Opinion
NO. 2016-CA-000182-ME NO. 2016-CA-000183-ME NO. 2016-CA-000315-ME NO. 2016-CA-000316-ME
01-27-2017
C.F.W. APPELLANT v. H.A.S., MOTHER; L.E.W. AND C.A.W., MINOR CHILDREN; AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES AND H.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; L.E.W. AND C.A.W., MINOR CHILDREN APPELLEES
BRIEF FOR APPELLANT C.F.W.: Leonard W. Taylor Louisville, Kentucky BRIEF FOR APPELLANT H.S.: Paul J. Mullins Louisville, Kentucky BRIEF FOR APPELLEES: Erika L. Saylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NOS. 15-AD-500096 AND 15-AD-500097 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. ACREE, JUDGE: C.F.W. (Father) and H.S. (Mother) appeal from four separate orders of the Jefferson Family Court terminating their parental rights. Mother and Father have presented no persuasive grounds sufficient to overturn the family court's decision. We affirm.
I. Facts and Procedure
Though these two cases were tried together before the family court, Mother and Father filed separate notices of appeal and briefs before this Court. In the interest of judicial economy, we have consolidated the matters.
Mother and Father are the natural parents of two children: L.E.W., a female child born on June 14, 2004 (Daughter) and C.A.W., a male child born on June 28, 2005 (Son), collectively the Children. Mother is also the natural parent of an older daughter, A.S. Although she is not a party to this termination action, she is a part and product of the family dynamics at issue.
In 2005, the Cabinet received word that Father had physically and sexually abused A.S. The Cabinet substantiated the physical abuse allegation. However, the family soon left Kentucky, and nothing became of the incident.
According to a June 2012 report by the Cabinet, it did not substantiate the sexual abuse allegation at the time because Mother and Father left the state with the Children and the allegation was being investigated by authorities in their new home state, North Carolina.
According to Father, the family moved to Asheboro, North Carolina, but Mother quickly returned to Kentucky with A.S. and married another man. Father claims Son and Daughter lived with him in North Carolina without incident until late 2007 when Mother took the Children back to Kentucky. On January 14, 2008, the Hardin District Court entered a Domestic Violence Order (DVO) against Father on behalf of Mother. Mother renewed the DVO in 2013.
The Hardin District Court initially granted Father supervised visitation with the Children. However, he struggled to comply, and the Hardin District Court terminated Father's visitation in 2011.
In November 2011, Mother and her then-husband, J.S., admitted to manufacturing methamphetamines in their home with the Children present. The Cabinet for Health and Family Services filed a dependency, neglect, and abuse action in Meade District Court on November 10, 2011. The Meade District Court placed the Children with relatives and ordered that the Children have no contact with Mother or Father. Mother ultimately stipulated to neglect.
The family resided in Meade County at the time.
While in relative care, A.S. again disclosed that she had been sexually abused by Father in 2005. The Cabinet re-investigated and, in January 2012, substantiated a finding of sexual abuse against Father. However, no dependency, neglect, or abuse petition was filed by the Cabinet as to this finding, and the record reflects no related criminal charges against Father. Upon removal, A.S. sexually acted out with Daughter, resulting in A.S. eventually being separated from her half-siblings, Son and Daughter.
On February 14, 2012, Father requested visitation in Meade District Court with the Children. The Meade District Court denied his request.
In March 2012, the Meade District Court removed the children from relative placement and the Cabinet, having been awarded temporary custody, placed the Children in foster care, where they have remained throughout the case. The Children were fully committed to the Cabinet's custody a few months later.
The relatives informed the district court that they were unable to meet the Children's mental health needs.
In December 2012, Father again requested that the Meade District Court grant him visitation with and/or custody of the Children. It again denied his motion. In June 2013, Father relocated to Cambodia where he re-married and has remained ever since.
Mother was charged criminally with manufacturing methamphetamine, served time in prison, and was ultimately released on parole in June 2012. She contacted her social worker and began working a case plan. By early 2013, Mother had completed all the treatment aspects of her case plan, including drug screens, substance abuse treatment, and parenting classes. The Meade District Court granted Mother weekly therapeutic supervised visits with the Children in February 2013 and daily phone contact. Mother faithfully visited the Children, and exercised inconsistent phone contact. Overall, Mother was cooperative and actively working toward reunification.
