Opinion
NO. 2020-CA-0209-ME NO. 2020-CA-0210-ME NO. 2020-CA-0212-ME NO. 2020-CA-0213-ME
10-09-2020
R.L.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND K.L.R., A MINOR APPELLEES AND R.L.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.A.R., A MINOR APPELLEES AND R.L.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND C.D.R., A MINOR APPELLEES AND R.L.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND T.S.K.R., A MINOR APPELLEES
BRIEFS FOR APPELLANT R.L.T.: Derek R. Durbin Fort Thomas, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 19-AD-00016 APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 19-AD-00017 APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 19-AD-00018 APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 19-AD-00019 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND MAZE, JUDGES. MAZE, JUDGE: R.L.T. (Mother) appeals from findings of fact, conclusions of law, and separate orders of the Campbell Family Court terminating her parental rights to four of her children. She argues that the family court clearly erred in finding that there was no reasonable expectation of improvement in her conduct in the foreseeable future. We find substantial evidence supporting the family court's findings with respect to the three older children. While there was less evidence supporting the family court's findings with respect to the youngest child, Mother has not shown that these findings were clearly erroneous. Hence, we affirm the family court's findings and judgments terminating Mother's parental rights.
R.L.T. is the mother of four children who are the subject of this appeal: K.L.R., born May 2013; C.D.R., born October 2014; T.S.K.R., born December 2015; and M.A.R., born July 11, 2017. J.R. is the father of all four children, but he did not respond to the petition or participate in the proceedings below. The Cabinet for Health and Family Services (the Cabinet) was involved with the family prior to the removal, and the Cabinet reported an extensive history of substance abuse, lack of appropriate housing, and domestic violence.
Mother also has three other children who are not involved in this action.
On March 30, 2016, the Cabinet filed a dependency/neglect/abuse (DNA) petition in Carroll County on behalf of the first three children. The petition was based upon allegations of neglect but was subsequently amended to dependency. At the time, joint custody was granted to Mother and paternal grandmother or Mother and Father, but Mother's contact was always to be supervised. The supervisory component to the custodial arrangements was made necessary by Mother's continued substance abuse.
On October 16, 2016, a second petition was filed, also in Carroll County, alleging that Mother and Father were using methamphetamines while in a caretaking role. As a result, the court entered an emergency custody order and custody of the children was given to a maternal great-aunt. Thereafter, on November 18, 2016, Mother stipulated that the children were neglected, and the Carroll District Court so found. On February 8, 2017, the district court made a finding of neglect with respect to Father.
In April 2017, Mother reported to the Cabinet that the great-aunt returned the children to her. On April 21, the Cabinet filed a third DNA petition. On April 24, the district court granted the petition and placed the three children in the Cabinet's custody. The three children have remained in the Cabinet's custody since that time. In November 2017, the case was transferred to Campbell County because the parties began residing there.
Mother gave birth to M.A.R. in July 2017. The Cabinet initially allowed M.A.R. to remain in her care. However, in August 2018, Mother relapsed and failed to report to the Cabinet for several weeks. The Cabinet found M.A.R. in the home of the maternal grandparents, who had not had contact with Mother in several weeks. The Cabinet found their home to be unsuitable due to substance abuse and criminal backgrounds. Upon investigation, Mother's home was found in a "deplorable" condition, described as "filthy from the outside, strong smell of animal feces and urine, roaches, broken glass and trash." M.A.R. was removed from her custody and placed in the same foster home as the other three children.
The DNA petition alleged that the Newport police found Mother unconscious in a car. Mother notes that this allegation was stricken from the order removing M.A.R. However, the allegation remains part of the record in the DNA proceeding.
The Cabinet gave Mother multiple case plans. However, Mother failed to comply with the earlier plans and did not begin to work on her most recent plan until August 2018. Her case plan tasks included: intensive outpatient program (IOP); no contact with Father; stable housing; consistent employment; Skype calls with children; drug screening, cooperation with the Cabinet; domestic violence assessment; and refraining from use of non-prescribed medication.
