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S.W. v. Ky. Cabinet for Health & Family Servs.

Commonwealth of Kentucky Court of Appeals
Jan 22, 2021
NO. 2020-CA-0348-ME (Ky. Ct. App. Jan. 22, 2021)

Opinion

NO. 2020-CA-0348-ME NO. 2020-CA-0349-ME

01-22-2021

S.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.M.; AND B.N.S, A MINOR CHILD APPELLEES AND S.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; UNKNOWN FATHER; AND J.L.-N.S., A MINOR CHILD APPELLEES

BRIEF FOR APPELLANT: Michael J. Thompson Oak Grove, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Leslie Laupp Covington, Kentucky


NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN FAMILY COURT
HONORABLE JASON S. FLEMING, JUDGE
ACTION NO. 19-AD-00001 APPEAL FROM CHRISTIAN FAMILY COURT
HONORABLE JASON S. FLEMING, JUDGE
ACTION NO. 19-AD-00002 OPINION
VACATING AND REMANDING

** ** ** ** **

BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES. MAZE, JUDGE: S.W. appeals from orders of the Christian Family Court terminating her parental rights to her two children. We agree that the Cabinet failed to prove that it made reasonable efforts to reunify her family prior to termination of her parental rights. Therefore, we vacate the orders terminating her parental rights and remand this matter for additional proceedings.

S.W. (Mother) is the mother of J.L.-N.S. (born January 2014) and B.N.S. (born October 2014). M.M was identified on B.N.S.'s birth certificate as the father, but no father has been identified for J.L.-N.S. On March 9, 2016, the Cabinet filed Dependency/Neglect/Abuse (DNA) Petitions for J.N.S. and B.N.S. after Mother and her paramour were arrested on charges involving abuse of another child. Mother stipulated to dependency, and the children were placed in the Cabinet's custody.

The Cabinet provided Mother with case plans and services to facilitate reunification. Due to a no-contact order in the criminal case, Mother was not permitted to have contact with the children. But at subsequent dispositional hearings, the Cabinet indicated that Mother was complying with other elements of her case plans.

In 2018, Mother entered an Alford plea to first-degree criminal abuse. After serving three months' incarceration, she was released on shock probation. Upon her release, she had two supervised visits with the children. However, those visits were discontinued on advice of the children's therapist. Mother was generally compliant with her case plan tasks. However, she resumed an ongoing relationship with her co-defendant in the criminal case.

See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.2d 162 (1970). An Alford plea "permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004).

In January 2019, the Cabinet filed petitions to terminate Mother's parental rights to J.L.-N.S. and B.N.S. Despite the filing of the petitions, the Cabinet maintained a concurrent goal of reunification of the children with Mother. The family court appointed a guardian ad litem (GAL) for the children and counsel for Mother. The matter proceeded to an evidentiary hearing on January 27, 2020, at which the Cabinet's social worker, Katie Bachelor, testified regarding the Cabinet's history with Mother and the children. Mother also testified at the hearing. At the conclusion of the hearing, the GAL recommended against termination, noting that the Cabinet failed to show that it provided reasonable reunification efforts. But on the following day, the family court entered findings of fact, conclusions of law, and separate orders terminating Mother's parental rights to J.L.-N.S. and B.N.S. This appeal followed. Additional facts will be set forth below as necessary.

The Cabinet also filed a petition to terminate M.M.'s parental rights to B.N.S. The Court appointed counsel for M.M., who participated at the evidentiary hearing. However, M.M. did not participate in the case plans, did not appear at the hearing, and is not a party to this appeal.

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 family 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. --------

KRS 625.090 provides for the involuntary termination of parental rights upon the court's finding that clear and convincing evidence establishes that a child is, or has previously been adjudged, abused or neglected. KRS 625.090(1). Then, the court must find the existence of one or more of ten 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). Finally, the court must find that termination of parental rights would be in the best interests of the child. KRS 625.090(1)(c). Once the Cabinet makes this required showing, then "[i]f 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." KRS 625.090(5).

As the Cabinet correctly notes, Mother does not dispute the family court's finding under KRS 625.090(1) that the children were abused or neglected. Likewise, Mother does not dispute the family court's findings under KRS 625.090(2)(e), (g), and (j). Rather, Mother only argues that the family court erred in finding that termination of her parental rights would be in the best interests of the children under KRS 625.090(1)(c). That section directs the court to consider the factors set out in KRS 625.090(3), including: (a) mental illness or disability which renders the parent consistently unable to care for the immediate and ongoing needs of the child for extended periods of time; (b) acts of abuse or neglect toward any child in the family; (c) whether the Cabinet has made reasonable efforts for reunification of the child with the parents; (d) the efforts and adjustments the parent has made in her circumstances, conduct, or conditions; (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.

Mother specifically argues that the Cabinet failed to show that it made reasonable efforts for reunification of the children with the parents. The Cabinet concedes that Mother was compliant with all required elements of her case plan. At the time of the hearing, Mother had been employed since November 2018, and she had held a second job for several months. She had her own apartment with a lease. Mother had consistently paid child support as ordered by the court and was current on those obligations. The Cabinet concedes that Mother is capable of providing financially for the children and her housing is stable and appropriate.

In addition, Mother completed all parenting classes as requested by the Cabinet. Mother submitted to psychological testing, but the Cabinet stated that it did not have access to that report. Consequently, there was no evidence that Mother was unfit to have custody or incapable of providing care. Finally, the Cabinet stated that it has received no reports of domestic violence involving Mother since the children were removed.

The only obstacle to reunification was the lack of visitation with the children. As discussed above, the no-contact order in the criminal case precluded any visitation. Following Mother's Alford plea, the Cabinet continued to pursue reunification with the children as a primary goal until January 2019 and as a concurrent goal with termination following the filing of the petitions. Mother had two visits with the children in 2018. However, the children's therapist recommended discontinuing the visits because the children acted out. The therapist further advised Bachelor and Mother that she did not offer reunification services. Mother repeatedly requested a different therapist who could provide such services, but the Cabinet declined.

The Cabinet points out that Mother pleaded guilty to abusing another child in the household. In addition, both J.L.-N.S. and B.N.S. were undernourished at the time of removal, and B.N.S. had significant medical needs which were not being addressed. The Cabinet notes that Mother did not provide gifts for the children either during or after her two visits. The Cabinet also contends that Mother did not request a new therapist until after the termination petition was filed. The Cabinet also emphasizes the four years which passed between removal of the children and termination. The children are doing well in their current placement and have had almost no contact with Mother since their removal at a very young age. And most significantly, the Cabinet points out that Mother resumed her relationship with her paramour and co-defendant in the abuse case. That relationship ended only four months prior to the termination hearing in this case. In light of these factors, the Cabinet argues that there was substantial evidence supporting the family court's finding that termination would be in the best interests of the children.

Under the circumstances, we must disagree with the Cabinet. "[P]arental rights are a 'fundamental liberty interest protected by the Fourteenth Amendment' of the United States Constitution." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 426 (Ky. App. 2015) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982)). Accordingly, termination of parental rights is a grave action which the courts must conduct with "utmost caution." M.E.C., 254 S.W.3d at 850. Therefore, to pass constitutional muster, the evidence supporting termination must be clear and convincing. Santosky, 455 U.S. at 769, 102 S. Ct. at 1403. Clear and convincing proof is that "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).

We agree with the GAL's assessment that the Cabinet's proof in this case fails to meet this standard. In light of Mother's compliance with the required elements of her case plan, the only question is whether the Cabinet made reasonable efforts to facilitate reunification. But here, the Cabinet unilaterally discontinued visitation between Mother and the children based upon the therapist's recommendation. However, the Cabinet did not offer any report from the therapist that additional visitation would be detrimental to the children or that additional therapy would be futile. In the complete absence of such proof, there was no substantial evidence to support the family court's finding that the Cabinet made reasonable efforts for the reunification of the children with Mother. Accordingly, the Cabinet failed to meet its burden of proving that termination of Mother's parental rights would be in the best interests of the children at this time. Having reached this conclusion, we need not address whether Mother met her burden of proof under KRS 625.090(5).

Based on the foregoing, we vacate the orders terminating Mother's parental rights to J.L.-N.S. and B.N.S., and we remand this matter for the family court to direct the Cabinet to provide additional reunification services or to provide proof that such services would not lead to reunification of the children with Mother in the foreseeable future.

ALL CONCUR. BRIEF FOR APPELLANT: Michael J. Thompson
Oak Grove, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Tiffany L. Yahr
Leslie Laupp
Covington, Kentucky


Summaries of

S.W. v. Ky. Cabinet for Health & Family Servs.

Commonwealth of Kentucky Court of Appeals
Jan 22, 2021
NO. 2020-CA-0348-ME (Ky. Ct. App. Jan. 22, 2021)
Case details for

S.W. v. Ky. Cabinet for Health & Family Servs.

Case Details

Full title:S.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 22, 2021

Citations

NO. 2020-CA-0348-ME (Ky. Ct. App. Jan. 22, 2021)