Opinion
2022-CA-1219-ME 2022-CA-1220-ME 2022-CA-1243-ME 2022-CA-1245-ME
07-21-2023
K.C.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.J.C.; AND J.P.C., A CHILD APPELLEES AND K.C.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.J.C.; AND J.L.C., A CHILD APPELLEES AND J.J.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.P.C., A MINOR CHILD; AND K.C.G. APPELLEES AND J.J.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.L.C., A MINOR CHILD; AND K.C.G. APPELLEES
BRIEFS FOR APPELLANT K.C.G.: Rebekah J. Rice Maysville, Kentucky. BRIEFS FOR APPELLANT J.J.C.: Glennis R. Harris, Jr. Flemingsburg, Kentucky. BRIEFS FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NOS. 21-AD-00006, 21-AD-00007
BRIEFS FOR APPELLANT K.C.G.: Rebekah J. Rice Maysville, Kentucky.
BRIEFS FOR APPELLANT J.J.C.: Glennis R. Harris, Jr. Flemingsburg, Kentucky.
BRIEFS FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky.
BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
OPINION
CETRULO, JUDGE.
These consolidated appeals were filed by K.C.G., ("Mother") and J.J.C. ("Father") from four separate judgments terminating the parental rights of both parents to their two minor children, J.P.C. and J.L.C. For the foregoing reasons, we affirm the judgments of the Mason Circuit Court.
FACTS AND PROCEDURAL HISTORY
Mother and Father first became involved with the Cabinet for Health and Family Services ("the Cabinet") in 2017 when it was alleged they committed medical neglect on the older of the two children. Both children have been diagnosed with complex medical issues. J.P.C. has a ventriculoperitoneal shunt, cerebral palsy, speech and developmental delays, hearing loss, coordination and muscle tone issues, and seizure disorders, and will require lifetime drug therapy and medical care. He receives occupational, physical, and speech therapy and is largely non-verbal. J.L.C. has been diagnosed with hydrocephaly and is possibly a carrier of cystic fibrosis. He has developmental delays and similarly receives multiple therapies.
The children were initially removed in 2018 to a family home, permitted to return briefly, but then removed again in 2019 after J.L.C. suffered some broken bones while in the care of the parents and was not taken for treatment. He was less than a year old at that time, and the parents explained that he and his brother were jumping on the couch, although records suggest that neither child was walking at that stage. The children were behind in their immunizations and well-child checks, and there were significant environmental concerns with the living conditions. Both Mother and Father, with assistance of counsel, stipulated to neglect in the district court cases. Both children have continuously been in foster care since October 2019. Since that time, the parents have had only supervised visits with the children.
In early 2020, both parents were ordered to undergo a parental capacity and psychological evaluation with Dr. Feinberg, who concluded that neither possessed the functional capacity to safely parent the children. The Cabinet moved for termination of parental rights in March 2021. The Mason Circuit Court conducted lengthy hearings in June and August 2022, with both parents present and represented by counsel. After hearing testimony from the parties, the Cabinet witnesses, the guardian ad litem, and court-appointed special advocate for the children, as well as Dr. Feinberg, the circuit court found clear and convincing evidence to terminate the parental rights of Mother and Father pursuant to Kentucky Revised Statute ("KRS") 625.090. Both parents have filed appeals through their appointed counsel.
In compliance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for both parents have filed briefs acknowledging that they have found no meritorious claims of error to justify reversal of the circuit court's rulings.
Despite those acknowledgements, counsel for Mother points to a possible insufficient determination by the circuit court as to what specific steps on the case plan Mother had failed to complete. There is also a second argument that the Cabinet failed to provide services to the parents specifically designed for a parent with limited capacity or cognitive deficits. Father's counsel suggested that the circuit court erred in finding he had failed to provide the children with essential parental care and protection since he had paid some child support. Both parents were given an opportunity to present their own pro se briefs and declined to do so.
Mother did send a supplemental filing, pro se, to this Court, which was determined to be deficient under the Rules of Appellate Procedure ("RAP"), but has been reviewed. Father similarly filed a pro se letter asking for more time to submit a supplemental brief, which this Court treated and granted as a motion in both cases. No further filings were received.
In accordance with our obligation under A.C., 362 S.W.3d 361, we have thoroughly reviewed the entire record below and conducted our own inquiry to determine whether prejudicial error is found and whether the requirements of KRS 625.090 have been met.
STANDARD OF REVIEW
We use a clearly erroneous standard when reviewing whether the termination of parental rights was lawful. C.J.M. v. Cabinet for Health and Family Servs., 389 S.W.3d 155, 160 (Ky. App. 2012). We will not set aside the circuit court's findings of fact unless they are unsupported by substantial evidence. Id.; see also Kentucky Rule of Civil Procedure ("CR") 52.01. That 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., 463 S.W.2d 62, 64 (Ky. 1970) (quoting Wadkins' Adm'x v. Chesapeake &Ohio Ry. Co., 298 S.W.2d 7, 10 (Ky. 1956)) (internal quotation marks omitted).
ANALYSIS
KRS 625.090 governs involuntary parental right terminations. It says, in pertinent part,
that a circuit court may involuntarily terminate parental rights if it finds, by clear and convincing evidence, that the child is an abused or neglected child as defined in KRS 600.020(1) and that termination serves the best interest of the child. KRS 625.090(1)(a)-(b). Lastly, the circuit court must ascertain under KRS 625.090(2) that clear and convincing evidence has been provided to show the existence of one or more of ten factors.C.J.M., 389 S.W.3d at 160.
Taking each requirement into consideration, we first note that there is no dispute that these two children were abused or neglected as defined in KRS 600.020. The parents each stipulated to neglect in prior proceedings and admitted to those prior stipulations in these proceedings before the circuit court. The circuit court specifically found, correctly, that this requirement is satisfied when, like here, the parents have been found to have neglected the child in an underlying juvenile case. M.A.B. v. Commonwealth, Cabinet for Health and Family Servs., 456 S.W.3d 407, 413 (Ky. App. 2015); C.A.W. and T.L.M. v. Cabinet for Health and Family Servs., Commonwealth, 391 S.W.3d 400, 404 (Ky. App. 2013).
Second, the circuit court must determine that the termination of parental rights is in the child's best interest. KRS 625.090(1)(c). Here, the circuit court did find that it was in the best interests of both children to terminate parental rights and carefully weighed and balanced the evidence presented in the case and the statutory factors identified in KRS 625.090(3). By way of illustration, the circuit court noted the substantial evidence from several witnesses that the parents herein lacked insight into the reasons for removal of the children and lacked insight into their medical issues. They were only barely meeting their own basic needs and perceived themselves as the victims, rather than taking accountability for their actions which had led to removal of the children.
The circuit court heard evidence that services had been offered and that the parents had generally failed to take advantage of those services before the children were removed. Both of the children have been diagnosed as medically fragile and both are much improved since entering foster care in 2019. At that time, the children were non-verbal and not walking, but they progressed quickly and are now engaged in regular occupational, physical, and speech therapies. The circuit court heard testimony regarding the several homes where the parents had lived in the intervening years since removal of the children and noted the evidence showed very little improvement over the poor environment that the children were removed from in 2019. Neither parent has consistently maintained a job nor taken any steps to obtain a driver's license to date; therefore, transportation would remain a problem.
The circuit court noted that the parents had attended the supervised visitation sessions, and that Father had made some payments of child support, through deductions, when he was employed. The parents had attended classes and more of the children's appointments since removal, but were still not able to fully provide for their children in a safe environment. The circuit court stated that it "has no doubt that they love their child[ren] very much, [but] the [circuit court] has profound concerns for the parents' ability to provide minimally acceptable care to the child[ren]" and indeed "believes it likely that the child[ren] would be neglected if returned to the parents' care."
The circuit court considered the services offered and specifically noted that while there was some evidence that the parents may be lower functioning or that Mother might benefit from some mental health treatment, there was no substantive evidence that either parent suffered from a mental illness or intellectual disability that required specific further services to be offered. Rather, the circuit court noted that the Cabinet had made reasonable efforts to reunite the children with their parents and to provide services, but that there had been little progress for more than two years and no showing that additional services would enable a safe return of the children to their parents. Clearly, the circuit court analyzed the evidence presented and found it clear and convincing to determine termination was in the children's best interests.
Thirdly, the circuit court must find that at least one of the factors outlined in KRS 625.090(2) exists. Here, as to both parents and both children, the circuit court found that the parents had, for a period of not less than six months, failed to provide, or were substantially incapable of providing, essential parental protection and care, and that there was no reasonable expectation of improvement in parental protection and care. KRS 625.090(2)(e). In making that finding, the circuit court discussed the evidence of injury to one of the children while in the care of the parents and the failure to obtain necessary medical treatment for both children. The circuit court noted the evidence that their living quarters were unsafe for the children and that this had not improved, even after removal and after services had been offered.
Additionally, the circuit court found that the parents had failed to provide or were incapable of providing food, clothing, shelter, medical, or educational care for the children and that there was no reasonable expectation of improvement in their conduct in the immediately foreseeable future. KRS 625.090(2)(g). This finding was largely based upon expert testimony from Dr. Feinberg, testimony of social workers for the Cabinet, and testimony of the guardian ad litem and court appointed special advocate. Finally, the circuit court noted that the children have been in foster care under the responsibility of the Cabinet for 15 of the last 48 months. KRS 625.090(2)(j). In short, the circuit court specifically found and analyzed at least three of the factors under KRS 625.090(2), although only one of the grounds in the statute needs to be proven by clear and convincing evidence. Commonwealth, Cabinet for Health and Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). The circuit court clearly complied with its obligations under the statute, and we find no error upon our review of the record.
Nonetheless, we do briefly address the arguments suggested by counsel for Mother and Father. It was intimated on appeal that these parents might have benefited from some more specialized services due to their possible cognitive limitations. The circuit court specifically noted that there was no evidence of a mental impairment, and neither parent had been diagnosed with any intellectual disability. Father had a high school degree, and both Mother and Father had a history of prior employment. Both parents testified at length and demonstrated no discernible deficits.
In Cabinet for Health and Family Services v. K.S., 585 S.W.3d 202 (Ky. 2019), our Supreme Court addressed a similar argument on behalf of a biological parent who claimed cognitive deficits and argued that more appropriate services should have been offered for one with limitations. The majority of the Court in that opinion still concluded that sufficient efforts had been undertaken by the Cabinet. Id. at 215. While there was evidence of some deficits in that case, there was no such evidence presented here. Furthermore, our Supreme Court concluded that because the mother did not raise a challenge to the services that were being provided to her at the time, the issue had been waived for their review. Id. at 216.
In this action, there was no evidence presented of an intellectual or mental disability on the part of either parent. There was no challenge to the services offered at the time, and, indeed, both parents agreed that they had been offered appropriate services. Despite these services, there was clear evidence that the parents had failed to provide needed medical care to their children while they were in their custody; that they had failed, since removal, to improve their home situation to where the children could safely return; that they did not have transportation to take the children to necessary medical services; and that the children were going to continue to require significant medical care that the parents did not seem capable of understanding or appreciating. The children were improving in foster care, and all of those familiar with the case testified that it was in the best interests of the children that the rights of Mother and Father be terminated. Despite our compassion for these parents, who do clearly love their children, the overriding concern remains for the best interests of the children, particularly where, as here, they have significant medical issues.
Similarly, we find sufficient evidence was presented of failures on the part of Mother to complete the case plans. While she did attend parenting classes, and made some improvements in the home after removal, she had not provided documents requested by the Cabinet, had not improved the home environment sufficiently to provide the children with a safe environment, and continued to demonstrate an inability to understand and provide the essential care and protection that these children will clearly require. Likewise, we recognize, as the circuit court did, that Father had paid some support, through court ordered deductions, but the circuit court did not err in nevertheless determining that he was similarly unable to provide the essential care and protection that the children require.
The circuit court's analysis is wrought with substantial evidence supporting each step in the requisite analysis. Indeed, the circuit court's findings "lead us to believe that each factor was properly considered." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 212 (Ky. 2014) (citation omitted). Given the "great deal of deference" we afford to the circuit court's findings, we must not "interfere with those findings unless the record is devoid of substantial evidence to support them." Id. at 211 (citation omitted).
For the foregoing reasons, the judgments of the Mason Circuit Court are affirmed.
ALL CONCUR.