Opinion
NO. 2016-CA-001450-ME
03-08-2019
L.M.E. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.M.E., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Dennis C. Burke Louisville, Kentucky BRIEF FOR APPELLEE: Mary Stewart Tansey Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY BRANCH, EIGHTH DIVISION
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 15-AD-500103 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND KRAMER, JUDGES. GOODWINE, JUDGE: L.M.E. ("Mother") appeals from an order of the Jefferson Circuit Court, Family Division, terminating the parental rights to her minor child A.M.E. Mother challenges the family court's finding that termination was in A.M.E.'s best interest. After careful review, we affirm.
This case was administratively reassigned to this panel January 17, 2019.
BACKGROUND
Mother gave birth to A.M.E. on September 7, 2010. A nurse notified the Cabinet for Health and Family Services ("Cabinet") that A.M.E. was at risk of dependency, neglect, or abuse due to Mother's low cognitive functioning. The Cabinet closed its case in October 2010, after it provided services to Mother and determined she could properly care for A.M.E.
A.M.E.'s father is unknown.
On May 25, 2012, the Cabinet initiated another dependency, neglect, and abuse action, after A.M.E.'s pediatrician made allegations that she had a burn mark on her thigh. A.M.E. also had lice and scabies. The family court issued an emergency custody order, placing A.M.E. with the Cabinet. At the May 31, 2012 temporary removal hearing, Mother stipulated to neglecting A.M.E. She could not explain how A.M.E. was burned, and acknowledged she permitted other adults to watch A.M.E. The family court granted temporary custody to Laura Wade, a family friend, who had an extensive history working with Mother through the Cabinet. She provided foster care services to Mother's sibling when he was removed from Mother's parents' care.
On September 8, 2012, based on Mother's stipulation, the family court found A.M.E. to be abused or neglected under KRS 600.020(1). Five months later, the Cabinet placed A.M.E. in foster care with Sonya Potter where she remains. By all accounts, A.M.E. is doing well.
Kentucky Revised Statutes.
The Cabinet's initial goal was reunification. It developed a reunification plan for Mother, consisting of the following: (1) complete protective parenting classes; (2) participate in counseling; (3) submit to random drug testing; (4) participate in a FORECAST assessment; (5) take all medications as prescribed; (5) obtain independent housing; (6) participate in supervised visits; and (7) change the payee on her SSI benefits. Mother substantially complied with her case plan, and also paid child support. In January 2014, the family court increased her unsupervised visits with A.M.E. from two hours each week to six hours.
Despite Mother's substantial compliance with her case plan, the Cabinet had several concerns: (1) Mother failed to parent A.M.E. on her own, even after being encouraged to do so; (2) Mother did not take her prescribed medication; (3) Mother continued dating her boyfriend, despite his history of child abuse of his own child, which the Cabinet perceived as a safety threat; and (4) Mother failed to keep her house neat and clean. Mother's house was generally messy and smelled strongly of cat urine.
On March 13, 2015, the Cabinet filed a petition for involuntary termination of Mother's parental rights. On January 13, 2016, the trial commenced. Three hours into the testimony, the family court discovered: (1) the Cabinet had not conducted a home visit with Mother since March of 2015; and (2) Mother had not had unsupervised visits with A.M.E. without her family members present. As a result, the family court, sua sponte, stopped the trial, took the testimony it heard under submission, and scheduled a review for Mother's dependency case for March 10, 2016 at 9:00 a.m. In its order, the family court detailed specific instructions for the Cabinet and Mother.
Constrast K.M.J. v. Cabinet for Health and Family Services, 503 S.W.3d 193 (Ky. App. 2016) (vacating the trial court's order terminating parental rights of mother and remanding for further proceedings). While the Court acknowledges K.M.J., we note that the facts of the case herein are different. Therefore, we are not bound by K.M.J.'s holding.
The family court ordered Mother to: (1) have unsupervised visits without family members; (2) cook meals for the child; and (3) have transportation arranged without the family being involved. Additionally, the family court ordered a Court Appointed Special Advocate ("CASA") to attend the visits and for the Cabinet to prepare a detailed report for the March 10, 2016 review. See January 13, 2016 order. The Cabinet submitted its report to the family court on March 10, 2016, which included a detailed report from the CASA worker of each of the weekly unsupervised visits: January 28, 2016; February 4, 2016; February 11, 2016; February 18, 2016; February 25, 2016; and, March 3, 2016. Following the review, the family court entered an order continuing the trial to July 20, 2016.
