Opinion
2021-CA-1454-ME 2021-CA-1458-ME
07-01-2022
J.E.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; C.L.K.; AND S.J.K., A MINOR CHILD APPELLEES AND J.E.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; C.L.K.; AND S.I.K., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE DERWIN L. WEBB, JUDGE ACTION NOS. 20-AD-500435T, 20-AD-500436T
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky
BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.
OPINION
CETRULO, JUDGE
The Jefferson Circuit Court granted the petitions of the Appellee, Cabinet for Health and Family Services (the "Cabinet"), for termination of parental rights of Appellant J.E.K. ("Father") and C.L.K. ("Mother"), the biological parents of S.J.K. and S.I.K. (the "children"). The Cabinet filed petitions individually for each of the children, and both orders terminating parental rights were consolidated in this appeal. After reviewing the record and the applicable law, we affirm.
I. BACKGROUND
Father and Mother had two children: S.J.K. (the "Older Child") was born in December 2012 and S.I.K. (the "Younger Child") was born in December 2017. The termination hearing for both parents began in May 2021 and was completed in August 2021. Mother voluntarily terminated her parental rights in May 2021. The hearing was continued to August 2021, so Father had more time to prepare. At the August 2021 hearing, Leigh Sullivan, the children's social worker ("SW Sullivan") testified on behalf of the Cabinet. Also at this hearing was counsel for the Cabinet, the guardian ad litem for the children, Father's counsel, and Father.
Mother was not present at the August 2021 hearing and is not a party to this appeal.
The Cabinet became involved with the family in 2016 when the Louisville Metro Police Department arrested Mother for harassment and two counts of theft by unlawful taking. After her arrest, the Cabinet determined that the Older Child (the Younger Child was not yet born) was without an appropriate caregiver and obtained an emergency custody order placing the Older Child in the Cabinet's care. As the Cabinet worked with Mother toward reunification, Father did not appear before the court and was ordered to have no contact with the Older Child. At Mother's pretrial conference in February 2017, it was noted that Father "may be residing at a halfway house following his release from incarceration." At Mother's April 2017 trial, the Cabinet noted their social worker had made contact with Father; he acknowledged a history of abusing marijuana and alcohol, but said he had been sober since his incarceration in March 2015.
During a dispositional hearing in June 2017, Father appeared and was granted unsupervised visitation. In August 2017, Father motioned for custody of the Older Child, there were no objections, and the Older Child was returned to the custody of Father. The Cabinet closed its case in October 2017. In December 2017, Mother motioned for and was granted joint custody of the Older Child and the Younger Child was born.
Just seven months later, on July 10, 2018, the DEA and Louisville Metro Police S.W.A.T. raided Father's home. At the time of the raid, Mother was not present, but five children were present, including the Younger Child and the Older Child. Following the raid, Father was arrested on federal charges of distribution of methamphetamine and possession of a firearm. He continuously remained in federal custody from the time of the raid up until the termination hearing, and after.
United States Drug Enforcement Administration.
The Cabinet learned that Father, Mother, and the children had been living in a small house with Father's paramour and her six children. One of the paramour's six children was a severely disabled two-year-old who required 24-hour care and supervision. Mother had allegedly moved out of the home, leaving the children with Father, his paramour, and her six children.
On July 18, 2018, the Cabinet filed a dependency, neglect, or abuse (DNA) petition in Jefferson County ("DNA Petition"), alleging the children were abused and neglected pursuant to KRS 600.020. According to this DNA Petition, the Cabinet had received a report in May 2018 - before the raid - alleging that Father was neglecting the children. After Father's arrest, on July 26, 2018, the Cabinet placed the children on supervised placement with Mother, and Father was again ordered to have no contact with the children. On August 14, 2018, the Cabinet filed a motion to remove the children from Mother's custody, revealing the children's hair follicle drug screens of July 28, 2018 tested positive for amphetamine, methamphetamine, and cocaine. Thereafter, the children were removed from Mother's custody and have continuously remained in the Cabinet's care since August 2018.
Kentucky Revised Statute.
