Opinion
NO. 2015-CA-001776-ME
05-05-2017
R. W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; AND L. W., A CHILD APPELLEES
BRIEF FOR APPELLANT: Michael R. Slaughter Louisville, Kentucky BRIEF FOR APPELLEE: Jennifer E. Clay Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 14-AD-500503 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. KRAMER, CHIEF JUDGE: R. W., a mother, appeals the Jefferson Family Court's judgment terminating her parental rights to L. W., her female child. After a careful review of the record, we affirm because a parent's compliance with the Cabinet's requirements is considered in a termination of parental rights proceeding, but it is not the only consideration. The family court has the ultimate authority to determine, pursuant to KRS 625.090, whether parental rights should be terminated. Additionally, we affirm because there was clear and convincing evidence to support a termination of R. W.'s parental rights under KRS 625.090(2).
The child's father, M. S., who was a party to the termination of parental rights case in the family court, did not appeal from that court's judgment. Therefore, he is not a party to this appeal, and we will not review the case as it pertains to him.
Kentucky Revised Statute.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the record, at the time the petition for termination of parental rights was filed in the present case, R. W. was the biological mother of four children. Approximately a year and a half before L. W. was born, R. W.'s three oldest children were placed in the temporary custody of their maternal great-grandmother because R. W. had left one of those children, who was approximately eighteen months old at the time, home alone while she went to the store.
Days after L. W. was born, she was placed in the custody of the Cabinet for Health and Family Services because her older siblings had been removed from R. W.'s custody due to neglect. The Cabinet placed L. W. in a foster home. Weeks after L. W. was placed in the Cabinet's custody, her three older siblings were permanently removed from R. W.'s custody.
Additionally, at least one of those children has the same father as L. W., but that child was removed from the father's custody because the father had abused that other child.
Approximately fifteen months after L. W. was born, the Cabinet filed a petition to terminate R. W.'s parental rights. In its petition, the Cabinet alleged that R. W. failed to protect and preserve the rights of the child "to a safe and nurturing home"; that the "child is an abused or neglected child as defined in KRS 600.020(1); and it is in the best interest of the child that parental rights of . . . [R. W.] . . . be terminated." The Cabinet also asserted that R. W., "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" L. W., and that "there is no reasonable expectation of improvement in parental care and protection, considering the age of the child." Finally, the Cabinet contended in its petition that R. W.,
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 [L.W.'s] well-being and there is no reasonable expectation of significant improvement in [R. W.'s] conduct in the immediately foreseeable future, considering the age of the child.
A hearing was held on the petition to terminate R. W.'s parental rights. During the hearing, Linda Probus, an art therapist who works for Seven Counties Transitions, testified. She stated that she worked with R. W. on protective parenting concerns and that R. W. completed all five required written tasks that Seven Counties Transitions set forth for her to complete. Ms. Probus attested that a psychiatrist at Seven Counties Transitions diagnosed R. W. with schizo-affective disorder, which includes symptoms of anger and irritability, as well as being suspicious and having problems with impulse control. Ms. Probus stated that R. W.'s moods ebbed and flowed and that sometimes she was calm and focused, but that she became more anxious and disruptive in group therapy each time that a court hearing was approaching. She also testified that at times, R. W.'s suspiciousness was to the point that it was unmanageable for R. W.; that R. W. was not always compliant with psychiatric services and with taking her medications as prescribed; and that R. W. had difficulty maintaining individual housing. Ms. Probus attested that R. W. had trouble stating, without any prompting by Ms. Probus, what her difficulties might be if she were to be a single parent to four children of various ages. R. W. could not identify what her extended support system might be or who she might turn to for help if she regained custody of the children and a problem arose. Ms. Probus stated that R. W. was living with L. W.'s father at the time she became pregnant with the child because she had no stable housing, and R. W. even told Ms. Probus that the child's father had chronic mental illness.
Dr. Karen Eisenmenger, a licensed clinical psychologist, testified about R. W.'s diagnosis of "Psychosis/Not Otherwise Specified (NOS)." Dr. Eisenmenger attested that a diagnosis of Psychosis/Not Otherwise Specified (NOS) means the patient has psychosis, but the person diagnosing the patient is not certain what type of psychosis (e.g., schizophrenia, bipolar disorder, etc.) that the patient has. She stated that typically, people with psychosis are very paranoid, have delusions of grandeur, have disorganized thinking, and/or have hallucinations (visual or auditory). Dr. Eisenmenger performed an assessment of R. W. and diagnosed her with mild mental retardation (MMR). Dr. Eisenmenger attested that following the assessment, R. W. returned to her office for a feedback session, during which R. W. was very manic. Dr. Eisenmenger testified that she was very confident in her diagnosis of R. W.
Terri Watkins, who is employed by the Cabinet as a social service clinician, attested that R. W. had entered into a safety plan in which she agreed that she would not allow the child's father to be in a caretaking role for her children due to his mental health issues. However, R. W. had left at least one of her children (i.e., L. W.'s older sibling) with the father.
Additionally, Ms. Watkins testified that during R. W.'s supervised visits with the child, R. W. did not appear to understand what was developmentally appropriate for L. W. to be doing based on her age. Ms. Watkins stated that she was careful about what she said to R. W. because she did not want to "trigger" anything because R. W. had become very angry with her in the past when she did not like what Ms. Watkins had said. Ms. Watkins testified that she tried to stick to discussing the case plan with R. W., rather than discussing her diagnosis, so she told R. W. that she needed to find housing; she needed to go to her appointments; and she needed to get therapy. Ms. Watkins attested that R. W. was offered an increase in her supervised visits from two hours to four hours, but R. W. declined the offer because she felt that she deserved unsupervised visits because she had a home.
Ms. Watkins also testified that she made a surprise visit to R. W.'s house one day, and it took two to three minutes for R. W. to answer the door. When she answered the door, R. W. would not allow Ms. Watkins to enter her house. Ms. Watkins left, and several days later, she learned that about an hour and a half after she had left R. W.'s house that day, there was a domestic violence incident at the house between R. W. and L. W.'s father.
Ms. Watkins attested that there are barriers to reunification between the mother and the child. She explained that the mother's inability to meet the child's needs because of the mother's low cognitive functioning (her IQ was reported to be a 68), her lack of parenting knowledge despite having completed various parenting classes, and her parenting skills being poor as reported by two psychologist are all barriers to reunification. Ms. Watkins stated that the mother brings food for the child when she gets to visit her and provides clothes, toys, and other items for her on holidays and birthdays. Ms. Watkins also attested that R. W. had completed the Cabinet's case plan, but there were still concerns about whether she could parent the child.
Intelligence Quotient.
Robert Watson has a doctorate in psychology and works at Psychology Resource Group. He testified that he performed a psychological evaluation on R. W., which included various tests. Dr. Watson stated he does not believe that R. W. is MMR. The IQ score that R. W. received following one test that Dr. Watson initially conducted was 68, but on a subsequent, different type of test, her IQ score was 75. R. W. had received an IQ score of 68 after taking Dr. Eisenmenger's tests, and Dr. Watson stated it would be reasonable to assume that R. W. underperformed on the day she took Dr. Eisenmenger's tests. He explained that this is because a person can only perform up to their maximum ability on an IQ test, which means they can perform at their maximum ability or anywhere below it, but never above it. So, because R. W. earned an IQ score of 75 on Dr. Watson's test, he opined that she must have underperformed when she took Dr. Eisenmenger's IQ test. Dr. Watson's assessment showed that, rather than being MMR, R. W. was in the "borderline intellectual functioning" range. He attested that people in that range typically have difficulty managing finances, managing medication, making medical appointments, and handling other complex activities of daily living, including social interaction. Dr. Watson testified that R. W. could live and function independently with the right assistance and support.
R. W. also testified during the hearing. She stated that she has prescriptions for Lamictal and Abilify. R. W. attested that the prescription bottles state she is supposed to take two Lamictal per day and one Abilify per day. However, she decided to only take one Lamictal and one Abilify per day because she is worried what effect taking two Lamictal per day might have on her body.
These medications were prescribed to treat R. W.'s psychiatric issues.
After the hearing, the family court entered written findings of fact and conclusions of law. The court found that L. W.'s older siblings were determined by the court to be abused or neglected and that temporary custody of those siblings had been awarded to the maternal great-grandmother about sixteen months before L. W. was born, and permanent custody of those siblings was awarded to the maternal great-grandmother a few weeks after L. W. was born. The court found that L. W. was born on August 9, 2013, and within a week of her birth, the Cabinet filed a verified DNA petition on the child's behalf, contending that she qualified as an abused or neglected child under KRS 600.020(1). The family court noted that after a hearing, it found the child to be dependent pursuant to KRS 600.020(19) because the court found that the mother was "incapable of providing for the child's ongoing needs due to mother's low cognitive functioning (IQ of 68) and due to her Bipolar Disorder, and failure to take medication as prescribed, and to attend therapy as directed by the psychologist."
Dependency, Neglect, and/or Abuse.
The court found that Ms. Watkins testified that if she said something at odds with what R. W. wanted her to say, R. W. would become very argumentative. It noted Ms. Watkins stated that sometimes R. W. would have "bursts of anger and act[] irrationally." The court found that "[i]f [R. W.] did not get the response she wanted from her treatment providers, she would refuse to work with them and go to a different provider. As this happened frequently, it took [R. W.] a lot longer to address treatment goals."
The family court stated that Ms. Watkins attested R. W. had "unreasonable expectations for the child, given the child's age, and a lack of understanding of the child's developmental stages." R. W. also refused the offer of extended supervised visits because she thought the visits should be unsupervised at her home. When she learned she could not get this, she turned down the offer to spend more time with the child through supervised visits.
The court found that Ms. Watkins conducted an unannounced visit to R. W.'s house once, and it took a while for R. W. to answer the door. Then, once she did answer the door, R. W. did not allow Ms. Watkins into her home. Ms. Watkins learned soon thereafter that there had been a domestic violence incident at R. W.'s house between R. W. and the father of L. W. on the day that Ms. Watkins had visited the house unannounced. The court stated Ms. Watkins testified that because R. W. "continues to remain involved with [L. W.'s father], this places the Petitioner child at risk due to the father's domestic violence and mental health issues and unwillingness to work with the Cabinet on treatment."
The family court noted Ms. Watkins attested that R. W. had "eight case managers and therapists over the last few years [because] she becomes disgruntled and transfers to different locations." It stated R. W. testified that she changed case managers and therapists so often in efforts to have those appointments closer to her home, but the family court did not find this reason credible. The court stated Ms. Watkins testified that R. W. "cannot appropriately meet her own needs; therefore, it is not reasonable to expect her to be able to meet the needs of a two-year-old child." The family court found that R. W. "has difficulty focusing and does not recognize dangerous situations," and noted that she "admittedly stayed with [L. W.'s father] again (and became pregnant with [L. W.]) after he had previously abused her." Additionally, despite having completed parenting classes, the court stated that R. W. still did not understand the child's developmental stages. However, the court found that R. W. "has provided gifts for the child on holidays and special occasions, and she has brought lunch and snacks at times during visits."
At the time the court's findings of fact were entered, the family court stated the child was two years old and meeting her developmental goals. The child had been in her foster home for two years, so it was the only home the child had known. The court found that the child was "very attached to her foster mother, her foster brother in the home, and the foster mother's extended family." If termination of parental rights were ordered, the court stated that the plan was for the foster mother to adopt the child.
The court summarized evidence that was produced through a deposition of Dr. Scott Hedges, who was R. W.'s treating psychiatrist at Seven Counties Services. It does not appear that Dr. Hedges's deposition was included in the record on appeal. "[I]t has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Smith v. Smith, 450 S.W.3d 729, 732 (Ky. App. 2014) (internal quotation marks and citation omitted). The family court summarized Dr. Hedges's deposition testimony as follows:
Dr. Hedges testified that he functions as Seven Counties Services['] Chief Medical Officer and as an adult psychiatrist. . . . Dr. Hedges holds a medical license from the State of Kentucky and is board certified in neurology and psychiatry from the American Academy of Neurology and Psychiatry.
Dr. Hedges was the treating psychiatrist for [R. W.] from July of 2014 until July of 2015, and during that time, Dr. Hedges had five visits with [R. W.] for medication reviews.
Dr. Hedges testified [R. W.] was assigned by Seven Counties Services to him as a transfer patient from another part of Seven Counties Services, Inc., where [R. W.] had been treated by a nurse practitioner. Initially, Dr. Hedges adopted the diagnosis for [R. W.] from the previous treating professional, the nurse practitioner, which was Mood Disorder/Not Otherwise Specified. This diagnosis had been documented on January 9, 2014 in the Seven Counties Services record by the nurse practitioner. [R. W.] had a prior diagnosis of Bipolar versus Schizo-affective Disorder. At his initial visit with [R. W.] on July 31, 2014, Dr. Hedges prescribed Lamictal, 25 mg. two times a day. Lamictal was prescribed to address [R. W.'s] mood swings.
Dr. Hedges'[s] second visit with [R. W.] was on October 9, 2014. [R. W.] reported adverse reactions to the generic Lamictal and Dr. Hedges discontinued the Lamictal and prescribed Paxil, 20 mg. daily. Paxil is an antidepressant and assists with anxiety symptoms. The third visit was held on December 18, 2014. [R. W.] was again prescribed Lamictal on her third visit with Dr. Hedges. [R. W.'s] fourth visit with Dr. Hedges occurred on March 12, 2015. At this time, Dr. Hedges prescribed Lamictal 25 mg. two times daily.
The final and fifth visit which [R. W.] had with Dr. Hedges was on July 6, 2015. On this date, [R. W.] requested Dr. Hedges testify at the upcoming termination of parental rights proceeding to the effect that she would be a good parent. Dr. Hedges told [R. W.] he was unaware of her parenting ability and could only comment on his findings regarding her treatment. [R. W.] became very angry and defensive.
Dr. Hedges testified that [R. W.] was committed to false beliefs that were not based in reality. [R. W.] continued to claim that U of L and others, including the maternal grandmother (custodian of her older children), were working against her. Dr. Hedges documented that [R. W.] was "clinically unstable" due to her increased anger and paranoia. Dr. Hedges testified that he did not believe the Lamictal was sufficiently treating the symptoms he observed and recommended adding Ambilify to the medication regime. (Ambilify is an antipsychotic medication used to stabilize paranoia). Dr. Hedges prescribed Ambilify, 10 mg. once daily. Dr. Hedges also continued [R. W.] on the Lamictal, 25 mg. twice daily.
On July 6, 2015, Dr. Hedges changed the diagnosis for [R. W.] to Psychosis Disorder/Not Otherwise Specified, which is a worsening of her progression. Dr. Hedges reviewed the risk-benefit analysis of the drugs with [R. W.]. Dr. Hedges told [R. W.] that failing to take her medications could result in unstable mood swings and impact her ability to cooperate with the Court and affect the way she interacts with her children. Dr. Hedges testified that [R. W.] then "fired" him and transferred to another location in Seven Counties because he had made the recommendation to add Ambilify.
We presume this refers to the University of Louisville, but we do not understand why R. W. referred to it.
The family court noted as follows: "Dr. Hedges acknowledged that [R. W.] did not use the term 'fired,' but she refused to work with him any further after he recommended a course of treatment that she did not like and after he refused to testify on her behalf."
The family court also summarized testimonial evidence that was presented during the hearing by R. W., Ms. Probus, Dr. Eisenmenger, and Dr. Watson. Upon review of the hearing, we find the court correctly summarized the testimony of these witnesses as follows:
Ms. Probus testified that [R. W.] had been involved with Seven Counties at least since 2010 in some manner, and at an assessment in February 2012, [R. W.] presented as "depressed" and "hearing voices." [R. W.] reported at that time that [she had] been depressed for three to four years and reported that schizophrenia and bipolar disorder "runs in the family."
[R. W.] was discharged from the Protective Parenting Group on March 25, 2015. Ms. Probus provided protective parenting group sessions to [R. W.] from September 9, 2014 until February 5, 2015. Ms. Probus testified that initially [R. W.] could not articulate the issues that brought her to the protective parenting classes. Although [R. W.] ultimately completed the five written tasks of the program and the apology letter for completion of the protective parenting group, Ms. Probus testified that this does not mean [R. W.] can now safely parent.
Ms. Probus testified that throughout the group sessions, she had seventeen individual sessions with [R. W.] to give her special assistance to organize and understand the tasks and draft her responses to the written tasks to better present at the group. Ms. Probus said [R. W.'s] emotional balance and mood fluctuated greatly throughout the time she worked with her. At times, [R. W.] was calm and somewhat focused -- at other times, she was very paranoid and angry. She was very suspicious of the Cabinet and maternal grandmother, who has custody of the three older children, believing that they were working against her. She became very defensive at times, expressing hostility toward the social worker, her former court-appointed attorney, the child's guardian ad litem, and others.
[R. W.] presented with a "victim stance" and was initially focused solely on herself and what she perceived was being done to her and could not focus on the well-being of her children. She had difficulty identifying why her children were removed from her care. [R. W.] took very little responsibility for the loss of her children and could not appreciate why it was dangerous to leave an eighteen-month-old child alone and unsupervised. Ms. Probus said [R. W.] had limited cognitive skills, limited parenting skills and was unable to make appropriate choices. She had low adaptive functioning and had difficulty handling day-to-day issues unassisted (making appointments, taking medication, minor decision-making). Ms. Probus routinely discussed with [R. W.] how she would manage four children without appropriate housing, limited [social security] funds, etc.[,] and without any other parental assistance or other support. Ms. Probus testified that [R. W.] expected the Cabinet to provide her with a social service worker to assist or support her with the children. Ms. Probus said she constantly talked to [R. W.] about the very "basic things" [she would] need to be able to do to get her child back, such as having housing, sufficient income to provide for herself and her child, and recognition of safety issues for herself and her child.
Ms. Probus testified that [R. W.] displayed a continuous level of paranoia, was argumentative, and had low adaptive functioning. [R. W.] often had to be "redirected" during group therapy and disrupted the sessions when she would become especially anxious. Ms. Probus arranged a session with [R. W.], Terri Watkins (the . . . caseworker) and herself to address the suspicion that [R. W.] held against the Cabinet. The session was "non-productive" and it was very hard for [R. W.] to manage her behavior. [R. W.] left the meeting muttering threats to go to the media.
In her final assessment, Ms. Probus expressed concerns with [R. W.'s] ongoing paranoia, her inability to comply
with her mental health needs, her inability to maintain appropriate housing for herself, her inability to identify the needs of children and understand their developmental stages, her lack of any support system (as she could not name anyone she would call if she needed assistance), and her limited cognitive abilities. [R. W.'s] diagnosis at the time of discharge was Psychosis/Not Otherwise Specified. Ms. Probus said this usually means that something has occurred in a person's life that they cannot "process," often identified by signs that the individual is "out of touch with reality" -- such as hearing voices or having visual hallucinations.
The Cabinet also called Dr. Karen Eisenmenger, Ph.D. as a witness. . . . Dr. Eisenmenger testified that Psychosis/Not Otherwise Specified . . . is a diagnostic code in the Diagnostic and Statistical Manual and is used when psychosis is present, but the diagnostician is uncomfortable labeling it as one of the other specific psychosis [diagnoses] such as bipolar, schizophrenia, or schizo-affective disorder. A person who presents with psychosis may exhibit disorganized thinking, lack of ability to reason, audio or visual hallucinations, delusions, paranoia and thought disorder.
Dr. Eisenmenger conducted a psychological evaluation of [R. W.] on March 15, 2013, at the request of the Cabinet, due to the Cabinet's concern about [R. W.'s] intellectual functioning and ability to safely parent her child. [R. W.] told Dr. Eisenmenger she had been receiving Social Security disability since she was nine years old due to a learning disability.
Dr. Eisenmenger reviewed the information provided by the Cabinet, interviewed [R. W.] and performed standardized testing on [R. W.]. Dr. Eisenmenger determined that [R. W.] had an . . . IQ of 68, which is in the Mild Mental Retardation range. [R. W.] tested in the extremely low range of functioning, in the 2nd percentile.
Dr. Eisenmenger found [R. W.'s] parenting abilities were poor, and noted that [R. W.] had no idea how to discipline her children[] and [R. W.] could not
understand how it was dangerous to leave her 18-month-old child home alone while she left the apartment, even if the child was sleeping. Dr. Eisenmenger opined that [R. W.'s] "adaptive functioning was quite low" as she was "well below an average IQ." Dr. Eisenmenger was "very confident" in the accuracy of the testing, especially as [R. W.] was able to focus at the assessment, was calm and was not "manic" that day.
Following the psychological assessment, [R. W.] objected to the diagnosis of [MMR] and the statement made by Dr. Eisenmenger in the psychological report that [R. W.] had attended "special classes" when in school. [R. W.] called Dr. Eisenmenger's office and made accusations that Dr. Eisenmenger was "friends" with the Cabinet and was working against her. [R. W.] demanded that the psychological report be changed, including the diagnosis and the statement that she had attended "special classes." Dr. Eisenmenger set up a feedback session to discuss the matter with [R. W.].
Dr. Eisenmenger and [R. W.] were the sole participants in the feedback session. Dr. Eisenmenger said [R. W.] came to her office, presented as "manic" at that time and this differed significantly from her presentation during the assessment or she might have also diagnosed her with an affective disorder. [R. W.] wanted Dr. Eisenmenger to change her report, and was told by Dr. Eisenmenger that the report would not be changed, but a supplemental memo would be added and submitted to CPS [Child Protective Services] on the feedback session.
Dr. Eisenmenger testified that on another occasion, [R. W.] came to her office without an appointment and went straight from the reception area to the doctor's office upstairs. Again, [R. W.] was acting very "manic," threatening, and demanded the doctor change her diagnosis.
Dr. Eisenmenger stated her last contact with [R. W.] was a phone call in 2014 where [R. W.] told the receptionist to put her through to Dr. Eisenmenger as she was "a friend," and then [R. W.] presented as "paranoid and
manic" again, accusing the doctor of being aligned with the caseworker, and claiming that if one had mild mental retardation, then one would need to be brain damaged, and since [R. W.] would know if she was brain damaged, then [R. W.] could not be mildly mentally retarded. Dr. Eisenmenger testified that manic behavior often consists of bouts of anger, irritability, racing thoughts, rushed speech, involvement in risky behaviors, or fighting with people.
Dr. Eisenmenger testified that due to her low mental abilities, [R. W.] also has difficulty with problem solving and reasoning, and this condition, coupled with active mental health issues (such as Psychosis/NOS) directly impacts her ability to parent a child. She noted she would have difficulty maintaining a job, driving, managing money -- doing the "normal" things people do every day.
Seven Counties Services, Inc. referred [R. W.] for a second psychological assessment. This assessment was conducted by Dr. Robert S. Watson, Psy.D. on March 26, 2015.
Dr. Watson administered the Kaufman Brief Intellectual Test-Second Edition and scored [R. W.] with an IQ of 68. Dr. Watson opined in his report that "[R. W.'s] performance on this measure is consistent with intellectual functioning within the lower extreme of intellectual abilities and is relatively consistent with prior testing." Dr. Watson administered the Wechsler Adult Intelligence Score - 4th Ed. to [R. W.] and scored her IQ as 75, placing [R. W.'s] intellectual functioning in the Borderline Intellectual Range and found that this score was "slightly higher than her performance in the previous testing completed in March, 2013." Dr. Watson also testified he tested [R. W.] for her adaptive behavior and scored her with a composite score of 71, placing [R. W.] in the moderately low range of adaptive ability. Dr. Watson diagnosed [R. W.] with Borderline Intellectual Functioning.
Dr. Watson did not state an opinion about [R. W.'s] parenting abilities. The average person's IQ is 90, and both [R. W.'s] IQ tests place her in a significantly lower range and fall in either the mildly mentally retarded or in the low intellectual functioning range.
Dr. Watson said he saw no evidence of manic behavior on the testing date, but [R. W.] reported having schizoaffective disorder. He said a person in [R. W.'s] intellectual range would struggle with the tasks of daily living -- such as managing family relationships and social interaction, medication management, paying bills, etc. and would be vulnerable to exploitation. He said [R. W.] is capable of learning, and she might be capable of functioning independently if she had the proper assistance and support. Her ability to manage daily activities would be largely dependent on her level of support. He believed she could read at a 5th grade level. But he said the presentation of "new" issues could present parenting problems. If [R. W.] had not been specifically taught how to handle a particular situation, she might not be able to appropriately deal with it. Dr. Watson also testified that if [R. W.] has a diagnosis of Psychosis/NOS in addition to her cognitive limitations, this would be a significant factor to consider.
Dr. Watson and Dr. Eisenmenger both testified that they determine what tests to administer to each person based on their observations during the assessment. Although Dr. Watson found [R. W.'s] IQ to be slightly higher than Dr. Eisenmenger, each had concerns with [R. W.'s] intellectual functioning.
During the trial, [R. W.] would occasionally interrupt the witness or spontaneously yell out.
[R. W.] indicated that she did not want to testify. After going off the record, however, she informed her counsel that she had changed her mind.
[R. W.] acknowledged that she had never had custody of this child. She wants her daughter to live with her, and she believes she deserves another chance. [R. W.] said
she is doing a lot better. She said her mental disability has "nothing to do with her parenting." She visits with [L. W.] every week, and she and the foster mother email each other.
[R. W.] said she enjoys playing with [L. W.] and paints with her. She said she now has her own apartment and has learned how to use the bus. She said her medication helps her to cope, but she thinks the doctor prescribes too much and she admitted that she doesn't take it as prescribed.
[R. W.] has been working with the Cabinet for three-and-a-half years. She gets upset when she [does not] get "answers right away." She receives food stamps and housing assistance and now has Passport insurance. She pays $110 monthly for rent for her new apartment. She had previously signed a lease for three years, but she [could not] afford those payments. Seven Counties stepped in (as her former payee) and got her released from the contract. [R. W.] denied that her case manager assists her with transportation and said she does everything for herself now. [R. W.] said she does not live near her mother or aunt or any family, and she does not have any support from them on a regular basis. She has not worked for over a year, and she last worked part-time at a Dairy Queen. She receives $733 monthly in disability and that is her sole source of income.
When questioned about the recent domestic violence incident with [L. W.'s father, R. W.] said she [had not] "seen [him] in two years" and the social worker was lying.
[R. W.] said she is going to get her GED and plans to start school again soon. She has tried to do this unsuccessfully several times before.
[R. W.] said Dr. Eisenmenger lied when she testified that she went to her office without an appointment. [R. W.] said Terri Watkins lied when she said she talked to her after the most recent visit, and [R. W.] said she tells "nothing but the truth."
Testimony was presented that R. W. had been receiving social security disability payments since she was a child.
The family court found that "'for a period of not less than six (6) months,' [R. W. has] been continuously or repeatedly incapable of providing essential parental care and protection for the Petitioner child" as provided in KRS 625.090(2)(e). It also determined that since the child had been in the Cabinet's care, R. W. had "continuously or repeatedly failed to provide or [had] been incapable of providing the Petitioner child 'with essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being'" pursuant to KRS 625.090(2)(g). The court found that both of the child's parents' "failure or inability to meet the material needs of their child is doubtless due more to abandonment and/or significant mental health illness/cognitive limitations than any other single factor." Therefore, it reasoned that the "parents' on-going failure or inability to provide the Petitioner child with the material necessities of life is 'for reasons other than poverty alone.'" The court acknowledged that R. W. had "provided lunch during visitation and other provisions such as clothing and presents, but these minor acts do not address the ongoing material needs of the child as contemplated by KRS 625.090(2)(g)."
The family court next addressed the best interest of the child as provided in KRS 625.090(3). It stated that credible evidence had been presented that R. W. "suffers from mild mental retardation or, at best, borderline intellectual functioning with an IQ somewhere between 68 to 75, and her adaptive ability is in the low range -- all of which limits her ability to safely and appropriately parent her child." The court also noted that R. W. has been "diagnosed with Psychosis/Not Otherwise Specified and has been prescribed medication to address her mood swings and paranoia." It stated that R. W. acknowledged not taking the medication dosages that had been prescribed. The court found that R. W. was incapable "of independently parenting a child and would need significant, ongoing support and assistance," as provided in KRS 625.090(3)(a).
Regarding KRS 625.090(3)(b), the court found, inter alia, that the mother previously admitted to abusing or neglecting the child's siblings during their underlying DNA proceedings. As for KRS 625.090(3)(c), the family court stated that testimony had been presented to show that "the Cabinet made appropriate referrals for the Respondent mother to: [M]ental health treatment; protective parenting classes . . .; psychological assessment services; counseling; Protective Parenting Group; visitation services; and various other services." The court noted that Terri Watkins attested that "she was unaware of any other services which the Cabinet could provide or refer to the Respondent parents so as to allow for the safe reunification of the parents with the child within a reasonable period of time, considering the age of the child." The family court agreed with Ms. Watkins's assessment.
