Opinion
NO. 2019-CA-000685-ME
06-05-2020
H.L.O. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.R.-L.O., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Tammy C. Skeens Pikeville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH & FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE JAMES W. CRAFT, II, JUDGE
ACTION NO. 18-AD-00019 OPINION
REVERSING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES. LAMBERT, JUDGE: H.L.O. has appealed from the Letcher Circuit Court's amended findings of fact and conclusions of law and the judgment involuntarily terminating her parental rights to her daughter, E.R.-L.O. We reverse.
H.L.O. (the Mother) has three children; E.R.-L.O. (the Child) is her third child, born in 2016. She is the subject of this appeal. Her other two children are T.J.C., born in 2008, and S.C., born in 2011. Shortly after the Child's birth, Holly Hammock, a Social Services Worker for the Cabinet for Health and Family Services (the Cabinet), filed a Juvenile Dependency, Neglect, or Abuse Petition in the Letcher District Court (Case No. 16-J-00025-001) seeking to declare that the Child was neglected or abused. The affidavit stated:
[The Mother] gave birth to [the Child] on **/**/16. [The Mother] tested positive for Methamphetamines and Buprenorphine at the time of the birth. [The Child] started showing [signs] of withdrawal and was sent to Pikeville Medical Center. [The Mother] denies taking any Methamphetamines. [The Child] tested positive for Buprenorphine but was not tested for Methamphetamines. [The Mother] also has custody of her other two children, [T.J.C. and S.C.] This agency has concerns with [the Mother] testing positive and her previously having her children removed due to drug abuse issues. This agency asked that the father of [the Child], [J.H.] take a drug screen and he failed to do so.In an emergency custody order affidavit, Hammock stated:
[The Child] was born drug addicted and tested positive for Suboxone at birth. Her mother . . . tested positive for Methamphetamines and Suboxone at delivery. It was confirmed that [the Mother] is prescribed Suboxone. [The Child] was transferred to Pikeville Medical Center to be treated for the drug addiction. Mother and father have a history of removal for drug abuse issues with [the Child's] siblings in 2014. The father has been asked to
take two drug screens, but has failed to do so at this time. [The Child] is being released from Pikeville Medical Center on 02/27/16 and this agency was not able to approve any given relatives to this date.
J.H. was later determined not to be the Child's father.
The Child was taken into the emergency custody of the Cabinet on February 26, 2016, and a temporary removal hearing was scheduled. After that hearing, the Child was placed in the temporary custody of the Cabinet by order entered March 31, 2016. The Cabinet was ordered to explore potential relative placement, and the Mother was ordered to enroll in and timely complete a program with Advancing Solutions. At the adjudication hearing on April 26, 2016, the mother stipulated to neglect, and the district court ordered the Child to remain in the custody of the Cabinet. Child support was also ordered.
A disposition hearing was held on June 9, 2016, after which the district court ordered the Child to remain committed to the Cabinet. The Cabinet was ordered to set the Mother's visitation based upon her attendance at Advancing Solutions and her sobriety. The next hearing was scheduled for July 12, 2016. Findings and recommendations of an interested party review board were filed just prior to that date. The social worker stated that:
[M]other visits one hour weekly that go well. Mother is working her case plan at this time. Worker cannot find her at home in order to visit and do pill count. There are several possible father possibilities. Mother does not have transportation, no employment, and no income. Mother states that she is attend[ing] "Advancing Solutions" and "UK TAP." Foster parents state that they
got this child straight from the hospital. They have one biological son in the home. [The Child] continues to have withdrawals. She sleeps all night and [is] a very happy baby.The review board recommended that the Child remain in her current placement to give the Mother time to complete and maintain her case plan. The court reset the review hearing for August 2, 2016, as the Mother was about to be placed in Phase 2 of the Advancing Solutions program.