In October 2018, Mother stipulated that the children were abused and/or neglected for her failure to remove them from a home where she knew they were exposed to drugs. In April 2019, the Jefferson Circuit Court found that Father's criminal activities in the presence of the children placed them at risk of abuse and/or neglect. A separate dispositional hearing was waived, and the children were committed to the Cabinet.
At the August 2021 parental termination hearing, SW Sullivan testified that Father had harmed the children due to (1) their exposure to the illegal drugs, (2) the presence of loaded guns in the home, and (3) the arrest itself. When asked if the raid was specifically harmful to the Older Child, SW Sullivan answered, "I believe it was, yes." She testified that the Older Child had discussed the arrest with his therapist and expressed that it was "a very frightening experience" for him.
Since his arrest, SW Sullivan testified that Father had maintained contact with her and attempted to assist in the children's placement. Father recommended his cousin in North Carolina as the children's guardian, but after a home visit, the cousin was not approved by the Cabinet. SW Sullivan testified that Father was unable to meet the terms of his case plan, which required him to take a substance abuse assessment and follow all recommendations; participate in a parenting assessment and follow all recommendations; complete the Batterers Intervention Program because he had a "lengthy history of violence . . . in the home towards both his wife and his live-in girlfriend, including episodes where the children were present and they had witnessed this violence"; and additional requirements to be completed upon his release from incarceration.
SW Sullivan testified that after an inter-state home study, the Cabinet did not approve the cousin as temporary guardian because (1) the home was too small, and (2) the cousin was "in a relationship with a live-in paramour and there was violence in that relationship."
SW Sullivan described the Older Child as a "very traumatized child" with mental health issues. She testified that the Older Child came into care with numerous behavioral issues; he was very aggressive toward himself and others; and he showed self-harm behaviors and sexualized behavior. The Older Child was seen as a threat to the Younger Child and as a result the children were separated upon placement with foster families. Since placement, the Older Child has been hospitalized multiple times for psychiatric reasons. As of the date of the August 2021 hearing, the Older Child was still on psychiatric medication and attending therapy. Upon placement, the Older Child was given a psychological evaluation that found he was of average intelligence, suffered from PTSD, oppositional defiant disorder, and "perhaps mild autism."
Post-traumatic stress disorder, which SW Sullivan testified is an anxiety disorder.
SW Sullivan testified that as of the time of the hearing, the Older Child had shown dramatic improvement and was "doing great." In fact, SW Sullivan testified that since placement with his foster family, the Older Child had shown "significant progress in terms of his mental health," so much so, that she could not verify he would still show signs of oppositional defiant disorder and/or autism if re-evaluated. SW Sullivan testified that the Older Child would continue with occupational therapy while in the foster family's care. SW Sullivan was vehement that he had bonded with his foster family.
SW Sullivan testified that, upon placement, the Younger Child had difficulty sleeping, was "very colicky," and "cried a great deal." Because he was a nine-month-old, verifying the source of those problems was difficult; however, those difficulties resolved very quickly after placement, and he has not had any issues since. SW Sullivan testified that, as of the termination hearing, the Younger Child had been with his foster family for 16 months and had bonded with his foster family. Although the children have not had much contact with each other since placement, both sets of foster parents are open to re-establishing that relationship.
Father testified during the August 2021 hearing on his own behalf. He stated that there were various parenting and substance abuse classes available while incarcerated, but due to the COVID-19 pandemic, he was on the waitlist for those courses. He said he maintained contact with the Cabinet to the best of his ability while incarcerated. He contested the location of the loaded gun found during his arrest and stated it was in a cabinet and not "in the kids' area." He also stated that no drugs were found inside the house and that he did not "have a drug problem," but he admitted that he was arrested for distribution of methamphetamine and possession of a firearm. He said the raid was less dramatic than the Cabinet implied and that he walked outside when the police came to his door; he stated law enforcement did not come in with "guns blazing."
Inside/Outside Dads and Substance Abuse Program (SAP).
