Opinion
NO. 2019-CA-1580-ME
01-15-2021
L.P. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND G.K.G.C.B., A CHILD APPELLEES
BRIEF FOR APPELLANT: Pam Ledgewood Lexington, Kentucky BRIEF FOR APPELLEES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 19-AD-00079 OPINION
AFFIRMING
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BEFORE: KRAMER, LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: L.P. brings this appeal from September 18, 2019, orders of the Fayette Circuit Court, Family Court Division, involuntarily terminating her parental rights as to G.K.G.C.B (hereafter referred to as G.B.). We affirm.
L.P. is the biological mother and W.B. is the biological father of G.B., who was born on January 26, 2017. The Commonwealth of Kentucky, Cabinet for Health and Family Services, (Cabinet) received a referral concerning possible abuse or neglect of G.B. in March 2017. At time of the referral, W.B. had allegedly sexually abused two other children. The Cabinet also had previously substantiated sexual abuse against W.B. in June 2016. Additionally, W.B. had been convicted of fourth-degree assault against L.P. and was accused of raping L.P. L.P., however, continued her relationship with W.B.
Due to the referral, the Cabinet visited L.P.'s home and observed horrible living conditions, including dog feces, moldy dishes, and a strong odor emanating from the bathroom. The Cabinet arranged for in-home services for L.P., and L.P. signed a prevention plan. Central to the prevention plan, L.P. agreed that W.B. would move out of the home and that he would have no unsupervised visits with G.B.
Thereafter, the Cabinet discovered that L.P. was permitting W.B. to have unsupervised contact with G.B. and that L.P. suffered from a mental health illness and refused to take medications. Additionally, L.P. refused to agree to an individual case plan with the Cabinet and refused home visits from the Cabinet.
As a result, the Cabinet filed a petition of neglect or abuse and received custody of G.B. on May 3, 2017. Both L.P. and W.B. eventually stipulated to neglect. Thereafter, the Cabinet developed a case plan with L.P., but L.P. only made minimal progress on the case plan.
On April 16, 2018, the Cabinet filed a petition for involuntary termination of parental rights against L.P. and W.B. W.B. ultimately consented to termination of his parental rights as to G.B. An evidentiary hearing was held by the family court. By orders entered September 18, 2019, the family court involuntarily terminated L.P.'s parental rights as to G.B. The family court found that clear and convincing evidence existed that G.B. was an abused or neglected child and that termination was in G.B.'s best interest. Additionally, the family court found that clear and convincing evidence existed that G.B. had been removed from L.P.'s care for fifteen out of forty-eight months; L.P. failed to provide essential parental care and protection and there was no reasonable expectation of improvement; and L.P. failed to provide essential food, clothing, shelter, medical care, and education to G.B, for reasons other than poverty, and there was no expectation of improvement. In its order terminating L.P.'s parental rights, the family court set forth detailed findings of fact:
7. Dr. David Feinberg testified first for the Cabinet. Dr. Feinberg is a clinical psychologist who has been licensed in the state for over thirty years. Dr. Feinberg's education and credentials qualify him as a QMHP [Qualified Mental Health Professional] under KRS 202A.011(12).
. . . .
During the background interview, [L.P.] described a significantly traumatic childhood. Her father was absent and her mother was physically and emotionally
abusive. [L.P.]'s mother remarried multiple times and [L.P.] moved many times as a result. [L.P.] was also sexually abused by her brother for years, exposed to various sources of domestic violence, and, due to her mother's neglect, was at times raised by her grandparents. When she was a young teenager, [L.P.] met [W.B.], who was significantly older. [L.P.] was a victim of physical violence and rape during her relationship with [W.B.] and she eventually became pregnant with [G.B.].
Dr. Feinberg testified that [L.P.] did not have any real understanding of why [G.B.] was removed in 2017. She knew the Cabinet had substantiated sexual abuse against [W.B.] as to his other children and knew [W.B.] was not to be unsupervised with [G.B.] but she did not see him as a safety risk. [L.P.] further did not see any fault in her own actions as her need for love and attention from [W.B.] overrode that desire to protect [G.B.].
[L.P.] also has a history of untreated and unstable mental health. She had a prior diagnosis of major depression with past suicide attempts and self-mutilation. [L.P.] was hospitalized multiple times because of her suicide attempts. [L.P.] also exhibited anger problems, impulse control problems and was resistant to rules or limits. She did receive some treatment and took medications at times but was not consistent. Dr. Feinberg believed [L.P.] showed traits of Borderline Personality Disorder such as poor impulse control and difficulty empathizing with other people. Individuals with these personality traits struggle with consistency in all aspects of their life and is not something they can provide for children. At the time of the evaluation, [L.P.] was not seeing any kind of therapist or receiving any kind of medication management. In fact, she was not open to receiving any kind of mental health treatment.
[L.P.]'s psychometric testing scores were consistent with the information gathered in interviews.
[L.P.] was extremely defensive and her scores showed personality traits of being extremely impulsive and having a low stress tolerance. During the parent-child interaction session, [L.P.] was appropriate with [G.B.] but Dr. Feinberg testified he would expect a higher level of attachment. In the interaction session and the clinical interview, [L.P.] showed she was unsure how to parent [G.B.], what his developmental milestones should be, and how to interact with him on an age-appropriate level. [L.P.] was able to use some basic skills learned from her parenting classes but there was an obvious lack of connection between she and [G.B.], which is consistent with the poor parenting models she encountered during her own adolescence.
From a stability standpoint, [L.P.] also struggled to maintain her own basic needs. When the Cabinet became involved, [L.P.] was living in deplorable conditions. [L.P.] is also very dependent on her current paramour. At the time of the evaluation, she was living with her new boyfriend. While there were no obvious concerns with her boyfriend, he is significantly older than she is, just like [W.B.]. She was working but is also dependent on her boyfriend and has not ever sought independence.
Dr. Fienberg's [sic] report and testimony concluded that, overall, [L.P.] exhibited a pattern of poor functioning. She is very dependent on the person she is currently in a relationship with. She has a significant trauma history that had not been addressed. This history impairs her ability to be a safe parent to [G.B.]. She has been involved in several unhealthy relationships and been victimized as a result. She has low self-worth and seeks older men for protection. [L.P.] does not believe she did anything wrong in this matter, does not believe she put [G.B.] at risk by allowing [W.B.] to be unsupervised, and does not believe she has any parenting deficits. She is also extremely resistant to mental health treatment or medication management, making any treatment prognosis very low. For her diagnosis, [L.P.] would need
long-term DBT, dialectical behavioral therapy, and possibly medication. Even if she was open to such treatment, it would be at least another year before she could function well enough to care for a small child. By that point, there would be even more concerns with attachment. As a result, Dr. Fienberg [sic] did not believe [L.P.] could appropriately care for [G.B.] and there were no other services available through the Cabinet that would likely be successful.
8. Chelsey Stephens testified next for the Cabinet. Ms. Stephens has been the ongoing worker for this case since approximately March 2017. Ms. Stephens testified that the Cabinet received a referral in March 2017 regarding [G.B.], [L.P.], and [W.B.]. [W.B.] had an open case in Floyd County for sexual abuse against his two older children. Floyd County DCBS had substantiated sex abuse against [W.B.] in June 2016. He attended court in Floyd County with a newborn baby, which was [G.B.]. He disclosed the child's mother was [L.P.]. They had a relationship when [L.P.] was a minor. [W.B.] had previously been convicted of assault 4th in Floyd County in 2016 with [L.P.] being the victim. At the time [G.B.] was born, [L.P.] was aware of [W.B.]'s case in Floyd County but continued to maintain a relationship.
Ms. Stephens testified that initially, [L.P.] agreed to sign a prevention plan that had [W.B.] move out of the home and have no unsupervised contact with [G.B.]. A neglect petition was then filed on April 4, 2017. [G.B.] remained in [L.P.]'s custody at that time. On May 1, 2017, the court made a finding of neglect.
Ms. Stephens further testified that in-home services (FPP) were set up for [L.P.] and [G.B.]. When FPP did an intake in April 2017, the home was in deplorable conditions; there was dog feces, no smoke alarm, moldy dishes, and a strong odor from the bathroom. FPP worker went back out to the home a
couple days later. At that time, [G.B.] had a severe diaper rash that was bleeding and [L.P.] reported she did not have money for diapers. The FPP worker took [L.P.] to Kroger to get diapers and to talk to the pharmacist about what to use on the rash. [L.P.] followed up with the doctor and [G.B.] had a yeast infection.
On May 3, 2017, [G.B.] came into the Cabinet's custody. Ms. Stephens testified that despite the prevention plans, [L.P.] was allowing [W.B.] to have contact with [G.B.] in and out of the home. [L.P.] was also given a daycare referral and was required to have third party babysitters approved by the worker but she refused to use the daycare and was leaving [G.B.] with different people. [L.P.] further refused to sign an individual case plan and would not allow home visits or phone calls from the worker. Ms. Stephens learned [L.P.] had a history of mental health issues including anxiety and suicide attempts. She was taken off her medications while she was pregnant but would not go for a follow up since [G.B.] was born. The major issues, however, were lack of protection and untreated mental health so the Cabinet requested and received emergency custody on May 3, 2017. Ms. Stephens testified that when she went to remove [G.B.], the home was still in deplorable conditions and [L.P.] was very aggressive & frustrated.
Both parents stipulated to neglect on May 22, 2017[,] and [G.B.] was committed to the Cabinet's custody that day as well since it was also on for disposition from the previous petition. Ms. Stephens testified that she was able to negotiate a case plan with [L.P.]. [L.P.] was asked to, among other things, complete a domestic violence assessment, a psychosocial assessment, a psychiatric assessment, a sexual abuse victim's education, drug screen, and attend parenting classes. [L.P.] was provided with case plans, provided drug screens, and referrals to community partners. She was also provided with weekly visits for two hours with
[G.B.].
Ms. Stephens testified that [L.P.] brought confirmation that she reestablished medical care for medications to the temporary removal hearing. She was prescribed Celexa for mild depression. [L.P.] also attended Advanced Solutions and The Nest for parenting and domestic violence. She did make an appointment with Bluegrass.org in Jessamine County for an evaluation but did not follow through. [L.P.] did obtain employment but did not attend sexual abuse education classes as she did not understand why this was a concern. During this time, Ms. Stephens testified, that was [sic] great concern was [W.B.] and [L.P.] were continuing in a relationship. Ms. Stephens requested [L.P.] complete a new domestic violence assessment. [L.P.] completed this and was recommended to complete more classes through The Nest, which she also completed. [L.P.] was also not taking her prescribed mental health medications and she was not interested in therapy, as she did not see anything wrong with her relationship or with [W.B.] generally.
Ms. Stephens testified that [L.P.] made minimal progress on her case plan. [L.P.] was also arrested in October 2017. She originally charged with receiving a stolen firearm but the charge was amended down and she was found guilty of receiving stolen property. She did visit consistently and she did complete a mental health assessment at The Ridge, which recommended she complete outpatient treatment. [L.P.] reported she participated in the program but did not provide any documentation. Later, [L.P.] informed Ms. Stephens that she and [W.B.] split up and in December 2018, [L.P.] obtained a no-contact DVO against [W.B.]. Ultimately, the permanency goal for [G.B.] was changed on May 18, 2019. Ms. Stephens testified that, by that time, Dr. Feinberg's recommendations had come out. [L.P.] refused to go to therapy or participate in the abuse education classes and she did not believe she needed either service. Ms. Stephens further expressed concerns
about [L.P.]'s lack of consistent mental health treatment, especially given her significant childhood trauma, her lack of ability to understand how to protect herself of [sic] [G.B.], and her instability. Further, Ms. Stephens testified that [G.B.] is thriving in foster care. He has remained in the same home since being removed and all of his needs are being met. He is a physically healthy child and is meeting all his developmental milestones. He is bonded to the foster family and it is an adoptive home for [G.B.] should he become available.September 18, 2019, Findings of Fact at 2-9. This appeal follows.
L.P. contends that the Cabinet failed to "prove by clear and convincing evidence that L.P.'s liberty interest in the care, custody and control of her child should be destroyed." L.P.'s Brief at 2. L.P. asserts that the circuit court abused its discretion by "giving undue weight to her documented and admitted trauma history." L.P.'s Brief at 2. L.P. also states that she has matured and possesses the ability to parent G.B.
This Court points out that L.P.'s entire argument constitutes approximately one page of her three-page appellate brief.
The involuntary termination of parental rights in Kentucky is governed by Kentucky Revised Statutes (KRS) 625.090. To involuntarily terminate parental rights under KRS 625.090, the family court must find by clear and convincing evidence that the following three-prong test is satisfied: (1) the child was found or adjudged to be abused or neglected as defined in KRS 600.020(1); (2) termination of parental rights is in the child's best interest; and (3) the existence of at least one of the grounds enumerated in KRS 625.090(2). Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). Our review proceeds under the clearly erroneous standard set forth in Kentucky Rules of Civil Procedure (CR) 52.01. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998).
Termination of parental rights may also occur in adoption proceedings as provided for in Kentucky Revised Statutes (KRS) 199.500(4) and KRS 199.502. --------
Upon a review of the record, there existed clear and convincing evidence that G.B. was an abused or neglected child and that termination was in G.B.'s best interest under KRS 625.090(1). Additionally, there was clear and convincing evidence that G.B. had been removed from L.P.'s care for fifteen out of the most recent forty-eight months; L.P. failed to provide essential parental care and protection and there was no reasonable expectation of improvement; and L.P. failed to provide essential food, clothing, shelter, medical care, and education to G.B. for reasons other than poverty, and there was no reasonable expectation of improvement per KRS 625.090(1).
In so finding, the family court relied upon L.P.'s documented mental illness and her unwillingness to adequately address same; L.P.'s unwillingness to fulfill the terms of her case plan with the Cabinet for over two years; the deplorable living conditions that G.B. was exposed to at L.P.'s home; and L.P.'s violation of the prevention plan by allowing W.B. unsupervised visits with G.B. Also, the family court considered the evidence that G.B. had bonded with his foster family and had been thriving there. From a review of the evidence, we cannot conclude that the family court abused its discretion by giving undue weight to L.P.'s past trauma history. Rather, we conclude that the family court did not abuse its discretion and that substantial evidence supported the family court's decision to involuntarily terminate L.P.'s parental rights as to G.B.
For the foregoing reasons, the judgment of the Fayette Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Pam Ledgewood
Lexington, Kentucky BRIEF FOR APPELLEES: Dilissa G. Milburn
Mayfield, Kentucky