Opinion
NO. 2020-CA-0412-ME NO. 2020-CA-0413-ME NO. 2020-CA-0414-ME NO. 2020-CA-0415-ME
01-29-2021
B.N.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.F.W., III; AND E.F.W., IV JR. APPELLEES AND B.N.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.F.W., III; AND H.J.W. APPELLEES AND B.N.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.F.W., III; AND K.G.W. APPELLEES AND B.NW. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.F.W., III; AND P.E.W. APPELLEES
BRIEFS FOR APPELLANT: Lincoln Howe Williamstown, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OWEN CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 19-AD-00016 APPEAL FROM OWEN CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 19-AD-00017 APPEAL FROM OWEN CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 19-AD-00018 APPEAL FROM OWEN CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 19-AD-00019 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES. JONES, JUDGE: B.N.W. ("Mother") appeals from the order of the Owen Circuit Court terminating her parental rights to her four minor children, K.G.W., E.F.W., P.E.W., and H.J.W. (hereinafter collectively referred to as the "Children"). Having reviewed the record and being sufficiently advised, we affirm the circuit court's orders terminating Mother's parental rights to Children.
There is a separate judgment and appeal for each child. The judgments are substantially the same, and the appeals have been consolidated for the purposes of our review.
I. BACKGROUND AND PROCEDURAL HISTORY
Mother is the biological mother of K.G.W., born in March of 2013; E.F.W., born in October of 2014; P.E.W., born in June of 2017; and H.J.W., born in March of 2019. The Cabinet for Health and Family Services ("the Cabinet") first became involved with Mother and Children in 2014 after E.F.W. tested positive for illicit substances at birth. The Cabinet intervened again when P.E.W. tested positive for illicit substances at birth in 2017. Both E.F.W. and P.E.W. were sent home from the hospital with relatives after birth. At various points in 2014 and 2016, the Cabinet placed K.G.W., E.F.W., and P.E.W. in the care of their paternal grandmother, Kathy Wolpert, and paternal aunt, Elizabeth Brown Christy, due to Mother and Father's substance abuse and related incarceration.
On December 20, 2017, the three older children were again removed from Mother and Father's home due to Mother and Father's admitted drug abuse, at which point K.G.W. and E.F.W. were placed with Wolpert, and P.E.W. was placed with Christy. The Cabinet filed a petition on January 2, 2018, alleging that Mother had been observed acting erratically and slurring her speech while in the caretaking role of the three older children. Children returned to Cabinet care on April 27, 2018, where they have remained since. On May 11, 2018, the Owen District Court adjudged the three older children to be abused or neglected children as defined by KRS 600.020(1).
Kentucky Revised Statutes.
At the time of H.J.W.'s birth in March of 2019, both Mother and child were substance-free, although the three older children remained in the custody of the Cabinet due to Mother's inability to remain clean and to drug test according to her court-approved written case plan. However, in May, five-week-old H.J.W. was also placed in the care of the Cabinet due to Mother and Father's erratic behavior and admitted substance abuse. On May 1, 2019, the Cabinet filed a petition alleging neglect as related to H.J.W, and on May 17, 2019, the Owen District Court adjudged H.J.W. to be an abused or neglected child as defined by KRS 600.020(1). The Cabinet placed H.J.W. with Wolpert in the company of two of his older siblings.
In August 2019, Christy filed for an emergency protective order ("EPO") against Mother on the behalf of Children. Wolpert testified that Christy requested the EPO due to a "frightening" incident during which Mother came to Wolpert's home acting irrationally and erratically while under the influence. The EPO was granted and prohibited Mother from seeing Children from that point up until the termination hearing. Once granted, the EPO was the second court order prohibiting Mother from seeing her children.
The district court had previously imposed upon Mother a standard standing no-contact order that disallowed contact between parents and children without a parent obtaining three (3) clean drug screens.
On October 31, 2019, the Cabinet filed a petition to terminate parental rights with regard to Children. At the time of filing, Mother was currently working on her case plan with the Cabinet. The three older children had been in Cabinet care for eighteen consecutive months, while H.J.W. had been in the Cabinet's care for all but five weeks of his life.
