Opinion
NO. 2013-CA-000484-ME NO. 2013-CA-000485-ME NO. 2013-CA-000486-ME NO. 2013-CA-000487-ME
03-28-2014
D. A. G. AND S. A. G. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND G.T.E.G., A CHILD APPELLEES AND D. A. G. AND S. A. G. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.M.G., A CHILD APPELLEES AND D. A. G. AND S. A. G. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.N.G., A CHILD APPELLEES AND D. A. G. AND S. A. G. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND C.A.G., A CHILD APPELLEES
BRIEF FOR APPELLANTS: J. Clark Baird Louisville, Kentucky BRIEF FOR APPELLEES: Jennifer R. Hall Assistant Counsel Cabinet for Health and Family Services Leitchfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 12-AD-00032
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 12-AD-00033
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 12-AD-00034
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 12-AD-00035
OPINION
AFFIRMING
BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES. LAMBERT, JUDGE: D.A.G. and S.A.G. appeal the Hardin Circuit Court's orders involuntarily terminating their parental rights to their children, G.T.E.G., A.M.G., J.N.G., and C.A.G. For the reasons stated herein, we affirm the orders of the Hardin Circuit Court.
D.A.G. (hereinafter the father) and S.A.G. (hereinafter the mother) have a long history with the Cabinet for Health and Family Services (hereinafter the Cabinet). The underlying dependency, neglect, and abuse petitions involving their children began in 2009. The children involved in the instant case are J.G., the parents' second oldest son born in 1995, who is the main perpetrator of the abuse involving the parents' other children (hereinafter the perpetrator). The other children, as mentioned above, are: C.A.G., a son, born in October 1996 (hereinafter Child 1); J.N.G., a daughter, born in May 1998 (hereinafter Child 2); A.M.G., a daughter born in February 2002 (hereinafter Child 3); and G.T.E.G., a son born in June 2005 (hereinafter Child 4).
The Cabinet filed the instant action because Child 2 presented with statements that she had been sexually abused by her older brother, her maternal grandmother, and a maternal uncle. The mother reported that Child 1 had also been sexually abused by his older brother, the perpetrator. The perpetrator was ultimately criminally charged for these actions when he admitted to abusing his younger siblings. The Cabinet also alleged that the minor children were exposed to adult sexual materials that the perpetrator had kept in the parents' home, and the parents were aware of the adult sexual materials and were aware the children had access to such.
The four children were removed from the parents' home in 2009. Child 1, Child 3, and Child 4 were returned to their parents at various points during the pendency of these proceedings, only to be subsequently removed again. Child 2 has never been returned to the parents' home.
The termination hearing was held on October 25 and 26, 2012. The Cabinet's first witness was Leanne Gardner, who is the primary therapist for Child 4, age 7, and Child 2, age 14. Ms. Gardner is a licensed marriage and family therapist in private practice in Louisville, Kentucky. She first saw Child 2 in June of 2010 and Child 4 in December of 2010. Ms. Gardner testified that Child 4 presented with behavioral problems, no emotional control, arousal symptoms, ADHD, and PTSD. Child 4 was having toileting issues, which included smearing and hiding feces. Ms. Gardner testified that children who have been sexually abused are angry and have higher rates of toileting issues than children who have not been sexually abused. Ms. Gardner testified that Child 4 could still be struggling with toileting issues as a direct result of sexual abuse. Finally, Ms. Gardner stated that Child 4's behavioral and emotional issues have improved as a result of the stable school and foster home in which he has been placed.
Ms. Gardner testified that Child 2 presented as being sexually abused by her older brother, the perpetrator, her grandmother, and her uncle. Ms. Gardner reported that Child 2 has trouble fitting in and that she has flashbacks and nightmares regarding the sexual abuse. Child 2 has trouble with trust in relationships and self-esteem issues. Ms. Gardner reported that Child 2's anxiety is still high and she still has PTSD symptoms. Ms. Gardner testified that Child 2's limbo regarding her living situation has been very difficult for her but that she still loves her parents.
Under cross-examination, Ms. Gardner testified that she has met with Child 2 every other week for approximately two years, with a few exceptions. She also testified that she has seen Child 4 and Child 2 together one time for a session, and that she saw significant differences when they were together for a session than when they were seen individually. Ms. Gardner testified that the children were referred individually, and it was her decision to put them together. Ms. Gardner denied seeing the parents in a session with Child 4 or Child 2. She testified that neither of the children currently lives in a residential setting and that the children have gone back and forth living with their parents or living without their parents.
