Opinion
NO. 2012-CA-000547-ME
02-22-2013
H.L.M.J., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.R.J., FATHER; J.M.J., A CHILD; H.K.J., A CHILD; AND L.R.M., A CHILD APPELLEES
BRIEF FOR APPELLANT: Jacqueline M. Caldwell Louisville, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Erika L. Saylor Louisville Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NOS. 11-AD-500137, 11-AD-500138 AND 11-AD-500139
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: H.L.M.J. (mother) appeals from the orders of the Jefferson Family Court terminating her parental rights to J.M.J., (Child 1), H.K.J., (Child 2), and L.R.M., (Child 3), arguing that the Cabinet for Health and Family Services (Cabinet) failed to prove the statutory requirements by clear and convincing evidence.
Child 1, a two-year-old, and Child 2, a one-year-old, and their three siblings were removed from mother's care in March of 2006 after Child 2 was admitted to Kosair Children's Hospital suffering from several brain hematomas, spinal cord injury, numerous bruises and traumatic alopecia. Child 2's brain injuries appeared to be consistent with shaken baby syndrome and resulted in significant brain damage to her frontal lobe and severe mental retardation.
Additionally, the house where mother, her boyfriend and the children were living was in a deplorable condition with a strong odor, dirty dishes and roaches. Mother had previous contact with the Cabinet regarding her older children.
A petition alleging abuse and neglect was filed and a temporary removal hearing was held on March 14, 2007. J.R.J., the father of Child 1 and Child 2, was granted temporary custody of them under the Cabinet's supervision. The other siblings were placed with relatives and have not been returned to mother's care. Mother was ordered to complete a JADAC assessment and comply with recommendations to have a psychological evaluation and to have no contact with the children.
On June 7, 2007, mother and her boyfriend stipulated to having abused and placing all the children at risk of abuse and mother admitted to having failed to protect the children. Mother was ordered to have a chemical dependency evaluation and follow through on the previous recommendation to have a psychological evaluation, follow any recommendations, attend counseling and only have appropriate written contact with the children.
As a result of the injuries to Child 2, mother pled guilty to criminal abuse first-degree on a child and aggravated assault fourth-degree on a child and was sentenced to three years on the abuse charge and twelve months on the assault charge. She was also ordered to pay child support.
On March 21, 2007, while in custody, mother was convicted of attempted escape in the third degree. Mother was released from custody on July 1, 2008. For more than a year and one-half following her release, mother made no attempt to secure legal visitation with Child 1 or Child 2.
On September 13, 2009, Child 3 was born to mother and an unknown father. On September 15, 2009, the Cabinet alleged that Child 3 was neglected, noting that mother had lost five children due to neglect and was only allowed written contact with them. Child 3 was considered at risk for abuse or neglect and was placed on a seventy-two-hour hold before she could be released from the hospital. Child 3's meconium tested positive for opiates, which mother claimed were the result of a dental prescription.
After Child 3 was placed on a seventy-two-hour hold, that same day mother finally completed her psychological evaluation ordered more than two years earlier. Mother was evaluated by Dr. David L. Winsch, a licensed clinical psychologist. In her interview, mother discussed her history of being the victim of sexual and physical abuse and history of drug abuse. She expressed her desire to raise Child 3 by co-parenting with her female partner and stated that they planned the pregnancy for this purpose. Dr. Winsch recommended that mother take part in cognitive behavioral therapy to process the traumatic events in her life. Although mother was found to have a parenting attitude consistent with non-abusive parenting, Dr. Winsch found that mother appeared to lack understanding of children from a developmental standpoint and recommended that she take classes to learn child development and strategies for managing children's behavior at different ages. Subsequently, mother completed protective parenting classes.
On September 17, 2009, the court continued the Cabinet's custody of Child 3 based upon mother's history of substance abuse and the removal of her other children. Mother was granted supervised visitation with Child 3.
On September 24, 2009, Child 1 and Child 2 were removed from father's care on substantiations of neglect caused by his allowing them to be around inappropriate individuals, including allowing mother unsupervised visits with the children in violation of court orders.
Mother was ordered to complete an intake appointment at Transitions and comply with all treatment recommendations. Although she completed treatment classes as recommended, her attendance was sporadic. Mother was also required to pay child support and submit to random drug screenings.
On November 12, 2009, mother was ordered to complete a substance abuse evaluation and follow its recommendation. She was also ordered to attend counseling, which she did through Seven Counties Services. Following her substance abuse evaluation, mother was required to take basic education classes which she completed.
In February 2010, mother requested unsupervised visitation with Child 3 and supervised visitation with Child 1 and Child 2. On April 22, 2010, the family court determined that all three children were abused and neglected, placed them in the custody of the Cabinet, ordered mother to attend counseling, to have no contact with Child 2, to have therapeutic visits with Child 1 and to have supervised visits with Child 3.
The decision to continue no contact between mother and Child 2 was based upon licensed psychologist Linda Rice's recommendation that Child 2 not have contact with unfamiliar adults to protect her mental welfare. Child 2 was functioning on a two-year-old developmental level, but had shown behavioral progress after placement in a therapeutic foster home. Rice believed that exposure to new adults would be confusing and detrimental to Child 2 due to her reactive attachment disorder, fragile emotional stability and lack of capacity to understand healthy relationships.
On May 13, 2010, mother was found to be compliant with court orders, but this progress was of short duration. On September 2, 2010, following mother's repeatedly being significantly late for therapeutic visitation sessions with Child 1, the court ordered mother to arrive fifteen minutes early for therapy sessions.
On September 8, 2010, mother pled guilty to and was convicted of possession of a controlled substance third-degree, first offense. On October 21, 2010, the family court found mother in contempt of the court's orders on visitation and contact. The court ordered that mother be no more than fifteen minutes late for visitation or visitation would be cancelled. Mother's conduct improved and she managed to attend most visits by arriving before the fifteen-minute grace period had elapsed.
Mother paid some child support while her children were in the custody of the Cabinet, but less than the $180 per month ordered for the support of her six children. She provided only minor material provisions for Child 1 and Child 3 during visitation and made no provisions for Child 2's care.
On January 20, 2011, mother was permitted visits with Child 1 and Child 3 as recommended by therapists to include overnight visits. The Cabinet was also given the discretion to allow Child 1 to visit with father. After mother had overnight visitation, the children returned in good condition.
During the summer of 2011, both mother and father made sufficient progress. On August 15, 2011, the Cabinet supervised Child 1's placement with both parents in a joint custody type of arrangement and Child 3's placement with mother. During this time, mother was repeatedly late or failed to attend drug testing. On September 15, 2011, mother was referred for in-home treatment services, but refused services.
On October 20, 2011, Child 3 was returned to foster care. Although mother had been providing for her physical needs, she had not provided Child 3 with a safe place to live. Mother lost her housing and she and her partner had lived temporarily in several locations. She had no contact with the social worker for several weeks, did not inform him when she changed residences, refused to cooperate with in-home treatment services and was non-compliant on submitting to timely drug screenings.
During this time, mother had little contact with Child 1, who primarily resided with father. On November 11, 2011, Child 1 was returned to foster care after father was arrested for domestic violence committed in Child 1's presence.
On February 15, 2012, at the bench trial on termination, the family court heard testimony from Howard Abraham, the social worker in charge of the case. Mother had not maintained contact with Abraham and mother admitted to being behind on her court-ordered child support payments and to having sporadic employment, though she hoped that her current training to be a tattoo artist would lead to employment. Since August 2011, mother had been asked to complete drug testing nine times and failed to attend five times. At the time of trial, mother still failed to obtain suitable housing even though she testified that she and her partner had the money to do so. Mother had pending criminal charges for shoplifting, which she expected to have dismissed.
The family court terminated mother's parental rights, finding that there was clear and convincing evidence that the children were abused or neglected as defined by Kentucky Revised Statutes (KRS) 600.020(1) and pursuant to KRS 625.090(2), and that termination was appropriate on three grounds: 1) for a period of not less than six months mother had continuously or repeatedly failed or refused to or has been substantially incapable of providing essential parental care and protection of the children, and there was no reasonable expectation of improvement in the parental care and protection considering the ages of the children; 2) for reasons other than poverty alone, mother 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 children's well-being and that there is no reasonable expectation of significant improvement in mother's conduct in the immediately foreseeable future, considering the age of the children; and 3) the children have been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights.
The family court found that the children's best interest would be met by termination pursuant to KRS 625.090(3). It found that the Cabinet had rendered or attempted to render all reasonable services to mother to enable reunification of the family and no additional services were likely to bring about parental adjustments enabling return of the children to mother within a reasonable time, considering the age of each child. Further, the family court found that the Cabinet had met all of the children's physical, emotional and mental health needs since removal from mother's custody and the prospects are for greater improvement in the children's welfare if termination is ordered because the foster parents intended to adopt the children upon termination of parental rights.
A family court has a great deal of discretion in determining whether children are abused or neglected and whether the abuse or neglect warrants termination. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky.App. 1998). A family court's decision to terminate parental rights must be based upon clear and convincing evidence, which we review under the clearly erroneous standard. D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 836 (Ky.App. 2011). "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." W.A. v. Cabinet for Health & Family Services, Commonwealth, 275 S.W.3d 214, 220 (Ky.App. 2008).
After reviewing the record, we conclude that clear and convincing evidence existed to support the family court's finding that the children were abused or neglected and that termination of mother's parental rights was in the children's best interest. Accordingly, we affirm the Jefferson Family Court's termination of mother's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT: Jacqueline M. Caldwell
Louisville, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Erika L. Saylor
Louisville Kentucky