On August 29, 2016, the district court ordered that the Mother could receive unsupervised visitation with the Child after hearing testimony from Cabinet worker Jay King. On October 3, 2016, the court ordered the Mother to pay child support in the amount of $100.00 per month beginning September 1, 2016, and to provide health insurance if she could afford to do so at a reasonable cost or through an employer. The court held another review on November 15, 2016, at which time Mr. King stated that the Mother had been struggling with services, had tested positive for Percocet use, had been arrested for public intoxication during a visitation at the Cabinet, and had been arrested for shoplifting. The December 8, 2016, order set a permanent custody hearing for early 2017.
Prior to that hearing, the interested party review board recommended that the Child remain in her current foster home because her needs were being met and that the goal be changed to adoption for the Child's stability. The findings reflected that the Mother had experienced a setback in her program and had tested positive for drugs. Visits went well when she showed up, but the Mother had shown up for one visit while under the influence and went to jail. The district court held the permanency hearing on March 14, 2017, and entered an amended order on March 24, 2017, changing the permanency plan to adoption and ordering that all reunification efforts were to cease.
On July 27, 2017, the Mother, through counsel, filed a motion to redocket the case. She had graduated from the Advancing Solutions program and planned to continue with the after-care program. The Mother had recently obtained temporary custody of her other two children and wanted to work to restore custody of all of her children under the Cabinet's supervision. She requested that the Cabinet reinstate reunification efforts with the goal for the Child to be returned to her. The motion was noticed to be heard on August 1, 2017. There is no indication in the record that the district court ruled on this motion.
On January 8, 2018, the interested party review board filed its findings and recommendations. The Child had been doing well. All of her needs were being met, and she had bonded well with her foster parents. The review board recommended that the Child remain in her current placement, where she had been since her birth. The Cabinet, through Mr. King, filed an annual permanency review on March 9, 2018. After detailing the Child's life in her foster home, Mr. King recommended that she continue to remain in the Cabinet's custody and that the goal should remain adoption.
On April 9, 2018, the district court entered another order ruling that the permanency plan was adoption and that the Child remain committed to the Cabinet. DNA testing was ordered to determine paternity. The court found that returning the Child to the home would be contrary to her welfare, that it was in the Child's best interests to change the custody of the Child, that reasonable efforts had been made to prevent removal from the home, that reasonable efforts had been made to finalize the permanency plan for the Child, that the Child needed protection and extraordinary services pursuant to Kentucky Revised Statutes (KRS) 620.140, that the Child had been in foster care for 15 of the last 22 months, and that the Cabinet had recommended the Child should be placed for adoption. The matter was to be redocketed for review on March 19, 2019.
DNA testing filed with the district court on May 3, 2018, ruled out J.H. as the Child's biological father. Later testing filed with the court on May 9, 2018, established that T.J.R. was the Child's biological father.
On May 8, 2018, the Cabinet filed a verified petition in Letcher Circuit Court to involuntarily terminate the Mother's parental rights. The Cabinet also sought termination of T.J.R.'s and J.H.'s parental rights. In the petition, the Cabinet alleged that the Child had been adjudicated to be abused or neglected on April 28, 2016, and was committed to the Cabinet on June 17, 2016. It went on to allege that the Mother, T.J.R., and J.H. failed to protect the Child's fundamental right to a safe and nurturing home; that they neglected the child; that they failed to provide essential care and protection for the Child; that they failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary for the Child's well-being; that T.J.R. and J.H. had abandoned the Child for 90 days; that the Child had been in foster care for 15 of the last 22 months; that the Cabinet had rendered or offered services to rehabilitate and reunite the family but the parents had not made such efforts that it would be in the Child's best interest to be returned to the care of a parent; and that the Child had improved in foster care. The Cabinet stated that it was in the best interest of the Child that parental rights be terminated. The court appointed a guardian ad litem (GAL) to represent the Child. A warning order attorney was appointed for T.J.R., and J.H. was dismissed as a party on October 2, 2018, as he was excluded as the Child's father by DNA testing. The warning order attorney filed a report on November 17, 2018, stating that he had mailed T.J.R. a letter regarding the action, but he had not responded to the notice. In addition, the court appointed counsel for the Mother.
