Opinion
NO. 2019-CA-000627-ME
02-14-2020
P.S., Appellant v. CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and A.M.A.F., a Minor Child, Appellees
BRIEFS FOR APPELLANT: Susan B. Jones, Lexington, Kentucky. BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Leslie M. Laupp, Covington, Kentucky.
BRIEFS FOR APPELLANT: Susan B. Jones, Lexington, Kentucky.
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Leslie M. Laupp, Covington, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES.
OPINION
CLAYTON, CHIEF JUDGE:
P.S. ("Mother"), the mother of a minor child, A.M.A.F. ("Child"), appeals from the Fayette Circuit Court’s order terminating Mother’s parental rights to Child. After careful review, we affirm the trial court’s order terminating Mother’s parental rights.
BACKGROUND
Child was born on January 12, 2018. Mother ultimately identified W.F. ("Father") as Child’s father, and the trial court entered a default judgment of paternity naming W.F. as Child’s father in July of 2018.
The Cabinet for Health and Family Services (the "Cabinet") first became involved with this family after receiving a referral the day after Child’s birth, January 13, 2018, that Child tested positive at birth for Subutex, a medication used to treat dependence and addiction to opioid narcotics. Additionally, Mother tested positive at the time of Child’s birth for buprenorphine - a generic form of Subutex - as well as fentanyl, a strong opioid narcotic. Further, throughout Mother’s pregnancy, Mother tested positive for fentanyl, heroin, morphine, codeine, and marijuana, and she admitted to relapsing and using heroin during her pregnancy. Moreover, Mother was non-compliant with her substance abuse treatment at the Pathways program and had previously lost custody of her other children due to substance abuse concerns and failure to complete case plans required by the Cabinet.
Based on the foregoing, on January 17, 2018, the Cabinet filed a petition for emergency custody of Child (the "Emergency Petition"). The Emergency Petition initiated the underlying juvenile case, identified as case number 18-J-00050-001 (the "Juvenile Case"). The trial court granted the Emergency Petition that same day and issued a summons to Mother. However, a note on the summons to Mother in the Juvenile Case indicated that the Fayette County Sheriff’s Office was unable to locate Mother and that the summons ultimately expired.
Mother did not appear at Child’s temporary removal hearing on January 22, 2018, and the trial court transferred temporary custody of Child to the Cabinet. On that same date, the trial court appointed counsel for Mother, Father, and Child.
On February 7, 2018, the trial court held an adjudication hearing in the Juvenile Case. Mother did not appear, but Mother’s counsel was present. The parties stipulated that Child was neglected by Mother in the Juvenile Case based on the allegations contained in the Emergency Petition. The trial court appointed a warning order attorney for Father, but Mother’s counsel never addressed any issues concerning Mother’s service of process in the Juvenile Case.
Thereafter, a Cabinet social worker met with Mother on February 20, 2018, while Mother was incarcerated at the Fayette County Detention Center, to develop a case plan in the Juvenile Case. Mother subsequently agreed to and signed a case plan that required her to complete various tasks, including drug treatment, mental health screening, drug screening, attendance at parenting classes, and participation in supervised visits with Child (the "Case Plan"). At a March 21, 2018 disposition hearing, at which Mother’s counsel appeared but Mother did not appear, the trial court formally adopted the Case Plan and ordered that Child’s custody remain committed to the Cabinet. The permanency goal, at that time, was to return Child to Mother.
Subsequent review hearings of the Juvenile Case occurred on May 23, 2018 and June 27, 2018, at which hearings Mother’s counsel was present, while Mother was absent. Thereafter, at a hearing on the Juvenile Case on September 26, 2018, the trial court changed the permanency goal to adoption and waived reasonable efforts due to Mother’s lack of compliance with the Case Plan. Again, Mother was not at this hearing, but her counsel was present.
