Opinion
NO. 2012-CA-000865-ME
11-16-2012
E.A.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AS NEXT FRIEND OF B.J.A. APPELLEE
BRIEF FOR APPELLANT: Edwin A. Jones Paducah, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn Assistant Counsel Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 11-AD-00051
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: E.A.C. (Mother) appeals from the April 12, 2012 order of the McCracken Family Court involuntarily terminating her parental rights (TPR) to her child, B.J.A. (Child). Because the order of termination was supported by substantial evidence, we affirm. I. Background
Child's father is deceased, so his parental rights are not at issue.
The evidence before the circuit court was almost wholly undisputed. Our account of the pertinent facts was gleaned from testimony offered at the termination hearing.
Mother was born in 1967 and first used drugs eleven years later. By her early twenties, Mother suffered from drug addiction. Her preferred drug was crack cocaine. Although Mother sought treatment for her addiction and achieved periods of sobriety, she would relapse in the wake of family tragedies. Mother has a lengthy criminal history spanning nearly twenty years and has served time in prison for theft and drug-related offenses.
Mother has given birth to five children. Their ages at the time of the termination hearing were twenty-seven, sixteen, fourteen, ten, and three. Mother had been involved in raising her oldest child, but she did not have custody of the sixteen-, fourteen-, or ten-year-olds. The ten-year-old had been adopted following the involuntary termination of Mother's parental rights.
Mother did have custody of Child, the three-year-old, when the Cabinet for Health and Family Services became involved in his case. Overall, Child seemed healthy, clean, and generally well cared for.
However, on June 8, 2010, when Child was fifteen months old, Mother took Child to the home of an acquaintance, a Mr. Herrington. She borrowed money from Herrington so she could purchase crack cocaine and left Child in his care overnight. The following morning, when Mother had not returned for the child and Herrington could not locate her, he called police. Herrington informed police he did not know Mother's last name or how to contact her.
Herrington's first name is nowhere to be found in the record or the parties' briefs.
The Cabinet took custody of Child, and on July 15, 2010, Mother stipulated to neglect. Child was placed in foster care. The Cabinet initiated a reunification plan which required that Mother make lasting changes to her approach to parenting and provided for Mother's supervised visitation with Child. Mother was expected to complete a series of courses, obtain employment, and refrain from drug use.
In addition to the adjudication of neglect, Mother was charged with a criminal count of endangering the welfare of a minor for leaving Child with a near stranger so she could purchase drugs. She was detained in the county jail on this charge, but was soon released. Following her release, police arrested Mother twice more: once in August 2010, which resulted in a brief detention in the county jail, and again in September 2010 on more serious charges, for which she has yet to be released. Following convictions of possession of cocaine and drug paraphernalia, Mother was sent to prison. Her scheduled release date is April 2014, although she will next appear before the Parole Board in February 2013.
As Mother testified at the termination hearing, the April 2014 date does not account for various time credits she has accrued.
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During the brief period in which she was not incarcerated between the June 2010 endangerment arrest and the September 2010 drug arrest, Mother took no steps toward her reunification plan. She did attend four of the scheduled six supervised visits with Child.
While imprisoned, Mother has participated in several programs which were required for consideration for parole and which might have fulfilled her obligations under the reunification plan. Those included a parenting class, an anger management course, Narcotics Anonymous, and Alcoholics Anonymous. At the time of the termination hearing, Mother was on a waiting list for an in-patient drug treatment program for inmates and expected to be enrolled soon.
During his most recent foster home placement, Child began to thrive. He showed improvement in speech development and began preschool. His foster parents wished to adopt him.
The Cabinet filed its petition for involuntary termination of Mother's parental rights to Child on October 3, 2011. Following an evidentiary hearing in April 2012, the family court entered an order terminating Mother's parental rights. In so doing, the family court concluded there had been a previous adjudication of neglect, and that termination would be in Child's best interest. The family court further found as follows: (1) Mother had continuously failed to provide essential parental care and protection for Child for the past six months and there was no reasonable expectation of improvement, KRS 625.090(2)(e); (2) Mother had failed to provide for Child's essential needs for reasons other than poverty alone and there was no reasonable expectation of improvement, KRS 625.090(2)(g); and (3) Child had been in foster care for fifteen of the most recent twenty-two months prior to the filing of the petition for termination, KRS 625.090(2)(j).
This appeal followed.
II. Standard of review
Mother's only argument on appeal is that the evidence was insufficient to support the statutory criteria for involuntary TPR. KRS 625.090.
She correctly notes that the family court must find by clear and convincing evidence that termination of parental rights is warranted. KRS 625.090(1). That is not the standard, however, which governs our review of such an order.
Where the sufficiency of the evidence is challenged on appeal, we are permitted to reverse only where the trial court's findings of facts were clearly erroneous. Cabinet for Health & Family Servs. v. I.W., 338 S.W.3d 295, 299 (Ky. App. 2010). A finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted).
[S]ubstantial evidence is [e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men. Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, [m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal, and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. (quotations and footnotes omitted).
III. Discussion
Mother has raised a number of bases upon which she believes the evidence was insufficient to prove the statutory prerequisites of termination. As we will explain, there is ample evidence in support of each one.
A. The finding of neglect
Mother first argues the Cabinet presented no evidence that Child was abused or neglected because "[Child] did not suffer from any emotional or physical injury inflicted by his mother." (Appellant's brief, p. 4). Prerequisites to termination include a previous adjudication of neglect or abuse or a new finding of neglect or abuse. KRS 625.090(1)(a).
Mother's argument ignores the fact that there was a previous adjudication of neglect. In June 2010, Mother herself admitted to having neglected Child, and the finding of neglect was entered based upon her stipulation. The existence of the previous adjudication is not disputed. The family court was not required to make any additional findings to proceed with termination. See A.D.B. v. Commonwealth, Cabinet for Health & Family Servs., 205 S.W.3d 255, 261 (Ky. App. 2006).
B. Mother's progress
Mother next contends termination was inappropriate because she has made progress since her incarceration and will likely be able "to provide care for [Child] before he turns four (4) years old." (Appellant's brief, p. 4). Even if these contentions are taken as true, they are insufficient to invalidate the family court's finding that "there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child." KRS 625.090(2)(g).
Mother's earliest possible release date is February 2013, well over a year after the filing of the Cabinet's petition and ten months after the evidentiary hearing was conducted. Mother testified that even if she were released at that time, it is likely she will have to reside in a halfway house or drug treatment facility for several additional months.
Furthermore, even the February 2013 release date is speculative. It is conditioned, subject to the approval of the Parole Board, on Mother's completion of an in-patient drug treatment program in which she has not yet been enrolled.
Child has not been in Mother's care for more than half of his life. He is adjusting well in his most recent foster placement. In light of Child's young age, Mother's long history of substance abuse and incarceration, and her continued incarceration and need for treatment, it was not erroneous for the family court to conclude there was no reasonable expectation of significant improvement in the foreseeable future and to terminate Mother's parental rights.
C. Incarceration alone is insufficient
Mother next argues her incarceration alone was an insufficient basis for termination of her parental rights. This is correct. M.P.S. v. Cabinet for Human Res., 979, S.W.2d 114, 117 (Ky. App. 1998).
We are not required to reverse on this basis, however, because Mother's incarceration was not the sole basis of the order of termination. Rather, the family court considered Mother's extensive criminal record and history of drug abuse, Mother's past and persistent inability to parent her four older children, the length of Mother's current incarceration, her continued need for treatment even after incarceration, and her inability to complete any tasks required by the Cabinet's reunification case plan while she was not incarcerated.
The family court's findings do not constitute clear error on this basis.
D. The Cabinet's provision of reasonable services
Finally, Mother maintains the order of termination should be reversed because there is insufficient evidence that the Cabinet provided reasonable services in its attempt to reunite the family.
Prior to terminating a respondent's parental rights to a child in the custody of the Cabinet, a family court must consider "whether the [C]abinet has, prior to the filing of the petition[,] made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents[.]" KRS 625.090(3)(c). "'Reasonable efforts' means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community . . . which are necessary to enable the child to safely live at home[.]" KRS 620.020(11).
The evidence revealed that very shortly after the adjudication of neglect, the Cabinet established a case plan which involved visitation and required Mother to participate in various educational programs. She was also required to maintain employment and to refrain from using drugs. Mother took no steps to complete any of the required tasks before her September 2010 arrest and incarceration; in fact, she is currently imprisoned for possession of drugs, a contravention of her reunification plan. Since Mother's incarceration, social workers have remained in communication with her and visit her regularly. There is little more they can do while she is in prison. Mother's inability to complete the necessary steps to reunification with Child is due to her own criminal activity and not any failure of the Cabinet.
IV. Conclusion
The family court's order terminating Mother's parental rights to Child is based upon substantial evidence and must not be disturbed. Therefore, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Edwin A. Jones
Paducah, Kentucky
BRIEF FOR APPELLEE: Dilissa G. Milburn
Assistant Counsel
Mayfield, Kentucky