Opinion
NO. 2013-CA-000284-ME
02-07-2014
S.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.D.M., A MINOR; AND J.L.B., MOTHER APPELLEES
BRIEF FOR APPELLANT: Mark Hyatt Gaston Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Erika L. Saylor Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 12-AD-500216
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: S.M. appeals from an Order Terminating Parental Rights and Order of Judgment of the Jefferson Circuit Court, Family Division. S.M., the father of minor child M.M., argues that the circuit court improperly found that S.M. abandoned the child and that there was no reasonable expectation of improvement. He also argues that there was no convincing evidence to support the conclusion that it was in the child's best interest to terminate S.M.'s parental rights and that the court erred in failing to make specific findings of fact and conclusions of law as to each child individually. Having closely examined the record, the written arguments and the law, we find no error and Affirm the Order and Judgment on appeal.
This case concerns a minor child; therefore, we will only use the initials of the parties involved.
On March 10, 2011, the Cabinet for Health and Family Services received a report alleging child neglect of minor child M.M. by his biological parents, J.B. (mother) and S.M. (father). It was reported to the Cabinet that on March 4, 2011, S.M. perpetrated domestic violence upon J.B. which included striking her in the mouth, pulling her hair and hitting her in the head with a candle jar. Another physical altercation occurred on March 7, 2011, after which J.B. stated that S.M. struck her with his fist on the side of her head. S.M. was subsequently arrested on various charges including drug possession and shoplifting. On March 11, 2011, J.B. filed an EPO against S.M., after which S.M. alleged that J.B. physically assaulted one or more of their children. The record reveals a long history of S.M.'s criminal activity and substantiated child neglect stemming back to 2005.
On March 18, 2011, the trial court granted emergency custody of M.M. to the Cabinet, and four days later placed him in the Cabinet's temporary custody with orders that S.M. complete a substance abuse evaluation and follow its recommendations, complete random drug screens, complete a batterer's intervention program, refrain from domestic violence and attend supervised visits with M.M. On August 9, 2011, S.M. stipulated to having abused or neglected M.M. and his siblings, P.M. and S.P.M., and admitted that he engaged in incidents of domestic violence. The record reflects an extensive history of attempted intervention by the Cabinet and other agencies, including S.M.'s referral to Seven County Services for counseling and parenting classes, referral to Family and Children's Place, with S.M.'s failure to successfully complete either service. On September 29, 2011, a "Forecast" assessment noted that S.M. would require intensive interventions and monitoring before the appropriateness of reunification with M.M. could be determined.
Since May 10, 2011, S.M. was provided weekly supervised visits with M.M. at the Family and Children's Place. According to the record, S.M. has continued to challenge the program guidelines, failed to pay adequate attention to M.M., made inappropriate comments to the child about the foster family, and has been consistently unresponsive to redirection from supervisors. After almost 19 months of visits, there was no change in the parent/child bond or attachment, no significant improvement in S.M.'s parenting abilities or responsiveness to his son or staff redirection.
According to the record, S.M. consistently failed to acknowledge his role in the circumstances surrounding M.M.'s removal from his care, and failed to complete any of the services that might address that issue, including parenting classes, counseling or the batterer's intervention treatment. He failed to maintain contact with the Cabinet for extended periods, and had no contact with his social worker after April, 2012.
The matter culminated in December, 2013, when a bench trial was conducted on the Cabinet's petition to terminate S.M.'s parental rights as to M.M. On January 8 and 9, respectively, the Jefferson Circuit Court, Family Division, rendered 1) an Order Terminating Parental Rights and Order of Judgment, and 2) Findings of Facts and Conclusions of Law in support thereof. The court found that M.M. was an abused and neglected child as defined by KRS 600.020, and that for a period of not less than six months and for reasons other than poverty alone, S.M. continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well being, and that there was no reasonable expectation of significant improvement. The court terminated S.M.'s parental rights as to M.M., and placed M.M. in the full care, custody and control of the Cabinet with the authority to place the child for adoption. This appeal followed.
Mother J.B. voluntarily terminated her parental rights as to M.M. on December 5, 2012.
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S.M., through counsel, now argues that the Jefferson Circuit Court, Family Division, erred in terminating his parental rights as to M.M. He argues that there was no clear and convincing evidence that he abandoned M.M. by failing to provide essential care and protection. He contends that he was only allowed supervised visitation with M.M., and therefore was prohibited from providing essential care, and that as such "these standards cannot be used against Appellant." S.M. also maintains that there was no showing made that he was responsible for his failure to reunite with M.M., and that the trial court erred when it determined that there was clear and convincing evidence that termination was in M.M.'s best interest. Finally, S.M.'s counsel contends that S.M. failed to provide counsel and the court with proof of compliance in the programs and opportunities made available by the Cabinet, but that this failure should not be held against him herein. He seeks an Opinion and Order reversing the trial court's Order of Termination.
We have closely examined the record and the law, and find no basis for reversing the Jefferson Circuit Court's Order terminating S.M.'s parental rights. S.M.'s argument centers on his contention that the evidence was not sufficient to support the trial court's conclusion that M.M. was abused and neglected as defined in KRS Chapter 600, nor that S.M. continuously or repeatedly failed to provide care with no reasonable expectation of improvement. We do not find this argument persuasive. Pursuant to KRS 625.090, a family court may involuntarily terminate parental rights if it finds by clear and convincing evidence that a child is or has previously been adjudged abused or neglected and that termination is in the child's best interest. In addition, the family court must find the existence of one or more of ten specific grounds set forth in KRS 625.090(2). Herein, and pursuant to KRS 625.090(1)(a) and (b), the family court adjudged M.M. to be neglected and concluded that termination of S.M.'s rights was in the child's best interest.
Additionally, the court found that at least two of the ten specific grounds set forth in KRS 625.090(2) were present. Specifically the court relied on KRS 625.090(2)(e) and (g), which state:
(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 . . .
(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[.]
The dispositive question on appeal is whether the trial court's conclusions are supported by clear and convincing evidence of record. Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 175 (Ky. App. 2004). Based on the totality of the record, we conclude that the circuit court's decision is supported by such evidence. The record demonstrates that S.M. created a risk of physical or emotional injury to M.M. pursuant to KRS 600.020(1)(a)(2) when he engaged in domestic violence against M.M.'s mother in M.M.'s presence. The record also establishes that he failed to provide essential parental care and protection for M.M., and failed to comply with the trial court's remedial orders and the Cabinet's court-approved case treatment plan. S.M. failed to complete required counseling, parenting classes and batterer's intervention classes. Over the course of almost 19 months of supervised visitation, S.M.'s ability to provide adequate care of M.M. had not progressed to the point that the Cabinet's supervision could be reduced, much less expanded to unsupervised visitation or reunification. S.M. did not complete all random drug screens, and did not have consistent communication with his social worker. Even S.M.'s appellate counsel, Hon. Mark Gaston, frankly acknowledges that S.M. "failed to provide counsel and the Court with proof of Court Order[ed] compliance and requirements to show progress and seek return of his child." In sum, we conclude that clear and convincing evidence is found in the record to support the trial court's determination that M.M. is abused and neglected, that termination of S.M.'s parental rights was in M.M.'s best interest, and that one or more of the ten specific grounds set forth in KRS 625.090(2) are present. As such, we find no error.
For the foregoing reasons, we affirm the Order Terminating Parental Rights and Order of Judgment of the Jefferson Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Mark Hyatt Gaston
Louisville, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
Erika L. Saylor
Louisville, Kentucky