Opinion
NO. 2016-CA-000620-ME NO. 2016-CA-000621-ME NO. 2016-CA-000622-ME NO. 2016-CA-000623-ME
06-23-2017
B.L.H., NATURAL MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND B.L.H. (A MINOR CHILD) APPELLEES AND B.L.H., NATURAL MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND C.E.L. (A MINOR CHILD) APPELLEES AND B.L.H., NATURAL MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.M.L. (A MINOR CHILD) APPELLEES AND B.L.H., NATURAL MOTHER APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND S.H.L. (A MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT: William R. Adkins Williamstown, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRANT CIRCUIT COURT, HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00027 APPEAL FROM GRANT CIRCUIT COURT, HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00028 APPEAL FROM GRANT CIRCUIT COURT, HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00029 APPEAL FROM GRANT CIRCUIT COURT, HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00030 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES. KRAMER, CHIEF JUDGE: B.L.H. (Mother) appeals from the Grant County Circuit Court orders terminating her parental rights to her four children, L.M.L; B.L.H.; S.H.L; and C.E.L. After careful consideration, because we hold that the circuit court's findings are supported by substantial evidence, we affirm.
These orders also terminated the parental rights of the four children's father. However, his appeals enumerated as 2016-CA-00654; 2016-CA-00655; 2016-CA-00656; and 2016-CA-00657 will be addressed in a separate opinion.
The Cabinet for Health and Family Services began its involvement with Mother and D.H.L (Father) in 2009. In June of that year, a dependency, neglect, and abuse (DNA) petition was filed in Kenton County Family Court for the oldest child, L.M.L., alleging the parents were homeless and that there were reports of domestic violence between the parents. Following a hearing, the court permitted child to stay in Mother's custody under certain conditions. In August 2009, the family court found Mother in contempt for failing to follow the conditions of the court order. Shortly thereafter, the Cabinet filed a second DNA petition because Mother violated the court order and there were continued allegations of domestic violence between the parents. Mother admitted to a finding of neglect and L.M.L. was placed with a relative as a result. Also, at that time an emergency protective order (EPO) was put in place prohibiting Father from having contact with Mother and the child.
In early 2010, following the birth of B.H.L., another DNA petition was filed in Kenton County due to Mother violating the EPO and continuing her contact with Father. In February 2010, the family court made a finding of neglect for L.M.L and B.H.L. Custody of the two children was eventually returned to Mother in July of that year.
In 2013, after S.H.L. was born, new DNA petitions were filed in Grant County District Court on behalf of the three minor children. The petitions alleged that both parents were abusing substances; there was no food in the home; and there were concerns of domestic violence between the parties. Also, the petitions stated the family had an open case in Florida regarding concerns of physical injury, bizarre punishment and domestic violence. In May 2013, the court held an adjudication hearing; both parents admitted to a finding of neglect.
The fourth and final child at issue, C.E.L., was born shortly thereafter. However, in July 2013, the cabinet filed another DNA petition alleging Mother had no pre-natal care and that both she and C.E.L. tested positive at birth for illegal substances. An adjudication hearing was held in April 2014, and the parents again admitted to a finding of neglect.
In June 2013, the court held a disposition hearing for the three oldest children and in May 2014, the court held a disposition hearing for the youngest child. At these hearings, the children were committed to the Cabinet, and the recommendations of the Cabinet's disposition report were adopted. Ultimately, the two oldest children were placed together in foster home and the two youngest children were placed together in a separate foster home. Subsequent to their placement in foster care, Mother was permitted supervised visits. Father was not permitted to visit the children. After an incident at a supervised visitation session, Mother lost her right to visitation until September 2014.
Mother regained visitation due in large part to finally adhering to the Cabinet's case plan, which was incorporated into the court orders. In her testimony at the hearing, Mother conceded she did not attempt to follow any of the court orders until January 2014. She attributes this "turn around" to her decision to overcome her drug addiction and remain sober following her arrest in December 2013. As detailed in the orders, Mother was to: (1) cooperate with the Cabinet and have monthly contact with the Cabinet's social worker; (2) complete a substance abuse and mental assessment and follow all recommendations; (3) complete parenting classes; (4) maintain stable housing and employment; (4) submit to random drug screens; (5) refrain from illegal drugs and take medications as prescribed; and (6) continue to have no acts of domestic violence. Despite completing some of the required case plan, Mother missed several drug tests and cancelled or failed to show to several therapy and counseling sessions.
