Opinion
2020-CA-1505-ME
01-14-2022
K.J.S. APPELLANT v. COMMONWEALTH OF KENTUCKY, THE CABINET FOR HEALTH AND FAMILY SERVICES; AND C.K.S., A CHILD APPELLEES
BRIEF FOR APPELLANT: Paul J. Mullins Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT HONORABLE TARA HAGERTY, JUDGE ACTION NO. 20-AD-500249-T
BRIEF FOR APPELLANT: Paul J. Mullins Louisville, KentuckyBRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
OPINION
THOMPSON, K., JUDGE
K.J.S. (mother) appeals from the Jefferson Family Court's termination of her parental rights to C.K.S. (child).
Child was born in October 2010 to mother and D.R.D. (father). According to father's certificate of death, he died in June 2012 due to "multiple substance intoxication" resulting in an "[a]ccidental overdose." 1
In January 2014, the Cabinet for Health and Family Services (the Cabinet), first became aware of possible abuse or neglect against child when the Cabinet received a report of domestic violence between mother and maternal grandmother. At the temporary removal hearing, grandmother was granted temporary custody of child. In April 2014, mother stipulated to committing domestic violence against grandmother with child in the home, thus placing child at risk of harm. In September 2014, mother, who was in custody on pending drug charges, consented to grandmother being granted permanent custody of child.
Child remained in grandmother's care until grandmother passed away in November 2018. At that time, child continued being cared for by R.C., grandmother's paramour.
In January 2019, mother filed a motion for return of custody which was granted, but child remained in R.C.'s care with R.C. being granted temporary custody of child. Mother was ordered to submit to a hair follicle test but failed to appear for this test.
In February 2019, the Cabinet was granted temporary custody of child after child reported R.C. abused child. The Cabinet later dismissed a petition for custody against R.C. and reinstated the previous petition which had been against mother and requested a new disposition. In August 2019, child was committed to the Cabinet. 2
After mother suffered repeated relapses of drug use, which included positive drug tests, failed to make progress in her case plan, and stopped visiting with child or even maintaining contact with the ongoing worker, in June 2020, the Cabinet filed a petition for the termination of mother's parental rights to child.
The termination trial was held on October 2, 2020, virtually via Zoom. Madison Cunningham (the ongoing worker), child's foster father, and mother testified.
Cunningham generally testified about child's removals in 2014 and 2019 before addressing mother's case plan. Cunningham testified that in 2014, mother was required to complete Choices, attend counseling, remain on medication as prescribed, and had unsupervised visitation. Cunningham acknowledged that mother did complete Choices and did some counseling, but explained that in June 2014, mother began having trouble completing her case plan tasks. Cunningham recounted that in October 2014, mother was noncompliant with services and in and out of jail. Cunningham explained that the Cabinet did send mother to Seven Counties, mother did attend a few assessments on October 20, 2015, and was recommended therapies (individual and group), but was discharged June 20, 2016 due to no contact for 130 days.
Cunningham testified that in August 2019 a redisposition was made to the first petition, requiring mother to continue all prior orders, and child was 3 committed to the Cabinet. Cunningham explained that mother was ordered by the family court to have a substance abuse assessment, submit to random drug screens, have a Forecast parenting assessment, and could have supervised visitation if she was compliant with following her case plan. Cunningham recounted that the Cabinet repeatedly engaged in case planning with mother: in May 2019, November 2019, February 2020, and August 2020. Cunningham testified the case plans incorporated the court order and also required mother to obtain and maintain stable housing and employment, and maintain at least monthly contact with the Cabinet.
Cunningham explained that mother had problems following her case plans and being consistent. Cunningham testified in extensive detail about this, but the gist of it was that: (1) Mother was inconsistent in showing up to drug screens and tested positive several times; she did not make consistent progress towards achieving sobriety. (2) Mother was inconsistent in keeping in contact with the 4 Cabinet and the Cabinet made great efforts to contact mother, which included sending many absent parent letters to the various addresses that mother had provided to the Cabinet; while mother would periodically engage in contact, she repeatedly would stop maintaining contact again. (3) Mother did not complete much of her case plan because she would do part of what she was required to do but then not follow up on it. This included mother failing to do what was needed 5 to get a Forecast assessment. (4) Although mother at first engaged in visitation with child, after a break in visitation when child was hospitalized for mental health treatment, mother could not resume visitation with child because she was out of compliance with her treatment plan.
On August 28, 2019, the family court sent mother for drug screening and mother tested positive for methamphetamine, amphetamine, and marijuana. As a result, mother was put back on Phases. On September 3, 2019, mother tested positive for methamphetamines, and amphetamines, mother then failed to show several times and by October 17, 2019, mother was again removed for noncompliance. After mother attended case planning in November 2019, she was placed back on Phases on December 2, 2019, failed to show for a few weeks, tested negative on December 15, 2019, failed to show on December 18, 2019, tested and was negative on December 19, 2019, and after that continued to fail to show. On May 13, 2020, the Cabinet sent mother to get a drug screen, she tested positive for methamphetamine, and then the Cabinet lost contact with her again. On August 13, 2020, the Cabinet again sent mother to get a drug screen; however, mother failed to show and since that time the Cabinet has had no further contact with her. January 28, 2019, mother tested positive for methamphetamines and amphetamines pursuant to a court ordered hair follicle screening. As a result, mother was ordered to engage in random drug screens under the Phases program and was to call in weekly to find out when she was required to screen, but based on failure to show, mother was removed in May 2019 due to noncompliance.
Mother stopped being in contact with the Cabinet after May 28, 2019. Mother was sent an absent parent letter on July 31, 2019, mother was in court August 28, 2019, but then not in contact with the Cabinet, so mother was sent absent parent letters on September 30, 2019, October 15, 2019, and November 15, 2019. Mother reached out to the Cabinet in December 2019, and reported she was incarcerated; mother was then released on January 16, 2020 and then appeared at the annual review in February; was not in contact and then sent a letter on March 19, 2020; and was in contact in April 2020. Cunningham was given a working number for mother at that time and in May 2020, received some text messages from mother, with the last message being received May 12, 2020, regarding submitting to a drug screen which mother failed to do. Cunningham tried to continue contact through texting mother three different times, in addition to making phone calls and leaving messages, but she got no response during May and June. After two months of not receiving any communication back from mother, Cunningham sent mother an absent parent letter in July 2020, heard from mother in August, but then after not hearing from mother again, sent her another letter on September 16, 2020.
Mother was repeatedly offered drug assessments. After mother's positive drug test on January 28, 2019, it was recommended that mother complete substance abuse treatment and engage in individual therapy, and she received a referral on February 27, 2019. Mother engaged in therapy through April 2019, but then she stopped attending. During the November 2019 case planning, mother was offered a referral for a substance abuse assessment, but mother declined. Mother was again assessed on March 2, 2020 and it was recommended that mother obtain substance abuse treatment and individual therapy. Mother attended therapy (which had been moved to Zoom). On July 2, 2020, mother admitted to relapsing and using for the last six to eight weeks and being in an abusive relationship; she agreed to contact Landmark for residential services. On August 12, 2020, mother asked the Cabinet for a new referral as her counselor was leaving the practice; in response the Cabinet referred her for a September 4, 2020 assessment, but mother did not participate. Cunningham was never told that mother had obtained drug treatment at Landmark.
The family court requested a Forecast assessment for mother in August 2019, but mother was not in contact at that time and the Cabinet could not make a referral at that time. On April 30, 2020, the Cabinet made a referral for a Forecast assessment after mother agreed to participate, but the referral was not assigned until August 2020 (meaning mother was put on waiting list). This assessment was necessary despite the delay, but in any event mother was not in contact to even discuss alternative services she might pursue in the interim. While mother engaged in the initial contact for the assessment in August, mother did not fill out the needed paperwork to engage in the process despite being contacted repeatedly about returning the paperwork. Therefore, mother was never interviewed and never got her psychological assessment completed.
Mother engaged in some visitation from March to June 2019. Visitation was halted when child was hospitalized on June 21, 2019 and remained hospitalized for about a month. By the time child was released and visitation could resume, mother had not stayed in contact with the Cabinet and was not compliant, and has not been compliant since then, so visitation was never resumed. While mother asked what she needed to do to have visitation resume during her April 2020 and August 2020 phone calls with Cunningham, Cunningham told her, but mother did not follow through on working her case plan. Mother last saw child at the February 2020 annual permanency review hearing.
Cunningham testified she did not know of any other services that could be offered to mother because the Cabinet had offered mother services, made referrals, continued to try to make contact, sent absent parent letters, and mother knew what was expected of her. 6
Cunningham noted that while mother has failed to make progress over the past year and a half, child has made significant progress while in the care of the Cabinet.
Cunningham noted that during this time mother has not provided anything to child even when she had a job cleaning houses. Cunningham explained that she did not think mother had stable housing as she always was giving Cunningham different addresses.
Cunningham testified that the Cabinet has provided for child, with child seeing a therapist several times a month to help him cope with his emotional needs, seeing a psychiatrist for medication management relating to his disruptive mood disorder, being provided with insurance, being provided with a foster home, and Cunningham's having monthly contact with child. Cunningham testified that child is doing well with his foster family, has bonded, and has healthy relationships with them. Cunningham reported that child calls them Mom and Dad, considers the children in the home his siblings, and gets along well with everyone. Cunningham explained she has no concerns about child's attachment to his foster parents, and the foster parents do a good job working with child on his emotional needs and coping skills, with the foster family functioning like any normal family. Cunningham opined that child has a good prospect for adoption as the foster family wants to adopt him, and child wants to be adopted. 7
During Cunningham's testimony, various exhibits were entered including child's birth certificate, father's death certificate, the complete dependency, neglect, and abuse (DNA) record, and Seven Counties records.
The foster father testified that child had been in the foster father's home with his wife, their son, and their other foster children for a little over a year since child first arrived from the Brooke. The foster father explained that child required treatment because child had a history of frequent self-harm (smacking himself, hitting himself, and hitting his head against the wall). The foster father testified that when child was first placed in the home, child was fearful and thinking everything was his fault and he would be punished. The foster father explained that child sees a counselor about once a week, has improved a lot in their care, is happy and loving, but fears being moved out of their home. The foster father explained that child's self-harm has almost completely gone away.
As to child's contact with mother, the foster father testified that the only time child saw his mother while in the foster family's care was in court. The foster father explained that after that, child asked both about going home and when he could be adopted, and had some temporary regression. The foster father explained that child wants his mother to be happy and okay, but repeatedly talks about wanting to be adopted. 8
As to child's relationship with the foster family, the foster father testified that child began calling him "Dad" and his wife "Mom" on his own initiative within the first couple of weeks of being in their home, considers the other children to be his brothers and sister, is bonded with the family, and is especially attached to the foster father. The foster father testified that he and his wife plan to adopt child.
Mother testified that the Cabinet personnel were not always helpful or easy to contact and that when she tried to call a prior worker about seeking custody, no one ever answered and she could not leave a message because the worker's voicemail was full, and mother eventually had to go into the office in order to speak with the worker. While mother acknowledged giving the Cabinet the various addresses to which absent parent letters had been sent, she explained that she did not receive all of her mail. Mother also explained that her mental health issues made it harder to maintain contact and at one point she had to be quarantined for COVID-19 for a week in May 2020. Mother acknowledged missing some drug screens in the Phase program, but explained that she did not have a car, sometimes had to miss because she was at work, and reported why she missed. For example, mother explained that on December 18, 2019, she missed because she had to be at work, and took the test the next day and was negative. 9
Mother reported taking her sobriety seriously. Mother testified when she was incarcerated in 2014, she participated and received drug treatment through the Celebration recovery program and other substance treatment programs. Mother explained she had just finished an eleven-day drug treatment program at Landmark, was released on September 7, 2020, and that she was doing better since getting out. Mother acknowledged not telling Cunningham about going into this treatment program. Mother also stated she saw a therapist at Centerstone and had begun seeing a therapist at Bridgehaven for her dual diagnosis of mental health and substance abuse issues.
Mother denied not filling out the paperwork for the Forecast assessment, stating she filled out the paperwork and sent it back in the preaddressed envelope and had not heard back. Mother reported she was the one who requested the assessment as the Cabinet had not referred her before, but she had to wait. Mother denied being told child was self-harming.
Mother testified she had a very close relationship with child while he was in grandmother's custody, seeing him every day while he was with grandmother and because of this did not feel she needed to pursue custody at that time. Mother reported she could have child spend the night with her, took him to and from school, and helped him with his homework. 10
Mother denied knowing that she had a bench warrant but acknowledged being on probation and speaking to her probation officer last on June 8, 2020, and normally needing to contact her probation officer every two months, but stated she was going to try to clear up the matter that day. Mother acknowledged having an ongoing assault four charge and stated she did not know her next court date and had not spoken to her attorney, and knew nothing about another charge or there being any motion to revoke her probation.
Mother reported having her last drug screen on the day she left the Landmark program. Mother stated she did not recall ever being told she needed to take a drug screen after August 13, 2020. Mother testified that the last time she tested positive was in May 2020, but acknowledged that the last time she used was in the beginning of August, just before she went to Landmark with her having only a few weeks of relapse before going to treatment.
When mother was asked why her parental rights should not be terminated she responded:
I know that I am not the best mom in the world, but I am his mom and I know that I can get better. It is just I've had a rough couple of years since my mom passed away and then losing [child]; I've been kind of lost. But, you know, I am on the right track now. As far as I've got help for my addiction and I'm continuing care now and I know and I appreciate everything the foster parents have done, but I am his mom. I am the only parent that he has and I don't feel like I should be . . . I've been completely shut out of his life and I don't feel that's right. I've seen11
my son one time in the last year. And, I mean, that's not fair for me or him.(Language cleaned up to eliminate repeated words.)
Mother acknowledged that she was partially responsible for not engaging in visitation with child but stated, "I am trying and I think I deserve the responsibility to be in his life."
At the conclusion of the trial, the family court took the case under submission. The judge explained that she remembered mother coming into court after grandmother died and trying to sort out what was best for child. The judge stated that she knew that mother loves child and child loves mother, but had to consider going forward what was best for child knowing the ongoing struggles mother had over the past six years. The judge explained that in considering what was best for child, she had to consider that child deserved to have a sense of security, a safe place to stay, know that was not going to change, and not have to worry about adult problems. The judge wished mother well in her treatment, noting again that she knew mother loves child and is trying to maintain and keep sobriety.
On October 27, 2020, the termination of parental rights was granted. The family court found the following grounds for termination pursuant to Kentucky Revised Statutes (KRS) 625.090(2) were established: (a) abandonment; 12 (e) failure to provide essential parental care; and (g) failure to provide the essentials of life.
As to abandonment, the family court explained that Cunningham testified mother, after having participated in supervised visitation from March to June of 2019, became noncompliant with services and supervised visits did not continue with mother failing to contact the child for periods of not less than ninety days, not maintaining regular contact with the case worker, and not inquiring as to the well-being of child. The family court also noted that according to Cunningham's testimony mother failed to avail herself of reunification services and failed to make sufficient progress in the case plan to allow for the safe return of child.
The family court explained that for (e) and (g), "[t]here is really no doubt about the overwhelming evidence" that mother did not provide essential care or the essentials of life. The family court in great detail recited mother's failures as testified to by Cunningham, which included not being compliant with court orders, repeatedly testing positive for drugs, repeatedly being removed from the Phase program, trying and failing at treatment, failing to be assessed and follow treatment recommendations or enter into treatment programs, and failing to comply with the Forecast assessment referral. While noting that mother did engage in some recommended counseling, had a period of negative tests, and engaged in some 13 visitation before becoming noncompliant, the family court found that mother failed to avail herself of the services provided by the Cabinet, failed to make sufficient progress with the court-approved case treatment plan, and due to her failure to fully engage in treatment and reform her behaviors, "child could not be safely returned to parental custody for the past twenty (20) months[.]" The family court also noted that mother was capable of working but either did not do so or when she did failed to offer any significant financial assistance to meet the needs of child. The family court found that "mother's failure or inability to meet the material needs of her child is doubtless due more to abandonment and/or drug abuse than any other single factor" rather than because of poverty.
The family court considered the factors of KRS 625.090(3)(a)-(f). It concluded that the first factor was inapplicable.
In considering the second factor, whether there were acts of abuse or neglect toward any child, the family court made findings that child was abused or neglected. The family court found that pursuant to KRS 625.090(1)(a)1., child was abused or neglected based upon mother stipulating to perpetrating domestic violence against grandmother with child in the home, which placed child at risk of harm, in the underlying DNA action which led to the previous finding that child was abused or neglected. The family court found that pursuant to KRS 625.090(1)(a)2., child was abused or neglected based upon the evidence presented 14 at the termination trial which included child's being subjected to domestic violence, abandonment, not having his material, emotional and healthcare needs met, and failure of mother to comply with court orders or case treatment plan so child could be safely returned, and the failure of mother to materially support child.
As to the third factor, the family court found that mother was offered appropriate services and referrals but when mother's whereabouts were unknown the only services that could be offered to her were absent parent search services and providing care for child. The family court agreed that the Cabinet acted appropriately in attempting to contact mother and there were no other services that could be provided to her to allow for the safe reunification with child.
As to the fourth factor, the family court found that mother's efforts and adjustment were insufficient as mother was not fully compliant. The family court also found that mother's testimony that she could meet child's needs if child was returned to her care was "lacking in credibility." The family court noted that mother testified she relapsed in July 2020 and last used methamphetamine in early August 2020, and acknowledged her testimony about completing an eleven day treatment program and attending a dual treatment mental health and substance abuse program at Bridgehaven, and unawareness that she had an outstanding bench warrant and that child had self-harming behaviors. The family court stated it appreciated mother's recent attempts and did not doubt that mother loves child, but 15 opined that this was not enough progress in a year and a half, noting that child had remained in the Cabinet's care for twenty consecutive months and had not been in mother's custody since January 15, 2014, and was entitled to permanence.
Regarding the fifth factor, the family court found that the Cabinet had met child's needs while in its care and child was expected to make continued improvements upon termination based upon the testimony about his current placement, the almost complete extinguishment of his prior self-harming behavior, and his foster family's intention to adopt him.
As to the sixth factor, the family court found that mother failed to pay for child's needs and had a duty to do so.
Finally, the family court concluded based on the totality of the evidence presented that it was unpersuaded that child would not continue to be abused or neglected if returned to mother's custody and explained that even if it had been persuaded that child would not continue to be abused or neglected if returned to mother, "under the circumstances of this case, this court would not be inclined to exercise the discretion granted to it by KRS 625.090(5) to do so." The family court made the appropriate legal conclusions based upon these findings that all needed grounds for termination were established and that termination was appropriate. 16
Mother appealed. Her counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky.App. 2012). In the Anders brief, counsel considered certain potential issues and then explained why they were without merit, concluding that there were no valid appellate issues to raise on mother's behalf. Counsel also noted that mother wished to appeal on the basis that termination was not in child's best interest before concluding that this argument, too, was without merit. Counsel filed a motion to withdraw which was passed to the merits panel. Although mother was informed by counsel of her right to obtain alternative counsel or to file a pro se brief, and granted time to do so via court order, mother did not take any action.
We grant counsel's motion to withdraw in a separate order.
Whether termination is appropriate depends upon whether the statutory requirements contained in KRS 625.090 are met.
Termination of a party's parental rights is proper upon satisfaction, by clear and convincing evidence, of a three-part test. First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).17 B.E.K. v. Cabinet for Health & Family Servs., 487 S.W.3d 457, 464 (Ky.App. 2016).
Because the family court has wide discretion in deciding to terminate parental rights, "our 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." Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). "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 & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
We briefly consider whether mother is correct that it would not be in child's best interest to terminate mother's parental rights pursuant to the factors to be considered under KRS 625.090(3). Unfortunately for mother, these factors do not show that it would be in child's best interest for her to retain her parental rights.
The family court gave extensive consideration to the relevant factors, and there was no error in the family court's concluding that these factors favored termination being in child's best interest. The evidence supports the family court's findings that the Cabinet made reasonable efforts while mother did not make the 18 efforts and adjustments to make it in child's best interest to return to mother's care. Child is doing well in his current placement and has a likelihood of being adopted and becoming a permanent member of a stable family, and mother neither paid for a reasonable portion of child's substitute care nor demonstrated that she was financially unable to do so.
Additionally, as explained in Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 177 (Ky.App. 2004), Congress in passing the Adoption and Safe Families Act of 1997 (ASFA), with its time limit indicating a ground for termination included a child's remaining in care for fifteen of the last twenty-two months, sought to expedite the adoption of children in foster care and to address the phenomenon labeled as "foster care drift." Similarly, our General Assembly in enacting time limits to conform to the ASFA sought "to leave children in foster care for as brief a time as possible" with the time limits requiring parents to "make the necessary changes for reunification of the family (or risk possible termination of their rights) . . . applicable regardless of the age of their child in foster care." G.C.W., 139 S.W.3d at 177. When a parent cannot make the needed necessary changes to allow for the safe return of the child, it is in that child's best interest 19 that parental rights be terminated so that the child is free for adoption, even if adoption may not ultimately take place. Id. at 178. While the Cabinet did not seek termination based on the elapse of time when child was in the Cabinet's care, the family court certainly considered child's need for permanency and the additional time it would take for mother to be able to take child, should mother's more recent progress continue.
In 2018, the General Assembly altered this timeline to establish abuse or neglect in not making progress for the safe return of child, resulting in the child remaining in care for fifteen cumulative months out of the last forty-eight months, KRS 600.020(1)(a)9., and applied that same timeline among the grounds for termination in KRS 625.090(2)(j).
Mother had four years in which to resolve her substance abuse issues while grandmother was caring for child but made very little progress while child was in grandmother's care. Mother failed to make much progress in the following twenty months and, given her abandonment and failure to provide for child's needs during this time, termination was appropriate. Therefore, the family court did not abuse its discretion in concluding that it was in child's best interest that mother's parental rights be terminated.
Accordingly, we affirm the Jefferson Family Court's termination of mother's parental rights to child.
ALL CONCUR. 20