Opinion
2021-CA-0105-ME
01-21-2022
I.T. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES AND I.T., A MINOR APPELLEES
BRIEF FOR APPELLANT: Ryan Allison Mt. Sterling, Kentucky SUPPLEMENTAL BRIEF FOR APPELLANT: I.T., pro se Mt. Sterling, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BATH CIRCUIT COURT HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 20-AD-00014
BRIEF FOR APPELLANT:
Ryan Allison
Mt. Sterling, Kentucky
SUPPLEMENTAL BRIEF FOR APPELLANT:
I.T., pro se
Mt. Sterling, Kentucky
BRIEF FOR APPELLEE:
Leslie M. Laupp
Covington, Kentucky
BEFORE: CALDWELL, GOODWTNE, AND LAMBERT, JUDGES.
OPINION
CALDWELL, JUDGE.
I.T. ("Mother") appeals from the involuntary termination of her parental rights to her minor child, I.T. ("Child"). We affirm.
To protect the privacy of Child, we do not refer to Child or his natural parents by name. Child was not formally named as an appellee in the body of the notice of appeal. A child is an indispensable party to an appeal of the involuntary termination of parental rights of that child's parent(s). A.M.W. v. Cabinet for Health and Family Services, 356 S.W.3d 134, 135 (Ky. App. 2011). However, the caption of the notice of appeal here makes reference to "In the interest of I.T., a child" and the child's guardian ad litem is mentioned by name in the body of the notice of appeal and received a copy of the notice of appeal according to the certificate of service. Thus, the notice of appeal substantially complied with Kentucky Rule of Civil Procedure (CR) 73.03 and provided notice that the child is an appellee, so we need not dismiss the appeal for failure to name an indispensable party. M.A.B. v. Cabinet for Health and Family Services, 635 S.W.3d 90, 93 (Ky. 2021) (despite not naming child in notice of appeal, substantial compliance with CR 73.03 because child's guardian ad litem received adequate notice).
FACTUAL AND PROCEDURAL HISTORY
Mother gave birth to Child in February 2019. Shortly after the birth, the Cabinet for Health and Family Services ("Cabinet") received a referral indicating that Child had illegal drugs including methamphetamine in his system. Cabinet workers were informed that Mother had left one hospital while in active labor and then went to another hospital to admit herself under another name. Hospital workers reported that Mother had acted erratically and refused lifesaving care for her newborn son. The Cabinet filed a petition for emergency custody two days after Child's birth.
Child was placed in the Cabinet's custody and entered foster care. Meanwhile, Mother and the Cabinet negotiated a case plan and an agreement for supervised visitation. Mother stipulated to neglect in March 2019 and the district court committed Child to the Cabinet in early May 2019. In April 2020, the Cabinet filed a petition for involuntary termination of Mother's parental rights. The trial court conducted the termination trial via Zoom or similar platform in early October 2020.
The Cabinet presented the testimony of several witnesses - including the ongoing social worker for the case, a clinical psychologist who evaluated Mother, a social worker for the hospital where Mother gave birth, and a person who performed drug screening. The Cabinet also offered documentary evidence -including Child's birth certificate, the certified district court records for Child's DNA case, case plans, court records about the termination of Mother's parental rights to three other children in another county, criminal case court records, the psychologist's written evaluation report, Mother's drug screening records, and records from multiple substance abuse treatment centers where Mother had sought treatment but failed to complete it.
In this context, DNA refers to a dependency, neglect, or abuse proceeding in district court.
Mother offered the testimony of her current therapist at a residential substance abuse treatment facility. The therapist explained that the facility offered dual-diagnosis therapy to address both substance abuse disorder and other mental health challenges. The therapist testified that Mother appeared to be improving recently and that Mother was not currently testing positive for illicit drugs. On cross-examination, the therapist admitted that she had only been treating Mother at the center for a few weeks and that she did not know whether Mother had just been criminally charged for drug-related offenses before being released for treatment at the facility.
Mother also testified on her own behalf. She explained that she had previously sought treatment for substance abuse at several other treatment centers, but she was unable to successfully complete treatment due to these centers not being the right fit for her and because of her tendency to relapse. She believed she was doing well at her current treatment center due to its faith-based nature and having a good rapport with her therapist. She acknowledged she was pregnant and had been so several weeks beforehand when she tested positive for illegal drugs.
Mother admitted on cross-examination that her current enrollment in treatment followed recent drug-related criminal charges. Mother then answered some additional questions from the children's guardian ad litem and the trial court judge about matters including her plans for obtaining treatment and maintaining employment and housing. Then, the trial concluded.
A few weeks later, the trial court entered a written order terminating Mother's parental rights. It also issued findings of fact and conclusions of law explaining its decision. Mother filed a timely appeal.
Mother's attorney filed an Anders brief and a motion to withdraw as counsel, stating there were no meritorious grounds for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012).
Mother's attorney certified that Mother was provided with a copy of the Anders brief and advised of her right to file a supplemental brief. Mother filed a supplemental brief. Further facts will be developed as necessary.
