Opinion
2023-CA-1367-ME
03-29-2024
J.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.W.; AND S.C.W., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Sharon K. Allen McKee, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JACKSON FAMILY COURT HONORABLE CLINT J. HARRIS, JUDGE ACTION NO. 22-AD-00027
BRIEFS FOR APPELLANT:
Sharon K. Allen
McKee, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:
Kevin Martz
Covington, Kentucky
BEFORE: CETRULO, GOODWINE, AND JONES, JUDGES.
OPINION
CETRULO, JUDGE:
Appellant J.S. ("Mother") appeals the Jackson Family Court's October 2023 Findings of Fact and Conclusions of Law and corresponding Order terminating her parental rights (together, "October 2023 Judgment") to minor child, S.W. ("Child").
The October 2023 Judgment also terminated the father's, M.W.'s ("Father"), parental rights to Child; however, Father did not appeal.
FACTUAL AND PROCEDURAL HISTORY
The Cabinet for Health and Family Services ("Cabinet") became involved with Mother and Child in January 2022, the month Child was born. At that time, there were concerns regarding Mother's mental health and substance abuse. Further, Mother was intubated after testing positive for COVID-19, and there was no one to care for Child. As such, the Cabinet petitioned for emergency custody of Child and placed her with her paternal aunt ("Aunt"), where Child has remained.
When a relative is available to take custody of a child, the Cabinet has the option to make a relative placement, relinquishing its custody of Child. Here, however, the Aunt opted to stay a foster parent and be a "child specific foster home" placement; therefore, the Cabinet retained custody of Child.
In March 2022, Mother stipulated to dependency. Specifically, Mother stipulated that at the time of Child's removal, Mother had COVID-19 and could not care for Child. Additionally, Mother stipulated that she had separate ongoing juvenile cases involving two of her other children, who had been removed from her care previously and Mother had failed to work those case plans. The family court adjudged Child to be dependent, and the Cabinet retained custody. Mother attended the subsequent case planning meeting; however, she initially declined to work a case plan.
In April 2022, however, Mother negotiated a reunification case plan with the Cabinet. The plan required Mother to complete mental health and substance abuse assessments and follow any recommendations; complete parenting skills classes; and to call the local Cabinet office each week for random drug screens. That month, the family court held the disposition hearing and noted that Mother was making progress on her case plan; however, the court committed Child to the custody of the Cabinet until Mother completed the plan.
In May 2022, the family court reviewed the case, upon Mother's indication that she had completed her case plan. The Cabinet acknowledged that Mother had completed her mental health and substance abuse assessments and parenting classes; however, the therapist who conducted Mother's mental health assessment recommended that she continue counseling sessions, and Mother failed to do so. Further, the Cabinet indicated that Mother failed to present for a random drug screen, as requested.
The counselor was present at the May 2022 hearing and indicated that Mother had not attended her follow-up appointment. The counselor scheduled another appointment at the hearing, but again, Mother did not attend.
At the May 2022 hearing, Mother asserted that she had transportation issues and could not attend the drug screen.
At the next review hearing, in July 2022, the Cabinet noted that there had been an altercation involving Mother and Father and there had been new concerns regarding Mother's mental health and alleged excessive alcohol consumption and substance use. The Cabinet stated that, again, Mother failed to attend her follow-up therapy appointment. The Cabinet noted that it had instructed Mother she could schedule with a different therapist, so Mother presented for an initial appointment with a new therapist. However, at the appointment, she simply requested a letter that she did not need therapy, which the therapist refused. Mother did not continue with recommended therapy. As such, the family court ordered Child's custody to remain with the Cabinet.
It does not appear that Mother attended this review hearing.
The Cabinet stated that Mother had been missing for a week and when she was found, she had driven her car into the woods and indicated she would start living there.
