary termination.
The amount of child support, rent, and student loan debt was not specified. It was also not specified which children Mother was providing child support for.
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As with the prior two factors, we believe it was in error for the trial court to rely on this one when terminating Mother's parental rights. This termination ground has three subfactors: 1. that the parent's parental rights to another child have been involuntarily terminated; 2. that the child named in the present termination action was born subsequent to the previous termination; and 3. that the conditions which were the basis for the previous termination have not been corrected. KRS 625.090(2)(h)(1), (2), and (3). Mother meets the criteria for subfactors one and two, but not three.
The Colorado order terminating Mother's parental rights to her oldest child is found in the record before us. The Colorado court terminated Mother's parental rights because the oldest child was sexually abused by Mother's boyfriend, Mother failed to attend any mental health counseling, failed to complete any court-ordered services (e.g., parenting and domestic violence classes), Mother took no steps to contact service providers, Mother failed to engage with child services, and the oldest child was afraid to be returned to Mother due to the abuse.
Our review of the record leads us to believe that the conditions which caused the previous termination have been corrected. First, and most importantly, Mother is no longer with the abusive boyfriend. Also, Mother has completed anger management, domestic violence, and parenting classes. She has also attended some mental health counseling sessions. Mother testified that she could not afford to continue attending mental health counseling, but that the techniques she learned from her sessions and the anger management classes have improved her emotional and mental health. Finally, Mother is engaged with the Cabinet. The social worker testified that she has never had a problem getting in contact with Mother, Mother informed the social worker prior to her changing her residence, any cancelled visitations were rescheduled through the social worker, and Mother has completed the classes required by the Cabinet. KRS 625.090(2)(j): Duration of Cabinet's custody.
As for this factor, we find that its application to Mother's case is unfair and unreasonable. KRS 625.090(2)(j) requires the child to have been in the Cabinet's custody for 15 of the most recent 22 months preceding the filing of the petition to terminate parental rights. In the case at hand, Child 4 was taken into the custody of the Cabinet on February 16, 2012, and the petition to terminate parental rights was filed on August 26, 2013. The trial court must look at the past 22 months and determine if the child has been in the Cabinet's custody for 15 of those months. At the time the petition was filed, approximately 18 months had passed, which would meet the 15-month threshold. However, when the petition was filed, Child 4 was also only 18 months old. We believe that implicit in the reading of KRS 625.090(2)(j) is that the 22-month countdown cannot start until the child is actually born. When examining the previous 22 months, for the court to include months before the child in question was born would be unfair, unreasonable, unjust, and unfairly prejudicial to the parental rights of Mother.
From our review of the record, it appears as though the Cabinet and trial court wanted to terminate Mother's parental rights due to her past mistakes and because she did not participate in enough mental health counseling. The Cabinet and trial court focused on Mother's past and not her present and future ability to parent Child 4. It appears to this Court that Mother completely turned her life around after Child 4 was born.
In the alternative, we also find that the evidence presented did not support the finding that it would be in the best interest of the child for Mother's parental rights to be terminated. KRS 625.090(3) lists the factors the trial court shall consider when determining the child's best interest. As with the KRS 625.090(2) factors, the trial court did not discuss the specific facts it considered when determining the best interest of the child. KRS 625.090(3)(a): Mental illness of the parent.
When determining the child's best interest, the court is to consider the mental illness of the parent "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." KRS 625.090(3)(a). Mental illness is defined by KRS 202A.011(9) which states:
"Mentally ill person" means a person with substantially impaired capacity to use self-control, judgment, or discretion in the conduct of the person's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms
can be related to physiological, psychological, or social factors[.]
A mental illness is a factor in this case. Mother herself testified that she was depressed, but she also testified that the coping techniques she learned through the counseling she was able to attend and the anger management class have improved her mental and emotional health. The grandmother also testified that Mother's mental health had improved. From the record before us, it appears as though the most recent information regarding Mother's mental health that comes from a medical professional is dated July 26, 2012. This was five months after Child 4 was removed from Mother's care and almost two years before the termination hearing. Further, Mother's ability to maintain a job with the same company for six years and be promoted suggests her mental health is not as serious as that defined by KRS 202A.011(9). KRS 625.090(3)(b): Acts of abuse or neglect.
It is undisputed that this factor is relevant to the case at hand. Mother's oldest child was sexually abused by Mother's boyfriend; however, also relevant is the fact that this occurred prior to the birth of Child 4 and that Mother is no longer with the abusive boyfriend. KRS 625.090(3)(c): Reasonable efforts to reunite.
The Cabinet did make reasonable efforts to reunite Mother with Child 4 prior to filing the petition. The Cabinet required Mother to attend different types of classes and obtain a suitable residence. Mother complied with these requirements. KRS 625.090(3)(d): Adjustments parent has made.
Here, Mother has made tremendous adjustments in her life after the birth of Child 4. Unlike her lack of participation with the Colorado social services agency, Mother has stayed in contact with the Cabinet and worked her case plan. As mentioned multiple times, Mother attended parenting, domestic violence, and anger management classes. She also attended some mental health counseling sessions, going so far as to sell her car in order to pay for the sessions. Mother has also obtained a residence for her and Child 4, maintained her employment, and has separated from the abusive boyfriend. KRS 625.090(3)(e): Physical , emotional, and mental health of child.
Currently, the child is in foster care. The social worker who testified at the termination hearing stated that Child 4 has bonded with her foster family and that said family is considering adopting the child if Mother's rights are terminated. The social worker also testified that Child 4 also enjoys her time with Mother and has bonded to Mother. KRS 625.090(3)(f): Payment or failure to pay for child's care.
As stated previously, little evidence was given considering Mother's financial status. There was no evidence regarding a child support order and Mother was not asked if she voluntarily provided money for the care of Child 4.
Because the trial court did not discuss the facts it considered when determining the best interest of the child, we must examine the facts ourselves and determine if substantial evidence supports the court's finding. After considering all the above factors, the age of the child, and Mother's improvement, the evidence presented at the termination hearing does not support a finding that it would be in the best interest of the child to terminate Mother's parental rights.
"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." M.E.C. at 851. For these above stated reasons, we vacate the order terminating Mother's parental rights to Child 4.
ALL CONCUR. BRIEF FOR APPELLANT: Richard D. Null
Paducah, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
Dilissa G. Milburn
Mayfield, Kentucky