Ms. Gardner testified that the children need consistent, predictable structure and discipline within their environment. She testified that supervision is critical when returning the children to the parents, and she has concerns about Child 4 and Child 2's contact with their siblings, Child 1 and Child 3. Ms. Gardner testified that the children may or may not be able to stay together, and it is even more difficult when there is an offender child in the home. She testified that there are many possible triggers and sometimes the parents or even the children themselves may be a trigger to old memory behaviors. Ms. Gardner testified that it is difficult for any family to manage that type of supervision, and in today's society, it is impossible to remove all of the sexually titillating material. Ms. Gardner described that there is a different level of risk when reuniting more than one sexually reactive child. If the triggers are not removed from the home, then the behaviors may continue. Ms. Gardner believes the success of a reunification depends on many factors, including structure, limits, and safety in the home. She stated that sexual behaviors are ingrained with sexualized children and that all sexualized response triggers need to be removed from the home. The children must also be willing to change, and parental supervision is the most critical component for success.
Ms. Gardner testified that Child 2 is afraid of being abused again and lacks trust at any deep level. She did state that Child 2 has no fear of her parents or siblings, other than the perpetrator. Ms. Gardner noted that protracted sibling therapy would be necessary to allow the kids to live together, but that the children have massive individual therapy needs and each child needs to be stabilized individually before trying family therapy. She testified that right now Child 2 and Child 4 are relatively stable individually but are not completely stable.
Ms. Gardner testified that she does not have enough information to form a clinical opinion regarding reunification. However, she did testify that there is a long road ahead for the family if reunification occurs because if there is one relapse, a domino effect could occur.
The next witness to testify was John Bidermann. Mr. Bidermann is a licensed professional clinical counselor. Child 1 saw him between 2009 and 2010. Child 1 presented with ODD, anger, anxiety, and was out of control at school. On March 16, 2009, the mother called his office and told him that Child 1 had been sexually abused by his older brother, the perpetrator. Mr. Bidermann testified that his first task was to gain Child 1's trust. Mr. Biedermann testified that Child 1 had made suicidal gestures and was hearing voices to kill his mother. He was hospitalized at Norton's. Child 1 told Mr. Biedermann that he felt responsible for the family breaking up because he reported the abuse. He also said the "nasty stuff" had been removed from the home.
Mr. Biedermann reported that Child 1's last visit was on February 6, 2010. He stated that Child 1 had been returned to his parents' home and that therapy had been completed. Mr. Biedermann stated that Child 1's main concern was that the perpetrator was out of the home and that Child 1 had expressed guilt about the removal and disruption from the home. Under cross-examination, Mr. Biedermann testified that the parents had brought Child 1 to all his therapy appointments and that he met with the parents on several occasions.
Mr. Biedermann characterized Child 1 as a sexually reactive child. He testified that he had no joint sessions with Child 1 and the other siblings. Mr. Biedermann testified that the foster parents expressed no concerns about Child 1 and Child 4 to him. Mr. Biedermann expressed no opinion of the parents' ability to carry out structure and discipline for reunification, but he believes that they grasp the concept of what is needed. Mr. Biedermann testified that caregiver monitoring and supervision is the most important aspect of reunification.
Mr. Biedermann testified that he devoted one session to the parents because he needed to address parenting and structure in the home, which he believes is of utmost importance when dealing with adolescents. Mr. Biedermann testified that Child 1 was initially brought to him for behavioral issues at school. He observed that Child 1 was much improved at the end of his therapy on February 6, 2010.
The court asked Mr. Biedermann directly whether normal adolescent male behavior presents a risk to a sexually reactive sibling group, and Mr. Biedermann replied "yes." When the court asked Mr. Biedermann whether Child 1 ever expressed that his parents provided any of the children sexually titillating materials, he replied, "no." Mr. Biedermann stated that dealing with sexually reactive children requires a higher degree of parenting, more structure, and more insulation than a non-sexually reactive sibling group.
The Cabinet next presented the testimony of Detective Clinton Turner of the Elizabethtown Police Department. Detective Turner testified that he received a call from Kim Sapp, an employee of the Cabinet, on March 17, 2009, regarding sibling sexual contact. The report was that the perpetrator was perpetrating sexual abuse on his younger siblings in their parents' home located in Elizabethtown. Detective Turner testified that the perpetrator was charged with five counts of sodomy.
