Opinion
2021-CA-1070-ME 2021-CA-1073-ME 2021-CA-1074-ME
06-17-2022
J.R.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND P.B.S., A MINOR CHILD APPELLEES AND J.R.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND B.H.S., A MINOR CHILD APPELLEES AND J.R.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND Q.G.S., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: David C. Perkins BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dillissa G. Milburn
NOT TO BE PUBLISHED
APPEAL FROM HART CIRCUIT COURT HONORABLE CHARLES C. SIMMS, III, JUDGE ACTION NOS. 21-AD-00009, 21-AD-00007, 21-AD-00005
BRIEF FOR APPELLANT:
David C. Perkins
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:
Dillissa G. Milburn
BEFORE: GOODWINE, JONES, AND MAZE, JUDGES.
OPINION
MAZE, JUDGE:
This is an appeal from the Hart Circuit Court's findings of fact, conclusions of law, and judgment entered on July 13, 2021, and its final order terminating parental rights and order of judgment entered July 20, 2021. Counsel for Appellant has filed a brief pursuant to Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012).
Appellees Q.G.S. (born September 7, 2010) and P.B.S. (born February 15, 2013) are the children of Appellant J.R.S. (Mother) and C.B.S. (Father). While B.H.S. (born September 17, 2014) is the child of Mother, it is unclear whether he is also the child of Father. The children were committed to the custody of the Cabinet for Health and Family Services (Cabinet) by orders of the Hart District Court in Case Nos. 17-J-00122-002, 17-J-00123-002, and 17-J-00124-002. On February 24, 2020, Mother stipulated to the district court's finding of abuse/neglect. Thereafter, on March 17, 2021, the Cabinet filed its petition for termination of parental rights. On July 9, 2021, a bench trial was commenced in the Hart Circuit Court.
Father has not joined in this appeal.
The Cabinet's first witness was Candace Cooper, who served as the children's therapist at Benchmark Family Services in 2020. She spoke with them about their Mother. They said nothing about conditions in the home. They told her that they wanted to go home, but Mother was not doing what she was supposed to be doing. She testified that, at that time, the children were in foster care and that Mother did not have a job or a stable home.
Amber Schambon was a social worker with the Department of Protection and Permanency. She is not their current worker. She testified from the Cabinet's records that the children were initially placed with a relative. In May of 2019, the Cabinet was advised that the children's parents were homeless, that the children appeared to be unkempt and not bathed, and that they had missed a lot of school. The relative with whom they were staying brought them in to the emergency room.
Ms. Schambon indicated that B.H.S. received intravenous antibiotics for a swollen ear, a rash on his buttocks, and infected insect bites. Q.G.S. also received antibiotics. P.B.S. had no insect bites. The relative with whom they were staying admitted to the Barren County social worker who was at the hospital with them that they did not have electricity.
Father came to the hospital but refused to take a drug test, admitting that he would test dirty. The children were then placed with a paternal cousin in Glasgow. Mother could not be reached until the following day. She stated that she had prescriptions for medication for the children but had not had time to get them filled. She reported that they had been staying with her grandmother. However, Q.G.S. later admitted that they had stayed in a number of places, including a garage. Mother denied that she had an outstanding warrant for drug charges. She said that she could not afford drug screens. Ms. Schambon testified that the Cabinet had substantiated neglect.
Case plans were negotiated for both parents. Mother was to attend parenting classes, submit to drug screens, and participate in a substance abuse assessment at Bluegrass Professional Counseling. She was also to obey any court orders and Cabinet rules and agree to home visits.
Ms. Schambon stated that while Mother completed the majority of her case plan, she suffered relapses. Outpatient treatment was recommended. While Mother has participated "off and on," Ms. Schambon was unable to say that Mother had completed a program. She has had urine tests and hair follicle tests, both positive for methamphetamine.
Mother has a relationship with an individual who uses the name "Train." He has an extensive criminal history, including drug charges. He has refused to complete a case plan. The children have indicated that they have stayed with Train a lot.
Although Father signed a similar case plan, he completed none of its provisions. He had no stable address or phone number. He has had no contact with the children. He was served in the termination action by warning order. However, Mother's counsel argued that such service was improper since the Cabinet was in possession of his current address.
Ms. Schambon testified that her ability to contact Mother has been "pretty good." However, Mother is not permitted visitation at this time because she needs three clean drug screens in order to comply with the court's orders.
Ms. Schambon testified that the children have been placed in a Benchmark foster home and are "doing very well." They are receiving mental health treatment and taking appropriate medications. They receive no child support from Father. However, the social worker was unable to testify as to Mother's child support status.
At this point, the children have been out of the home for approximately two years. They are in an adoptive foster home, together. Mother's employment is not stable and Ms. Schambon is unaware of where she is staying. The goal for these children was changed to adoption upon motion of the guardian ad litem.
M.M. has been the children's foster mother since 2019. She and the children live in a home with her husband, her two adult special needs children, and one adult foster daughter. She testified that the children attend therapy twice a month. She stated that when the children first arrived at her home, Q.G.S. had behavior problems, demonstrating immature social skills and a tendency to "parent" his younger brothers. Now, he is active in sports, throws no tantrums, and has improved social skills, interacting appropriately with his peers, and behaving "more like a kid."
M.M. further testified that B.H.S. expected to get whatever he wanted when he first came to her. He was sulky and immature. He too has improved.
She reports that P.B.S. cried a lot and did not talk when he was initially placed with her. Now, she says he is very talkative, although he is still "tender-hearted."
She stated that the children have had no in-person contact with their parents, although they did have some Facetime visits with Mother. However, M.M. testified that Mother was inconsistent and did not have adequate phone service, such that her calls with the children were often "dropped." She said that Q.G.S. got angry, P.B.S. cried, and B.H.S. would not talk long. They all demonstrated behavioral issues after the calls.
M.M. stated that the children say they are happy, although Q.G.S. used to say that he wanted to go home. She said that Mother made a lot of unfulfilled promises to the children. She concluded by testifying that if, in fact, they do not go home, she will adopt them.
The trial court then questioned M.M. about the children's mental health diagnoses. She stated that Q.G.S. has been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD) and is currently on three medications. B.H.S. also has ADHD and receives medication. P.B.S. suffers from ADHD, PTSD, depression, and sleep disorder. He receives four different medications and an appetite stimulant.
The Cabinet then called Rhonda Robertson, a supervisor with the Department of Protection and Permanency. She supervises the children's current social worker, Crystal Martin, and has been working the case while Ms. Martin is out on medical leave. She stated that Mother had dirty screens for methamphetamine on October 27, 2020, and March 31, 2021. Although Mother had clean screens on December 22, 2020, January 20, 2021, and February 3, 2021, she was a "no show" on March 15, 2021.
Robertson stated that Mother's paramour, Train, has signed a case plan. That plan included assessments for domestic violence and substance abuse, random drug screens at his cost as well as stable housing and employment. However, as of March of 2021, he had taken no steps to fulfill the obligations under the plan.
She said that the children have had no contact with Father since June of 2020. Her records reflect that the last known address for Father was in Horse Cave, Kentucky. However, that house has since burned down.
She testified that Mother was approved for supervised visitation with the children, under the supervision of two of her previous employers. However, the Cabinet was never provided with the employers' Social Security numbers and other identifiers necessary for a background check.
She stated that the children have not said that they want to go home and seem happy. Her conclusion was that it is not in their best interests to have contact with Mother. Mother chose not to testify.
Counsel for Mother challenged service on Father, based on the Cabinet's failure to set forth Father's last known address as listed in their records, specifically the Cabinet dispositional report submitted to the trial court on February 18, 2020. The trial court rejected this argument in its findings of fact, conclusions of law, and judgment entered July 13, 2021, concluding that Mother was without standing to contest service on Father.
As to the children the trial court found, first, that there had been a sufficient showing of abuse or neglect pursuant to Kentucky Revised Statute (KRS) 625.090(1) since Mother had stipulated such in the district court action. Further, the court also found abuse or neglect based upon the fact that 1) the parents have engaged "in a pattern of conduct that renders the parent[s] incapable of caring for the immediate and ongoing needs of the child[ren], including but not limited to parental incapacity due to a substance use disorder[, ]" and that 2) they have failed "to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child[ren] to the parent that results in the child[ren] remaining committed to the cabinet and remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months[.]" See KRS 600.020(1)(a)3. and 9.
In support of this finding, the trial court relied upon the testimony regarding Mother's lack of employment and a permanent residence. Further, the court noted that although Mother had "completed some portions of her case plan," her methamphetamine addiction was a significant and recurring impediment. Based upon the court's own observation that she arrived late for the bench trial, she left the courtroom during testimony, refused to testify, and acted "fidgety," the court concluded that she "has continued with her methamphetamine consumption." The court concluded that the parents' failure to complete their case plans "resulted in their children remaining in foster care for twenty-two (22) consecutive months, including sixteen (16) months preceding the filing of the petitions herein."
The trial court then turned its attention to the findings required pursuant to KRS 625.090(2) concluding that, based upon the same findings of fact, the Cabinet had shown by clear and convincing evidence that Mother and Father had for a period of not less than six (6) months failed or refused to provide essential parental care and protection without reasonable expectation of improvement, that they had, for reasons other than poverty failed to provide "essential food, clothing, shelter, medical care, or education . . . [without] reasonable expectation of significant improvement[, ]" and that the children had been in foster care 15 of the previous 48 months. KRS 625.090(2)(e), (g), and (j).
The court also found that termination was in the best interests of the children as required by KRS 625.090(1)(c). In so doing, the court specifically analyzed each of the factors set forth in KRS 625.090(3). It held that (1) there was no evidence that either parent suffered from a mental illness or intellectual disability; (2) in 2017, the children were removed from the home based upon substance abuse and environmental concerns; (3) the Cabinet's reunification efforts were adequate but Mother's continued methamphetamine use and inability to maintain employment and a stable residence impaired those efforts, while Father made no effort whatsoever; (4) Mother's attempts to comply with the necessary adjustments to have the children returned to her remain "short-term," choosing instead to remain with her paramour; (5) the mental health of the children has improved significantly during their time with their foster parents; and (6) the parents have failed to pay any amounts for the support of the children while they remain in foster care. The court also considered the recommendation of the guardian ad litem, as reflected by his motion in the district court to convert the goal from reunification to adoption based upon Mother's positive hair follicle test "and her shenanigans related to said testing in October 2020." Finally, the court considered the testimony of M.M., expressing her willingness to adopt the children upon termination of the parents' rights.
Although KRS 625.090(4) allows a parent to present evidence regarding any services that the Cabinet might provide which would assist in reunification, the court noted that Mother refused to testify. Further, although KRS 625.090(5) gives the parent the opportunity to offer evidence showing that, if the children were returned, they would cease to be abused/neglected. The court found that "the parents have failed to establish that their children would not continue to be abused or neglected." The within appeal followed the trial court's order terminating parental rights and order of judgment entered on July 20, 2021.
In A.C., 362 S.W.3d 361, this Court approved the procedure provided in Anders, 386 U.S. 738, 87 S.Ct. 1396, for use in appeals from orders terminating parental rights. The Court found that, while indigent parents are entitled to counsel during the appellate process, they do not have the right to bring frivolous appeals. Thus, in order to fulfill counsel's duties to his client under such circumstances, "counsel should, at a minimum, review the circuit court's (1) neglect and/or abuse determination; (2) finding of unfitness under KRS 625.090 (2); and (3) best-interests determination." A.C., 362 S.W.3d at 371. Clearly, the brief filed by Mother's counsel herein meets those requirements. Based upon this finding, the Court will grant his motion for leave to withdraw by contemporaneous order.
The decision of a trial court terminating parental rights may only be disturbed where it is found to be "clearly erroneous." J.M.R. v. Commonwealth Cabinet for Human Resources, 239 S.W.3d 116, 120 (Ky. App. 2007), overruled on other grounds by Colvard v. Commonwealth, 309 S.W.3d 239 (Ky. 2010). Further, we are required to give "a great deal of deference" to the findings of the trial court. Commonwealth, Cabinet for Health and Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
KRS 625.090(1) provides for termination of parental rights where:
(a)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.
The trial court herein has specifically found that the children were adjudicated neglected by the district court. Further, the Cabinet filed its petition for the termination of parental rights in the trial court. Finally, the trial court found that, based upon the parents' failure to take advantage of the services offered by the Cabinet, based upon the children's positive progress in terms of their physical, mental, and emotional development, and based upon the parents' failure to prove by a preponderance of the evidence that the children would not continue to be abused or neglected if returned to them, that termination of their parental rights is necessary and appropriate.
The trial court also found, as required by KRS 625.090(2):
(d) 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;
. . . .
(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[.]
. . . .
(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[.]
An independent review of the record requires this Court to find that the trial court's findings were clearly supported by "substantial evidence." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). The record reflects that Mother failed to provide "essential care and protection" as provided by KRS 625.090(2)(e) and that she further failed to provide "essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well-being" as set forth in KRS 625.090(2)(g). Finally, the testimony of the agents of the Cabinet supports the trial court's finding that the children have been in foster care for the period of time set forth in KRS 625.090(2)(j).
Accordingly, we affirm the order terminating parental rights and order of judgment entered by the Hart Circuit Court.
ALL CONCUR.