Opinion
NO. 2017-CA-000424-ME NO. 2017-CA-000425-ME
02-09-2018
T.N., NATURAL MOTHER OF THE MINOR CHILD APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; K.R.N., A MINOR CHILD; AND D.W., NATURAL FATHER OF K.R.N. APPELLEES AND T.N., NATURAL MOTHER OF THE MINOR CHILD APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; S.T.W., JR., A MINOR CHILD; AND S.W., SR., NATURAL FATHER OF S.T.W., JR. APPELLEES
BRIEFS FOR APPELLANT: Brandon Edwards Louisville, Kentucky BRIEF FOR APPELLEES: Erika L. Saylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 16-AD-500080 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 16-AD-500081 OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND NICKELL, JUDGES. JONES, JUDGE: T.N. ("Mother") brings this consolidated appeal challenging orders of the Jefferson Circuit Court terminating her parental rights over K.R.N. ("Daughter") and S.T.W. ("Son"). Following a review of the record and applicable law, we affirm.
I. BACKGROUND
In October of 2014, the Cabinet for Health and Family Services (the "Cabinet") filed a dependency, neglect, or abuse ("DNA") petition with the trial court alleging that Daughter and Son (collectively, the "Children") had been exposed to domestic violence in Mother's home between Mother and her paramour, Phillip Gardner. At that time, the court allowed Daughter and Son to remain in Mother's home, provided that Mother comply with all court orders, permit no contact with the Children and Phillip, and enforce a domestic violence order ("DVO") that Mother had previously obtained against Phillip.
Unfortunately, another incident of domestic violence occurred between Mother and Phillip less than a month later, which resulted in the Children being removed from Mother's custody and placed in the custody of their maternal aunt on November 25, 2014. Mother was granted supervised telephonic contact with the Children and ordered to complete domestic violence counseling, complete Protective Parenting classes at Seven Counties Services (now known as Centerstone), submit to random drug screenings, enforce the DVO against Phillip, and maintain regular contact with the Cabinet. The Children's placement with their maternal aunt did not work out, and the Children were placed in the Cabinet's custody on January 13, 2015. On March 10, 2015, Mother stipulated to abuse or neglect of the Children due to her failure to protect them from exposure to domestic violence. The Children were committed to the Cabinet's custody on May 26, 2015. At that time, Mother's prior treatment orders were continued, and Mother was further ordered to have only therapeutic contact with the Children and to complete individual counseling.
Centerstone is a not-for-profit mental health organization that offers services in Louisville, Kentucky, among other places.
On March 7, 2016, the Cabinet filed petitions for involuntary termination of Mother's parental rights. Following a prehearing conference, a termination hearing was scheduled for August 1, 2016; however, that hearing was continued on Mother's motion so that she could obtain counsel. On September 13, 2016, Mother submitted a trial memo arguing against termination of her parental rights. Therein, Mother acknowledged that she had been a victim of domestic violence and stated that this caused her to be unable to properly protect the Children from exposure to abuse. Mother also acknowledged that she had previously submitted to a hair follicle test, which indicated positive results for cocaine and marijuana, but denied the veracity of those results. Mother contended that she had been participating in domestic violence counseling and parenting classes, had been completing regular drug screens, and had obtained a three-bedroom apartment where the Children could live. Mother additionally requested visitation with the Children in her memo.
The petitions also named Daughter's father and Son's father. Both fathers had their parental rights terminated by the same orders terminating Mother's parental rights. However, as neither father has appealed the court's order terminating his parental rights, we do not discuss the facts relevant to them.
Hearings on the TPR petition began on September 20, 2016. Dr. Heather Drawe, a licensed psychologist at Centerstone, testified that she was Mother's therapist from March of 2015 through November of 2015. Dr. Drawe testified that when she first began therapy with Mother, Mother was participating in both individual therapy sessions and the Protective Parenting Group at Centerstone. While Mother completed the majority of the tasks required of her to complete the Protective Parenting classes, Dr. Drawe stated that Mother was told not to return to group therapy in October of 2015 because Centerstone had received information that Mother had not been attending her required drug screens. Despite her removal from the group sessions, Mother was permitted to complete her remaining tasks for the program in her individual therapy sessions.