In June 2013, the Cabinet recommended that Mother's visitation be increased to unsupervised visits every other weekend. The Meade District Court agreed and granted that request. The next month, on July 24, 2013, the Meade County Attorney moved to review and suspend Mother's overnight visits based on reports from the Children that, during the first weekend visit, Mother allowed a male guest to stay in the home; Mother lacked adequate beds for the Children; and Mother failed to properly feed the Children. At a hearing on August 13, 2013, Mother categorically denied the allegations. Unconvinced, the Meade District Court again restricted Mother's visitation to supervised visits. Mother continued to consistently visit with the Children.
Around this time, Mother moved from Meade County, Kentucky to Jefferson County, Kentucky. Mother's Cabinet case was also transferred to Jefferson County; the neglect action remained in Meade County. In November 2013, Mother's new social worker, Jonetta Weaver, informed the Meade District Court that the Cabinet would continue working with Mother to establish housing and employment, and to help build a relationship with her children. Mother was still regularly visiting with the Children.
Father contacted the Cabinet's Ombudsman in March 2014. He reported that he had recently returned from Cambodia. The Cabinet mailed Father another copy of his case plan identifying services needed to facilitate reunification. Father did not respond.
In April 2014, the Cabinet again recommended expanding Mother's parenting time. It reported that Mother was compliant with her case plan and was working on self-sufficiency and repairing bonds with the Children. That same report indicated that the Cabinet had provided Father with copies of the district court's orders and invited him to engage in reunification services. At a hearing on April 15, 2014, concerns were raised about Mother's boyfriend, Bruce Embry, living in the home. The Meade District Court expanded Mother's visits, permitting her to have 4-5 hours of unsupervised visitation per week, but ordered that the visits occur in Ohio County where the Children's foster home was located. Mother engaged in these unsupervised visits with Son and Daughter for several months without issue.
From March 2012 until May 2015, the Children resided in a foster home in Ohio County. Their half-sibling, A.S., resided in a foster home in Jefferson County. As will be explained later in this opinion, Son and Daughter moved to a foster home in Jefferson County in May 2015.
The parties came back before the Meade District Court in August 2014. The Cabinet indicated that the court's restrictions on Mother's visitation were problematic because it prevented Mother from parenting all three children (Son, Daughter, and their older half-sibling, A.S.) together in a home setting. The Meade District Court, somewhat reluctantly, again expanded Mother's visitation to allow for unsupervised visits at her home in Louisville, Kentucky. Notably, the Children's therapist submitted a letter stating the Children's behavior had taken a negative turn since visits with Mother increased; the Children continued to express fears that Mother would not be able to financially provide for them if they returned home; and that the Children have reported that they enjoy visiting with Mother, but continue to consistently state they do not want to live with her, and reported that Embry had displayed negative behaviors during visits, such as cussing and making inappropriate comments about the foster care agency.
Around this same time, Margaret McKinley, a social worker with the Cabinet who specializes in foster care cases, became the ongoing worker. McKinley testified at the subsequent termination hearing in January 2016. McKinley reiterated that when this case was transferred to the Louisville office in July 2013 the goal remained reunification. To facilitate that goal, the Jefferson County office sought to increase the frequency of Mother's drug screens; to increase Mother's parenting time; and to assist Mother in obtaining stable housing and steady employment.
McKinley testified she conducted a home visit at Mother's home on Baxter Avenue on September 3, 2014. Mother's electricity has been disconnected and she appeared to be residing there with her boyfriend, Embry. Mother denied that Embry lived at the apartment, but admitted he was on the lease. Mother also informed McKinley she had suffered an on-the-job accident and was receiving workers' compensation disability.
In October 2014, the Meade District Court ordered Mother and the Children to engage in family therapy. They complied. It also continued to express concerns about Mother's ability to adequately care for the Children (and A.S.) and Mother's relationship the Embry. The district court declined to expand Mother's visitation with the Children.
