Opinion
2021-CA-0778-ME
01-21-2022
J.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; D.M.K., A MINOR CHILD; AND J.M.S.B. APPELLEES
BRIEFS FOR APPELLANT: Jennifer B. Landry Ft. Mitchell, Kentucky BRIEF FOR APPELLEE: Kevin J. Martz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT HONORABLE LINDA R. BRAMLAGE, JUDGE ACTION NO. 20-AD-00030
BRIEFS FOR APPELLANT: Jennifer B. Landry Ft. Mitchell, Kentucky
BRIEF FOR APPELLEE: Kevin J. Martz Covington, Kentucky
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
OPINION
COMBS, JUDGE:
This case involves the termination of the parental rights of a mother and her minor child. J.K. (Mother) appeals from a judgment of the Boone Family Court that terminated her parental rights. After our very careful review, we reverse the judgment of the family court and remand for further proceedings.
Mother and J.M.S.B. (Father) are the parents of D.M.K., the minor child, a male born on February 20, 2009. D.M.K. came into the Cabinet's care because Mother voluntarily contacted the Cabinet on November 27, 2017, asking that her children be put in foster care because she was homeless and unable to meet their needs. The case before us involves only D.M.K.
Father's parental rights were also terminated and he has not appealed.
Mother has one other child, P.K., a female born in 2015. P.K. has a different father and was subsequently released to his custody. An order entered on January 21, 2020, in the underlying dependency, neglect, and abuse case (No. 17-J-00579-001) in the interest of P.K. reflects that she was placed in the temporary custody of her father. Mother was to have supervised parenting time. (Exhibit 8, certified court records.)
Some weeks later, on November 30, 2017, the Cabinet filed a petition in the underlying dependency, neglect, and abuse (DNA) case in the interest of D.M.K., No. 17-J-00578-001, alleging as follows:
[Mother] is habitually homeless and unable to provide care for her children at this time. [D.M.K.] was observed to be in the care-taking role of his younger sister [P.K.]. [The Cabinet] has concerns related to [Mother's] mental health and possible substance use. [Mother] has multiple prior substantiated reports related to supervision and neglect. [D.M.K.] has excessive absenteeism at school. [Mother] contacted [the Cabinet] on 11/27/2017 and asked to put her children in foster care due to an inability to meet their needs at this time.
By order entered on November 30, 2017, the children were placed in the temporary custody of the Cabinet. At a hearing on January 2, 2018, counsel for Mother admitted dependency on her part. The Cabinet moved to amend the petition to proceed on dependency alone and to withdraw the charges of neglect or abuse. The Cabinet's witness, Ciara Jackson, testified that the children were placed in a foster home after Mother had expressed interest in placing them in foster care because they had no place to live. Mother and the children had been living in a hotel, but they would (soon) be living in a car. Ms. Jackson testified that Mother did not have any other relevant history with the Cabinet.
The court made a finding of dependency as to Mother with regard to both children. An abbreviated notation on the January 2, 2018, docket sheet reflects that with regard to both children, the court made a finding of dependency and that abuse and neglect were withdrawn ~ thus granting the Cabinet's motion to amend. In its January 23, 2018, disposition hearing order, the court made a finding of dependency. No finding of neglect or abuse was made against Mother in the underlying DNA cases as to either child.
On February 27, 2020, the Cabinet filed a petition for the involuntary termination of parental rights (TPR) in the interest of D.M.K., which is the subject of this appeal. At that time, the child was 11 years of age. He was residing in a state-approved foster home and had been in the Cabinet's care since November 27, 2017. By order entered on March 2, 2020, the court appointed a guardian ad litem for the child.
On May 18, 2021, the family court conducted a hearing on the Cabinet's TPR petition. The Cabinet presented testimony from two ongoing workers, Ashley Clarke and Lauren Jones. Mother and Father also testified.
