Opinion
NO. 2012-CA-001399-ME
04-12-2013
S.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, and R.J. III, an infant APPELLEES
BRIEF FOR APPELLANT: Mark G. Hall Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: G. Thomas Mercer Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 12-AD-500040
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND VANMETER, JUDGES. COMBS, JUDGE: S.M. (Mother) appeals the order of the Jefferson Family Court that terminated her parental rights to R.J. (Child). After our review, we affirm.
Mother gave birth to Child in January 2008, when Mother was seventeen years of age. At the time, Mother resided with her own mother (Grandmother) and seven siblings. In 2010, the Cabinet for Health and Family Services filed a petition to have Child removed from the home. Grandmother's five minor children had been recently removed from the home. The Cabinet found that Child's medical card had expired; that Mother did not have WIC benefits for Child; and that Child had lice that prevented him from attending day care.
Mother was never married to the child's biological father. The father was a party in the underlying proceedings but never participated. He is not a party to this appeal.
Because Grandmother was non-compliant with treatment for her paranoid schizophrenia, she had lost custody of her own five minor children. Nonetheless, Grandmother was primarily the caregiver for Child. Child was placed in foster care on July 13, 2010. A dependency, neglect, and abuse disposition hearing was held on September 14, 2010. The record shows that Mother stipulated that Child had been neglected due to the conditions of the home and an episode of domestic violence that had occurred in Child's presence.
The Cabinet provided Mother with a case plan for achieving reunification with Child. In part, it required her to complete the Choices program, to participate in individual counseling, to complete parenting classes, and to secure independent housing and employment. It also granted her supervised visitation. Mother complied with some of the requirements, but she never moved out of Grandmother's house and did not regularly participate in counseling. In December 2010, Mother was granted unsupervised visitation that included an overnight visit. When Child was returned to his foster home, it was discovered that he had contracted pinworms, a contagious condition resulting from exposure to an infected person (Mother).
The Cabinet asked Mother to seek medical treatment for herself and to provide documentation of her treatment for pinworms in order to resume visitation. The Cabinet sought to prevent Child's repeated exposure to re-infestation of pinworms. Although Mother told her social worker that she received treatment for pinworms, she never provided documentation. Therefore, her last visit with Child was on his birthday in January 2011. It was a brief visit at the social worker's office.
On February 21, 2012, the Cabinet filed a petition in Jefferson Family Court seeking termination of Mother's parental rights to Child. A hearing was held on June 15, 2012. Testimony was taken from the Court Appointed Special Advocate (CASA) volunteer, a social worker, Child's foster mother, and Mother. Both the CASA volunteer and the social worker testified that Child had been involved in the First Steps program for speech therapy, which is available to children until their third birthday. In December 2010, Mother was ordered by the court to attend a meeting in order to authorize that Child be transitioned from First Steps to the Jefferson County Public School system for speech therapy. Mother did not attend the meeting; therefore, Child's speech therapy was disrupted for several months until he could enroll in JCPS. Mother did not offer an explanation for missing the meeting. She also did not offer an explanation for her failure to provide documentation of her pinworm treatment.
Although Mother said she was on the waiting list with the Louisville Housing Authority, she did not explain why she had not divulged that information to any social workers earlier in the proceedings. Instead, she waited to tell her social worker until approximately two months before the hearing - after the petition for termination had been filed. Mother testified that she had not lived with Grandmother for six months; however, the social worker testified that she was only able to contact Mother at Grandmother's home -- whether by mail or telephone. Mail sent to an address provided by Mother was returned to the Cabinet. There was testimony that Mother had been consistently attending counseling for approximately eight weeks prior to the hearing. Child's foster mother testified that Child is happy, loving, and smart. Child did not recognize Mother the last time he saw her. The foster mother and her husband hope to adopt Child.
On July 12, 2012, the court entered its findings of fact and conclusions of law. The order terminated the parental rights of Mother and the child's father. This appeal follows.
"Parental rights are so fundamentally esteemed under our system that they are accorded due process protection under the 14th Amendment to the United States Constitution when sought to be severed at the instance of the state." O.S. v. C.F., 655 S.W.2d 32, 33 (Ky. App. 1983). Termination of parental rights is a grave matter and should only be upheld in the face of clear and convincing evidence. Waters v. Cabinet for Human Res., 736 S.W.2d 365, 366 (Ky. App. 1987); Kentucky Revised Statute[s] (KRS) 625.090(1). Courts must cautiously insure that statutory mandates are strictly adhered to in the termination process. M.E.C. v. Commonwealth of Kentucky, Cabinet for Health & Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008).
The appellate court allows the trial court much discretion and applies the clearly erroneous standard of review under Kentucky Rule[s] of Civil Procedure (CR) 52.01. As long as the record contains substantial evidence to support the trial court's findings, they will stand. M.P.S. v. Cabinet for Human Res., 979 S.W.2D 114, 116 (Ky. App. 1998).
A lengthy and highly detailed statutory framework underlies every action for termination of parental rights. KRS 625.090 sets forth a three-prong test of requirements that must be met in order for termination to be appropriate. The first requirement is that the child has been adjudged to be abused or neglected as defined by KRS 600.020(1) -- or that the parent has been convicted of abuse or neglect of any child and that abuse or neglect is likely to occur to the child in question if the parent's rights are not terminated. KRS 625.090(1). KRS 625.090(2) then directs the court to consider a list of factors which relate to the behavior of the parent. KRS 625.090(3) also provides six factors that must be considered in determining whether termination is in the best interest of the child.
