Opinion
2022-CA-1268-ME 2022-CA-1269-ME 2022-CA-1292-ME 2022-CA-1293-ME
04-14-2023
S.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND C.N.N.A., A MINOR CHILD APPELLEES AND S.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND A.G.A., A MINOR CHILD APPELLEES AND J.A. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND C.N.N.A., A CHILD APPELLEES AND J.A. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND A.G.A., A CHILD APPELLEES
BRIEF FOR MOTHER Samuel G. Davies Barbourville, Kentucky BRIEF FOR FATHER: David M. Mills Barbourville, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KNOX CIRCUIT COURT HONORABLE RODERICK MESSER, JUDGE ACTION Nos. 21-AD-00044, 21-AD-00045, 21-AD-00044, 21-AD-00045
BRIEF FOR MOTHER
Samuel G. Davies
Barbourville, Kentucky
BRIEF FOR FATHER:
David M. Mills
Barbourville, Kentucky
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES:
Kevin Martz
Covington, Kentucky
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
OPINION
KAREM, JUDGE
S.C. ("Mother") and J.A. ("Father") (collectively, the "Parents") appeal from the Knox Circuit Court's orders terminating their parental rights to A.G.A. ("Child 1") and C.N.N.A. ("Child 2") (collectively, the "Children"). After reviewing the record and applicable law, we affirm the circuit court's orders terminating Mother's and Father's parental rights to the Children.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is the biological mother of Child 1, born on September 11, 2016, and Child 2, born on August 5, 2017. Father is the putative father of Child 1 and Child 2. The Cabinet for Health and Family Services (the "Cabinet") filed petitions to terminate Father's and Mother's parental rights to the Children on November 23, 2021. The Knox Circuit Court held a hearing on the petitions on August 3, 2022.
The Cabinet first petitioned for the Children's emergency removal on September 2, 2020, due to the Parents' ongoing domestic violence. The Cabinet filed a dependency, neglect, and abuse petition based upon the Parents' domestic violence altercation, which resulted in police intervention. The Parents were placed in jail at the time for fourth-degree assault. The Children were returned to the Parents after their release from jail the following day, and the Cabinet dismissed the petition.
Within days, on September 17, 2020, the Cabinet again removed the Children from the Parents by emergency custody order. A family friend had reported to the Cabinet that the Parents had not been caring for the Children and had refused to re-assume the Children's care. Thereafter, Mother voluntarily relinquished custody of the Children to the Cabinet and asked the Cabinet to place the Children in foster care, citing her lack of stability and inability to care for the Children. Since then, the Children have been in the Cabinet's continuous care.
The Cabinet filed petitions for neglect on behalf of the Children alleging both Mother and Father as persons responsible for the neglect. On February 10, 2021, the Knox Family Court found the Children were neglected. The circuit court committed the Children to the Cabinet by order entered on March 24, 2021. The Knox Family Court later approved a change in the Children's permanency goal from a return to the Parents to adoption.
Throughout the Children's time in foster care, the Cabinet offered reunification services to the Parents. Additionally, the Cabinet held reunification case planning conferences every six months, with the Parents attending two of the four meetings.
Additionally, the Cabinet provided referrals to address the Parents' history of domestic violence and substance abuse. For example, the Parents' case plans referred them for substance abuse and domestic violence assessments and required them to follow any recommendations from such assessments. The Cabinet also asked the Parents to participate in random drug screenings and to establish and maintain appropriate housing.
Upon the Children's removal, the Cabinet initially referred the Parents to the New Hope program, which offered virtually every service required on the Parents' reunification plan. Father completed an intake appointment with New Hope in November 2020, and his assessments revealed his need for mental health counseling twice per week. He was also asked to undergo random drug screening fifteen (15) times but only screened twice, testing positive once for alcohol. He failed to complete any required services, and New Hope terminated him from the program for noncompliance on February 19, 2021. He returned in March 2021 to enroll in services related to domestic violence but did not complete them.
Father completed a second assessment with New Hope in May 2021. He was diagnosed with a substance abuse disorder, and his treatment plan included counseling, completion of an intensive outpatient substance abuse treatment program ("IOP"), random drug screens, and case management services to assist him in finding employment and housing. Father attended thirteen (13) of the required thirty-six (36) IOP classes and two individual counseling sessions during his second stint with New Hope. Additionally, from May 2021 to August 2021, he tested positive for methamphetamine five (5) times.
After Father's fifth failed drug screen, New Hope staff scheduled an in-person meeting with him on July 21, 2021, to discuss his lack of progress and need for inpatient drug treatment. Father responded that he could not go to inpatient treatment. After that meeting, he only attended two or three more IOP meetings and eventually stopped coming. New Hope terminated him from the program again for noncompliance in August 2021.
Father was jailed from August 21, 2021, until February 8, 2022. After release, he did not inform his Cabinet caseworker of his whereabouts. However, his caseworker was able to locate him in April 2022, when she learned he had enrolled in Living Clean's drug treatment program in Manchester, Kentucky.