Ashley Clarke testified that she was assigned to the case from January 2018 until early 2019. She was not familiar with the file after early 2019. Initially, Mother was living out of state, and they made contact by phone and text. Mother reported trying to establish a career working in (state) parks. In April 2018, they met in person and a visitation schedule was arranged. Mother did not want the Cabinet to supervise visitation, but an individual was approved by the Cabinet to oversee weekly visitation.
At that time, the child, D.M.K., was in a residential facility. His sister was in a foster home and the foster parents brought her to the facility for visitation.
Ms. Clarke testified that Mother stopped visiting in July 2018. She reported that she had to attend a couple of funerals. In late August, Mother contacted the foster parents attempting to set up a visitation. A request was made for the Cabinet to supervise a visit on Halloween of 2018, but it was too late in the day to arrange a visit. The Cabinet tried to set up visitation again, but the person who had previously been approved could no longer supervise. However, a friend suggested by Mother had not been approved.
Mother's case plan assigned her several tasks: to address visitation, to undergo a UK-TAP assessment, to submit to random drug screening, and to obtain stable employment and housing. During the time that Ms. Clarke had the case, Mother did not report having secured permanent housing, and she had not completed the UK-TAP assessment. She did report employment at Home Depot and Speedway in the period April-July 2018. Ms. Clarke did not know specifically if Mother was required to submit pay stubs as part of her case plan.
UK-TAP is an acronym for the University of Kentucky Targeted Assessment Program. See Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 456 (Ky. 2021).
Ms. Clarke testified that Mother did not do a drug screen on a regular basis. An initial screen performed early in this time period had been dilute positive for Oxycodone. There was a series of negative drug screens after that report, but then Mother stopped taking some screens. In April 2018, there was a positive screen for THC. After that positive finding, Mother tested negative from time to time, but she missed screens in between.
The last face-to-face visit that Ms. Clarke had with Mother was July 30, 2018. Their contact was periodic and indirect after that ~ by phone, email, and text. Ms. Clarke testified that there were periods of 90 days or more during which Mother did not see the child.
On cross-examination, Ms. Clarke explained that when she was working the case, Mother did maintain contact with her. "It wasn't always consistent but yes." Ms. Clarke now testified that she "did not believe" that more than 90 days lapsed without contact. Mother did express that she wanted to work her plan and regain custody. Ms. Clarke was not aware of any neglect or abuse findings by the court against Mother. Ms. Clarke did not recall any specific deadlines in the case plan for Mother to obtain stable housing or to maintain stable employment; there was no requirement that Mother complete the UK-TAP assessment by a certain date. Ms. Clarke did not know if there was an order for child support while she had the case.
Lauren Jones was assigned to the case in April 2019. She testified that Mother had a written case plan with goals similar to those of the previous plan: to maintain stable housing and employment, to continue to submit to random drug screens, and to complete the UK-TAP assessment and to follow its recommendations. At that time, Mother was allowed visitation every Sunday supervised by a Cabinet-approved supervisor ~ and she was doing that. From mid-May until December 2019, however, Ms. Jones was unable to contact Mother, and she did not have visits with the child.
In January 2020, Ms. Jones re-established phone contact with Mother after Mother had emailed the Cabinet about the possibility of her becoming a foster parent. Mother missed scheduled meetings with Ms. Jones in January and March 2020. In late July 2020, Mother contacted Ms. Jones personally. They had a virtual visit in August 2020 and completed a case plan. Mother's primary concern was re-starting visits. They got an order for therapeutic visitation due to the length of time that had passed. Those visits ~ from August through December 2020 ~ "went well." Mother missed only one visit. After December 2020, the therapist recommended moving to supervised visitation not in a therapeutic setting. That transition began in February 2021 ~ every other Wednesday for two hours ~ and was ongoing at the time of the hearing. Mother had missed two visits, one reported as due to oversleeping.
Ms. Jones testified that Mother has not provided proof of stable housing ~ although she reported having stable housing. In order to verify that fact, Ms. Jones would be required to walk through, see the home, and talk to people who live there. Ms. Jones has yet to see the home, offering no reason ~ other than that they just have not scheduled it yet. Ms. Jones last met with Mother "yesterday" virtually.
Mother received a second UK-TAP referral. She did complete the assessment. But because she did not complete the recommendation for individual therapy, the assessor closed the case. According to Ms. Jones, Mother reported that she was not interested in doing therapy. Mother reported "yesterday" that she will be getting benefits at work and will be able to start therapy. Mother is now working at Bosch. She has not provided pay stubs; there is no record, however, that she was asked to do so.
Ms. Jones testified that Mother currently was scheduled to drug screen six to eight times per month. Mother completed three screens in April that were negative, but they did not occur on the days that Mother had been required to screen. According to Ms. Jones, substance abuse is still a concern because Mother had tested positive for methamphetamines in February 2019, and she has not undergone drug screening consistently.
Ms. Jones testified that she has concerns about the return of the child to Mother's custody due to: lack of consistency with drug screening, lack of follow-through with recommendations for individual therapy, and the missed visits. During the time that Ms. Jones has had the case, Mother has gone at least 90 days without visits and has not provided any kind of parental care or regular provisions for the child. Mother did bring a birthday cake on one visit and a pot roast on another visit this year. Ms. Jones does not have any expectation of improvement in Mother's ability to provide parental care or provisions for the child. Ms. Jones also has concerns about stability and possible substance abuse. In March of 2020, when the TPR petition was filed, the child had been in the Cabinet's care continuously for more than 15 months. Ms. Jones did not think that there was anything the Cabinet could do to facilitate the child's return to Mother or to offer any additional services that had not been provided already.
Ms. Jones characterized D.M.K.'s placement history as "not great." She testified that he has "disrupted from" several placements and has been moved several times. The child was first in a foster home, then a residential facility in 2018 for approximately six months, and in foster placements since that time. According to Ms. Jones, the child has Attention Deficit Hyperactivity Disorder (ADHD), and she believes that he was previously diagnosed with oppositional defiant disorder.
Ms. Jones testified that the child had been in his current foster home for about one month. The current placement is consecutive to placement with a relative of the child's father, which lasted for only two weeks in March 2021. He is in therapy. When the child was placed in his current foster home, a new therapist was obtained. Since this new therapist had been a previous case manager of the child's, they already had a connection.
Ms. Jones saw the child in his current foster placement "last Thursday." She has no concerns with the current placement at this time. Asked what the plan is going forward, Ms. Jones testified that "this placement is a potentially adoptive home. [The child] seems to be adjusting well, he's fitting in with the other kids well, and the foster father really didn't have anything negative to say." There is no foster mother in the home. A single father is the foster custodian. Ms. Jones believes that there are three other boys in the home; D.M.K. is the youngest. Asked what she means by a "potentially-adoptive home," Ms. Jones explained that "they are open to adopting, they took on this placement knowing that it was potentially adoptive." At the time of the hearing, the child was 12 years of age. Ms. Jones is optimistic about his prospects for improvement and permanency.
On cross-examination, Ms. Jones testified that the child has been in five foster homes and one residential placement over a period of not quite four years. If the current home does not become an adoptive home, the Cabinet would continue to seek permanency on the child's behalf. Ms. Jones acknowledged that if parental rights are terminated without an adoption, the child would likely continue to bounce from one foster home to another, a reality that would not create a stable situation. She acknowledged that this constant transition from one foster home in the absence of permanency would not be in his best interests.
Ms. Jones confirmed that there has never been a finding of abuse or neglect against Mother in reference to this child or any other child. She was not aware that a child support order for Mother went into place last year or that Mother was current on payments. Ms. Jones has not yet scheduled a walk-through of Mother's residence ~ although she was aware Mother had lived there for several years. She has not specifically requested paystubs from Mother's employment. Ms. Jones acknowledged that Mother reported having current employment and housing, that she completed the UK-TAP assessment, and that she will be receiving medical insurance through her employment. She would agree these are great improvements from where Mother has been in the past. Ms. Jones was aware that Mother has had regular contact with the UK-TAP worker, and she has maintained contact with Ms. Jones as well. Ms. Jones did not set a timeline for any of the accomplishments of the case plan.
When Ms. Jones was asked about the interaction between Mother and the child, she testified as follows:
Mother's counsel: On your visits that you witnessed [the child] and Mom interacting, did he appear to be happy to see Mom?
Ms. Jones: He was very happy to see his mom.
Mother's counsel: So you would agree that they're fairly bonded?
Ms. Jones: Yes, they are bonded.
Mother's counsel: Have you had the opportunity to witness any type of bond between [the child] and his current placement?
Ms. Jones: Just on my virtual visits.
Mother's counsel: So you would not be able to testify today whether or not they're bonded?
Ms. Jones: Not at this time.
Mother's counsel: Would you anticipate that they have a bond based on the short duration of the stay?
Ms. Jones: I would say that they have some bond. I don't know that they're [inaudible].(Emphases added.)
Mother testified. She pays child support in the amount of $60.00 per month that was ordered in August 2020 and she is current on her payments. Mother has lived at the same address for the last several years in a house with three or possibly four bedrooms, which she formerly shared with her supervisor. She lives there alone at present. There is a bedroom available for the child. Mother completed her UK-TAP assessment in September 2020. Part of the assessment was for therapy. Mother testified that the therapist whose name was provided by UK required medical insurance, which she did not have at that time. But Mother's medical coverage through work will begin "this week." She is currently employed at Bosch. She works 5:00 p.m.-5:00 a.m. Thursday through Sunday. She previously worked at Wayfair, Home Depot, and Speedway. She left her prior employments for better opportunities.
A child support payment history from the Boone County Child Support Office was filed by Mother as a supplemental pre-trial compliance on March 29, 2021.
Mother testified that the child is "very happy" to see her at visitation and that they enjoy their time together. Her current visitation schedule is in person once every two weeks for two hours ~ plus virtual visits for 30 minutes on Tuesdays. Mother explained that it has taken time for her to take care of things and to be on her own. She has paid off debt, she is setting up the child's room, and she is trying to work as many hours as she can to have a "rainy day fund" and provide for bills. Mother testified that she is currently making a little over $18.00 per hour and that she now can provide for the child's basic needs. Mother candidly acknowledged she has had issues in the past, that there was period of time when she did not have contact, that she had not drug screened consistently, and that she would rather not enroll in therapy. However, Mother testified that she is willing to do "whatever" she needs to do now.
Nonetheless, on June 2, 2021, the family court entered findings of fact and conclusions of law (FFCL) and judgment terminating the parental rights of both Mother and Father. On July 1, 2021, Mother filed a notice of appeal to this Court.
We begin our analysis by noting that the case law of both federal and state courts is keenly cognizant of the constitutional and human import of termination proceedings.
[P]arental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United
States Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S .Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). When the government acts to terminate a parent's rights, it is not merely infringing on those rights; it is ending them. Lassiterv. Dept. of Social Svcs. of Durham Co., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981).
Accordingly, termination of parental rights is a grave action which the courts must conduct with "utmost caution." M.E.C. v. Commonwealth, Cab. for Health and Family Svcs., 254 S.W.3d 846, 850 (Ky. App. 2008). Termination can be analogized as capital punishment of the family unit because it is "so severe and irreversible." Santosky v. Kramer, 455 U.S. at 759, 102 S.Ct. at 1398. Therefore, to pass constitutional muster, the evidence supporting termination must be clear and convincing. 455 U.S. at 769-70, 102 S.Ct. at 1403. Clear and convincing proof is that "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (Ky. 1934).R.P., Jr. v. T.A.C., 469 S.W.3d 425, 426-27 (Ky. App. 2015).
In Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204 (Ky. 2014), our Supreme Court explained as follows:
The Commonwealth's TPR statute, found in KRS625.090, attempts to ensure that parents receive the appropriate amount of due process protections. 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)-G) exists.Id. at 209.
[T]he bulk of the statute, reflects a default preference against termination, which is why it states that no termination of parental rights shall be ordered unless the court makes the statutory findings based on the higher standard of proof of clear and convincing evidence. The Constitution itself requires the state to meet this burden of proof before a parent's rights may be terminated because of the 'fundamental liberty interest' a parent has in the relationship with a child.Cabinet for Health and Family Services v. J.M.A., 614 S.W.3d 525, 528 (Ky. App. 2020).
Kentucky Revised Statutes.
On appeal, Mother raises four issues ~ some of which are somewhat overlapping. She contends that: (1) the trial court made erroneous findings of fact and conclusions of law which must be excluded; (2) the Cabinet failed to meet its burden of satisfying the three-prong test in KRS 625.090; (3) termination of parental rights was premature; and (4) termination is not in the child's best interests.
[O]ur review is limited to a clearly erroneous standard. A trial court's findings are not clearly erroneous if there is substantial evidence in the record to support them. When the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions which we review de novo. If the trial court's factual findings are not clearly erroneous and the legal conclusions are correct, we are
limited to determining whether the trial court abused its discretion in applying the law to the facts.Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021) (citations omitted).
We agree with Mother's contentions as to the errors underlying this termination proceeding. The most serious error is the family court's wholly conclusory and unsubstantiated finding that termination is in the child's best interest ~ the second prong of the tri-partite test. KRS 625.090(1)(c) ("The [c]ircuit [c]ourt may involuntarily terminate all parental rights of a parent of a named child, if the [c]ircuit [c]ourt finds from the pleadings and by clear and convincing evidence that: . . . Termination would be in the best interest of the child."). Accordingly, because this error alone is fatal to the court's conclusion in ordering termination, we need not address the remaining issues raised by Mother.
In determining the best interest of the child, KRS 625.090(3) directs the court to consider six enumerated factors. They are not a mere checklist. However, as explained in D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 115 (Ky. 2012), ". . . the factors are to be 'considered' in deciding whether termination is in the child's best interest. They do not necessarily dictate a result and are always subordinate to the best-interest finding that the court is tasked with making." (Emphasis added.)
At page six of its FFCL, the trial court found that:
15. It is in [D.M.K.'s] best interests that the parental rights of [Mother] and [Father] be terminated. The [c]ourt has considered each factor enumerated in KRS 625.090(3) and has found by clear and convincing evidence that termination is in the best interest of the child.
The first factor, KRS 625.090(3)(a) ~ mental illness or intellectual disability of the parent ~ is not specifically addressed in the court's FFCL; however, it does not appear to be applicable. Mother testified that she has no mental health diagnosis.
The next factor for the court to consider is KRS 625.090(3)(b), "[a]cts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family [.]" At page six of its FFCL, the family court found that:
16. [Mother] has committed acts of abuse or neglect as defined in KRS §600.020(1) toward any child in the family. Testimony and documentary evidence presented at trial established that respondent mother has another child, P.K., who was removed from her due to neglect.
This finding is clearly erroneous and is wholly refuted by the record. No finding of abuse or neglect was ever made in the underlying DNA case with respect to either child. The finding as to both children was dependency -- not abuse or neglect. Ashley Clarke directly testified that she was not aware of any neglect or abuse findings by the court against Mother. Lauren Jones also testified that there had not been a finding of neglect or abuse in reference to the child or any other children. We cannot say that an erroneous finding of neglect toward another child can ever be harmless in a TPR proceeding. Far from being clear and convincing, it is simply clearly erroneous.
The third factor, KRS 625.090(3)(c), requires the court to consider whether the Cabinet made reasonable efforts to reunite the child with the parents prior to the filing of the TPR petition. The fourth factor, KRS 625.090(d), requires the court to consider 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[.]" It appears that the court addressed these two factors together in paragraph 17 at pages 6-7 of its FFCL, which we do not repeat here. We cannot say that these findings are clearly erroneous, but they wholly overlook and fail to address the fact that Mother does have employment and that she is current on her child support; that she has housing where she has resided for several years; and that she did complete the UK-TAP assessment, which Ms. Jones acknowledged is an improvement over where Mother had been in the past. It is a series of improvements wholly disregarded by the FFCL of the court despite the fact that the fourth statutory factor requires the court to consider parental progress.