SW Sullivan testified that there are no other services that the Cabinet could offer to Father that could bring about the reunification of this family in a timely manner. Therefore, the Cabinet recommended termination of Father's parental rights. In November 2021, the Jefferson Circuit Court entered an order terminating Father's parental rights as to both children. The circuit court "found by clear and convincing evidence" that both children had been abused or neglected, as defined by KRS 600.020(1); termination of parental rights was in the best interests of the children; and Father had met at least one of the enumerated factors in KRS 625.090(2). This appeal followed. The Jefferson Circuit Court's November 2021 findings of fact and conclusions of law, supporting the order, will be discussed in more detail below. The Cabinet's argument will not be discussed, as no appellate brief was filed on its behalf. We find the Cabinet's failure to timely file a brief to be an egregious error, not to be repeated.
II. STANDARD OF REVIEW
We use the clearly erroneous standard when reviewing whether the termination of parental rights was lawful. C.J.M. v. Cabinet for Health and Fam. Servs., 389 S.W.3d 155, 160 (Ky. App. 2012). "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." Cabinet for Health and Fam. Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (internal quotation marks and citation omitted); see also CR 52.01. Substantial evidence is evidence 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 Co., Inc., 463 S.W.2d 62, 64 (Ky. 1970).
Kentucky Rule of Civil Procedure.
III. ANALYSIS
"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." M.E.C. v. Commonwealth, Cabinet for Health and Fam. Servs., 254 S.W.3d 846, 850 (Ky. App. 2008).
KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.K.H., 423 S.W.3d at 209.
A. ADJUDGED ABUSED/NEGLECTED
As previously discussed, on April 11, 2019, the Jefferson Circuit Court adjudged that Father's criminal activities in the presence of the children placed them at risk of abuse and/or neglect. This first element is easily assessed and met.
B. BEST INTERESTS: KRS 625.090(3)
KRS 625.090(3)(a)-(f) outline the six factors a circuit court must consider when determining the child's best interest and a ground for termination. See K.H., 423 S.W.3d at 212. The circuit court does not need to specifically address each factor, as long as the court's findings reflect that each factor was properly considered. Id.
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.
First, KRS 625.090(3)(a), relating to a parent's mental illness, is not a factor here; therefore, we will focus on the remaining factors.
Second, applying KRS 625.090(3)(b), the court found "the totality of the evidence presented at trial is sufficient to convince this Court that [Father's] children have been abused or neglected[.]" The children had been "subjected to scenes of criminal activity in the home, to substance abuse by their caregivers, and to neglect of their material, emotional and healthcare needs." Father did not comply with the court's remedial orders, nor complete the case plan, nor show he was capable of materially supporting the children.
Third, applying KRS 625.090(3)(c), the court determined that the Cabinet made reasonable efforts to reunite the family; the Cabinet made referrals to substance abuse counseling, mental health treatment, random drug screens, supervised visitation sessions, case planning, and various other services. Father argues that he tried to assist the Cabinet with a familial placement for the children; however, the Cabinet took steps to investigate and approve the family member, but deemed the home to be unfit. SW Sullivan testified that she was unaware of any other services the Cabinet could provide Father to allow for a safe reunification within a reasonable period of time considering the ages of the children.
Fourth, under KRS 625.090(3)(d), the court determined that Father did not show that he made sufficient efforts and adjustments in his circumstances, conduct, or conditions to make it in the child's best interest to return him within a reasonable period of time. "[Father] has not been fully compliant with the Court's remedial orders out of the aforesaid DNA actions, particularly with respect to parenting and substance abuse[.]" Father mentioned he was planning to take those courses while incarcerated, but he did not put forth any proof of completion. As a result, the children have been unable to be safely returned to Father's care and instead, have remained in the Cabinet's care for not less than 36 months.
Fifth, under KRS 625.090(3)(e), it is abundantly clear that the children's physical, mental, and emotional needs have been met, and significantly improved, while in the Cabinet's care. The record shows the Older Child, in particular, was damaged by the conduct of the Father. Upon removal from Father's custody, the Older Child showed severe psychological issues requiring hospitalization, therapy, and medication. While in the Cabinet's care, the Older Child's foster family has been proactive in treating and supporting his mental health. The family has bonded as a unit, and they wish to adopt him. The Younger Child too has shown improvement in his health and is on track educationally. He too is attached to his foster mother, and she wishes to adopt him as well. Indeed, the young children have been in the care of the Cabinet since August 2018, and were placed with their foster families soon after; removing them under these circumstances would likely be detrimental to the children's physical, mental, and emotional health.