A trial was scheduled for and held on February 3, 2020. On the day of the hearing, Mother moved to dismiss the action for lack of ripeness or, in the alternative, to continue the hearing in order to allow Mother to continue working her case plan, provide a clean drug test, and allow Father to be present at the termination hearing. The court denied both of Mother's motions, and the trial proceeded. Mother was present and represented for the trial but did not testify, and Father was not present but was before the court by constructive service.
At trial, Cabinet worker Heather Baxter testified that substance abuse was her foremost area of concern for both Mother and Father. Baxter testified that when she assumed the case in February of 2019, both Mother and Father had been provided a written, court-approved plan which was adopted by the Owen District Court as a court order. The case plans required that each parent was to submit to drug testing via urinalysis or patch, remain clean and sober, and participate in supervised visits. The case plans also recommended that each parent complete intensive outpatient substance abuse treatment. According to Baxter, both Mother and Father completed two substance abuse evaluations but had inconsistent periods of drug screen participation.
Baxter provided a detailed history of Mother's inconsistent drug screening. According to Baxter, after Mother initially tested positive for methamphetamine and amphetamine in December 2017, she did not test again until June 2018, when she tested positive for methamphetamine, amphetamine, and ecstasy. Mother tested positive for the same three substances again in July 2018. Mother did not screen again until November 2018, when she and Father checked into Solutions Recovery, an inpatient clinic in California. Mother tested negative throughout treatment and consistently tested negative over the next several months after leaving treatment on January 7, 2019.
Although Mother was recommended to participate in an intense outpatient program (IOP), the inpatient rehabilitation program Mother completed satisfied the IOP requirement of her case plan.
As a result, at the time of H.J.W.'s birth on March 25, 2019, both Mother and child were substance-free. However, just one month after H.J.W.'s birth, Mother failed to have her patch removed for analysis, and in May 2019, Mother admitted to methamphetamine use and subsequently tested positive for methamphetamine and amphetamine. On May 1, 2019, the Cabinet filed a petition alleging neglect as related to H.J.W., and on May 3, 2019, H.J.W. was committed to the Cabinet's custody and placed with Wolpert due to Mother and Father's erratic behavior and admitted substance abuse. Mother did not submit to a drug test in June or July 2019 and tested positive again in August 2019, at which point Christy filed for the EPO.
The three older children remained in the custody of the Cabinet at this time due to Mother's failure to stay clean and sober and to submit to her court-ordered drug screening.
Mother tested positive again in September 2019, and in October 2019, checked into another rehabilitation facility, Paragon Rehabilitation, in California where she remained until January 2020.
Baxter opined that, at the time of trial, the Cabinet's sole concern regarding reunification was Mother's extensive history of drug abuse. She additionally testified that, based off of this repeated "on again, off again" pattern of sobriety, she had no expectation of improvement by Mother within a reasonable time. In the time since Baxter took this case in February 2019, Mother had remained sober for only a few short months at a time. Baxter noted that during this period, Mother was allowed some unsupervised visits with the Children and was sometimes present during Baxter's monthly home visits with the Children.
Baxter testified that Mother is a capable parent when clean and sober, but she was uncertain that Mother could sustain the sobriety necessary to do so. According to Baxter, in order to alleviate her fears of another relapse, Mother would need to remain sober for longer than a few months. Baxter stated that, in the two years during which the oldest children have been in Cabinet care, Mother has not successfully completed a case plan, although she has come close. When asked if Mother was on an "uphill or "downhill" at the time of trial, Baxter testified that Mother had "just started" her sobriety.
Wolpert also testified at trial. Wolpert claimed to have pled with Mother to take initiative to see Children and was frustrated with Mother's failure to do so. She stated that she would "call [Mother] and say it would be nice if you'd come read a book; not when you want to but every night. Let's make a schedule." Video Record ("V.R.") 2/3/2020; 1:53:08; 3:51:32-51:55. According to Wolpert, Mother would come over intermittently to help with Children's baths or cook, but these efforts were sporadic. Mother was also inconsistent in making everyday provisions for Children and only occasionally supplied diapers for H.J.W. Wolpert testified that she allowed Mother to visit with H.J.W. unsupervised after Mother completed inpatient rehabilitation in January 2020, prior to trial, but did not permit Mother to see the older children out of fear that "they would ask questions." As a result, Mother had not seen the two oldest children in seven months at the time of trial, predating the EPO by one month.
Christy also testified at trial. According to Christy, Mother's visitation with P.E.W. has been "inconsistent" over the last two years. She testified that Mother had only seen P.E.W. approximately four to five times over the course of the last year when the family would congregate at Wolpert's home. Evidently, Mother saw P.E.W. twice between March 2019 to May 2019 and did not visit P.E.W. again until August 2019, at which time the EPO was issued.
Wolpert and Christy testified that they intended to adopt Children if termination was granted. According to Wolpert, Mother is a "wonderful" parent when she is sober but that it had "been a really long seven years" for the family because of addiction and substance abuse issues. Wolpert stated that Children had been continually distressed by the ups and downs of Mother's recovery, and she feared for Children at the prospect of yet another recovery/relapse cycle. Wolpert testified that Children are thriving in her care and no longer ask when they will return home to Mother. Wolpert further testified that, even if termination was granted, she would never keep Mother out of Children's lives so long as Mother is clean and sober.
At the end of the hearing, the trial court ordered that Mother and Father's parental rights be terminated. On February 19, 2020, the trial court entered the corresponding order and Findings of Fact and Conclusions of Law, terminating Mother and Father's parental rights over Children.
Following this order, Mother appealed.
Father did not appeal the judgments of the Owen Circuit Court.
II. STANDARD OF REVIEW
Parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution, requiring courts to conduct themselves with the "utmost caution" when considering termination. F.V. v. Commonwealth Cabinet for Health & Family Servs., 567 S.W.3d 597, 606 (Ky. App. 2018) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982); M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008)). Trial courts are afforded a "great deal of discretion" in determining whether termination of parental rights is warranted. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Consequently, we are "obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). A family court's termination of parental rights will be reversed only if it was clearly erroneous and not based upon clear and convincing evidence. Id.; CR 52.01. "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, 70 S.W.2d 5, 9 (1934).
Kentucky Rules of Civil Procedure.
III. ANALYSIS
As a preliminary matter, Mother argues that the trial court erred by denying Mother's motion to continue the termination hearing to allow Mother to complete her case plan, provide a clean test, and to allow Father to be present at the termination hearing. A motion to continue is reviewed for abuse of discretion. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010). "An abuse of discretion occurs when a 'trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principals.'" Baptist Heathcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
Mother contends that the trial court is obliged to address the factors outlined in Guffey when denying Mother's motion to continue. However, Mother did not point to any of these factors before the trial court, arguing only the very issues to be litigated in the hearing itself.
Our Supreme Court has set forth various factors for us to consider when reviewing the denial of a continuance. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)). At the threshold, the Court first admonishes that "[w]hether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case." Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). The factors are:Guffey, 323 S.W.3d at 371.
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice.
In this case, we do not believe that the trial court's decision to deny Mother's motion to continue the termination hearing was an abuse of discretion. At the time the petition to terminate parental rights was filed on October 31, 2019, Mother had just begun her second inpatient treatment program. Mother's counsel set forth in an answer that the petition was premature and should be dismissed to allow Mother time to complete her case plan and provide a clean drug screening, which the trial court denied. Mother did not move for a continuance until the same day as the hearing. At that time, Mother's counsel did not request that the trial judge offer either written or oral findings supporting her denial of the motion to continue. As such, the trial judge denied Mother's motion without elaboration. Deleo v. Deleo, 533 S.W.3d 211, 217 (Ky. App. 2017) ("[A] family court is not required to make written findings that it considered the Snodgrass factors . . . .").
Mother argued that it was an abuse of discretion to deny her motion to continue on the basis that she was still in the process of working her case plan. In doing so, she failed to point to any authority in which a similarly situated litigant was granted relief. On appeal, Mother additionally posits for the first time that delaying the hearing "would not prejudice anyone" because the witnesses at trial were all local residents of Owen County and a Cabinet worker.