ANALYSIS
Standards Governing Courts in Termination of Parental Rights Cases
Before terminating parental rights, the trial court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, the trial court must find at least one ground of parental unfitness. KRS 625.090(2). Third, termination must be in the child's best interest. KRS 625.090(1)(c). In determining the child's best interests and whether there are ground(s) of parental unfitness, the trial court must consider the factors listed in KRS 625.090(3).
Clear and convincing evidence does not mean uncontradicted proof, but "proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Kentucky Revised Statute.
Termination of parental rights is a grave action which the courts must conduct with "utmost caution." M.E.C. v. Commonwealth, Cabinet for Health and Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008). Thus, the evidence to support termination must be clear and convincing. KRS 625.090; see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (holding due process requires proof by at least clear and convincing evidence for termination of parental rights).
Even so, the decision of a trial court to involuntarily terminate parental rights is accorded great deference on appellate review, and its factual findings are reviewed under the "clearly erroneous" standard of CR 52.01meaning they shall not be disturbed unless they are not supported by substantial evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
CR 52.01 governs "all actions tried upon the facts without a jury" and provides in pertinent part: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."
Before addressing the specific issues raised in the Anders and supplemental briefs, we first note that the trial court made the findings required in KRS 625.090 by clear and convincing evidence - including 1) Child being an abused or neglected child, 2) at least one ground of parental unfitness, and 3) termination being in Child's best interest. Based upon our review of the record, substantial evidence supported its findings - including its finding of at least one ground of parental unfitness: failure or inability to provide essential parental care or protection as set forth in KRS 625.090(2)(e). The trial court also appropriately considered factors listed in KRS 625.090(3) for assessing whether termination was in Child's best interest.
We express no opinion on the merits of its findings of alternate grounds of parental unfitness such as abandonment, see KRS 625.090(2)(a), or failure to provide necessities such as food and medical care, see KRS 625.090(2)(g). So long as other requirements for termination are also met, one properly supported ground of parental unfitness is sufficient to support termination. T.N.H., 302S.W.3d at 663.
Following our independent examination of the record and review of the trial court's KRS 625.090 findings, "we agree with counsel's estimation and perceive no basis warranting relief on appeal." A.C., 362 S.W.3d at 372. Following our directions in A.C., counsel identified potential challenges to the termination decision, though counsel explained why those issues ultimately lack merit in counsel's estimation. Mother also challenged the decision in her supplemental brief. We address the arguments for reversal below, although we ultimately affirm.
Anders Brief Identification of Potential Arguments
Mother's counsel notes that there were no objections made to any of the trial court's actions or rulings at trial or the admission of any evidence. But counsel identifies some potential arguments for appeal - such as the trial court's having somehow abused its discretion - although counsel explains why such arguments would not likely succeed.
Mother's counsel characterizes Mother's frequent enrollments in substance abuse treatment programs as the best argument that Mother could provide care for Child. And counsel points to the testimony of Mother's current therapist at trial that Mother was improving and would likely continue to improve.
But counsel acknowledges evidence of Mother's frequently leaving inpatient treatment against medical advice to go to outpatient treatment instead. Also, counsel points to the clinical psychologist's testimony about Mother's other significant mental health problems and how those may have contributed to her not completing treatment. Counsel also notes the psychologist's testimony that Mother would need both medication and long-term therapy for her mental health.
Counsel points out that Mother testified to receiving no direction about receiving therapy or medication from social workers after she was assessed by the clinical psychologist. Counsel states that Mother attended some mental health classes but never received the medication and therapy regimen suggested by the psychologist. Counsel also asserts that Mother was compliant with case planning. (We note, however, that the trial court found Mother did not fully comply with case plan requirements and this finding is supported by the ongoing social worker's testimony.)
Mother's counsel suggests that perhaps some accommodations should have been made for her mental health challenges in case planning. But counsel notes that such accommodations should have been requested when denied or not offered. See Cabinet for Health and Family Servs. v. K.S., 585 S.W.3d 202, 215-16 (Ky. 2019). And counsel states: "That challenge was not done here due to the erratic enrollment of [Mother] into and disengagement from various treatment programs." (Anders brief, p. 10.) Counsel seemingly concedes that requests for accommodations for mental health challenges were not timely made. Counsel also points out that the testifying psychologist opined there were no guarantees about Mother's prospects for improvement due to her having some sort of pervasive personality disorder.
Despite the potential arguments identified in the Anders brief, Mother's counsel concedes that it is difficult to argue that termination was not in Child's best interest based on the testimony and pleadings. We agree.
Mother's Arguments in her Supplemental Brief
In her supplemental brief, Mother follows up on the potential arguments identified by counsel and explains why she believes there are reasons to reverse the termination of her parental rights. We appreciate Mother expressing to this Court "her side of the story." But the issues and concerns she raises are, unfortunately for her, not sufficient to merit reversal of the trial court's decision.