Dr. Drawe testified that she addressed the missed drug screens with Mother, but that Mother became defensive and did not seem to understand the need for her to complete drug screenings to be reunified with the Children. Dr. Drawe also testified that she had discussed domestic violence issues with Mother. During the time that Mother was attending therapy, Mother seemed to progress in talking about what she perceived as threats of domestic violence, the impact domestic violence had on her own functioning, and the impact it had on the Children's functioning. However, Dr. Drawe stated that Mother still expressed regret about calling the police on Phillip. Ultimately, Mother did not complete the Protective Parenting program, as Mother stopped showing up to her sessions with Dr. Drawe. Dr. Drawe noted that Mother had restarted therapy at Centerstone on two separate occasions, but that Mother was discharged from the program both times for failure to show up to appointments.
The September 20, 2016 hearing was continued until February 1, 2017, due to Daughter's father appearing in court and requesting that counsel be appointed for him. At the beginning of the February 1, 2017 hearing, Mother's counsel requested another continuance because Mother had given birth to a child the week before. The trial court denied the motion. The Cabinet then informed the trial court that it had only become aware of the possibility that Mother was pregnant when it recently received a police report Mother had filed against Phillip, which indicated that Mother was pregnant. The Cabinet had verified that Mother had given birth to a child that morning, and had prepared an affidavit for an emergency custody order for the new child. During a recess, the trial court signed an emergency custody order for the new child and that child was taken into the Cabinet's custody after the trial court verified the child's whereabouts. Mother was extremely upset upon learning that her newborn was being removed from her custody. Mother's counsel again moved for a continuance, stating that he did not believe that Mother would be able to properly testify given her distraught condition. The trial court again denied Mother's motion for a continuance, but granted a recess so that Mother could compose herself.
The infant's removal is not part of this appeal.
Sara Allen, a social worker employed by Centerstone, testified on behalf of the Cabinet. Ms. Allen testified that she had been counseling Daughter since June of 2016. Ms. Allen had diagnosed Daughter with post-traumatic stress disorder. Ms. Allen stated that Daughter identified a lot of stress due to being removed from Mother and from witnessing domestic violence against Mother. When Ms. Allen first began seeing Daughter, Daughter displayed anger, irritability, frequent anxiety, guilt, hypervigilance, and sadness. Daughter also reported having frequent nightmares about her removal from Mother and the domestic violence she had witnessed. Ms. Allen indicated that Daughter's symptoms had decreased as therapy progressed. Ms. Allen testified that Daughter generally had difficulty discussing Mother in therapy. When Mother was brought up, Daughter would "shut down," cry, crawl under a table, and ball up her fists. Daughter had discussed the domestic violence she had witnessed with Ms. Allen and expressed worry that Phillip would come back into Mother's life. Ms. Allen testified that Daughter loved Mother, but was worried about her and worried that Mother was not doing everything she could to bring her back home. Ms. Allen stated that Daughter spoke very fondly of her foster mother, and indicated that she would like to remain in her foster mother's care if she was unable to return to Mother.
Jasmine Salm, the Cabinet worker assigned to Mother's case, testified next. Ms. Salm testified that the Cabinet first became involved with Daughter in 2009 when it filed a petition alleging that Mother had been using marijuana around Daughter and had left Daughter in the care of inappropriate people. At that time, Daughter was removed from Mother's care and placed in the custody of her paternal grandmother, but was returned to Mother's custody in July of 2014. Ms. Salm testified that Mother has two older children, both of whom had been removed from her custody.
Ms. Salm testified about Mother's work on her case plan. She stated that Mother had still not completed the required Protective Parenting classes. Mother had informed Ms. Salm that she was taking parenting classes at Necole's Place, but Ms. Salm stated that those parenting classes were not comparable to the Protective Parenting classes. Ms. Salm testified that, since September 2016, Mother had been compliant with completing weekly drug screens. However, prior to September 2016, Mother's compliance with the drug screening requirement had not been good - Mother had missed numerous drug screens, put off hair follicle tests, and tested positive for cocaine and marijuana in November of 2015. Ms. Salm was aware of the fact that Mother had completed a domestic violence program, Choices, through the Center for Women & Families in September of 2016. Since Mother's completion of that program, however, the Cabinet had received reports of Mother being in contact with Phillip. Mother had not reported this contact to the Cabinet.
Ms. Salm testified that she had visited Mother's home in September of 2016, and that the home would be suitable for the Children to live in, so long as Phillip was not present there. Ms. Salm stated that she had not noticed any men's clothing or shoes in Mother's home when she visited. However, she was concerned that Phillip might be residing in Mother's home because the most recent police report the Cabinet had received concerning domestic violence between Mother and Phillip listed Phillip's address as Mother's home address. Ms. Salm testified that Mother would regularly give the Cabinet gifts to give to the Children, but had never paid child support. Ms. Salm stated that Mother had not been in contact with the Cabinet since September of 2016 and did not disclose her most recent pregnancy to the Cabinet. Ms. Salm testified that Mother's previous drug use and criminal history was not a major concern of the Cabinet. The Cabinet's main concern was that Mother would continue to allow the Children to be subjected to domestic violence. Ms. Salm was unaware of any further services the Cabinet could offer Mother to help her reunify with the Children.
Additionally, Ms. Salm testified that she has visited the Children in their foster placement. She stated that both Children appear to be very attached to their foster mother, and refer to her as Granny. The foster mother has expressed to Ms. Salm her willingness to adopt the Children if Mother's parental rights are terminated. Ms. Salm stated that both Children are developmentally on track, doing very well in school, and have no problems academically or behaviorally.
Mother testified on her own behalf. Mother stated that when she stopped seeing Dr. Drawe, she had been working on her final task in the Protective Parenting program, which was to write apology letters to the Children. Mother testified that Dr. Drawe initially told her to only write an apology letter to Daughter, as Daughter was the only child currently in therapy at Centerstone. When Mother completed that letter, however, Dr. Drawe told Mother that she needed to write apology letters to each of her children. Mother testified that this caused her to become very frustrated and discouraged, which is why she ceased seeing Dr. Drawe and failed to complete the program. Mother stated that she was still willing to complete the Protective Parenting classes, if doing so would allow her to be reunified with the Children. Mother testified that she had completed a JADAC screening the week prior, which is a prerequisite to being admitted into the Protective Parenting Program. Mother indicated that she had completed both a parenting class at Necole's Place and the Choices program. Mother was unaware of the fact that the parenting program at Necole's place was not equivalent to the Protective Parenting classes offered at Centerstone. She stated that the Choices program had provided her with a support system and helped her identify "red flags" of domestic violence. Mother also felt like her self-esteem had greatly improved since completing the Choices program.
Jefferson Alcohol and Drug Abuse Center.
Mother testified that she no longer has a relationship with Phillip and has no future plans with him. She denied that Phillip was the father of her new baby; however, Mother would not disclose who the baby's father was. Mother stated that she felt like she could not "shake" Phillip. She indicated that the most recent incident of domestic violence involving her and Phillip resulted when Phillip learned that Mother was pregnant and showed up, uninvited, at her home. Mother stated that she had called the police on Phillip because she wanted him to go to jail so that she could move without his knowledge. However, Mother expressed regret at calling the police on Phillip because she felt that if she had not done so, the Children would not have been removed from her.
Mother also testified about her missed drug screens. Mother said that she previously missed the random drug screens because she needed to work. Mother stated that since September of 2016, she had been taking weekly drug tests, even if it meant she had to miss work. This has caused Mother to sometimes be behind on her bills and have her electricity cut off. Mother indicated that she has realized that this is what she needs to do to get her Children back. Mother stated that she had declined hair follicle tests in the past because she already had low self-esteem and did not want her hair to be cut off. She indicated that she had always been willing to submit a urine sample for testing. Mother testified that she had not used any form of drugs since before Son's birth. She contended that she has never ingested cocaine, and was unaware of why a previous drug test indicated that she had cocaine in her system.
