Opinion
NO. 2019-CA-001567-ME NO. 2019-CA-001727-ME
05-01-2020
M.A.P. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; AND C.C.P., A MINOR CHILD APPELLEES AND F.J.P. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; AND C.C.P., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANTS: John Hackley Stanford, Kentucky Than Cutler Stanford, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE MARCUS VANOVER, JUDGE
ACTION NO. 18-AD-00016 OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES. JONES, JUDGE: M.A.P. ("Mother") and F.J.P. ("Father") are the biological parents of C.C.P. ("Child"); they are appealing the Lincoln Family Court's September 13, 2019 order terminating their parental rights. Having reviewed the record and being otherwise sufficiently advised, we AFFIRM.
I. BACKGROUND
Child was born on January 24, 2016. At the time of Child's birth, Mother and Father (collectively referred to as "Parents") were working with the Cabinet for Health and Family Services (the "Cabinet") on parental assessments due to being low functioning, as well as pending neglect and abuse charges related to Parents' three older children. On January 27, 2016, the Cabinet filed a petition for emergency custody of Child in Madison Family Court. The petition was granted. Child was placed in foster care where she has remained continuously. The matter was then transferred to Lincoln Family Court because that court was already presiding over matters relating to Parents' three older children.
Parents' rights to their three older children were terminated on September 28, 2017. Mother appealed those termination orders to this Court. We affirmed the termination orders in an opinion rendered on December 14, 2018; further review was not requested and our opinion is now final. M.A.P. v. Cabinet for Health and Family Services, No. 2018-CA-000031-ME, No. 2018-CA-000032-ME, and No. 2018-CA-000033-ME, 2018 WL 6601874 (Ky. App. Dec. 14, 2018).
On April 14, 2016, the family court made a finding of dependency as related to Child. Child was committed to the Cabinet's temporary custody on May 5, 2016. While Parents completed several tasks on their case plans, circumstances had not changed enough to allow Child to be reunified with Parents. On December 1, 2017, the permanency goal for Child was changed from reunification to termination and adoption. Despite this change, the Cabinet continued to provide Parents with services. On July 16, 2018, the Cabinet filed its petition for involuntary termination of parental rights and the family court held a termination hearing on August 16, 2019.
At the hearing, the family court first heard testimony from Deedra Vongruenigen. Ms. Vongruenigen testified on behalf of the Cabinet. Ms. Vongruenigen had been the ongoing case worker for Parents since approximately March 2016, although the Cabinet had been involved with Parents since around August 2015, due to allegations of physical abuse and neglect of the three older children. Ms. Vongruenigen testified that Parents both received case plans requiring that they (1) cooperate with the Cabinet; (2) complete parenting assessments and follow all recommendations; (3) complete domestic violence assessments and follow all recommendations; and (4) attend individual counseling. Ms. Vongruenigen testified that Parents were referred to the Cabinet's Family Preservation Program ("FFP") for in-home services, Greenhouse 17 for domestic violence, and later were referred to Bluegrass.org for Intellectual or Developmental Disability ("IDD") services. Parents also participated in an evaluation with Dr. Paul Ebben at the Cabinet's expense.
Ms. Vongruenigen testified that Parents were compliant with their original case plans. Parents completed parenting classes on two occasions, both before and after evaluation by Dr. Ebben. While Mother enrolled in and successfully completed parenting classes, Father could not be officially enrolled in the program because he could not read or write, although he attended all classes. Parents were also referred to Comprehensive Care for case management services. These services included budgeting, paying bills, making appointments, and daily living. The only portion of the case plan that Parents initially failed to complete was domestic violence services with Greenhouse 17. Ms. Vongruenigen testified that Parents denied that there was domestic violence in the home.
Prior to Child's birth there were allegations of domestic violence wherein Mother was the alleged perpetrator. Ultimately the charges were dismissed.
In addition to all the services offered to Parents, in June 2018, Comprehensive Care recommended Parents participate in IDD services. Ms. Vongruenigen testified that IDD services were also case management services but were geared toward individuals with intellectual disabilities. While this service was offered, Parents did not take advantage of it because they did not want someone controlling their money. Ms. Vongruenigen testified that Parents continued to have difficulty budgeting and maintaining their monthly obligations. Specifically, Ms. Vongruenigen noted that Parents had sufficient income to support their monthly bills; however, they were frequently without basics, such as electricity. Ms. Vongruenigen testified that when she was in the home in July 2019, Parents were again without electricity. Ms. Vongruenigen, as well as other Cabinet employees, had attempted to help Parents with a monthly budget to no avail.
Despite Parents having completed a portion of their case plans, Ms. Vongruenigen testified that she continued to have concerns with Parents' ability to safely parent Child. Parents could not meet their own individual needs and failed to see anything wrong with their previous actions. Ms. Vongruenigen believed that the Cabinet had exhausted all services possible to help safely return Child.
With regards to Child, Ms. Vongruenigen testified that Parents were initially offered weekly visits; however, visits were changed to bi-weekly because Parents struggled finding transportation to attend weekly visits. Even with this change, Parents did not visit consistently. Additionally, Child is developmentally delayed and attends occupational therapy and First Steps. The Cabinet kept Parents informed about these appointment times; however, Parents did not attend. Despite the developmental challenges faced by Child, Ms. Vongruenigen testified that Child is thriving in her foster home and has made significant strides.
In addition to Ms. Vongruenigen's testimony, the parties, by agreement, admitted the testimony of Dr. Ebben from the termination hearing of Parents' older children. Dr. Ebben administered IQ tests to Parents and found that both parents had low IQs. Dr. Ebben's report recommended that the court move toward termination of parental rights. As a basis for this, Dr. Ebben opined that it would be unsafe to return Child to Parents' care because Parents were incapable of successfully completing or fulfilling the recommendations required to safely return Child. Nevertheless, upon request of the family court, Dr. Ebben made recommendations for Parents which were incorporated into the Cabinet's case plan.
On September 13, 2019, the family court entered its findings of facts and conclusions of law and order terminating parental rights and order of judgment. This appeal followed.
II. STANDARD OF REVIEW
On appeal, this Court is charged with determining if the family court's order terminating parental rights was supported by clear and convincing evidence and, in doing so, reviews the family court's findings for clear error. J.M.R. v. Commonwealth, Cabinet for Health and Family Services, 239 S.W.3d 116, 120 (Ky. App. 2007), overruled on other grounds by Colvard v. Commonwealth, 309 S.W.3d 239 (Ky. 2010); see also CR 52.01. "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (quoting Rowland v. Holt, 253 Ky. 718, 705 S.W.2d 5, 9 (1934)). Under this standard, we afford a great deal of deference to the family court's findings of fact and do not interfere with those findings unless the record is devoid of substantial evidence to support them. K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006).
Kentucky Rules of Civil Procedure.
III. ANALYSIS
KRS 625.090 provides that the court may involuntarily terminate parental rights if the court finds, by clear and convincing evidence, that (1) the child is adjudged to be abused or neglected as defined by KRS 600.020(1); (2) that one or more of the factors enumerated in KRS 625.090(2) exists; and (3) termination is in the child's best interest.
Kentucky Revised Statutes. --------
Parents argue that the family court erred in adjudging Child to be abused or neglected. In support of this, Parents point to the fact that the family court had only ever made a dependency finding with regards to Child. Parents note that in J.H. v. Commonwealth, Cabinet for Human Resources, this Court held that a child cannot be dependent and neglected at the same time. 767 S.W.2d 330, 332 (Ky. App. 1988). However, in Cabinet for Health & Family Services v. K.S., the Kentucky Supreme Court held that a child who was initially adjudged to be dependent may properly transition to a neglected child. 585 S.W.3d 202, 214-15 (Ky. 2019). In K.S., a child was initially taken into the custody of the Cabinet and adjudged dependent. Id. at 214. However, the mother was incapable of demonstrating a change in circumstance that would provide for safe reunification after four years. Id. at 214-215. Because the situation was unlikely to change, the family court found as part of the termination proceeding that the child was at risk of being abused or neglected if returned to the mother. In response to J.H., the K.S. Court noted:
The J.H. case, which was decided over 30 years ago, did hold that a child could not be both dependent and neglected or abused under KRS 600.020. 767 S.W.2d at 332-33. In Z.T. v. M.T., 258 S.W.3d 31 (Ky. App. 2008), however, we noted that J.H. was decided under a prior version of KRS 600.020 and that the statute now "permits a finding that a parent or guardian is abusive or negligent who creates or allows to be created, a risk of abuse or neglect." Id. at 36.Id. at 214.
The testimony from Ms. Vongruenigen and Dr. Ebben supports the family court's abuse and neglect findings. Despite having been offered numerous services, Parents were unable to demonstrate that they would be able to meet Child's needs. In fact, their past conduct indicated precisely the opposite. In light of the testimony, the family court found, and we agree, that there was clear and convincing evidence to prove that Child was at risk of neglect and abuse if returned to Parents. "[C]lear and convincing proof of a potential threat of abuse or neglect if the child is returned to the parent is sufficient to support" the abuse and neglect requirement of our parental termination statutes. Id. (emphasis added).
Following a finding of neglect or abuse, the family court must then determine that termination is in the child's best interest. It is clear that the family court considered the factors enumerated in KRS 625.090(3), in finding that termination was in Child's best interest. Those findings are supported by the evidence of record. Parents cannot meet their own basic needs and have failed to fully avail themselves of services designed to allow them to make better decisions and provide a secure home for Child. They had previously been determined to have abused and neglected their three older children. Child has special needs and requires services to address those needs. Parents failed to participate in Child's therapies and appointments, despite having been provided with the information necessary to allow them to do so. Moreover, Parents failed to consistently visit with Child. In contrast, Child's needs are being met in her current placement, and she is showing marked and steady improvement. She has a bond with her foster family who appears to be ready, able, and willing to continue providing for her care. In sum, the family court clearly considered the factors enumerated in KRS 625.090(3), and made an appropriate and well supported finding that termination was in Child's best interest. There is no basis on which to disturb this finding.
Finally, termination is proper if the family court finds, by clear and convincing evidence, that one of the factors enumerated in KRS 625.090(2) has been met. In this case, the family court found that termination was proper under KRS 625.090(2)(e), (g), & (j). Because only one ground is required, we need not examine the family court's findings with respect to all three. Subsection (j) provides that termination is proper where: "the child has 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[.]" Child entered foster care in January of 2016 where she remained when the Cabinet filed its petition to terminate parental rights in July of 2019, a period of approximately twenty-nine months. Therefore, it is beyond dispute that the family court correctly found one of the enumerated grounds of termination.
IV. CONCLUSION
For the foregoing reasons we AFFIRM the orders of the Lincoln Family Court terminating the parental rights of M.A.P. and F.J.P.
ALL CONCUR. BRIEF FOR APPELLANTS: John Hackley
Stanford, Kentucky Than Cutler
Stanford, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Tiffany Yahr
Lexington, Kentucky