Opinion
NO. 2020-CA-0603-ME
04-09-2021
M.A.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; UNKNOWN FATHER; AND A.A.S. APPELLEES
BRIEF FOR APPELLANT Michael W. Cotthoff Hopkinsville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Leslie Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JASON SHEA FLEMING, JUDGE
ACTION NO. 19-AD-00070 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: M.A.S. (hereinafter referred to as Mother) appeals from findings of fact, conclusions of law, and final decree of the Christian Circuit Court terminating her parental rights as to her minor child A.A.S. (hereinafter referred to as Child). Mother argues that the circuit court erred in finding that reasonable efforts were made to bring about reunification; erred in finding that sufficient grounds existed to support termination; and abused its discretion by not utilizing Kentucky Revised Statutes ("KRS") 625.090(4) and (5) to avoid the termination of her parental rights. For the reasons addressed below, we find no error and affirm the judgment on appeal.
This case involves allegations of the dependency and neglect of a minor child; therefore, we will not use the names of the parties involved in order to protect the child's privacy.
FACTS AND PROCEDURAL HISTORY
Mother is the biological parent of Child, who was born on October 20, 2017, in Daviess County, Kentucky. Child's father could not be determined despite diligent efforts. Child resides in a state-approved foster home with a husband and wife who previously adopted some of Child's siblings.
Six men received DNA tests to determine paternity. Each test returned a negative result. Mother identified a seventh man for testing, but he could not be located. --------
On January 23, 2018, Child was placed in the custody of the Cabinet for Health and Family Services ("the Cabinet") by order of the Christian Circuit Court, Family Division in Juvenile Action No. 18-J-00026-1. The order resulted from a petition filed by the Cabinet which alleged that Child had sustained a skull fracture while in the care of Mother. The injury was reported to authorities by a representative of Jennie Stuart Hospital. Mother claimed that Child was injured when Mother fell while carrying Child.
On August 8, 2019, the Cabinet filed a petition with the circuit court seeking the involuntary termination of Mother's parental rights as to Child. A hearing on the matter was conducted on February 3, 2020.
On March 30, 2020, the Christian Circuit Court found by clear and convincing evidence that Child is an abused and neglected child as defined by KRS 600.020(1). In support of this finding, the court determined that Mother engaged in a pattern of conduct that rendered her incapable of caring for the immediate and ongoing needs of Child, including, but not limited, to parental incapacity due to a substance abuse disorder as defined in KRS 222.005(12). The court further found that Mother has long history of substance abuse and a drug-related criminal record. Kayleigh Graves, the social worker assigned to Mother's case, testified at the February 3, 2020 hearing that a case plan was developed to facilitate Mother's reunification with Child. This plan included the conditions that Mother abstain from illegal substances and address her drug abuse issues; cooperate with mental health services and medication management; and maintain employment and suitable housing. Graves testified that Mother failed to complete any of these goals.
The circuit court went on to find that Mother's criminal history includes DUI, public intoxication, possession of marijuana, possession of cocaine, alcohol intoxication, and wanton endangerment. Mother was also repeatedly charged with possession of synthetic drugs. During the pendency of this action, Mother was enrolled in three substance abuse programs. She completed the first program, but soon relapsed. She was then removed from the second program after a failed drug screen. At the time of the February 3, 2020 hearing, Mother was enrolled in the third program and was currently compliant. The program was going to take several more months to complete. Given the court's years-long contact with Mother, her history of non-compliance and relapse, the length of time Child was in foster care, and the time required to complete the third program, the court determined that it could no longer delay action on the Cabinet's petition.
In light of the foregoing, the court found Child to be abused and neglected (KRS 600.020(1)(a)3.), that Mother failed to make sufficient progress toward identified goals in the court-approved case plan, and that Child remained in foster care for at least 15 out of 48 months (KRS 600.020(1)(a)9.). The court then considered whether termination would be in Child's best interest pursuant to KRS 625.090(1)(c) and considered of the factors set forth in KRS 625.090(3). The court found that Child is the fifth offspring born to Mother, with her parental rights as to the other four children having been terminated. The oldest child was adopted by his paternal grandparents, with the remaining children, including Child, being fostered by a married couple. The wife of this married couple testified that Child has recovered from her skull fracture, has bonded with her three siblings, and is forming close relationships. She testified that Child is smart, active, and otherwise developing properly, and that wife and husband are willing to adopt her.
In contrast, Graves testified that Mother failed to comply with or complete her prevention plan, and that no changes have occurred in Mother's behavior to justify Child's return. She testified that the Cabinet has offered all available resources to help Mother reunite with Child, but despite these efforts there is no expectation for improvement in the foreseeable future. Graves stated her opinion that Child's adoption by the married couple was in Child's best interest. Child's guardian ad litem, Doug Willen, mirrored Graves' testimony, noting that Mother's continued drug use and psychiatric issues demonstrated that Child would be at risk if she were returned to Mother, and that Child's best interests were served by termination.
The court then considered each of the factors set forth in KRS 625.090(2) in concluding that termination of Mother's parental rights was proper. The court considered these factors in serial fashion, including Mother's mental illness; acts of abuse or neglect; the failure of reunification attempts; the efforts, if any, of Mother to make changes to justify reunification in a reasonable period of time; Child's physical, emotional, and mental health; and Mother's ability to contribute financially to Child's wellbeing. The court ultimately concluded that termination was in Child's best interests.
Finally, pursuant to KRS 625.090(2)(e), the court found that Mother failed or refused for a period of not less than six months to provide essential parental care and protection with no reasonable expectation of improvement. The court then entered the order terminating Mother's parental rights, and this appeal followed.
ARGUMENTS AND ANALYSIS
Mother, through counsel, argues that the circuit court erred in terminating her parental rights as to Child. Specifically, she maintains that the Cabinet failed to establish the elements necessary to support termination, to wit, 1) that Child is abused and neglected; 2) that termination would be in Child's best interests; and, 3) that at least one of a number of specified grounds exist. KRS 600.020; KRS 625.090(1)(a) and (b); and, KRS 625.090(2). See also M.L.C. v. Commonwealth, Cabinet for Health and Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013), and V.S. v. Cabinet for Human Resources, 706 S.W.2d 420 (Ky. App. 1986). She argues that Child was not abused or neglected, that she never emotionally or physically abused her children, and that her absence from Child was brought about by her involuntary incarceration and participation in drug treatment programs. Mother argues that the circuit court erred in finding that she engaged in a pattern of conduct rendering her incapable of caring for Child's immediate and ongoing needs. Further, Mother asserts that her parental rights have been terminated to three prior children, not four children as found by the circuit court, and that termination as to Child is not in Child's best interests.
As to the third element supporting involuntary termination, Mother argues that the circuit court erred in finding that one of the eleven enumerated grounds for termination exist. Finally, Mother contends that the court improperly found that reasonable efforts were made to support reunification, and that the court should have applied KRS 625.090(4) (testimony supporting reunification) and/or KRS 625.090(5) (evidence that child will not continue to be abused and neglected after reunification) to avoid the termination of her parental rights. In sum, Mother seeks an opinion reversing the order on appeal.
Parental rights may be terminated if there is a finding that the child has been adjudged to be abused or neglected by a court of competent jurisdiction, or that the child is found to be abused or neglected in the current action by clear and convincing evidence. KRS 625.090(1)(a)1.-.2.
"Abused or neglected" means a child whose health or welfare is harmed or threatened with harm when . . . her parent . . . [e]ngages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child [or] . . . [c]ontinuously or
repeatedly fails or refuses to provide essential parental care and protection for the child[.]KRS 600.020(1)(a)3.-4.
In the matter before us, Child was adjudged to be a dependent child in the underlying juvenile case. That record was expressly incorporated into the termination proceeding. The circuit court then found that Mother engaged in a pattern of conduct that rendered her incapable of providing for the immediate and ongoing needs of Child pursuant to KRS 600.020(1)(a)3., i.e., that Child was abused or neglected. In support of this finding, the court noted Mother's long history of substance abuse, criminal activity, and untreated mental health issues. It found that she relapsed after release from a drug treatment facility and was expelled from another program upon testing positive for illegal drugs. The court further noted that Mother was involuntarily hospitalized for mental health issues on multiple occasions and had attempted suicide. Therapist notes dated November 2019 indicated that Mother was still exhibiting erratic behaviors and was unwilling to comply with medication recommendations. The record amply supports the finding that Mother engaged in a pattern of conduct that rendered her incapable of caring for the immediate and ongoing needs of Child. We find no error as to this element.
Mother next argues that the circuit court erred in concluding that termination was in Child's best interests. She contends that Child's interests are best served by allowing Mother to continue drug and mental health treatment, after which time the parental relationship should be resumed.
In order to sustain a petition for the involuntary termination of parental rights, the court must find by clear and convincing evidence that termination would be in the best interests of the child. KRS 625.090(1)(c). The record amply demonstrates that Mother has failed to engage in substance abuse and mental health treatment in a timely manner, and has continued with the same pattern of behavior for the majority of this case. In contrast, testimony was adduced that Child is doing well with her foster parents, who have already adopted some of Child's siblings. Child is thriving, well-adjusted, developmentally on track, and has bonded with her foster family who appear willing to adopt her. The record supports the circuit court finding that the termination of Mother's parental rights is in Child's best interests.
The next question raised by Mother is whether the circuit court erred in finding that one of the eleven enumerated grounds for termination existed as set out in KRS 625.090(2). Mother concedes that at least one of these grounds has been satisfied, i.e., that Child has been in foster care under the responsibility of the Cabinet for at least 15 cumulative months out of the 48 months preceding the petition. KRS 625.090(2)(j). This element having been satisfied, we find no error.
Mother goes on to argue that the circuit court erred in finding that reasonable efforts in support of reunification had been made available to her. KRS 625.090(3)(c) provides that in determining the child's best interests, the court shall consider whether reasonable efforts to reunite the child with the parent were made prior to the filing of the petition. Mother contends that such efforts were lacking, and that the circuit court erred in failing to so find.
The record demonstrates that the Cabinet worked with Mother for several months prior to the filing of the petition for termination of parental rights, and continued to work with Mother up to the time of trial. Mother was presented with the full panoply of drug abuse and mental health services, though those efforts were unsuccessful. Mother was also presented with a case plan, which included the requirement of maintaining stable housing and employment. At the time of trial, mother had neither stable housing nor employment. When examining the entirety of the record, and the myriad of efforts made to facilitate Mother's resolution of her drug and mental health issues, we do not conclude that the circuit court erred in finding that reasonable efforts had been offered to Mother to facilitate reunification with Child.
Mother's final argument is that the court improperly failed to apply KRS 625.090(4) (testimony supporting reunification) or KRS 625.090(5) (evidence that child will not continue to be abused and neglected after reunification) to avoid the termination of her parental rights. KRS 625.090(4) states:
If the child has been placed with the cabinet, the parent may present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.Mother has not demonstrated that additional services offered by the Cabinet would be likely to bring about lasting parental adjustment enabling a return of Child to Mother.
As to KRS 625.090(5), which allows the court to consider a parent's claim that the child will not continue to be abused or neglected as defined by KRS 600.020(1), we also find no error. This statute provides that the court "may" consider such a claim, and that the resolution of same is "in its discretion." It must also be proven by a preponderance of the evidence. Id. We find no basis in the record for concluding that Mother has proved by a preponderance of the evidence that Child will not continue to be neglected in the future, nor that the circuit court abused its discretion on this issue.
CONCLUSION
The trial court has broad discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. This Court's review in a termination of parental rights action is confined to the clearly erroneous standard in [Kentucky Rules of Civil Procedure (CR)]
52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. 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.R.C.R. v. Commonwealth Cabinet for Human Resources, 988 S.W.2d 36, 38-39 (Ky. App. 1998), as modified (Jan. 29, 1999) (internal quotation marks and citations omitted). "In a trial without a jury, the findings of the trial court, if supported by sufficient evidence, cannot be set aside unless they are found to be clearly erroneous. This principle recognizes that the trial court had the opportunity to judge the witnesses' credibility." Id. at 39 (internal quotation marks and citations omitted).
Substantial evidence exists to support the Christian Circuit Court's finding that Child is abused and neglected, that termination would be in Child's best interests, and that at least one of the specified grounds exist to support termination. Reasonable efforts were made in support of reunification, and the circuit court did not err in failing to grant relief under KRS 625.090(4) and (5). Having found no error, we affirm the findings of fact, conclusions of law, and final decree terminating parental rights entered by the Christian Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT Michael W. Cotthoff
Hopkinsville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Tiffany L. Yahr
Leslie Laupp
Covington, Kentucky