The court held an evidentiary hearing on February 1, 2019. The Cabinet called social worker Jay King for its first witness. He was assigned the Mother's case, and he discussed the February 2016 referral when the Mother tested positive for drugs when the Child was born. The Child had never been released into the Mother's care. The Cabinet ordered the Mother to complete the UK Targeted Assessment Program (TAP) assessment and continue to comply with the Advancing Solutions program. She was ordered to take random drug screens and maintain appropriate housing. Regarding her boyfriend, J.H., Mr. King stated that he had refused to take the drug screenings. He never complied with services in the beginning when he was visiting with the Child. As the case progressed, the Mother took ten months to complete Phase 1 of the Advancing Solutions program due to issues and relapses she experienced.
In March 2017, the goal was changed to adoption. The Mother had not completed the program by that date and was still in Phase 1. Other factors preventing the return of the Child to her care included the Mother's arrest for public intoxication at the Cabinet office followed by an arrest for shoplifting after she left. Mr. King noted that the Mother had failed multiple drug screenings. She had almost always tested positive for Suboxone. When she did not have a prescription for Suboxone, she procured it on the street. Mr. King stated that the Mother had issues with transportation. She had lost her driver's license, and she had only recently gotten it back. As to her living conditions, Mr. King did not have any reservations. She had always kept a clean home.
Mr. King stated that reasonable efforts had been made with her before the goal was changed to adoption. The Mother had completed the Advancing Solutions program, her UK TAP assessment, and the KVC program. The Child had been in care for 35 months by that time. He agreed that the Mother had been incapable of providing essential care and protection for the Child. As to whether she provided necessities for her, Mr. King said the Mother attended regular, supervised visits on a weekly basis at the Cabinet's office. She generally brought food or clothing for the Child. In August 2016, the Mother was granted unsupervised visitation with the Child due to the progress she was making. In October, the Cabinet modified visitation back to supervised because J.H. was seen in a van the other children were in.
Mr. King said that there were neglect findings made as to the Mother's older children. They had been out of the home, but they had since been returned to the Mother. In October 2017, the Mother regained custody of her oldest child, T.J.C., and in November 2018, the Mother regained custody of K.C. after the relative who had custody of him passed away.
Mr. King went on to testify about the Mother's criminal past, which included her conviction for second-degree wanton endangerment in March 2015 and theft charges. He believed that her pattern of drug abuse rendered her incapable of providing for the Child, noting that she had had several relapses and that it took her ten months to complete Phase 1 of the Advancing Solutions program and between 16 and 17 months to complete the entire program. The Mother was also in arrears on her child support payments.
Regarding the Child's current physical, mental, and emotional health, Mr. King stated that she was healthy. She had issues when she was born with stiffness in her leg muscles, hot flashes, and trembling episodes. The Child remained in the hospital more than a week after she was born to wean her off her medication. He said the Child's condition had improved in foster care. She had her own room at her foster parents' house, and they planned to adopt her. The Mother lived in a one-bedroom home, and she slept in the living room. The older children had bunkbeds in the bedroom along with a crib. If the Child were to return to the Mother, she would have to sleep in the bedroom with her brothers or in the living room with the Mother. The Mother told him she was looking for a bigger place to live.
Mr. King testified that the Mother was not working, and when asked about her source of income, he mentioned her relationship with J.H. In the last six months, the Mother admitted she had a relationship with him but that he did not live with her. J.H. worked in the coal mines. He had not completed any services, but he did attend the Suboxone program. He said that there was a no-contact order with regard to S.C.