The parents consented to the search of their home. Detective Turner testified that officers discovered numerous pornographic items throughout the house and seized two bags of items. He testified that Child 1 was showing the officers around the house and was showing them where the pornographic items were located. The police found three different types of hard-core pornographic magazines, nine to ten DVDs, and several pictures of nude women. There was a box located on the top shelf of the parents' bedroom closet which contained pornographic material, a pornographic DVD in the Playstation, and pornographic items in a drawer in the cabinet in the dining room and in the laundry room. Detective Turner testified that all of the children in the home knew where the perpetrator kept his pornographic material.
Detective Turner testified that Child 2 and Child 3 (the girls) were taken to Norton's for sexual perpetration evaluations. He believes that the children suffered violent sexual abuse. Under cross-examination, Detective Turner testified that there was a Penthouse magazine protruding from the top shelf of the parents' closet.
Detective Turner also testified that when they arrived, the children were running wild through the house. He stated that Child 3 found pornographic movies and magazines under the perpetrator's bed. Detective Turner said that the father seemed surprised by the pornographic material in the home. He testified that the mother advised him that she was aware of the sexual behavior prior to the report. She said there was "humping" behavior with the perpetrator and the girls. Detective Turner testified that the mother was concerned with Child 2 getting pregnant and that she was aware that pornographic material was missing from the children's uncle, which she thought the perpetrator was stealing.
Detective Turner testified that he interviewed the children, and the interview revealed that the children expressed fear of the perpetrator, but not of the parents or their other siblings. Detective Turner did not interview Child 4. He testified that the parents were not found criminally culpable for the conduct in the home. The Elizabethtown Police Department did not charge the parents with a criminal offense but believed they were perhaps criminally negligent for failing to prevent the occurrences in the home.
The Cabinet's next witness was Tony Helm, who is the SRAA of the Cabinet's Hardin County region. Mr. Helm reported that Sharra Blakemore is the ongoing social worker assigned to the family but that the initial referral was investigated by Kim Sapp and then transferred to Nickie Walker. Mr. Helm testified that at first, the Cabinet had a plan for reunification but that eventually the goal was changed to adoption. He testified that the siblings had been placed together in the past and that the Cabinet had investigated placing the children both individually and collectively back in the home. The Cabinet had a case plan, but it had not been successful toward reunification.
Mr. Helm testified that the fact that the parents addressed some of the issues in the case plan is not entirely dispositive of whether or not reunification is possible. He testified that parents can comply with the case plan but sometimes the children's behaviors cannot be changed. Mr. Helm testified that the children's behaviors are just as key to a successful reunification as the parents' compliance with the case plan.
Under cross-examination, Mr. Helm was asked why the Cabinet failed to implement the family court's order requiring family therapy. Mr. Helm stated that while the Cabinet may have failed to follow the court's order regarding family therapy, the children were receiving services individually.
Mr. Helm further testified that Ms. Gardner had expressed concerns about the children being sexualized when together, and other therapists have expressed concerns about the individual children's behaviors. Mr. Helm testified that the children have to be therapeutically ready on an individual basis before they can ever be ready for family therapy.
The Cabinet next called Jennifer Aldarondo via telephone. Dr. Aldarondo is a licensed psychologist and received her PhD from Indiana University. Dr. Aldarondo is employed as a team leader for the UK Center for Trauma and Children (hereinafter UK CATS). The UK CATS clinic received a request from Cabinet social worker Nickie Walker to do a comprehensive assessment and to make recommendations based upon the body of data collected, interviews, and testing. The UK CATS team is made up of a psychologist, two licensed clinical social workers, a fellow, a child psychiatrist, and a CSW. The assessment dates were February 1, February 15, and April 5, 2011. The Cabinet introduced a UK CATS evaluation for each child into the record.
Dr. Aldarondo testified that the children had been living in an environment of abuse and were traumatized for so long that they were suffering from mental illness. The fallout from this could last for years, according to her testimony. The children had received a lot of treatment before even being presented to the UK CATS team and some were making progress while some were not. Dr. Aldarondo testified that the needs of the children are high and the prognosis that they could ever be placed together with their parents or together with foster parents is not good. She testified that the parents are not in a position for self-examination and do not display adequate capacity to raise the children. Further, the children are extremely guarded and defensive about speaking up about the family. This leaves a very real potential that the family will not report future events if the children are together.
Under cross-examination, Dr. Aldarondo testified that even if the parents had engaged in individual therapy and parenting classes, it would not be enough. She stated that not every abuse situation arises to a finding of neglect on a parent, but that abuse may occur and a parent may be able to identify it quickly. In this case, sexual abuse was not identified quickly by the parents, and the parents' ability to detect abuse was limited.