At the termination hearing, Father provided evidence that, while enrolled in the Living Clean program, Father completed IOP, although he continued to receive outpatient counseling. He was drug tested every week and had passed all his drug screens. At the time of the trial, he lived in a home with four other Living Clean program participants, was closely supervised, and was employed full-time. He testified that his child support obligations were automatically taken from his paychecks but he was not paying any money towards an arrearage of several thousand dollars.
As concerns Mother, after the Children were removed from her care in September 2020, Mother missed four scheduled intake appointments with New Hope. She did not return and complete an intake assessment until May 25, 2021. Her assessment revealed substance abuse disorder and recommended she complete IOP, individual counseling, parenting classes, and undergo random drug screening.
Mother attended thirteen (13) of thirty-six (36) required IOP sessions and only one individual counseling session. She did not call in regularly for random drug screens. When she did call, she was asked to screen eleven (11) times but failed to test six (6) times. She tested positive for methamphetamine the five (5) times she was screened.
Mother's lack of progress caused New Hope staff to stage an "intervention" with her on July 1, 2021. They urged her to enroll in an inpatient drug rehabilitation program. However, Mother only attended one other IOP meeting and took only one more drug screen, which she failed. As a result, New Hope terminated her from its program for noncompliance in August 2021.
After October 2021, Mother refused further services from the Cabinet and refused to allow her caseworker to enter her home, citing the presence of needles. Mother was jailed in January 2022 for her failure to pay child support, and she was offered enrollment in Hope City's program as an alternative to continued court sanction. She had little to no contact with her caseworker until April 2022, when Hope City contacted her caseworker to inform her that Mother had been enrolled in their inpatient drug rehabilitation program for thirty (30) days and had completed a parenting assessment and parenting classes.
Mother presented evidence at the hearing that, after completing the inpatient drug rehabilitation portion of Hope City's program, she had been required to reside at the facility the entire time and would reside there for some time. Mother testified that she hoped to work for Hope City eventually. However, she was unemployed at the time of the hearing and was not paying anything toward her current child support obligations or her substantial arrearage. She testified that she planned to make payments when she became employed and had a November 2022 court date in her child support case.
While at Hope City, Mother was subjected to regular drug testing and tested clean each time. The drug tests were administered once per week, and the participants were not told the specific day of the week or time of day they would be tested. She was almost constantly supervised at the program.
Additionally, the Cabinet presented evidence that, overall, both Parents' contact with the Children had been inconsistent. After the Children's entry into foster care in September, the Parents exercised their visitation half the time or less during the remainder of 2020. From January through July 2021, they typically visited in person only once per month with a few video visits, and Mother had no contact with the Children from April 2021 until April 2022.
When Father was jailed in August 2021, he failed to inform his caseworker, and she could not arrange any visits with Father and the Children from then until October 2021. He visited weekly from October 2021 through January 2022. After his release in February 2022, he again only exercised his visitation about half the time.
Meanwhile, during their removal from the Parents, the Children formed attachments to their foster family, and the foster parents wanted to adopt the Children. The Cabinet presented evidence that, while the Parents were addressing the problems that led to the removal of the Children nearly two years before the trial, their current living situations were highly monitored and were not useful indicators of either Parents' current appropriateness for caretaking. Furthermore, the treatments employed by Hope City in Mother's case and Living Clean in Father's case relied upon the client's self-reporting and, in the Cabinet caseworker's opinion, were insufficient to ensure the continued safety of the Children. The Cabinet caseworker further testified that the young ages of the Children involved in this matter had made it especially important that the Parents fully engage in services immediately upon removal so that the Children did not languish in foster care and form attachments to a new family.
On October 1, 2022, the Knox Family Court entered findings of fact, conclusions of law, and orders terminating Father's and Mother's parental rights to the Children. Mother and Father appealed the court's orders as to each Child. On December 1, 2022, this Court entered an order consolidating the appeals for all purposes, including briefing.
We will discuss further facts as they become relevant.
i. Standard of Review
An appellate court will only reverse a trial court's decision to terminate a parent's rights if such a 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). "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." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)). Therefore, we will not disturb the circuit court's findings 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) (citation omitted).
ii. Discussion
The grounds for a circuit court's involuntary termination of parental rights are outlined in Kentucky Revised Statute ("KRS") 625.090, which provides that a circuit court may involuntarily terminate a parent's rights only if the court finds, by clear and convincing evidence, that a 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 specific grounds set out in KRS 625.090(2). KRS 625.090(1)(a)-(b), (2); M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007). Further, KRS 625.090(3) lays out factors for the trial court to consider in determining the child's best interests and the existence of grounds for termination.
In this case, the circuit court complied with all relevant statutory mandates to terminate Father's and Mother's parental rights to the Children. First, the record reflects that the Knox Family Court had previously found the Children to be neglected in their underlying juvenile cases. Moreover, the circuit court made independent findings of neglect under KRS 625.090(1)(a)2. in the termination hearing proceedings, and we find substantial evidence in the record to support such findings.
Specifically, under KRS 600.020(1)(a)4., the circuit court concluded that Mother and Father had continuously or repeatedly failed or refused to provide essential parental care and protection for the Children, considering their ages. Additionally, the circuit court concluded that Mother and Father had failed to provide the Children with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for their well-being under KRS 600.020(1)(a)8. Finally, the circuit court concluded that the Parents' failure or inability to comply with the Cabinet's court-approved case plans prevented the circuit court from returning the Children to the Parents' custody safely and resulted in the Children remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months. KRS 600.020(1)(a)9.
In this case, we find substantial evidence in the record to support the neglect factors listed by the court. The Parents continuously abused drugs over the two-year period after Children had been removed by the Cabinet as evidenced by their drug screen results; the Parents failed to pay or were sporadic with child support and did not provide other necessities for the Children's benefit while the Children were in the Cabinet's custody; and the Parents were unable to complete their case plans, resulting in the Children being in the Cabinet's custody and out of the Parents' care for approximately two (2) years at the time of the termination hearing. The circuit court was not clearly erroneous in finding that the Children had been neglected.
Next, the circuit court correctly found that the Cabinet had met multiple grounds for termination under KRS 625.090(2). The statute only requires the existence of one of the grounds to be proven by clear and convincing evidence. KRS 625.090(2).
In this case, the Cabinet presented evidence to support the circuit court's conclusion under KRS 625.090(2)(e) that the Parents, 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 the Children and that there was no reasonable expectation of improvement in parental care and protection, considering the ages of the Children.
Specifically, the Cabinet provided evidence and testimony that, although the Parents may have made progress in the months before the termination hearing, during the majority of the Children's time in foster care, the Parents' progress was sporadic and incomplete. The circuit court also expressed concerns about either Parent's ability to maintain sobriety when not closely supervised or when subject to random drug screens. The circuit court supported its conclusions with findings that the Parents had not meaningfully participated in the Cabinet's case plans until the past couple of months and that there was no reasonable expectation of improvement in parental care and protection considering the Children's ages. Thus, the Parents failed to remedy the concerns that caused the Children's removal and failed to put themselves in a position to provide parental care and protection or the necessities of life.
Moreover, although the trial court may not rely entirely on past behavior when considering the possibility of reasonable improvement on the parent's part, it may look to a parent's past behavior to predict future actions, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. T.N.H., 302 S.W.3d at 663 (citation omitted). The circuit court did so in this case, and we find no error.
Additionally, the Parents are not the only parties whose interests are at stake, and one must balance the expectation of parental improvement with considering the Children's age. After over two years in foster care, the Children deserve permanency and stability. The circuit court appropriately considered the Parents' histories of noncompliance with the court's remedial orders to make an educated prediction about their future behavior. Accordingly, we affirm the circuit court's findings under KRS 625.090(2).
Finally, the circuit court considered each of the best interest factors and correctly found that the Cabinet proved by clear and convincing evidence that it was in the Children's best interest to terminate Mother's parental rights. KRS 625.090(3). When reviewing a circuit court's determination of the best interest prong of the parental termination test, we review for an abuse of discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009) (citations omitted). "Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained." D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 837 (Ky. App. 2011) (citation omitted).
The record also supported the court's findings in this regard. The circuit court considered that the Cabinet had made reasonable efforts to reunite the Parents with the Children. KRS 625.090(3)(c). Testimony included that the Cabinet offered the Parents substance abuse and mental health assessments, drug screens, case planning, ongoing communication with the caseworker, and various other services. The foregoing is sufficient to conclude that the Cabinet made reasonable efforts in this case. See C.A.W. v. Cabinet for Health and Family Services, 391 S.W.3d 400, 405 (Ky. App. 2013).
Additionally, the record reflects that the Cabinet was meeting the Children's physical, mental, and emotional needs while in the Cabinet's care and custody. KRS 625.090(3)(e). The Cabinet social worker testified that she had visited with the Children while in their foster home and that they had made improvements during their time in foster care. Additionally, the Children were attached to their foster family, and the record indicated that the Children would continue to improve if the circuit court ordered the termination of the Parents' parental rights. Therefore, the circuit court correctly concluded that it was in the Children's best interest to terminate the Parents' parental rights.
As stated in C.A.W., "[w]hile the parents have taken some positive steps, the record indicates that they are just the first steps on the long road toward reunification and were not sufficient adjustments to their circumstances to warrant reunification with their children, especially considering their history of continued substance abuse, mental health concerns, parenting concerns, non-compliance and instability." 391 S.W.3d at 405-06.
CONCLUSION
In this case, the circuit court's findings were supported by substantial evidence from the record. Accordingly, we affirm the Knox Circuit Court's findings of fact, conclusions of law, and orders terminating Parents' parental rights to the Children.
ALL CONCUR.