Opinion
NO. 2014-CA-000026-ME NO. 2014-CA-000027-ME
06-05-2015
B.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.P.S., AN INFANT APPELLEE AND C.G.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.P.S., AN INFANT APPELLEE
BRIEF FOR APPELLANT, B.W.: Michael A. Hummel Covington, Kentucky SUPPLEMENTAL BRIEF FOR APPELLANT, B.W.: B.W., pro se Latonia, Kentucky BRIEF FOR APPELLANT, C.G.S.: Justin D. Durstock Covington, Kentucky SUPPLEMENTAL BRIEF FOR APPELLANT, C.G.S.: C.G.S., pro se Latonia, Kentucky BRIEFS FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: John C. Brewer II Campton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON FAMILY COURT
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 13-AD-00021
OPINION
AFFIRMING
BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES. J. LAMBERT, JUDGE: B.W. (the father) and C.G.S. (the mother), both proceeding pro se, have appealed from the December 2, 2013, judgment of the Kenton Family Court terminating their parental rights to their daughter, A.P.S. (the child). Finding no error, we affirm the judgment on appeal.
This Court permitted the parents' respective counsel to withdraw by order entered January 28, 2015. Prior counsel submitted Anders briefs along with their motions, which were ordered filed on May 28, 2014, and the parents were provided with time to file supplemental briefs. Both parents have filed supplemental briefs, and the Cabinet has responded to those briefs.
B.W. also appealed from the order terminating his parental rights to another daughter, D.W. That appeal, 2014-CA-000025-ME, was dismissed as moot by the Court on January 28, 2015, because D.W. reached the age of eighteen on January 23, 2015.
The father and the mother are the biological parents of the child, who was born in 2003. The Cabinet's involvement with the child began in 2005 when she was two years old. A Juvenile Dependency, Neglect and Abuse (DNA) petition was filed on November 15, 2005, related to allegations of drug use and domestic violence between the parents. The mother had been incarcerated in the Kenton County Jail and was waiting to be extradited to Dearborn County, Michigan, for theft charges. Paternity had not yet been established, and the mother's sister was willing and able to care for the child until the mother was released from jail. The child was placed in the emergency and then temporary custody of her maternal aunt and was apparently later returned to the mother's custody.
In 2007, the child was placed in the emergency custody of her paternal grandmother. The grandmother filed a DNA petition stating that the child had been with the paternal grandparents since her parents had been incarcerated in May 2007 and that both parents wanted her and the grandfather to keep the child. A Cabinet report provided that the father had been jailed for shooting another man while the child was present and that the mother had been jailed for having a gun in the child's diaper bag and leaving the residence. A drug screen on the mother was positive for methadone and cocaine. Shortly thereafter, the mother moved the court to modify custody and guardianship to return custody to her, stating that she had been denied contact and visitation with her daughter. At an adjudication hearing in June 2007, both parents admitted to dependency, and the court made a finding of dependency. Temporary custody remained with the paternal grandparents, and the court permitted the mother to have supervised visitation. The father was in jail at the time. The Cabinet continued to work with the mother to ensure all services were completed. Following the disposition hearing in August 2007, the court ordered that the child remain in the custody of the paternal grandparents. The mother was permitted visitation while supervised by her parents.
In October 2007, pursuant to the Cabinet's recommendation, the child was returned to the mother's custody, and the mother was to continue with substance abuse treatment and counseling, among other conditions. The paternal grandparents were granted visitation. By October 2008, a letter from Cabinet caseworker Jennifer Reynolds indicated that the mother had completed all of the tasks on her case plan, was doing extremely well, and had been providing for the child's needs. Therefore, the Cabinet recommended closing her case. The record does not reflect that the case was ever closed. In March 2009, the Cabinet filed a motion to review the case following a safety meeting earlier that month.
In April 2009, another DNA petition was filed by the Cabinet, stating:
CHFS has had an open case with the family since May of 2007. [The child] was returned to the custody of [the mother] due to compliance on a case plan. Since that time there have been the following safety concerns: [the mother] and her father [] were in a verbal altercation which resulted in police being called, [the mother's] mental health, [the mother] struggling with independent housing, criminal charges, and positive drug screen on behalf of [the mother] for methadone, opiates, and cannabinoids on 3/18/09. [The mother] is prescribed opiates. [The mother] reported that she was in methadone treatment however CHFS has no record of this. CHFS has requested records at this time. It should be noted that this is the first positive screen since case was initially opened. Family team meetings were held on 3/5/09 and 4/1/09. [The mother] agreed to plan and as long as plan is followed child will be safe. [The father] is currently on probation for the following: convicted felon in possession of a handgun and assault under emotional disturbance.The Cabinet filed a report in May 2009 detailing the mother's progress, recommending that the mother remain with her parents, and stating that it would close the case because the mother had several services in place.
In November 2011, another DNA petition was filed. The affidavit stated:
CHFS received report on 11-9-11 stating that child's sibling reported physical abuse by her father []. Upon investigation it was found that there is ongoing domestic
violence, substance abuse and school attendance issues. The family has had several reports to Cabinet recently and in the past regarding all above high risk behaviors. Family has lengthy history with CHFS involving parents incarcerated, sub. abuse and domestic violence. [The mother] was arrested on 11-10-11 due to charge of unlawful transaction with minor. Child needs placement to ensure safety.The child was placed in the emergency custody of the Cabinet because the child was "in imminent risk of harm, due to parents' substance abuse and ongoing exposure to domestic violence." At the December 2011 adjudication, the court made a finding that the child had been neglected and that her sibling had been abused. The child and her sibling were placed in a NECCO foster home, and their foster mother was the child's maternal aunt.
The Cabinet filed a dispositional report in January 2012 detailing the history of the case, including an altercation between the father and the child's older sibling and the mother's substance abuse and criminal problems. The mother had been arrested in November 2011 when drugs were found in her fourteen-year-old daughter's purse, and the father had been arrested for violating his probation when he did not pass a drug screening. The Cabinet recommended that the child be committed to the Cabinet as a neglected child with a finding of reasonable efforts; that the mother cooperate with the Cabinet, complete parenting classes, complete a domestic violence assessment and follow all recommendations, and not discuss the case with the child; and that the father cooperate with the Cabinet, complete parenting classes, complete substance abuse and domestic violence assessments and follow all recommendations, and not discuss the case with the child. The report also detailed the services that would be provided if the child were to be removed, including mental health services for the mother at NorthKey and the requirements that the father remain compliant by refraining from using illegal substances and maintaining employment. Both parents were to attend parenting classes for teenaged children. The permanency goal was to return the child to her parents, and the duration was dependent on the parents' progress with their case plans. Following the disposition hearing, the child was ordered to remain in the Cabinet's custody.
The matter returned to the court for review in April 2012. Cabinet worker Joyce Graves filed a report on the progress of the parents, and the results were positive for both parents. Regarding the child, the report stated:
[The child] is a bright, active child who is nearly nine years old. She has been in foster care with her maternal aunt and uncle since 11/11/11. Over-all, she has adjusted well to such a dramatic disruption in her daily life. She is clearly attached to her aunt and uncle. The progress report from NECCO, dated 4/1/12, states that [the child] is "helpful around the house," but "struggles to clean up after herself without prompts." She is doing well in school; she is in the Third Grade at . . . Elementary. [The child] receives therapy from Crystal Brown, CSW MSW. Ms. Brown states in a letter dated, April 2012, "[the child's] current therapeutic goals are to develop coping skills in anger management and actively work toward expressing her emotions when she is angry."