This compliance and "turn around" led to a March 31, 2015 order that allowed all four children be placed back with Mother if she had a clean drug screen that day, which she did. The following day the four children moved into her home. In order to keep this arrangement, the court ordered Mother to: (1) continue with the First Steps Program for the younger children; (2) continue counseling for the older children; and (3) ensure that Father had absolutely no contact with her or the four children. Multiple cabinet workers testified at the hearing that the court made it very clear what the orders were, particularly the order mandating no contact with Father. Mother stated to the court it would not be a problem to follow these orders.
However, by April 15, 2015, Father was living in the home despite the court order mandating that Father have no contact with the children. Mother testified she needed someone to help her with bills and child care because she was overwhelmed with caring for the children and maintaining employment. She testified that this violation of a court order was "less risky than losing the apartment, becoming homeless and on the street." Mother also failed to continue the younger children in the First Steps Program as required by the court order.
The Cabinet thereafter moved the court to find Mother in contempt for this willful violation of a court order. As a result, the children were placed back into their respective foster homes, and a no contact order between Mother and the children was put into place. At the time of the final hearing, the no contact order was still in effect.
In May 2015, shortly after the children were removed from Mother's custody for the last time, the Cabinet petitioned to terminate the parental rights of Mother and Father as to their four children. The termination hearing was held in March 2016, and the circuit court heard from: (1) the children's therapist; (2) the two cabinet workers assigned to the case; (3) Mother; (4) the children's maternal grandmother; and (5) Father. After hearing the testimony and reviewing the exhibits filed by the parties, the circuit court terminated both parents' parental rights to all four children in April 2016.
Mother timely filed this appeal arguing that the circuit court's decision to terminate her parental rights was not supported by substantial evidence.
The standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR[] 52.01 based upon clear and convincing evidence. The findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. 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.B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998)).
Kentucky Rule of Civil Procedure.
As a predicate to ordering an involuntary TPR, a circuit court must find by clear and convincing evidence the child was previously adjudicated an abused or neglected child or make such a finding in the current proceeding. KRS 625.090(1)(a)(1) and (1)(a)(2). Here, there is no dispute all four children were adjudicated a neglected child by both parents.
Kentucky Revised Statute. --------
Next, the circuit court must find evidence of at least one ground listed in KRS 625.090(2). Cabinet workers testified to at least four of them—abandonment for at least ninety days under KRS 625.090(2)(a); failure to provide parental care and protection for at least six months with no expectation of improvement under KRS 625.090(2)(e); failure to provide essential food, clothing, shelter, medical care, or education with no expectation of improvement under KRS 625.090(2)(g); and, the child had resided in foster care fifteen of the most recent twenty-two months under KRS 625.090(2)(j).
In the action before us, the circuit court made the following findings regarding these four grounds:
Respondent parents have abandoned [the children] for a period or periods of not less than ninety (90) days in duration. The Grant County District Court ordered visitation to end with both . . . parents on March 12, 2013 due to [their] inappropriate behavior during visitation. [Both] parents were ordered to participate in three (3) clean [drug] screens before they could resume visitation with the child[ren]. [Mother] did not resume visitation visitation September, 2014. . . . The Grand County District Court again ordered no contact with [Mother] on April 28, 2015 due to [Mother's] violation of court orders.
. . .