Lastly, KRS 625.090(3)(f) takes into account "payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." Father "has not paid any child support, any substitute financial assistance or otherwise provided his children with material necessities of life" since the children were removed from his home. The court aptly points out that a "parent must assume the burden of supporting his children if he is physically capable of so doing through any kind of legitimate endeavor, and that he may not pass the burden to the state merely because there are some limitations upon his ability to compete freely in the labor market." Barnes v. Turner, 280 S.W.2d 185, 187 (Ky. 1955). It is the parents' duty to support his child regardless of whether or not a child support order has been entered against the parent. KRS 205.710(5).
Clearly, the circuit court considered the factors of KRS 625.090(3) when analyzing the best interest of the children. We agree with the court that "[f]rom the totality of the evidence presented, this Court is not persuaded that the . . . children would not continue to be abused or neglected . . . if returned to [Father's] custody. . . . [T]ermination of parental rights is in the best interests of the [] children." Therefore, the court did not err in finding parental termination was in the best interests of the children.
C. GROUNDS FOR TERMINATION: KRS 625.090(2)
Kentucky law requires the existence of at least one factor enumerated in KRS 625.090(2). Here, the circuit court found that three of the factors in this statute were present. However, because only one factor is required, we need only address KRS 625.090(2)(g). Father's only applicable argument on appeal was that there was not sufficient evidence to support the finding regarding KRS 625.090(2)(g); as will become apparent, we disagree. KRS 625.090(2)(g) provides:
No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence . . .
(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[.]
When analyzing termination of parental rights in general, the court must consider more than incarceration alone. M.P.R. v. Cabinet for Health and Fam. Servs., 520 S.W.3d 409, 414 (Ky. App. 2017). In fact,
Kentucky case law does not favor termination of parental rights based solely on an isolated instance of incarceration, but clearly incarceration is something to be considered among all other factual circumstances. Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995).A.R.D. v. Cabinet for Health and Fam. Servs., 606 S.W.3d 105, 111 (Ky. App. 2020). Further, "a parent's choosing a 'criminal lifestyle' which results in him being incarcerated and creating risks of physical or mental injury to his children can be construed as neglecting a child." Id. (citation omitted). Indeed, a parent's repeated criminal history is a relevant factor to consider in a parental termination hearing. Id. at 112.
Here the circuit court found "overwhelming evidence" supporting termination of Father's parental rights. Looking specifically at KRS 625.090(2)(g), the circuit court found Father's
failure or inability to meet the material needs of his children is due to his engagement in a criminal lifestyle that is incompatible with parenting and which resulted in his current incarceration in federal prison. . . . [I]t is clear that [Father's] on-going failure or inability to provide [the children] with material necessities of life is "for reasons other than poverty alone."
Supporting this supposition, the record shows a pattern of criminal behavior with at least six arrests since 2006, including charges of domestic violence and drug-related crimes. During Father's most recent arrest, law enforcement found - according to the DNA Petition - at least one of the four loaded guns within reach of the children. Father contested that fact, stating the gun was not found in the "kids' area." However, Father's position substantiates the Cabinet's argument that he is incapable of seeing the danger in which he continually placed his children.
Further, the circuit court found Father did not make sufficient progress on the court-approved case plan, nor "avail[] himself of the services provided by the Cabinet." He has not shown proof that he fully engaged in treatment offered while incarcerated; he admitted to signing up for SAP only because it took a year off of his sentence - not for substance abuse assistance - despite his drug-related arrests spanning more than a decade. Father has not put forth any evidence to show he has "reform[ed] the behaviors which led to the removal of [his] children." We agree with the circuit court that "there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future[.]" Therefore, the court did not err in finding that at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(k) exists.
CONCLUSION
For reasons contained herein, we AFFIRM the order of the Jefferson Circuit Court to terminate Father's parental rights.
ALL CONCUR.