In light of the district court's concerns, McKinley met with Mother to discuss additional service that Mother might undertake to demonstrate to the district court she could maintain stability and independence, and was ready for her children to be returned. McKinley suggested Mother participate in protective parenting classes at Seven Counties' Services and individual counseling. Mother agreed. She began treatment at Seven Counties on November 24, 2014. Mother was diagnosed with Adjustment Disorder. Amy Noll, Mother's therapist, testified at the termination hearing that Mother attended protective parenting class one time per week and individual therapy one time per month. Mother attended regularly, actively participated in group, and passed two of five tasks within the first few months.
McKinley also discussed with Mother the need to exclude Embry from visits with the Children, particularly in light of a recent telephone conversation between McKinley and Mother during which Embry was yelling at Mother in the background. Mother, though expressing concern that Embry was her only means of transportation, reluctantly agreed.
McKinley testified that, around this time, the Children's therapist had informed her that the Children were uncomfortable with Embry at the visits. So McKinley spoke to Son and Daughter, individually, about Embry. Each indicated they did not want Embry at their visits with Mother. Son stated that Embry and Mother argued. Daughter stated Embry made her uncomfortable. The Children's concerns mirrored what they expressed to their therapist in August 2014.
McKinley reported she had made contact with Father in November 2014 and that he was living in Cambodia with a new wife. McKinley explained to Father he needed to participate in reunification services, such as batterer's intervention, a sexual abuse evaluation and treatment, and individual counseling, to regain custody of the Children. McKinley testified that Father had advised her he was unsure if he wanted to engage in any reunification services, Father admitted he had not seen the Children in over four years, and Father did not admit or deny the allegations of domestic violence and sexual abuse. McKinley asked Father to contact her if he wanted to participate in case planning or services. She received no response.
On December 9, 2014, the Meade District Court again expanded Mother's visitation to allow eight hours unsupervised weekly visitation with the Children in Louisville. The court also entered a no-contact order preventing any contact between Embry and the Children; ordered Mother to provide documentation proving Embry was not living at her residence; and ordered Mother to begin in-home therapy services and complete a Parenting Assessment program (FORECAST) evaluation. The district judge reiterated to Mother her need to focus on re-establishing her own relationship with her Children, and stated he would need a recommendation from the Children's therapists before Embry could be involved in their lives.
In December 2014, the Children's goal was changed from reunification to adoption. McKinley testified that she still felt reunification was possible but she also had an obligation to the Children to establish permanency and, therefore, needed an alternative plan if reunification failed.
McKinley, as ordered by the district court, referred Mother for in-home therapeutic services. Mother failed to attend five intake appointments with the in-home therapist. That service closed Mother's case on February 27, 2015.
The Cabinet quickly discovered Mother was not complying with the district court's no-contact order. In February 2015, Mother's visitation was again restricted to supervised visits in Ohio County. The district court again ordered Mother to provide verification of housing separate from Embry. Mother, though admitting she was still in a relationship with Embry, denied that he was participating in the visits and denied living with him. However, McKinley testified Mother admitted she planned to move back in with Embry in the future, but indicated she would try to keep him separate from the Children. Mother made similar statements and denials to Noll, her therapist. Noll advised Mother that, if she was violating the district court's no-contact order, then she would be removed from the protective parenting group.
A.S., Mother's older daughter, reported seeing Embry during visits.
McKinley and Noll met with Mother to discuss Embry on March 2, 2015. Noll described Mother as "angry, sarcastic, [and] blaming others" rather than accepting responsibility. Mother continued to deny allowing Embry to be around A.S. or the Children. Noll informed Mother she was being removed from the protective parenting group for her violations of the no-contact order and her failure to make protective decisions on behalf of her children. However, Noll agreed to keep Mother's case open if Mother was willing to discuss her actions and wanted to re-join the protective parenting group.
Due to Mother's lack of meaningful progress and the time the Children had lingered in foster care, the Cabinet filed a petition in Jefferson Family Court to terminate both parents' parental rights. Mother and Father opposed the petition. The Meade District Court declined the Cabinet's request to transfer the neglect action to Jefferson County.
McKinley conducted a home visit at Mother's new home (Woodruff Avenue) in April 2015. Mother stated Embry was not living there, but had helped her purchase the home. Mother decline to provide a lease, mortgage document, or utility bill establishing ownership. McKinley observed Embry's car in the driveway and men's clothing and personal items in the home. Mother stated her workers' compensation benefits had expired, she was unemployed, and she had no income. McKinley encouraged Mother to resume services and comply with all of the district court's orders.
In May 2015, the Children were moved from Ohio County to a new foster home in Louisville, Kentucky.
Mother completed the FORECAST assessment on May 27, 2015. It recommended that reunification remained possible if Mother completed additional parenting training at the Home of the Innocents, completed in-home therapy services, established independent housing and transportation, obtained employment, and engaged in individual therapy.
Mother returned to the protective parenting group and resumed individual therapy in June 2015 and quickly passed four of the five tasks. Mother admitted Embry had had contact with A.S. on at least one visit, but she then clarified that he had only provided her transportation to and from the visit. Mother claimed she had severed her relationship with Embry, and had obtained independent housing and employment. Mother also admitted she had a history of staying with men who were unsafe.
Mother called McKinley in August 2015. Mother stated she had a new phone number, a new job, and had resumed protective parenting and counseling. Mother reiterated she was living at the Woodruff Avenue house alone and could not get a copy of the lease from landlord to verify occupancy. McKinley informed her that, if she could not verify stable and independent housing, as ordered by the district court, it might jeopardize the Children's return. Mother also stated that she was visiting weekly with the Children in Louisville. McKinley testified at the termination hearing that the Children were happy to see Mother, and that the visits were going well.
McKinley testified she also began receiving angry phone calls from Embry in August 2015. McKinley described Embry as hostile, prone to profanity, and vaguely threatening. On August 15, 2015, and September 9, 2015, Embry posted inflammatory statements about McKinley on his personal Facebook page. In his anger, Embry also advised McKinley he was still in a relationship with Mother and they continued to live together, contrary to Mother's claims to McKinley and Noll. Noll and McKinley each observed Mother had posted a picture of herself and Embry together on her Facebook page, and Mother had changed her last name on Facebook to "Embry."
Noll and McKinley again met with Mother in September 2015. Mother again denied living with Embry or being in a relationship with him. She continued to defend him. Noll again removed Mother from the protective parenting group because of her inability to recognize that she was making decisions that were not protective of her Children. Noll scheduled an individual therapy appointment for September 24, 2015, to discuss the situation with Embry. Mother failed to appear. Noll has not heard from her since. Noll closed Mother's case on November 25, 2015.
McKinley continued her efforts to contact Father. McKinley testified she emailed Father in September 2015. He quickly responded by outlining his personal history and accomplishment, and expressing deep anger at the Cabinet and the courts. He indicated no willingness to engage in reunification services. He did not ask about the Children, their welfare, or their needs.
In October 2015, Mother requested a meeting with McKinley and a Cabinet supervisor. At that meeting, Mother finally admitted she was in a relationship with Embry and that they had been living together for three years. She stated the district court's orders were unfair and she had no intention of leaving Embry. Mother also stated she was unemployed and had no income. The Cabinet encouraged Mother to resume services, resume phone calls with her children (which had become sporadic), and to seek independent housing. Mother continued to visit regularly with the Children each week.
McKinley testified that Mother contacted her in January 2016 to coordinate a home visit at her new address in Hardin County, Kentucky. Mother stated she was residing there with friends and, as of January 13, 2016, was employed at McDonalds. McKinley, upon conducting the visit, observed there was no room there for the kids, and could not approve the residence as one of the adults living there had a substantial child abuse/neglect history. Mother admitted it was transitional housing. Mother also stated she had ended her relationship with Embry, and had begun treatment with a new service provider. Mother confessed she had been dishonest about her relationship with Embry in the past.
McKinley testified at the termination hearing that Mother has not complied with all aspects of her case plan. She stated that Mother had moved among multiple counties (Meade, Jefferson, and Hardin) and multiple residences since 2012. She had yet to establish stable and independent housing suitable for the Children. McKinley also testified Mother has held (and lost) at least four or five jobs since August 2014. Though currently employed at McDonalds, Mother has been unable to demonstrate she can maintain steady employment. Further, Mother had not completed the protective parenting program, individual therapy, or in-home therapy. Mother had never paid child support and, except for birthday presents, had never provided essential items, such as food, clothing, or school supplies, for the Children. Mother had, however, completed parenting classes, a substance abuse assessment, and the FORECAST assessment, though she: failed to follow through with the treatment recommendations; regularly drug tested with negative results; and remained drug and alcohol free since 2011. Despite all the services offered, McKinley testified that Mother still lacked the ability to make protective decisions on behalf of herself and her Children, and to adequately care for the Children so that reunification might be feasible in the foreseeable future.
McKinley testified she visits the Children monthly in their current foster home in Louisville. The Children are doing well in this placement. They have had no behavioral concerns beyond typical age-appropriate issues. Both Children are involved in weekly individual therapy. Daughter is academically gifted, often taking advanced classes. Son is also doing well in school. Each child plays a musical instrument and is involved in extracurricular activities and sports. They are happy and healthy. Their needs are being met. While both express sadness about not visiting with Mother in the future, they are comfortable with and bonded to their foster parents, who are able and willing to adopt them.
Father did not appear at the termination hearing. However, at his attorney's request, the family court permitted Father to submit an extensive affidavit outlining his view of the facts and his position in the case. Father claimed he pays $250 per month, per child, in child support and he would fight for his children. McKinley clarified that Father had not had contact with the Children since before March 2012; to her knowledge he had never paid child support, though she only checked the Jefferson County child support records; and Father had never arranged for food, clothing, shelter, or medical care. Father declined to participate in any of the services offered by the Cabinet. After Father left the country in 2013, he only had three limited contacts with the Cabinet; those contacts were in March 2014, November 2014, and September 2015. McKinley testified that the Cabinet had substantiated physical abuse by Father against A.S. in 2005, and substantiated sexual abuse by Father against A.S. in 2012 based on new information provided by A.S. regarding Father's conduct in 2005.
The family court entered orders on February 10, 2016, terminating Mother's and Father's parental rights. The family court concluded there had been a previous adjudication of neglect against Mother, the evidence at the termination hearing supported an independent finding of neglect against both parents, and that termination would be in the Children's best interest. The family court further found that: (1) Father had abandoned the Children for a period of not less than ninety days, KRS 625.090(2)(a); (2) Mother and Father had continuously failed to provide essential parental care and protection for the Children for a period of not less than six months and there was no reasonable expectation of improvement, KRS 625.090(2)(e); (3) Mother and Father had failed to provide for the children's essential needs for reasons other than poverty alone and there was no reasonable expectation of improvement, KRS 625.090(2)(g); and (4) the Children have been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the termination petition, KRS 625.090(2)(j).
Mother stipulated to neglect in April 2011; Father was not part of this neglect petition.
These appeals followed.
II. Standard of Review
This Court will only disturb a family court's decision to terminate a person's parental rights if clear error occurred. If there is substantial, clear, and convincing evidence to support it, the decision stands. KRS 625.090(1); Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). The clear and convincing standard does not demand uncontradicted proof. All that is needed "is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted).
III. Analysis
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a "tripartite test." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
Father challenges the family court's neglect finding, the first statutory prong, while Mother challenges the family court's parental-unfitness finding, the third statutory prong. Both challenge the family court's best-interest finding, the second statutory prong. We tailor our discussion according to the arguments raised. A. Abused or Neglected Child , KRS 625.090(1)(a)
As referenced, Father challenges the family court's neglect finding. He argues the family court's neglect finding was largely based on unsupported allegations of physical and sexual abuse and/or was based on a standard that was not clear and convincing. We are not persuaded.
KRS 600.020 defines an abused or neglected child as one whose health or welfare is harmed or threatened with harm when the child's parent:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;KRS 600.020(1)(a)1-9. There is more than sufficient evidence in this case to support the family court's finding that Father neglected Son and Daughter.
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child; [or]
9. Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months[.]
To clarify, the Cabinet substantiated that Father had sexually and physically abused A.S., the Children's half-sibling. There was never an allegation that Father sexually or physically abused Son or Daughter. But Father's conduct, as found by the Cabinet created a risk that an act of abuse would be committed upon Son or Daughter. KRS 600.020(1)(a)6. Though Father denies abusing A.S., or any child, in any manner, the fact remains that the Cabinet's substantiated findings amount to credible evidence upon which the family court may rely.
But even setting that aside, the family court found, and the record supports, that Father has not seen the Children in over four years and, except for three sporadic contacts with the Cabinet, has made no effort to see them and inquire as to their welfare since 2013. Father abandoned his children. KRS 600.020(1)(a)7. By doing so Father also neglected the Children's material, emotional, and healthcare needs, and contributed to their extended stay in foster care, all of which created a risk of emotional injury to these Children. KRS 600.020(1)(a)2. Father has offered these Children no parental care or protection nor has he provided for any of their essential material needs since 2011. KRS 600.020(1)(a)4, 8. And, despite being provided a case plan and told of needed reunification services, Father made no progress toward identified goals in his case plan. In fact, he did not work his case plan at all. Father failed to complete or even initiate a single service. KRS 600.020(1)(a)9.
Son and Daughter are most assuredly neglected children. There is ample clear and convincing evidence in this record to support the family court's neglect findings. B. Child's Best Interests , KRS 625.090(1)(b)
Mother and Father both contend that termination of their respective parental rights is not in the Children's best interests and the family court erred in finding otherwise. Father contends, generally, that he has demonstrated the ability to provide essential parental care and the necessities of life, and there is a reasonable expectation of further improvement due to his advanced education. Mother argues the statutory best interest factors in KRS 625.090(3) weigh in her favor and do not support the family court's best interest finding.
The family court may not terminate a parent's parental rights unless it first finds that doing so would be in the child's best interest. The court, in conducting a best interest analysis, is guided by several factors enumerated in KRS 625.090(3). Those factors include, to the extent relevant: the mental illness or an intellectual disability of a parent; acts of abuse or neglect toward any child in the family; reasonable efforts made by the Cabinet to facilitate reunification; 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; 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 the payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so. KRS 625.090(3)(a)-(f).
KRS 625.090(3)(a) considers a parent's mental illness or intellectual disability, as specifically defined by statute, "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[.]" Mother had been diagnosed with Adjustment Disorder. We agree with the family court there is no evidence this issue prevents her from providing consistent and appropriate care for the Children. There is no evidence Father suffers from a mental illness or intellectual disability.
KRS 202B.010(9). --------
Next, KRS 625.090(3)(b) examines any "acts of abuse or neglect as defined by KRS 600.020(1) toward any child in the family." The family court found the Children to be neglected. There is substantial evidence in the record to support the family court's finding.
The preceding section of this opinion has already addressed the family court's neglect findings relating to Father. We need not address that evidence again here.
As to Mother, she admitted in 2011 to neglecting the Children based on her decision to manufacture methamphetamines in the family home. Her drug addiction created a risk of physical and emotional injury to the Children and prevented Mother from caring for their immediate and ongoing needs. KRS 600.020(1)(a)2, 3, 8. Further, the Children have been subjected to domestic violence between Mother and Father. A.S. suffered physical and sexual abuse by Father, which resulted in her sexually acting out with Daughter. Mother was, and is, responsible for the welfare of her children. While she did not commit the acts, she failed to shield her children from them. KRS 600.020(1)(a)5. Mother has also failed to provide for the Children's essential materials needs for many years, KRS 600.020(1)(a)8, failed to fully comply with her case plan and, despite all the services offered and treatment obtained, failed to make sufficient progress to warrant reunification. KRS 600.020(1)(a)9. We are convinced there is sufficient evidence in the record to support the family court's finding that Mother has neglected both Son and Daughter. KRS 625.090(3)(b); KRS 600.010(1)(a).
KRS 625.090(3)(c) requires the family court to consider "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[.]" Reasonable efforts are defined by KRS 620.020(11) "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[.]" The family court found the Cabinet had rendered all reasonable reunification services to these parents. We again find substantial evidence to support the family court's finding.
The Cabinet offered Father a case plan containing numerous services, including batterer's intervention, a sexual abuse assessment, and individual therapy. Father decline to participate in the case planning process. He did not engage in a single service. He made no effort at all. Absent Father's willingness to undergo services and treatment, there is nothing else the Cabinet could do for Father to facilitate reunification.
The Cabinet offered Mother parenting classes, a substance abuse assessment, drug treatment, individual therapy, and random drug screens to hold her accountable. Mother completed these services. Yet, the district court was not inclined to order reunification. So, the Cabinet offered Mother additional reunification services, such as family counseling, protective parenting classes, individual therapy, and in-home therapy. It also offered the children individual and, when appropriate, family counseling. When asked at the termination trial to articulate any additional services which may be offered to Mother or Father to bring about reunification, the Cabinet worker could identify none. We agree that the Cabinet engaged in all reasonable efforts to reunite Mother with her children prior to filing the termination petition.
Mother argues it was unreasonable and fundamentally unfair for McKinley to "change" Mother's case plan three years after its inception. She describes McKinley's actions as arbitrary and unfounded. But Mother's own argument belies her position. After three years of "working" her case plan and repeated requests from the Cabinet for additional visitation the district court was still unwilling to allow the Children to return to Mother's care. McKinley testified repeatedly that she offered Mother additional services, not as punishment to Mother, but to demonstrate to the district court that Mother was prepared to parent the Children. We find Mother's argument baseless.
Mother also asserts it was disingenuous for McKinley to claim support for reunification, but change the Children's goal from reunification to adoption only months after receiving the case. Mother fails to see the bigger picture. By the time McKinley became involved the Children had been in foster care for two and a half years. McKinley testified that, while she thought reunification was still feasible, she owed a duty to the Children to establish permanency. This caused McKinley to seek a goal change, not a secret antagonism toward Mother.
The next factor, KRS 625.090(3)(d), required the family court to consider "[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 the child." Father made no adjustments to his circumstances, conduct, or condition to make it in the Children's best interest to return to his care. Again, he chose not to participate in any services offered by the Cabinet. Father, after failed attempts at custody or visitation, simply abandoned the Children and left the country.
Mother made meaningful adjustments to her circumstances and lifestyle. She has been drug and alcohol free for many years and appears to have abandoned her criminal lifestyle. She also participated in numerous services and therapies to sharpen her parenting skills. While far from stable, Mother at least attempted to obtain employment and housing to allow her to care for the Children. Despite these adjustments, it was still not in the Children's best interest to return to Mother's care. Mother disregarded the district court's no-contact order, and was not fully compliant with the Cabinet's case plan. She did not complete the protective parenting program, individual therapy, or in-home therapy. Between August 2014 and January 2016, Mother held four or five different jobs and had moved three times. She did not maintain steady employment or stable housing.
Much focus was on Mother's inability to obtain housing independent of Embry. Mother blames McKinley for this. She claims Embry was not a threat to the children, had no history of child abuse or neglect, and had no criminal record of significance. Mother contends McKinley changed the requirement from stable housing to independent housing and, despite all prior social workers having no issue with Embry or his involvement in the Children's lives, McKinley, because of her personal disdain for Embry, refused to approve him and advocated for the no-contact order.
Having carefully reviewed the termination hearing and the neglect record, we think Mother's characterizations of McKinley's actions unwarranted. In Mother's view, everything was fine until McKinley came along. But that was certainly not the case. The Children's therapist first raised concerns about Embry in April 2014, several months before McKinley was assigned the case. The district court echoed the therapist's concerns at the April 2014 and August 2014 review hearings. And, while McKinley advocated for the no-contact order, it was issued by the district court, not the Cabinet. Mother's continued failure to abide by the no-contact caused her therapist and McKinley concern. Mother clearly disagreed with the order. But she was still obliged to obey it.
KRS 625.090(3)(e) "takes into account the child's physical, emotional, and mental health coupled with whether improvement will continue if termination is ordered." K.H., 423 S.W.3d at 213. Since their placement in foster care, the Children have shown marked improvement in their behavior and mental health. The Children are exceptionally bright and doing well in school. They are happy and healthy. Their needs are being met. They are attached to their foster parents, who are willing to adopt them.
