Opinion
NO. 2017-CA-000592-ME NO. 2017-CA-000593-ME
02-23-2018
T.D. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND T.M.H., A MINOR CHILD APPELLEES AND T.D. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND T.R.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Gregory Kujawski Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 16-AD-00230 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 16-AD-00231 OPINION
AFFIRMING
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BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: T.D. (mother) appeals the Fayette Family Court's orders terminating her parental rights to her daughters, T.M.H. and T.R.H., on the basis that the Cabinet for Health and Family Services failed to comply with Kentucky Revised Statutes (KRS) 620.090 and 922 Kentucky Administrative Regulations (KAR) 1:140 by failing to place them with mother's sister, T.Q.D. (aunt).
In November 2014, the T.M.H. and T.R.H., non-identical twins, (the twins) were born to mother and M.R.H. (father) at thirty-four weeks gestation. T.M.H. was diagnosed as having Down syndrome. The twins tested positive for cocaine at birth and were still in the hospital when the Cabinet received the referral based upon the positive drug test.
The Cabinet was granted emergency custody and placed the twins together in a foster home. Mother stipulated to neglect on January 14, 2015.
Although the Cabinet considered placement with mother's relatives, all were considered unsuitable, mostly due to criminal history or Cabinet history. Aunt was considered for placement, but was ultimately rejected because the Cabinet believed she made dishonest statements.
Mother filed a motion requesting relative placement for the twins. The family court ordered the Cabinet to consider relative placement, but the Cabinet determined no relative was appropriate.
After mother and father failed to comply with the Cabinet's conditions, the Cabinet filed for termination of parental rights. On December 13, 2016, the termination trial was held and afterwards both mother's and father's parental rights were terminated. At the termination trial, Tonisha Broadus, Lauren Barker, Rachel Moran and Karie (foster mother) testified for the Cabinet. Mother and aunt testified on mother's behalf.
Because father is not appealing from the termination of his parental rights, we do not discuss any evidence that is solely pertinent to him.
At trial, Karie's last name was withheld at the Cabinet's request.
There was extensive testimony that mother failed to satisfy the requirements of her case plan, most notably that she continued to test positive for using cocaine, but denied all use since May 2014. Barker, the initial ongoing worker, testified that at first, mother's drug screens were consistently negative but, starting in April 2015, mother tested positive for cocaine numerous times in 2015: on April 14, April 15, April 17, April 29, May 18, May 20, and in December. She missed four drug screens in April, nine drug screens in June and July, and had no drug screens in October or November 2015. Barker testified mother tested positive for cocaine in prenatal screenings in January and February 2016, and tested positive when her son was born in 2016. She tested positive in May 2016 and November 2016.
This included her failure to attend a drug treatment aftercare program, failure to attend NA and AA, that she was sometimes sporadic in attending visits and acted inappropriately, and had trouble maintaining consistent employment. Mother admitted she failed to attend the aftercare program and failed to continue to attend NA and AA, but testified that she regularly attended visits and was appropriate, and had maintained some employment. --------
Moran, the twins' ongoing worker since June 2016, testified mother tested positive for cocaine both before and after the birth of her son. Moran testified that when she told mother she tested positive for cocaine after her son was born, mother claimed that a UK pharmacist told her that one ingredient in her prenatal vitamins was cocaine and threatened to sue her. Moran testified mother had a period of negative drug screenings until she tested positive on a court date in November 2016.
Moran testified that in May 2016, the Cabinet requested another substance abuse assessment for mother, which was not completed until November 16, 2016. The assessment recommended that mother complete another twenty-six-week outpatient program and attend NA/AA.
Mother's certified criminal records were admitted into evidence. They showed that in 2015, mother was convicted for trafficking in cocaine first degree and possession of drug paraphernalia.
Mother testified the last time she used drugs was before the twins were born. She was charged with a trafficking offense in 2014, three days before the twins were born, and received probation. She testified she stayed away from drugs since that charge.
Mother testified she consistently drug-screened and did not know why her tests were positive for cocaine when she was not using the drug. Mother testified she believed someone was tampering with her test results.
Mother testified she believed the twins tested positive for drugs because she handled cocaine while trafficking it and testified she did what she had to do to survive. She denied the twins were harmed from her drug use while she was pregnant.
Aunt testified that mother currently lives with her. While she is aware that mother tested positive for drugs, she does not believe mother is using drugs.
The testimony regarding the consideration of aunt for placement was that she would have been considered appropriate if she had not lied to the Cabinet and she lacked transportation. Broadus, a Cabinet investigator, testified aunt took Broadus to a home that was not hers but belonged to another sister. Barker testified that she also investigated aunt for possible relative placement but aunt would be relying on her family for transportation to T.M.H.'s many medical appointments and lied to Barker about never having been considered for placement. Barker testified that she looked at mother's relatives again when a private attorney was hired to represent the family. She did not consider aunt appropriate then because she had been dishonest to the Cabinet twice.
Aunt testified she would be an appropriate placement for the twins based on her experience as a preschool teacher and now having transportation. She denied being dishonest with the Cabinet.
Foster mother testified about her history of caring for the twins and how she addressed their special needs. Foster mother testified the twins were placed with her when they were first released from the hospital when they were two weeks old and their brother was also placed with her after he was born. The twins were born six weeks premature and weighed about five pounds. Both twins had hyper-tenacity, meaning their muscles were tight, which she was told was an effect of mother's drug use. Both twins required numerous therapies through First Steps, had improved but still had ongoing therapy. In recent intellectual skills testing, T.R.H. tested above average for her age and T.M.H. tested higher than expected and walked earlier than expected for having Down syndrome.
Foster mother testified since she had the twins, she took T.M.H. to more than sixty medical appointments, including to genetics, cardiology, ophthalmology, pulmonology, immunology and she was seen all over the state and at Cincinnati's Children's Hospital. Foster mother testified T.M.H. had several Down syndrome-related conditions, including having a small hole in her heart, being severely nearsighted and needing prescription glasses at six months old, having a mild hearing loss requiring a hearing aid, and needing braces for her feet. She only worked part time so that she could accommodate T.M.H.'s extensive therapy schedule and explained incidents where she had to advocate for T.M.H. to receive appropriate care.
Foster mother testified the twins were attached to her, her husband, the other children in the home and their baby brother. She hoped to adopt them.
At the conclusion of the case, the family court announced it would grant the petitions for termination. While mother had presented a case that aunt should receive the children, the family court ruled it had no authority to order that the children be placed with a relative rather than grant termination.
On March 7, 2017, in each case the family court issued its findings of facts and conclusions of law, and issued its order terminating parental rights and order of judgment. The family court found that the twins were adjudged to be neglected by the court in the underlying juvenile case, and were additionally abused or neglected based upon the following:
(1) [Mother] inflicted or allowed to be inflicted upon [the twins] physical injury when the child[ren] tested positive at birth for cocaine.
(2) [Mother] created or allowed to be created a risk of physical or emotional injury to [the twins] by other than
accidental means when the [children] tested positive at birth for cocaine.The family court found that termination of mother's parental rights would be in the best interest of the twins because the Cabinet made reasonable efforts to reunite the twins with mother, but they were unsuccessful, despite the Cabinet providing all reasonable services and mother failed, refused or has been unable to make sufficient effort and adjustments in her circumstances, conduct or conditions to make it in their best interest to return the twins to her home within a reasonable period of time considering their age. Additionally, as to each twin, mother committed an act of abuse or neglect toward the other twin.
(3) [Mother] . . . did not provide for the child[ren] with adequate care, supervision, food clothing, shelter, and education or medical care necessary for the child[ren]'s well being.
(4) Due to substance abuse . . . [mother] . . . continuously or repeatedly failed or refused to provide essential parental care and protection for [the twins].
. . .
(6) [Mother] has failed to complete the tasks from her case plan as specifically listed in testimony (and listed above). By failing to make sufficient progress on these identified goals, this Court could not safely return [the twins] to [mother] which resulted in the child[ren] remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months.