The Cabinet filed the petition to terminate Mother's parental rights in December 2022, and the family court heard that petition in September and October 2023. At the September 2023 hearing, the current social worker assigned to the family, Christora Bailey ("SW Bailey"), and Mother testified. SW Bailey testified that the Cabinet became involved with the family when medical personnel contacted the Cabinet after Mother tested positive for barbiturates during the pregnancy. She explained that, upon Child's removal, the Cabinet established reunification services for Mother. As part of those services, the Cabinet negotiated a case plan with Mother, which, as noted, included completing mental health and substance abuse assessments and following any recommendations; completing parenting skills classes; and presenting for random drug screens.
However, Mother testified that she did not get notice of the petition until May 2023. At that time, Mother presented to the court and was informed of the termination petition, appointed an attorney, and granted a continuation to prepare for the termination proceedings.
Further, SW Bailey testified that Mother completed her initial assessments and parenting classes, but did not follow the medical professional's recommendation to continue therapy. Additionally, SW Bailey asserted that Mother did not consistently call in for random drug screens, and the Cabinet did not have record of any completed drug screen. Following the initial case plan, Mother stated she did not want to negotiate another case plan because she believed she had finished hers. SW Bailey noted that she had met with Mother multiple times while she was incarcerated and upon each release from jail. Each time, the Cabinet attempted to negotiate the case plan; however, Mother argued that she had completed her case plan and refused.
SW Bailey testified that Mother had been incarcerated multiple times since Child had been in the Cabinet's care.
As to visitation, SW Bailey testified that visitation was initially permitted at the Cabinet office and local library once a week. Mother attended those first visits, but then she encountered transportation issues and stopped going. Mother requested that the visits occur at her home; however, the Cabinet could not agree to that because the visits were to be supervised. Therefore, the Cabinet referred Mother to the Daniel Boone Program, which could provide transportation; however, SW Bailey testified that Mother did not follow-up with the program. As such, Mother's visits with Child ceased in June 2022, and Mother had not contacted Child since that time. Specifically, SW Bailey noted that Mother had not had any face-to-face contact or phone calls with Child nor had she sent Child letters, food, clothing, or money in over a year. SW Bailey acknowledged that at the beginning of the case, Mother had some appropriate items for Child at her home. Nonetheless, as Child never returned to Mother's home, Child never received those items.
Additionally, SW Bailey testified that Mother had never provided any care for Child, as Child was removed at birth and Mother had never attended any of Child's medical appointments. SW Bailey emphasized that when she spoke with Mother, Mother never asked about Child or seemed to understand Child's medical conditions. As such, SW Bailey concluded that Mother had made no progress toward reunification, other than the initial assessments completed over a year prior. SW Bailey also asserted that the Cabinet made reasonable efforts to reunify Child with Mother, and there were no other reunification services that could have assisted Mother to regain custody of Child.
Alternatively, SW Bailey testified that Aunt routinely provided the necessary medical care for Child's developmental issues. Child attended medical appointments two to three times a week and had improved notably. Child had never spent a night with Mother and did not know anyone other than the foster parents as her parents. Additionally, Child had an attachment to the other children in the foster home. SW Bailey expected Child's progress to continue if she stayed with Aunt.
Mother's counsel questioned SW Bailey extensively and inquired why Child's case had not been reviewed in court since July 2022 despite the family court's policy to review such cases every three months. Additionally, counsel suggested that the annual permanency review had not been conducted and noted that there had been no court proceeding to change the case's goal from reunification to adoption. SW Bailey simply acknowledged that if the record indicated such oversight, then it must be true.
The court noted that it had scheduled a review for October 2022 but for some reason it had not ended up on the docket. As such, subsequent reviews were not scheduled.
Next, Mother testified. She asserted that following her acceptance of the case plan in April 2022, she completed her mental health and substance abuse assessments as well as parenting classes. Further, she testified that she completed multiple drug screens. Mother asserted that none of those screens were positive for illegal substances and that she never tested positive for an illegal substance while she was pregnant. She stated the barbiturates in her system while she was pregnant had been prescribed for an unrelated infection. Further, Mother admitted that she did not continue therapy following the initial assessments, as recommended, because she claimed to have received a letter stating, "the case was dismissed in full" and believed she did not need to continue working the case plan.
At the October 2023 hearing, Mother submitted documents indicating she had completed two drug screens: one in June 2022 and one in February 2023. However, the documents did not indicate whether they had been submitted to the Cabinet.
Mother testified that at the beginning of the case, she visited Child at the Cabinet office as well as the local library and "never missed one [a visit]." She noted that she brought food and clothing with her for Child, and sometimes had to walk, "r[i]de Daniel Boone," or rely on family members to get to the visits. However, she explained that her last visit was in June 2022 because she had received the alleged letter dismissing the case and believed Child was being returned to her. Mother asserted that following that time, Aunt would not allow her to visit with Child. Mother further asserted that in August 2022, she received reunification paperwork but when she called to discuss it, "a woman" told her she was an absentee parent, and nothing became of the paperwork. Nevertheless, when Mother realized Child was not being returned to her anytime soon, she did not resume participation in reunification services.
The family court continued the hearing to the next month so Mother could produce the alleged letter the Cabinet sent to her. At that hearing, however, Mother produced only an order dismissing a separate child support case involving Child. The family court acknowledged that the order could have been confusing to Mother, although, it noted that she had an attorney at the time and could have confirmed the nature of the order with him or her. In fact, the case had not been dismissed, and Cabinet workers continued to meet with Mother to discuss case plans. Instead of taking any of that as evidence that the case had not been dismissed, Mother simply stopped working the case plan.
Mother agreed that she had not attended any of Child's doctor appointments or therapy sessions, but asserted that neither Aunt nor the Cabinet had informed her of those appointments. Mother testified she wanted Child back and was willing to work another case plan and redo the tasks she had already completed to do so; she would do whatever it took. She explained that she now had transportation and would be able to get to visits and doctor appointments.
In October 2023, the family court entered the judgment, terminating Mother's parental rights. The judgment specifically found that Mother had neglected Child; that termination was in Child's best interest, and that grounds existed, under Kentucky Revised Statute ("KRS") 625.090(2)(a), (e), and (g), to terminate Mother's parental rights. Mother appealed.
STANDARD OF REVIEW
[O]ur review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. Kentucky Rule of Civil Procedure ("CR") 52.01. "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." [Cabinet for Health &Fam. Servs. v.] T.N.H., 302 S.W.3d [658,] 663 [(Ky. 2010)].Cabinet for Health & Fam. Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014).
Substantial evidence is "that which is sufficient to induce conviction in the mind of a reasonable person." Ball v. Tatum, 373 S.W.3d 458, 464 (Ky. App. 2012) (internal quotation marks and citation omitted). "Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses[.]" C.H. v. Cabinet for Health & Fam. Servs., 399 S.W.3d 782, 788 (Ky. App. 2013) (citation omitted). Further, "[d]ue to the fact that "termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." K.H., 423 S.W.3d at 211 (citation omitted).
ANALYSIS
KRS 625.090 governs involuntary termination of parental rights and provides that a family court "may involuntarily terminate parental rights if it finds, by clear and convincing evidence, that the child is an abused or neglected child as defined in KRS 600.020(1) and that termination serves the best interest of the child." C.J.M. v. Cabinet for Health & Fam. Servs., 389 S.W.3d 155, 160 (Ky. App. 2012) (citing KRS 625.090(1)(a)-(c)). Further, under KRS 625.090(2), the family court must show the existence of one or more of the several factors listed. Id.
Mother argues that the family court erred when it terminated her parental rights because the Cabinet failed to prove by clear and convincing evidence that: (A) Child was neglected and, (B) termination of Mother's parental rights was in Child's best interest. Mother does not argue that the family court erred in its determination that KRS 625.090(2) grounds existed. As such, we need not address that portion of the analysis. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) (citation omitted).