At trial, the Cabinet called four witnesses: (1) Dr. Karen Eisenmenger, Ph.D., Clinical Psychologist; (2) Peggy Buechler, CASA volunteer; (3) Erin McGohon, a Cabinet social worker; and (4) Sonya Potter, A.M.E.'s foster parent. Mother testified and called Laura Wade, a family friend and A.M.E.'s initial custodian. Each witness testified about A.M.E.'s wellbeing and Mother's ability to adequately care for her.
First, Dr. Eisenmenger is a qualified mental health professional as defined under KRS 600.020(50). She conducted a three-hour psychological assessment of Mother as ordered by the family court following a referral made by the Cabinet in 2014. She conducted several psychological tests, interviewed Mother, and reviewed the records supplied by the Cabinet.
Dr. Eisenmenger testified that Mother met the criteria for bipolar disorder, delusional disorder, paranoid personality disorder, and that Mother had an I.Q. of 60, which indicates very low cognitive functioning. Further, she assessed Mother's reading at a third-grade level.
Dr. Eisenmenger testified that Mother's low cognitive functioning could impair her ability to parent by failing to adequately address A.M.E.'s needs without significant support from others. She also tested Mother's parenting beliefs, finding that she devalues compromise and requires strict obedience. She testified, within a reasonable degree of psychological certainty, that Mother's belief could put A.M.E. at risk.
Second, Peggy Buechler, A.M.E.'s CASA volunteer since February 20, 2013, testified that Mother was rarely alone with A.M.E. Family members were always present during Mother's visits. She testified there was a bond between A.M.E. and Potter; A.M.E.'s needs are being met by Potter; and, she believes Potter is still willing to adopt A.M.E. After being ordered to do so, Mother did comply with the family court's order for no one else (other than the CASA volunteer) to be present during Mother's unsupervised visits.
Third, Erin McGohon, Mother's social worker, testified at length regarding Mother's history with the Cabinet from childhood through adulthood. She testified that A.M.E. has been in foster care for 15 of the most recent 22 months preceding the filing of the termination petition. A.M.E. has been out of Mother's home since 2012. The Cabinet still had concerns about the state of the home and the safety risks associated with Mother's involvement of family members and her boyfriend in A.M.E.'s life. Mother relied on other family members, and her boyfriend, for financial and emotional support, but the Cabinet did not consider them to be appropriate support due to their own significant, negative history with the Cabinet.
The testimony varied as to whether Mother was still in a relationship with this individual.
Further, McGohon testified that Mother experienced several fainting episodes, which was only discovered after Mother fainted during an unsupervised visit and A.M.E., who, at five years old, called 911 for assistance. These fainting spells apparently occurred on multiple occasions due to migraines, but Mother did not report them to the Cabinet. McGohon provided a certified copy of the Emergency Management Services call logs, showing that from 2010 through 2016, Mother had 27 calls for assistance, with six of those calls from 2014 through 2016 coded as "unconsciousness, fainting, or near fainting."
McGohon also testified that Mother was recently fired from McDonald's, due to a verbal altercation with a supervisor. McGohon did not believe Mother's circumstances would change in a way that would render her capable of adequately protecting and parenting A.M.E. in the foreseeable future.
Fourth, Sonya Potter is A.M.E.'s foster parent. She and Laura Wade are personal friends. Like Buechler, Potter testified that Mother rarely interacted with the child on her own because Mother's family members were constantly present. Potter testified that First Steps was concerned about the child's developmental delays caused by her environment, but A.M.E. was able to quickly reach the necessary milestones shortly after being referred to First Steps. Potter confirmed Buechler's testimony that she and her husband have a good relationship with A.M.E. and are willing to adopt her.
Mother called Laura Wade to testify. Wade was A.M.E.'s initial custodian from May 31, 2012 to February 7, 2013. Mother contacted her when the Cabinet filed its initial petition. Wade welcomed A.M.E. into her home. Wade is a family friend, being involved with Mother's family for many years. Wade knew the family through church and recognized the family needed assistance, direction, and advice because of the low functioning of Mother and family members. Wade testified that when A.M.E. came to reside with her, she had been treated for the burn on her inner thigh as well as for lice and scabies.
Wade further testified that A.M.E. was delayed mentally and physically and referred to First Steps. Shortly thereafter, A.M.E. met all milestones; she was in kindergarten and performing well in her academic setting. According to First Steps, A.M.E. was "environmentally deprived."
Mother was the final witness. She testified that she completed all of the Court's requirements set out in her case plan, and wanted to reunite with A.M.E.
The family court also admitted into evidence Mother's medical records from Seven County Services, Inc. ("Seven Counties"). The therapist's notes logged Mother's failure to take her psychiatric medications as directed, contrary to Mother's testimony. The family court noted that Mother's difficulties taking her medications arose after the trial commenced.
Following the bench trial, the family court permitted the parties to submit post-trial memoranda. The Guardian Ad Litem filed a thorough summary of the trial testimony and applied the evidence to the statutory factors. She recommended termination of Mother's parental rights, believing termination was in A.M.E.'s best interest.
On August 31, 2016, the family court entered its findings of fact, conclusions of law, and order terminating parental rights/order of judgment. This appeal followed.
STANDARD OF REVIEW
"The standard of review that an appellate court uses in a termination of parental rights case is the clearly erroneous standard. Thus, a trial court's findings of fact will not be set aside unless unsupported by substantial evidence." C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 160 (Ky. App. 2012). Termination decisions are inherently factually sensitive. Thus, an appellate court, "[must] give a great deal of deference to the trial court's findings[.]" D.G.R. v. Com., Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012). Additionally, "judging the credibility of 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); see also CR 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").
Kentucky Rules of Civil Procedure.
ANALYSIS
Under Kentucky law, a court may involuntarily terminate a parent's rights to a child if the court finds by clear and convincing evidence that said termination meets the requirements of KRS 625.090. "Clear and convincing proof . . . is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." B.F. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998)).
First, under KRS 625.090(1)(a), the family court found A.M.E. was abused or neglected, under KRS 600.020(1). Second, the family court found under KRS 625.090(2), that at least one of the listed grounds for parental unfitness was present. Finally, the family court found termination was in A.M.E.'s best interest, after considering the relevant factors enumerated in KRS 625.090(3). Mother stipulated to neglect of A.M.E., and the family court found her to be neglected on September 8, 2012, in the DNA action. Thus, the first prong was satisfied.
Second, the family court found one factor of parental unfitness under KRS 625.090(2) by clear and convincing evidence. The Cabinet alleged grounds for termination under KRS 625.090(2)(a), (e), (g) and (j). The family court found the Cabinet had not met its burden of clear and convincing evidence with respect to KRS 625.090(2)(a) (abandonment) and (g) (not due to poverty alone, failed to provide for essential needs of the child and not likely to turn this around).
The family court found there were issues initially based upon Mother's refusal to visit with A.M.E. out of the presence of other extended family members who were not appropriate. After allowing Mother more time to parent herself with A.M.E., Mother did participate in visitation and did not abandon A.M.E. Thus, the Cabinet failed to prove by clear and convincing evidence KRS 625.090(2)(a).
Moreover, the evidence clearly proved that Mother paid child support through portions of her Social Security Insurance and Disability checks and, when working, had deductions from her check for child support. Mother has an arrearage, which she testified she is paying down. Thus, the Cabinet failed to prove by clear and convincing evidence KRS 625.090(2)(g).
The Cabinet cites two remaining grounds to demonstrate Mother's parental unfitness.
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[.]KRS 625.090(2)(e); and
The child has been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights.KRS 625.090(2)(j). Though only one ground was necessary to determine parental unfitness, the family court found Mother unfit to parent under both KRS 625.090(2)(e) and (j).
KRS 625.090(2)(j) was amended on July 14, 2018, now broadening the time period to 15 months of the last 48 months (rather than the last 22 months). The trial in this case took place prior to the amendment taking effect, though this ground would be satisfied nonetheless.
Mother concedes A.M.E. has been out of her custody since 2012 and living with Potter since 2013, though she claims this was due to the Cabinet's resistance at reunification. On the contrary, there was substantial evidence that Mother had access to many services, but she was still unable to effectively parent A.M.E. without the support of others who the Cabinet deemed inappropriate. The family court found that Mother was more akin to A.M.E.'s playmate, rather than her parent. It made this determination based on the passing years in which she only visited A.M.E. with her extended family, rather than forming a bond as a parent and protecting A.M.E. Accordingly, the family court found the Cabinet met its burden of proving the second prong of the test for involuntary termination by clear and convincing evidence.
