Opinion
NO. 2020-CA-1348-ME
04-02-2021
H.R.D.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; R.R.H, A CHILD; J.H.; C.B.; AND R.B. APPELLEES
BRIEF FOR APPELLANT: Mindy G. Wilson Lexington, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Joseph P. Schuler Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY W. STEIN, JUDGE
ACTION NO. 20-AD-00071 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON, AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: H.R.D.T. (hereinafter referred to as Mother) appeals from the involuntary termination of her parental rights to the minor child R.R.H. (hereinafter referred to as Child). Mother argues that the trial court relied on impermissible evidence, failed to take into account the improvements she made to her life, and erred in finding that Child would continue to be abused or neglected should she return to Mother's custody. We find no error and affirm.
This case involves the termination of parental rights of a child; therefore, this Court will not identify the parties by name so as to protect the privacy of the child.
FACTS AND PROCEDURAL HISTORY
Child was born on February 12, 2019, and is the biological child of Mother and J.H. (hereinafter referred to as Father). The Cabinet was informed that both Mother and Child tested positive for cocaine and tetrahydrocannabinol, the intoxicating ingredient in marijuana. The Cabinet was granted emergency custody on February 25, 2019, and Child was placed in foster care. Mother met with a Cabinet social worker on March 29, 2019, to set up a case plan. Pursuant to the case plan, Mother was to complete a substance abuse assessment and follow any recommendations, remain drug and alcohol free, submit to random drug screens, complete a psychosocial assessment and follow any recommendations, refrain from criminal activity, participate in AA/NA, develop a sober support system, maintain lawful employment, and obtain appropriate housing. In June of 2019, Father injured Mother in an act of domestic violence. Following this, the Cabinet required Mother to complete a domestic violence assessment and follow any recommendations.
Father is not a party to this appeal; therefore, we will focus solely on Mother. --------
Mother made significant strides in completing her case plan. She consistently visited with Child, obtained housing, completed an in-patient drug rehabilitation program, and completed her psychosocial assessment. She also completed a program at the New Opportunity School for Women, which was not a part of her case plan. Unfortunately, she was not attending AA/NA, did not complete a domestic violence assessment, was not following the recommendations of the psychosocial assessment, did not develop a sober support system, and was still having positive drug screens. On March 6, 2020, the Cabinet filed a petition for the involuntary termination of Mother's parental rights to Child.
A hearing was held on the petition on September 2, 2020. Janet Cameron, the family's social worker, and Mother testified at the hearing. Ms. Cameron testified that Mother had completed some aspects of her case plan, but had failed to complete others. In addition, it was revealed during Mother's testimony that she was still in a relationship with Father and that they were living together. She acknowledged that this could be detrimental to her case because of the past domestic violence issues.
On September 18, 2020, the trial court entered an order terminating Mother's parental rights. Ten days later, the trial court entered another order which corrected some errors in the original order. This appeal followed.
ANALYSIS
Kentucky Revised Statutes (KRS) 625.090 sets forth the criteria a court must consider before involuntarily terminating parental rights. KRS 625.090 states:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(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. 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;
3. The child is found to have been diagnosed with neonatal abstinence syndrome at the time of birth, unless his or her birth mother:
a. Was prescribed and properly using medication for a legitimate medical condition as directed by a health care practitioner that may have led to the neonatal abstinence syndrome; or
b. Is currently, or within ninety (90) days after the birth, enrolled in and maintaining substantial compliance with both a substance abuse treatment or recovery program and a regimen of prenatal care or postnatal care as recommended by her health care practitioner throughout the remaining term of her pregnancy or the appropriate time after her pregnancy; or
4. 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;
(b) The Cabinet for Health and Family Services has filed a petition with the court pursuant to KRS 620.180; and
(c) Termination would be in the best interest of the child.
(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:
(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;
(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; or (k) That the child has been removed from the biological or legal parents more than two (2) times in a twenty-four (24) month period by the cabinet or a court.
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(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.
(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.
(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.
(6) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
Additionally,(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
this Court's standard of review in a termination of parental rights case is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, which is based upon clear and convincing evidence. Hence, this Court's review is to determine whether the trial court's order was supported by substantial evidence on the record. And the Court will not disturb the trial court's findings unless no substantial evidence exists on the record.M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citations omitted).
