Opinion
NO. 2017-CA-000598-ME NO. 2017-CA-000599-ME NO. 2017-CA-000600-ME NO. 2017-CA-000601-ME
03-02-2018
S.N.J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND T.J.C. JR., A MINOR CHILD APPELLEES AND S.N.J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND K.N.H.J., A MINOR CHILD APPELLEE AND S.N.J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND H.S.C., A MINOR CHILD APPELLEES AND S.N.J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AND J.D.J., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Amy DeRenzo Hulbert Louisville, Kentucky BRIEF FOR APPELLEE, CABINET: Jennifer E. Clay Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NOS. 16-AD-500381 & 16-AD-500381T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NOS. 16-AD-500382 & 16-AD-500382T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NOS. 16-AD-500383 & 16-AD-500383T APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NOS. 16-AD-500385 & 16-AD-500385T OPINION
AFFIRMING
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BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. CLAYTON, JUDGE: The appellant S.N.J. ("Mother") brings this consolidated appeal from orders of the Jefferson Family Court involuntarily terminating her parental rights in her four minor children. The family court also terminated the parental rights of the children's fathers, but they are not parties to this appeal.
The children at issue in this case are K.N.H.J., a daughter born on April 3, 2008; T.J.C. Jr., a son born on September 7, 2011; H.S.C., a son born on September 22, 2012; and J.D.J., a daughter born on September 28, 2014. At the time of the termination trial, which was held on February 22, 2017, the children were eight, five, four and two years of age.
The Cabinet for Health and Family Services first became involved with the family in January 2012, before the birth of the two younger children. The daughter K.N.H.J., who was three years of age at the time, reported that the Mother had given her a black eye. The Cabinet filed a petition alleging that the daughter and the son were abused or neglected. Following a hearing, the petition was resolved by informal adjustment which allowed the children to remain in the Mother's custody on the condition that she submit to random drug screens, attend counseling and follow the recommendations. All three parents were required to attend and complete parenting classes and to refrain from using corporal punishment on the children.
Approximately two years later, on January 13, 2014, the Cabinet filed an emergency custody order after a report that Mother had slammed the younger son's head into a dresser. The elder son was found to have several unexplained marks on his bottom. The children were removed and placed in the temporary custody of the Cabinet. The Mother was ordered to have a parenting assessment and follow the recommendations, submit to random drug screens, to complete substance abuse treatment, and attend counseling and follow the recommendations. She was permitted to have supervised visitation if she complied with court orders and her drug levels were decreasing or she was clean and sober. The Mother was also referred for psychological testing and treatment after the court learned that she exhibited depressive and suicidal symptoms.
On May 24, 2014, the Mother stipulated to risk of abuse or neglect due to her use of inappropriate corporal punishment and untreated mental health needs. The children remained in the temporary custody of the Cabinet and the Mother was ordered to complete Parenting After Abuse classes and follow the recommendations.
The Mother's fourth child was born on September 28, 2014. In November 2014, the Cabinet filed another petition after the baby's meconium tested positive for marijuana. The Mother admitted she smoked marijuana before she knew was pregnant. The baby was allowed to remain in her custody. She was again ordered to attend and complete Parenting after Abuse classes and follow the recommendations, submit to random drugs screens, attend counseling and follow the recommendations, establish paternity for the baby and cooperate with the Cabinet and all treatment providers.
The Mother filed a motion in March 2015 for the return of custody of the three other children, who had been in foster care for fourteen months. The motion was granted. Mother was ordered to continue to submit to random drug screens, to remain clean and sober, to continue attend counseling, to ensure that the eldest son continued to attend counseling and to use no corporal punishment.
On December 16, 2015, the Cabinet filed an emergency custody order alleging abuse or neglect of all four children when the Mother was arrested after attempting to smuggle some items into the Kentucky State Reformatory in Eddyville, Kentucky. The Mother had not arranged for anyone to look after the children in her absence, and the eldest son was not attending counseling or taking his prescribed medication. The children were removed and placed in the temporary care of the Cabinet.
A fourth petition was filed against the Mother who was incarcerated in Caldwell County and unable to look after the children. The Cabinet later filed an amended petition alleging physical abuse of the children by the Mother occurring between March and December 2015. The elder daughter reported that her mother hit her with a belt and the elder son reported that she kicked him down the stairs. Mother stipulated to abuse or neglect and the children were committed to the care of the Cabinet in July 2016. The Mother was ordered to have a substance abuse evaluation, random drug screens, to follow treatment recommendations, counseling, to have therapeutic contact with the children if compliant with court orders, have a parenting assessment, take all prescribed medications, and to remain clean and sober. Mother scheduled and completed a psychological evaluation on March 24, 2016. She completed Parenting After Abuse and remained active with Centerstone.
The Cabinet filed a petition for involuntary termination of parental rights pursuant to Kentucky Revised Statutes (KRS) 625.050 on August 22, 2016. The Mother was permitted three visits with her children between November 2016 and January 2017. The contact stopped immediately, however, when the Mother tested positive for marijuana on January 27, 2017.
The action was tried on February 22, 2017. The fathers of the children did not file answers to the Cabinet's petition nor did they appear at the trial, where they were represented by warning order attorneys. The Cabinet presented as witnesses Breanna Detenber, the ongoing social services caseworker, and Marion Austin, a certified social worker who is the children's mental health therapist at the New Hope Foster Homes. The Mother also testified.
Following the trial, the family court entered findings of fact, conclusions of law and orders terminating mother's parental rights in each of the four children. Mother filed four separate appeals which were consolidated on a motion by the Cabinet.
Involuntary termination proceedings are governed by KRS 625.090, which provides that a circuit court may involuntarily terminate parental rights only if the court finds by clear and convincing evidence that a three-pronged test has been met. First, the child must be deemed abused or neglected, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination of parental rights must be in the child's best interest, and the court is provided with a series of factors that it shall consider when making this determination. KRS 625.090(1)(b); KRS 625.090(3). Third, the court must also find at least one of the ten grounds listed in the statute. KRS 625.090(2).
"[T]o pass constitutional muster, the evidence supporting termination must be clear and convincing. Clear and convincing proof is that of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (internal citations and quotation marks omitted). We are also mindful that
A family court operating as finder of fact has extremely broad discretion with respect to testimony presented, and may choose to believe or disbelieve any part of it. A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous.Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).
On appeal, the Mother does not challenge the finding that the children were found to be "abused or neglected" as defined by KRS 600.020(1)(a). Her arguments are directed at the trial court's findings under the other two prongs of the statutory scheme: whether there was at least one ground of parental unfitness under KRS 625.090(2) and whether termination was in the children's best interest under the factors listed in KRS 625.090(3).
The trial court found under KRS 625.090(2)(a), that the Mother had "abandoned the child[ren] for a period of not less than ninety (90) days[.]" Although the Mother acknowledges that her children were removed from her care twice, first in January 2014 and again in December 2015, she contends that she did not abandon them. She argues that, although she was substantially compliant with court orders throughout this period, she was not permitted to have contact with her children, either due to court orders or the discretion of the social worker. She points out that whenever she was permitted to do so, she spoke with the children over the telephone or in person.
The trial court found, in reliance on the testimony of the Cabinet's assigned caseworker, that the Mother had failed to visit or have contact with the children from the date of removal, December 2015, until approximately November 2016. Since that time, the Mother had only three supervised visits with her children because of her positive or missed drug screens. The trial court noted that she had some therapeutic telephone calls with the children but gave greater weight to the caseworker's testimony that the Mother had not availed herself of the reunification services provided by the Cabinet nor made sufficient progress in the court-approved case treatment plan to allow for the safe return of the children to her care. The trial court's finding of abandonment is supported by clear and convincing evidence in the form of the caseworker's testimony. While the Mother's intention may not have been to abandon the children, her failure to comply with the Cabinet's directives meant that the children could not safely be returned to her.
In regard to KRS 625.090(2)(e), which provides as grounds for termination 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[,]" the Mother argues that her failure to provide essential parental care and protection was not intentional, and that she maintained continuous and constant contact with her social worker and substantially complied with the court orders in her case. Similarly, under KRS 625.090(2)(g), the Mother disputes the trial court's finding that she, "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[.]"
Although the Mother's intentions may have been positive, she was given literally years to avail herself fully of the various services that would enable her to be reunited with her children yet failed to do so. When she was employed, the Mother did not offer any significant financial assistance to meet the material needs of the children. The trial court found that the parents' failure to meet the material needs of the children was due more to mental illness and drug abuse than to any other factor, but this finding fully meets the statutory requirement that the failure to provide is for reasons other than poverty alone.
The Mother also disputes the trial court's findings under the multiple statutory factors contained in KRS 625.090(3) that the termination was in the best interest of the children. The first factor (a), requires the trial court to consider whether the parent has been diagnosed with mental illness or intellectual disability. The mother acknowledges that she has been diagnosed with mental illness. She contends, with no reference to the record, that all evidence at trial suggested that she is compliant with her medications, and therefore this factor should not have been considered in the termination decision. The trial court found that there was credible evidence that mental illness rendered her consistently unable to care for the immediate physical or psychological needs of the children. Specifically, she was diagnosed with Bipolar II disorder, as well as narcissism and paranoia, Depressive Disorder, Affective Psychosis, Adjustment Reaction, Adjustment Disorder with mixed anxiety and depressed mood, and Post Traumatic Stress Disorder with depersonalization. The trial court found that the mother's Centerstone Kentucky records showed a history of sporadic attendance and compliance with her mental health treatment, and a combative attitude to her providers. The record also shows that she tested positive for marijuana on January 27, 2017. Centerstone requires a client to submit three consecutive clean drug screens before resuming treatment; thus, her continuing use of illegal substances was a bar to her receiving mental health treatment. The Mother testified that she was taking psychiatric medication which was not prescribed through Centerstone. The trial court observed that there was no evidence produced to confirm this testimony, and expressed concern that the Mother was taking Xanax, an addictive medication, even though she had been struggling with substance abuse since at least 2012. The trial court's skepticism regarding the Mother's assertion that her mental illness was no longer a hindrance to caring for her children was well within its discretion as the factfinder, especially in light of the substantial evidence that the Mother continued to struggle with mental illness and difficulties with drugs.
The mother acknowledges that the totality of evidence at trial supported the second factor (b), which requires the trial court to consider acts of abuse or neglect toward any child in the family.
As to the third factor (c), which requires a consideration of the Cabinet's reasonable efforts to reunite the children with their parent, the Mother argues that the barriers preventing her from seeing the children were the result of poor communication or disagreement with the treatment providers. As an example, she claims that the most recent barrier to reunification was her failure to complete the protective parenting program. She was not accepted into the program because she refused to take responsibility for the abuse that caused her children to be removed. She claims she was unable to submit a second letter to the program before the date of the trial because she did not have an adequate opportunity to discuss with her attorney the implications of any admissions of abuse for her pending criminal case. She argues that the Cabinet should have sought to refer her to another parenting program, claiming that her willingness to continue to voluntarily pursue whatever treatment she could on her own illustrates that there may have been other treatment programs she could benefit from that would help with reunification. This argument is purely speculative. "The argument that some sort of treatment plan short of involuntary termination and care as provided by [the Cabinet] was or is a viable alternative is unsupported speculation." Cabinet for Human Res. v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995). The trial court correctly relied on the testimony of the Cabinet social worker that she was unaware of any other services or referrals to services the Cabinet could provide that would allow for safe reunification within a reasonable time considering the age of the children.
The next statutory factor (d), relates to the effort and adjustments made by the parent to return the children to the home. The mother argues that even though she was not fully compliant with court orders, at the time of the trial she had stable housing, was in therapy, was being drug tested, was compliant with her medications, had completed a psychological assessment and was following the recommendations of the psychiatric evaluation. She argues that her failure to complete the protective parenting program and her positive screen for marijuana should not stand in the way of reunification. The trial court is "in the best position to evaluate the testimony and to weigh the evidence." L.D. v. J.H., 350 S.W.3d 828, 830 (Ky. App. 2011) (citations omitted). The Cabinet caseworker testified that as of the date of the filing of the termination petition, the parents were not fully compliant with the court's remedial orders, particularly with respect to remaining clean and sober and receiving mental health treatment. The trial court was entitled to give greater weight to this evidence, rather than to the Mother's testimony, particularly in light of the Mother's long history of noncompliance or partial compliance with its orders.
As to the fifth factor (e), which requires the trial court to assess the children's physical, mental and emotional health and whether termination would improve their welfare, the Mother acknowledges that the children appear to be doing well in their current foster placement and are receiving proper treatment, but she argues that this treatment could continue if they were reunified with her. She argues that this outlook is supported by her trial testimony that she is now taking medications for her mental illness. Mother also testified that she was better able to care for her children after understanding her own needs and having sought assistance from her treatment provider, Dr. Booker.
The trial court relied instead on evidence of the trauma suffered by the children while in their mother's care. The children's therapist testified that the two elder children have both been diagnosed with PTSD and are prescribed psychiatric medication. She explained that PTSD is a long-term condition which can be permanent. The elder daughter was hospitalized at a psychiatric hospital, had screaming fits lasting as long as three hours, stole at school and would harm herself. She reported that her mother hit her with a belt. The elder son exhibited such extreme behaviors when he started kindergarten that the school requested he return to pre-kindergarten. He expressed fear that if he was returned to the Mother, she would kick him down the stairs again. The youngest daughter exhibited signs of self-harm by pulling out her own hair and scratching her face. The therapist opined that the that the children's prognosis was good if they stayed in a structured environment, but bad if they were returned to the Mother. The social worker testified that she visited the children monthly in their foster home and reported they were attached to their foster parents and are doing well. The testimony of these two witnesses fully supported the trial court's finding that the physical, mental and emotional needs of the children were being met while in the care and custody of the Cabinet.
Finally, in regard to the final factor (f), which requires the court to consider the parent's payment or failure to pay for substitute physical care and maintenance of the children if financially able to do so, the Mother points to her testimony that she did buy the children gifts, but had been unable to take them to the children because she is reliant on public transportation. The trial court found that the parents were capable of working but had not offered any financial assistance to meet the needs of the children. This finding was supported by the Mother's testimony that she was employed during most of the pendency of the case, yet had not paid any support. Moreover, there was no indication that the Mother attempted to give the gifts to the social workers to pass on to the children.
Because the trial court's findings are supported by clear and convincing evidence, the orders terminating the parental rights of the Mother in her four children, K.N.H.J.; T.J.C. Jr.; H.S.C.; and J.D.J., are affirmed.
MAZE, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Amy DeRenzo Hulbert
Louisville, Kentucky BRIEF FOR APPELLEE, CABINET: Jennifer E. Clay
Louisville, Kentucky