Opinion
NO. 2016-CA-000799-ME
02-17-2017
K. T. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.N.T. APPELLEES
BRIEF FOR APPELLANT: Leonard W. Taylor III Louisville, Kentucky BRIEF FOR APPELLEES: Jennifer E. Clay Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 15-AD-500361 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; NICKELL AND STUMBO, JUDGES. NICKELL, JUDGE: Applying KRS 625.090, CHFS sought involuntary termination of the parental rights (TPR) of K.T. (mother) and F.T.B. (father) to K.N.T., their biological daughter born on May 25, 2001. Trial occurred in March 2016. Mother was represented by appointed counsel and participated telephonically, as she was incarcerated in the Clark County (Kentucky) Detention Center on a drug charge at the time. Father neither appeared at, nor participated in, trial but was made aware of its occurrence by warning order attorney. On April 26, 2016, the Jefferson Circuit Court, Family Court Division, entered an order terminating the rights of both parents. Father has not contested the ruling and is not a party to this appeal. Mother has appealed, claiming there was no clear and convincing proof of three statutory elements: 1) a finding K.N.T. was an abused or neglected child; 2) existence of one or more aggravating grounds; and, 3) TPR being in K.N.T.'s best interest. For reasons stated below, we affirm.
Kentucky Revised Statutes.
FACTS
CHFS became aware of the family in February 2009, when K.N.T. was removed from the home due to mother's drug use which resulted in the child missing several days of school. When investigators arrived at the home, mother was passed out and admitted crushing and snorting prescription painkillers.
A dependency, neglect and abuse (DNA) petition was initially filed in Trimble County, but was transferred to Jefferson County in June 2009. Attorneys were appointed for mother, father and child. The following month, the petition was informally adjusted and K.N.T. was placed in father's custody and mother was ordered to have no contact with the child.
With family reunification being the goal, CHFS set goals for mother. She was to: maintain a stable, safe and sober home; cooperate with probation and parole while under its supervision by attending meetings, submitting to random drug screens, not using illegal drugs, participating in mental health treatment and following provider recommendations; participate in K.N.T.'s treatment; and, maintain contact and cooperate with CHFS.
A second DNA petition was filed in April 2011, this time alleging K.N.T. was dependent as defined in KRS 600.020(20) due to father's health—he had recently suffered a stroke and had other health issues. K.N.T.'s behavior became too much for father to handle. According to Darlena Smith, the family's social worker at the time of trial, the child acted out sexually, exhibited serious anger issues, and was both verbally and physically aggressive. At a temporary removal hearing held April 27, 2011, K.N.T. was placed in her maternal grandmother's temporary custody. On June 8, 2011, the second petition was informally adjusted and K.N.T. was placed in her maternal aunt's temporary custody. Mother was still to have no contact with the child.
Just over a year later, on June 13, 2012, the maternal aunt moved the court to remove K.N.T. from her home. The child's guardian ad litem (GAL) moved to set aside the second informal adjustment, reinstate the second petition and commit K.N.T. to CHFS. The court reinstated the second DNA petition on June 27, 2012, the same day father stipulated K.N.T. was a dependent child with needs exceeding his ability and those of her maternal aunt. K.N.T. was committed to CHFS and has remained there since, living with neither parent since 2012.
While in the care of CHFS, K.N.T. has been in and out of residential treatment facilities and psychiatric hospitals more than a dozen times and placed in four or five therapeutic foster homes. She has moved frequently because she disrupts each setting. According to Smith, it was common for K.N.T. to graduate from a program, be placed in a less restrictive environment, and then act out, requiring another new placement. When no foster home would accept her, she was placed in a residential facility. Smith acknowledged K.N.T.'s behavior has not been perfect, but it has improved; she remains a "work in progress."
K.N.T. has been diagnosed with Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Mood Disorder. She has also been described as requiring safe crisis management; being prone to self-harm by cutting and vomiting; being unable to concentrate or focus; struggling with boundaries; and being very needy and demanding. In the fall of 2015 she was placed at Maryhurst, a lock-down psychiatric residential treatment hospital/facility, where she is still in the first phase of treatment and has no projected release date. According to Smith, K.N.T.'s behaviors did not suddenly appear, they developed over time as a direct result of parental behavior. Smith's recommendation for K.N.T. is adoption—an outcome she believes is possible and will provide the child needed stability and permanency.
Smith testified CHFS has tried to reunify the family by providing referrals for services and family therapy, holding case planning conferences, and, conducting monthly home visits—when mother was not incarcerated. Cabinet records showed mother had engaged in family therapy and occasional visitation. Mother says she wants to reunify with daughter, but mother was re-incarcerated in September of 2014. Since that time she has had no contact with the child and has provided no financial support or gifts to her.
According to Smith, had mother desired contact with K.N.T., it would not have been allowed during her incarceration.