As the Cabinet points out, however, finding an abuse of discretion in denying Mother's motion to continue on the grounds of "still working a case plan" would invite respondent parents in termination proceedings to perpetuate termination hearings ad infinitum. At this juncture, Mother had been attempting to complete the Cabinet's case plans for over two years. To grant this motion to continue would extend the already lengthy period of time Children remained in a state of limbo.
Furthermore, Mother made no motion to continue when she was initially served the petition to terminate parental rights in November 2019, nor did she so move when the trial date was set in December 2019, although she argues that the grounds for her motion to continue were present at those times. Only on February 3, 2020, the very day of the termination hearing, did Mother make this argument.
Our Court previously upheld the denial of a motion to continue in P.S. v. Cabinet for Health & Family Services, 596 S.W.3d 110, 117 (Ky. App. 2020), on similar, if not the same, grounds. In that case, the mother was served with the petition for termination three months prior to the termination hearing but did not contact her counsel to request a continuance until the day of the hearing. Id. The mother was able to appear at the hearing and was represented by counsel at the hearing. The trial court determined that further delays would only injure the child. Id. "Additionally, the trial court noted that, pursuant to the court's docket, it would be unable to hold another hearing for a few months, thereby further delaying any permanence for Child." Id. Based on these circumstances, we found that there was no abuse of discretion in denying the mother's motion to continue. Id.
Because the trial court did not make specific findings in the present case, we have no knowledge of the court's docket and the specific consequences of further delay. However, requesting a continuance for the first time on the day of the trial is inherently prejudicial and inconvenient to the litigants, witnesses, court, and children at the heart of court proceedings. Mother's case plan required her to complete the plan by November 2019. In November 2019, Mother was again in rehab and still working her case plan. Mother had over two years to complete her case plan and failed to do so. Moreover, given Mother's history, it was debatable that Mother would be able to satisfactorily complete her case plan, even with a continuance. Based on the foregoing, we cannot conclude that the trial court abused its discretion in declining to grant Mother a continuance.
Next, Mother argues that the trial court's Findings of Fact and Conclusions of Law do not support termination of rights. A family court may involuntarily terminate an individual's parental rights only "upon satisfaction of a three-pronged test" provided by KRS 625.090. M.P.R. v. Cabinet for Health & Family Servs., 520 S.W.3d 409, 412 (Ky. App. 2017). In Cabinet for Health & Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014), our Supreme Court explained:
Mother takes issue with Findings of Fact paragraphs 7(a) and (b) specifically as "parrot[ing] the statutory language without reference to the evidence received at hearing." Appellant's Br. at 13. Mother argues that the trial court's Findings of Fact are not findings of fact at all because the trial court "did not explain or cite to any specific evidence which supported its decision regarding any of the factors" as required. M.L.C. v. Cabinet for Health & Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013). While it is true that the trial court did not outline the specific testimonial evidence upon which it relied in these exact paragraphs, the trial court outlined its evidentiary findings in detail elsewhere within its Findings of Facts and Conclusions of Law. Accordingly, we find this argument to be without merit.
The Commonwealth's TPR [termination of parental rights] statute, found in KRS 625.090, attempts to ensure that parents receive the appropriate amount of due process protections. KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.
After careful consideration of the record, we hold that the record contains sufficient evidence to support the family court's termination of Mother's parental rights under KRS 625.090.
Under the first prong of KRS 625.090, the trial court appropriately determined that Children were abused or neglected as defined by KRS 600.020(1). The three older children were adjudged to be abused or neglected as defined by KRS 600.020(1) on May 11, 2018. The youngest, H.J.W., was adjudged abused or neglected on May 17, 2019. Mother stipulated to these findings of neglect for all four children and admits as such. However, Mother contends that, under Department of Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977), the neglect of Children "never rose to the level" warranting termination of parental rights because she was still permitted visitation. Appellant's Br. at 13-14. Mother insists that in order for parental rights to be involuntarily terminated, "the abuse or neglect must warrant termination." Appellant's Br. at 13 (emphasis added).
According to Moore, a court making its own determination "has a great deal of discretion to determine whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination." 552 S.W.2d at 675. Moore interpreted the wording of KRS 199.600 and its associated statutes, which have all been repealed and replaced by the current statutory scheme, KRS Chapter 625, et seq. Moore granted trial courts discretion in determining whether a child is abused or neglected. Id. Moore did not interpret KRS 199.600 to mean that a trial court may disregard a previous court's determination - and Mother's own stipulation - of neglect.
According to Moore:
KRS 199.600(1) provides, "(i)n a proceeding involving a neglected or abandoned child, as defined in KRS 199.011, the circuit court may terminate all parental rights of the parents of such child . . ." KRS 199.011 defines an abused or neglected child to be
Moore, 552 S.W.2d at 675 (emphasis added).a child whose health or welfare is harmed or threatened with harm when his parent, guardian or any other person: inflicts or allows to be inflicted upon the child, physical or mental injury by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food clothing and shelter; education; or medical care necessary for the child's well being . . .
The current statute governing involuntary termination of parental rights provides that the circuit court must find by clear and convincing evidence that "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[,]" without any further qualifications. KRS 625.090(1)(a)1. Accordingly, it is not necessary that the trial court make its own independent finding of neglect if a child has already been adjudged neglected or abused, although it may.
Nevertheless, the trial court undertook its own determination of neglect based upon the evidence presented during the termination trial. Mother argues that her supervised visits with Children and lack of reported concerns during those visits, as well as the Cabinet's continuing to provide Mother with case plans, demonstrate that the Cabinet "believed the neglect stipulated to by [Mother] was not enough to warrant the termination of her Parental Rights to these children." Appellant's Br. at 15.
However, as provided in KRS 600.020(1)(a)2, a trial court may find neglect if a parent "creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means[.]" "The statute, as written, permits the court's finding where a risk of abuse exists and does not require actual abuse prior to the child's removal from the home or limitation on the contact with an abusive parent." Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008) (emphasis added). Mother's recent compliance with the Cabinet's case plan is proceeded by years of relapse cycles, providing ample inference that Mother's drug issues are not yet resolved. See Cabinet for Health & Family Servs. on behalf of C.R. v. C.B., 556 S.W.3d 568, 576 (Ky. 2018). That a parent has been permitted supervised visitation, even if regular, does not negate a risk of abuse. See Cabinet for Health & Family Servs. v. K.S., 585 S.W.3d 202, 207, 215 (Ky. 2019) (holding that the child was neglected under KRS 600.020 due to the mother's limited cognitive abilities even though she was permitted regular supervised visitation over the years with her child). Therefore, there is substantial evidence to support the trial court's findings of neglect.
Next, the trial court considered whether any of the grounds for termination pursuant to KRS 625.090(2) exists in this case. While the statute lists several possible grounds for termination, a court need only find the presence of one ground by clear and convincing evidence. KRS 625.090(2) (emphasis added) ("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[.]"). In this case, the trial court found that termination was proper under KRS 625.090(2)(a), (e), (g), & (j). Because only one ground is required, we need not examine the trial court's findings with respect to all four.
There is no dispute that the three older children were placed in the Cabinet's custody on April 27, 2018, and remained there until the petition was filed on October 31, 2019, a period of over sixteen (16) months. This satisfies the second prong of KRS 625.090(2). 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[.]"). However, as acknowledged by the trial court, H.J.W. had been in the Cabinet's custody from May 3, 2019, until trial, for a total of approximately five months. While five months is more than half of H.J.W.'s life, it is not sufficient to meet the threshold imposed by KRS 625.090(2)(j). Therefore, we turn to the trial court's other findings.
Mother claims on appeal that there is no clear and convincing evidence to support the trial court's determination that she, for a period of not less than six months, has continuously or repeatedly failed or refused to provide parental care with no reasonable expectation of improvement under KRS 625.090(2)(e). Mother does not dispute the trial court's finding that she, for a period of not less than six months, has continuously or repeatedly failed or refused to provide parental care, only contesting the finding that there was "no reasonable expectation of improvement." As such, we will only address the latter argument.