On appeal, Mother argues that the family court abused its discretion when it terminated her rights based on the evidence presented. We disagree. The family court conducted a thorough analysis, carefully applying each section of KRS 625.090.
The first prong of the test was satisfied by Mother's stipulation of neglect. D.J.D. v. Cabinet for Health & Family Servs., 350 S.W.3d 833, 837 (Ky. App. 2011). KRS 625.090(2) provides seven factors and instructs that only one of them must be met in order for termination to be considered. The family court applied two of them:
(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;The family court duly recited evidence from the hearing that pertained to these two statutory provisions. Mother had not been compliant with orders of the court or her case plan. She had failed to "fully engage in treatment and reform the behaviors which led to the removal of [Child] in a timely manner[.]" The social worker testified that she had to provide three or four referrals for counseling before Mother participated on a regular basis, which was approximately eight weeks prior to the hearing. At one point, a counseling facility had closed Mother's case due to non-compliance. Mother had not consistently provided child support. Although she admitted in court that Grandmother's home was inappropriate for the Child, Mother had not obtained independent housing. The family court's findings in this case were supported by evidence in the record, and Mother has not presented evidence to the contrary.
(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[.]
Shortly before the hearing, Grandmother's parental rights to her five minor children who had been removed previously were at last terminated.
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The family court next examined the factors of KRS 625.090(3), which guide the court in determining whether termination is in the best interest of the child. KRS 625.090(3)(a) was inapplicable because Mother has not been diagnosed with a mental illness or an intellectual disability that would inhibit her ability to parent. KRS 625.090(3)(b) instructs the court to examine "acts of abuse or neglect . . . toward any child in the family." As mentioned, Mother had stipulated to neglecting Child. The family court also suggested that Mother continued to neglect Child by failing to comply with her treatment plan. The pattern of neglect was substantiated by the testimony of the social worker and CASA volunteer.
KRS 625.090(3)(c) directs the court to examine "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[.]" KRS 620.020 defines reasonable efforts as "the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community[.]"
Mother contends that the family court erred in finding that the Cabinet exerted a reasonable effort to assist her in finding appropriate housing and employment. However, the social worker testified that the Cabinet had used all available resources on Mother's behalf. The Cabinet does not obtain jobs and housing for clients. The social worker testified that the case plan itself is a service that the Cabinet provides to educate clients about available resources. Compliance with the case plan is a way for a parent to demonstrate that she has the ability to meet her child's needs. In Mother's plan, she was advised to contact the Louisville Housing Authority and was referred to a career development program. Mother did not provide evidence that she had applied with the Housing Authority until late in her case plan. She also does not allege that she took advantage of the career development opportunities presented to her. There was ample testimony that Mother did not return phone calls or attend meetings with her social workers or with a CASA volunteer. The record supports the family court's finding that the Cabinet made reasonable efforts to assist her but that Mother failed to avail herself of the opportunities presented to her.
The next consideration of the family court was KRS 625.090(3)(d) as to "[t]he efforts and adjustments the parent has made in [her] 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." Mother asserts that the family court erred by finding that her efforts were "too little too late."
She emphasizes that she began consistently participating in counseling a few weeks before the Cabinet filed its petition for termination. However, she does not dispute that in the first eighteen months after Child had been placed in foster care, she did not find appropriate housing, did not present proof of pinworm treatment, did not complete the recommended counseling, and did not attend a meeting that would have enabled Child to continue speech therapy without interruption. In light of the age of Child, it is significant that she waited nearly two years to become somewhat compliant.
Child was four and one-half years of age at the time of the hearing. His foster mother testified that Child considered his foster parents to be his parents and that he did not recognize Mother the last time he saw her. Furthermore, in spite of having had two years to do so, Mother still had not obtained independent housing. The record fully supports the family court's finding that Mother did not make efforts for adjustment within a reasonable period of time.
The family court also analyzed "[t]he physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered[.]" KRS 625.090(3)(e). We reiterate that the witnesses at the hearing provided ample testimony that Child is thriving in his foster home. He does not understand that his foster parents and foster brother are not his natural family. The foster parents intend to adopt Child. The record supports the family court's finding that his physical, mental, and emotional needs are being met and that they will continue to improve with his foster family.
The final factor for determining whether termination is in the best interest of the child is "[t]he payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." KRS 625.090(3)(f). Mother testified that she was employed during most of Child's placement with the Cabinet. However, she did not present evidence that she had contributed financially to his physical care. The family court's finding that she had not assisted financially was supported by the record.
Finally, the family court applied KRS 625.090(5):
If 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.The family court found that under the totality of the circumstances, even if Child were not to be abused or neglected if returned to Mother, the totality of the circumstances dictated that termination was in Child's best interest.
Child was very young at time of removal. We agree with the reasoning of the family court that removing him from the foster family that he believes to be his own would be traumatic. At this juncture, Child is five years of age. He has not had visitation with Mother in two years. The family court's meticulous findings are supported by the record, and Mother has not presented evidence which persuades or enables us to disturb its sound exercise of discretion.
Therefore, we affirm the order of the Jefferson Circuit Court terminating the parental rights of the appellant.
ALL CONCUR. BRIEF FOR APPELLANT: Mark G. Hall
Louisville, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
G. Thomas Mercer
Louisville, Kentucky