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T. C. v. Cabinet for Health & Family Servs.

Commonwealth of Kentucky Court of Appeals
Nov 18, 2016
NO. 2016-CA-000387-ME (Ky. Ct. App. Nov. 18, 2016)

Opinion

NO. 2016-CA-000387-ME NO. 2016-CA-000388-ME NO. 2016-CA-000389-ME NO. 2016-CA-000390-ME

11-18-2016

T. C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND T.Z.L.W., A CHILD APPELLEES AND T. C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND B.O.A.T., A CHILD APPELLEES AND T. C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND E.A.M.S., A CHILD APPELLEES AND T. C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND K.L.A.T., A CHILD APPELLEES

BRIEF FOR APPELLANT: Daniel L. Thompson Lexington, Kentucky BRIEF FOR APPELLEE: Jerry M. Lovitt Lexington, Kentucky


NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NO. 15-AD-00170 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NO. 15-AD-00171 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NO. 15-AD-00172 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NO. 15-AD-00173 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, MAZE, AND STUMBO, JUDGES. CLAYTON, JUDGE: T. C., the mother, appeals from four judgments of the Fayette Family Court, each one terminating her parental rights to one of her four children. Since the Court of Appeals granted T.C.'s motion to consolidate the cases on appeal, we address them jointly. And after careful consideration of the record and the arguments, we affirm the judgments.

BACKGROUND

This action commenced when the Cabinet for Health and Family Services (hereinafter the "Cabinet") filed, on July 23, 2015, four separate petitions against the parents to involuntarily terminate their parental rights. When the petitions were filed, the four children had been in the Cabinet's primary custody since July 3, 2014. At the time of the filing of the Cabinet's brief in this appeal, August 23, 2016, the children had been in the custody of the Cabinet for over two years, and have continuously resided in a state-approved foster care since July 2014.

The four children for whom the petition was filed are T.J.L.W., male, d.o.b. - 11/19/2004, R.W., father; B.O.A.T., female, d.o.b. - 11/14/2007, A.T., father; E.A.M.S., female, d.o.b. - 5/26/2009, E.S., father; and, K.L.A.T., male, d.o.b - 10/30/2010, A.T., father. In the underlying juvenile cases, the family court found that each child was abused and neglected and that the Cabinet had made reasonable efforts to prevent the child's removal from the home.

B.O.A.T. and K.L.A.T. have the same biological father. --------

On June 17, 2015, the family court ordered that the child's permanency plan be changed to adoption. At the permanency hearing, the family court decided, regarding the underlying juvenile cases, that the children could not be safely reunited with T.C. in an acceptable timeframe. And after considering the Cabinet's recommendations, it changed the children's permanency goals to adoption. This decision was, for the most part, based on T.C.'s failure to successfully address her substance abuse problem.

The trial on the involuntary termination of parental rights took place over several dates, beginning on November 6, 2015, and concluding on December 14, 2015. T.C. appeared at the trial with counsel. The three respondent fathers, who are not appealing the family court's orders, also had individual trial counsel who appeared on their behalf. And the four children were appropriately represented at trial by a court-appointed Guardian ad Litem.

The Cabinet's first witness at trial was the ongoing social worker who had primary responsibility for the case. She provided the following testimony:

The first petition filed against T.C. was in April 2014 and alleged educational neglect of the children because of excessive truancy and an admission by T.C. of marijuana use. In the beginning, the children were to remain in the home under T.C.'s care, but in July 2014, an emergency custody order was filed because she tested positive for cocaine and refused to comply with court orders.

According to the social worker, the primary issue is T.C.'s unresolved substance abuse problem. The Cabinet is not permitted to send the children back into a home where the primary caregiver is using drugs. The Cabinet's reunification plan revolved around T.C. addressing her substance abuse problems. However, during the pendency of the case, she either tested positive for cocaine or refuse to participate in a drug screen. In addition, T.C. failed to complete a substance abuse program.

Further, the social worker testified that T.C. had not been able to provide essential parental care and protection for the children and no reasonable expectation existed that she would improve in the future. Financially, T.C. had not provided for the children and owed $2,704.00 in back child support. Importantly, the social worker explained that the plan for reunification of the family was stagnant based on T.C.'s failure to complete her plan. Grave concerns existed as to T.C.'s ability to safely parent the children and maintain sobriety.

The social worker noted that the children had significant needs and behavioral concerns. Three of the children were placed together in a therapeutic foster care home designed to deal with these problems, and the fourth child was sent to Brooklawn Child and Family Services, a residential treatment facility. The therapeutic foster home is also an adoptive home for the children.

The next witness was a therapist who worked for Sunrise Children's Center. It was determined that she met the criteria to be considered a qualified mental health professional. Such mental health professionals are able to assist the family court in understanding the needs of children. The therapist verified that these children had significant behavioral needs requiring therapy. In addition, she opined that the needed parental involvement is much greater than the parental involvement for children without these behavioral needs. The therapist noted that the current foster-adopt home was a therapeutic home and well-equipped to address the children's significant behavior needs.

The therapist also observed that the children had made marked improvement since being placed in the foster-adopt home. She stated that it was likely that this progress would continue if they remained in this home and were adopted. She added that the children expressed considerable anxiety after their visits with T.C. Finally, the therapist testified that in her professional opinion as a qualified mental health provider the best interest of the children is to remain in the foster-adopt home.

Next, T.C. testified that she was no longer using drugs and had recently tested clean. She conceded that during this recent time period, she had been in jail for 30 days. T.C. offered that she was now renting a four-bedroom apartment, had obtained a job in housecleaning at the Marriott Griffin Gate and had worked there for five days, and had scheduled an appointment with her substance abuse counselor the following week. She testified that she wants an opportunity to parent her children. E.S., the father of E.A.M.S., also was a witness and stated that he would like to be a part of his daughter's life; however, he had not been a part of the child's life to date.

Following the trial, the family court entered four separate findings of fact and four separate judgments terminating the parental rights of T.C. and the fathers. These orders were based on the family court's findings that the children were abused or neglected children, as defined in Kentucky Revised Statutes (KRS) 600.020(1); that the parents, for a period of not less than six months, have failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the children, and there is no reasonable expectation of improvement in parental care and protection, considering the age of the children; that the parents, for reasons other than poverty alone, have failed to provide or have been incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well-being, and considering the age of the children, there is no reasonable expectation of significant improvement on their part in the immediately foreseeable future; that the parents have failed to consistently pay child support; that T.C. has a history of substance abuse that is incompatible with proper parenting and it has made her unable to care for the immediate and ongoing needs of the children; that the Cabinet has provided or offered reasonable services to enable permanent reunification of the family; and, that termination of parental rights is in the best interests of the children.

T.C. appeals the four judgments terminating her parental rights to these four children. She maintains that the family court's decisions were contrary to the substantial weight of the evidence, not supported by substantial evidence, and an abuse of discretion.

STANDARD OF REVIEW

The standard for review in termination of parental rights cases is provided in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998). It states 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. Hence, this Court's review is to determine whether the family 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). "Substantial evidence" is that which is sufficient to induce conviction in the mind of a reasonable person. Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002).

With this standard in mind, we turn to the issues raised in the mother's appeal.

ANALYSIS

An individual's parental rights can be involuntarily terminated only if there is clear and convincing evidence that it would be in the best interest of the child to do so. Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006) (citations omitted). According to KRS 625.090(1) to involuntarily terminate parental rights, a circuit court must find:

(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.
To begin, we note that the family court has determined that the children were abused and neglected as defined in KRS 600.020 and that termination was in the best interest of the children.

Continuing, no termination of parental rights will be ordered unless the circuit court also finds, by clear and convincing evidence, the existence of one or more of ten grounds listed in KRS 625.090(2). In the case at hand, the family court found the existence of the following statutory factors with regard to the mother:

(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;
KRS 625.090(2)(e) and (g).