Furthermore, although termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met. While the state has a compelling interest to protect its youngest citizens, state intervention into the family with the result of permanently severing the relationship between parent and child must be done with utmost caution. It is a very serious matter.
The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence. "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."V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (citations omitted).
Mother's first argument on appeal is that the trial court relied upon impermissible evidence to support the termination of her parental rights. During the termination hearing, the social worker began testifying about Mother's three other children. Those children were born prior to Child and had also been removed from her care, but her rights to them had been voluntarily terminated. Defense counsel argued that pursuant to KRS 625.090(2)(h)1, the trial court could only consider previous instances where Mother's parental rights were involuntarily terminated. Counsel also argued that the issue could not be considered when determining the best interests of Child pursuant to KRS 625.090(3)(b), acts of abuse or neglect toward other children in the family, because once Mother's rights to her previous children had been terminated, they were no longer a part of her family. The trial court overruled counsel's objections.
The proper standard for review of evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). KRS 625.090(2)(h)1 states that prior involuntary terminations of parental rights can be considered as one of the additional elements needed for termination found in KRS 625.090(2). The testimony was not being offered for that purpose. Instead, the Cabinet indicated it was being used to show previous acts of abuse or neglect toward Mother's other children, which is a relevant consideration when examining the best interests of Child and can be found in KRS 625.090(3)(b).
We believe the trial court did not err in overruling the objection. The trial court did not use the previous voluntary termination of parental rights as the basis for the additional element requirement found in KRS 625.090(2). The trial court only considered these previous terminations of parental rights when examining the best interests of Child. KRS 625.090(3)(b) states that acts of abuse or neglect toward any child in the family is a relevant issue to be considered. Just because those three children are no longer a part of Mother's family does not mean the abuse or neglect they suffered should be ignored in this case. At the time of the prior acts of abuse or neglect, Mother's previous children were a part of Mother's family. That is what counts. There was no error.
Mother's next argument on appeal is that the trial court did not give proper consideration to the efforts and adjustments she made in order to have Child returned to her. Specifically, she argues that the trial court ignored KRS 625.090(3)(d). KRS 625.090(3)(d) states that an issue to consider when determining the best interests of a child is "[t]he 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[.]"
We find no merit with this argument. In its order, the trial court set forth Mother's testimony at the termination hearing. The court indicated that Mother had a tumultuous childhood, a history of substance abuse, and a history of homelessness. The trial court also recounted the progress Mother made in her case plan. The court then went on to address the parts of her case plan which she had not completed. The court was particularly concerned that Mother was still residing with and in a relationship with Father, even though he had abused her in the past. Furthermore, the court detailed the findings of the drug screens which indicated that Mother still tested positive from time to time. Finally, on page fifteen of the court's findings of fact and conclusions of law, the court specifically mentions KRS 625.090(3)(d). It is clear that the court considered the improvements Mother made in her life but ultimately determined they were insufficient. Again, we find no error.
Mother's final argument on appeal concerns KRS 625.090(5), which states that "[i]f 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." Mother argues that there was a preponderance of evidence that Child could safely be returned to her, and the court should not have terminated her parental rights. Mother cites to her improved situation and the work she put into her case plan as evidence that the trial court should have exercised its discretion and refused to terminate her parental rights.
We find no error here. The trial court found that Mother had not completed her case plan, continued testing positive for drugs even after completing a rehabilitation program, and continued to reside with her abusive partner. In addition, the court specifically addressed KRS 625.090(5) when it stated the following:
Even if this Court had been persuaded that the Petitioner child would not continue to be abused or neglected if returned to parental custody, under the circumstances of this case, this Court is not inclined to exercise the discretion granted to it by KRS 625.090(5) to do so. The child has lingered in foster care long
enough, and is thriving. The Court refuses to gamble with her safety, mental health, and wellbeing. Instead, this Court has concluded that termination of parental rights is in the best interest of the child.The trial court addressed KRS 625.090(5) and chose not to exercise its discretion. We believe this decision was reasonable and find no error.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Mindy G. Wilson
Lexington, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Joseph P. Schuler
Lexington, Kentucky