As noted, Mother relapsed in August 2018. Father was found in the home at the time the Cabinet removed M.A.R. In January of 2019, Mother was arrested on a shoplifting charge while in the company of Father. Mother concedes that these actions amount to a violation of the no-contact provisions of her case plan.
After that arrest, however, Mother completed drug treatment, IOP treatment, and the Baby Steps program. Mother also completed her domestic violence assessment. At the time of the hearing, Mother was attending NA/AA meetings twice a week, but her case plan called for her to attend three to four meetings a week. Mother had no positive drug screens since August 2018.
Mother consistently attended all in-person visits with the children. But she did not consistently follow through on scheduled Skype calls with the children. Mother had maintained consistent employment.
Mother was in a stable relationship with her current boyfriend, with whom she was living. However, the Cabinet did not consider this a stable housing arrangement because Mother did not have a formal lease and her housing was dependent on her relationship with her boyfriend. There has been no order directing Mother to pay child support, but Mother has not made any inquiries about supporting the children. Mother has offered to provide clothes for the children on a few occasions but has not inquired about any other particular needs.
On March 4, 2019, the Cabinet filed petitions to terminate the parental rights of Mother and Father to each of the four children. The matter was tried before the court on November 25, 2019. In addition to the testimony concerning Mother, the Cabinet also presented testimony from the children's foster father on their progress while in placement. When the first three children went into foster care, they each had fleas and lice, which required extensive treatment. Mother's counsel noted that the children had been placed with a maternal aunt prior to that time and were only briefly with Mother before being placed with the foster family. T.S.K.R. was undernourished and had developmental delays. C.D.R. had behavioral issues and was eventually diagnosed with a parasitic infection. When M.A.R went into the foster home, he was far behind on his vaccinations. The foster parent also noted that M.A.R. could not be placed into a crib without breaking into hives and shaking severely. All of the children have made significant progress on their medical and emotional issues and are doing well in their current placement. The foster family has plans to adopt all of the children.
Following the evidentiary hearing, the family court directed the parties and the guardian ad litem to submit findings of fact, conclusions of law, and a judgment either granting or denying the petitions to terminate Mother's and Father's parental rights. Thereafter, on January 6, 2020, the family court entered findings of fact, conclusions of law, and judgments terminating Mother's and Father's parental rights to each of the four children. Mother now appeals from these judgments. Additional facts will be set forth below as necessary.
A family court (or a circuit court sitting in a county without a family court) may involuntarily terminate parental rights if it finds from the pleadings and by clear and convincing evidence the three factors listed in KRS 625.090. On review of an order terminating parental rights, we ask whether the family court's findings were clearly erroneous. Cabinet for Families & Children v. G.C.W., 139 S.W.3d 172, 178 (Ky. App. 2004). The circuit 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). "Because termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012).
Kentucky Revised Statutes. --------
First, the circuit court must find that the child is "an abused or neglected child." KRS 625.090(1)(a)2. Mother concedes that each of the four children was found to be neglected in the prior DNA actions. Second, "the circuit 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). In this case, the family court made findings under KRS 625.090(e) and (g):
(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;
[and]
(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[.]
Mother takes issue with the family court's findings that there was no reasonable expectation of improvement in either of these factors. Mother notes that she had complied with the drug screening and treatment elements of her case plan since August 2018. She also states that her participation in AA/NA meetings twice a week amounts to at least substantial compliance with her case plan. Mother completed the domestic violence program and had no contact with Father apart from the incident in January 2019. The family court further found that she has maintained stable employment.
Mother also takes issue with the Cabinet's conclusion that her current living arrangements do not constitute "stable housing" under the terms of her case plan. Her current boyfriend testified that they have a stable relationship and that Mother and the children are welcome to stay in his home as long as needed. Mother also testified that she contributes to the household finances. As a result, Mother contends that the Cabinet improperly added a term to her case plan requiring that her name be on a lease.
The Cabinet argues that Mother's history demonstrates "cyclical behaviors," in which she would have periods with lack of housing, substance abuse, and contact with Father, followed by a period of recovery and relative stability. For most of the lives of the three older children, Mother remained in an abusive relationship with Father and failed to make any progress toward addressing her drug addiction. Until 2019, Mother did not consistently comply with the Cabinet's case plans or court orders.