On October 11, 2018, the Cabinet filed a petition for involuntary termination of parental rights (the "Petition") against Mother, which action was given the case number 18-AD-00262 (the "Termination Case"). Both Mother and Father were personally served in the Termination Case, and the trial court held a hearing on the Petition on March 8, 2019 (the "Termination Hearing"). Mother and Father did not appear at the Termination Hearing, but both parties’ counsel was present. Mother’s counsel was able to reach Mother via telephone, at which point a conversation occurred between Mother and the trial court regarding Mother’s failure to appear at the Termination Hearing. Mother indicated that she was not present at the Termination Hearing because she believed that she had an active warrant and was afraid that she would be arrested. Moreover, Mother requested to continue the Termination Hearing for one week to enable her to address the outstanding warrant for her arrest. Although the trial court denied Mother’s request for a continuance, Mother was provided the opportunity to testify, and did testify, telephonically at the Termination Hearing.
The Cabinet social worker was the first witness to testify at the Termination Hearing, and she testified regarding Mother’s initial referral to the Cabinet, Mother’s positive drug tests during her pregnancy, the fact that Mother had lost custody of her older children due to substance abuse, and Mother’s non-compliance with her Case Plan. Additionally, the Cabinet social worker testified that the social worker had arranged weekly Cabinet-supervised two-hour visits for Mother with Child once Mother was released from incarceration in March of 2018, and that Mother only attended five visits between March of 2018 and July of 2018. The social worker testified that the trial court ultimately suspended Mother’s visitation with Child because Mother was either not confirming or cancelling her visits with Child and because she had made no progress on her Case Plan. The Cabinet social worker further testified that, while Mother indicated that she had scheduled mental health and parenting assessments, Mother never provided documentation of those assessments to the Cabinet social worker. Moreover, the Cabinet social worker testified that Mother had failed to complete any of the court-ordered drug screenings, although such screenings were provided at no cost to Mother. The Cabinet social worker testified that she ultimately lost contact with Mother after August of 2018.
Additionally, the Cabinet social worker testified that Child was doing well in the foster home, which was the only home Child had known since being removed from Mother at birth, and that Child had established a bond with her foster caregivers. Further, Child was in an adoptive home and all her needs were being met, including the special needs she required due to Mother’s drug use during pregnancy. Ultimately, the Cabinet social worker testified that it was her belief that Mother had failed to provide essential care for Child, that the failure had lasted for at least a period of six months, that the failure was for reasons other than poverty, and that there was no reasonable expectation of improvement given Child’s age. Ultimately, the Cabinet social worker’s opinion was that termination of Mother’s parental rights was in Child’s best interests.
Mother testified, via telephone, that she had completed some of the tasks on the Case Plan but admitted that she had failed to provide any documentation to the Cabinet of completed tasks. Mother further testified that she did not attend the Termination Hearing and the drug screens because she feared being arrested on an active warrant. Mother stated that she was employed and working on her GED, and that she had no knowledge of any court dates in the Juvenile Case other than the first date. Mother admitted that she had been in and out of jail and was a co-defendant with Father in his latest criminal case. Finally, Mother admitted that she had probably not gone about this situation the best way but asked the court to give her more time to complete the Case Plan.
After all the witnesses had testified at the Termination Hearing, the trial court indicated that it would be terminating Mother’s and Father’s parental rights to Child. The trial court noted that achieving some level of permanency for Child was of the utmost importance in this situation, and cited the fact that Child had never, in fact, lived with either parent, as Child was removed from the home right after her birth. The trial court also noted that all of Child’s needs, including the special needs caused by Mother’s use of drugs during pregnancy, were being attended to by the foster parents, and that Child was significantly bonded to her foster parents.
On March 21, 2019, the trial court entered written findings of fact, conclusions of law, and an order in the Termination Case terminating Mother’s and Father’s parental rights to Child. The trial court noted that Child had previously been adjudged a neglected child in the Juvenile Case, but also found clear and convincing evidence that, pursuant to Kentucky Revised Statutes (KRS) 625.090, Child was an abused or neglected child as defined in KRS 600.020(1) ; that termination was in Child’s best interests; that Mother and Father, for a period of not less than six (6) months, had continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection for Child and that there was no reasonable expectation of improvement in parental care and protection, considering the age of Child; and that Mother and Father, for reasons other than poverty alone, had continuously or repeatedly failed to provide or were incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for Child’s well-being and that there was no reasonable expectation of significant improvement in the parents’ conduct in the immediately foreseeable future, considering the age of Child; and that the trial court had considered the statutory factors contained in KRS 625.090(3). Father did not appeal the trial court’s ruling, while Mother, through counsel, filed a timely appeal of the trial court’s order.
ISSUES
On appeal, Mother argues the following: (1) that she was not properly served in the underlying Juvenile Case, and therefore the trial court’s judgment in the Termination Case was void; (2) due process required that the trial court grant Mother’s motion to continue the Termination Hearing so that Mother could appear in person rather than via telephone; (3) Mother was misinformed by the Cabinet about the reunification process and was not provided with the information needed to have her warrant set aside so that she could appear at the Termination Hearing, and therefore the Cabinet did not provide "reasonable efforts" to reunite Mother and Child as defined in KRS 620.020(13) and as provided for in KRS 625.090(3)(c) ; (4) that there was a reasonable expectation of an improvement in Mother’s care of Child pursuant to KRS 625.090(2)(e) and (g) ; and (5) because Child could be placed with other available family members, the termination of Mother’s parental rights was unnecessary.
ANALYSIS
a. Standards of Review
An appellate court will only reverse a trial court’s decision to terminate a parent’s rights if such decision is clearly erroneous, meaning there is no substantial, clear, and convincing evidence to support the decision. Kentucky Rules of Civil Procedure (CR) 52.01 ; Commonwealth, Cabinet for Health and Family Services v. T.N.H. , 302 S.W.3d 658, 663 (Ky. 2010) (citation omitted). Therefore, the findings of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources , 706 S.W.2d 420, 424 (Ky. App. 1986). The clear and convincing standard does not demand "uncontradicted proof," but rather "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 Resources , 979 S.W.2d 114, 117 (Ky. App. 1998) (quoting Rowland v. Holt , 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934) ).
Termination decisions are innately fact-specific. Thus, "an appellate court is obligated to give a great deal of deference to the trial court’s findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." D.G.R. v. Commonwealth, Cabinet for Health and Family Services , 364 S.W.3d 106, 113 (Ky. 2012) (citation omitted). Additionally, "judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente , 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted); see also CR 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."). Moreover, when reviewing a trial court’s denial of a motion to continue, the standard of review is whether the trial court abused its discretion. Deleo v. Deleo , 533 S.W.3d 211, 217 (Ky. App. 2017).
b. Discussion
1. KRS 625.090
As a preliminary matter, the grounds for the involuntary termination of parental rights are set forth in KRS 625.090. This statute provides that parental rights may be terminated only if a circuit court finds, in pertinent part, either that the child has been adjudged abused or neglected, as defined in KRS 600.020(1), by a court of competent jurisdiction, or that the child is abused or neglected as defined in KRS 600.020(1) ; that termination is in the child’s best interests; and the existence of one or more of ten specific grounds set out in KRS 625.090(2). KRS 625.090(1)(a)-(c), (2). Further, KRS 625.090(3) lays out factors for the trial court to consider in determining the best interests of the child and the existence of grounds for termination. If the child has been placed with the Cabinet, "the parent may present testimony concerning the reunification services offered by the [C]abinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent." KRS 625.090(4). Finally, "[i]f 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." KRS 625.090(5). With the foregoing standard in mind, we will address each of Mother’s arguments.
2. Lack of Service of Process
Mother first argues that she was never served with a summons in the Juvenile Case, but rather that the record reflects that the Fayette County Sheriff’s Office could not find Mother and the summons expired. Therefore, Mother argues that, without service of process on Mother in the Juvenile Case, the Juvenile Case is void as to Mother, and because the Petition and Termination Case were based on evidence gleaned during the pendency of the Juvenile Case, we should find the trial court’s order in the Termination Case to be void as well.
In this case, however, the evidence indicates that, while Mother may not have been properly served in the Juvenile Case, Mother was personally and correctly served in the Termination Case. Moreover, the allegations of abuse and neglect underlying the Termination Case were fully litigated during the Termination Hearing, and the trial court’s order in the Termination Case was based on facts and conclusions drawn from the evidence adduced during the Termination Hearing. Mother’s actions and failure to comply with the Case Plan are substantial enough, standing alone, to support a finding under each element of KRS 625.090, regardless of the underlying Juvenile Case.
Additionally, Mother was represented by counsel at every hearing in the Juvenile Case, as well as at the Termination Hearing, and was given the full opportunity to testify telephonically and to be heard and to defend herself against the Cabinet’s allegations at the Termination Hearing. Therefore, we find no error.
3. The Denial of Mother’s Motion to Continue
Mother next argues that the trial court’s denial of Mother’s motion to continue the Termination Hearing to allow Mother to appear in person violated her rights to due process. The Fourteenth Amendment to the United States Constitution ensures that no state shall "deprive any person of life, liberty, or property, without due process of law[.]" Further, the Kentucky Supreme Court has stated:
The involuntary termination of parental rights is a scrupulous undertaking that is of the utmost constitutional concern. The U.S. Supreme Court has unequivocally held that a parent has a "fundamental liberty interest" in the care and custody of his or her child. This fundamental interest "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State...." Therefore, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures."
Cabinet for Health and Family Services v. K.H. , 423 S.W.3d 204, 209 (Ky. 2014) (citations omitted).
In this case, however, we do not believe that the trial court’s decision to deny Mother’s motion to continue the Termination Hearing and to instead have Mother testify by telephone impeded or otherwise infringed upon Mother’s due process rights. Mother had a meaningful opportunity to participate in the proceedings, to confer with counsel, and to confront the evidence against her. As previously discussed, Mother was afforded the opportunity during the Termination Hearing to be heard and to defend against the Cabinet’s abuse and neglect allegations with her counsel present. Therefore, Mother’s due process rights were not violated.
Moreover, as previously discussed, we review the trial court’s decision to deny a motion to continue only for an abuse of discretion. Deleo , 533 S.W.3d at 217. The Kentucky Supreme Court has set forth various factors for us to consider when reviewing the denial of a continuance. Snodgrass v. Commonwealth , 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth , 53 S.W.3d 534 (Ky. 2001) ; see also Guffey v. Guffey , 323 S.W.3d 369, 371 (Ky. App. 2010). Those factors are:
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice.
Id.
In this case, although Mother was personally served with the Petition three months before the Termination Hearing, Mother did not contact her attorney to request a continuance until the day of the Termination Hearing. Additionally, the trial court noted that, pursuant to the court’s docket, it would be unable to hold another hearing for a few months, thereby further delaying any permanence for Child. The trial court also agreed to rescind Mother’s warrant to enable her to appear at the Termination Hearing, but Mother declined and ultimately agreed to participate via telephone. Based on the foregoing, we cannot find that the trial court abused its discretion in failing to grant Mother a continuance of the Termination Hearing.
4. "Reasonable Efforts" Under KRS 625.090(3)(c)
Mother next argues that the Cabinet did not use reasonable efforts to reunite her with Child under KRS 625.090(3)(c). In support of this argument, she claims that the Cabinet did not provide her with the information needed to have her warrant set aside, and that she was "misinformed" by the Cabinet about the reunification process when she was told that she had one year to be reunified with Child.
As previously discussed, whether or not the Cabinet provided "reasonable efforts" to reunite the child with the parent is one of the factors that a court must consider in determining the best interests of the child under KRS 625.090(3). Pursuant to KRS 620.020(13), "[r]easonable efforts" means "the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community ... which are necessary to enable the child to safely live at home[.]"
Here, the Cabinet social worker testified at the Termination Hearing that Mother had been offered numerous services by the Cabinet, including case planning, mental health assessments, parenting classes, free drug screenings, and supervised visitation. The foregoing efforts constitute "reasonable efforts" under Kentucky law. See C.A.W. v. Cabinet for Health & Family Services, Commonwealth , 391 S.W.3d 400, 405 (Ky. App. 2013). Other testimony from the Cabinet social worker reflects that the social worker informed Mother about court dates and continuously tried to contact Mother about her progress on the Case Plan and continued visitation with Child, all to no avail. Due to Mother’s non-compliance with the treatment services, the trial court waived reasonable efforts on September 26, 2018.
While Mother’s view of the situation may have differed from that of the social worker, "when the testimony is conflicting we may not substitute our decision for the judgment of the trial court." R.C.R. v. Commonwealth, Cabinet for Human Resources , 988 S.W.2d 36, 39 (Ky. App. 1998), as modified (Jan. 29, 1999) (citation omitted). The evidence of record indicates that Mother failed to avail herself of the services offered by the Cabinet and failed to regularly attend the weekly visitations with Child; such failure does not lead to the conclusion that the Cabinet did not use reasonable efforts to reunite Mother with Child.
Moreover, we fail to see how assisting a parent in having a warrant set aside falls within the Cabinet’s province of utilizing "reasonable efforts." Common sense dictates that the responsibility rested with Mother - not the Cabinet - to properly resolve her own warrant. Therefore, the trial court correctly found by clear and convincing evidence that the Cabinet provided "reasonable efforts" as defined in KRS 620.020(13).
5. Reasonable Expectation of Improvement in Parental Care Under KRS 625.090(2)(e) and (g)
Mother’s next argument is related to her "reasonable efforts" argument in the previous section, as she claims that, had the Cabinet used reasonable efforts to reunite Mother with Child, Mother could have demonstrated the existence of a reasonable expectation that Mother’s care of Child would improve under KRS 625.090(2)(e) and (g). As previously discussed, however, we find that the Cabinet used reasonable efforts under the statutory language, and therefore decline to further address Mother’s argument concerning same.
6. The Existence of Family Members with Which to Place Child
Finally, Mother argues that the existence of other family members who were willing and able to provide a home for Child made the termination of Mother’s parental rights unnecessary and unable to "pass constitutional muster." It is true that the Cabinet is required to consider any known and qualified relatives in its determination of a proper placement for a child. See KRS 620.090(1). However, as stated by a panel of this Court, "although the Cabinet is required to consider any known and qualified relatives in its determination of proper placement, [the statutory framework does] not mandate that the Cabinet choose a relative placement over other options." P.W. v. Cabinet for Health & Family Services , 417 S.W.3d 758, 761 (Ky. App. 2013) (citation omitted). As stated in P.W. , "while relative placement is certainly preferred, at some point the best interests of the [child] outweigh that factor." Id. Moreover, "[o]nce the conditions of terminating parental rights are met, it is the duty of the Cabinet to then act in the best interests of the children. Placement with relatives may be an option for consideration, but nothing more." R.C.R. , 988 S.W.2d at 40 (citing V.S. v. Cabinet for Human Resources , 706 S.W.2d 420, 426 (Ky. App. 1986) ).
In the case sub judice , the Cabinet social worker testified that the Cabinet had considered Mother’s mother and brother as alternative placements for Child, and that neither party was able to accept placement at that time. Further, Mother testified that she had made a choice to leave Child in foster care for the convenience of her mother. As previously discussed, the record indicates that Child has been in the same foster home since birth and had formed strong bonds with her foster family. Therefore, substantial evidence existed that it was in Child’s best interests to permanently remain with the foster family, and the trial court properly ordered termination of Mother’s parental rights despite Mother’s testimony that a relative was available to assume Child’s custody.
CONCLUSION
For the foregoing reasons, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR.