Opinion
NO. 2014-CA-000061-ME
05-15-2015
M.W. APPELLANT v. CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, G.W.L.M., AN INFANT, AND M.S.P., AN INFANT APPELLEES
BRIEF FOR APPELLANT: Barbara Anderson Lexington, Kentucky BRIEF FOR APPELLEE: Cynthia Kloeker Florence, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 12-AD-0031 AND 12-AD-00032
OPINION AND ORDER
AFFIRMING AND GRANTING MOTION TO WITHDRAW
BEFORE: CLAYTON, D. LAMBERT, AND J. LAMBERT, JUDGES. CLAYTON, JUDGE: M.W., the mother, appeals two separate Scott Family Court judgments terminating parental rights to her sons, M.S.P. and G.W.L.M., respectively. In addition, a motion by M.W.'s attorney to withdraw was passed to this panel. After careful consideration, we affirm the Scott Family Court judgments and grant the motion of M.W.'s attorney to withdraw.
FACTUAL AND PROCEDURAL BACKGROUND
On December 17, 2012, the Cabinet for Health and Family Services (hereinafter the "Cabinet") filed two petitions to involuntarily terminate the parental rights of M.W. One petition sought to terminate her parental rights to her son, M.S.P., who was born on April 25, 2009. His father, R.M.R., Jr., died on February 25, 2011. The second petition sought to terminate her parental rights to her son, G.W.L.M., who was born on April 1, 2012. During the pendency of the action, his putative father, G.M., executed an entry of appearance, waiver, and consent to termination of parental rights. The petitions related to M.S.P. and G.W.L.M. stated that they were abused or neglected children.
In July 2011, the mother had moved to Kentucky and was living with G.M., her boyfriend, and pregnant with his child, G.W.L.M. She worked as an exotic dancer prior to the move to Kentucky and continues in this occupation. On August 29, 2011, she took M.S.P., who at that time was 28 months, to the emergency room at Georgetown Hospital. He was lethargic and throwing up. Additionally, the child had significant injuries to his body including but not limited to burn marks on his feet, bruising to his chest, a knot on his head, and petechial bruising to his ears. M.S.P. was transferred to the University of Kentucky Medical Center. Given the injuries and both M.W.'s and G.M.'s inability to provide neither a plausible nor an appropriate explanation for the injuries, a report of abuse was made to the Cabinet.
Given the extent of the injuries and the implausibility of M.W.'s explanation of the injuries, the Cabinet filed a petition in Scott Family Court seeking to remove M.S.P. from the home. On August 29, 2011, the family court granted an emergency custody order, which placed M.S.P. in the custody of the Cabinet. He has resided in foster care since that date.
On August 31, 2011, an emergency custody hearing, for which M.W. was late, was held at which time the family court permitted the abuse petition to be amended to add neglect. The family court order also required that pending the next hearing, M.W. was to have supervised contact and G.M. was to have no contact with the child.
In addition, the Cabinet explained at the hearing that its first referral for the child was in July 2011. At this time, it referred the child to First Steps and procured a doctor's appointment for him. The mother failed to follow through with either referral. The Cabinet also made attempts at home visits but M.W. and G.M. moved without notifying the Cabinet. Apparently, they were moving from hotel to hotel.
On September 6, 2011, M.W. executed a case plan with the Cabinet wherein she agreed to submit to random drug screens and to complete assessments for domestic violence, substance abuse, and parenting. She also agreed to follow all recommendations of the Cabinet. Next, on March 9, 2012, the family court held an adjudication hearing at which M.W. stipulated that she had failed to protect M.S.P. from abuse by another person. The family court then determined that the child was neglected by his mother.
On April 1, 2012, G.W.L.M. was born. Because of its finding that M.W.'s first child was at risk of harm and her failure to comply with her case plan, the family court entered an order on April 2, 2012, that M.W. should only have supervised contact with the newborn child. Thereafter, the Cabinet filed a petition, which the family court granted and gave the Cabinet emergency custody of G.W.L.M. based on the risk of harm to the newborn child given the injuries suffered by his half-brother, M.S.P.
Evidence concerning the risk of harm was provided by the testimony and affidavits of Cabinet social workers that G.M., G.W.L.M.'s father, had inflicted the injuries on the newborn child's half-brother, M.S.P., his failure to comply with the Cabinet's directives, and M.W.'s continued contact with G.M. even though the court had ordered "no contact." In addition, G.M. was suspected of abusing pills and methamphetamine and had a prior history with the Cabinet related to two older children. On May 7, 2012, M.W. stipulated to the risk of neglect for G.W.L.M. The family court committed both children to the Cabinet as neglected children, and M.W. was ordered to have no contact with G.M.