The Children's guardian ad litem ("GAL") filed a report with the court on February 9, 2017. In the report, the GAL noted that her specific concern regarding Mother related to the Children's ongoing and repeated exposure to domestic violence while in Mother's home and the effect this exposure had had on the Children. The GAL expressed concern at Mother's statements that she sometimes regretted calling the police on Phillip. Further, the GAL noted that Mother had been given ample time to complete the required court orders from her dependency case, but had failed to do so. While the GAL acknowledged that Mother had made attempts in recent months to comply with those orders and complete her required tasks, the GAL indicated that she was unconvinced that the underlying issues that led to the removal of the Children had been resolved. The GAL expressed her belief that it was in the Children's best interest that Mother's parental rights be terminated.
The trial court entered its Findings of Fact and Conclusions of Law ("FFCL") and orders terminating Mother's parental rights of Daughter and Son on February 10, 2017. In the FFCL, the court applied the facts presented to each of the best interest factors under KRS 625.090(3) and determined that five of the six listed factors had been met and it was not in the Children's best interest to return to Mother's custody. The trial court noted that the Children had previously been adjudged to be abused or neglected, as defined by KRS 600.020(1), and found that the evidence presented in the current proceeding demonstrated that the Children were abused and neglected. The trial court additionally found that grounds existed for termination of Mother's parental rights under KRS 625.090(2)(e), (g), (h)(1), and (j).
Kentucky Revised Statutes.
This appeal followed.
II. STANDARD OF REVIEW
Trial courts are afforded great discretion in determining whether children are abused or neglected and whether that abuse or neglect is grounds for termination of parental rights. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998) (citing Dep't for Human Res. v. Moore, 552 S.W.2d 672, 675 (Ky. 1977)). "This court's appellate function is confined to the 'clearly erroneous' review of the trial court's findings of fact based upon clear and convincing evidence, pursuant to CR 52.01." V.S. v. Commonwealth, Cabinet for Human Res., 706 S.W.2d 420, 424 (Ky. App. 1986). "[F]indings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them." Id. (citing Yates v. Wilson, 339 S.W.2d 458 (Ky. 1960)). "The standard of proof before the trial court necessary for termination of parental rights is clear and convincing evidence." Id. at 423. "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
Kentucky Rules of Civil Procedure. --------
III. ANALYSIS
A trial court may involuntarily terminate a parent's parental rights if it finds by clear and convincing evidence that a three-pronged test is satisfied. First, the trial court must find that a child is abused or neglected, as defined in KRS 600.020(1). KRS 625.090(1)(a). This prong is satisfied if the child at issue has previously been adjudged to be abused or neglected by a court of competent jurisdiction. KRS 625.090(1)(a)(1). Additionally, the trial court presiding over the TPR petition may independently find that the child is abused or neglected. KRS 625.090(1)(a)(2). Second, the trial court must find that termination of parental rights is in the best interest of the child. KRS 625.090(1)(b). In determining what is in the child's best interest, the trial court must consider the factors listed in KRS 625.090(3). Finally, the trial court must find that at least one of the factors delineated in KRS 625.090(2) is present.
On appeal, Mother argues that there was no substantial evidence presented during the TPR hearing demonstrating that the Children had been abused or neglected. Mother acknowledges that she stipulated to abuse or neglect of the Children in the underlying DNA proceeding; however, she contends that because the standard of proof in DNA proceedings is a preponderance of the evidence, the trial court should have reexamined the findings in the DNA proceeding to determine if there was clear and convincing evidence that the Children had been abused or neglected. Mother also argues that there was insufficient evidence demonstrating that it was in the Children's best interest that her parental rights be terminated. Finally, Mother contends that the trial court erred in denying her motion to continue following the removal of her newborn child. Mother contends that the court's determination not to continue the hearing violated her due process rights, as her ability to testify in her defense was compromised once the newborn was removed.
In its FFCL, the trial court acknowledged that Mother had previously stipulated to abuse and neglect of the Children in the DNA proceeding. In addition to that acknowledgment, however, the trial court made its own finding that, based on the evidence presented in the TPR proceedings, it found the Children to be abused and neglected under KRS 600.020(1). Because the trial court determined that the Children were abused and neglected under both KRS 625.090(1)(a)(1) and 625.090(1)(a)(2), Mother's argument that the trial court was required to reexamine the findings in the DNA proceeding is irrelevant.
