Opinion
NO. 2016-CA-001003-ME NO. 2016-CA-001004-ME NO. 2016-CA-001005-ME
06-02-2017
C.U.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND B.T.M., A CHILD APPELLEES AND C.U.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND T.M.S., A CHILD APPELLEES
BRIEF FOR APPELLANT: Pam Ledgewood Lexington, Kentucky BRIEF FOR APPELLEE: Jerry M. Lovitt Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 15-AD-00273 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 15-AD-00274 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 15-AD-277 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: C.U.S. challenges the Fayette Circuit Court's termination of her parental rights to the three youngest of her five children. Her attorney alleges the Cabinet for Health and Family Services (Cabinet) did not satisfy its burden under KRS 625.090 with clear and convincing evidence because a family member testified the children had deep bonds with family in Arkansas. C.U.S. raises a second issue pro se—which she admits is unpreserved—claiming the trial court violated her constitutional rights as a single mother. Having reviewed the record, the briefs and the law, we affirm.
Pursuant to Court policy, all family members in this termination of parental rights (TPR) case will be referred to by initials. On September 19, 2016, this Court consolidated three separate appeals—one for each child—into a single Opinion.
Of particular importance to this case, on October 9, 2011, C.U.S. gave birth to B.T.M., a girl, and B.T.M., a boy, in Arkansas. On August 8, 2014, she gave birth to a son, T.M.S., in Kentucky. Paternity testing of the man alleged to have fathered the twins was never completed; he was dismissed from the case pursuant to KRS 625.065(2). The father of T.M.S. is unknown. C.U.S. had also given birth to two older children while living in Arkansas; their fathers are serving lengthy prison sentences in Arkansas. Upon concern by the trial court that the fathers may not have received proper notice, a ruling as to the oldest children was withheld pending filing of post-trial memoranda. This Opinion pertains only to the three youngest children.
Kentucky Revised Statutes.
FACTS
At the invitation of her younger brother, C.U.S. left her family in Arkansas and moved to Kentucky in 2013 with her four children. Upon reaching Lexington, her brother, B.S., his girlfriend, and the children living in their household, were unable to provide the family support needed for a single mother with four young children of her own. Being new to Kentucky, C.U.S. had no other relatives nearby upon whom she could rely. She hid her true circumstances from her family in Arkansas for well over a year.
C.U.S. consistently found work, but moved from job to job. Working at the Waffle House did not yield much salary, but she usually brought home about $200 a night ($1,200 a week) in tips. She became the sole provider for her brother, his girlfriend, and a total of seven children. In her view, the children and other adults had food and provisions, even if she went hungry. While C.U.S. was at work, B.S. watched her children.
As a child, C.U.S. had seen parents ask their children questions and disbelieve their responses. Because of that experience, she made a point of asking each child daily how his day had been; no child ever reported anything unusual.
The Cabinet received a referral on November 21, 2013, regarding a child in the home of B.S. and his girlfriend. While investigating that report, the Cabinet learned B.S. was also a caregiver for the children of C.U.S. When interviewed, C.U.S.'s oldest child reported B.S. "whooped" him and applied an open hand to his chest, making his heart race. This child also reported the family had recently arrived from Arkansas and B.S. smokes weed and calls him names. The second oldest child confirmed spankings were a common form of discipline by B.S., the family had just arrived in Kentucky, and when another child spoke with a Cabinet representative, that child had received a "whooping." While expecting her fifth child, C.U.S.'s four children were removed from her and placed in foster care where they have remained together and flourished.
Three Cabinet caseworkers were assigned to C.U.S. beginning with Caroline Nichols who received the referral and opened the case. Nichols testified C.U.S. missed drug screens, admitted smoking marijuana every other day, expressed no emotion at the time of removal, stipulated neglect, and identified no relatives as potential placements.
Shay Blackford received the case from Nichols on August 9, 2014, one day after the birth of T.M.S. Blackford testified C.U.S. had signed a case plan, but it was as if she was trying to "sabotage" her success despite multiple opportunities to complete her plan. A significant concern was the lack of car seats to transport the children. Once, C.U.S. drove the children from their foster home in Berea to Lexington using only seatbelts. An overnight visit went well, but there were no beds for the children. When her work schedule changed, C.U.S. went several weeks without seeing her children. She paid child support, but not on schedule.
During an impromptu home visit, Blackford noticed a marijuana joint but C.U.S. claimed it was the remnant of a cigar. Even though C.U.S. knew missing a drug test was the equivalent of a dirty test, she missed drug screens—going nearly a month without testing when she was to be tested twice a week. According to Blackford, the Cabinet cannot reunify a family when the caregiver has existing drug issues. C.U.S. reported a diagnosis of cancer requiring her immediate return to Arkansas even though she would miss seeing her children. C.U.S. never provided documentation of cancer.
Early on, two paternal grandmothers expressed interest in taking the oldest children, but C.U.S. did not want her children separated and did not want them placed with paternal family members. The paternal grandmother of the second oldest child was approved for placement, but her desire was more for telephone contact with the child, not physical custody. She never visited the child.
These children are not part of this appeal, although their cases were heard during the single trial.
C.U.S. suggested one of her five sisters, D.S., might take the children. D.S. lives in Arkansas, has children aged three and seven, and is a store manager for Dollar Tree. Blackford spoke to D.S. and another sister, but those conversations did not go well because neither provided contact information to allow an investigation. The sisters asked questions and advocated for C.U.S.
According to Blackford, the Cabinet was very near reuniting the family. C.U.S. was working her plan, although she gave different reports to different entities. After waiting seven months, she received an apartment, but by April 2015, faced eviction. Although consistently employed, she changed employers frequently—working for as many as three businesses during the eight months Blackford handled the case.
When asked about barriers to reunification, Blackford—who admitted being frustrated by the case—said C.U.S. was not proactive. For example, she did not acquire car seats even though she knew their importance. When she learned return of her children was imminent, she was not excited as most parents are; rather, she was withdrawn. There was little to no food in the home and no plan for daycare. The Cabinet offered counseling to C.U.S., but she attended only a few sessions, believing she had gotten herself into the situation and would work her way out of it without help. Blackford was concerned for C.U.S.'s mental health. In Blackford's view, C.U.S. could not meet her own needs, let alone those of five young children, she had a very limited support system, and she never provided a support plan. Blackford described the case as "very sad."
Cynthia Ready was the third caseworker assigned to the case. She was handling it at the time of trial on June 8, 2016. According to Ready, when she received the case in April 2015, C.U.S. was working her case plan. She was maintaining both work and housing, but had stopped counseling and had amassed a child support arrearage of $5,176.13 on the day of trial, an amount great enough for a charge of felony flagrant non-support.
During the year the case was assigned to Ready, C.U.S. expressed no interest in resuming unsupervised weekend home visits. Just prior to trial, she had been visiting the children every two weeks. Ready had visited with the children several times in their foster home. While they love C.U.S., they want to be adopted by their foster parents to whom they are attached. The siblings have also bonded with each other in the foster home.
When asked about barriers to reunification, Ready testified C.U.S. had no initiative. Her only stability was working, but not in the same job. C.U.S. had worked two different jobs during the last year. She had also moved twice during that time. Ready had also noticed a marijuana joint in an ashtray during a home visit with C.U.S.
On cross-examination, Ready testified the Cabinet had received a waiver to stop providing services, but the Cabinet never stopped working with C.U.S., continuing to offer services. In describing how C.U.S. interacted with her children, Ready said she was unemotional at the end of each visit. At the conclusion of the Cabinet's case, counsel for C.U.S. moved for a directed verdict, which was overruled.
D.S. testified on behalf of her sister. She stated C.U.S. had moved to Kentucky to better herself. Before the move, D.S. saw the four children daily, but soon after the move, C.U.S. became "secretive." D.S. agreed B.S. had tricked C.U.S. into moving to Kentucky, provided no support to her, and then tried to conceal his actions. C.U.S. told her family everything was fine. Only through a random conversation B.S. had with his mother was the truth revealed—four children had been removed from C.U.S., she had become pregnant and delivered a fifth child, and that child had also been removed from her care. The children had been in foster care about a year before the Arkansas family contacted the Cabinet. D.S. testified she had personally sought custody of the children, but upon arriving in Kentucky on the court date, was told she had filed the paperwork in the wrong court. She stated she felt let down by both C.U.S. and the Cabinet.
D.S. understood B.S. had been drinking and that led to the removal of the children.
C.U.S. also testified. She admitted keeping details from her family, ceasing contact with relatives in Arkansas, and trying to be independent. She said she tried to do all the Cabinet asked of her, but was probably not timely. She described herself as "stubborn" and thought she could work herself out of her predicament alone. She agreed she was not stable, but believed it was in her children's best interest to be with family.
On cross-examination, C.U.S. testified she had had three homes and six jobs since removal of the children from her care. Having left her job at the Waffle House because she was depressed, at the time of trial she was working at Amazon. She again acknowledged she was not stable enough to care for five children, but questioned why her child support arrearage was so high because money is deducted from her paycheck weekly. She confirmed she had never had a mental evaluation, but had attended some counseling session as required by her case plan. She admitted smoking marijuana, but indicated she had stopped using for eighteen months for her children. She also admitted exaggerating the "cancer" diagnosis—it turned out to be HPV, not cancer, but the doctor had originally told her only she had "cancer." While she told the Cabinet she was immediately returning to Arkansas to deal with the cancer, she did not make the trip. When C.U.S. closed her case, defense counsel renewed the directed verdict motion, which was again overruled.
Human papillomavirus. --------
The guardian ad litem (GAL) for the children provided an oral report, noting C.U.S. has testified she had failed to comply with many of the Cabinet's requirements. Relative placements for the three youngest children had been mentioned, but none came to fruition due to non-cooperation with the Cabinet by D.S. Having met with the children the night before trial, the GAL reported they are doing "incredibly well." The destructive behavior they initially exhibited when they entered foster care had disappeared and they want to know when they will be adopted.
In his summation, counsel for the Cabinet applied KRS 625.090 to the testimony. He argued the children had previously been found to be neglected and noted they had continuously resided in state-approved foster care since about January 22, 2014—more than fifteen out of the last twenty-two months. C.U.S. had conceded she lacked stability to care for her children. There was proof of a child support arrearage exceeding $5,000. The Cabinet argued TPR was in the best interest of the children, who were ready and able to be adopted as one unit by foster parents to whom they were attached.
Regarding relative placement, the Cabinet argued it had been considered and thwarted by C.U.S., who gave no information on her own family and opposed placement with paternal family members. While D.S. had testified passionately about her desire to take the children, her interest did not surface until the permanency goal had been changed to adoption and after the waiver of future services had been granted. Citing P.W. v. Cabinet for Health & Family Servs., 417 S.W.3d 758 (Ky. App. 2013), the Cabinet argued D.S.'s interest developed after the children had bonded with the foster parents and legally too late. Additionally, there is no legislative mandate that the Cabinet place a child with a relative when there are other options. Baker v. Webb, 127 S.W.3d 622, 625 (Ky. 2004).
The trial court granted involuntary TPR as to the three youngest children of C.U.S. as requested by the Cabinet in its petition filed in October 2015. This appeal followed.
ANALYSIS
We review the family court's findings for clear error. C .R.G. v. Cabinet for Health & Family Services, 297 S.W.3d 914, 916 (Ky. App. 2009). The proof need not be uncontradicted; it is sufficient so long as it is "of a probative and substantive nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people." Id . We give due regard "to the opportunity of the trial court to judge the credibility of the witnesses' because judging the credibility of the witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v . Asente, 110 S.W.3d 336, 354 (Ky. 2003).
KRS 625.090 sets forth the grounds for involuntary TPR, and requires clear and convincing proof. In this case, KRS 625.090(1)(a) is satisfied because C.U.S. stipulated neglect and there had been a prior finding of neglect as to each of the three children.
Under KRS 625.090(2), TPR may be ordered only if at least one of ten enumerated grounds is found. Here, the Cabinet established—and the trial court found—proof of three grounds as expressed in KRS 625.090(2) (e), (g) and (j) which read:
(e) for a period of not less than six (6) months, [C.U.S.] 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;Proof of item (e) was based in part on failure to provide car seats to transport the children. Proof of item (g) was based in part on a substantial child support arrearage despite a strong work ethic and steady employment. Proof of item (j) was based on four of the children entering foster care on January 22, 2014; the fifth child was placed in foster care the day after his birth on August 8, 2014.
. . .
(g) [C.U.S.], 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;
. . .
(j) The child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
As required by KRS 625.090(3), the trial court considered factors (c), (d), (e) and (f) before determining TPR was in the best interest of the children. The Court found the Cabinet had made all reasonable efforts to reunify the family, and C.U.S. had failed to adjust her "circumstances, conduct, or conditions" to make return of the children to her home a viable option—the Cabinet repeatedly looked for stability but found none—a fact C.U.S. conceded when she testified. Furthermore, because C.U.S. did not comply with drug testing, there was no proof her drug use had stopped. Cabinet workers remained concerned for C.U.S.'s mental health, but saw vast improvement in the children since placement in foster care—delinquent behavior exhibited upon entry into care had diminished, and the children eagerly anticipated adoption, despite loving their mother. Finally, C.U.S. owed more than $5,000 in child support at the time of trial. Based on the foregoing, contrary to the argument advanced by counsel for C.U.S., the statutory grounds for TPR were clearly and convincingly established. Discerning no clear error, we affirm involuntary TPR.
C.U.S. has attempted to raise an issue on her own which she admits is unpreserved. She claims the court system violated her constitutional parental rights because she was a single mother. The entirety of her argument reads as follows:
. . .My last 4 Caseworkers I had lied and Manipulated the court to keep my kids in the state over 15 to 22 Months so they could change the goal plan to adoption . . . Lexington Ky CHFS have violated my constitutional rights as a mother and treated me unfailingly [sic] because I was a Single Black Mother raising 5 kids and 4 of them I have been raising since I was 16 years old.We are a Court of review. A "nonruling is not reviewable when the issue has not been presented to the trial court for decision." Commonwealth v. Turner, 460 S.W.2d 345, 346 (Ky. 1970). The issue not having been argued to the family court, it is not properly before us. Additionally, we have no duty to search the record to determine whether the claim is meritorious. O'Rourke v. Lexington Real Estate Co. L.L.C., 365 S.W.3d 584, 587 (Ky. App. 2011). Thus, we deny review of this pro se claim.
WHEREFORE, involuntary TPR, as ordered by the Fayette Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Pam Ledgewood
Lexington, Kentucky BRIEF FOR APPELLEE: Jerry M. Lovitt
Lexington, Kentucky