Mr. King stated that the basis for the decision to seek termination of the Mother's parental rights was due to the length of time it took her to make any progress. She had exceeded the normal time to get to Phase 3 of the Advancing Solutions program. He said the Child's bond with the foster parents versus the Mother would never be the same because the Mother only saw her one hour per week. He also was concerned about the Mother's lack of transportation and a driver's license as well as a possible relapse. When asked if there was a reasonable expectation of improvement in the Mother's ability to provide for the Child's care in the immediately foreseeable future, he stated the Mother had no income outside of cleaning homes for people, although she did have her license back as well as a car. As far as being able to provide for the Child, he said she would be able to manage food and clothing.
Mr. King testified that the Cabinet had made reasonable efforts to reunify the Mother and the Child and that there were no other services he could offer that would enable a return of the Child to the Mother. Mr. King cited the length of time it took the Mother to complete her services as the main source of his opposition to the return of the Child. He also said that the Child's social functioning would be enhanced by the termination of parental rights.
On cross-examination, Mr. King said he was concerned that the Mother would relapse but that his biggest concern was the emotional effect this would have on the Child. He was also concerned about the length of time it took the Mother to complete the Advancing Solutions program. It took 10 months for her to complete Phase 1, then two to three months, each, to complete Phase 2 and Phase 3, which was typical. She graduated from the program in July 2017 and then participated in the aftercare program for three or four months. She completed the KVC program in her home and the UK TAP program, and she had gotten her driver's license back. She completed what the Cabinet asked her to do.
Mr. King went on to testify about the lack of relative placement for the Child. When she was removed, the Mother provided names of relatives to place her with as a custodian. Those names were investigated and found not to be appropriate for placement. He agreed that the Child's case took a different path than her siblings' paths because she went into foster care. Mr. King discussed not knowing whether the Mother's 2017 motion to change the goal in district court had been heard or ruled on. When she filed this motion, the Mother had already completed the Advancing Solutions program, and she had regained custody of one of her children in October 2017. Mr. King did not know why it took more than a year for the Cabinet to file the termination petition, and he agreed that the Child had been left in foster care because of how long this case had taken. He believed that had affected the bond the Mother had with the Child. However, he agreed that the Mother celebrated holidays and birthdays with the Child every year. He also agreed that there was a reasonable expectation for significant improvement and that the Mother had significantly improved.
On redirect examination, Mr. King again stated that it was appropriate, and in the Child's best interests, to terminate the Mother's rights, even though the two older siblings had been returned to her care. He cited the time the Child had been in foster care. He also stated that he had not agreed with the Cabinet that the other two children should have been returned to the Mother's care. He went on to state that the Child's emotions were coming into play and that her foster home was the only home that she had known. There was no promise that integration into the Mother's home would succeed. And the Mother had not done anything to bring her motion to change the permanency goal before the district court again.
Adam Maggard, a clinician/therapist from Advancing Solutions, testified next. This is a structured program in conjunction with the state for women with substance abuse problems. It has three phases and an aftercare program. Phase 1 consists of 36 group meetings, and the minimum completion time is three months. The Mother took ten months to complete this phase, which was outside of the minimum. Requirements include 36 meetings, three times per week for three months, and providing clean drug screenings for two to four weeks. Phase 2 consists of 16 group meetings held two times per week, and the minimum completion goal is two months. And Phase 3 consists of eight group meetings, and the minimum completion time is two months. For the aftercare program, there are not any required group meetings, but it consists of two individual meetings per month with Mr. Maggard for six months. Mr. Maggard began working with the Mother in March 2016. He did individual and group therapy with her, and their last meeting was on February 1, 2018. He knew she had issues with her prescription for Suboxone.
After the Cabinet closed its case, the Mother testified in her defense. She first addressed her driver's license situation. She had lost her license in 2014 and had attended DUI classes to get it back two months previously. She also had transportation. As to her relationship with the Child, she said the Child knows who the Mother is and who her brothers are. She said there were no problems bonding and that the Child called her "Mommy." She had asked Mr. King for additional visitation but did not get any; he said it was up to the court. She filed a motion to redocket in the district court to seek a change in goal. However, nothing changed after this, and she never received an order with a decision. The Mother said she regularly attended hearings and reviews, and she asked about visitation and/or custody each time. She thought it was up to the Cabinet to reunify the family, but it did not do enough. She thought she should have gotten more than one hour of visitation each week and that the Cabinet should have worked to transition the Child back into her home in 2017 when she got T.J.C. back.
The Mother agreed that she had issues she had to work through when the Child was removed from her. She was currently living a clean and sober lifestyle, and she had a prescription for Suboxone, which she was working to taper off. She had maintained this lifestyle for the last year and a half to two years. She admitted that she had a relapse with Percocet and that the other relapses were at times she had Suboxone without a prescription. For her income, she received KTAP benefits and a gas check as well as SSI benefits for S.C. Her boyfriend, J.H., worked as a coal miner and helped the children financially. She said he lived with them and that they were moving the following week to a larger home. J.H.'s criminal matters had all been resolved. The Mother worked briefly at McDonald's and had cleaned house for a friend. She quit her job when S.C. returned to her home because he had autism and needed her attention. The Mother did not believe it would be hard to provide care for the Child if she were to transition into her home, and she had the resources to provide for her. The Mother believed she could provide the same level of care for the Child as her foster parents. At the time of the hearing, the Mother lived in a one-bedroom home. The older children slept in the bedroom, and she slept in the living room. She said that while J.H. lived there, he was never home due to his work schedule. However, if he were to be laid off, she would feel comfortable leaving the Child with him if she needed to do an errand.
On redirect examination, the Mother stated that after the Child was born, she had given birth to stillborn babies twice at 32 weeks. She had not wanted to work during her high-risk pregnancies. However, she was willing to seek employment if finances got tight. She stated that she was not asking for an immediate return of the Child; she wanted to transition her into the home before the next Christmas. She believed this would be in the Child's best interest. She also stated that J.H. had to do drug screens for his work.
The court permitted the parties to make arguments at the conclusion of the testimony. The Cabinet argued that it had met the statutory burden for termination of parental rights. The case hinged on what was in the Child's best interests, which was to stay in a safe and nurturing home, the only one she had known. There was concern about the Mother's relationship with J.H., who had not completed any services. The Cabinet believed it would not be in the Child's best interests to transition to a home where J.H. lived. On the other hand, the Mother argued that the Cabinet had not met its burden. This case was about parental rights, not custody, and the issue was not whether the Child would be better in one home than another home. The Mother had regained custody of her older children, meaning that she had satisfied any concerns the district court had at that time. She had taken proactive steps to get the goal changed, she attended visitation, she had completed her services, and she had a sober lifestyle. The GAL did not believe the Cabinet had met its burden and that termination was not appropriate in this case. He said it did not make any sense that two children had been returned to the Mother, but termination was sought for the Child.
The court then asked about J.H. and whether there was any testimony at prior reviews or hearings in the district court that he had been living in the house. The Mother reported that this had been brought to the court's attention at the last hearing. The GAL stated that if there had not been any issues that had arisen in relation to the other two children with J.H. living in their home, he did not believe it would make a particular impact in this case. He still thought termination was not appropriate even after hearing about J.H.'s presence in the home.
On February 12, 2019, the circuit court entered its findings of fact and conclusions of law, finding that the Child had been neglected or abused and abandoned and that it was in the best interest of the Child to terminate the Mother's parental rights. A separate judgment was entered terminating the Mother's parental rights and placing custody of the Child with the Cabinet with the authority to place her for adoption.
The court entered a separate order related to T.J.R. the same day, noting that he failed to appear before the court. It therefore entered a default judgment against him and terminated his parental rights.