When questioned by the GAL, Smith confirmed father had cared for K.N.T. during the first eight years of the child's life and mother had done nothing in the last seven years—while K.N.T. has been outside her custody—to prepare herself to care for a child with extreme psychiatric issues. Smith went so far as to say K.N.T. would be in danger if placed in mother's custody—if mother were not in jail.
Mother has a considerable criminal record spanning multiple counties. Her most recent conviction was for complicity to trafficking in a controlled substance in the second degree. She is currently jailed on a parole violation. Mother testified her boyfriend purchased ten Lortabs which were found in her possession. She met the parole board in January 2016 but was denied. She was to meet the board again in November 2016 for possible release in January 2017. While imprisoned she has taken drug classes and Bible study and will enroll in a new program that has just begun at the Clark County Detention Center. Mother testified next time will be different because she has a strong desire not to return to county jail. She plans on completing another drug program and does not want to give up her parental rights.
During summation, mother's attorney argued adoption would not occur because of K.N.T.'s extreme mental health issues, suggesting the child will remain in a psychiatric facility. In counsel's view, the case plans and annual review simply did not support adoption due to the child's severe behavior. He suggested CHFS was rushing its request for TPR, which he predicted would have additional negative impact on K.N.T. and asked that mother be allowed to seek a parental role in her daughter's life.
In contrast, the GAL urged the court not to delay TPR just because K.N.T. may remain in a psychiatric hospital. He argued, unless TPR is granted, adoption—the child's best chance at life—cannot occur.
At the close of all proof and argument, the court stated it had heard little proof of mother as a caregiver, and it was clear both parents had neglected their daughter. The court further stated mother's incarceration resulted from her own actions and her release date was yet to be determined. Upon release, mother will be unable to fully devote herself to caring for her daughter because she must first address her own recurring addiction. The court went on to say K.N.T. needs closure and an opportunity to bond with a potential adoptive family. Noting the trial had not been the "most organized presentation of evidence," the court found sufficient proof had been offered to meet the cabinet's burden. The court concluded both parents had neglected and abandoned K.N.T. and TPR was in the child's best interest. Thereafter, an order and judgment of TPR was entered on April 26, 2016. Separate findings of fact and conclusions of law were entered the same day.
On appeal, mother alleges K.N.T. has a strong bond with her and K.N.T. will suffer "grave emotional harm" if the circuit court's termination of her parental rights is affirmed. Having reviewed the briefs, the record and the law, we hold otherwise.
This statement appears to be based on a judge's comment on a court calendar that K.N.T. had done well at River Valley in Owensboro and was "very attached to mom." Mother's attorney asked Smith to read this comment on the record. However, the court calendar is not part of our record.
ANALYSIS
We apply the clearly erroneous standard when reviewing TPR. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998); CR 52.01. To withstand reversal, the trial court's decision must be based on substantial, clear and convincing evidence. M.P.S., 979 S.W.2d at 116. The evidence need not be uncontradicted, but it must be "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934).
Kentucky Rules of Civil Procedure. --------
KRS 625.090 governs involuntary TPR. Before granting it, a trial court must find the child has previously been adjudged abused or neglected under KRS 600.020(1), or make that finding in the current proceeding. Here, the court found both that K.N.T. had previously been adjudged abused or neglected, and made the same finding anew in the current proceeding. The court then found TPR to be in the child's best interest, satisfying KRS 625.090(1).
Next, the court had to find existence of at least one ground enumerated in KRS 625.090(2). The court found four: abandonment of child for not less than ninety days under KRS 625.090(2)(a); failure to care for and protect child for at least six months with no expectation of improvement under KRS 625.090(2)(e); for reasons other than poverty alone, failure to provide essential food, clothing, shelter, medical care, or education with no expectation of improvement under KRS 625.090(2)(g); and, child has resided in foster care fifteen of most recent twenty-two months before filing of TPR petition under KRS 625.090(2)(j).
Consistent with KRS 625.090(3)(c), the court heard testimony about the efforts of CHFS to reunite the family, including referrals for numerous services, few of which mother used, and those she did use were interrupted by her incarceration for various crimes—some drug related. Mother testified she had completed classes while incarcerated but offered no certificates of completion. Contrary to mother's argument, substantial, clear and convincing proof of her neglect of her daughter was offered.
The gist of mother's argument against TPR is that no one will adopt K.N.T. because of her extreme behavior so her parental rights should not be terminated and adoption should not be considered as an option. Mother claims she wants to play a role in her daughter's life but has done nothing to prepare for that role, especially not during the last seven years when she has let others care for her child. As noted by the trial court, when mother is freed from her current incarceration, she will not be able to fully focus on K.N.T. because she must learn to control her own drug addiction. While this is a tragic case, resulting from mother's poor choices, the TPR order is supported by the proof and affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Leonard W. Taylor III
Louisville, Kentucky BRIEF FOR APPELLEES: Jennifer E. Clay
Louisville, Kentucky