Opinion
2021-CA-0465-ME
03-25-2022
I.A.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; B.K.F.; AND C.N.F., A CHILD APPELLEES
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, KY
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE DERWIN L. WEBB, JUDGE ACTION NO. 20-AD-500138
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, KY
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND McNEILL, JUDGES.
OPINION
McNEILL, JUDGE
Appellant, I.A.H., is the natural mother (Mother) of four children, only one of whom, C.N.F. (Child), is the subject of the present case. The Commonwealth of Kentucky, Cabinet for Health and Family Services (the Cabinet), became involved with this family when it was reported by hospital staff 1 on March 13, 2018 that Mother lacked prenatal care prior to Child's birth, and that Mother had a pending abuse and neglect case in Alabama. As a result, the Cabinet filed a dependency, neglect, and abuse action (DNA), against Child's parents in Jefferson Family Court, which ultimately resulted in an affirmative finding. The Cabinet subsequently filed a petition for the involuntary termination of parental rights (TPR).
A TPR trial was held on March 12, 2021, via Zoom, during which several witnesses testified, including Mother. After considering the totality of the evidence, the trial court issued an order terminating parental rights. The court further ordered that Child be placed in the custody of the Cabinet as a ward of the state, with the authority to place Child up for adoption. Mother now appeals to this Court as a matter of right.
Zoom is a teleconferencing software program that allows for remote legal proceedings and has been used widely during the COVID-19 pandemic.
In its order, the court found that Child's father, B.K.F. (Father), appeared, under oath and with counsel, before the court on March 12, 2021 and "knowingly and voluntarily consented to the termination of his parental rights in and to [Child], and consented to the adoption of said child."
STANDARD OF REVIEW
We review parental termination cases based upon the clearly erroneous standard set out in CR 52.01. See Cabinet for Health and Family 2 Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). Therein, the Kentucky Supreme Court elaborated on the applicable standard of review as follows:
Kentucky Rules of Civil Procedure.
To begin, we note that the trial court has wide discretion in terminating parental rights. Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010)(citingK.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)). Thus, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. [CR] 52.01. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." T.N.H., 302 S.W.3d at 663.Id. Substantial evidence is 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." Blankenship v. Lloyd Blankenship Coal Company, Inc., 463 S.W.2d 62, 64 (Ky. 1970). With these standards in mind, we turn to the applicable law and facts of the present case.
ANALYSIS
Mother argues that the Cabinet failed to meet its proof at trial and, more specifically, that the Cabinet's efforts at family reunification under KRS625.090(3)(c) were not reasonable because it failed to reasonably accommodate Mother's known disabilities. For the following reasons, we disagree. 3
Kentucky Revised Statutes.
In K.H., the Kentucky Supreme Court observed that "[t]he involuntary termination of parental rights is a scrupulous undertaking that is of the utmost constitutional concern." 423 S.W.3d at 209 (citation omitted). The Court further elaborated as follows:
The U.S. Supreme Court has unequivocally held that a parent has a "fundamental liberty interest" in the care and custody of his or her child. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This fundamental interest "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State . . . ." Id. at 754-55, 102 S.Ct. 1388. Therefore, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id.Id. Under KRS 625.090(1), however, the circuit court may involuntarily terminate all parental rights if the 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;
. . .
(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.4
It is undisputed that Child has been adjudged to be abused or neglected and that the Cabinet has properly filed a TPR petition. Therefore, our analysis is focused on whether termination of Mother's parental rights is in Child's best interest and whether the additional dictates of KRS 625.090(2) have been satisfied.
When determining the best interest of the child as a ground for termination, the circuit court is directed to 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;5
(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.KRS 625.090(3).
KRS 625.090(2) provides that no termination of parental rights shall be ordered unless the circuit court also finds by clear and convincing evidence the existence of one or more of the grounds listed in KRS 625.090(2)(a)-(k). KRS 625.090 additionally provides the circuit court with discretion to consider the following:
(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.
In its order and accompanying nineteen-page findings, the circuit court determined that termination of parental rights was in Child's best interests based on each factor enumerated under KRS 625.090(3), which the court supported 6 with substantial documentary and testimonial evidence. For example, the court specifically found:
[t]here was credible evidence presented that [Mother] suffers from mental illness or mental retardation . . . . According to the Psychological Assessment, [Mother] is diagnosed with Generalized Anxiety Disorder, Posttraumatic Stress Disorder and Borderline Intellectual Functioning. She has a full-scale IQ of 78 and her personality is dominated by avoidance, turbulent, narcissistic and compulsive traits.See KRS 625.090(3)(a). The court also identified KRS 625.090(2) subsections (e), (g), and (j) as pertinent aggravating factors. In support, the court relied on the testimony of the following witnesses called by the Cabinet: Bryant Wheeler, the Cabinet's current caseworker assigned to Mother's case; Kari McCord, an Alabama caseworker; Christine Ortloff, the custodian of Mother's second born child; and Diane Anderson, Child's foster Mother. With the exception of her own testimony, neither Mother nor Child's guardian ad litem called any witnesses on their behalf. We need not belabor the underlying evidence, some of which would be superfluous to cite herein. What is relevant to our review is that there was an abundance of evidence presented supporting the court's decision to terminate Mother's parental rights.
Notably, Mother does not address the weight or character of the evidence presented. Rather, she generally contends that the Cabinet did not modify its standard reunification procedures in a way which would be reasonably 7 necessary to accommodate Mother's disability under the American with Disabilities Act (ADA), and therefore, failed to comport with the requirements of KRS 625.090(3)(c). She more specifically contends that the Cabinet ignored her disability and assigned her the same path to reunification that is given to almost every other parent. However, Mother has failed to indicate that she has properly preserved these issues. See Cabinet for Health and Family Services v. K.S.:
The appellate court in Terry held that "[a]ny claim that the state agency was violating the ADA "must be raised in a timely manner, however, so that reasonable accommodations can be made." Id. at 570. The court further held that if the parent believed the agency was "unreasonably refusing to accommodate a disability, the parent should claim a violation of her rights under the ADA, either when a service plan is adopted or soon afterward." Id. Because the mother in that case did not raise a challenge to the nature of the services until the closing argument at the termination hearing, the appellate court held that it was "too late in the proceedings to raise the issue." Id. at 570-71.585 S.W.3d 202, 215-16 (Ky. 2019) (citing In re Terry, 610 N.W.2d 563, 570-71 (Mich. Ct. App. 2000)). Contrary to Mother's argument, we also believe that the court properly considered whether the Cabinet "made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents . . . ." KRS 625.090(3)(c). Prior to the trial court's termination order at issue here, Mother's case with the Cabinet had been ongoing for several years. Her eldest children had been placed 8 with relatives and her parental rights to her third child had been involuntarily terminated in 2018 by an Alabama court. The record is replete with Mother's inability to complete the tasks necessary for reunification. There is no indication in the record that the Cabinet failed in any way to make reasonable efforts to reunite Mother and Child or that additional time or efforts would have altered the outcome here. We certainly cannot say that the trial court's findings were clearly erroneous.
CONCLUSION
For the foregoing reasons, we hereby affirm the Jefferson Circuit Court's order terminating parental rights entered on April 1, 2021.
ALL CONCUR. 9