Respondent parents, . . . for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child[ren] . . . and there is no reasonable expectation of improvement in parental care and protection considering the age of the child[ren]. [Mother]'s inability to follow court orders has put her in a position of being unable to provide essential parental care and protection for the child[ren]. The child[ren] . . . were removed in 2010 due to [Mother] violating the EPO in place against [Father]. The child[ren] . . . were removed again in February, 2013 due to ongoing concerns of domestic violence between Respondent parents. The child[ren] were placed back with . . . [M]other on April 1, 2015 with an order that . . . [F]ather was to have no contact with the child. [Mother] testified that she was overwhelmed trying to raise the child[ren] . . . by herself and asked . . . [F]ather to move back in and help despite her knowledge this would violate the court orders. Although [Mother] testified she
has participated in domestic violence counseling and individual counseling, she fails to provide parental care and protection by continuing her relationship with [Father].Lastly, all children have been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the TPR petition. As of the date of the petition, with the exception of the 28 days the children were living with Mother beginning April 1, 2015, the three oldest children have been in foster care for twenty-six months, and the youngest has been in foster care for twenty-two months prior to the filing of the petition. On appeal, Mother argues that the circuit court's decision to terminate her parental rights was not supported by substantial evidence. Specifically, she states the Cabinet failed to prove, by clear and convincing evidence, the above-referenced grounds listed in KRS 625.090(2). In support of this argument, Mother maintains that she showed significant improvement since January 2014 following her most recent arrest. She maintains, subsequent to her arrest and entry into the diversion program, she "made much progress and completed the bulk of that plan set by the court to gain return of her children." In Mother's view, this progress was evidenced by her: (1) completing an Intensive Outpatient Treatment (IOP); (2) attending parenting classes; (3) attending Domestic Violence Therapy; (4) attending Narcotics Anonymous (NA) and Alcoholic Anonymous (AA) meetings regularly; and (5) passing the majority of her required random drug screens. Mother also notes that the district court never provided her a way to purge the contempt finding after she violated the most recent court order allowing Father to move in with her and the children. She further argues, after this violation, which she maintains was simply "an act reflecting her desperation," the Cabinet took no further steps to reunite her and the children. Of note, the Cabinet's TPR petition was filed approximately a week after the children were last removed from her custody.
Respondent parents, for reasons other than poverty alone, have continuously or repeatedly failed or refused to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the child[ren]'s well-being and that there is no reasonable expectation of improvement in the parent' conduct in the immediately foreseeable future, considering the age of the child[ren]. Throughout this case, [Mother] has not established stable housing. She has either been homeless or resided with friends or family. [Mother] testified that she is unable to get assisted housing because of her criminal record. During the twenty-eight (28) days the child[ren] [were] placed back with [Mother], she failed to provide medical care necessary to the child's well-being by failing to cooperate with the First Steps program. Respondent parents have also failed to financially support the child[ren]. [Mother] owes over $6900 in child support arrearages[.]
The record supports the circuit court's decision to terminate Mother's parental rights. For the years preceding 2014, Mother failed to show for drug screens or continuously tested positive for drugs, including when she was pregnant. She failed to attend parenting classes, domestic violence classes, or participate in her case plan in any meaningful way. Even shifting our focus to after her "turn around" in January 2014, she still exhibited troubling trends. For example, while participating in IOP, Mother was put on a behavior contract due to missing urine screens, missing group sessions, being distracting during groups, and not attending the adequate number of AA sessions. When completing her psychological assessment in July 2014, she reported to the doctor she had no idea why she was there and the Cabinet told her she had to do it. This led to her being recommended to participate in individual counseling sessions. However, she did not start participating in those session until October 2015 and testified she did not find counseling helpful. She failed to attend her anger management assessment in May 2015 and similarly did not show up to her DUI assessment the following month. Lastly, she was inconsistent in attending her drug screens. In 2014 she attended twenty-three screens while also participating in IOP, however, she missed ten of her twenty-two scheduled screens in 2015.
Given the long history of these children in the Cabinet's care and what they had been exposed to while in their parent's care, the circuit court placed more credibility on the totality of Mother's history of failed parental care more telling than her year or two of recovery; such is its discretion. "[T]he trial court, as the finder of fact, has the responsibility to judge the credibility of all testimony, and may choose to believe or disbelieve any part of the evidence presented to it." K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006). While the record does contain some evidence that Mother was attempting to improve her life, the record is also replete with her failure to abide by multiple court orders and shortcomings in complying with the case plan even after 2014. Moreover, it was Mother herself who testified that she was so overwhelmed with caring for her children, that she needed help. We can find no error in the circuit court's determination that Mother's decision placed the children at further risk, after years of services from the Cabinet. Further, as we have already pointed out, "[c]lear and convincing proof does not necessarily mean uncontradicted proof." B.L., 434 S.W.3d at 65. The record contains substantial evidence to support the findings of the circuit court, and for that reason the circuit court did not err in terminating Mother's parental rights.
In light of the foregoing, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: William R. Adkins
Williamstown, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp
Covington, Kentucky