The Mother moved the court to alter, amend, or vacate its order pursuant to Kentucky Rules of Civil Procedure (CR) 52.02, 52.04, and 59.05, and for CR 60.02 relief. She argued that there was no evidence that she had abandoned the Child or supporting the other findings under KRS 625.090(2). Rather, the court focused on J.H.'s criminal record. The Cabinet, in its response, conceded that the Mother had not abandoned the Child, but disputed the rest of the Mother's arguments. It argued that the Mother had not been applying what she had learned in her programs by allowing J.H. to remain around her children, including the Child if she were to be returned. At the hearing, the court stated that the case hinged on whether the Mother had complied with services and her continued relationship with J.H. The court found that she had not made sufficient strides in her plan to not terminate parental rights, noting her ambivalence to J.H. being around the Child. The court ultimately granted in part and denied in part the Mother's motion, and it entered amended findings of fact and conclusions of law on April 4, 2019, removing the finding that the Mother had abandoned the Child, but still terminating her parental rights. This expedited appeal now follows.
In her appeal, the Mother urges this Court to reverse the lower court's ruling because the Cabinet failed to meet its burden under KRS 625.090 and should not have terminated her parental rights. The Cabinet argues that the circuit court's ruling was proper and should be affirmed.
On multiple occasions, the United States Supreme Court has recognized the fundamental interest natural parents have in raising their children:
[T]he relationship between parent and child is constitutionally protected. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is now firmly established that freedom of personal choice in matters of family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554-55, 54 L.Ed.2d 511 (1978) (internal quotation marks, ellipsis, and citations omitted). And in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), a case specifically addressing the termination of parental rights, the Supreme Court emphasized the fundamental nature of the liberty interest natural parents have in raising their child:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.Id., 455 U.S. at 753-54, 102 S.Ct. at 1394-95 (footnote omitted). With these pronouncements in mind, we shall review the Mother's argument that her parental rights should not have been terminated.
In Kentucky, a court is permitted to involuntarily terminate parental rights pursuant to KRS 625.090 "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 & Family Servs. v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006) (citations omitted). Additionally, at least one of the conditions set forth in KRS 625.090(2) must be established through clear and convincing evidence. KRS 625.090(1). These factors include:
We are referring to the version of the statute that went into effect on July 14, 2018. A new version of the statute became effective on June 27, 2019. --------
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights.
In considering the best interest of the child, the court must consider the factors set forth in KRS 625.090(3), which include:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
In M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998), we recognized that:
The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, Ky. App., 552 S.W.2d 672, 675 (1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, Ky. App., 706 S.W.2d 420, 424 (1986).Furthermore, "[t]he findings of the trial judge may not be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses." Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995) (citing CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986)).
"Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934).
In the present case, the circuit court found that the Child had been adjudicated to be neglected by the Letcher District Court on April 28, 2016; that the Mother failed to protect and preserve the Child's fundamental right to a safe and nurturing home; that, for at least six months, the Mother failed to provide essential parental care and protection for the Child and that there was no reasonable expectation of improvement considering the age of the child (KRS 625.090(2)(e)); that the Mother, for reasons other than poverty, failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary for the Child's well-being, and there was no reasonable expectation of significant improvement in her conduct in the immediately foreseeable future, considering the Child's age (KRS 625.090(2)(g)); that the Cabinet had offered services to the Mother, but she had not made efforts or adjustments such that it would be in the best interests of the Child for her to be returned within a reasonable time (KRS 625.090(3)(d)); that the Child's condition had improved in her foster care placement (KRS 625.090(3)(e)); and that the Child had been in foster care for more than 15 cumulative months of the last 48 months (KRS 625.090(2)(j)).