During a foster home visit on 4/4/12, [the child] was able to express her sadness about the separation from her mother and her anger that her parents argue and do not seem to listen to her. When asked what she does when
her parents argue, she said she goes into her room and turns on the computer.The Cabinet recommended that the child continue in individual counseling, that the parents complete Intensive In-Home Services, and that all parties cooperate with the Cabinet. The family court adopted the recommendations of the Cabinet, other than the recommendation that the child be returned to the mother at the end of April, and set the matter for a review.
Ms. Graves filed another report for the Cabinet in July 2012 for the scheduled review. Regarding the mother, the report stated:
From the first visit between [the child] and her parents, the Cabinet has received reports [of] concern from Taneisha Walton, NECCO foster care worker, Crystal Brown, MSW, CSW, therapist, and [the] foster mother. The concerns reported include: hostility and argumentative communications from [the mother] to [the foster mother] and belligerent behaviors from [the mother] at the NECCO office, when [the child] is picked up or dropped off. Of notable concern is the report that on 4/27/12, [the mother] drove to the NECCO office alone; [the mother] does not have a driver's license. Staff observed [the mother] pull open the door of the foster father's car, reach over another child, and pull [the child] out of the car and "across the parking lot." While this was occurring, it is reported that [the mother] was angrily yelling at the foster father and at NECCO staff. NECCO staff reported that [the mother] "looked high." They reportedly allowed [the child] to leave with her mother and then called 911. Reported also is that [the mother] told her nine-year-old daughter that her sister ... was responsible for [the child] not being returned to their custody because she had talked to the judge.
[The child] has reported to Taneisha Walton, Crystal Brown, [the foster mother], CASA, and to me that her mother "sleeps the whole time" she is visiting on the
weekends. She has stated that she only eats one meal per day during weekend visits, that she plays in the woods with neighborhood boys, age 13 and 9, and that sometimes her mother leaves her with her father and goes out with "Dave," whom her mother calls "my sugar daddy."The report went on to detail Crystal Brown's observations that the child wanted to go home and live with her parents. The Cabinet recommended that the child remain committed to the Cabinet with a finding of reasonable efforts. CASA also filed a report recommending that the child and her sibling continue in the care of the Cabinet with their foster parents.
These concerns have been discussed with [the child's] parents and they adamantly deny any such behaviors.
The matter was continued until August 2012, when it was set for an annual review in November. CASA and the Cabinet filed new reports for the annual permanency review. Ms. Graves reported that there had been no essential changes with either parent and that substance abuse remained an issue as it had throughout the case. The Cabinet recommended that the child remain committed to the Cabinet, that reasonable efforts be waived in regard to both parents, that the permanency goal be changed to adoption, and that supervised visitation continue. The Cabinet indicated that it would be moving for a termination of parental rights hearing. On November 13, 2012, the family court entered an order changing the permanency plan to adoption, finding that reasonable efforts had been made, and adopting the recommendations of the Cabinet's and CASA's respective reports.
On January 30, 2013, the Cabinet filed a petition for involuntary termination of parental rights pursuant to Kentucky Revised Statutes (KRS) 625.050 and for the appointment of a guardian ad litem. By that time, the child had been in foster care since November 11, 2011, and had previously lived in foster care or with relatives. The Cabinet stated that the parents had failed to protect and preserve the child's fundamental right to a safe and nurturing home; that the child was an abused or neglected child as defined in KRS 600.020; and that it was in her best interest that parental rights be terminated. The family court had already removed the child from the parents three times due to physical abuse, domestic violence, substance abuse, and educational neglect issues. The mother was unable to care for the child due to her mental health conditions, including her diagnoses of bipolar disorder and post traumatic stress disorder. Both parents had failed to provide essential parental care and protection for the child for at least six months, and they had extensive histories of drug addiction but remained untreated. They also failed to provide essential food, clothing, shelter, medical care, or education that was reasonably necessary. The child had been in foster care for fifteen of the most recent twenty-two months, and she had been removed from the parents' care on multiple occasions beginning in 2005. The Cabinet had offered multiple services in an attempt to reunite the family, but neither parent made sufficient efforts or improvement that would make it in the child's best interest to return her to their care. The court appointed counsel, and later a warning order attorney for the father and GALs for the mother and the child. Both parents filed answers to the Cabinet's petition.