Mother contends that the court's finding that there was no reasonable expectation of improvement as required by KRS 625.090(2)(e) is unsupported by evidence because by the time of trial, she had completed her inpatient program and had been allowed some unsupervised visitation with H.J.W. by Wolpert. We disagree.
At the time of the trial, the three oldest children had been out of Mother's care for almost two years, and H.J.W. had been out of Mother's care for the majority of his life. Testimony by all witnesses at the termination hearing establishes that Mother was unable to complete any of her case plans over the past two years and that she was unable or unwilling to provide parental care for her children over the past seven years due to substance abuse. While it is commendable that Mother was clean and sober at the time of trial, Baxter testified that she had concerns for Mother's ability to stay clean for more than a few months due to her history of cyclical relapse. Mother did not present any evidence that would indicate her newest attempt at sobriety would be more successful than her previous attempts. Mother's only argument in support of reasonable improvement is that Wolpert allowed her some unsupervised visits with H.J.W. following Mother's January 2020 release from the California rehabilitation facility. The fact that Mother improved enough to allow some supervised visitation for a few months does not conclusively establish the improvement was of a permanent nature, especially given Mother's history.
Mother has had two years to complete her case plan but has been unable to do so. Mother knew or should have known that her decision to continue abusing drugs could result in the loss of her parental rights. Yet, Mother failed to maintain her sobriety, even after having received inpatient treatment and giving birth to her fourth child. While we appreciate Mother's latest effort at sobriety, we cannot ignore the fact that Mother had many prior opportunities to get her life in order so that she could regain custody of Children. Yet, time and time again, Mother chose to continue abusing substances. Mother did not provide any evidence to support a finding that she would be able to maintain her sobriety this time in a way that would enable her to regain custody of Children.
In sum, based on Mother's long history with the Cabinet and many failed attempts at sobriety, we cannot disagree with the trial court's determination under KRS 625.090(2)(e).
Mother likewise contests the trial court's determination under KRS 625.090(2)(g). Again, Mother does not contest the trial court's holding that she, "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" but only "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[.]" KRS 625.090(2)(g).
Mother argues that there is no clear and convincing proof that Children were not provided for while in her care because "[n]o witness indicated that while in [Mother's] care, the [C]hildren or parents were homeless, that the [C]hildren were not receiving proper medical care, or the [C]hildren were not being educated (albeit they were very young)." Appellant's Br. at 19. She also noted that the trial court incorrectly attributed Father's criminal record to her. However, the fact that there is no evidence that the older children were not provided for while in Mother's care prior to the December 2017 removal is not dispositive to the issue at hand.
"Just because the child . . . [is] committed to the Cabinet does not mean that the parent has no further responsibilities to the child. The Cabinet developed a case plan, and continually offered services. Nevertheless, [M]other neglected her duties and failed to complete the goals set by the Cabinet." T.R.W. v. Cabinet for Health & Family Servs., 599 S.W.3d 455, 463 (Ky. App. 2019) (quoting C.B., 556 S.W.3d at 573), disc. rev. denied (Ky. Feb. 12, 2020). Both Christy and Wolpert, the custodians of Children over the past two years, testified that Mother did not provide Children with life necessities throughout that time. Christy testified that she has received no monetary child support in the time that she has cared for P.E.W., and Mother failed to provide diapers for P.E.W. for approximately a year and a half. Wolpert testified that Mother had provided no life necessities to the oldest two children since they entered Wolpert's care in 2017 and that Mother has not provided anything for H.J.W. other than the occasional box of diapers.