The fifth factor that the court must consider is "[t]he physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered[.]" KRS 625.090(e). The trial court found at pages 8-9 of its FFCL that:
21. The child has made improvements since coming into foster care and these improvements are expected to continue. [D.M.K.] is diagnosed with ADHD and Oppositional Defiance Disorder. He has had several foster placements while in Cabinet care. The Cabinet attempted to place [D.M.K.] with relatives of father but that placement failed after two weeks. [D.M.K.] has been in his current placement for about a month, and seems to be stable. Jones is confident of [D.M.K.'s] ability to obtain permanency in his current placement despite his past struggles.
However, the statement that the child has made improvements since coming into foster care is conclusory. "Conclusory statements ~ or statements which merely state a conclusion without justification ~ are not proper findings of fact or conclusions of law because, in addition to appearing arbitrary, they deprive the parties from obtaining meaningful appellate review." Fry v. Caudill, 554 S.W.3d 866, 868 (Ky. App. 2018). The child had a new therapist at the time of the hearing. He had previously been in a residential facility. The Cabinet did not call the child's therapists or any other mental health professional or medical provider to testify about the child's emotional and mental health. There is no evidence whatsoever ~ much less clear and convincing evidence ~ regarding the prospects for improvement of the child's welfare if termination is ordered. There is only Ms. Jones's "optimism" that this child's fifth placement in less than four years will somehow work out because he is in a "potentially-adoptive" home. Since he had spent only one month there, as Mother noted, that optimism is premature at best.
At the time of the hearing, it was not an adoptive home (again, the child had only been there for a month), and Ms. Jones could not testify as to whether the child and his new foster father were bonded. But significantly, Ms. Jones testified without hesitation that the child and his Mother are bonded. In fact, the only time that we have heard the word happy used in relation to D.M.K. is when he sees his Mother. Ms. Jones testified that he was "very happy" to see his Mother during visits ~ as did Mother. In D.G.R., supra, our Supreme Court explained that:
In effect, if parental rights are terminated, it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and child. In a relationship that has developed over a period of years such as the one in this case with this child who is now 15 years old, strong emotional ties flow both ways. The circuit court or family court that hears termination cases must include that fact in its analysis of whether it is appropriate at the time of the termination hearing to end that relationship permanently, based on the record. If the court does not terminate the relationship, services can be continued -- as they were here ~ until further orders of the court, which may include maintaining a child in foster care or an institution.364 S.W.3d at 115 (emphases added).
In the case before us, the child was 12 years of age at the time of the termination hearing. The family court failed to consider whether it was appropriate at that time to permanently sever the obvious bond that this child has with his Mother. He was not interviewed by the court as to his wishes ~ despite the fact that at 12 years of age, he could clearly articulate his feelings. His best interest in this critical respect was wholly ignored.
The final factor for the court's consideration, KRS 625.090(3)(f), is "[t]he payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." At page 9, paragraph 22 of its FFCL, the family court found that Father had failed to pay a reasonable portion of maintenance; however, it made no finding as to Mother ~ despite the fact that she is paying child support and has remained current for some time.
To summarize, the Cabinet failed in its burden of proving that termination of Mother's parental rights is in the child's best interest. And the trial court's best interest analysis is based upon clearly erroneous, conclusory, incomplete, and inadequate findings.
Accordingly, we conclude that the trial court abused its discretion in terminating parental rights, and we reverse its order of termination. We remand for additional findings for the court to make consistent with holding in D.G.R., supra, and to continue services of the Cabinet to maintain the child in foster care or an institution while working toward the ultimate reunification of D.M.K. with his mother.
ALL CONCUR.