The Cabinet and CASA continued to update the family court during the proceedings. In a June 11, 2013, report, the Cabinet indicated that the child was continuing in her NECCO home foster placement with her maternal aunt and that her needs were being met in this placement. She had finished the fourth grade, and no behavior problems had been reported. The report went on to state:
Since the last hearing, [the child] has disclosed that she has witnessed her father "beat" her mother, that she has been in the car when her mother drove off the road, that her mother had her count out prescription pills for another woman who was present, that she was made to shoplift while with her mother. She has also disclosed that, during phone calls with her parents, they have "fallen asleep." [The child] has also disclosed that during one phone call, she could hear her father yelling at her mother "in a voice" that she feared meant her father was going to hit her mother. NECCO staff has reported that they have had to ask [the mother] to leave visits because she appeared to be "high."The report indicated that the mother had been arrested for shoplifting in March 2013. The Cabinet recommended that the child remain committed to the Cabinet and that visitation between her and her parents be stopped. In its report, CASA recommended that the court should terminate parental rights.
NECCO staff also report that during visits, [the mother] and [the father] will discuss the legal case with their daughter, for instance, telling her she is coming home after the "next hearing." Staff has also reported that, during one visit, the parents had their printed drug test results out on the table, showing them to the child. The child was heard asking what "oxy" is. The parents were redirected by staff. The parents have also made remarks to the child that she is being "brainwashed" in foster care. [The child] responded with letters addressed to her parents.
The family court held the termination hearing on August 15, 2013. The first witness called by the Cabinet to testify was the mother. She acknowledged that the child had been removed from her care three times and was in foster care. She stated that she had provided the child with book bags, clothes, toiletries, school supplies, and electronics. She would bring items she needed at Thursday visitations. She did not pay any child support, and her monthly income was through SSI disability for her mental and physical disabilities as well as other support benefits. She received $79.00 on the first of the month and $542.00 on the third of the month. Her rent was $725.00 per month, including water and trash, utilities cost up to $129.00 per month, and groceries would cost a few hundred dollars per month. She had a cell phone and cable. She and the father would split the bills between them. She had Medicare and Medicaid for her medical payments. The father was employed as a carpenter and worked regularly, depending on the weather and other considerations.
The termination hearing was as to both children; we shall only address the information related to the child involved in these two appeals.
The mother testified that she had been sexually molested in the past by a man other than her father, but she had blamed her father for this in 2005 when she was mad at her parents. She discussed the incident when she was charged with, and later pled guilty to, having a gun in the child's diaper bag. The child was removed in 2011 when the mother was in jail. She blamed the father's other daughter for the removal. She denied any issues with substance or alcohol abuse, but she admitted testing positive for cocaine. She took her medications as prescribed, including Methadone, Oxycodone, Xanax, Celexa, and Abilify. She sought pain management from the Methadone Clinic because she did not have insurance and could afford the low payment. She did not have a medical card at the time.
The mother denied any domestic violence with the father, but she admitted that they argued with each other. She did not know why the child had been removed or why she continued to be removed, and she did not believe that the child should have been removed from her care. She denied abusing any of the children. The mother has an older daughter, and there is a no contact order between them as well as a current domestic violence order in effect. The mother went on to testify about services she was ordered to complete. She had a pending charge for shoplifting, which was scheduled for a jury trial. She denied a 2009 call to the police from her parents' home. This was between the mother and her father, not the child's father. She recalled another incident where the child called 911 when she (the mother) had gotten into an argument with another man and pushed him out of the way. The mother believed that she had made parental changes that she needed to address, including keeping her temper under control and decreasing her medication dosages. She did not see any problem with her medication amounts, but knew other people believed there was a problem.
On cross-examination, the mother stated that the Celexa and Abilify caused drowsiness and slurred speech. She said her back problems arose after a car accident when she was eighteen years old, and this condition had worsened as she grew older. She had been on disability since 2008, but had maintained the ability to run a household. For her drug testing, she had only tested positive for substances for which she has a prescription. She said the police had never been called for an incident between her and the father and that there had never been an EPO between them. She admitted to an incident with her own father after she had been charged with alcohol intoxication when the two had been arguing. She had been aware of her case plan for some time and stated that Ms. Graves had worked on one for her. She said she was compliant in her mental health services with NorthKey and had graduated from Mental Health Court. She believed that she had followed through with her case plan. The mother did not want the court to terminate her parental rights.
The father was the next witness to testify. He testified that he worked 22 to 28 hours per week but had not been paying child support. He admitted that while he had abused drugs, he was no longer an addict. He said he got his Siboxin from a psychologist to treat his carpal tunnel syndrome. The father has an eleven-year-old son, for whom he pays child support. He believed the Cabinet removed the child and his other daughter in 2011 because his daughter had been missing school and smoking marijuana with her friends. He denied harming his other daughter. He said she and her mother schemed. The father denied any domestic violence between him and the mother. He said they argued, but nothing physical had ever happened. He said he had completed a domestic violence assessment twice and had successfully completed a substance abuse program and parenting classes. He had stayed clean since the child was removed in November 2011. The father discussed the incident where he shot another man in the shoulder after he had assaulted his sister. The jury found him guilty of fourth-degree assault under extreme emotional disturbance.
Lauren Johnson, a case manager for NECCO, was the next witness to testify. She became the family's case manager in March 2013, and her duties included supervising visitation. She stated that there were some issues that arose during visitation. There were occasional needs for redirection, but visitations seemed to go pretty well. The parents brought dinner for the child every week as well as gifts, including electronic devices, and pets from their home for the child to see. They had not brought the child any school supplies during visits she had supervised. Conversations needed to be redirected when comments were made about the case. Ms. Johnson described an instance of "bribery" when the mother gave the child an iPod and told her she would take it back if she did not call her every day. They would bring clothing for the child as well, but no toiletry items. She saw the child at least one time per week. She also ensured that the child took her medication, Ritalin. The child was also going to therapy twice per month for mental health issues.
Ms. Johnson had viewed the child in the foster home, and she stated that the child is very close to her foster parents. She said that the child had been much more open and honest than in the past. The child still had some issues maintaining her personal hygiene, but she no longer soiled herself. The child did very well in school, but struggled in math. If parental rights were to be terminated, the foster family would very likely adopt the child. On cross-examination, Ms. Johnson stated that one month ago, the child had worms and the whole family was treated. She said that the child would not always wash her hands and had to be prompted to take showers and brush her teeth. The child was evaluated by a NECCO psychiatrist due to her problems with lying, hygiene issues, and staring blankly. She did not know what her diagnosis was, but the psychiatrist prescribed Ritalin as a result of the evaluation.
Cabinet social worker Joyce Graves was the next witness to testify. She was assigned to the mother's case in November 2011 and later received the father's case. She had been working with the family for two years. Through her testimony, the Cabinet moved to admit the mother's medical records, NorthKey records, and NECCO records.
Ms. Graves testified that the Cabinet's involvement with the family began in 2001, and there had been thirteen referrals for abuse, neglect, drug abuse, poor parenting skills, and domestic violence. The child had been removed three times. The Cabinet had offered parenting classes, substance abuse services, domestic violence services, meetings with the Cabinet and foster care, supervised visits, transportation, and social work counseling. She talked with the mother and the father about the need for each of the services provided. She did not think they understood why the domestic violence services were recommended. The child told her that she had seen her father hit her mother and disclosed to her that when her parents argue, she goes into her room and turns on her computer.
Ms. Graves stated that the goal of a domestic violence assessment is to find out if domestic violence is going on, what the roles of the participants are, and the nature and source of the violence, and to try to put in place services to correct the interpersonal dysfunction. The parents went to one assessment and refused to go back. She referred the parents for substance abuse assessments or treatment based on the history of substance abuse. The investigator had identified substance abuse as a major concern. Drug screens for the father came back positive for illegal drugs, and the mother tested positive for medication for which she had a prescription. She thought the father had completed an assessment, but she did not believe the mother had. She had never received the results from the father's assessment. The father's statement that he had never had a problem with drugs was inconsistent with successfully completing his treatment. For mental health, the parents were to engage in therapy. The mother had never been released from treatment by NorthKey, but she had stopped going to therapy for a year and had only recently started it again. The father had not engaged in mental health therapy to her knowledge. The parents did not pay any child support or provide any basic living essentials, such as toiletries, for the child. During visitations, they would bring dinner and gifts. She thought they brought clothing for the child as well. Ms. Graves testified that no other services could be offered to the parents that would permit a safe return of the child in the immediately foreseeable future.
Since coming into foster care in November 2011, the child had improved in her education. She was academically on target, liked school, and maintained good attendance. Her therapist thought she was making progress in her mental health treatment. Ms. Graves had the opportunity to observe the child with her foster family, and she described the interactions as at ease and identified a bond between her and her foster parents. Ms. Graves believed the child was in need of permanency and was bothered with uncertainty. The foster parents were providing the type of environment the child needed, while the parents were not capable of providing this.
On cross-examination by the father, Ms. Graves stated that she had been to the parents' residence. She found it to be clean and the child's room to be appropriate. Nothing concerned her about the home, and shelter was not an issue to her. She felt like her social work counseling sessions with the parents were beneficial at times, but she noted that the parents would talk at the same time and she would have to direct one to stop talking while the other one talked. On cross-examination by the mother, Ms. Graves said she was not aware of any DVOs or EPOs between the parents. She said the visitations at NECCO went well with the child, although some did not go well with her half-sister.
On direct examination, the father stated that he did not blame his older daughter for bringing about the present court proceedings. He said his daughter had apologized for this during visitations.
On December 2, 2013, the family court entered its findings of fact and conclusions of law, finding that the parents had failed to protect and preserve the child's fundamental right to a safe and nurturing home; that she was a neglected child; that the child had been removed due to the physical abuse of a sibling, domestic violence, substance abuse, and educational neglect issues; and that both parents had been repeatedly incarcerated on various charges. The court also found that the parents had failed to provide essential care and protection for the child, noting the parents' long histories of untreated drug addictions, their exposure of drug usage to the child, and their failure to protect the child from violence in the home. In particular, the court stated that the parents had "denied any issues or problems related to their care of the child despite the child's repeated removals; their criminal conduct; and their mental health diagnoses and substance abuse." The court went on to examine their contradictory testimony regarding drug use and criminal activity in relation to the treatment records. Furthermore, the mother blamed the child's half-sibling - the father's other daughter - for the trouble in the family.
The court also found that the parents had failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being, for reasons other than poverty alone. The court discussed the parents' respective incomes and noted that neither had paid any child support. The court found "that the parents brought some items as bribes but did not supply basic living essentials other than minimal clothing items." The court addressed the parents' inability to care for the immediate and ongoing needs of the child (or any child) due to their mental health conditions and medications. The parents had been incarcerated multiple times, and "domestic violence and untreated drug addictions pose a risk to any child in their care." The child had told her therapist that she had witnessed domestic violence, and the mother denied an incident when the child called 911 due to violence.
Regarding services offered by the Cabinet, the court stated that neither parent had made lasting parental changes and had failed or refused to engage in some of the offered services. This included failing to complete an anger management assessment or to attend individual counseling, and while they completed a parenting program, they continued to make blaming statements with the child, bad-mouthed the foster parents, and were emotionally harmful during their interactions. The child had been diagnosed with Adjustment Disorder with Anxiety due to her biological environment, and she demonstrated improvement when telephone contact was restricted.
Based upon its extensive findings, the court found that termination of parental rights was in the child's best interest, noting that since overnight visits with the parents had been suspended, she had stopped soiling herself, had excellent attendance at school, and had made improvements with openness in therapy. The child had repeatedly contracted lice and worms during visitations. The court entered its separate judgment terminating parental rights and making the child a ward of the state the same day. These separate appeals by the parents now follow.
On appeal, both parents continue to argue that the family court should not have terminated their parental rights to the child.
This Court set forth the standard of review applicable in termination of parental rights cases in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998):
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. Department for Human Resources v. Moore, Ky. App., 552 S.W.2d 672, 675 (1977). This Court's 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, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, Ky.App., 706 S.W.2d 420, 424 (1986)."The findings of the trial judge may not be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses." Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995), citing CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986).
"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).
The courts in this Commonwealth are well aware that in Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982), the United States Supreme Court emphasized the fundamental nature of the liberty interest natural parents have for the raising of their child:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [Footnote omitted.]See also M.E.C. v. Com., Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) ("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.").
Kentucky Rules of Civil Procedure (CR) 52.01 provides that findings of fact "shall not be set aside unless clearly erroneous," and a reviewing court must afford "due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses." It has long been held that "when the testimony is conflicting we may not substitute our decision for the judgment of the trial court." R.C.R. v. Com. Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998), citing Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967). Here, the family court had the opportunity to consider the testimony of both parents in light of the testimony from the Cabinet's witnesses as well as the extensive records in the juvenile actions. In making its rulings, the family court found the Cabinet's witnesses more credible and chose to rely upon that testimony rather than the parents' testimony, which was inconsistent in many respects with the documentary evidence and other testimony admitted. Both parents utilized their supplemental pro se briefs to dispute the evidence submitted as well as the findings of the family court. However, based upon the extensive record before the court, including the record in the DNA cases and the Cabinet's records, we find no error in the credibility assessment the family court made and hold that the family court's findings of fact are supported by substantial evidence of record.
Turning to the statutory requirements, KRS 625.090 mandates that the Cabinet must meet a three-prong test in order to involuntarily terminate parental rights and establish by clear and convincing evidence that 1) the child is abused or neglected; 2) termination would be in the child's best interest; and 3) one or more of several listed grounds exists. These grounds are enumerated in KRS 625.090(2) and include:
(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.
In making the above findings and determining the best interest of the child, the family court must also consider the factors listed in KRS 625.090(3), which include:
(a) Mental illness as defined by KRS 202A.011(9), or mental retardation 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.
We agree with the Cabinet that the family court's decision to terminate parental rights was based upon clear and convincing evidence and met the statutory requirements. The Cabinet submitted an abundance of evidence establishing the parents' failure to complete their case plans; their criminal, substance abuse, and domestic violence histories; and the mother's mental health issues. The family court found that the child had been neglected in a prior action, that she was an abused or neglected child, that she had been in foster care for fifteen of the most recent twenty-two months prior to the filing of the petition to terminate parental rights, that the parents had failed to provide essential parental care or the necessities of life for the child, and that it was in the child's best interest that parental rights be terminated. While the parents certainly presented testimony to the contrary, the family court's decisions are based upon clear and convincing evidence of record submitted by the Cabinet. Therefore, we cannot and shall not reverse its rulings.
For the foregoing reasons, the judgments of the Kenton Family Court terminating B.W.'s and C.G.S.'s parental rights to A.P.S. are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT, B.W.: Michael A. Hummel
Covington, Kentucky
SUPPLEMENTAL BRIEF FOR
APPELLANT, B.W.:
B.W., pro se
Latonia, Kentucky
BRIEF FOR APPELLANT, C.G.S.: Justin D. Durstock
Covington, Kentucky
SUPPLEMENTAL BRIEF FOR
APPELLANT, C.G.S.:
C.G.S., pro se
Latonia, Kentucky
BRIEFS FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
John C. Brewer II
Campton, Kentucky