The family court found the twins overcame medical challenges with the help of an attentive foster parent who provided them with needed therapies and medical services, are bonded with their foster family, are expected to continue to improve and would benefit from a permanent adoptive placement. It further found the twins would continue to be abused or neglected if returned to mother and the Cabinet was best qualified to receive custody.
The family court concluded the twins were abused or neglected children, it was in their best interests that mother's and father's parental rights be terminated and the children be placed with the Cabinet for adoption, additional grounds for termination were established, reasonable services were rendered to the parents and no additional services were likely to bring about a lasting adjustment to enable their return within a reasonable time, considering the age of the children, and granted termination.
In reviewing mother's appeal, the following standards apply:
KRS 625.090 provides that parental rights may be involuntarily terminated only if, based on clear and convincing evidence, a circuit court finds: (1) that the child is abused or neglected as defined in KRS 600.020(1); (2) that termination is in the child's best interests; and (3) the existence of one or more of ten specific grounds set out in KRS 625.090(2).M.B. v. D.W., 236 S.W.3d 31, 34 (Ky.App. 2007).
This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings.M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky.App. 1998).
Mother is incorrect in her supposition that KRS 620.090 and 922 KAR 1:140 have any place in what should occur regarding placement of a child once the Cabinet has made the decision to pursue termination of parental rights. KRS 620.090 addresses temporary custody orders. It provides in relevant part in KRS 620.090(1) and (2) that preference for placement "shall be given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known."
922 KAR 1:140 addresses permanency planning. It provides that relative placement can be considered in permanency planning if it is in the best interest of the child, § 3(6), that an exception to a permanency goal of adoption can be requested if a relative placement is secured, § 6(1)(b), (2)(a), and that a permanency goal should be relative placement if a relative who does not pursue adoption or legal guardianship is able to provide a permanent home for the child, § 7(2). However, permanency planning has already been completed once the Cabinet decides to pursue termination of parental rights.
At a termination hearing "[u]nder KRS Chapter 625, proof that [relative placement] has been considered is not required to terminate parental rights." R.C.R. v. Commonwealth, Cabinet for Human Res., 988 S.W.2d 36, 40 (Ky.App. 1998). Even if applied to termination proceedings, KRS 620.090 and 922 KAR 1:140 "do not mandate that the Cabinet choose a relative placement over other options." P.W. v. Cabinet for Health & Family Servs., 417 S.W.3d 758, 761 (Ky.App. 2013). "Once the conditions of terminating parental rights are met, it is the duty of the cabinet to then act in the best interests of the children. Placement with relatives may be an option for consideration but nothing more." V.S. v. Commonwealth, Cabinet for Human Res., 706 S.W.2d 420, 426 (Ky.App. 1986).
The termination trial is not an appropriate forum for determining whether the Cabinet erred by failing to place children with a relative earlier. However, it is not clear what more the family court could have done pre-termination besides what it did, ordering the Cabinet to consider a relative placement. Pursuant to KRS 610.010(12), the family court does not have jurisdiction over the actions of the Cabinet in the placement of a child committed to the Cabinet. Instead, "[t]he Legislature has conferred sole and exclusive authority upon the Cabinet to determine the appropriate placement of a child committed to its care." Commonwealth, Cabinet for Health & Family Servs. v. Huddleston, 185 S.W.3d 222, 223 (Ky.App. 2006). It would violate separation of powers for the family court to order a specific placement for a child committed to the Cabinet's care. Id. at 223-24.
Mother's argument that the twins should have been placed with aunt provides no basis for an appeal of her termination of parental rights. Whether or not the Cabinet properly considered aunt before it changed the twins' goal from reunification to adoption is irrelevant at this juncture. The family court was faced with a choice of terminating or not terminating mother's parental rights. If the family court had decided against terminating mother's parental rights, it did not have the authority to then order the Cabinet to place the twins with aunt. The family court did not err in finding that mother neglected or abused the twins and that termination of mother's parental rights was in their best interest.
Accordingly, we affirm the Fayette Family Court's orders terminating mother's parental rights to the twins.
ALL CONCUR. BRIEF FOR APPELLANT: Gregory Kujawski
Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr
Lexington, Kentucky