Opinion
2022-CA-1036-ME 2022-CA-1037-ME 2022-CA-1025-ME 2022-CA-1030-ME
03-17-2023
M.D.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; J.L.C., A MINOR CHILD; AND J.J.C. APPELLEES AND M.D.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; E.J.S., A MINOR CHILD; J.J.C.; AND B.D.S. APPELLEES AND v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.L.C., A MINOR CHILD; AND M.D.A. APPELLEES AND v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; E.J.S., A MINOR CHILD; M.D.A.; AND B.D.S. APPELLEES
BRIEF FOR APPELLANT M.D.A.: N. Blaze Tomlin BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz BRIEF FOR APPELLANT J.J.C.: Howard Stone
NOT TO BE PUBLISHED
APPEAL FROM BATH CIRCUIT COURT HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 21-AD-00009, 21-AD-00010.
BRIEF FOR APPELLANT M.D.A.: N. Blaze Tomlin
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz
BRIEF FOR APPELLANT J.J.C.: Howard Stone
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
OPINION
THOMPSON, CHIEF JUDGE:
M.D.A. (hereinafter referred to as Mother) and J.J.C. (hereinafter referred to as Father) appeal from orders terminating their parental rights to their children, E.J.S. (hereinafter referred to as Child 1) and J.L.C. (hereinafter referred to as Child 2). Counsel for Mother and Father have filed Anders briefs for these consolidated cases; therefore, this Court has reviewed the briefs and made an independent review of the merits of this case. After reviewing the record and termination hearing, and keeping in mind the termination of parental rights requirements set forth in Kentucky Revised Statutes (KRS) 625.090, we conclude there was no error in the trial court's termination of Mother's and Father's parental rights.
As this case concerns the termination of parental rights, we will not use the names of the parties in order to protect the privacy of the children.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
FACTS AND PROCEDURAL HISTORY
Mother, Father, and the children were originally residing in North Carolina. In 2019, the maternal aunt of the children took the children to Kentucky with plans for the parents to eventually follow. In August of 2019, the maternal aunt tried to enroll the children in school; however, she did not have legal custody of the children nor a power of attorney. This prevented her from enrolling the children in school. The Cabinet for Health and Family Services was then contacted. After interviewing the children and the aunt, there was some concern about the parent's using drugs and not having stable living arrangements. The aunt was given emergency custody of the children.
Father is not the biological father of Child 1. The biological father is B.D.S., but he has never taken part in the child's life and did not participate in this case. The trial court considered Father as the putative father of Child 1.
Eventually the parents moved to Kentucky and a hearing was held on October 1, 2019. The children were then returned to the parents, and the parents were ordered to cooperate with the Cabinet and undergo random drug testing. On December 19, 2019, the Cabinet was contacted by the Beacon of Hope homeless shelter. Staff at the shelter reported that the parents had tested positive for illegal drugs. The Cabinet removed the children from the custody of the parents due to this drug use.
On January 30, 2020, the parents stipulated to using drugs and the children were deemed to have been neglected by the district court. On February 13, 2020, the children were placed in the Cabinet's custody. The children were then placed in the same foster home and have remained there ever since.
We should note that Child 2 is deaf. Once he was placed in the foster home, he was enrolled at the Kentucky School for the Deaf in Danville, Kentucky. Mother and Child 2 knew a little sign language, but neither was proficient. Father did not know any sign language. The adults in the foster home also do not know sign language.
On July 29, 2021, the Cabinet filed petitions to terminate Mother's and Father's parental rights to the children. A termination hearing was held over two days on March 10, 2022, and April 13, 2022. Numerous witnesses testified, including Mother, Father, and the Cabinet social worker. On July 26, 2022, the court entered orders terminating Mother's and Father's parental rights to the children. This appeal followed.
At the time of the hearing, Child 1 was fifteen years old and Child 2 was ten years old.
ANALYSIS
KRS 625.090 is the statute that sets forth the requirements for the involuntary termination of parental rights. KRS 625.090 states in relevant part:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; ...
(b) 1. The Cabinet for Health and Family Services has filed a petition with the court pursuant to KRS 620.180 or 625.050; or
2. A child-placing agency licensed by the cabinet, any county or Commonwealth's attorney, or a parent has filed a petition with the court under KRS 625.050; and
(c) Termination would be in the best interest of the child.
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
(h) That: 1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect;
(j) That 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; or
(k) That the child has been removed from the biological or legal parents more than two (2) times in a twenty-four (24) month period by the cabinet or a court.
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
(4) 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.
(5) If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.
(6) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parentrespondent within thirty (30) days either:
(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
We will now set forth the standard of review for termination of parental rights cases.
The standard for review in termination of parental rights cases is set forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998). Therein, it is established that this Court's standard of
review in a termination of parental rights case is the clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR) 52.01, which is based upon clear and convincing evidence. Hence, this Court's review is to determine whether the trial court's order was supported by substantial evidence on the record. And the Court will not disturb the trial court's findings unless no substantial evidence exists on the record.
Furthermore, although 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 very serious matter.M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (citations omitted).
The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence. "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."V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 42324 (Ky. App. 1986) (citations omitted).
After reviewing the record, hearing, and relevant law, we conclude that the trial court did not err in this case. The parents did not complete their case plan even though the children had been in the custody of the Cabinet for over 20 months at the time of the termination hearing. They did, however, make some progress. At the time of the termination hearing, Father was employed and Mother was receiving disability benefits from the government. They also had stable housing. Mother and Father had also completed the parenting classes and mental health assessments they were required to take. The primary issue in this case was that the parents did not regularly participate in the required drug screenings. They missed over half of the screenings the Cabinet requested they take. Also, when they did participate in the drug screenings, they continued to test positive.
The failure to fully cooperate with the Cabinet in regard to the drug screenings and continuing to test positive caused the children to remain in the Cabinet's custody for over 20 months. This constitutes neglect. KRS 625.090(1)(a)2.; KRS 600.020(1)(a)3.; KRS 600.020(1)(a)9. This drug use also satisfies KRS 625.090(2)(e) and KRS 625.090(2)(j).
As for KRS 625.090(3), the best interests of the children, testimony indicated that they are comfortable in their foster home and are doing well emotionally and physically. KRS 625.090(3)(e). In addition, while the parents made many improvements in their lives, they were unable to complete their case plan due to continued drug use and the failure to participate in drug screenings. KRS 625.090(3)(d). Finally, Mother was ordered to pay child support for the children. She did pay some child support, but at the time of the hearing she had an arrearage of over $700. KRS 625.090(3)(f). As for Father, he was not ordered to pay child support; however, he was employed and did not voluntarily provide money or other necessities to the children during their time in foster care. Id.
CONCLUSION
Based on the foregoing, we find no error in the termination of Appellants' parental rights. There was substantial evidence in the record to support the conclusions of the trial court and the factors in KRS 625.090 were met. We affirm.
ALL CONCUR.