Regarding KRS 625.090(3)(d), the family court noted that although R. W. had complied "with some orders," she "continues to have significant, limiting mental health issues, and has not consistently complied with medication management." The court found that because of R. W.'s "low intellectual functioning and limited adaptive ability," the child was unable to be returned to her mother's custody and care and "has remained in the Cabinet's care and custody for not less than twelve (12) consecutive months." It determined that this "deprived the child of her 'right to a secure, stable family[,]' KRS 620.010, and to '[p]ermanence,' defined as 'a relationship between a child and an adult which is intended to last a lifetime, providing commitment and continuity in the child's relationships and a sense of belonging[.]' KRS 620.020(9)."
As for KRS 625.090(3)(e), the family court found that the "child's physical, mental and emotional needs have been met while in the Cabinet's care and custody and the child is expected to make continuing improvements in these areas upon termination of parental rights." The court noted that testimony was presented stating that the child was very attached to her foster family and that her foster mother would adopt her if termination were ordered. The court also noted that the foster home was the only home the child had ever known.
Regarding KRS 625.090(3)(f), the family court found that R. W. had not paid any child support or "paid any substitute financial assistance since the Petitioner child has been in State care." Therefore, based upon its analysis of KRS 625.090 and the applicability of the statute to this case, the family court concluded that "termination of parental rights [was] in the best interest of the Petitioner child." Consequently, R. W.'s parental rights were terminated.
R. W. now appeals, contending that: (a) she complied with all of the Cabinet's requirements, and yet the court still terminated her parental rights; and (b) there was not clear and convincing evidence to support a termination of her parental rights under the ten grounds listed in KRS 625.090(2).
II. STANDARD OF REVIEW
In termination of parental rights cases, this Court has held that the appellate standard of review is as follows:
The trial court has broad discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. This Court's review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people.W. A. v. Cabinet for Health and Family Services, Commonwealth of Kentucky, 275 S.W.3d 214, 220 (Ky. App. 2008) (internal quotation marks and citations omitted).
In a trial without a jury, the findings of the trial court, if supported by sufficient evidence, cannot be set aside unless they are found to be clearly erroneous. This principle recognizes that the trial court had the opportunity to judge the witnesses' credibility.
Kentucky Rule of Civil Procedure.
A. COMPLIANCE WITH THE CABINET'S REQUIREMENTS
R. W. first alleges that she complied with all of the Cabinet's requirements, but the court still terminated her parental rights.
The involuntary termination of parental rights is a scrupulous undertaking that is of the utmost constitutional concern. The U. S. Supreme Court has unequivocally held that a parent has a "fundamental liberty interest" in the care and custody of his or her child. This fundamental interest does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. . . . Therefore, [w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.Cabinet for Health and Family Services v. K. H., 423 S.W.3d 204, 209 (Ky. 2014) (internal quotation marks and citations omitted).
The Commonwealth's TPR [termination of parental rights] statute, found in KRS 625.090, attempts to ensure that parents receive the appropriate amount of due process protections. KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.
R. W. asserts that the court terminated her parental rights despite her compliance with all of the Cabinet's requirements. As we noted supra, Ms. Watkins attested that R. W. had completed the Cabinet's case plan, but there were still concerns about whether she could parent the child. Ms. Watkins attested that R. W. had an inability to meet the child's needs because of her low cognitive functioning and lack of parenting knowledge despite having completed various parenting classes. Ms. Watkins also attested that on a day that she made an unannounced visit to R. W.'s house and R. W. would not allow her to enter the house, Ms. Watkins learned soon thereafter that there had been a domestic violence incident at R. W.'s house between R. W. and the father of L. W. that day. The family court stated Ms. Watkins testified that because R. W. "continues to remain involved with [L. W.'s father], this places the Petitioner child at risk due to the father's domestic violence and mental health issues and unwillingness to work with the Cabinet on treatment."
The family court also noted that Ms. Watkins testified R. W. "cannot appropriately meet her own needs; therefore, it is not reasonable to expect her to be able to meet the needs of a two-year-old child." The court found that R. W. "has difficulty focusing and does not recognize dangerous situations," and noted that she "admittedly stayed with [L. W.'s father] again (and became pregnant with [L. W.]) after he had previously abused her." Additionally, despite having completed parenting classes, the court stated that R. W. still did not understand the child's developmental stages.
Even if we were to assume, for the sake of argument, that R. W. were in compliance with all of the Cabinet's requirements, as she contends, this still does not guarantee her protection from the involuntary termination of her parental rights. The Cabinet does not decide whether a parent's rights should be terminated; rather, it is the responsibility of the circuit court to do so, as provided by KRS 625.090. That statute sets forth the grounds a circuit court must review in determining whether a parent's rights should be involuntarily terminated. Specifically, KRS 625.090 provides as follows:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(b) Termination would be in the best interest of the child.
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
(4) If the child has been placed with the cabinet, the parent may present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.
(5) If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.
(6) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact,
conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
Because it is the circuit court's responsibility to determine whether or not a parent's rights should be involuntarily terminated under KRS 625.090, whether a parent has complied with the Cabinet's requirements is one consideration in a termination of parental rights proceeding, but it is not the only consideration. Therefore, even if we were to assume that R. W. complied with the Cabinet's requirements, the family court nevertheless had the ultimate authority to determine, pursuant to KRS 625.090, whether her parental rights should be terminated.
Furthermore, contrary to R. W.'s assertion, the court considered R. W.'s efforts to do as she had been asked. In fact, the court extensively reviewed the testimony at the hearing, including testimony by R. W. herself in which she admitted that she was not taking her medications as prescribed. The court also noted that R. W. had become pregnant with the child at issue in the present case when she stayed with the child's father even though he had previously abused her. Additionally, another domestic violence incident occurred between R. W. and the child's father on a day that Ms. Watkins had visited R. W.'s house unannounced, while R. W. was supposed to be working toward reunification with the child. Therefore, R. W. was not staying away from the child's father as she should have done in efforts to show that she could provide a safe environment for the child if the child were returned to R. W.'s care. Consequently, this claim lacks merit.
B. CLEAR AND CONVINCING EVIDENCE
R. W. also contends that there was not clear and convincing evidence to support a termination of her parental rights under the ten grounds listed in KRS 625.090(2). We note that R. W. does not challenge any of the family court's findings under KRS 625.090(1), (3)-(6). Therefore, she has waived any claims she may have had under KRS 625.090(1), (3)-(6).
As for KRS 625.090(2), the family court found that KRS 625.090(2)(e) and (g) were applicable to this case. Specifically, it stated:
As of the trial date in this TPR action, the Respondent parents have not been fully compliant with the aforementioned remedial orders and the Cabinet's court-approved case treatment plan arising out of the Petitioner child's DNA action. . . . [R. W.] has been incapable of making sufficient progress in the court-approved case treatment plan to allow for the safe return of the Petitioner child to parental custody and care, and the Cabinet subsequently has been unable to recommend reunification of the Petitioner child with either Respondent parent. Due to the failure or inability of each Respondent parent to fully engage in treatment and reform the behaviors which led to the removal of the Petitioner child from parental custody, . . . the Petitioner child could not be safely returned to parental custody for the past twelve (12) months that the child has been in state care. Accordingly, this Court must conclude that, during all that time, "for a period of not less than six (6) months," each of the Respondent parents [has] been continuously or repeatedly incapable of providing
essential parental care and protection for the Petitioner child. KRS 625.090(2)(e).
Furthermore, through the testimony of all the witnesses, it is clear that, at least as long as the Petitioner child has been in State care, each of the Respondent parents [has] continuously or repeatedly failed to provide or [has] been incapable of providing the petitioner child "with essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being." KRS 625.090(2)(g). The Respondent parents' failure or inability to meet the material needs of their child is doubtless due more to abandonment and/or significant mental illness/cognitive limitations than any other single factor. In any event, it is clear that the Respondent parents' on-going failure or inability to provide the Petitioner child with the material necessities of life is "for reasons other than poverty alone[.]" Id. This Court recognizes that the natural mother has provided lunch during visitation and other provisions such as clothing and presents, but these minor acts do not address the ongoing material needs of the child as contemplated by KRS 625.090(2)(g).
It appears from the record that the child's father, as opposed to her mother, R. W., was found to have abandoned the child. However, R. W. had "significant mental illness/cognitive limitations," which the court discussed in its Findings of Fact and Conclusions of Law. --------
The family court properly found that R. W. was incapable of providing essential parental care and protection for the child for at least six months and that there is no reasonable expectation of improvement in parental care and protection, in accord with KRS 625.090(2)(e). R. W. continued to have contact with the child's father, despite the prior abuse by him. In fact, a domestic violence incident between R. W. and the child's father occurred on a day that Ms. Watkins conducted an unannounced visit to R. W.'s home while R. W. was supposed to be working toward reunification. Additionally, Ms. Watkins testified that she had to be careful about what she said to R. W. because R. W. would get very angry and argumentative, and Dr. Eisenmenger attested that R. W. was manic during her feedback session. Further, R. W. herself admitted that she did not take her medication as it was prescribed to her. The medication was prescribed for the purpose of addressing her mental health issues. Therefore, without taking the medication as prescribed, we cannot be certain that R. W.'s mental health is stable, which means it is not safe to return the child to her care. Consequently, KRS 625.090(2)(e) is applicable to this case.
Moreover, KRS 625.090(2)(g) is applicable here because if R. W. is incapable of taking her own medication as prescribed to address her mental health issues, there is no reasonable expectation that she can provide essential care to the child. Therefore, the family court properly found that KRS 625.090(2)(e) and (g) were applicable to R. W.'s case. Consequently, R. W.'s claim that there was not clear and convincing evidence to support a termination of her parental rights under KRS 625.090(2) lacks merit.
Accordingly, the judgment of the Jefferson Family Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Michael R. Slaughter*
Louisville, Kentucky BRIEF FOR APPELLEE: Jennifer E. Clay
Louisville, Kentucky * After the briefs were filed in this appeal, the Appellant moved for her counsel to be withdrawn, and her motion was granted. Therefore, as of the time this opinion was written, the Appellant was proceeding pro se.