In formulating that T.C.'s actions met these two statutory grounds for termination, the family court also added that T.C.'s substance abuse was incompatible with proper parenting, that the Cabinet had offered all reasonable services likely to permit reunification of the family, and that the termination of T.C.'s parental rights and transferring custody of the children to the Cabinet was in their best interest.

T.C. broadly challenges the findings of the family court by arguing that the findings were clearly erroneous and not supported by substantial evidence. To establish this proposition, she discusses her care of the children before they were removed from the home. Further, she glosses over her lack of cooperation with the Cabinet's plan and her lack of progress in dealing with substance abuse. Although she noted that she completed parenting classes and domestic violence classes, she never clarified the reason she did not complete substance abuse treatment. Contrary to T.C.'s assertion that the Cabinet did not provide her with reasonable services, the evidence shows that the Cabinet provided T.C. with numerous services, but she did not consistently participate or cooperate.

T.C. suggests that it was sufficient that she participated in substance abuse treatment even though she never completed it. But at the final hearing, she had merely scheduled an appointment to begin the treatment again and had not started treatment again. Meanwhile her children had been in foster care for almost a year and a half already. Further, she claims her actions in taking numerous drug tests shows her desire to parent her children. Nonetheless, submitting to drug tests does not exonerate the fact that she tested dirty sometimes and refused to take them other times.

In the appellate brief, she contends that the Cabinet did not provide her an adequate level of substance abuse treatment. This argument was not presented to the family court, and hence, is not preserved for our review. But notably, T.C. herself did not demonstrate that she ever requested additional substance abuse treatment or that one of the substance abuse providers thought it was necessary.

T.C. also maintains that it was not in the children's best interest for her parental rights to be terminated. This statement contrasts with the testimony of the qualified mental health professional who explained that the children had significant behavioral problems, were anxious after visitation with their mother, and making great progress in the foster-adopt home. In addition, T.C. was behind in paying child support and had missed some scheduled visitations with them.

To ascertain the best interest of a child, KRS 625.090(3) requires the trial court to consider several factors. Here, the pertinent factors are as follows:

1. Reasonable efforts made by Cabinet to reunify;
2. Rehabilitative efforts on behalf of the parent
3. Prospects for the child's improvement upon termination.
KRS 625.090(3)(c), (d), and (e).

In sum, the family court, in evaluating the best interest of the children, assessed the evidence on the record, as it is tasked with doing, and determined that the Cabinet made reasonable efforts to reunify the family; that T.C. did not fully participate and/or complete the rehabilitative program; and, the children's prospects for improvement were served by terminating her parental rights and keeping them in the Cabinet's custody until they were adopted. Therefore, in the case at hand, the family court's decisions were not clearly erroneous because its judgments were supported by substantial evidence. Furthermore, as a court of review, we will not disturb the findings of the family court unless no substantial evidence exists on the record to support them.

CONCLUSION

Termination of parental rights is always a difficult task for a family court. As a reviewing Court, we take great care in considering these cases. Nevertheless, our charge is to address the best interest of the children in light of Kentucky statutory directives and standard of proof to ensure that the children's best interests are met. Given the substantial evidence presented to the family court and the best interest of the children, it properly terminated T.C.'s parental rights. The termination allows the children to be adopted and have permanency in a caring and stable home. We affirm the decision of the Fayette Family Court.

ALL CONCUR. BRIEF FOR APPELLANT: Daniel L. Thompson
Lexington, Kentucky BRIEF FOR APPELLEE: Jerry M. Lovitt
Lexington, Kentucky


Summaries of

T. C. v. Cabinet for Health & Family Servs.

Commonwealth of Kentucky Court of Appeals
Nov 18, 2016
NO. 2016-CA-000387-ME (Ky. Ct. App. Nov. 18, 2016)
Case details for

T. C. v. Cabinet for Health & Family Servs.

Case Details

Full title:T. C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Nov 18, 2016

Citations

NO. 2016-CA-000387-ME (Ky. Ct. App. Nov. 18, 2016)