Given the Cabinet's original concern about M.W.'s lack of progress in her case plan, the Cabinet offered her an assessment by the University of Kentucky Center on Trauma and Children (hereinafter "CATS") clinic to review the totality of the circumstances of the case and make recommendations. When the assessment was completed, reunification was not recommended because M.W.'s prognosis for change was guarded since her personality features are resistant to change. Nor could the CATS clinic offer any further services to mitigate M.W.'s barrier to improved functioning. After the family court received the CATS assessment, the permanency goals were changed to adoption.
On December 10, 2012, the family court changed the permanency goals for the two children to adoption because of the reports and evaluation by the CATS clinic and the recommendation by the University of Louisville Pediatric Forensics office that the children not be returned to M.W.
A trial on the involuntary termination of parental rights took place on June 14, 2013 and November 22, 2013. Neither Dr. Melissa Currie from the University of Louisville School of Pediatric Forensic Medicine nor Amy Mau, the program manager and team leader of the CATS program could attend the first hearing despite the issuance of subpoenas. Thus, a second date of trial was held in November 2013 so that they could testify. At the second hearing date, the social worker also provided testimony about M.W.'s progress since the first court hearing.
Kasey Spicer, the Cabinet social worker, testified on both days of the trial. Besides testifying about the removal of the children, Spicer reported problems experienced by M.W., which prevented the return of her children. These problems included substance abuse, domestic violence, lack of stable housing and employment, poor parenting, associating with persons who had a criminal lifestyle including drugs, open child protective cases, anger management issues, and mental health issues. Spicer gave details about the Cabinet's offer of parenting classes; random drug screens; mental health, domestic violence, and substance abuse assessments; individual counseling, anger management, cognitive behavioral sessions, supervised visitations, the CATS assessment, and referral for subsidized housing.
Spicer stated at trial that M.W. completed parenting classes in February 2012 and complied with random drug screens but failed to complete other services prior to the birth of G.W.L.M. in April 2012. At the time of the first trial date, M.W. had completed parenting classes twice, anger management, cognitive behavioral classes, and the CATS assessment. But despite a "no contact" order with G.M., M.W. continued to have contact with him including sharing the same address. Further, M.W. continued to have anger issues, difficulties with social relationships, and a poor support system. She also did not have stable employment or housing. Spicer stated that no other services could be offered to M.W.
On the second day of the trial, Spicer updated the family court about the family since the June 14, 2013 hearing. M.W. missed seven of her possible 22 visits with her sons and continued to be on her phone during the visitations. She demonstrated no changes in behavior and had not made any significant changes in her lifestyle.
Spicer also testified that M.W. failed to provide M.S.P. essential parental care and protection for more than 6 months and for G.W.L.M. since his birth. Further, the social worker maintained that M.W., for reasons other than poverty alone, failed to give M.S.P. the necessities of life such as food, clothing, shelter, education, and medical care. For instance, when M.S.P. entered foster care he was behind in his immunizations, had herpes since his birth, and had not been taken to medical appointments. Further, the child continued to have outbreaks of herpes since M.W. shared food and drink with him despite being told not to do so. G.W.L.M. has resided in foster care his entire life, and thus, M.W. has not provided him with the necessities of life.
M.W. missed visitations with the children. She was to visit the youngest child two times per week and the older child one time a week during the school year and twice a week during the summer. According to the social worker, she usually missed two to three visitations per month. Although M.W. claimed that transportation was an issue, she lived close enough to the Cabinet to walk to the visits. The mother also disregarded M.S.P.'s dietary restrictions. She also used her cell phone during the visitations. She appears to have little or no bond with her youngest son and interacts minimally with the children during visitation.
According to the social worker's testimony, M.S.P. is doing well in foster care and is up-to-date on his immunizations. When he first entered foster care, he was aggressive, had issues with his temper, was not potty trained, and could not follow rules or express his needs and wants. He is now like a different child and no longer has these problems. G.W.L.M. has been in foster care since birth and is progressing normally.
At the second hearing, Dr. Currie from the University of Louisville School of Medicine testified. She was asked to evaluate the pictures taken of M.S.P.'s injuries, his medical records, and ascertain whether child abuse had occurred. After an extensive discussion of the injuries, the possible explanations, and the child's physical make-up, Dr. Currie testified that she determined that the child was physically abused based on the location of the bruising, its pattern, the number of bruises, and the implausibility of the explanation for the bruises. Besides this abuse, M.W. was also observed by hospital personnel about to slap the child but stopping when she noticed that she was being observed. Dr. Currie stated that she had grave concerns about the child being returned to his previous environment.
Amy Mau, from the CATS program also testified. She explained that a team consisting of two psychologists, two social workers, and a nurse evaluated the family. During the process, M.W. continued to deny that any child abuse occurred. Mau had concerns about M.W.'s lack of insight, continued relationship with a man who was responsible for a methamphetamine search in her home, failure to consistently visit her children, and failure to attend her mental health treatments. Furthermore, Mau expressed reservations about M.W.'s relationship with M.S.P. and her own history of substance abuse, volatile relationships, and anger issues. While the Cabinet during its testimony acknowledged that M.W. passed her drug screens, the evaluation by the CATS program alleged that M.W. had a substance abuse problem.
In addition, M.W. had not maintained stable housing. Ultimately, as previously cited, the CATS clinic recommended that permanence be sought for the children and did not recommend a case plan for M.W. based on her lack of motivation.
On December 11, 2013, the Scott Family Court entered findings of fact and judgments of termination of parental rights for the two children. In the judgment terminating the parental rights to M.S.P., the family court held, among other things, that he was an abused and neglected child under KRS 600.020(1); his father was deceased and unable to provide essential parental care and protection and the necessities of life for the child; and, M.W., the mother, has inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm.
Additionally, the judgment of the family court provided that the parents of the child, for a period of not less than six (6) months, have continuously or repeatedly failed or have refused to provide or have 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. And the parents, for reasons other than poverty alone, 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's well-being and there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child. Furthermore, the family court held that termination of parental rights was in the best interests of M.S.P.
In the judgment terminating the parental rights to G.W.L.M., the family court held, among other things, that he was an abused and neglected child as defined in KRS 600.020(1); his father voluntarily consented to termination of his parental rights and his adoption; and, M.W., the mother, has inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm.
Additionally, the judgment of the family court provided that the mother of the child, for a period of not less than six (6) months, has continuously or repeatedly failed or has refused to provide or has been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child. And the mother, for reasons other than poverty alone, 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 there is no reasonable expectation of significant improvement in the parental conduct in the immediately foreseeable future, considering the age of the child. Furthermore, the family court held that termination of parental rights was in the best interests of G.W.L.M.
M.W. now appeals these decisions. Pursuant to Kentucky Revised Statutes (KRS) 625.090(1), she maintains that clear and convincing evidence was not provided that M.S.P. was an abused or neglected child under KRS 600.020. Additionally, M.W. argues that clear and convincing evidence was not provided to show the existence of a ground for termination listed under KRS 625.090(2). Lastly, she contends that the Cabinet failed to prove that termination of parental rights was in the best interests of the children. The Cabinet responds that the family court appropriately decided these cases since clear and convincing evidence existed that termination of parental rights was in the best interests of M.S.P. and G.W.L.M.
STANDARD OF REVIEW
Initially, we observe that the family court has wide discretion in terminating parental rights. Commonwealth of Kentucky, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)). Further, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. Kentucky Rules of Civil Procedure ("CR") 52.01.
In applying this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them. T.N H., 302 S.W.3d at 663. Keeping this standard in mind, we turn to the statutory requirements for a termination of parental rights.
ANALYSIS
I. Termination of parental rights
As provided in Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014), "KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (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." Notably, in actions involving the termination of parental rights, the Commonwealth is scrupulous about protecting the constitutional concerns of parents in the fundamental liberty interest in the custody and care of their children. Id.
We begin our analysis with a consideration of whether clear and convincing evidence was presented that M.S.P. and G.W.L.M. were abused or neglected children as defined in KRS 600.020(1). The court record, which were introduced through the admission of the children's court documents in the earlier dependency action shows that both M.S.P. and G.W.L.M. were determined by the family court to be abused and neglected children. Indeed, M.W. admitted in the underlying dependency cases that M.S.P. was neglected and that G.W.L.M. was at risk for neglect. Additionally, M.W. continues to blatantly deny that the injuries inflicted on M.S.P. in August 2011 were intentional. Her denial of the intentionality of the abuse of M.S.P. is troubling since it shows no insight and a complete disregard for the seriousness of his injuries. Her denial indicates an inability to keep these children from the risk of neglect or abuse. Hence, the first requirement for the involuntary termination of parental rights has been satisfied.