The court appears to have based its ruling on the Mother's relationship with J.H., who is not her husband or the Child's father, and the time it took her to complete the services offered by the Cabinet. The court found:
17. . . . . It is uncontroverted that [the Mother] untimely completed the services offered to her by [the Cabinet]
subsequent to the Court awarding the Cabinet permanent custody of the minor child and approving the Cabinet's plan for termination/adoption on March 7th, 2017. However, the mother testified that she is in a relationship, cohabitating with, and financially dependent upon [J.H.], a named perpetrator of abuse/neglect from whose care the minor child was removed [] through the aforementioned juvenile action. Based upon the testimony and exhibits, the Court can find no record of [J.H.] completing any services offered to him by [the Cabinet] in an effort to reunify him with the minor child as it appears that he did not seek reunification. The Court takes judicial notice of [J.H.'s] lengthy criminal records which include various drug related convictions.
18. Therefore, the Court finds, despite [the Mother's] untimely completion of services, [that the Mother] failed to remediate her lack of protective capacity as demonstrated by her willingness to expose the minor child to a known criminal and who has refused to comply with any services offered to him by the Cabinet. The Court cannot find any reasonable prospect of improvement in the immediately foreseeable future as the minor child has been in care for over thirty-six (36) months without any progress being made by [the Mother] or her paramour, [J.H.], in this respect.
The Mother argues, and we agree, that the Cabinet failed to meet its burden based upon the testimony of Mr. King, who stated that the Mother had made significant progress. She had completed all of the services offered to her, including the UK TAP assessment, the Advancing Solutions program, random drug testing, and the KVC program. The Mother's driver's license had been reinstated, and she kept a clean home. Mr. King also testified that the Mother visited weekly with the Child, when she brought her food and clothing, and that she celebrated birthdays and holidays with her. He also testified that the Mother's two older children had been returned to her custody. Our review of Mr. King's testimony establishes that he believed termination was in the Child's best interests because she had lived with her foster parents for all of her three years of life and that it would be emotionally difficult to transition to life with the Mother.
We also disagree with the circuit court's focus on J.H., as he is not the Child's father and therefore could not be reunified with her, and he is not married to the Mother. The circuit court relied upon J.H.'s criminal record, which was not introduced at the hearing. And J.H.'s presence in the home did not prevent the Child's older siblings from being returned to the Mother's care and custody, as long as they were supervised. Furthermore, the GAL did not believe that the Mother's parental rights should be terminated, even with the knowledge that J.H. would be living in the home. We disagree with the circuit court's statement that the Mother failed to remediate her ability to protect the Child through her association with J.H.
Based upon our review of the record, we agree with the Mother that the Cabinet failed to establish by clear and convincing evidence that there was no reasonable expectation of improvement in the Mother's parental care and protection or of significant improvement in her conduct related to the provision of essentials for the Child pursuant to KRS 625.090(2)(e) and (g). Those findings were against the weight of the evidence presented at the hearing, making the circuit court's findings clearly erroneous.
As to the circuit court's finding related to the Child's time in foster care, there is no dispute that she had been in foster care for 15 cumulative months of the 48 months preceding the filing of the termination petition as she had lived with her foster parents for her whole life. She was two years old at the time the Cabinet filed the petition and was almost three years old at the time of the hearing. However, the court appears to have ignored that the Mother attempted, in the juvenile action, to change the goal back to reunification in July 2017, within the first 15 months after the Child had been committed to the Cabinet in June 2016. There was no explanation for the lengthy delay between the permanency decision in March 2017 and the filing of the termination petition in May 2018, more than a year later. And the termination hearing was not held until early 2019. While technically this finding is supported by clear and convincing evidence, we do not believe this circumstance should be held against the Mother in this case, in particular because we have rejected the circuit court's only other two findings of grounds under KRS 625.090(2)(e) and (g).
As to the circuit court's finding that termination would be in the Child's best interests, the Mother appropriately argued that the court failed to state what findings supported this conclusion. Rather, the court stated that it had considered the factors set forth in KRS 625.090(3), but it did not provide any specific findings to support it, other than regarding J.H.
Accordingly, we hold that the circuit court's decision to terminate the Mother's parental rights to the Child was clearly erroneous as it was not supported by clear and convincing evidence. In so holding, we again recognize the fundamental nature of the liberty interest the Mother has to raise her child. And as the Mother argued at the hearing, this is not a matter of determining who should have custody of the Child; this has to do with the permanent severance of ties between a mother and her child, which is the reason the burden of proof is so high. Here, there was simply not enough evidence to support termination.