The final prong, the best-interest analysis under KRS 625.090(3), is the primary issue on appeal. Mother contends that the family court erred in finding that it was in A.M.E.'s best interest for her parental rights to be terminated. The family court meticulously analyzed each of the six enumerated factors.
The family court first considered whether Mother suffers from "[m]ental illness. . . or an intellectual disability. . . of the parent as certified by a qualified mental health professional, which renders [her] consistently unable to care for the immediate and ongoing physical or psychological needs of [A.M.E.] for extended periods of time[.]" KRS 625.090(3)(a).
The family court focused on Mother's ongoing, serious mental health issues and cognitive deficits, along with her inability to provide a safe environment for A.M.E. The family court further found the Cabinet provided Mother with many reunification services and referrals, with multiple opportunities to prove she could safely parent A.M.E. without the support of family members. However, the family court found Mother could not prove her ability to parent A.M.E. alone, and this could not be corrected with any additional services from the Cabinet considering A.M.E.'s age. The family court also found that A.M.E.'s needs were being met by the foster parents, who cared for her for several years and with whom she had developed a significant bond.
The family court then considered any parental acts of abuse or neglect toward any child in the family. KRS 625.090(3)(b). In 2012, the family court accepted Mother's stipulation that A.M.E. was neglected due to the burn mark on her thigh. Further, the evidence at trial was clear and convincing that A.M.E. had been abused or neglected under KRS 600.020(1)(a)(4) because Mother failed or refused, continuously and repeatedly, to provide essential parental care and protect A.M.E.
The third factor the family court considered was the Cabinet's efforts to reunify Mother and A.M.E. The social worker testified about the various referrals made by the Cabinet, including: (1) parenting classes; (2) random drug screens; (3) psychological assessment services; (4) counseling; (5) visitation services; (6) medication compliance; (7) representative payee for SSI to Seven Counties Services; (8) no contact orders; and (9) appropriate housing. She concluded that there were no additional services that could have aided Mother in safe reunification with A.M.E.
Mother completed the requirements of her case plan; however, this does not guarantee reunification is in A.M.E.'s best interest. The family court must protect A.M.E.'s "right to a secure, stable family." KRS 620.010. It found that A.M.E. had too long been deprived of permanence, defined under Kentucky law as "a relationship between a child and an adult which is intended to last a lifetime, providing commitment and continuity in the child's relationships and a sense of belonging[.]" KRS 620.020(9).
The fourth factor the family court considered was the efforts and adjustments Mother has made in her circumstances, conduct, or conditions to make it in A.M.E.'s best interest to return to her within a reasonable time, considering A.M.E.'s age. KRS 625.090(3)(d). From May of 2012 until the trial, approximately four months, A.M.E. was removed from the home. Mother visited her only a few hours a week. And, with all the services provided, Mother showed no substantial improvement in her abilities to parent. Mother dated a person under a no-contact order with A.M.E., failed to take her psychological medications regularly, and refused to parent A.M.E. alone without a court order to do so. The results of the services provided did not make a noticeable change in Mother's behavior.
The fifth factor the family court considered was the physical, emotional, and mental health of A.M.E. and prospect for the improvement of her welfare if termination was ordered. KRS 625.090(3)(e). All aspects of A.M.E.'s health greatly improved since her removal. She is expected to continue to thrive in her current placement. The social worker and the foster mother testified that A.M.E. is attached to the foster family and they desire to adopt.
Finally, the final prong the family court considered was Mother's payment of reasonable child support, if financially able to do so. KRS 625.090(3)(f). Mother does pay child support. At the time of trial, her child support arrearage was $300. The best interest of the child test is merely a consideration of many factors; thus, Mother's payment of child support does not preclude a finding that it is in A.M.E.'s best interest to terminate parental rights. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010). The family court succinctly summarized, "[t]his court has weighed the other evidence adduced herein, including the mental health issues, and find this outweighs the payments of some child support." See Findings of Fact and Conclusions of Law entered August 31, 2016 at p. 20.
The family court found that the Cabinet proved by clear and convincing evidence that termination of Mother's parental rights was in A.M.E.'s best interest. The family court's findings are supported by substantial evidence in the record.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court, Family Division's, order terminating Mother's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT: Dennis C. Burke
Louisville, Kentucky BRIEF FOR APPELLEE: Mary Stewart Tansey
Louisville, Kentucky