Opinion
NO. 2012-CA-000630-ME NO. 2012-CA-000631-ME NO. 2012-CA-000632-ME NO. 2012-CA-000633-ME
02-01-2013
T. M. B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE AND T. M. B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE AND T. M. B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE AND T. M. B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Nicholas D. Summe Covington, Kentucky BRIEF FOR APPELLEE: Kelly S. Wiley Cabinet for Health and Family Services Covington, Kentucky
RENDERED: FEBRUARY 1, 2013; 10:00 A.M.
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LISA OSBORNE BUSHELMAN, JUDGE
ACTION NO. 09-AD-00104
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LISA OSBORNE BUSHELMAN, JUDGE
ACTION NO. 09-AD-00105
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LISA OSBORNE BUSHELMAN, JUDGE
ACTION NO. 09-AD-00117
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LISA OSBORNE BUSHELMAN, JUDGE
ACTION NO. 09-AD-00118
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. NICKELL, JUDGE: T.M.B. ("Mother") appeals from an order of the Kenton Circuit Court, Family Court Division, entered on January 10, 2012, terminating her parental rights ("TPR") to her two youngest children. That same order dismissed TPR petitions without prejudice as to her three oldest children, and placed them in the permanent custody of their paternal grandparents. Mother filed four notices of appeal, one in each of the minor children's case numbers. However, the TPR is contested on appeal as to only E.B., a son born on November 30, 2004, and B.B., a daughter born on July 29, 2006. Having reviewed the record, the briefs and the law, we affirm.
Pursuant to Court policy, children in such matters are identified by initials only.
The records in all four appeals are virtually identical.
FACTS AND PROCEDURAL BACKGROUND
The Cabinet for Health and Family Services ("Cabinet") became aware of the family in 2002 during an ongoing custody battle. Initial referrals resulted in no findings, but ultimately a case was opened. The children have watched their parents engage in domestic violence, one child has been diagnosed with cancer, and another child has twice attempted suicide. Due to a combination of educational and medical neglect, the Cabinet successfully petitioned for temporary removal of all five children from Mother's home on November 3, 2008. A year later, on November 5, 2009, the Cabinet petitioned for involuntary termination of all parental rights. After hearing proof on three separate days, the trial court adopted the Cabinet's proposed findings of fact and conclusions of law and entered judgments terminating Mother's parental rights to her two youngest children. These appeals, consolidated for our review, followed.
The three oldest children share a father, C.B., who was a party to the underlying actions and participated therein. He was found to have completed the services offered to him by the Cabinet, made "lasting parental changes," and agreed with the Cabinet's recommendation that his three children be placed in his parent's permanent custody.
The two youngest children share a different father, D.B., who was also a named party in the underlying actions. The trial court found he failed to: appear in any juvenile court proceedings or termination hearings; participate in any services offered by the Cabinet; abide by the trial court's orders; and "pay any child support or to provide basic living essentials for the children since their removal in October of 2008." The trial court also found D.B. had abandoned E.B. and B.B. and caused them, and their stepsiblings, emotional harm "by engaging in repeated violent acts with [Mother]." As a result of his "complete abdication of his parental duties; his lack of cooperation with reunification services; his violent acts and his substance abuse history, the [trial court found] that his rights to [E.B.] and [B.B.] should be terminated." Mother is divorced from both men and neither father is a party to this consolidated appeal.
Proof was heard on October 11, 2010, February 3, 2011, and September 29, 2011.
ANALYSIS
Mother's first complaint is that the trial court did not place enough emphasis on the strides she had made toward completing the Cabinet's case plan and achieving the objectives stated in the court-ordered CATS assessment. The Cabinet responds that Mother has not made significant strides and the trial court correctly evaluated the proof.
The Comprehensive Assessment and Training Services (CATS) project, housed at the University of Kentucky, evaluates five major areas of strengths and vulnerabilities of families and children identified by the Department for Community Based Services: family/social; life history/traumatic events; attachment; emotional/behavioral/psychological/physiological; and developmental/cognitive/academic.
Because Mother's witnesses painted her in a different light than the witnesses offered by the Cabinet, she contends the trial court should have reached a different conclusion. But, "[i]t is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence." Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118 (Ky. 1991) (citing Gen. Tire & Rubber Co. v. Rule, 479 S.W.2d 629 (Ky. 1972)). Based upon the facts set forth below, we discern no "arbitrary action or capricious disposition [resulting in] an unreasonable and unfair decision." Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky. App. 2002) (overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008)). Therefore, we are convinced the trial court did not abuse its discretion.
Mother correctly notes that one of the factors a trial court must consider before granting TPR is:
[t]he 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 theKRS 625.090(3)(d). Based upon that factor, Mother argues she has substantially changed her situation so as to make reunification with her children to be in their best interest. In support of her argument, she testified she has maintained a stable home for three years, held a job despite a workplace injury and a doctor's order not to work, not alleged to authorities that the children's foster parents or grandparents have maltreated them, and engaged in therapy with various treatment providers since 2009. On cross-examination, she admitted there were many things she could have done differently in caring for her children, but claimed she did the best she could. In particular, she admitted being overwhelmed and disorganized, missing appointments and not seeing a therapist sooner. The trial court gave Mother's testimony little weight, characterizing it as "contradictory, inconsistent, or contrary to other evidence." The trial court also took judicial notice of having previously held Mother in contempt for stating under oath that her children were enrolled in school when they were not.
child[.]
Kentucky Revised Statutes.
The findings of fact are replete with instances of Mother's trial testimony being at odds with previously filed pleadings and testimony given under oath by Mother and others. For example, Mother testified her current paramour ("Mike") participated in therapy sessions, but her therapist testified he met Mike only in the lobby. Mother testified she was disabled and awaiting surgery for a workplace injury, but her therapist testified back surgery was unnecessary. Mother testified that instead of paying child support, she paid $800.00 to $1,000.00 in rent to her parents when she could, but in a deposition she denied having to pay rent. These are but a few examples of the variations in testimony making Mother a less than credible witness.
In arguing against TPR, Mother relied heavily upon testimony from her treating therapist, Dr. Todd Walker. He freely admitted he had never seen Mother interact with her children and had not interviewed the children. In his opinion, there was nothing keeping Mother from being organized and punctual and making good parenting decisions. He testified he believed she had accepted responsibility for herself and her actions; gained insight into herself and her relationships through anger management and role playing; learned coping and organizational skills and how to express her feelings; and now recognizes the signs of domestically violent people and how to avoid relationships with them.
According to Dr. Walker, when Mother began dialectical behavioral therapy, she was highly defensive. However, after only a few months of therapy with him, she had become very compliant, and was now happier, less angry and willing to focus on her treatment. He also testified he had watched her grow emotionally, take responsibility for her actions, understand what pushes her buttons, exert self-control, become more socially skilled in interacting with others, and become more mindful, careful and organized. He testified Mother had PTSD at one time, but no longer. About the only thing that concerned him was Mother's comment that her current fiancé, a war veteran, suffers from PTSD. This was a concern because if their relationship continued and blossomed, Mother could end up caring for not only her five children, but her future husband. The trial court gave Dr. Walker's opinion that Mother was cured little weight because he "frequently looked to [Mother] for answers to the questions and contradicted himself on several key points."
Post-traumatic stress disorder.
Dr. Walker's view of Mother's progress was not borne out by the testimony of individuals who had observed her during supervised visits with the children. One observer testified Mother would arrive late and bring toys for the children to play with while they were together, but would not allow the children to take the toys with them at the end of the visit—saying she would keep the toys at her home which confused the children. Other indicators that Mother had not made positive changes in her life were: her statement that she had no trouble adhering to a schedule, she just "does not want to;" her late return from a court recess that delayed resumption of trial; her failure to attend the children's physical and mental health appointments; not contacting treatment providers for updates when her visits were suspended; not contacting E.B.'s oncologist during the year before the final hearing to see whether his cancer was still in remission; and her acknowledgment that although D.B. was violent and needed therapy, had beaten her, choked her with a belt and put a gun to her head, she still believed he was a good father and should be reunited with his children.
In contrast to Mother's witnesses, the trial court deemed Dr. James Rosenthal, to whom Mother had been referred for a psychological evaluation, to be highly credible. He testified he found Mother's responses to an MMPI®-2, to be valid even though they showed "a degree of guardedness in her responses. She attempted to portray herself as being righteous and moralistic when in fact she is always not as consistent and moralistic as she may portray." In his written report, Dr. Rosenthal explained that while subjects who respond with guardedness:
Minnesota Multiphasic Personality Inventory®-2.
present as being normal, responsible and without fault, they routinely use the defenses of denial, projection, and rationalization when they experience problems in their life. They blame others for the problems that they experience. They display a lack of concern when confronted with problems and have a Pollyannaish view of the world in general.Consistent with Dr. Rosenthal's report, other testimony established that Mother had expressed anger and hostility toward her first husband, C.B., and his parents; Cabinet social worker Annette Fisher; the trial judge; and the children's guardian ad litem.
Dr. Rosenthal diagnosed Mother as having adjustment disorder with anxiety; parent/child relationship problems; and personality disorder NOS with cluster B traits. He recommended she receive individual psychotherapy because "she glosses over problems, minimizes problems and lacks insight into the motives that drive her behavior." He believed psychotherapy would enable her to "explore the effect of the domestic violence on her current emotional functioning as a woman and mother, develop some understanding of how the domestic violence has impacted her family, and develop alternative ways to cope with daily life stress." He admitted it was difficult to estimate the length of time it would take for Mother to progress to the point that she could care for her children, but stated a few months of active therapy with Dr. Walker was not long enough.
Reserved for subjects having features of multiple personality disorders, but lacking all the criteria of any single disorder.
The trial court's findings are supported by substantial evidence. That the trial court found the Cabinet's witnesses to be more believable and persuasive than those called by Mother does not make the trial court's decision wrong. We have no grounds for reversal.
Mother's second allegation is that the trial court erred in finding TPR to be in the best interest of E.B. and B.B. She maintains that because she had a bond with her children, permanently separating her from them could not possibly be in their best interest. The Cabinet responds that the trial court granted TPR based upon clear and convincing evidence that it was in the best interest of the two youngest children and despite the Cabinet's offering services to the family for nearly a decade, Mother had failed to make lasting parental changes, and it was unlikely that providing more services would enable the children to return to Mother's care in the immediately foreseeable future.
To grant a petition for involuntary TPR under KRS 625.090, a trial court must have clear and convincing proof of three elements: (1) that the child is, or has previously been found to be, abused or neglected as defined in KRS 600.020(1); (2) existence of one or more grounds stated in KRS 625.090(2); and (3) that termination would be in the best interest of the child. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). In this allegation, we focus solely on the third element. So long as the trial court's decision is supported by substantial evidence, we will not disturb it. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986); see also CR 52.01.
Kentucky Rules of Civil Procedure.
KRS 625.090(3) identifies six factors a trial court must consider in determining whether TPR is in a child's best interest. Those factors are:
(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;The trial court's detailed findings of fact demonstrate all applicable factors were considered.
(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.
Mother offered testimony from Dr. Jean Deters, a clinical psychologist, who was first retained by Mother in the fall of 2010 to prepare for the TPR hearing. She testified TPR would not be in the children's best interest, but the trial court gave only limited weight to her opinion because she had "not worked with the family and could only give generalized statements." Mother's inability to pay Dr. Deters hampered her trial preparation. Thus, Dr. Deters self-limited her testimony to attachment theory issues, the effect of unstable attachments, assessment of attachment, and treatment recommendations. She was unable to testify about the history of the case because Mother could not pay her the several thousand dollars it would cost to fully review the file. Dr. Deters had, however, reviewed each child's CATS assessment, Mother's psychological evaluation, the circumstances of the removals, and progress notes from the children's therapists.
Mother portrayed her lack of funds as an excuse for her inability to secure the mental health treatment recommended by the Cabinet, even though providers willing to work on a sliding scale were identified. Whether Mother's financial situation was truly dire is suspect because she was living in a home provided by her parents; she paid rent to her parents only when employed; her parents helped her financially; her father bought her an $11,000.00 car; and her mother gave her money when she could not pay her bills.
A major focus of Dr. Deters' testimony was her criticism of the way the CATS testing was conducted. She called the results "stale," but seemed surprised to learn the purpose of the CATS assessment was determination of Mother's capacity to provide a safe environment for her children and how it could be achieved, not whether TPR was appropriate. She noted the assessment should have been conducted while Mother and children were under "some stress" to show how Mother reacts—otherwise she could "fake good." She indicated a proper observation could not be achieved during a "play" session and concluded the stress situations were inadequately staged. She also thought the observations should have occurred in a natural home setting as opposed to an office; they should have lasted a minimum of 90 minutes during childcare activities such as meals and bedtime routines; and there should have been at least two home visits by the same experienced, neutral mental health provider. Dr. Deters also testified there should have been a reference group (i.e., grandparents or foster parents) for comparison purposes, and the assessments should have included patterns "over time" to evaluate whether the children acted similarly with others.
The CATS assessment occurred in 2009. Trial began in October 2010 and the taking of proof finally concluded in September 2011. Thus, the data was not two years old when trial commenced. Several trial delays were attributable to Mother.