Next, we address M.W.'s allegation that clear and convincing evidence was not proffered to support at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j). No termination of parental rights is proper unless the family court finds by clear and convincing evidence the existence of one or more statutory grounds. Here, the Cabinet alleged that the parents of these children for a period of not less than six (6) months, had failed or refused to provide or were substantially incapable of providing essential parental care and protection for the child and no reasonable expectation of improvement in parental care and protection, considering the age of the child, existed.
The family court heard a great deal of evidence at the two-day trial for this action. In particular, the family court noted that M.S.P. was intentionally abused and that Dr. Currie clearly stated that the injuries suffered by him were extremely serious. M.W. stipulated to his neglect and the likelihood of G.W.L.M's neglect. Further, although she completed some rehabilitative services, she failed to make changes to her lifestyle or improve her parenting skills. We conclude that the family court was not clearly erroneous in making this determination because clear and convincing evidence was provided to support it.
The second ground presented by the Cabinet in this action was that the parents, for reasons other than poverty alone, have continuously or repeatedly failed or are incapable of providing essential food, clothing, shelter, medical care, or education and that there is no reasonable expectation of significant improvement in the immediately foreseeable future, considering the age of the child. KRS 625.090(2)(g).
Again, a great deal of evidence was proffered at the trial demonstrating that M.W. failed to incorporate changes in her lifestyle which denied her children the necessities of life and not merely because of poverty. While she disputes the contention that her housing and employment was unstable, when conflicting evidence is presented, the fact finder determines the credibility of the evidence. Certainly evidence was presented that she continued to associate with G.M., remained at an address which he was listed as a tenant as well as others, was inconsistent with visitation, was not responsive to her children, and talked on the phone when she did arrive at visitation. Finally, M.W. appeared to lack any insight or desire to change her parenting skills or lifestyle. Ample evidence supported the family court's decision, and we conclude it was not clearly erroneous.
Finally, we consider whether the family court properly determined that termination of parental rights was in the best interests of M.S.P. and G.W.L.M. KRS 625.090(1)(b). The family court examined this issue and found that the children have been out of their mother's care and in foster care under the responsibility of the Cabinet for 15 of the most recent 22 months. Moreover, the children were doing well, their needs were being met in foster care, and that they needed permanency in their lives. Considering these factors and the other evidence in this case, we conclude the trial court did not err by finding that the children's best interest would be served by the termination of parental rights.
In sum, evidence, which was supported by medical testimony, was presented on the record that M.S.P. suffered serious physical injuries and that the mother continues to deny this fact. M.S.P. was born with a serious, neonatal herpes infection, which mother has not sought or provided appropriate medical care. M.W. has shown no change in parental skills after completing parenting classes and been inconsistent and inattentive at visitations with her children. All reasonable services, which were prolific, were provided including assessments by the University of Louisville Forensics Clinic and the University of Kentucky CATS clinic. Representatives of both clinics recommended permanency rather than reunification for the children. Indeed, Mau at the CATS clinic opined that M.W. posed an unacceptable risk of harm in care-giving role toward the children. The Cabinet and the outside service providers stated that no further services were available. Finally, M.W. did not establish by a preponderance of the evidence that the children would not continue to be abused or neglected if returned to her care.
Consequently, we believe that the family court's decision met the requirements of KRS 625.090, was based on clear and convincing evidence, and provided the mother with constitutional deference. It was not clearly erroneous.
II. Procedure before the Court of Appeals
On January 24, 2014, Barbara Anderson, attorney for M.W., made a motion to withdraw as counsel. The Court of Appeals granted this motion on March 6, 2014. However, the Court vacated this motion because the appeal concerns the termination of parental rights. When the Court vacated its order granting the motion to withdraw, it noted that the proper procedure is to require parent's counsel to file a brief or an Anders brief, if necessary, and to pass the attorney's motion to withdraw to the merits panel. A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012).
M.W.'s attorney complied and submitted a brief challenging the termination judgments on M.W.'s behalf. We have considered this brief and affirmed the Scott Family Court's judgment to terminate M.W.'s parental rights. And therefore, we now grant the motion to withdraw.
CONCLUSION
The motion of Appellant's counsel to withdraw is granted. The Scott Family Court's judgments terminating M.W.'s parental rights to M.S.P. and G.W.L.M. are affirmed.
ALL CONCUR. /s/_________
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Barbara Anderson
Lexington, Kentucky
BRIEF FOR APPELLEE: Cynthia Kloeker
Florence, Kentucky