Mother points to her frequently entering substance abuse treatment programs and to her attending parenting classes as evidence of her attempts to improve and to maintain sobriety. She emphasizes the testimony of her therapist about her progress in the weeks leading up to trial. Mother also contends that she left treatment on some occasions for other health reasons such as for treatment of skin problems. She characterizes some of the treatment programs where she began but did not complete treatment as toxic environments which did not address her needs or help her to prevent relapses. And she argues that despite her failures to complete treatment, she kept trying to address her problems.
Though we appreciate that Mother provided context from her perspective on why she failed to complete substance abuse treatment programs, substantial evidence supported the trial court's findings that Mother had been unable to provide the care Child needed in the past and was unlikely to be able to provide such care within a reasonable time. As the trial court pointed out, Mother had just begun her current treatment program a few weeks before trial but Child had been in foster care practically his entire young life.
Next, Mother says that she was living with her father in a clean and appropriate house for Child - apparently meaning at the time of trial. She suggests she would soon be able to get her own clean and appropriate two-bedroom apartment. She also asserts that she had been working by braiding hair and babysitting for friends, along with seeking other work from employers like Amazon - although she had to quit a previous job due to lack of transportation when she lost her car.
While these assertions provide some context, and may reflect commendable recent progress by Mother, there were still significant concerns about Mother's mental health and ability to maintain sobriety at the time of trial based on evidence which included testimony from the ongoing social worker and clinical psychologist. Thus, the trial court's finding that Mother was not able to safely parent Child due to unresolved substance abuse and mental health issues was not clearly erroneous.
Mother claims she was compliant with case plans. She also asserts the ongoing social worker did not follow up with her after the psychologist's evaluation, which included recommendations for both medication and therapy.
While there was some evidence of compliance with some case plan requirements, the ongoing social worker testified to several case plan requirements which Mother failed to meet. The social worker also testified that she provided referrals, but she could not make Mother attend appointments or follow through with completing requirements. The trial court found that Mother failed to fully comply with all case plan requirements. To the extent that the trial court found the social worker's testimony more persuasive than Mother's, we cannot second guess its judgment since substantial evidence supports its factual findings. Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003) (Court of Appeals cannot disturb factual findings unless clearly erroneous, meaning unsupported by substantial evidence "because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.").
Mother also points out that perhaps some findings in the psychologist's evaluation may have been influenced by Mother being in a drug-induced state at the time. And she suggests that a year or so of sobriety may be necessary before accurate mental health diagnoses can be rendered. These assertions may be valid, but they do not address how Mother would have been able to provide essential parental care and protection for Child within a reasonable time.
Mother also claims that she told the social worker the name of Child's father but that the social worker did not pursue getting an order for a genetic test to verify paternity. (No father was identified on Child's birth certificate.) She asserts she gave the social worker names of other family members for potential placement of Child, but the social worker refused to consider them.
We note that the social worker testified to Mother giving her names but no contact information for Child's father, and that the social worker looked on the Putative Father Registry but saw no one identified there as Child's putative father. In any event, the rights of Child's father are not before us in this appeal from the termination of Mother's parental rights. And questions of relative placement were no longer relevant by the time of the termination trial, as KRS 625.090 does not list such placement issues as a factor to consider when a trial court rules on a petition for involuntary termination of parental rights. A.R.D. v. Cabinet for Health and Family Servs., 606 S.W.3d 105, 107 (Ky. App. 2020).
Mother explains that she missed some supervised visits because of lack of transportation or because she was in inpatient treatment. She also says that she tried to buy clothes and toys for Child. She also claims she was not aware of her right to attend Child's medical appointments, so that is why she did not attend them. She believes that the social worker was not fully honest with her or with the trial court and that the social worker only made one referral. She suggests that the only effective treatment she received was obtained on her own initiative. Mother also points out her history of being a victim of domestic violence and suggests that is why she tried to enter the hospital under another name for Child's birth. She asserts she lacked options and support during or after proceedings to terminate her parental rights to her other children.
Again, we appreciate being advised of Mother's perspective -however, the trial court's finding that Mother was previously unable to safely provide care for Child is supported by substantial evidence. And there was also substantial evidence to support the trial court's finding that there were no reasonable expectations of improvement in her ability to provide essential parental care and protection within a reasonable time given Child's age - for example, the ongoing social worker's testimony.
Mother asserts that she graduated from long-term residential treatment at Karen's Place in March 2021, has started outpatient services, attends support meetings via Zoom, and has been employed for a few months. She also thanks the foster mother for caring for Child. Though these statements reflect encouraging progress by Mother, particularly after the termination trial, these factors simply were not part of the evidence presented to the trial court.
Based on the evidence presented to the trial court and applicable law, we see no reversible error in the trial court's judgment. Though we commend Mother's making the effort to file a supplemental brief and improve her life, her arguments do not convince us that the trial court committed any reversible error. Any issues or arguments raised in briefs which we have not discussed in this Opinion have been determined to lack merit or relevancy to resolving this appeal.
CONCLUSION
For the foregoing reasons, the judgment of the Bath Circuit Court is affirmed. By separate order, we grant Mother's counsel's motion to withdraw.
ALL CONCUR.