Opinion
2019-CA-1832-ME
01-07-2022
M.A.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.L.D.M., A CHILD APPELLEES AND M.A.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND J.A.M., A CHILD APPELLEES
BRIEFS FOR APPELLANT: Bruce B. Brown Glasgow, Kentucky. BRIEF FOR APPELLEE: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
ON REMAND FROM KENTUCKY SUPREME COURT (FILE NO. 2020-SC-0572-DGE) APPEAL FROM BARREN CIRCUIT COURT HONORABLE MICA WOOD PENCE, JUDGE ACTION NO. 19-AD-00029, 19-AD-00030
BRIEFS FOR APPELLANT: Bruce B. Brown Glasgow, Kentucky.
BRIEF FOR APPELLEE: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
OPINION
GOODWINE, JUDGE.
This matter is on remand from the Kentucky Supreme Court instructing us to consider the merits of this appeal. M.A.B. ("Mother") appeals November 13, 2019 judgments of the Barren Circuit Court, Family Division, involuntarily terminating her parental rights to her twin minor children. After careful review, we affirm.
We previously dismissed the appeals on procedural grounds without consideration of the merits. Based on M.A.B. v. Cabinet for Health and Family Services, S.W.3d, 2021 WL 5051630 (Ky. Oct. 28, 2021), we will now consider the merits of these appeals.
BACKGROUND
The Cabinet for Health and Family Services ("Cabinet") has been involved with this family since the children's births in 2016. The termination of parental rights ("TPR") actions stem from two dependency, neglect, and abuse ("DNA") petitions filed by the Cabinet. First, on December 22, 2016, the children were removed from Mother's custody at birth due to concerns about domestic violence and housing instability. Mother successfully completed her case plan and the children were returned to her care on October 10, 2017.
The children were again removed from Mother's custody on May 4, 2018, because she left them without supervision in her home for four hours. The children were approximately eighteen months old at the time. At disposition, Mother was ordered to complete a case plan which included the following tasks: (1) completion the University of Kentucky Comprehensive Assessment and Treatment Services ("CATS") parenting assessment; (2) continue individual and family counseling and follow recommendations; (3) maintain stable housing with electricity and utilities; (4) support the children's foster placement; (5) avoid further acts of domestic violence; (6) educate herself on the effect of her actions on the children's development; (7) participate in marriage counseling; (8) educate herself on the children's development stages and functions; and (9) participate in parenting classes with a focus on appropriate behaviors, rules, and consequences. Record ("R") at 106. She did not complete the CATS assessment because CATS declined to work with her based on her intellectual functioning. Id. at 39-41.Otherwise, it is uncontested that she completed her case plan.
Citations are to the record in circuit case no. 19-AD-00029. Records in the two cases are nearly identical. The two cases were heard together by the family court and the appeals have been consolidated by order of this Court.
The Cabinet provided no explanation as to why Mother was not given an alternative task when CATS refused to evaluate her based on her intellectual capabilities.
The family court changed the goal of the DNA cases to adoption approximately seven months later, on November 6, 2018. The Cabinet then filed petitions for involuntary TPR on May 22, 2019. Mother subsequently filed a motion for return of the children to her custody in the DNA actions.
At the hearing on Mother's motion, the Cabinet presented testimony from Cameron Lile, the children's occupational therapist; Sarah Wilson, a licensed psychological associate who evaluated Mother; Monica Bledsoe, therapist for one of the children; and Aundi Thomas, therapist for the other child; Mother; and Brooke Muse, the Cabinet caseworker for the family.
At the TPR trial, the family court took judicial notice of the hearing on Mother's motion and the video recording was made part of the record herein.
Relevant to the termination proceedings, Wilson testified to conducting a psychological evaluation of Mother with an additional focus on parenting skills. She determined Mother's IQ was seventy, placing it in the "borderline range." Wilson reported that when someone has an IQ of seventy, the greatest concern is as to her adaptive behaviors. On the parenting inventory, Mother's responses indicated a medium risk for abusive behaviors in the areas of expectations, corporal punishment, family roles, and power independence; and a high risk for abuse on the empathy scale. Wilson recommended Mother complete parenting classes and emphasized that the children's permanent placement should be dependent on her performance of appropriate parenting skills during supervised visits.
Bledsoe and Thomas each observed a visit between Mother and the children. Bledsoe expressed concern that Mother parented with the children only when someone was observing the interaction. When Bledsoe left the room and Mother was no longer aware that she could see them, Mother ceased interacting with the children. Both Bledsoe and Thomas met with Mother after their visits and discussed the circumstances of the children's removal with her. While Mother indicated that she knew she should not have left the children alone, she did not demonstrate an ability to manage both children on her own. Bledsoe testified that Mother parented "out of fear" by using strategies such as slapping the ground to correct the children's behaviors. Bledsoe testified, based on what she observed, Mother was not adequately parenting the children despite having completed parenting classes.
Mother testified that she understood she could not leave the children alone in the future. She explained that she left the children unsupervised because she was stressed and overwhelmed. However, when asked how she would handle a stressful situation in the future, she testified that she would ask her father for help. Mother then admitted that her father had a history of alcoholism but explained she was not concerned because he now only drinks on the weekends. She also reported that her mother, a paranoid schizophrenic with a history of noncompliance with her medication, lives in her home. Mother acknowledged her mother's history of refusing medication and the fact that she was not involved in Mother's upbringing because of her mental illness. Despite this, Mother was unconcerned about relying on her mother to care for the children.
Muse testified that Mother had reported that she was concerned about her ability to parent both children on her own. Muse also observed the same behaviors by Mother reported by Bledsoe and Thomas. Mother appeared only to parent the children when she knew someone was observing them.
At the close of evidence, the family court denied Mother's motion for return of the children to her custody.
At the TPR trial, the court heard testimony from C.C., the children's foster mother; Muse; Steven Runyon, the Cabinet employee who supervised Mother's visits with the children; and Mother.
Muse testified that Mother completed her case plan except for the CATS assessment which was denied due to her intellectual functioning. She further testified that Mother has been consistent in visiting with the children. Again, Muse was concerned that Mother was inconsistent in her parenting of the children during visits because she appeared attentive only when a social worker was present. Muse was doubtful about Mother's ability to implement what she had learned in parenting classes during an emergency. Muse further testified that, in her opinion, the Cabinet had made reasonable efforts to reunite the family and no additional services were available for Mother.
Finally, Mother testified to her completion of her case plan. She completed multiple courses of parenting classes. She was participating in ongoing individual therapy and was enrolled in marriage counseling. She has maintained her apartment with utilities for approximately one year. She had been employed for two months and was enrolled in online college courses. Mother acknowledged that she does not have the same support system that other parents have. She further explained that, although her mother was helpful with the children and supportive, she would not leave them in her mother's care alone.
After hearing the evidence, the family court entered judgments terminating Mother's parental rights to the children. The court found, in part, the following:
The family court also terminated Father's parental rights. He did not appeal the judgment and is not a party to these appeals.
[Mother] and [Father], for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child[ren] and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child[ren].
[Mother] and [Father], for reasons other than poverty alone, have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the child[ren's] well-being and there is no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future, considering the age of the child[ren].
The child[ren] [have] 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.R. at 321. The court further found "[the Cabinet] has rendered or attempted to render all reasonable services to [Mother] . . . in an effort to bring about a reunion of the family, but these services have not been utilized." Id. at 322. The court then conflictingly found "Mother has essentially completed her case plan[.]" Id.
The family court based its decision to terminate Mother's parental rights on its finding that she "does not have the mental capability to care for [the children]." Id. Ultimately, the court found
[t]he [c]ourt does not believe the mother to be capable of adapting quickly in an emergency situation involving the child. There are not any available services to mitigate the risk to the child[ren]. The mother lacks the familial support system necessary for the child[ren] to be safely returned to her care, as it would likely require a capable and qualified caregiver to live in residence with the mother and children.Id.
This appeal followed.
STANDARD OF REVIEW
[A]lthough termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met. While the state has a compelling interest to protect its youngest citizens, state intervention into the family with the result of permanently severing the relationship between parent and child must be done with utmost caution. It is a serious matter.M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citation omitted). "This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the family court will not be disturbed unless there exists no substantial evidence in the record to support its findings." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998) (citation omitted).
Kentucky Rules of Civil Procedure.
ANALYSIS
On appeal, Mother argues: (1) the family court did not properly consider the reasonable expectation of improvement in her ability to care for and protect the children; and (2) the Cabinet did not make reasonable efforts to reunite her with the children.
KRS 625.090 requires that the family court find the following by clear and convincing evidence: "(1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). Herein, Mother does not contest the family court's finding that the children were abused and neglected.
Kentucky Revised Statutes.
First, Mother alleges the family court erred because there was a reasonable expectation of improvement in her ability to care for the children. To involuntarily terminate parental rights, the family court must find the existence of at least one of the grounds listed in KRS 625.090(2). In this matter, the family court found grounds under KRS 625.090(2)(e), (g), and (j).
Mother is correct that both KRS 625.090(2)(e) and (g) require the court to consider whether there is a "reasonable expectation" of improvement in the parent's conduct. However, Mother's argument ignores the requirement that the family court find the existence of only one of the grounds listed in KRS 625.090(2). In addition to its findings under KRS 625.090(2)(e) and (g), the family court found the children had "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[.]" KRS 625.090(2)(j). This finding is uncontroverted and clearly supported by the record. On this basis, the family court has met the requirements of KRS 625.090(2) and we need not address the adequacy of the court's findings under subsections (e) and (g).
The two subsections require similar findings by the family court. KRS 625.090(2)(e) requires the court to find "there is no reasonable expectation of improvement in parental care and protection, considering the age of the child"; while KRS 625.090(2)(g) requires there be "no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]"
Next, Mother argues the Cabinet did not make reasonable efforts to reunite her with the children. In determining whether termination of a parent's rights is in the children's best interest, the family court must, in part, consider "[i]f the child has been placed with the [C]abinet, whether the [C]abinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents[.]" KRS 625.090(3)(c). "Reasonable efforts" are defined as "the exercise of ordinary diligence and care by the department to utilize all preventative and reunification services available to the community . . . which are necessary to enable the child to safely live at home[.]" KRS 620.020(13).
The family court found the Cabinet "has rendered, or attempted to render, all reasonable services to [Mother] . . . in an effort to bring about a reunion of the family[.]" R. at 322. At trial, Muse agreed that Mother had completed every task the Cabinet requested of her apart from the CATS assessment which she attempted to complete but was denied.
While the family court did not elaborate on the Cabinet's efforts, we may only reverse the court's decision where no substantial evidence exists in the record to support it. M.P.S., 979 S.W.2d at 116 (citation omitted). Our review of the record indicates that the family court's findings are adequately supported. Although Mother substantially completed her case plan, she was unable to satisfactorily alter her parenting. While she acknowledged that leaving the children alone was a mistake, she was unable to identify a safe course of action for a future stressful situation. Mother admits she does not have an adequate system to support her in parenting the children. Even after completion of her case plan, testimony from Muse and the children's therapists indicate that Mother was incapable of appropriately parenting the children.
CONCLUSION
On this basis, we affirm the Barren Circuit Court, Family Division's judgments terminating Mother's parental rights.
ALL CONCUR.