Opinion
2020-CA-1228-ME 2020-CA-1229-ME
07-23-2021
BRIEFS FOR APPELLANTS: Dale L. Horner, Jr. Kimberly C. Morton Maysville, Kentucky BRIEFS FOR APPELLEES CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NOS. 19-AD-00028, 19-AD-00029
BRIEFS FOR APPELLANTS: Dale L. Horner, Jr. Kimberly C. Morton Maysville, Kentucky
BRIEFS FOR APPELLEES CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.
OPINION
MAZE, JUDGE
M.M.S. (Mother) and W.A.S. (Father) appeal from judgments of the Mason Circuit Court terminating their parental rights to their two children. They argue that the trial court failed to consider the impact of the COVID-19 pandemic on the availability of reunification services. We find substantial evidence to support the trial court's findings regarding the reasonableness of reunification services provided. Hence, we affirm.
The relevant facts of this appeal are not in dispute. Mother and Father are the parents of C.F.S. (born June 2011) and M.G.S. (born October 2013). The Cabinet for Health and Family Services (the Cabinet) became involved with the family in 2018 after it received reports that the parents were engaging in substance abuse while in a caretaking role. The Cabinet also alleged that the parents were unable to provide for the basic needs of the children. Pursuant to a prevention plan, the Cabinet gave temporary custody to a paternal grandmother in June 2018.
On September 25, 2018, the Cabinet filed dependency/abuse/neglect (DNA) petitions on behalf of both children. Following a temporary removal hearing, the district court ordered that the children were to be placed with Father, subject to certain conditions. Among other things, those conditions included the requirement that Mother was not to be present in the home and was to be supervised with the children at all times.
Shortly after this placement, the Cabinet became aware that Father also had substance abuse issues. The children were returned to the grandmother's home and both parents were given case plans and treatment plans. However, neither were compliant with those plans. In addition, the parents' visitation with the children was not consistent. New DNA petitions were filed and both parents stipulated to neglect at that time.
In February 2019, the grandmother advised the Cabinet that she could no longer care for the children due to her health issues. The children were placed with relatives through a "child-specific foster care program," under which the relatives were certified as foster parents through an accelerated program. The children have remained in that placement since then.
The parents remained non-compliant with their case plans until October 2019. At that time, they checked into an in-patient rehabilitation program. Around that same time, however, the district court modified the children's permanency goal from reunification to adoption. The Cabinet filed the current petitions to terminate their parental rights on December 23, 2019.
Nevertheless, the Cabinet continued to provide services to the parents during this period. The parents completed the rehabilitation program in mid-November 2019. After a period of clean drug tests, the Cabinet resumed supervised visitation with the children. The parents continued to make progress on their case plans and treatment plans for several months.
This situation changed in March 2020, when the parents' in-person visitation with the children ceased due to the COVID-19 pandemic. In addition, the parents were unable to schedule drug screens or attend treatment and support meetings. The family's case worker, Samantha Burris, testified that she increased their phone visits with the children to compensate. Shortly after the lockdown, Burris received information that both parents had relapsed into drug use. The parents also ceased having any contact with the Cabinet after May 2020. Based on this lapse of progress, the Cabinet requested a final termination hearing, which the trial court scheduled for June 30, 2020.
At that hearing, Burris testified as to the case history. She also testified that both children were doing well in their current placement and that they will soon be adopted by their relatives. Mother and Father each admitted to alcohol or drug use within the last several weeks prior to the hearing. However, both asked for additional time to resume their treatment. Their appointed counsel argued that the Cabinet's push toward termination was motivated by a desire to discontinue payments to the foster parents rather than a desire to reunite the family. The Cabinet denied any financial motivation for the placement, noting that federal law requires it to treat foster placements and relative placements in a similar manner. See D.O. v. Glisson, 847 F.3d 374, 378 (6th Cir. 2017). The Cabinet also emphasized the parents' lack of progress and recent relapses as justification for proceeding with termination of their parental rights.
After taking the case under submission, the court entered findings of fact and conclusions of law, and separate orders terminating the parents' rights to each of the children. Mother and Father now appeal from the judgments terminating their parental rights to each of the children. This Court ordered those appeals consolidated. Additional facts will be set forth below as necessary.
On review of an order terminating parental rights, we ask whether the trial court's findings were clearly erroneous. Cabinet for Families & Children v. G.C.W., 139 S.W.3d 172, 178 (Ky. App. 2004). The trial court's factual findings will not be disturbed unless there exists no substantial evidence in the record to support them. V.S. v. Commonwealth, Cabinet for Human Res., 706 S.W.2d 420, 424 (Ky. App. 1986). "[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01.
Kentucky Rules of Civil Procedure.
KRS 625.090 provides for the involuntary termination of parental rights upon the court's finding that clear and convincing evidence establishes that a child is, or has previously been adjudged, abused or neglected. KRS 625.090(1). Then, the court must find the existence of one or more of eleven specific grounds set forth in KRS 625.090(2). M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 851 (Ky. App. 2008). Finally, the court must find that termination of parental rights would be in the best interests of the child. KRS 625.090(3).
Kentucky Revised Statutes.
Mother and Father do not challenge the sufficiency of the trial court's findings under KRS 625.090(1) or (2). Rather, they only argue that the trial court erred in not considering the impact of the COVID-19 pandemic on the Cabinet's ability to provide reunification services to them. We construe this argument as challenging the trial court's best-interests finding under KRS 625.090(3)(c), which provides as follows:
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 reunitethe 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[.]
We are concerned with the speed with which the Cabinet proceeded on the termination petitions. At the time the petitions were filed, the children had been out of their parents' home for only about a year - fourteen months counting the additional period that they were with the grandmother under the prevention plan. The Cabinet sought to change the goal to adoption while the parents were in treatment and initiated the termination proceedings despite the parents' initial progress following that treatment. At the very least, the Cabinet's move toward termination of parental rights seems somewhat premature.
However, the factor set out in KRS 625.090(3)(c) is only one of six factors which the court must consider to determine the best interests of the child and the existence of a ground for termination. The parents do not contest the trial court's application of the other factors in finding that termination would be in the best interests of the children.
We also note that neither parent contests the reasonableness of the Cabinet's services provided for the fifteen months prior to March 2020. Indeed, while the trial court changed the goal to adoption in October 2019 and the Cabinet filed the termination petitions in December 2019, the Cabinet continued to provide the parents with a full range of reunification services during and after this period.
And finally, neither parent presented any evidence that additional reunification services would be likely to bring about lasting parental adjustment enabling a return of the children to the parents. See KRS 625.090(4). The parents began to relapse within a few weeks after the pandemic restrictions went into place. They ceased any contact with the Cabinet for over a month. At the time of the evidentiary hearing, each admitted to recent alcohol and drug use. Considering the parents' failure to comply with case and treatment plans prior to October 2019 and their inability to maintain sobriety after treatment, the trial court had an ample basis to doubt the efficacy of additional services. Under the circumstances, the trial court did not err in finding that the Cabinet rendered reasonable services and there was no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future. Therefore, we find no basis to set aside the trial court's findings of fact, conclusions of law, or judgments terminating Mother's and Father's parental rights.
Accordingly, we affirm the judgments terminating the parental rights of Mother and Father in the above-styled cases.