Regarding the children, Dr. Aldarondo testified that Child 2 has made improvements in her impulse and behavioral control. However, she needs a very highly structured and safe environment in order to reduce the risk of acting out. When discussing Child 4, Dr. Aldarondo testified that trauma and ADHD symptoms can be similar. She said a sound, a smell, or someone behaving in a certain way may make the child associate that particular thing with a traumatic event. A child without trauma could blow off that stimuli, but a traumatized child is not able to ignore that intrusive stimuli, and instead it appears as if they are not paying attention. Dr. Aldarondo testified that sometimes children with ADHD do become traumatized. In that case, the ADHD symptoms can become worse or appear differently. When Dr. Aldarondo was asked if the ADHD would make it difficult to detect the trauma, assuming that Child 4 had both ADHD and trauma, Dr. Aldarondo said it would not.
Regarding the parents, Dr. Aldarondo testified that she cannot speculate on what steps the parents could have taken to know about the abuse and stop it, but she described it as "historical fact" based on what the children were reporting. She stated that the parents could not look back and reassess the situation and stated that, based on the historical fact, she would expect that there would be personal changes made in the home. She testified that the mother focuses on herself, is unable to focus on the children's trauma and experiences, and still blames others.
The court asked Dr. Aldarondo whether it would have been enough had the parents done everything correctly. Dr. Aldarondo testified that there are a number of risk factors for the family personally as far as mental health issues and minimizing sexualized behaviors. The parents had issues related to protection and insight into the problem, which is a struggle when the children have very high needs. She described the prognosis for the family as "doubly poor" - poor for the parents and poor for the children. Dr. Aldarondo stated that the primary goal of the UK CATS team is to help with case planning. As of the date of the hearing, Dr. Aldarondo testified that she could not speculate as to reunification, but it was definitely not recommended at that time.
The next witness to testify was Michelle Davidson. Ms. Davidson is employed by Brooklawn, where Child 2 received therapy services from May 1, 2009, through June 24, 2011. Ms. Davidson was not Child 2's therapist. Her therapist, Kaitlynn Mudd, was out of the country. Ms. Davidson testified that Child 2 started out in a Psychiatric Residential Treatment Facility (PRTF), which is intensive residential care. When admitted, the goal was to return her to her parents. Eventually, the decision was made that she could not return home due to safety concerns in her parents' home, even though she had made progress, and the family had made progress. Ms. Davidson reported that the records showed some cognizance concerns with the parents.
Under cross-examination, Ms. Davidson stated that she was unaware of any psychiatric testing but stated that Child 2 had no cognitive disability. It was her behavioral and emotional issues that were impeding her progress. Ms. Davidson testified that Child 2 was diagnosed with PTSD due to her abuse history by the acts perpetrated upon her by her brother and by her witnessing acts of abuse on others. She was also diagnosed with ODD, AWOL behaviors, sexual abuse as a victim and a perpetrator (touching other children, including her younger sister), and PICA, which is characterized by her eating inedible objects. Ms. Davidson testified that the parents participated in therapy sessions with Child 2, but there were no sessions conducted with Child 2 and her siblings. Ms. Davidson testified that Child 2 could not be returned home yet due to safety concerns.
Nickie Walker testified next. Ms. Walker is employed by the Cabinet and was the ongoing social worker assigned to the family through November 2010, at which time Brandy Bragg took over. Ms. Walker testified that the parents admitted to neglect, and the adjudication orders for each child were admitted into the record. She testified that in November 2010, Child 1 and Child 4 were returned home, but removed again about six months later. Ms. Walker stated that she and a Court Appointed Special Advocates (CASA) volunteer made a joint visit to the home, and the house appeared clean and all of the door alarms were in place and were working. CASA contacted her at a later date and told her that the alarms were not working. Ms. Walker testified that she then went to the home and discovered that the alarms were torn off. As a result of the door alarms being disabled and the parents' inability to supervise the children, Ms. Walker removed the children again. Ms. Walker testified that the air conditioning was out in the home, the utilities had been cut off, and the parents were being evicted. Ms. Walker testified that it was the parents' intention to be evicted because the landlord refused to fix things around the home. Ms. Walker testified that this was the family's second move since the case had been assigned to her. Ms. Walker testified that the mother was home and failed to prevent Child 4 from disabling the alarms in the home. The mother knew they were off but could not explain why they were removed, other than saying Child 4 had a tantrum. Ms. Walker testified that the mother told her she knew why they needed the alarms as a safety measure.
Under cross-examination, Ms. Walker testified that there had been twenty-two referrals to the Cabinet. She testified that the mother knew the return plan and had asked for detailed instructions. The mother knew the door alarms were to remain in place and there must be strict supervision of the children on both floors of the home. The mother did not know when, why, or how the alarms were removed, but only that Child 4 had done it at some point.
Ms. Walker testified that the parents were allowing contact between the children and the maternal grandmother which they knew was prohibited. She stated that the mother reported that the maternal grandmother came to their house, but that she reported it after Ms. Walker already knew about the incident. Ms. Walker testified that it was the mother's responsibility to notify the Cabinet of the maternal grandmother's presence. Ms. Walker testified that the maternal grandmother visited at least two or three times, and the mother did not call the police.
Ms. Walker testified that Child 1, Child 3, and Child 4 were the only children returned to the parents. She explained that after the second removal, she believed all three children went to the same foster home, but she reported that Child 1 was removed later and was unable to return because the foster parent did not want him back in the home.
Ms. Walker testified that the parents exercised their visitation to the fullest extent possible. She explained that visitations had to be coordinated between the individual facilities and the different foster homes the children were in and that visits depended on the children's behaviors. Ms. Walker testified that the parents worked their case plan except when the children were returned to their care.
Ms. Walker testified that the children reported that J.G. (the oldest child with the same initials as the perpetrator, hereinafter Child 5) never hurt them. This child, the oldest brother, denied knowing anything that was happening in the home. Child 5 was having contact with the maternal grandmother and sometimes lived with her. Ms. Walker admitted that it was suggested that the children be seen together for therapy at Seven Counties, but that Seven Counties would not accept the children because they were not part of the Seven Counties service area and that this was one reason why family therapy did not occur in this case. It appears from the record that the other reason is that the children were not individually ready for family therapy.
Ms. Blakemore, the current ongoing social worker for the Cabinet, was the next witness to testify. She testified that there was a consensus at the Cabinet to change the goal to adoption. She admitted to signing the petition and believes that termination of parental rights is in the best interests of the children. She testified that the children love their parents and the parents love their children. However, Ms. Blakemore explained that the children had been in foster care for over three years and that lack of permanency is a real problem for the children. Under cross-examination, Ms. Blakemore admitted that the parents have done what the Cabinet has requested of them and are paying their court-ordered child support.
At the conclusion of the Cabinet's case, the parents made a motion for directed verdict. After hearing arguments, the court ruled that the Cabinet had overcome the three-prong burden by showing proof of neglect, the children had been in care fifteen out of the most recent twenty-two months, and reunification started but failed; therefore, considering the evidence in a light most favorable to the non-moving party, the motion for directed verdict was denied.
The parents called Bruce Hey, a licensed clinical social worker in private practice since 1991, as their first witness. Mr. Hey has a bachelor's degree in psychology, an MA in counseling, and an MS degree in social work. He testified that he began seeing the parents in April 2009, when they presented to him for a parenting assessment. His parenting assessment consisted of interviews with the parents and testing for alcohol dependency. There was no indication of any dependency, and there was no indication that the parents were not loving parents.
Mr. Hey testified that the children discussed the sexual abuse with him, and he believes they reported it in a timely manner. He remembered discussing the pornographic materials with the parents, but not in depth, and he did not recall in whose home the materials were located. Mr. Hey testified that he had met the children but had not given them any treatment or counseling services. Mr. Hey testified that he does not have any concerns with the father's brain damage, and the father admitted to having a learning disability, but he did not feel this had any effect on him as a parent.
When asked if the mother was a good parent, Mr. Hey hesitated at first and then testified without additional elaboration that she is a good parent, but that there are some things that could affect her parenting. Mr. Hey does not believe there is anything pathologically wrong with the mother and reported that she has taken some sexual abuse classes.
Mr. Hey reported that he believes the parents understand the severity of the abuse and that they are minimally prepared to deal with the pressures and stresses of parenting. He testified that there are no specific plans or strategies in place, except that the family would need to pursue counseling if reunited. He stated that his emphasis with the parents was to address coping strategies and coach them regarding the children's removal.
Under cross-examination, Mr. Hey admitted that all the information he received was from the mother. He stated that she asked a lot of questions and provided a lot of information. Mr. Hey perceived the mother's personality as thorough, but not defensive. Mr. Hey testified that he had reviewed the UK CATS assessment, and when asked about the mother's paranoia mentioned in the assessment, he testified that he was not a psychologist, and that he had not done any testing and was not qualified to perform the testing. He did not believe the mother is paranoid.
Mr. Hey testified that he was aware of the physical abuse the mother suffered at the hands of her father, but he did not recall her revealing the history of abuse her mother perpetrated on her brother. The mother did reveal that her brother sexually abused one of her children. Mr. Hey testified that the parents did not report that the pornographic material was found in their bedroom. He testified that he knew that the parents allowed one of their children to live with the maternal grandmother. Mr. Hey was not concerned about this because he believed it was before the parents knew about the abuse.
The parents' next witness was Patricia Crawford. She is a juvenile services specialist employed by the Department of Juvenile Justice (DJJ). She has been employed with the DJJ since November 2006. Ms. Crawford has a BA in psychology and a MA in Public Administration. She testified that she first had contact with the family in 2009, when the son, J.G., was arrested for sexual offenses perpetrated on several siblings. He was committed to the DJJ in January 2010. Ms. Crawford testified that she interviewed the family around August of 2009 and made recommendations to the Hardin District Court for the perpetrator's dispositional hearing.
Ms. Crawford testified that the mother was embarrassed that she did not know the sexual abuse was going on in her home. She stated that the mother showed remorse and appreciated the severity of the incident. Ms. Crawford believes it is difficult for parents in sexual abuse cases because there is a balance that has to be maintained. She believes that the mother had to balance the desire to support the perpetrator with the need to protect her other children.
Ms. Crawford testified that she does not provide victim counseling or reunification services. Further, she testified that the victims in this case are not in a position to benefit from those services yet, per their individual therapists.
Under cross-examination, Ms. Crawford stated that the mother had not disclosed to her that the children had told her that the sex abuse was going on. Ms. Crawford testified that her dispositional report revealed previous sexual abuse allegations from the Cabinet that were unsubstantiated. Ms. Crawford testified that the perpetrator was recently recommitted to the DJJ and that as long as the DJJ is supervising the perpetrator, he should not have any contact with the victim children. She testified that the perpetrator was released for a short period of time and perpetrated another sexual offense on a child who was closer to his age.
Two other therapists testified on behalf of the parents; namely, the therapists for Child 1 and Child 3. Their testimony is duplicative of the testimony summarized above, and we need not include it in this opinion.
The mother was the last witness to testify. She testified that she was physically abused by her father, but denied that her mother sexually abused her brother. She stated that she herself has never been the victim of sexual abuse.
The mother testified that she first became aware of the abuse in the instant case on March 12, 2009, after Child 1 told her that he was tired of the perpetrator humping him. She admitted that the girls told her that the perpetrator had tried to do things to them as well. She said she called the Cabinet the next day and spoke to Brad Nethery, and it was five days before the Cabinet responded to her report. She said that she was contacted by Detective Turner for an interview. She stated that the children revealed to the police that there was pornography in the home and that she gave the police permission to search the home.
The mother testified that a few days before Child 1 reported the abuse to her, she knew the perpetrator had a pornographic magazine in the home. She stated that she addressed this issue with the perpetrator and was not happy about finding it. She stated that she had never noticed any sexualized behavior from the children. She testified that her husband had witnessed something between Child 2 and Child 3, the daughters, in 2006. The father saw Child 2 on top of Child 3 and then saw her masturbating with dolls. The mother testified that this incident was reported to Larue County DCBS and that Child 2 was admitted to Wellstone Hospital as a result. She reported that the providers at this facility did not think there was any sexual abuse and told her to move to Hardin County. The mother testified that Child 3 did not receive any therapy for the incident and that she focused on Child 2 because her behaviors were not "normal."
The mother testified that in August 2007, Child 1 reported to her that his uncle (her brother) tried to touch him through his jeans. She reported the incident, but it resulted with a plan to keep the children away from the uncle. The mother testified that the uncle does not have any contact with the family anymore, and she does not know where he lives.
The mother testified that in December 2010, Child 2 disclosed sexual abuse at the hands of the maternal grandmother and her uncle (the mother's brother). The mother testified that in 1999, the maternal grandmother watched the children while she and her husband worked. The mother testified that she noticed that Child 2 was staying with the maternal grandmother more often, and in 2005, she decided that Child 2 needed to come home. She testified that her oldest son went to live with the maternal grandmother while this action was pending. After she heard about the allegations from Child 2, the mother told the oldest son that she was worried about sexual abuse and told him he could either stay at home or with the maternal grandmother, but he could not go back and forth between the two residences.
The mother testified that the children were not seeing the maternal grandmother anymore. The maternal grandmother came to visit her about three times, but she sent her away, notified the Cabinet, and called the police. The mother testified about the children as the testimony above reflects. The mother testified that when the children were returned to her, CASA came by for a visit and noticed that the alarms were not on the doors. The mother testified that Child 1 removed the alarms, although her testimony to the social worker previously was that Child 4 removed the alarms during a tantrum. The mother testified that she saw no behavior problems prior to the second removal of the children.
The mother stated that if multiple children were returned to the home, she would make sure that alarms were placed on all the doors and she would provide a strict routine for the children. She testified that the children would continue with individual therapy and family counseling and that she would seek outside services. She stated that the father would have to help her out, and she believes they are capable of providing that level of care.
The mother testified that the family had not moved in the past two years nor had any utilities shut off, and that if the children returned home, she would be a stay-at-home mom. She admitted that the night the police searched the house, she saw the pornographic material found in the perpetrator's room under his mattress, in a cabinet in the dining room, and from her bedroom. She testified that she used the cabinets but never noticed the pornography. She believes she acted promptly when she discovered the abuse.
At the conclusion of the hearing, the family court entered findings of fact consistent with the above record. The family court then entered conclusions of law with regard to each individual child. Each child was found to be neglected based on the stipulation in the record by the parents. Each child was then found to have been out of the home or in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the termination petition. Based upon numerous findings of fact, the trial court also found that it was in the children's best interest for parental rights to be terminated. The family court's order detailing the above was entered on November 26, 2012. This appeal now follows.
As their first assignment of error on appeal, the parents argue that the family court applied the wrong evidentiary standard when evaluating the termination petition. The parents argue that because the trial court applied a preponderance standard, as opposed to the clear and convincing standard, the order terminating their parental rights must be vacated. See Cabinet v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006).
In order to prevail on appeal, the parents must demonstrate to this Court that the family court's ruling was clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01; M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. 1998). The findings of the trial court will not be disturbed unless there is no substantial evidence in the record to support its findings. V.S. and H.S. v. Commonwealth of Kentucky, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. 1986). Due deference must be given to the trial court's opportunity to judge the witnesses' credibility at trial. CR 52.01.
The Kentucky Revised Statutes (KRS) termination statute, KRS 625.090, provides that a circuit court may involuntarily terminate parental rights if it finds by clear and convincing evidence that a three-pronged test has been met. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). First, the child must be abused or neglected, as defined by KRS 600.020. See KRS 625.090(1)(a). Second, termination of parental rights must be in the child's best interest. KRS 625.090(1)(b). Third, the Court must find that any one of a number of specific grounds exists. KRS 625.090(2).
In the instant case, the parents argue that the trial court erred by applying a preponderance of the evidence standard, citing the last paragraph of the trial court's findings of fact and conclusions of law entered November 26, 2012. The trial court's sentence reads: "The parents have not proven by a preponderance of the evidence that the child or children will not continue to be abused or neglected if the children [sic] or children were returned to the parents pursuant to KRS 625.090(5)."
A review of KRS 625.090(4) and (5) provides:
(4) If the child has been placed with the cabinet, the parent may present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.The trial court is required to apply a preponderance of the evidence standard, by law, to any testimony presented by the parent concerning the reunification services offered and whether additional services offered would likely bring about lasting parental adjustment. We agree with the Cabinet that the preponderance of the evidence standard was appropriately applied to the testimony about whether or not the children would not continue to be abused or neglected children.
(5) If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.
The parents are correct in stating that parental rights can only be terminated involuntarily pursuant to KRS 625.090(1)(a) if the court finds by clear and convincing evidence that:
In this case, the record reflects that the Cabinet proved, by clear and convincing evidence, that each child met the requirements of KRS 625.090(1) and KRS 625.090(2), as seen in the order terminating parental rights and order of judgment for each child. It is clear throughout the findings of fact and conclusions of law that the family court applied the clear and convincing standard as required generally by KRS 625.090 and only applied the preponderance of the evidence standard in the limited circumstances as required by KRS 625.090(4) and (5).(a)1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;(2) 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. . . .
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(b) Termination would be in the best interest of the child.
As their second assignment of error, the parents utilize the same portion of the trial court's order to suggest that the family court improperly placed the burden of proof on them instead of on the Cabinet. As discussed above, KRS 625.090(4) provides that "...the parent may present testimony..." (emphasis added). There is no requirement that the parents present such testimony, which is clearly indicated by the use of the word "may" in the statute. If the Cabinet has met its burden by proving the requirements of KRS 625.090 by clear and convincing evidence, the trial court may still consider evidence presented by the parent pursuant to KRS 625.090(4), and if that evidence meets the requirements of KRS 625.090(5) by a preponderance of the evidence, then the trial court may elect not to terminate parental rights. Again, we find no error.
