Opinion
NO. 2015-CA-000940-ME NO. 2015-CA-000941-ME NO. 2015-CA-000943-ME
05-27-2016
B.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, As Next Friend of M.SK.P., a child APPELLEE AND B.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, As Next Friend of M.A.R.P., a child APPELLEE AND B.C. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, As Next Friend of M.ST.P., a child APPELLEE
BRIEF FOR APPELLANT: Philip C. Kimball Louisville, KY BRIEF FOR APPELLEE: CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY Dilissa G. Milburn Mayfield, Kentucky CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY as next friend of M.SK.P., a child, M.A.R.P., a child and M.ST.P., a child Dianna Riddick Benton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY JR., JUDGE
ACTION NO. 14-AD-00021 APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY JR., JUDGE
ACTION NO. 14-AD-00022 APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY JR., JUDGE
ACTION NO. 14-AD-00023 OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND NICKELL, JUDGES. COMBS, JUDGE: Appellant, B.C. (Mother), seeks review of Orders of the Marshall Family Court terminating her parental rights to her three minor children in this consolidated appeal. Appellee is Commonwealth of Kentucky, Cabinet for Health and Family Services, as next friend of M.A.R.P, M.St. P., and M. Sk. P., the natural children of B.C. (Cabinet). Finding no error, we affirm.
The children from youngest to oldest are:
M.A.R.P., a male (Child 3), born on May 23, 2011. His father is unknown;
M. St. P., a female (Child 2), born on December 18, 2007. Her father is J.H. The trial court's Findings of Fact reflect that J.H. was personally served with summons and a copy of the petition for termination and that he failed to enter an appearance or otherwise defend;
M. Sk. P., a female (Child 1), born on April 12, 2005. Her father is J.P. -- as determined by positive paternity testing. J.P. testified at hearing that he was agreeable to voluntarily terminating his parental rights to Child 1 and that he believed it would be in her best interest.
Before the events giving rise to this appeal occurred, Mother and the three children had been living with Mother's grandmother (Great-grandmother) in Texas. Mother subsequently moved with the children to Paducah, Kentucky, where her own mother (Grandmother) and stepfather lived. In January 2012, not long after moving to Kentucky, Mother was arrested for shoplifting and was sentenced to jail for a short time. She left the three children with Grandmother. While Mother was still incarcerated, Grandmother moved to Texas, leaving Child 1 and Child 2 with Mother's stepfather and Child 3 with N.R., a non-relative.
On February 28, 2012, Mother's stepfather and N.R. filed Dependency, Neglect and Abuse Petitions in Marshall District Court, Juvenile Division. The trial court's Findings of Fact and Conclusions of Law provide a chronology of the ensuing events.
a. February 28, 2012 - Emergency Custody Orders were entered giving [Mother's step-father] emergency custody of [Child 1 and Child 2] and granting emergency custody of [Child 3] to the Cabinet.
b. March 2, 2012 - A Temporary Removal Hearing was held, [Mother] was transported from McCracken County Detention to attend the hearing and custody of all three (3) children was placed with the Cabinet[.] [Mother] did not disclose any relatives for possible placement.
c. March 23, 2012 - A Pre-Trial Conference was conducted and as a result, [Mother] waived an Adjudication hearing and stipulated to a finding of neglect. She stipulated to a risk of harm of neglect based on 1) she failed to follow through with medical needs of the children, 2) she was incarcerated on criminal charges, and 3) substance abuse of an illegal drug marijuana.
d. March 27, 2012 - Adjudication Orders were entered finding neglect and incorporating the mother's stipulations.
e. May 8, 2012 - A Disposition hearing was held with [Mother] present and Disposition Orders were entered with the goal being to reunite the children with [Mother]. This Court adopted the reunification plan recommended by the Cabinet as set forth in the Cabinet's Pre-Disposition Report.
The Reunification plan was specifically outlined in detail with [Mother] and provided that [Mother] would:
i. address issues leading to instability;
ii. provide a safe and stable home for her children;
iii. cooperate with the cabinet which included being honest with the cabinet, making scheduled appointments and keeping the cabinet [sic] informed of her current contact information;
iv. complete a substance abuse assessment and follow all recommendations;
v. complete a domestic violence assessment and follow all recommendations;
vi. follow guidelines of visitation;
vii. enroll in and complete parenting classes and implement skills learned through parenting classes;
viii. submit to random drug screens and pill counts as requested by the cabinet and keep $24.00 saved for the drug screens;
ix. maintain a drug free home; and
x. seek services from Merryman House to address past domestic violence and accept services to assist with stability.
f. August 17, 2012 - A Review Hearing was held with [Mother] present. The Cabinet reported that [Mother] has made no progress on her case plan, was inconsistent with visitation and had brought her boyfriend to visitation despite an order not to and had lied to the visitation supervisor that she was granted permission to bring him to visitation. The goal remained as reunification with [Mother].
g. November 30, 2012 - A Review Hearing was held with [Mother] present. The Cabinet reported that [Mother] had made some progress on her case plan but the Cabinet remained concerned about her failing to complete requested drug screens. The goal remained reunification with [Mother] and the court noticed the next hearing as a possible goal change if [Mother] continued to fail to provide a clean drug screen.
h. February 22, 2013 - An Annual Permanency Review Hearing was held with a goal change being considered, [Mother] was present. As of the date of the hearing, [Mother] had not provided the Cabinet a clean drug screen, had not completed parenting classes or her domestic violence education. The goal was changed to adoption. With the exception of the May 5, 2015 Termination of Parental Rights hearing,
this was the last hearing [Mother] attended before the Marshall County Family Court.(underline original.)
i. January 10, 2014 - An Annual Permanency Review Hearing was held, [Mother] did not attend nor did she make a request to participate by phone. The case remained status quo.
In early 2014, Mother returned to Texas. On August 6, 2014, the Cabinet filed Petitions for Involuntary Termination of Parental Rights in the Marshall Family Court in the interest of Child 1 (No. 14-AD-00021), Child 2 (No. 14-AD-00023), and Child 3 (14-AD-00022).
On December 5, 2014, an Annual Permanency Review Hearing was held. Mother did not attend nor did she request to participate by telephone. The case remained status quo.
On May 5, 2015, the three cases were tried together. The trial court entered separate Findings of Fact and Conclusions of Law and Orders terminating Mother's parental rights (and those of the two known fathers). The trial court found that Mother had: failed to work her case plan in order for the court to safely reunite her with the children, failed to cooperate with the Cabinet, failed to attend review hearings, consistently refused drug screens, and failed to complete her court-ordered substance abuse program. The court made the following conclusions of law, which contain additional findings:
1. The child has been adjudged to be a neglected child as defined by KRS[]600.020(1) by a
court of competent jurisdiction. KRS 625.090(1) (a).
2. [Mother] has abandoned the child for a period of not less than ninety (90) days. KRS 625.090(2)(a). [Mother] failed to timely work her case plan for reunification, and once the goal changed to adoption in February 2013, she stopped visiting her children, she failed to keep in contact with the Cabinet to check on her children's well-being and stopped attending scheduled review hearings before the court in the dependency, neglect and abuse actions.
3. For a period of six (6) months, [Mother] repeatedly failed to provide essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child. KRS 625.090(2)(e). Once [Mother] was released from incarceration, she resided with a gentleman for approximately twelve (12) months who had a very long criminal drug history; she then took up residence for approximately the next (2) months with someone who was extremely violent towards her. [Mother] testified [that] for the first fourteen (14) months after she was released from jail and during a time when the goal was reunification, she was in an environment unsafe for the children. When asked by the court when it would have been safe to place the children back with her, she said now, over three (3) years after the initial removal. Essential parental care and protection includes providing children with a safe environment to live.
4. [Mother], for reasons other than poverty alone, continuously and repeatedly failed to provide essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well-being and there is no
reasonable expectation of significant improvement in her conduct in the immediate foreseeable future considering the age of the child KRS 342.090(2) (g). In the beginning of the dependency, neglect and abuse action, [Mother] was incarcerated for minor violations. Upon her release, a reunification case plan was adopted that could have resulted in a quick return of the children to her care. [Mother's] actions of being untruthful, refusing drug screens, failure to attend scheduled home visits and living with gentlemen that placed the children in a risk of harm, made it impossible to safely return the children to her. As a result, Kentucky and the children's foster parents have provided for all of their needs. [Mother] testified that she blames Kentucky for the children's removal and not being returned to her and assumes little-to-no blame for the situation.(footnotes omitted).
5. The child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights KRS 625.090(2)(j).
6. Termination would be in the best interest of the child. KRS 625.090(1)(b)....
Kentucky Revised Statutes.
We address the trial court's best interest analysis below as it pertains to the issue on appeal.
Analysis
In reviewing a decision to terminate parental rights, we apply a clearly erroneous standard. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Commonwealth, Cabinet for Health and Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citations omitted).
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.Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
KRS 625.090(3) enumerates the factors which the Circuit Court must consider in determining the best interest of the child and the existence of a ground for termination:
(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.
Mother's argument centers on KRS 625.090(3)(c). She contends that the trial court misconstrued the statute as requiring the Cabinet to make reasonable efforts before the filing of neglect petitions rather than before the filing of termination petitions. Mother submits that the Cabinet could have only exercised reasonable efforts if it had used the Interstate Compact for the Placement of Children ["ICPC"] to investigate the possibility of placing the children with Mother's Texas relatives before filing the petitions for termination.
Mother notes that evidence was submitted pursuant to KRS 625.090(4) regarding the likelihood that "additional services" would likely bring about reunification. Mother contends that the "testimony of all of the witnesses clearly indicated that any chance for [Mother] and her children to be reunified would be found in Texas ....[where she] could rely upon her grandmother and great-grandmother to help her with the children." Essentially, she argues that reunification efforts were inadequate and that they were abandoned too soon.
The statute provides: "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." --------
On September 22, 2015, Mother filed a Notice of Suggestion that we take judicial notice of documents appended as Tab 7 to her Brief. The notice was treated as a motion and was passed to the merits by Order of October 15, 2015. Mother requests that we take judicial notice of a December 18, 2011, Investigative Report of the Texas Department of Family and Protective Services presumably because the investigator's findings would support Mother's argument that she had family support in Texas. Mother contends that this report qualifies as a court record from this proceeding because it is the report of a Texas governmental agency that was accessed by the Cabinet and provided to Mother during discovery. Even were we to agree, it would not be appropriate to take judicial notice of the substantive findings in the report:
Under KRE 201, ... it may be appropriate to notice court records for the occurrence and timing of matters reflected in them—the holding of a hearing, say, or the filing of a pleading—but it will generally not be appropriate to notice the truth of allegations or findings made in another matter, since such allegations or findings generally will not pass the "indisputability" test.Rogers v. Commonwealth, 366 S.W.3d 446, 451 (Ky. 2012). The motion was denied by the trial court.
We are not persuaded that the court misconstrued KRS 625.090(3)(c). In its Findings of Fact, the trial court outlined the Cabinet's reunification plan. In considering the grounds for termination under KRS 625.090(2), the trial court directly addressed the efforts at reunification: "[i]n the beginning of the dependency, neglect and abuse action, [Mother] was incarcerated for minor violations. Upon her release, a reunification case plan was adopted that could have resulted in a quick return of the children to her care." The reunification plan provided for Mother to seek services from Merryman House to address past domestic violence and accept services to assist with stability. As the Cabinet notes in its Brief, some of those services included assistance with moving into the shelter; grants to assist Mother's move into her own housing to become more independent; apartments that can accommodate children; assistance with reunification; and counseling services. Mother did not follow through.
We agree with the trial court that Mother's actions made that aspiration toward reunification impossible. An excellent analysis of the reunification efforts aimed toward re-establishing a family unit is contained in Graham & Keller, 16 Ky. Prac. Domestic Relations L. § 25:31:
The reasonable efforts requirement at the termination stages should not be an opportunity for replanning and rethinking the entire removal experience. If reasonable efforts have been properly frontloaded, the termination case will have begun only after the requirement for those efforts has been adequately satisfied. The primary role of the reasonable efforts finding at the termination stage is to make a complete record that will satisfy the heavy evidentiary requirement for termination of parental rights.
Courts involved in terminations of parental rights should be aware that only reasonable efforts are required. KRS 625.090 establishes a goal of family reunification, but this goal is tempered by the requirement that services provided to the parent must be reasonably expected to bring about lasting change within a reasonable period of time. The statute thus cautions courts not to revisit the entire removal process.
The services that will be reasonable, and therefore required, depend on the facts and circumstances of each case. There may be a strong relationship between the definition of reasonable efforts and the court's findings with regard to parental attitude. If parents have made no attempt to comply with reunification plans initially developed by the Cabinet for Health and Family Services, it should not necessarily be incumbent upon the Cabinet to develop additional, proactive services for the family prior to termination of parental rights. [Footnotes omitted.]
The parameters of the actions aimed at reunification include reasonable efforts on the part of the parent or parents as well as what is required of the cabinet and courts. In the case before us, the trial court assessed Mother's efforts and adjustments to return the children to her care within a reasonable period of time. Pursuant to KRS 342.090(3)(d), the trial court found as follows:
[d]i. [Mother] failed to cooperate with the Cabinet, she was dishonest with the Cabinet on several occasions, she failed to make scheduled home visits, she refused drug screens, she continued to reside with men who posed a safety risk to both herself and her children, she failed to complete the court-ordered substance abuse assessment, she stopped visiting her children in May of 2013 and she has not attended any court review hearings since February of 2013.
ii. There continues [sic] to be concerns regarding [Mother's] drug use and criminal activity regarding drugs. She has continually associated with individuals with known substance abuse histories since her release from jail in 2012. She lived with [a man] for approximately one (1) year after being released from jail in 2012... [who] has a long criminal history regarding substance
abuse. During one unannounced home visit by the Cabinet, [Mother] was found in the home with [that man] and the social worker testified to smelling a strong chemical smell. In Texas, she has recently resided with her brother and his girlfriend,..., who [sic] this court has an open case on regarding her substance abuse issues. On April 10, 2015, [Mother] and a male friend were arrested and charged with possession of methamphetamine and approximately $800.00 in cash was found on [Mother's] person.The trial court further considered as follows:
e. [T]he physical, emotional and mental health of the child and the prospects of improvement of the child's welfare if termination is ordered. The child is placed with [his or her] siblings in a loving and supportive foster family. The child's physical, emotional and mental welfare is being cared for and there is a strong likelihood that this family intends to adopt the child.
In addition, the trial court made detailed findings regarding Mother's Texas relatives:
g. Consideration has been given to [Mother's] family support in Texas. [Mother] has not requested at any court hearings that consideration be given to any member of her Texas family for placement.
When CHFS was preparing their pre-disposition report for the Disposition hearing, [Mother] stated that there were not any available placements within her family. It was not until the summer of 2014 that this court became aware that there were in fact relatives in Texas who wished to be considered for placement. It was not until late 2013 that the Texas relatives began contacting the Cabinet to request placement in Texas.
h. Consideration has been given to the fact that [Grandmother] left her grandchildren in Kentucky while [Mother] was incarcerated. Consideration has been given to the fact that [Mother's] grandmother testified she knew back in February 2012 that the children had been placed in the custody of the Cabinet but then wrote a letter to the court on July 17, 2014, that the family in Texas had no idea that the children were removed three (3) years prior.
...
i. Consideration has been given to the fact that this court is prohibited by the [ICPC] to place the children with Texas relatives unless Texas approves the placement, that it typically takes at least six (6) months to go through the ICPC process, that it was not until after the children had been in the custody of the Cabinet for over a year and a half and after the goal was changed to adoption, that there was expressed any interest for [Mother's] family for placement.
j. [W]ith the exception of the children's great-great-grandmother, this court would have significant reservations on placing the children with [Mother's] other relatives.
We agree with the Cabinet that the trial court was not required to continue consideration of placement with Mother's Texas relatives if it was not in the children's best interests. In R. C. R. v. Commonwealth, Cabinet for Human Res., 988 S.W.2d 36, 40 (Ky. App. 1998), the mother alleged that the Cabinet did not present proof it had considered alternatives to the termination of parental rights -- such as relative placement. The Court explained that:
Under KRS Chapter 625, proof that this alternative has been considered is not required to terminate parental rights. Once the conditions of terminating parental rights are met, it is the duty of the Cabinet to then act in the best
interests of the children. Placement with relatives may be an option for consideration, but nothing more.
In P.W. v. Cabinet for Health and Family Services, 417 S.W.3d 758 (Ky. App. 2013), after the trial court accepted the Cabinet's recommended goal change from reunification to termination, the mother notified her assigned social worker that her cousins were willing to care for the children. A home evaluation was conducted and the cousins were approved, but the cabinet's review committee decided not to recommend placement with them because: the cousins had had little contact with the children; the children had bonded with their foster parents, who wished to adopt them; and removal from the foster home was not in the children's best interest.
The trial court in P.W. denied mother's motion for immediate relative placement, explaining that
[t]hroughout the entire process,...[mother] preferred foster care to relative care. ... She failed to disclose the existence of these relatives for whatever reason....[T]he bonding by the children over time has become completeId. at 759-60. On appeal, the mother in P.W. argued that the trial court erred by ignoring that the cousins were a suitable relative placement option. This Court disagreed. "To remove [the children] from the only home that essentially either had known and place them with [cousins], with whom they had had little contact, was simply not in their best interest." Id. 761.
and the Court will not undo it for a venture into the unknown of another placement.
Conclusion
We conclude that the trial court properly construed KRS 625.090 and that substantial evidence supports the termination of parental rights as to each child. Ample and meticulous findings of facts were made to support the conclusions of law.
We affirm the orders of the Marshall Circuit Court. ENTERED: __________
/s/_________
JUDGE, COURT OF APPEALS
ALL CONCUR. BRIEF FOR APPELLANT: Philip C. Kimball
Louisville, KY BRIEF FOR APPELLEE: CABINET FOR HEALTH AND
FAMILY SERVICES,
COMMONWEALTH OF
KENTUCKY Dilissa G. Milburn
Mayfield, Kentucky CABINET FOR HEALTH AND
FAMILY SERVICES,
COMMONWEALTH OF
KENTUCKY as next friend of
M.SK.P., a child, M.A.R.P., a child
and M.ST.P., a child Dianna Riddick
Benton, Kentucky