Opinion
NO. 2016-CA-001274-ME
10-13-2017
R.M. AND A.M. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND W.T.M., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANTS: L. B. Lominac III Richmond, Kentucky BRIEF FOR APPELLEE: Constance G. Grayson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 16-AD-00021 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: R.M. (hereinafter referred to as Father) and A.M. (hereinafter referred to as Mother) appeal the involuntary termination of their parental rights to W.T.M. (hereinafter referred to as Child). The parents argue that the Cabinet did not provide substantial evidence that they abused or neglected Child, that terminating their parental rights was not in the best interest of Child, that the Cabinet failed to make reasonable efforts toward reunification, that the Cabinet should have placed Child with his maternal grandmother as opposed to a foster home, and that they were without counsel during a critical stage of the proceedings. We believe the Cabinet met all the criteria required for involuntarily terminating Mother and Father's parental rights and affirm the judgment of the trial court.
Pursuant to the policy of this Court, we will not use the names of the parties involved because this case involves a minor child.
Child was removed from the home of Appellants on April 4, 2014, and placed in foster care. Appellants stipulated to neglecting Child and Child was committed to the Cabinet on April 23, 2014. Child was removed from Appellants' home due to environmental concerns regarding the living conditions of the home. The affidavit requesting emergency custody stated that Alecia Phelps, a social worker, found Child's home to be in a "deplorable condition." Ms. Phelps found food and trash in various states of decay sitting out, broken glass on the floor, blocked pathways, toys piled up, and mud throughout the home. Ms. Phelps believed the home conditions were a fire hazard and were dangerous to Child, who was two years old at the time. Ms. Phelps also stated that the home conditions were a factor in the prior removal of Mother's two older children.
A case plan was given to Appellants requiring them to take parenting classes, participate in a mental health evaluation, allow the Cabinet to provide services deemed necessary, and to keep their house clean. It is uncontroverted that Appellants met all the requirements set forth in their case plan except for maintaining a sanitary and safe home. On December 16, 2015, the trial court changed the permanency goal from "return to parent" to "adoption". The Cabinet filed petitions to terminate Appellants' parental rights on February 24, 2016, and an evidentiary hearing was held July 26, 2016. Ms. Phelps and Mother testified at the hearing. On August 17, 2016, the trial court terminated Mother and Father's parental rights to Child. This appeal followed.
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. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
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. V.S. v. Commonwealth, Cabinet for Family Services, 194 S.W.3d 331, 335 (Ky. App. 2006).M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008).
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, 423-24 (Ky. App. 1986) (citations omitted).
The statute setting forth the requirements to involuntarily terminate parental rights is Kentucky Revised Statute (KRS) 625.090. KRS 625.090 states:
(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; or
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(b) 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; or
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
(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.
An abused or neglected child is defined in KRS 600.020(1) which states:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child;
9. Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in
the child remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months[.]
Appellants' first argument is that the Cabinet failed to provide substantial evidence of neglect or abuse. They argue that the Cabinet provided no evidence of direct emotional or physical abuse, drug usage, or criminal activity, and that a dirty home is insufficient to find abuse or neglect. We disagree. While the parents might not have directly physically abused Child or been involved in criminal behavior, evidence was presented that Child had been neglected. Ms. Phelps testified that Appellants' home was in a deplorable and dangerous condition when she removed Child. She also testified that she visited the home around sixteen times, but that it was only in an acceptable condition three times. In addition, she testified that while Appellants completed all parenting classes required by the Cabinet, they did not utilize what they learned. Finally, she testified that Child had been in the Cabinet's care for around twenty-two months before the filing of the petition for termination of parental rights.
KRS 600.020 allows a finding of neglect or abuse when there is a risk of neglect or abuse. Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008). In other words, there does not need to be actual physical or emotional injury before a court can remove a child from his or her home. In the case at hand, the Cabinet submitted evidence that Appellants' home was not safe for Child and that Appellants did not make sufficient headway into remedying the situation. We believe the Cabinet provided substantial evidence of neglect. Specifically, we believe the Cabinet showed the neglect exemplified in KRS 600.020(1)(a)2, 8, and 9.
Appellants' next argument is that termination of parental rights was not in the best interest of Child. KRS 625.090(3) sets forth the factors a court is to consider when determining the best interest of a child. With those factors in mind, we believe it is in Child's best interest for Appellants' parental rights to be terminated. The Cabinet made reasonable efforts to reunite Child with Mother and Father. The Cabinet provided classes and services to Appellants for twenty-five months before it decided to change Child's permanency goal to adoption. While Appellants did complete most of their case plan goals, the most important one, maintaining a clean and safe home, was not completed. Considering Appellants could not maintain a clean and safe home and that Mother's two older children were removed from her care for similar reasons, it is unlikely Appellants could make adjustments in their circumstances within a reasonable time to allow Child to return home. Finally, Ms. Phelps testified that Child is doing well in his foster home, that he is in an adoptive placement, and that Child calls his foster parents mom and dad.
Appellants also argue that the Cabinet did not make reasonable efforts toward reunification. Reasonable efforts are defined as "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[.]" KRS 620.020(11). Specifically, Appellants claim the Cabinet ignored the recommendations in two reports requested by the court.
One report was from Dr. Paul Ebben, a psychologist, who performed a parental competency and risk assessment of Appellants in November of 2014. Dr. Ebben recommended the Cabinet consider termination of Father's parental rights, or in the alternative, supervised father-child contact. Dr. Ebben's report also indicated that he was uncertain if the termination of Mother's parental rights was necessary. He believed she might benefit from more parenting education.
The other report came from Rob Slone, a licensed professional clinical counselor, who performed a parenting assessment in August of 2014. Mr. Slone was pleased with Appellants' cooperation and encouraged a referral to the Family Reunification Program, which could provide in-home services to address parenting skills.
The complete details of this program are not discussed in the record. --------
We believe the Cabinet did provide reasonable efforts toward reunification. These two reports were submitted to the Cabinet early on in this case. Ms. Phelps testified at the termination hearing that Appellants had received all the services the Cabinet had to offer, that the home conditions have always been a problem for this family, and that said conditions would improve for a time, but would not last. Ms. Phelps also testified that the Cabinet did not make a referral to the Family Reunification Program because there was concern for the safety of the Program employees who would provide in-home services due to the condition of the home.
Appellants also argue that the Cabinet did not select the least restrictive placement for Child. Appellants claim that the Cabinet should have placed Child with his maternal grandmother, the same grandmother who was caring for Mother's other two children. Proof that placement with a relative "has been considered is not required to terminate parental rights. Once 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. v. Commonwealth, Cabinet for Human Res., 988 S.W.2d 36, 40 (Ky. App. 1999).
Here, Ms. Phelps testified that the maternal grandmother was considered for placement. When Child was initially removed from Appellants' home, the grandmother indicated she was willing to take Child; however, she was under investigation by the Cabinet for other matters and the Cabinet was unable to place Child with her. Later in the case, the grandmother informed the Cabinet that she wanted Child placed with her. Ms. Phelps testified that she spoke to the grandmother about this. According to testimony, the grandmother decided Child's placement with her would be a bad idea because she already had two other children living with her. Additionally, the grandmother believed Child and one of the other children staying with her did not get along well and this would cause friction in the home. We believe the Cabinet made no error in Child's placement.
Appellants' final argument on appeal is that their parental rights should not have been terminated because they were without legal counsel during most of the dependency and neglect action. Specifically, Appellants were without counsel until December 2, 2015, around twenty months after removal of the child. The Cabinet argues that only indigent parents are entitled to appointed counsel and that there was no evidence that Appellants were indigent before December of 2015. The Cabinet also claims that Appellants waived counsel and it was up to them to later request counsel. Finally, the Cabinet argues that the lack of counsel during the dependency and neglect action had no effect on the termination of parental rights case.
"Representation for indigent parents in termination cases is outlined in KRS 625.080(3), wherein it is provided that counsel shall be appointed for indigent parents in termination and dependency cases." C.J.M. v. Cabinet for Health & Family Servs., 389 S.W.3d 155, 163 (Ky. App. 2012).
[P]ursuant to both the due process clause of the Fourteenth Amendment to the United States Constitution and KRS 625.080(3) and 620.100(1), that the parental rights of a child may not be terminated unless that parent has been represented by counsel at every critical stage of the proceedings. This includes all critical stages of an underlying dependency proceeding in district court, unless it can be shown that such proceeding had no effect on the subsequent circuit court termination case.R.V. v. Commonwealth, Dep't for Health & Family Servs., 242 S.W.3d 669, 672-73 (Ky. App. 2007).
We must first note that this issue was not raised below; however, because it concerns a matter of due process, we will examine the merits of the issue. We agree with the Cabinet that the lack of counsel during the dependency and neglect phase in juvenile court had no effect on the outcome of the termination proceedings. As discussed above, the circuit court made independent findings of neglect and did not simply rely on the finding of neglect from the dependency and neglect proceeding.
Additionally, the Cabinet's other claims have merit. A permanency hearing notification dated November 19, 2015, indicates that Appellants waived counsel. Appellants did not dispute this in their brief. As for Appellants' indigence, the record contains evidence that Appellants combined monthly income was $2,100.00 and there was no finding of indigence prior to counsel's appointment. As previously stated, only indigent parents are entitled to appointed counsel. We find no error in Appellants' lack of counsel during the dependency and neglect proceedings.
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR. BRIEF FOR APPELLANTS: L. B. Lominac III
Richmond, Kentucky BRIEF FOR APPELLEE: Constance G. Grayson
Lexington, Kentucky