For the foregoing reasons, the judgment of the Letcher Circuit Court terminating the Mother's parental rights is reversed.
ACREE, JUDGE, CONCURS.
CALDWELL, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CALDWELL, JUDGE, DISSENTING: I respectfully dissent. As stated in this opinion, and in citing M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114 (Ky. App. 1998), the trial court has a great deal of discretion in an involuntary termination of parental rights action. The standard of review in a termination case is confined to the clearly erroneous standard in CR 52.01, based upon clear and convincing evidence, and the findings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. The opinion further cites Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934) stating, "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." And then continues to say "[t]he findings of the trial judge may not be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses." Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995) (citing CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986)).
This recitation of the law is preceded by pages of facts that were heard by the trial court that would support termination of the parental rights in this case. Specifically and uncontroverted, but not exclusively, that the child had been adjudicated to be a neglected or abused child pursuant to KRS 600.020(1) and that the child had been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights under KRS 625.090(2)(j). That is without even considering the ample evidence to support the trial court's findings under KRS 625.090(2)(e) and (g). Yet, the majority would hold that there was simply not enough evidence to support termination.
The majority seems to take particular issue with the final requirement for termination, that termination of parental rights is in the child's best interest. The majority notes that the trial court stated it had considered the factors set forth in KRS 625.090(3) but says it did not provide any specific findings to support it, other than regarding J.H. However, the trial court particularly found that it was uncontroverted that Mother untimely completed the services offered to her by the Cabinet for Health and Family Services ("Cabinet") subsequent to the court awarding the Cabinet permanent custody of the minor child and approving the Cabinet's plan for termination/adoption. The court also noted Mother's testimony that she is in a relationship with, cohabitating with, and financially dependent upon J.H.
The Court does take note of J.H.'s not completing any services offered to him by the Cabinet and his lengthy criminal record. However, the finding that Mother is financially dependent upon J.H. and is cohabitating with him, even though he was a named perpetrator in the underlying juvenile action, is a separate finding as to what is in the child's best interest regarding Mother's continuing ability to care for and make good choices for the child going forward.
The majority states that it disagrees with the trial court's statement that Mother failed to remediate her ability to protect the child through her association with J.H. Going back to our standard of review, it is not if we would have decided the case differently but if there is clear and convincing proof to support the trial court's decision. In this case, not only do I not disagree with the trial court's statement that Mother failed to remediate her ability to protect her child through association with J.H., but I think the majority is overlooking significant facts in finding otherwise.
The majority states it disagrees with the trial court's focus on J.H., as he is not the child's father and is not married to Mother and further states that J.H.'s presence in the home did not prevent the child's older siblings from being returned to Mother's custody, as long as they were supervised. It is important to note that the child's siblings are five and eight years older than this child. They are capable of reporting to someone that they are being left alone with J.H., if that were to occur, and capable of reporting abuse. E.R.-L.O. was barely three years old at the time of the trial and would not have those capabilities. Further, Mother's testimony that she would feel comfortable leaving her child alone in J.H.'s care if she had to run an errand is telling and concerning.
There is a phrase that is repeated often throughout the entirety of KRS 625.090, "considering the age of the child." While seventeen months in the life of a twelve-year-old is still a long time, in the life of a three-year-old it is practically a lifetime. While having restrictions placed on caregivers can provide a sense of security to an eight-year-old, a three-year-old may be incapable of reporting when those restrictions are not followed. The trial court's finding that for E.R.-L.O., who had been in her foster home for her entire life, termination of parental rights would be in her best interest is supported by substantial and clear and convincing evidence, and I would affirm the trial court. BRIEF FOR APPELLANT: Tammy C. Skeens
Pikeville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH & FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky