Opinion
NO. 2019-CA-000258-ME NO. 2019-CA-000259-ME NO. 2019-CA-000260-ME
01-17-2020
J.W.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND C.G.R. (A MINOR CHILD) APPELLEES AND J.W.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND T.S.O.R. (A MINOR CHILD) APPELLEES AND J.W.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND T.L.W.O. (A MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT: Eric P. Lightfoot Latonia, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON FAMILY COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00035 APPEAL FROM HARRISON FAMILY COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00036 APPEAL FROM HARRISON FAMILY COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00037 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. KRAMER, JUDGE: J.W.R. ("Mother") appeals from the Harrison Family Court's findings of fact, conclusions of law, and judgment terminating parental rights in this case involving her three minor children. After a careful review of the record, we affirm.
The family court also terminated the parental rights of the putative father of two of the children. Father did not appeal. There was no person known to the Cabinet who met the statutory definition of putative father for T.L.W.O.
T.L.W.O. was born in 2012; C.G.R. in 2014; and T.S.O.R. in 2015. The children entered the custody of the Cabinet for Health and Family Services ("the Cabinet") in May 2017, by way of an emergency custody order. The dependency, neglect, and abuse ("DNA") petition filed by the Cabinet alleged sexual abuse of at least one child by C.R., who was Mother's spouse and father to C.G.R. and T.S.O.R., as well as substance abuse issues and other high-risk behaviors by both Mother and Father.
Mother met with the Cabinet in June, and a case plan was developed. The Cabinet's case plan required, in relevant part, that Mother (1) be consistent in her visitation with the children; (2) complete a mental health assessment; (3) complete a substance abuse assessment; (4) obtain and maintain housing; and (5) obtain and maintain employment. Soon after signing the case plan, Mother lost contact with the Cabinet and did not accomplish any of the objectives set forth, including visitation with the children.
Mother appeared in court in November 2018 and re-established her contact with the Cabinet at that point. She completed a drug screen and failed for methamphetamine and amphetamine. In the one to two months preceding the hearing to terminate her parental rights, Mother completed her mental health and substance abuse assessments. Mother also obtained a job and had housing. However, the Cabinet determined that Mother's housing situation was inappropriate for the children. Mother lived with her paramour, W.H., who had a significant criminal history and history with the Cabinet in which allegations of neglect were substantiated. Mother refused to allow the social worker who visited her home to go past the living room area and admitted that the home was not ready for the children.
Kelsey Currans, social worker for the Cabinet, testified that W.H.'s criminal history, obtained from Kentucky's Administrative Office of the Courts (AOC), was forty-three pages in length.
The family court held a hearing to terminate Mother's parental rights on January 10, 2019. Mother did not dispute that she had no contact with the Cabinet from June 2017 to November 2018 but testified that this was because she had no telephone and no vehicle. She stated that she was previously unaware of W.H.'s criminal history and history with the Cabinet. Mother testified that she had been working for approximately one month and prior to that had been "self-employed." She did not dispute that she had not seen her children, nor attempted to see her children, in one and one-half years. In closing arguments, Mother asked for more time to get her living situation in order. The family court announced its decision to terminate Mother's parental rights to all three children from the bench. Orders were entered to that effect on January 22, 2019. These appeals followed.
Mother makes three arguments on appeal. The first is that she has made improvements to her life and living conditions and that there is a reasonable expectation of improvement in the immediately foreseeable future. Second, Mother argues that poverty was the reason she did not comply with her case plan. Finally, she contends that she proved by a preponderance of the evidence that the children will not continue to be abused or neglected if returned to her care, pursuant to KRS 625.090(5). We disagree.
Kentucky Revised Statutes.
In Kentucky, termination of parental rights is proper upon satisfaction, by clear and convincing evidence, of a tripartite test. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, KRS 625.090(1) requires that a child be adjudged neglected or abused. Second, KRS 625.090(1)(c) requires that termination must be in the child's best interest. Third, at least one of the conditions set out in KRS 625.090(2) must be established. "[W]e are required to give considerable deference to the trial court's findings, and we will not disturb those findings unless no substantial evidence exists in the record to support them." K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006). The family court's termination decision will be reversed only if it is clearly erroneous. Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Regarding Mother's first argument, the family court found that Mother, "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 [children] and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the children." KRS 625.090(2)(e). The family court further found that Mother, "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 [children's] well-being, and that there is no reasonable expectation of significant improvement in [Mother's] conduct in the immediately foreseeable future, considering the age of the [children]." KRS 625.090(2)(g).
Mother points to the "reasonable expectation of improvement" in both statutory provisions and asserts that she has made great strides in her case plan. While we commend Mother for any action to improve her situation, we agree with the Cabinet and the family court that it is simply too little, too late. Mother made no progress whatsoever from June 2017 until November 2018, just two months prior to the hearing to terminate her parental rights. Although she testified she was "self-employed" before obtaining a job in December 2018, she did not provide support to the children in any way. She did not attempt to visit them. When Mother finally submitted to a hair follicle test in November 2018, she tested positive for illicit substances. Although her subsequent drug screens were negative, the family court found that "this relatively short period of sobriety is insufficient to demonstrate a true and permanent change especially in light of the relapse to which she admitted." We agree. Further, Mother's home continues to be inappropriate for the children. While Mother argues she could remedy the situation if given more time, the fact remains that Mother had one and one-half years to remedy it and did not do so. We discern no reason to disturb the findings of the family court.
Mother next asserts that poverty was the "driving force" that prevented her from working her case plan with the Cabinet. Mother claims that she had no contact with the Cabinet and did not work her case plan from June 2017 until November 2018 because she did not have a telephone or a vehicle during that time. The family court was not persuaded by this argument, and neither is this Court. It is unrealistic to believe that Mother had no access whatsoever to a telephone for one and one-half years, especially in light of the fact she testified she had been self-employed. We discern no error.
Although not contained in the written order, the family court stated from the bench that it believed Mother had no contact with the Cabinet during this time due to her substance abuse. --------
Finally, Mother argues that she proved by a preponderance of the evidence that the children will not be abused or neglected if returned to her care pursuant to KRS 625.090(5). We disagree. First, we note that the statute states
[i]f the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.(Emphasis added.)
As previously noted, this Court reviews the family court's decision for clear error. K.R.L., 210 S.W.3d at 187. KRS 625.090(5) does not require a family court terminate the parental rights in such a situation. Rather, the use of the word "discretion" in the statutory provision means it is permissive. Mother argues that the only aspect of her case plan that she has not completed is securing stable housing and that she "could remedy this condition in short order." Therefore, she asserts, she has shown by a preponderance of the evidence that the children will not continue to be abused or neglected. The family court had substantial evidence that Mother had only just begun working on her case plan after one and one-half years of total inaction. Clearly, the family court was not persuaded by Mother's assertion that the children would not continue to be abused or neglected if returned to her care. We find no error.
While this Court commends Mother for any and all efforts to remain clean and sober and otherwise improve her situation, unfortunately, those efforts came one and one-half years after the children had been removed from her care and only one to two months prior to the hearing to terminate her parental rights. Accordingly, we discern no error and AFFIRM the Harrison Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Eric P. Lightfoot
Latonia, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky