Opinion
NO. 2011-CA-001342-ME NO. 2011-CA-001343-ME
10-19-2012
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLANT v. T.J.; W.J.; and M.J., A CHILD by and through her GUARDIAN AD LITEM, MARGIE DREES APPELLEES CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLANT v. T.J.; W.J.; and W.L.J., A CHILD by and through her GUARDIAN AD LITEM, MARGIE DREES APPELLEES
BRIEF FOR APPELLANT: Kelly Sensel Wiley Covington, Kentucky BRIEF FOR APPELLEE T.J.: Terri King Schoborg Covington, Kentucky BRIEF FOR APPELLEE W.J.: Peter A. Roush Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 11-AD-00022
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 11-AD-00023
OPINION
AFFIRMING
BEFORE: COMBS AND MOORE, JUDGES; LAMBERT, SENIOR JUDGE. LAMBERT, SENIOR JUDGE: The Cabinet for Health and Family Services (the Cabinet) appeals from an order of the Kenton Family Court which denied its petition to terminate the parental rights of T.J. and W.J. to their two children. The Cabinet argues that the trial court's findings regarding the best interests of the children were clearly erroneous and were based on improper factors. While we agree with the Cabinet that the ages and adoptability of the children were not proper factors for consideration in this case, we conclude that there was substantial evidence to support the trial court's other conclusion that termination would not be in the children's best interests. Hence, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
T.J. and W.J. are the mother and father, respectively, of M.J. (born September 1995) and W.L.J. (born October 1996). The Cabinet has been involved with the family since 2008. In July 2009, the children were the subject of dependency and neglect actions before the Kenton Family Court. As a result of that proceeding, the children were placed in the custody of the Cabinet and have been in foster care since that time.
The removal order required both parents to appear for drug screens and did not allow visitation with the children until three consecutive negative drug screens were obtained. Neither parent ever achieved three consecutive clear drug screens. The father has not had contact with the Cabinet since May 2011 and attempts to visit him at home and serve him in this action were unsuccessful. The mother has had no contact with the Cabinet since March 2011, and has not cooperated or participated in home visits or office visits. Prior to March 2011, the mother participated in an assessment program and a residential drug treatment program, but she failed to complete either program.
M.J. had five placements in the three years preceding this action, and W.L.J. had three placements during that time. Both have repeatedly been disrupted from their placements. W.L.J. suffers from sickle cell anemia and had been quite ill at times, but his medical situation has improved to the point that he is no longer considered medically fragile. Both of the children have maintained consistent contact with their grandmother. The Cabinet has regularly transported the children to visit with their grandmother, and the social worker testified that their relationship with their grandmother has been the one positive thing for these children. However, her health prevents her from taking custody of the children.
In February 2011, the Cabinet brought this petition to terminate the parental rights of the mother and the father. Following an evidentiary hearing, the trial court entered findings of fact, conclusions of law and a judgment denying the petition on July 8, 2011. While the trial court found that both parents meet the statutory definition for termination of parental rights under KRS 625.090, the court could not find that termination would be in the best interests of the children. In particular, the court stated that termination would disrupt the children's relationship with their grandmother. The court also found that the children's prospects for adoption were low considering their age and their behavioral and health issues.
The Cabinet now appeals, arguing that the trial court abused its discretion by denying its petition to terminate the parents' rights. Involuntary termination proceedings are governed by KRS 625.090, which provides that a circuit court may involuntarily terminate parental rights only if the court finds by clear and convincing evidence that a three-pronged test has been met. First, the child must be deemed abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination of parental rights must be in the child's best interest, and the court is provided with a series of factors that it shall consider when making this determination. KRS 625.090(1)(b); KRS 625.090(3). Third, the court must also find at least one of a number of grounds listed in the statute. KRS 625.090(2).
Parental rights may only be terminated if there is clear and convincing evidence supporting these statutory factors. We are wholly mindful that termination of parental rights is a grave matter that must be afforded the most meticulous due process protection. Therefore, "[t]hey can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so." Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006). On appeal, this Court applies the clearly erroneous standard of review under Kentucky Rules of Civil Procedure (CR) 52.01. Consequently, the trial court's factual findings must be upheld as long as they are supported by substantial evidence in the record. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
In this case, there is no factual dispute that the children are neglected, as required under KRS 625.090(1). Furthermore, there is also no dispute that the parents have failed to provide essential care for the children and there is no reasonable possibility for improvement of the situation. KRS 625.090(2)(e) & (g). The only question is whether termination would be in the children's best interests. When reviewing a trial court's determination of the best interests of a child, we must apply the abuse of discretion standard. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). "Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained." D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 837 (Ky. App. 2011).
The Cabinet argues that the trial court's factual findings were clearly erroneous and that the court considered irrelevant factors in determining that termination would not be in the best interests of the children. The Cabinet also asserts that the trial court failed to consider the children's need for permanency, as required by the Adoption and Safe Families Act of 1997 (AFSA), 42 U.S.C § 671 et. seq. (2010). The Cabinet first maintains that the trial court clearly erred by finding that the children were not adoptable. Moreover, the Cabinet contends that the children's ages and adoptability are not proper considerations to determine whether termination of the parents' rights would be in their best interests.
We agree with the Cabinet that the child's age and prospects for adoption are not, by themselves, factors which the trial court should consider in determining whether termination would be in the best interests of the child. As noted in Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 177-178 (Ky. App. 2004), the AFSA is designed to ensure that children remain in foster care for as brief a time as possible and to expedite permanent placement. Id. at 177. Although they are teenagers, M.J.'s and W.L.J.'s "right to a safe and stable home should be afforded no less consideration than that afforded to a child of tender age. The statute does not place any age limit on the right of a child to have his best interests weighed in the balance." Id. at 177-78.
Nevertheless, we do not read G.C.W. or the AFSA as limiting the trial court's discretion to deny a petition for termination of parental rights where there is reasonable factual dispute that termination would not be in the child's best interests. Rather, G.C.W. merely holds that the court's discretion must be based upon the application of its factual findings to the statutory factors set out in KRS 625.090, and the policy considerations set out in the AFSA. Furthermore, KRS 625.090(3) sets out a number of factors for the court to consider when determining whether termination of the parent's rights would be in the best interests of the child, including:
(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[.]
Thus, the likelihood of the child's adoption is a relevant consideration only to the extent that it reflects on the prospects for the improvement of the child's welfare if termination is ordered. We agree with the trial court that the children's ages, and more particularly their behavioral, medical and placement issues, render their prospects for adoption limited. However, this fact does not mean that the Cabinet cannot set a goal for the children to be made available for adoption.
Moreover, the trial court does not point to any reasonable alternative to the Cabinet's stated goal of adoption. Clearly, there is no reasonable possibility of reunification with the parents. Neither child is old enough for an Independent Living placement. At this point, the Cabinet's stated goal of adoption is the best available option toward permanency. Consequently, we agree with the Cabinet that the trial court clearly erred by denying the petition on this basis.
The more difficult question concerns the effect of termination on the children's relationship with their grandmother. The Cabinet argues that the trial court erred by finding that termination of the parent's rights would disrupt the positive relationship which the children have with their grandmother. The Cabinet notes that it has never opposed visitation with the grandmother and, in fact, it has regularly facilitated such visitation even in the absence of a formal visitation order. The Cabinet further argues that the children's relationship with their grandmother is not a relevant consideration under KRS 625.090(3) to determine whether termination of parental rights would be in the children's best interests.
However, the trial court correctly noted that, upon termination of parental rights, any future visitation with the grandmother would be entirely at the Cabinet's discretion. See KRS 405.021(1) and E.D. v. Commonwealth, Cabinet for Health and Family Services, 152 S.W.3d 261, 263-64 (Ky. App. 2004). As the trial court stated, "no matter what assurances this Court receives verbally, as a matter of law the grandmother would be cut out of this case." Furthermore, we disagree with the Cabinet that the children's relationship with their grandmother could not be a relevant consideration under KRS 625.090(3). Again, KRS 625.090(3)(e) requires the trial 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[.]"
The trial court found that the children have a positive relationship with their grandmother and that disruption of that relationship would be detrimental to their best interests and well-being. The Cabinet does not contest this finding. The Cabinet challenges the trial court's finding that termination of parental rights would disrupt that relationship. But as a matter of law, the trial court is correct that termination would end any legal right for the children and their grandmother to continue that relationship. The Cabinet states that it intends to allow the children to continue to have contact with their grandmother. However, the trial court's experience with the Cabinet in other cases caused it to doubt whether the Cabinet will actually follow through with such assurances.
There are many compelling statutory grounds supporting termination of the parents' rights in this case, but only one factor which could militate against termination - the children's relationship with their grandmother. We are left with the difficult question of whether the trial court may properly deny the petition for termination of parental rights on this basis alone. We certainly support the Cabinet's efforts to move the children toward permanent placements and we do not question the Cabinet's good faith in stating that it does not intend to disrupt the children's relationship with their grandmother. But considering the broad discretion which the trial court may exercise in determining the best interests of the children, we cannot find that the trial court abused its discretion by giving greater weight to this consideration over other factors. Therefore, we will not disturb the trial court's decision to deny the Cabinet's petition for termination of the parent's rights.
Accordingly, the order of the Kenton Family Court is affirmed.