The Cabinet further notes that Mother repeatedly failed to provide safe, sanitary, and suitable homes for the children. As a result, the children suffered extreme neglect from which they are still recovering. Finally, the Cabinet notes that Mother has never paid child support and has only occasionally inquired about the children's needs. Based upon this evidence, the Cabinet argues that the family court's findings under KRS 625.090(e) and (g) were not clearly erroneous.
We agree with the Cabinet that the evidence clearly supports the family court's findings with respect to the three older children. The Cabinet has imposed a strict definition of the "stable housing" requirement, which we do not necessarily endorse. However, the purpose of the stable housing requirement is not only to ensure a safe environment for the children. It serves to show that Mother made progress toward self-sufficiency and the ability to care for the children on her own. Her living arrangements at the time of the hearing seem stable but had not been in place for long and were dependent upon the status of her current relationship. Again, given Mother's history, it is difficult to say if this is a sign of stability or merely a plateau in Mother's progress.
But, in any event, the other evidence weighs heavily against Mother's contention that there is a reasonable expectation that her circumstances will improve given the age and circumstances of the children. The three older children have been out of Mother's home since October 2016 and in the custody of the Cabinet since April 2017. Mother showed very little improvement in her behavior until early 2019. Given the lapse of time, we find substantial evidence to support the family court's finding that there was no reasonable expectation of improvement or that Mother would be able to resume custody in the foreseeable future.
However, the findings supporting termination of parental rights must be individualized with respect to each child. Here, the facts supporting the family court's findings with respect to M.A.R. are a much closer call. Furthermore, we agree that Mother has a reasonable argument that she should be credited for her progress since January 2019, at least with regard to that child.
On the other hand, Mother does not challenge the sufficiency of the evidence specifically with respect to M.A.R. She correctly notes that M.A.R. has been out of her care for much less time than the other children. But Mother also does not dispute that M.A.R. was severely neglected at the time he went into foster care. Rather, she argues that her progress in the case of J.T. (born January 2019 and removed at the time of her arrest) should be sufficient to show reasonable expectation of improvement with respect to M.A.R. As the Cabinet points out, the circumstances involving J.T. are not relevant to a determination of the factors with respect to the other four children.
We are very concerned that the Cabinet moved forward to terminate Mother's parental rights to M.A.R. after only seven months. We are also concerned that the Cabinet continues to denigrate the substantial efforts she has made to improve her circumstances. Parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982) (citations omitted). 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." Id. at 753, 102 S. Ct. at 1395. Therefore, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id. at 753-54, 102 S. Ct. at 1395.
On the other hand, Mother does not point to any evidence showing that the Cabinet failed to make reasonable efforts to reunite each of the children with her during the applicable time periods. At most, Mother can show that she reached substantial, but not complete, compliance with the elements of her case plan between January and November of 2019. But it is difficult to say how lasting these changes will be considering her history. Likewise, her limited efforts to provide for the children while in foster care or to follow through with Skype contact do not demonstrate consistent progress toward reunification. Although there was evidence which would have supported a contrary conclusion, we find substantial evidence to support the family court's findings under KRS 625.090(2)(e) and (g).
Finally, the family court must find termination of parental rights would be in the child's best interests, after considering the factors set forth in KRS 625.090(3)(a)-(f). Mother does not dispute the family court's findings that termination of parental rights would be in the best interests of each of the children. Mother also does not claim to have proven that the children would not continue to be abused or neglected if the court chose not to terminate her parental rights. KRS 625.090(5). In sum, we conclude that clear and convincing evidence is found in the record to support the family court's findings supporting termination of Mother's parental rights to each of the four children. Therefore, the family court did not clearly err in granting the Cabinet's petitions.
In light of the foregoing, we affirm the findings of fact, conclusions of law, and orders of the Campbell Family Court terminating Mother's parental rights in the above-styled cases.
ALL CONCUR. BRIEFS FOR APPELLANT R.L.T.: Derek R. Durbin
Fort Thomas, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky