Opinion
2021-CA-0331-ME 2021-CA-0332-ME 2021-CA-0334-ME
04-08-2022
S.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.N.D.R.; AND D.M.R., A CHILD APPELLEES AND S.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.N.D.R.; AND C.T.R., A CHILD APPELLEES AND S.R. APPELLANT COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.N.D.R.; AND K.E.R., A CHILD APPELLEES
BRIEF FOR APPELLANT JOHN VALENTINE LOUISVILLE, KENTUCKY BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES LESLIE M. LAUPP COVINGTON, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE DENISE BROWN, JUDGE ACTION NOS. 20-AD-500050, 20-AD-500051, 20-AD-500052.
BRIEF FOR APPELLANT JOHN VALENTINE LOUISVILLE, KENTUCKY
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES LESLIE M. LAUPP COVINGTON, KENTUCKY
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
OPINION
MAZE, JUDGE
S.R. appeals from three separate orders of the Jefferson Family Court involuntarily terminating his parental rights to his minor children, D.M.R., C.T.R., and K.E.R. Since the record clearly shows substantial evidence to support the family court's findings, orders, and judgments, we affirm.
BACKGROUND
Appellant S.R. is the natural father of the Appellee minor children, D.M.R., date of birth 10/29/2006, C.T.R., date of birth 11/15/2007, and K.E.R., date of birth 08/26/2011. L.N.D.R. (Mother) is not appealing the termination of her parental rights.
Appellee Cabinet for Health and Family Services (Cabinet) originally became involved in May of 2017 after receiving a referral that Mother physically assaulted S.R. in front of the children. There were also concerns that the children had missed a substantial amount of school. The Cabinet filed a juvenile dependency, neglect, or abuse petition (DNA), and the family court placed the children in the temporary custody of S.R.
However, on June 7, 2017, an amended petition was filed, requesting the removal of the children because S.R. had tested positive for cocaine on a random drug screen. Brianna Ferrill, the ongoing Cabinet worker for the family, testified that the children were placed with relatives, and S.R. was ordered to complete a mental health and protective parenting assessment, random urine screens, a substance abuse assessment if his drug screens were positive, refrain from corporal punishment, and cooperate with K.E.R.'s educational meetings. In November of 2017, S.R. stipulated to a finding of neglect.
Subsequently, S.R. completed his case plan services, and the children were placed back in his custody on June 12, 2018. However, by April of 2019, the Cabinet received a referral that S.R. had another positive drug screen. S.R. participated in a housing program with the Volunteers of America and was required to complete ongoing drug screens. The housing program reported concerns that S.R. was abusing his prescription medication and, once again, the school was reporting concerns of the children's continued absence. Therefore, the Cabinet filed a new DNA Petition on June 13, 2019, naming S.R. and his brother (who lived with S.R.) as persons responsible for neglect/abuse, stating that they had been using illegal drugs and misusing prescription drugs while caring for the children. A Temporary Removal Hearing was held on June 18, 2019, and the children were placed in the Cabinet's temporary custody.
On July 16, 2019, S.R. executed an admission of facts, admitting that his substance abuse placed the children at risk. As a result, the children remained in the Cabinet's temporary custody. At the dispositional hearing on August 13, 2019, the family court committed the children to the Cabinet. There, Ms. Ferrill testified that the family court continued all orders from prior petitions, which included orders that S.R. follow the recommendations of his UK TAP assessment, undergo a substance abuse evaluation and random urine screens, remain clean and sober, take all medications as prescribed, attend individual therapy sessions, participate in supervised visitation if compliant with court orders, and cooperate with the Cabinet.
Kentucky's Targeted Assessment Program (TAP) is a partnership between the Cabinet's Department for Community Based Services and the University of Kentucky Center on Drug and Alcohol Research to assess and support Temporary Assistance for Needy Families (TANF) participants struggling with significant barriers to work, including substance abuse and mental health issues.
As part of the termination hearing, on November 5, 2020, Ms. Ferrill testified that S.R. had only sporadically complied with his case plan. First, S.R. completed his UK TAP assessment and was recommended to participate in individual therapy and complete a substance abuse assessment. UK TAP was unable to provide all of these services, so they made the necessary referrals for S.R. However, S.R. ultimately did not participate in the recommended services. Thus, in November of 2019, UK TAP discharged S.R. for noncompliance in following through with its services.
Next, Ms. Ferrill testified that while S.R. was somewhat compliant with attending drug screens, there were several positive or diluted screens throughout the case. Since the children's removal, S.R. was scheduled for sixty-two (62) drug screens. Fifteen (15) of those screens were either positive or diluted, and S.R. failed to show up for an additional ten (10) screens. Therefore, S.R. only produced 37 negative screens since the children's removal. Ms. Ferrill explained that some of S.R.'s positive screens were for a prescription, but the prescription did not show up consistently on his screens. Therefore, the Cabinet had ongoing concerns that S.R. was abusing his medication.
Ms. Ferrill further testified that S.R. could not maintain consistent visitation with his children due to his lack of compliance with court orders. The longest period of visitation S.R. sustained was six (6) weeks before he would have another positive drug screen or fail to comply with court orders. Due to his lack of compliance, S.R. had no visitation with his children from November of 2019 until February of 2020. Eventually, the children's therapist recommended that visitation with S.R. cease because the sporadic nature of visitation was having a negative impact on the children.
In addition to the court-ordered services, the Cabinet made a referral for a FORECAST assessment to determine if there were any other services available to allow for reunification. However, S.R. failed to attend all of the required appointments. Despite his lack of participation, it was recommended that he attend more intensive substance abuse treatment, complete psychological and neuropsychological testing, attend individual therapy, and obtain suitable housing. Ms. Ferrill testified that S.R. failed to comply with these recommendations.
Foster Care Clinic and Assessment Team.
S.R. testified that he completed a substance abuse assessment and had a psychological test scheduled two weeks after the trial. Regarding the housing recommendations, S.R. testified that he had a projected move-in date for January 2021 for a mobile home he intends to buy. S.R. completed a parenting evaluation on January 6, 2020, at Transitions, and it was recommended that he participate in the protective parenting program, including individual therapy and group sessions.
A unit manager at Transitions, Amy Noll, testified that she met S.R. on April 13, 2020. She explained that the protective parenting program requires a client first to complete an accountability statement with a therapist, participate in five tasks during group sessions, and finally, write an apology letter to the client's children. Ms. Noll testified that S.R. missed three scheduled sessions after meeting with her in April. Additionally, S.R. missed the first two group sessions and did not begin group therapy until June 2, 2020. After S.R. attended the initial group session, he missed the group therapy three more times. He eventually completed his group tasks and met with Ms. Noll on August 17, 2020, to begin his apology letter. However, S.R. failed to attend the first two scheduled appointments with Ms. Noll and did not meet with her again until October 26, 2020. Ms. Noll testified that she reviewed the draft of his apology letter and asked S.R. to make revisions. As of the trial date, S.R. had not completed the apology letters and, therefore, had not completed the protective parenting program.
On February 25, 2021, the family court entered findings of facts, and conclusions of law, and orders terminating parental rights of both parents. This appeal followed.
ANALYSIS
Parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution, requiring courts to conduct themselves with the "utmost caution" when considering termination. F.V. v. Commonwealth, Cabinet for Health and Family Servs., 567 S.W.3d 597, 606 (Ky. App. 2018) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982), and M.E.C. v. Commonwealth, Cabinet for Health and Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008)). On review of an order terminating parental rights, we ask whether the trial court's findings were clearly erroneous. Cabinet for Families & Children v. G.C.W., 139 S.W.3d 172, 178 (Ky. App. 2004). We are "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).
1. Statutory Authority
In Kentucky, the involuntary termination of parental rights is governed by KRS 625.090, which provides that a circuit court may involuntarily terminate parental rights if the court finds clear and convincing evidence that a three-pronged test has been met. First, the child must be found to be abused or neglected, as defined by KRS 600.020. Second, termination of parental rights must be in the child's best interest. Third, the court must find that at least one of the conditions enumerated in KRS 625.090(2) has been met.
In the case at hand, the family court found that the children were abused or neglected and that termination was in the child's best interest as three of the enumerated conditions under KRS 625.090(2) were met, specifically KRS 625.090(2)(a), (e), and (g). S.R. concedes that the family court had clear and convincing evidence that the children were neglected as required under KRS 625.090(1)(a), thereby satisfying the first prong. However, S.R. challenges the court's finding that three factors under KRS 625.090(2) were met and whether the termination was in the children's best interest under KRS 625.090(3). Thus, our analysis of the propriety of the order terminating S.R.'s rights necessarily begins with the portions of KRS 625.090 which are pertinent to this appeal:
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . . .
(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;
(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.
Our review of the record convinces us that the family court's findings concerning the statutory prerequisites constitute the clear and convincing evidence necessary to support termination.
2. Caselaw - KRS 625.090(2)
First, S.R. urges that the family court incorrectly found that he had abandoned his children for a period of not less than ninety (90) days, pursuant to KRS 625.090(2)(a) because he inquired about the children frequently. However, the evidence demonstrated that S.R. failed to maintain consistent contact with the children.
Since the children's removal in June 2019, the court's order regarding visitation remained the same; S.R. may have supervised visitation so long as he is compliant with the court's orders. However, S.R. only maintained sporadic contact with the children because he could not comply with the orders. The most extended period S.R. visited his children consistently was six (6) weeks. Then, from November 2019 to February 2020, S.R. had no visitation with his children. Ms. Ferrill testified that while S.R. "occasionally inquired about the children's well-being," the court suspended S.R.'s visitation at the recommendation of the children's therapist in June 2020 because the sporadic nature of his visitation had a negative effect on the children.
Similarly, in C.A.W. v. Cabinet for Health and Family Services, Commonwealth, 391 S.W.3d 400 (Ky. App. 2013), this Court upheld a finding of abandonment when supervised visitation was suspended due to the parent's consistent noncompliance with court orders. In C.A.W., the parents failed to complete their substance abuse evaluation recommendations satisfactorily and failed to follow through with individual mental health counseling and recommendations as court-ordered. Id. at 405. Likewise, S.R. did not complete the recommended intensive substance abuse treatment, the psychological and neuropsychological testing, nor the protective parenting program. Thus, S.R. failed to remain compliant with the court order and did not maintain consistent contact with his children for a period of not less than 90 days, despite having made frequent inquiries about his children. Therefore, the family court correctly made a finding of abandonment.
Next, S.R. contends the family court erred finding the existence of the KRS 625.090(2)(e) and (g) factors because he substantially completed his treatment and he would soon be obtaining suitable housing. KRS 625.090(2)(e) and (g) require that the trial court consider the parents' prognosis for improvement within a reasonable amount of time. Section 625.090(5) affords the parents the opportunity to prove by a preponderance of the evidence that the children will not continue to be abused or neglected if returned to the parent. The trial court, in its discretion, may determine not to terminate parental rights. C.A.W., 391 S.W.3d at 401.
In this case, it is not reasonable to expect sufficient improvement in the foreseeable future based on the evidence. The children have been removed from S.R.'s care twice due to substance abuse and educational neglect concerns. The children have remained in foster care for seventeen (17) months due to S.R.'s inability to demonstrate sobriety. Additionally, S.R.'s lack of consistency so negatively affected the children that the children's therapist recommended that all visitation ends.
Moreover, the standard requires that treatment be completed, not "substantially" or "almost" completed. S.R. failed to complete any of the court's remedial orders. S.R. "almost" completed the protective parenting program and "predicted" he would soon have housing but completed neither of these tasks. Additionally, Ms. Ferrill testified that the Cabinet has ongoing substance abuse concerns. S.R. failed to show up for all required drug screens, and when he did screen, there were many positive or diluted screens.
Comparatively, in C.A.W., supra, this Court ruled that the parents did not prove by a preponderance of the evidence that the children would not continue to be abused or neglected because the parents did not complete or fully comply with court orders or Cabinet recommendations. Id. at 407. Likewise, S.R. has failed to prove by a preponderance of the evidence that his children would not continue to be abused or neglected because he has continuously failed to provide essential parental care. Therefore, the family court did not err by finding KRS 625.090(2)(e) and (g) existed.
Accordingly, the family court correctly found by clear and convincing evidence that at least one of the enumerated conditions in KRS 625.090(2) existed.
3. Caselaw - KRS 625.090(3)
Next, S.R. declares the family court erred in finding that termination of his parental rights was in the children's best interest under KRS 625.090(3). When reviewing a family court's determination of the best interests of a child, we must apply the abuse of discretion standard. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained. Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010).
First, S.R. contends the family court improperly concluded that KRS 625.090(3)(a) was not a factor in the present case because he was disabled due to a brain injury. However, the statute mandates that an intellectual disability be substantiated by a certified mental health professional.
Ms. Ferrill testified that the FORECAST assessment recommended that S.R. complete a neuropsychological test to determine whether his brain injury affected his ability to parent or comply with his case plan. S.R. did not complete that recommendation and testified that his brain injury does not affect his ability to care for his children. Therefore, the family court correctly determined that S.R.'s intellectual disability was not a factor in the present case, as considered in KRS 625.090(3)(a).
Second, S.R. states the family court erred in holding that abuse or neglect toward the children occurred, as prescribed in KRS 625.090(3)(b), because their mother perpetrated the domestic violence witnessed by the children. However, the children were also removed from S.R.'s care twice due to substance abuse and educational neglect concerns. The Cabinet and family court have ongoing concerns about S.R.'s ability to demonstrate consistent sobriety and sporadic compliance with the court's remedial orders.
Third, S.R. maintains that the family court erred in finding that the Cabinet made reasonable efforts to reunite the children with S.R. under KRS 625.090(3)(c). On the contrary, the Cabinet made appropriate referrals. Ms. Ferrill testified that the services offered to S.R. included substance abuse counseling, mental health services, parenting classes, FORECAST assessment, case planning, random drug screens, supervised visitation sessions, and several other services.
Likewise, the services offered in this case mirror those in C.A.W. where this Court found that the services offered were evidence that the Cabinet made reasonable efforts to reunite the child with the parent. 391 S.W.3d at 405. S.R.'s only contention in opposition is that the court failed to consider that he had substantially completed his treatment. However, participation in a program does not mean the Cabinet failed to make reasonable efforts to reunite the children with their father. Therefore, the substantial evidence supports the family court's finding that the Cabinet made reasonable efforts.
Fourth, S.R. argues that the family court erred in its consideration of KRS 625.090(3)(d), deciding that the efforts and adjustments to S.R.'s circumstances have been inadequate to determine that reunification is in the children's best interest. Again, S.R. maintains that his therapist, Ms. Noll, testified that he "almost" completed the protective parenting program. However, the evidence demonstrated that he failed to attend appointments with Ms. Noll consistently. S.R.'s attendance was so irregular that Ms. Noll stopped scheduling follow-up appointments because he would not show up.
Moreover, S.R.'s participation in the protective parenting program has shown no evidence of meaningful lifestyle changes to ensure that the children would have a safe place to return. Despite his previous participation in the services, the children were still removed from S.R.'s care again due to substance abuse. Since the children's second removal in 2019, S.R. has neglected to show consistent and reliable sobriety, and his visitation was suspended due to sporadic compliance with the court's remedial orders. As such, the family court appropriately found that termination is in the child's best interest.
Regarding the fifth factor outlined in KRS 625.090(3)(e), S.R. reasons that the family court erred in finding that the children's physical, mental, and emotional needs will continue to improve upon the termination of parental rights. S.R. argues that the family court failed to consider the possibility of whether the children could improve if placed back in his custody. However, the evidence supported the notion that contact with S.R. was doing more harm than good. The family court suspended visitation at the recommendation of the children's therapist, who stated the sporadic visitation of their father was harming the children. Additionally, Ms. Ferrill testified that the children had developed a significant attachment to the foster family. Thus, the family court appropriately compared the stability offered by the foster home with S.R.'s inability to support the notion that the children's welfare would continue to improve if he were granted parental rights.
The final factor the family court considered is the parent's "payment or . . . failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." KRS 625.090(3)(f). While he has not paid any substitute financial assistance, S.R. argues that the Cabinet should have ensured the children received any available derivative benefits from his Social Security benefits. Additionally, S.R. testified that the foster parent declined his offer to provide more support.
However, this Court has held that the best interest of the child test is merely a consideration of many factors, and payment of child support does not preclude a finding that it is in the child's best interest to terminate parental rights. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010). Payment of child support is a significant factor, but it is only one factor needing consideration when determining whether to terminate parental rights. Id. at 713. Thus, the family court was within its discretion when it determined that the other evidence presented outweighs S.R.'s Social Security benefit payments. Therefore, the family court did not err in finding that S.R. did not pay a reasonable portion of substitute physical care and maintenance, as set forth in KRS 625.090(3)(f).
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Family Court judgment involuntarily terminating his parental rights to his minor children, D.M.R., C.T.R., and K.E.R.
JONES, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.