Next, the parents argue that the trial court erred when it failed to make findings of fact for each child pursuant to CR 52.01. This argument is easily refuted by the record, as the family court's order very clearly makes specific findings of fact for each child, as noted in the joint findings of fact and conclusions of law and in each child's individual order terminating parental rights and order of judgment. The family court detailed the testimony from each child's mental health services provider and examined each child's UK CATS assessment. The parents argue that they cannot properly argue against the findings of fact because they were presented in such a vague manner; however, we agree with the Cabinet that the family court's findings are anything but vague. The family court set forth its findings of fact and conclusions of law in an extensive and detailed order totaling forty pages. The record reflects that the trial court considered each child individually and made findings of fact accordingly. Again, we find no error.
The parents next argue that the Cabinet did not establish by clear and convincing evidence that there was no expectation of significant improvement by the parents in the immediately foreseeable future such that termination was in the children's best interests. The parents argue that they provided evidence that they had taken significant measures to meet the case plan set forth by the Cabinet and that they had made improvements that would warrant not terminating their parental rights.
KRS 625.090(2) lists the grounds by which the circuit court must find, by clear and convincing evidence, that at least one of which exists. The Cabinet argues that the language "no reasonable expectation of improvement" is not found in all ten of the possible grounds for termination and therefore cannot be considered a requirement per se, as argued by the parents. In fact the language is only found in two of the ten grounds listed, specifically KRS 625.090(2)(e) and (g). The trial court found grounds for termination of parental rights existed pursuant to KRS 625.090(2)(e), (f), and (j). The Cabinet argues that even though it was not required to do so, it presented ample evidence that there was no reasonable expectation of improvement for grounds (f) and (j), as detailed in the family court's orders.
The family court determined that the "CATS report was and is correct regarding this matter. The parents simply do not have the ability to protect these children. The parents may appear to have the willingness to change, but not the ability." Thus, the trial court found that there was no reasonable expectation of improvement in this regard, which is what the Cabinet was required to prove. We find no error, as the trial court's findings are supported by clear and convincing evidence, and we will not disturb them on appeal.
Finally, the parents argue that the Cabinet did not make reasonable efforts to reunify the parents with their children. Again, we disagree. The children in this case were initially returned to their parents, as designated by the extensive testimony of several witnesses for both the Cabinet and the parents. Because safety issues existed and because the parents did not keep the alarms secure and functioning, the Cabinet again removed the children. Further, the Cabinet provided counseling services to both the parents and the children. The simple fact of the matter is that these children may never be able to be reunified with each other or the parents, based on the extensive abuse and the risk that one child or memory will trigger another child's sexualized behavioral response. The record reflected, and the family court found, that the parents may do everything requested of them, and the children's behaviors could still be so intense, that reunification will simply not be a possibility and will not be in the children's individual best interests. The UK CATS assessment indicated that the parents simply did not have the ability or the willingness to protect the children to the level necessary for them to ever function as a family unit.
The parents make much of the fact that the Cabinet did not provide group or family counseling as ordered by the family court. However, the testimony at the hearing was that after several years of therapy individually, and after reunification was attempted once, the children were still not ready for group therapy and were not at an optimal level for group or family therapy sessions to be worthwhile and productive. We do not agree with the parents' statement that the Cabinet's failure to implement the court's order and provide family therapy warrants that we vacate the family court's orders.
Finally, the parents argue that the family court improperly analyzed reunification and that it could have given custody of these children to the parents but instead allowed the children to remain in treatment until released by their providers. The parents note that in general, parents often place their children in in-patient treatment facilities without the intervention of or assistance of the Cabinet.
We agree with the Cabinet that the family court properly analyzed reunification and properly determined that it may never be possible, and that currently the children need permanency and stability in order to improve in their individual treatments. There was ample evidence and testimony to support the family court's conclusion that reunification was attempted and may never be possible because of the extensive needs of the children and the extreme amount of supervision, structure, and therapy the children will need. We will not disturb the family court's holding on appeal.
Based on the foregoing, we affirm the November 26, 2012, orders of the Hardin Circuit Court terminating the parental rights of the parents to their children, A.M.G., G.T.E.G., J.N.G., and C.A.G.
ALL CONCUR. BRIEF FOR APPELLANTS: J. Clark Baird
Louisville, Kentucky
BRIEF FOR APPELLEES: Jennifer R. Hall
Assistant Counsel
Cabinet for Health and Family
Services
Leitchfield, Kentucky