In making its independent determination that the Children were abused or neglected, the trial court found that Mother had failed to complete Protective Parenting classes, failed to comply with her random drug screen requirement, and failed to enforce the no-contact order between herself and Phillip, despite the fact that Mother's case plan with the Cabinet required her to do these things before she could be reunified with the Children. While Mother offered explanations for her failure to complete the Cabinet's requirements, she admitted that she had failed to do so. KRS 600.020(1)(a)(9). Mother admitted that she had failed to pay any child support for the Children since they had been in the custody of the Cabinet, despite the fact that she is employed. KRS 600.020(1)(a)(4).
Further, following the Cabinet's filing of DNA petitions after the Children had witnessed domestic violence on Mother by Phillip, the Children witnessed domestic violence perpetrated by Phillip less than a month later. The Cabinet presented evidence that Daughter suffers from post-traumatic stress disorder as a result of her exposure to domestic violence. Once the Children were removed from Mother's custody, Mother continued to have contact with Phillip. While Mother did call the police on Phillip on several occasions, she did not inform the Cabinet that additional domestic violence had occurred. Mother continued to express regret that she had called the police on Phillip. This is sufficient evidence to establish that Mother allowed a risk of emotional injury to be created. KRS 600.020(1)(a)(2).
Mother next contends that there was insufficient evidence to support the trial court's finding that it was in the Children's best interest that her parental rights be terminated. When determining whether it is in a child's best interest that a parent's rights be terminated, KRS 625.090(3) requires the trial court to 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 . . . 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 or 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 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.
The Cabinet did not allege that Mother suffered from any mental illness, and so the first factor was not addressed by the trial court. Concerning the remaining factors, however, the trial court underwent a detailed analysis. As noted above, the trial court found that the Children were abused or neglected as defined in KRS 600.020(1). The trial court found that the Cabinet had made reasonable efforts to reunify the Children with Mother, as was evinced by the Cabinet's referral to Mother of substance abuse counseling, parenting classes, individual and family therapy, domestic violence counseling, and random drug testing. Mother acknowledged that she had failed to complete her case plan with the Cabinet despite the ample time she had to do so, and the Cabinet social worker testified that she was unaware of any other services the Cabinet could provide to Mother to allow for reunification. The trial court noted that Daughter's therapist had testified to Daughter's improved mental state since being in foster care. Additionally, the Cabinet social worker testified that both Children are thriving in their foster home and that the foster mom is willing to adopt the Children if Mother's parental rights are terminated. Finally, Mother testified that she had failed to pay any child support while the Children were in foster care, despite being employed. Based on the trial court's analysis and the evidence presented during the TPR hearing, we cannot find that the trial court abused its discretion in determining that it was in the Children's best interest that Mother's parental rights be terminated. D.G.R. v. Commonwealth, Cabinet for Health & Family Servs., 364 S.W.3d 106, 112 (Ky. 2012) ("[T]he trial court has substantial discretion in determining the best interests of the child under KRS 625.090(1)(b) and (3).").
As to Mother's contention that the trial court violated her due process rights by denying her motion to continue, we cannot agree. "The trial court has a broad discretion in granting or overruling a motion for continuance and this Court will not interfere in the exercise of that discretion unless it is clearly abused." Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky. 1957). As noted above, the TPR hearing had already been continued twice - once on Mother's motion and once so that Daughter's father could obtain counsel. The trial court declined to continue the hearing again, as it believed it was in the Children's best interest that the hearing continue expeditiously. If Mother had been so incapacitated from grief that she was unable to testify and defend her case against termination, she may have been able to assert a successful claim of a due process violation. However, this was not the case. While Mother was extremely distraught immediately after receiving the news that her newborn child was being removed from her custody, she was able to retain her composure. Mother testified on her own behalf and did so calmly and coherently. Accordingly, we cannot find that Mother's due process rights were violated by the trial court's denial of her motion to continue.
IV. CONCLUSION
In light of the foregoing, the orders terminating Mother's parental rights of Daughter and Son are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Edwards
Louisville, Kentucky BRIEF FOR APPELLEES: Erika L. Saylor
Louisville, Kentucky