Likewise, Mother argues that the trial court erred in determining that there was no reasonable expectation of significant improvement in Mother's ability to provide for Children. Mother bases this argument on the premise that, at the time of trial, she tested clean, had completed a substance abuse assessment, and had completed her second round of inpatient treatment. In making her case, Mother relies upon M.E.C. v. Commonwealth for Health and Family Services, 254 S.W.3d 846, 854 (Ky. App. 2008), which provides in part:
Finally, we find no substantial evidence in the record to support a finding that there is no reasonable expectation of improvement in M.E.C.'s situation. At the conclusion of the trial, M.E.C. was in a substance abuse treatment center, had a full-time job, acquired parenting classes for herself, and had resolved most of her legal issues. She argued that the court failed to acknowledge the improvements she had made in her lifestyle, such as her
enrollment in a rehabilitation program and her testimony that she had a full-time job, and had instead based its decision solely on her past conduct. We agree with her and cite our opinion in Forester v. Forester, 979 S.W.2d 928, 930 (Ky. App. 1998), "where the lack of ability to provide parental care and protection is the basis for involuntary termination, the trial court must find that there is no reasonable expectation of improvement in parental care and protection as required by KRS 625.090(1)(d)." Significantly, the statute has no requirement that the parent completely eradicate all problems immediately.Id. at 854-55 (footnotes omitted).
The present case and M.E.C. are easily distinguishable. Mother offered no evidence of any improvements she has made in her life other than her most recent release from inpatient treatment. Mother has relapsed twice since the Children were removed from her care at the end of 2017. In M.E.C., our Court noted only one positive drug screening for M.E.C., two years before her parental rights were terminated. Id. at 854.
While it is true that the witnesses at trial testified that Mother is a capable parent when clean, they also expressed concerns that Mother had only managed to maintain sobriety for a few months at a time over the past seven years. The two oldest children each went home from the hospital with a relative rather than Mother after birth. P.E.W. was in relative care within six months of birth, and H.J.W. was in relative care within two months of his birth due to Mother's substance abuse. Although Mother suggests that her second stint in rehabilitation and testing negative twice since her most recent release are evidence that she has made significant improvements, we cannot agree. The trial court heard ample testimonial evidence that Mother has had a lengthy history of substance abuse and instability and there was no evidence before the trial court to show a reasonable expectation that Mother would change her behavior in the immediate, foreseeable future.
We turn now to the trial court's final determination under KRS 625.090(3). In evaluating whether it is in a child's best interest to terminate parental rights, trial courts must consider the factors enumerated in KRS 625.090(3). Mother has not addressed any of the best interest factors, alleging instead that the trial court erred in finding that Children have made improvements since being in the Cabinet's care. Mother takes issue with the trial court's determination that Children's placement with Wolpert and Christy is in their best interest because Children, although separated, are in close proximity to one another, arguing that "[i]t begs common sense to see how close proximity is an improvement over the [C]hildren living together in one household with a natural parent." Appellant's Br. at 20. She contends that Children's best interests are not served simply because Wolpert and Christy have expressed sincere love for Children and intend to adopt Children.
However, at trial, ample testimony was presented supporting the trial court's determination under KRS 625.090(3). We have already addressed the trial court's findings relating to acts of abuse or neglect and the efforts Mother has made to overcome her substance abuse issues. See KRS 625.090(3)(b), (d). The trial court pointed out the long period of time the Children have lived with Christy and Wolpert and additionally concluded that the Cabinet had made reasonable efforts to reunite the Children with Mother but that Mother had failed to make sufficient progress. KRS 625.090(3)(c).
With regard to Mother's argument that the Children have not made improvements since being in Wolpert and Christy's care, we note that KRS 625.090(3) does not require trial courts to consider the improvements Children have made since entering the Cabinet's care. Instead, "KRS 625.090(3)(e) requires the court to consider '[t]he physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered.'" B.E.K. v. Cabinet for Health & Family Servs., 487 S.W.3d 457, 469 (Ky. App. 2016) (emphasis added) (quoting KRS 625.090(3)(e)). According to Wolpert, Children no longer "wait on Mom" for visits, "cry at night for Mom and Dad," "ask if [they] are going to live at Mom and Dad's house," or "ask when Mommy and Daddy are coming home again." Children stand to gain significantly from the stability and permanency Christy and Wolpert's loving homes offer. Furthermore, we note that Children have been in Wolpert and Christy's care for most of their lives, making comparison difficult. Accordingly, we do not believe the trial court erred by determining that it was in the Children's best interest to terminate Mother's parental rights.
CONCLUSION
In light of the foregoing, we AFFIRM the trial court's judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: Lincoln Howe
Williamstown, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY: Kevin Martz
Covington, Kentucky