In contrast to Dr. Deters' testimony that TPR would not be in the children's best interest, Fisher, the social worker who has worked with the family since 2008, testified the children had improved greatly since being removed from Mother's care. According to her, violence and regression were no longer concerns for the children. As stated in the findings of fact,
[a]ll the children have made improvements in their social abilities, in their educational endeavors and in their mental/physical health. The 'parentified' behaviors ofElsewhere in the findings of fact, the trial court stated the most important factor in its decision to grant TPR was Mother's display of:
the older girls have subsided and the aggressive behaviors of all the children have diminished. The evidence was clear and convincing that the children made improvements in their well-being when visits with [Mother] were stopped.
only superficial acceptance of responsibility for the removal of her children. [Mother] continued to be the 'victim' and continued to blame others for her parental failings. She demonstrated no appreciation for the traumatic experiences she allowed her children to witness and experience and minimized her role in the children's maltreatment.Based on the foregoing, we cannot say the trial court erred in determining TPR was the best result for E.B. and B.B. As noted previously, the trial court saw the evidence differently than Mother, but that conclusion does not make the trial court's decision wrong.
Mother's third complaint is that the trial court should have allowed Dr. Deters to remain in the courtroom throughout trial because she was essential to the presentation of her case. The starting point for this argument is KRE 615, which reads:
Kentucky Rules of Evidence
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:While separation of witnesses is mandatory upon the timely request of any party, a witness shown to be "essential to furthering a party's cause" may remain inside the courtroom, so long as a sufficient showing is made.
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.
Whether a witness is essential, is and will remain under the discretion of Kentucky's trial judges. This Court will not attempt to supplant its judgment therein and abdicate a time honored judicial tradition of allowing a trial judge to be the arbiter of the decisions placed before it.Hatfield v. Commonwealth, 250 S.W.3d 590, 594 (Ky. 2008).
On the first morning of trial, the Cabinet asked for separation of witnesses. Mother's attorney stated her belief that an exception existed for expert witnesses to remain in the courtroom. The trial court stated that she was unaware of such an exception, and until cited a specific provision, Dr. Deters would be excluded from the courtroom. A few minutes later, another attorney was heard to say KRE 703 allows an expert witness to listen to testimony. Mother's attorney said that rule has been excluded from her rule book and asked that she be allowed to brief the issue before the next court date. Nothing more was said. From our review of the record, Mother never cited the trial court to KRE 615 during trial nor in written pleadings. Nor did she ever explain on the record how Dr. Deters was "essential to furthering [her] cause."
The rule reads:
KRE 703 Bases of opinion testimony by experts
(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.
(c) Nothing in this rule is intended to limit the right of an opposing party to cross-examine an expert witness or to test the basis of an expert's opinion or inference.
In her brief on appeal, Mother does not state where and how she preserved this issue for our review as required by CR 76.12(4)(c)(v). Nor does she explain how she showed Dr. Deters was "essential" to her case. Since the trial court was not given the opportunity to rule on the precise issue raised on appeal, this issue is not properly before us. An appellant is not "permitted to feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds in Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Thus, because the issue was not raised or decided by the trial court, we have no authority to review it. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
Mother's fourth and final complaint is that the trial court should have excluded a typed case summary prepared by Fisher and testimony concerning a "suggestion" of fetal alcohol syndrome. Regarding Fisher's summary, as stated in the preceding argument, we review only those arguments first made to the trial court. Kennedy. Fisher's summary was admitted into evidence at Mother's suggestion. Furthermore, the only "objection" she voiced was to Fisher's reading the summary word for word because, "This is not what testimony is supposed to be." Thus, the error argued in the brief, that the summary was hearsay and unauthenticated, is not preserved for our review.
At the conclusion of Fisher's testimony, some 38 minutes later, counsel for D.B. objected to the summary as being filled with hearsay, but at that point any damage had been done. Furthermore, Mother's attorney did not join in that objection.
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Regarding the Cabinet's questioning of Mother about her use of alcohol and her children being diagnosed with fetal alcohol syndrome, this exchange was fleeting at best. Furthermore, it occurred during a bench trial, not in front of a jury. While the audio is difficult to decipher, we understood the judge to tell the Cabinet it could impeach Mother with the written report if her testimony differed and to "move on." In reviewing E.B.'s medical records, we saw references to "FASD" which is an abbreviation for fetal alcohol syndrome disorders. In reviewing B.B.'s medical records, we saw a diagnosis of "Alcohol affecting fetus or newborn via placenta or breast milk." Based upon the medical records, this line of questioning, though brief, was justified, although a better foundation could have been laid for its introduction. However, the trial court did not mention this testimony in its findings of fact or give any indication that its decision was based upon it. Therefore, we conclude that any error was harmless. Prater v. Cabinet for Human Resources, Commonwealth of Ky., 954 S.W.2d 954, 959 (Ky. 1997).
For the foregoing reasons, the judgments of the Kenton Circuit Court terminating Mother's parental rights to E.B. and B.B. are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Nicholas D. Summe
Covington, Kentucky
BRIEF FOR APPELLEE: Kelly S. Wiley
Cabinet for Health and Family
Services
Covington, Kentucky