COMBS, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN PART, DISSENTS IN PART AND FILES SEPARATE OPINION. MOORE, JUDGE: I fully concur with the majority's decision that the family court erred by denying the Cabinet's petition in part on the consideration of the adoptability of the children. This finding by the family court is patently at odds with the AFSA and caselaw. Moreover, it places a stigma on all older or harder to place children that they are inherently not adoptable. Further, the only witness to testify stated that she believed that permanency was very important for the children. Additionally, a prior foster parent of W.L.J. wanted to adopt him, but her poor health inhibited her from being able to so. Accordingly, I agree with the majority's decision on this issue. I do note that rather than affirming in full as the majority did, I would specifically reverse the family court on this determination.
I, however, respectfully disagree with the result reached by the majority regarding the family court's best interest determination as it relates to the potential severance of the children's contact with their grandmother. The majority wrote that trial court found "that disruption of that relationship would be detrimental to their best interests and well-being." While the family court did find that the relationship between the children and their grandmother was positive, it did not find that a disruption of that relationship would be detrimental to the children.
Moreover, part of the basis for the family court's decision was the Cabinet's actions in an unrelated case. Regarding this, the family court wrote that
[t]his Court is presently handling a matter where there was a grandparent visitation pending while the Cabinet sought termination of parental rights. The TPR case went to judgment first and this Court determined that the parental rights should be terminated. Immediately upon entering that termination judgment, the Cabinet moved toConsequently, the family court relied on the events in a separate action to sway its decision in the present action. While the court is correct that termination, as a matter of law, forever severs legal connections with biological family members, is this factor now a bright-line rule that if a child has a connection with a biological family member (who, for whatever reason, cannot adopt the child), the court will leave that child in the foster care system, rather than have the opportunity and hope for permanency in an adoptive home?
dismiss the grandparent visitation petition on the grounds that their rights are foreclosed by the fact that the parent's rights have been terminated. Therefore, no matter what assurances this Court receives verbally, as a matter of law the grandmother would be cut out of this case.
M.J. and W.L.J. do enjoy visitation with their grandmother, but the unrefuted testimony was that the grandmother was not willing to take in the children "under any circumstances." She had had them for about a year, and it did not "work out." Both of these children are moving toward aging out of the foster care system; the grandmother cannot take care of them; and the Cabinet could not identify any other family members who are suitable to take in the children. Certainly, the children's relationship to their grandmother appears to be important to them and should be encouraged to continue regardless of the legal status of that relationship. However, this lone factor should not have eclipsed the overwhelming evidence that the parental rights to these children should have been terminated and that the children should have been given the opportunity to participate in the Kentucky Special Needs Adoption Program (SNAP) and at least given the hopes of permanency and stability.
Moreover, a biological bond is not a factor evidenced by the clear language of the statute to even be taken into a best interest consideration in termination proceedings. Pursuant to KRS 625.090(3), the court must consider specific factors in making a best interest determination. The General Assembly specified select factors that the court shall consider in making a best interest determination. While it may be argued that the list in KRS 625.090(3) is not exhaustive, it certainly lays the foundation for the factors to be considered in making a best interest finding. The General Assembly is presumed to know that termination proceedings will legally sever ties with biological family members. However, that factor is not listed as one the court should take into consideration. Rather, the factors outlined in KRS 625.090(3) unequivocally detail the status of the parent and child, not relatives. This should not be construed as an oversight on the General Assembly's part. To do so impermissibly adds language to the statute. Moreover, many children in foster care may have relationships with biological relatives who cannot adopt them after a termination proceeding. A review of the SNAP program reveals that there are children up for adoption for whom the Cabinet has determined that it will be necessary for the adoptive family to allow them to maintain a relationship with biological relatives. Thus, even if it is not legally mandated, the Cabinet has taken the factor into consideration when reviewing permanent placement for children where it determines it is necessary for the individual child.
If the standard used by the family court and accepted by our Court stands, many children will remain in the foster care system and the goal of permanency will never be met for them. Certainly, it is understandable--when possible and positive for the child--that ties with biological family members may be desirable and efforts should be made to maintain them, although legally such rights may no longer exist. But, we act outside our authority when we ignore that this is not a factor which the General Assembly included in the consideration of the best interest of the child in termination proceedings given that we must presume the General Assembly was aware severing ties with biological relatives would be a result of termination proceedings. The testimony was unequivocal that permanency was in the best interests of the children. Disregarding the factors specified in KRS 625.090(3), the court relied solely on a separate factor that make these children truly unadoptable and will require them to remain in the care of the Cabinet. Now that the children have in essence been ordered to age out while in the Cabinet's custody despite the fact that the court acknowledges that the parents "meet several of the statutory definitions for termination of parental rights," what hope do these children have to any long-term family relationships once their grandmother dies?
For the reason stated, I would reverse the entirety of the judgment of the family court. BRIEF FOR APPELLANT: Kelly Sensel Wiley
Covington, Kentucky
BRIEF FOR APPELLEE T.J.: Terri King Schoborg
Covington, Kentucky
BRIEF FOR APPELLEE W.J.: Peter A. Roush
Covington, Kentucky