Opinion
NO. 2012-CA-001052-ME
03-29-2013
T.J.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND J.T.W., MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Robert J. Bornstein Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Sarah M. Steele Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 11-AD-500423
OPINION
AFFIRMING
BEFORE: KELLER, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: This is an appeal from an order of the Jefferson Family Court terminating the parental rights of T.J.W. (hereinafter Mother) to J.T.W. (hereinafter Child). Mother argues that the trial court erred in terminating her parental rights. We find the trial court's findings were supported by substantial evidence; therefore, we affirm.
This case involves a minor child; therefore, we will not use the names of the parties.
A petition for involuntary termination of parental rights was filed by the Cabinet for Health and Family Services (hereinafter Cabinet) against Mother on November 14, 2011, alleging that Child was abused and neglected as defined in KRS 600.020 and that it was in the best interest of Child for Mother's parental rights to be terminated. As grounds for the termination, the petition alleged that Mother had abandoned Child for a period of more than 90 days; that Mother had failed to provide essential parental care for Child for a period of at least 6 months; and that Mother was incapable of providing food, clothing, shelter, medical care, or education for Child.
The petition was also filed against Child's biological father, but the father has had no contact with Child since his birth and did not participate in the proceedings below.
A trial was held on April 25, 2012, at which only two witnesses testified, Mother and Marcella Nelson, a caseworker for the Cabinet. On May 22, 2012, the court entered a judgment terminating Mother's parental rights. The court found that Child was an abused and neglected child as defined in KRS 600.020; that the termination of parental rights would be in Child's best interest; that Mother had abandoned Child for a period of no less than 90 days; that Mother had failed to provide essential parental care for Child for a period of at least 6 months; that Mother was incapable of providing food, clothing, shelter, medical care, or education for Child; and that Child had been in foster care under the responsibility of the Cabinet for 20 of the most recent 22 months preceding the filing of the petition. This appeal followed.
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 Resources, 979 S.W.2d 114, 116 (Ky. App. 1998) (citing V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986)).
KRS 625.090 sets forth the grounds for termination of parental rights.
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:To summarize, in order for parental rights to be involuntarily terminated, the child must have been adjudged as abused or neglected, it must be in the best interest of the child for parental rights to be terminated, and the trial court must find that at least one of the grounds set forth in KRS 625.090(2) exists.
(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) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and
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.
convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;
(h) That:
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:1. The parent's parental rights to another child have been involuntarily terminated;(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, 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 unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts
have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his 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;
(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.
In the case at hand, the Cabinet introduced uncontradicted evidence that on January 27, 2011, Mother stipulated that Child was neglected as defined in KRS 600.020(1). Other evidence presented at trial also proved the existence of elements listed in KRS 625.090(2), specifically KRS 625.090(2)(a), (e), (g), and (j).
Ms. Nelson testified that Child was removed from Mother's care in May of 2009 and placed with relatives due to Mother being incarcerated. On September 16, 2010, Child was later placed in the care and custody of the Cabinet, where he remains to this day. Ms. Nelson testified that Mother had failed to visit or otherwise contact Child for periods of at least 90 days in duration. Mother also acknowledged that she would be separated for long periods of time from Child, usually the span of months, during her incarcerations and hospitalizations over the years. Mother admitted that there was a period of at least 17 months when she did not see Child at all. Ms. Nelson also testified that since January of 2009, Mother had only seen Child an estimated 20 times and only for about one hour each time.
KRS 625.090(2)(j): "That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights."
KRS 625.090(2)(a): "That the parent has abandoned the child for a period of not less than ninety (90) days[.]"
Testimony at the trial also revealed that Mother had not been the caregiver for Child since 2009 due to incarcerations and hospitalizations. Mother testified that she has a propensity to shoplift, has anger issues, and was still on probation for robbery and assault. As recently as November of 2011, Mother was again incarcerated for domestic assault on her uncle. Additionally, Mother has only provided limited clothing to Child, which occurred during the few visits Mother actually had with Child. Ms. Nelson testified that Mother's current monthly income is only $678 in social security income, but she is required to use a payee who controls these funds due to her inability to manage her money. In addition, due to Mother's criminal activities, a portion of her limited income must be used to pay fines and court costs. The Cabinet also introduced certified copies of Mother's mental health records, which showed that Mother has been diagnosed with paranoid schizophrenia, but is unable to manage her medications or the everyday aspects of her life without assistance. These facts were reiterated by Ms. Nelson's testimony. Because of these facts, the trial court found that Mother's situation was unlikely to improve within the foreseeable future.
KRS 625.090(2)(e): "That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed . . . 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 . . . considering the age of the child[.]"
Mother is diagnosed with paranoid schizophrenia.
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 evidence presented at trial also showed that it would be in the best interest of Child for Mother's parental rights to be terminated. The trial court considered the six factors listed in KRS 625.090(3), which are used in determining the child's best interest. The factors relevant to this case are KRS 625.090(3)(a), (c), (d), and (e). As stated previously, Mother has been diagnosed with paranoid schizophrenia and is unable to manage her condition on her own. Medical records presented at trial indicate that Mother has difficulty with mood swings and anger issues. She also continues to suffer from auditory hallucinations and has paranoid delusions. Mother also acknowledged that her propensity to shoplift most likely stems from her mental condition.
KRS 625.090(3)(a): "Mental illness . . . of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time[.]"
The court also considered the Cabinet's reasonable efforts at reunification. KRS 620.020(11) 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 . . . which are necessary to enable the child to safely live at home[.]" In the case at hand, the Cabinet has offered Mother supervised visitation with Child, mental health evaluations, parenting classes, and phone contact with Child. The Cabinet has also recommended that Mother address her substance abuse problems and to comply with criminal probation requirements. Ms. Nelson testified that Mother did attend a mental health treatment facility in Cincinnati, Ohio, and participated in a parenting class while there; however, Mother was found to have used marijuana, has continued to shoplift, does not adequately manage her mental health medications, and has missed many scheduled supervised visitations. Also, Mother's phone contact with Child was terminated by the Cabinet due to Mother's inappropriate behavior while on the phone.
KRS 625.090(3)(c): "If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts . . . to reunite the child with the parents[.]"
Mother has also failed to make adequate adjustments in her circumstances and conduct to make it in Child's best interest to return home within a reasonable period of time. Mother was still required to have supervised visitation with Child and was having difficulty attending her visitations. Ms. Nelson testified that Mother was unable to manage her medication properly, was having difficulty managing her daily routine, and was still using drugs and alcohol. In addition, as of the trial date, Mother did not have a stable home of her own, was currently living with her grandmother, was unemployed, and was not actively looking for employment. Lastly, Mother had received new criminal charges in November of 2011, while still on probation for a 2009 robbery charge.
KRS 625.090(3)(d): "The efforts and adjustments the parent has made in his 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[.]"
Finally, at the time of trial, Child had been in the same foster home for approximately 19 months. Ms. Nelson testified that Child was extremely attached to his foster mother and refers to her as Granny. Also, the Cabinet has ensured that Child has been enrolled in elementary school and been provided with counseling sessions.
KRS 625.090(3)(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[.]"
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The trial court's findings in this case were not clearly erroneous. The Cabinet provided substantial evidence showing that Mother's parental rights should be terminated in accordance with the guidelines set forth in KRS 625.090. For the foregoing reasons we affirm the judgment of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Robert J. Bornstein
Louisville, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
Sarah M. Steele
Louisville, Kentucky