Opinion
NO. 2019-CA-001193-ME NO. 2019-CA-001197-ME
03-06-2020
K.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND S.L.E., JR. (A MINOR CHILD) APPELLEES AND L.M.E. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND S.L.E., JR. (A MINOR CHILD) APPELLEES
BRIEF FOR APPELLANT K.B.: Courtney Preston Kellner Louisville, Kentucky BRIEF FOR APPELLANT L.M.E.: Mary Rives Chauvin Louisville, Kentucky BRIEFS FOR APPELLEE CHFS: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 18-AD-500452T OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. KRAMER, JUDGE: K.B. (Father) and L.M.E. (Mother) appeal from the Jefferson Family Court's Findings of Fact, Conclusions of Law, and Judgment Terminating Parental Rights in this case involving their minor child (Child). After careful review, we affirm.
Mother became involved with the Cabinet for Health and Family Services (CHFS) in 2010 regarding her eldest child. Mother's rights to her eldest child were terminated in August 2016. Father is not the father of the eldest child and was not involved in the termination proceedings for that child. At some point, Mother began a relationship with Father and became pregnant. The relationship between Mother and Father was tumultuous. Father had been convicted of sexual abuse and rape and was a registered sex offender, although Mother claims she did not know this until she was pregnant with Child. Mother eventually obtained an emergency protective order (EPO) against Father and then a domestic violence order (DVO). Father repeatedly violated the DVO, although the record indicates that some contact between the parties may have been consensual. Child was born in August 2017. CHFS immediately filed a dependency, neglect, and abuse (DNA) petition, alleging domestic violence between Mother and Father as well as the recent termination of Mother's parental rights to her eldest child. Child was removed from the custody of Mother and Father via an emergency custody order within days of his birth. Child has been in a foster home since that time.
This Court subsequently affirmed the Jefferson Family Court. See L.M.E. v. Cabinet for Health and Family Services, No. 2016-CA-001450-ME, 2019 WL 1092666 (Ky. App. Mar. 8, 2019).
Father is listed on Child's birth certificate and paternity was also established through genetic testing.
The record before us indicates that the parties sent photos of Child to one another. Father also indicated that he lived with Mother even after entry of the DVO.
Although the parties' case plans do not appear in the record before us, various court orders for the parents included: (1) obtaining a parenting assessment from the Foster Care Clinic and Assessment Team (FORECAST); (2) obtaining a psychological assessment and following recommendations; (3) completing parenting assessments and parenting classes at Home of the Innocents; (4) attending supervised visitations with Child; (5) attending anger management classes (Father only); (6) attending counseling; (7) attending protective parenting classes (Mother only); and (8) taking medications as prescribed (Mother only).
Mother and Father made some progress with their case plans in the DNA action. However, Father was incarcerated on several occasions due to persistent violations of the DVO. Mother relocated to Indiana where she was living with numerous family members. As a result of the move, Mother was no longer eligible for various services in Jefferson County, such as counseling at Centerstone. Mother also had not engaged in protective parenting classes and told her therapist at Centerstone that she believed it was "retarded" that she was required to do so. Mother was not approved for protective parenting through Centerstone because she was unable to identify what she had done regarding Child that was non-protective. However, after establishing residency in Indiana, Mother began individual counseling at LifeSpring and started attending Dave Harmon and Associates, Inc., where she could potentially complete protective parenting classes.
Although Mother had completed some individual counseling sessions at Dave Harmon and Associates, Inc. at the time of the termination hearing, she had not yet started the protective parenting group sessions.
CHFS filed the petition to terminate the parental rights of Mother and Father in November 2018. After a hearing in May 2019, the family court granted CHFS's petition. These appeals followed. Further facts will be developed as necessary.
Mother and Father make two of the same arguments on appeal: (1) that KRS 625.090(1)(a) is unconstitutional; and (2) that this Court should revisit A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), regarding the appointment of counsel without compensation during the appeal of a termination case. Additionally, Mother argues the family court erred in concluding that Child was abused or neglected and that CHFS had made reasonable efforts to assist Mother in regaining custody. For his part, Father additionally argues that CHFS did not meet its burden of proof.
Kentucky Revised Statute.
In Kentucky, termination of parental rights is proper upon satisfaction, by clear and convincing evidence, of a tripartite test. Cabinet for Health and Family Serv. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, KRS 625.090(1) requires that a child be adjudged neglected or abused. Second, KRS 625.090(1)(c) requires that termination must be in the child's best interest. Third, at least one of the conditions set out in KRS 625.090(2) must be established. The family court's termination decision will be reversed only if it is clearly erroneous. Cabinet for Health & Family Serv. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Such a decision is clearly erroneous if there is no substantial, clear, and convincing evidence to support the decision. Id. Where the record contains substantial evidence to support the family court's findings, we will not disturb them on appeal. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
Mother and Father first urge this Court to hold that KRS 625.090(1)(a) is unconstitutional. The parties did not argue this in front of the family court nor did they notify the Attorney General. Both are prerequisites to appellate review of this issue. See Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 831 (Ky. App. 2014) (internal citation omitted); KRS 418.075 (stating that no judgment shall be entered which decides the constitutionality of a statute until the Attorney General is given notice and an opportunity to be heard). Therefore, we decline to address the issue further.
Next, Mother and Father urge this Court to revisit A.C., supra. However, we are presently bound by A.C. unless it is overturned en banc by this Court or overruled by the Kentucky Supreme Court. Accordingly, our review of the merits must proceed. Finally, it is up to the General Assembly to make any changes to the allowable fee to counsel representing parents in a termination proceeding.
KRS 625.080(3) allows for a fee of up to $500 on appeal, so long as that fee has not been exhausted at the trial level. See Commonwealth v. Coleman, 699 S.W.2d 755, 756 (Ky. App. 1985).
We next address Mother's argument that there was not clear and convincing evidence in the record that Child was abused or neglected. KRS 625.090(1)(a)1.-2. states, in relevant part,
(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; [or]
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[.]
We first note that Child was adjudged abused or neglected under a preponderance of evidence standard in the DNA proceedings. In the termination proceedings, the family court found that Child was abused or neglected due "to the parents' failure or inability to comply with this Court's remedial orders and the Cabinet's court-approved case treatment plan so that the Petitioner child could be safely returned to parental custody, and by the failure or inability of the Respondent parents to do what is necessary to materially support the child." A thorough review of the record verifies that there is substantially clear and convincing evidence to support the family court's finding that Child is an abused or neglected child.
Len Timberlake, Mother's therapist at LifeSpring, testified. Ms. Timberlake acknowledged that Mother has ongoing issues setting boundaries with family members and in relationships and that her homelife with various family members is very chaotic and not a positive force in Mother's life. Moreover, the evidence showed that Mother was not completely honest with Ms. Timberlake, who did not know that Mother's parental rights were terminated to her eldest child, who was unaware of Mother's extensive psychiatric history, and who had little knowledge of Mother's current situation regarding Child. Ms. Timberlake was also unaware that Mother had two recent hospitalizations for suicidal ideation while treating at LifeSpring. Upon questioning by the family court, Ms. Timberlake admitted that Mother had no positive outside support systems aside from LifeSpring and that her monthly visits were probably insufficient to help Mother achieve her goals, stating that: "Nothing monthly . . . is going to combat what's involved daily in a person's life." Ms. Timberlake testified that Mother has the ability to change, but the fact that she is so enmeshed with her family's issues is a hinderance. In fact, Mother has missed therapy appointments at LifeSpring due to the wants and/or needs of her various family members.
The trial court meticulously detailed its findings of fact and we incorporate those findings herein as follows:
[Mother's] older child, [A.M.E.], had been removed from her custody and adopted subsequent to an involuntary termination of parental rights in 2016. Cabinet Exhibit 5. That action sought to address similar barriers to familial reunification as are found in this action. [Mother] attended a psychological evaluation with Dr. Karen Eisenmenger as a part of [A.M.E.'s] case in April
2014. Cabinet Exhibit 8A. Dr. Eisenmenger diagnosed [Mother] with Bipolar I Disorder; Delusional Disorder, Persecutory Type; Intellectual Disability, Mild; Paranoid Personality Disorder and Narcissistic Personality Disorder. Id. Dr. Eisenmenger noted that [Mother] did not appear to have insight into the reason for the Cabinet's involvement with her family and recommended she attend parenting and abuse classes and that her mental status should be monitored. Id. Despite almost four (4) subsequent years of Cabinet/Court involvement and a myriad of treatment services, [Mother]'s diagnosis and prognosis did not significantly improve as of her more recent psychological evaluation by Dr. David Winsch and staff in December 2018. Cabinet Exhibit 8B. Dr. Winsch provided [Mother] an identical mental health diagnosis and opined that she required "significant mental health treatment," medication management, therapy, supported parenting and supervised visits with her child. Id. He further noted that her "cognitive limitations could potentially impact her parenting or ability to make reasonable decisions" and that she "demonstrated a statistical propensity for child maltreatment." Id.
As had been recommended both by Dr. Eisenmenger and Dr. Winsch, the Cabinet offered [Mother] parenting counseling and mental health counseling services at Centerstone. [Mother] began first began [sic] mental health treatment at Centerstone on April 9, 2015 and frequently participated there until she moved to Indiana and discontinued those services in March 2018. Cabinet Exhibit 6. Those records reveal that [Mother] suffered multiple hospitalizations for suicide attempts in 2017 and felt overwhelmed with the process of reunification. Id. She was evaluated for placement in Centerstone's Protective Parenting Group beginning in September 2017 but never gained admission to the group as she proved unable or unwilling to demonstrate the requisite accountability for her children's abuse and neglect and removal from her care. Id.
After [Mother] moved to Indiana, she began mental health services with LifeSpring on March 14, 2018. Cabinet Exhibit 1. During her initial evaluation there, [Mother] disclosed a history of hallucinations and self-harming, paranoia, attention seeking and a lack of adherence to her prescribed medications. Id. Since March 2018, [Mother] attended individual therapy, case management services, psychiatric care and medical care appointments at that facility. Id. Her therapist there noted concerns about [Mother's] stability and parenting including: she appeared to have little insight into caring for her own children (p 47), was enmeshed in her relatives' chaos (p 60), prioritized her father's care to that of her children (p 63), she often did not take her medications as prescribed (p 79), and she had unprotected sex with strangers in an abandoned home as well as with her sister's boyfriend (p 105). Id. That therapist, Len Timberlake, observed that [Mother] had "little to no interest in creating change, although she is capable." Supra, p 125. Ms. Timberlake noted that [Mother] often sought to avoid discussing relationships in their counseling sessions and that she needed continued work on setting appropriate boundaries. Additionally, [Mother's] medical records from Clark Memorial Hospital in Indiana reflect that she has continued to struggle with self-harming and has been hospitalized at least twice in recent months for additional suicide attempts, in September 2018 and February 2019, despite her ongoing treatment. Cabinet Exhibit 2, pp 167-328; pp 71-72.
Although [Mother] advised her LifeSpring therapist that she was engaged in a parenting group elsewhere, as of the date of this trial [Mother] had yet to do so. She sought additional counseling at Dave Harmon & Associates beginning in August 2018 and attended several individual sessions with Mr. Harmon. Cabinet Exhibit 7. Although Mr. Harmon's notes reflect he had advised [Mother] to begin a parenting group with Al
Perkins, another therapist at his office, she has yet to do so. Id. [Mother] in fact cancelled her most recent supervised visit with her son, [Child], the week prior to trial, claiming she instead had to attend her initial parenting group session with Mr. Perkins. However, [Mother] admitted in her testimony during this trial that she failed to attend any such appointment with Mr. Perkins and instead again prioritized her relatives' needs and had attended a court proceeding with them rather than attend to her own child.
Although [Mother] did complete some basic parenting courses at the Home of the Innocents, she has continued to struggle with providing appropriate care and provision for her son even during supervised visits. She has attended most such visits as scheduled but had to be repeatedly provided specific instructions about appropriate items to bring and what was appropriate to feed her child. For example, before redirection, she had attempted to feed her 3 month old son a sweet and spicy chicken dish. She also has had to be closely monitored and redirected for spending time during the visits independently playing with provided toys, rather than playing with or monitoring her son. During a recent visit, the Cabinet supervisor had to intervene when [Child] repeatedly put chalk in his mouth while his mother was distracted with her own play.
In addition to [Mother's] limited abilities to provide appropriate care and protection for her child, she demonstrates significant limitations in her ability for proper self-care. Since moving to Indiana, [Mother] has resided with various relatives, each of whom has their own past and current cases with Child Protective Services and who recently had their own children removed from their care by Indiana authorities. Not only is [Mother]'s close relationship with her relatives of concern, but the environmental conditions in which they live would not be an appropriate placement for her or her son. [Mother] admitted that Indiana authorities are
involved because the residence has problems with cleanliness and bugs. Although she received Social Security Income/Disability she has not yet sought independent housing. Additionally, [Mother's] mother serves as her payee, which is concerning given [Mother's] own childhood removal from her mother's custody as a result of abuse and neglect. [Mother] has had some periods of employment but has failed to demonstrate any stable housing or means of support and has failed to pay child support or to regularly provide for [Child's] daily needs, aside from a few gifts and items brought to visits.
The family court, without objection from Mother or Father, took judicial notice of its findings of fact, conclusions of law, and order terminating parental rights for Mother's eldest child. Kentucky Rule of Evidence (KRE) 201(b)(2) allows a court to take judicial notice of a prior order. "A finding of fact contained in an order of a circuit court is typically not subject to reasonable dispute[.]" S.R. v. J.N., 307 S.W.3d 631, 637 (Ky. App. 2010).
We note that the record before us shows that Mother has made child support payments, albeit inconsistently. However, payment of child support is just one of many factors to be considered in the termination of parental rights. See S.B.B. v. J. W.B., 304 S.W.3d 712, 716 (Ky. App. 2010).
Based on the foregoing, the family court's findings with respect to abuse or neglect of Child are not clearly erroneous. The record supports the family court's findings and contains substantial clear and convincing evidence that Child was abused or neglected and/or threatened with such.
Mother's next argument is that the family court erred by finding that CHFS made reasonable efforts to assist Mother in regaining custody of Child. We disagree. The family court found that:
In an effort to reunite this family, this Court imposed several orders respecting the parents' necessary treatment, which the Cabinet incorporated into its treatment plan for this family. The Court ordered and the Cabinet recommended that [Mother] complete a parenting evaluation and training, mental health counseling, psychological evaluation and protective parenting group, attend supervised visits with [Child] and take all prescribed medications. Cabinet Exhibit 4,
8/21/17 Calendar et seq. The Cabinet referred [Mother] to each of these services that were available within the community.
Additionally, Kayleigh Thomas, the ongoing CHFS worker for the family, testified that she did not know what else CHFS could do to help Mother regain custody of Child. The family court agreed with this assessment, and we discern no reason to disturb that finding. CHFS also assisted Mother in establishing services once she relocated to Indiana. Accordingly, Mother's argument must fail.
Finally, we address Father's argument that CHFS failed to meet its burden with regard to KRS 625.090(2)(e) and (g), and (3)(a), (c), and (d). The relevant portions of KRS 625.090 state:
(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:
. . .
(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;
. . .
(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[.]
. . .
(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;
. . .
(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[.]
We again look to the detailed findings of the family court regarding Father which state, in relevant part:
This Court and the Cabinet similarly offered the Respondent father, [Father], varied treatment services to address the barriers to his unification with [Child]. [Father] is a lifetime registrant on the Sex Offender Registry for various sex offenses involving minors and he additionally has a history of domestic violence orders and violations. Cabinet Exhibit 15. Although he has been ordered and repeatedly advised to stay away from [Mother], he repeatedly has violated a domestic violence order between them and was incarcerated for similar alleged violations at the time of this trial and indicated he likely would remain incarcerated until at least August 2019. Id.
Prior to his current incarceration in early 2019, the Cabinet referred [Father] to several treatment services. He completed a psychological evaluation with Dr. Karen Eisenmenger on April 23, 2018. Cabinet Exhibit 13. During the evaluation he admitted that he continued to see and sometimes live with [Mother], despite the domestic violence order between them. Id. He minimized both his domestic violence and sex offense history but admitted to some recent history of hallucinations and suicidal ideation. Id. Dr. Eisenmenger diagnosed him with Probable Intellectual Disability, Mild; Major Depressive Disorder, in full remission, with psychotic features; and Dependent Personality Disorder with Schizotypal, Depressive, Antisocial and Avoidance traits. Id. She noted that his cognitive functioning likely affected his ability to problem solve and reason and that he had "very inadequate parenting knowledge." Id. She noted he may lack nurturing skills, have difficulty managing parenting stress and trouble understanding children's normal developmental needs. Id. She opined that he was "not safe to parent alone at this time; visitation should
continue to be supervised." Id. She additionally recommended that he engage in anger management treatment and parenting instruction. Id. While he did attend the necessary mental health counseling at Centerstone, he failed to engage in or complete any anger management counseling and instead continued to accrue new domestic offenses.
[Father] had a second, more holistic, evaluation with FORECAST on December 10, 2018 which determined that custody of [Child] should remain with the Cabinet and provided a "very guarded prognosis of his parental capacity to provide a stable, healthy and protective environment for his son [Child]." Cabinet Exhibit 12, p 2. The FORECAST evaluator recommended that he obtain housing and employment, follow all court orders, strictly adhere to his Cabinet case plan and treatment recommendations, avoid further reunification efforts with [Mother], attend individual therapy and parenting classes, engage community based supports and attend only supervised visits with his son. Id.
[Father] did attend and complete the basic parenting course offered at Home of the Innocents and attended supervised visits with [Child] prior to his incarceration. Despite his counseling and parenting instruction, like [Mother], he too requires explicit instructions about what to bring during visits and how to properly supervise his son. He failed to ever secure any housing or employment and to date has paid none of the court ordered child support for [Child's] substitute care. Cabinet Exhibits 10; 11.
The record before us indicates that Father was homeless and transient throughout the DNA proceedings.
Although we commend Mother and Father for all efforts made to follow court orders during the DNA and termination proceedings, after a thorough review of the record before us, we discern no error in the family court's findings of fact. Accordingly, we AFFIRM the Jefferson Family Court.
ALL CONCUR. BRIEF FOR APPELLANT K.B.: Courtney Preston Kellner
Louisville, Kentucky BRIEF FOR APPELLANT L.M.E.: Mary Rives Chauvin
Louisville, Kentucky BRIEFS FOR APPELLEE CHFS: Leslie M. Laupp
Covington, Kentucky