Lastly, KRS 625.090(3)(f) examines "[t]he payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." Id. Mother has never paid child support for the children, despite being employed on numerous occasions and thus being financially able to do so. Father claims to have paid child support, but the Cabinet worker could not verify Father's claim. Father presented no documentary evidence at the termination hearing to substantiate his position. It is the duty of every parent to provide for his or her children. At the very least, Mother and Father could have arranged with the Cabinet or the foster parents to provide basic necessities for the children, such as clothing, school supplies, bathing items, and/or personal hygiene supplies. They chose not to do so.
Finally, while not related to a specific best-interest factor, we must point out there exists no real relationship between the minor children and Father. Father has not been a part of their lives for the past four years. Father began a new life with a new family in Cambodia. That was his choice. By doing so he severed his ties and relationship with these children, allowing them to linger in foster care for many years.
The family court, upon weighing each factor outlined in KRS 625.090(3), concluded the termination was in the Children's best interest. The family court's finding is supported by the record. We decline to disturb it. C. Parental Unfitness , KRS 625.090(2)
The final prong of the tripartite test requires the family court to find "at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists" as to each parent. K.H., 423 S.W.3d at 209-10. As previously discussed, Father does not challenge this aspect of the family court's ruling. He confined his arguments to the first two termination prongs. Our discussion on this element relates solely to Mother.
Mother argues there is insufficient evidence to support the family court's finding she is unfit to parent the children under KRS 625.090(2). Specifically, she takes issue with two of the termination grounds found by the family court: that Mother repeatedly failed to provide essential parental protection and care, KRS 625.090(2)(e), and that Mother failed to provide essential food, clothing, medical care, or education, KRS 625.090(2)(g). Challenging the family court's findings, Mother points out that she regularly visited the Children, even driving over two hours each way for visits when the Children were in Ohio County; she has remained drug and alcohol free for years; she complied with every aspect of her case plan until McKinley added additional requirements in 2014; she almost always had a job and housing, even if McKinley was not satisfied with her living arrangements; and she tried to protect the Children from Father by obtaining and renewing a DVO.
We are convinced that all of the family court's findings are fully supported by clear and convincing evidence. Nothing in this opinion should be construed otherwise. However, we entertain Mother's argument, arguendo, and yet still we see no need to reverse the family court's termination decision.
The family court found clear and convincing evidence to support three of the termination grounds enumerated in KRS 625.090(2). Only one ground, however, is needed to satisfy this statutory parameter. See id. (termination shall only be ordered if the family court finds the existence of at least one of the statutory grounds enumerated in KRS 625.090(2)). Mother focuses her argument on two of the family court's three parental-unfitness findings, but utterly fails to address or attack the third.
The children have lingered in foster care for at least fifteen of the most recent twenty-two months preceding filing the termination petition. KRS 625.090(2)(j). They were placed in foster care in March of 2012. The termination petition was filed three years (36 months) later, in March of 2015. This statutory factor has been satisfied.
The Kentucky legislature, by enacting this subsection in 1998, sought to prevent long-term foster care, also known as "foster care drift," an acute problem especially for young children. Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 177 (Ky. App. 2004). Our legislature intended to leave children in foster care for as brief a time as possible. Id. The time limits within which parents must make the necessary changes for reunification of the family (or risk possible termination of their rights) are not designed to punish parents, but to promote stability and permanency for children. Id.
Again, the family court need only find "at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists." K.H., 423 S.W.3d at 209. The family court found evidence to support three such grounds. The ground unmentioned by Mother is undoubtedly supported by clear and convincing evidence. Finding no error here, we conclude the family court's finding of parental unfitness is supported by clear and convincing evidence in the record. This Court, therefore, will not interfere on this basis.
In sum, the family court's termination decision is supported by clear and convincing evidence. It is legally sound. We affirm the Jefferson Family Court's February 10, 2016 orders terminating Mother and Father's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT C.F.W.: Leonard W. Taylor
Louisville, Kentucky BRIEF FOR APPELLANT H.S.: Paul J. Mullins
Louisville, Kentucky BRIEF FOR APPELLEES: Erika L. Saylor
Louisville, Kentucky