A. Neglect of Child
First, Mother argues that the Cabinet failed to prove by clear and convincing evidence that Child was neglected. Mother claims that the family court found Child to be dependent - not neglected - in the underlying juvenile case. Further, she emphasizes that she completed a substance abuse assessment, mental health assessment, parenting classes, visited with Child, and purchased necessities for Child.
Mother is correct that the family court found Child to be dependent in the underlying dependency, neglect, or abuse action; however, during the termination proceedings, the family court also determined Child had been neglected under KRS 600.020(1). See KRS 625.090(1)(a)2. (stating the family court may involuntarily terminate parental rights if the family court finds the child to be an abused or neglected child, as defined in KRS 600.020(1), during the termination proceeding). In the October 2023 Judgment, the family court found that Mother neglected Child under KRS 600.020(1)(a)4., 7., 8., and 9. Specifically, the family court concluded that, based on clear and convincing evidence, Mother had continuously failed or refused to provide Child essential parental care and protection, considering Child's age; abandoned Child for a period of not less than 90 days; failed to provide Child with adequate care, supervision, food, clothing, shelter, education, or medical care necessary for her well-being; and failed to make sufficient progress on her court approved case plan that would have enabled the safe return of Child.
Mother argues that she completed most of the items on her case plan and that the main task remaining was to continue therapy. Mother claims the family court erred in finding that she failed to complete her case plan because there was not adequate evidence regarding the recommendation to continue therapy presented at the termination proceeding. As such, Mother requests such testimony be "disregarded due to the Cabinet's failure to produce any evidence to support it[.]" We disagree and decline to do so.
There was no dispute that Mother failed to continue therapy. Both parties agreed that the case plan tasked Mother to complete the medical assessments and abide by any recommendations from those assessments. During the September 2023 hearing, Mother admitted that the medical professional who conducted her assessments recommended that she continue therapy; however, she did not do so. Mother claimed that she failed to continue therapy because she believed the case was dismissed; however, once she realized Child was not being returned to her as she anticipated - at least a year later - she still failed to continue therapy. As such, there was substantial evidence presented that Mother had tasks on her case plan which she failed to complete.
Likewise, Mother discontinued participation in all reunification services at that time, including visits with Child. As such, the family court found by clear and convincing evidence that although Mother completed some items on her reunification case plan, she discontinued participation altogether after August 2022. The court acknowledged that Mother had visited Child consistently at the start of the case, in February 2022; however, all contact with Child had ended by June 2022, six months before the Cabinet filed its petition for termination and fifteen months before the termination proceedings began. The family court considered that Mother had requested in-home visits because she had transportation difficulties; however, it found the Cabinet could not accommodate the request and instead referred Mother to the Daniel Boone Program. SW Bailey testified that Mother never followed up with the program, and visits never resumed. As such, Mother had no contact with Child since June 2022, well over a year prior.
Although Mother mentioned that she had, at times, "ridden Daniel Boone," the parties did not confirm whether Mother had followed up with the program regarding this Child or why Mother discontinued its use.
Additionally, SW Bailey testified that Mother had not provided any items or care to Child. Although Mother did have items for a baby at her home shortly after Child's birth, those items were never provided to Child. Even if Mother had brought some of those items to Child during visits between February 2022 and June 2022, it had been at least a year since Mother had provided anything for Child, as she had no contact with Child since that time. As such, we find Mother's arguments unpersuasive. Indeed, the family court properly found Child to be neglected under KRS 600.020(1). Such determination was supported by substantial evidence; therefore, it was not clearly erroneous.
B. Child's Best Interest
Second, Mother claims that the Cabinet failed to prove that termination was in Child's best interest because the Cabinet did not make reasonable efforts. Specifically Mother argues the court erred when it analyzed KRS 625.090(3)(c), which states that the court must consider "whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents 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[.]" We disagree.
Additionally, Mother includes a section stating the "Child Specific Foster Home" process requires termination of parental rights for cases that would otherwise be resolved in "DNA [Dependency, Neglect, or Abuse] court." Although Mother provides a history of the child specific foster home process and its presumed use, Mother fails to provide an argument relating that background to how the family court erred when it terminated Mother's parental rights. It appears Mother would have preferred the Cabinet to process Aunt as a relative placement instead of a foster placement to avoid terminating Mother's parental rights. However, Mother does not argue that the Cabinet's decision to do so was improper or that the family court erred when the Cabinet made such decision. As such, this issue is not properly before this Court. Likewise, Mother failed to adequately present any argument on this issue before the family court - she simply established that Aunt chose to maintain her "foster parent" status with the Cabinet -therefore, the family court did not rule on the issue and there is nothing for this Court to review. Cf. Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016).
KRS 620.020(13) defines "reasonable efforts" as "the exercise of ordinary diligence and care by the [Cabinet] to utilize all preventive and reunification services available to the community in accordance with the state plan for Public Law 96-272 which are necessary to enable the child to safely live at home[.]"
The family court properly identified KRS 625.090(3) as the applicable statute to determine the Child's best interest and analyzed the requisite factors. The court found that all legal requirements of KRS Chapter 625 were met, and that the Cabinet attempted to render all reasonable services to Mother. Moreover, the court concluded no additional services were likely to bring about any lasting parental adjustment enabling Child's return to Mother within a reasonable time, considering Child's age. As to the Cabinet's reasonable efforts, SW Bailey had testified that the Cabinet negotiated a case plan with Mother in April 2022, which required her to perform tasks designed to facilitate Child's safe return to her care. Additionally, the Cabinet facilitated Mother's mental health and substance abuse assessments, drug screens, and supervised visitation with Child, and the Cabinet referred Mother to the Daniel Boone Program to facilitate Mother's transportation issues. Despite those efforts, Mother failed to make any progress on the plan after June 2022. Likewise, SW Bailey testified that when she met with Mother between June 2022 and the termination proceedings, she attempted to negotiate new case plans; however, Mother denied such efforts.
This Court has found that under similar circumstances, the Cabinet used reasonable efforts. See P.S. v. Cabinet for Health &Fam. Servs., 596 S.W.3d 110, 118 (Ky. App. 2020); see also C.J.M., 389 S.W.3d at 162-63. In P.S., like here, "the Cabinet social worker testified at the Termination Hearing that Mother had been offered numerous services by the Cabinet, including case planning, mental health assessments, parenting classes, free drug screenings, and supervised visitation." P.S., 596 S.W.3d at 118. This Court found that such "efforts constitute[d] 'reasonable efforts' under Kentucky law." Id. (citation omitted). However, the mother was non-compliant with the treatment services. Id. As such, this Court concluded that
[w]hile [m]other's view of the situation may have differed from that of the social worker, "when the testimony is conflicting we may not substitute our decision for the judgment of the trial court." R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998),
as modified (Jan. 29, 1999) (citation omitted). The evidence of record indicates that [m]other failed to avail herself of the services offered by the Cabinet and failed to regularly attend the weekly visitations with [c]hild; such failure does not lead to the conclusion that the Cabinet did not use reasonable efforts to reunite [m]other with [c]hild.Id.
Here, although Mother claimed she was justified in ceasing her participation after June 2022 - claiming she received notice the "case was over" and Child would be returned to her - the family court found that excuse lacking. The court found that, "even viewing the court order [Mother] produced in a light most favorable to her and assuming that her conclusions were reasonable, it does not justify her inaction toward reunification or contact with [Child] for at least a year afterwards. Instead, it indicated an intent to forego parental responsibility." Those findings were supported by substantial evidence and therefore not clearly erroneous.
Additionally, Mother argues that the Cabinet failed to request a goal change before filing the petition to terminate her rights; failed to serve Mother with notice of the petition; failed to review the case every six months, per Kentucky Family Rule of Practice and Procedure ("FCRPP") 28; and failed to follow KRS 610.125 prior to the annual review. Aside from blanketly listing these issues, Mother fails to provide any argument as to how those claims correlate to a lack of reasonable efforts by the Cabinet. Moreover, Mother provides no authority on the merits of such claims in this context.
Mother simply states that the Cabinet filed its petition to terminate Mother's parental rights "without a court approved goal change." While that is typically the order of procedures, Mother provides no authority indicating that such step is required prior to filing the termination petition. Further, Mother fails to explain how any perceived violation constituted a failure of "reasonable efforts."
We agree that termination proceedings require "adequate notice and a meaningful opportunity to be heard." See W.R.G. v. K.C., 673 S.W.3d 81, 84 (Ky. App. 2023) (citation omitted). While the record indicated that Mother did not receive the initial notice of the petition, when the parties reconvened in May 2023, Mother was notified of such petition, appointed an attorney for the proceedings, and provided a continuance of the proceedings to prepare. This Court has explained that "[w]here a court has subject matter jurisdiction, 'a general appearance by the defendant waives all defects in the process or in the service of the process[.]'" Id. at 84-85 (quoting Lawrence v. Bingham Greenebaum Doll, L.L.P., 599 S.W.3d 813, 822 (Ky. 2019)). While we emphasize that such delay in notification should be avoided where possible, here, we find Mother waived any claim regarding notice.
FCRPP 28 provides that "[i]n addition to the annual permanency hearing mandated by KRS 610.125, the court shall conduct a permanency progress review no later than 6 months after a child is placed in foster care[.]" Mother does not, however, indicate how this provision, pertaining to the court's duties in a termination proceeding, speak to the Cabinet's reasonable efforts. Further, although the court failed to adhere to its schedule to review the case every three months after July 2022, the court did conduct case reviews within six months of Child living with Aunt, as the provision requires. Mother does not explain how the reviews the court did conduct failed to meet this requirement.
KRS 610.125 provides that when a child has been placed in the custody of the Cabinet, "a judge of the District Court shall conduct a permanency hearing no later than twelve (12) months after the date the child is considered to have entered foster care, and every twelve (12) months thereafter if custody and out-of-home placement continues, to determine the future status of the child." Again, Mother fails to adequately present her argument. Mother does not indicate the KRS 610.125 provision with which the court failed to comply and does not explain how any failure on the part of the court to properly address this provision equated to a lack of reasonable efforts on behalf of the Cabinet.
Nevertheless, even assuming those concerns could fall under the Cabinet's reasonable efforts analysis, the family court still did not err in determining that termination was in the Child's best interest. Indeed, reasonable efforts considerations is just one of several factors the court must weigh to determine a child's best interest. See KRS 625.090(3). Here, the court considered that the Cabinet provided Mother case planning services, assessments, supervised visitation, drug screens, and a referral to the Daniel Boone Program; however, Mother ceased participating in reunification services - including visitation - after only a couple of months. Further, the family court noted that the Cabinet had facilities available to accept care, custody, and control of Child and that Child had lived with the same foster family since she entered care, i.e., since her birth. As such, Child was bonded and attached to that family, including their other children. Child had known no parents other than her foster parents and had not had any contact with Mother for over a year (nearly her entire life).
Additionally, Aunt had monitored and properly cared for Child's developmental issues and facilitated Child's physical and occupational therapy to address those issues. Since Child's time with Aunt, she had experienced notable improvements in her medical condition. Again, the family court acknowledged that Mother had initially made progress on her case plan; however, it found her excuse for failing to complete it to be insufficient. Taking all those factors into consideration, the family court concluded that Child made improvements during her time in foster care, and the prospects for improvement would continue if termination was ordered. As such, the family court found termination to be in Child's best interest. The family court's determinations were supported by substantial evidence and were not clearly erroneous.
CONCLUSION
The family court's decision to terminate Mother's parental rights was supported by substantial evidence and, therefore, was not clearly erroneous. We AFFIRM.
ALL CONCUR.