Opinion
NO. 2017-CA-000327-ME NO. 2017-CA-000328-ME
02-09-2018
K.L.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND H.L.M., A MINOR CHILD APPELLEES AND K.L.W. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND J.G.M., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Shelley Santry Louisville, Kentucky BRIEF FOR APPELLEES: Mary Stewart Tansey Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 16-AD-500198 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 16-AD-500199 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON AND NICKELL, JUDGES. ACREE, JUDGE: K.L.W. (Mother) appeals the order and judgment terminating her parental rights to her two minor children, H.L.M. and J.G.M. Because the order of termination is supported by substantial evidence, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The minor children, H.L.M. and J.G.M., became involved with the Cabinet in July 2012 when a dependency, neglect and abuse petition was filed alleging Mother's paramour, C.B., held a gun to Mother's head, hit Mother in the face, and pushed her several times in front of the children, and that there was ongoing physical and emotional abuse in the household. Mother stipulated to neglect. Mother completed domestic violence classes, H.L.M. and J.G.M. were returned to Mother's custody, and the Cabinet closed the case.
In September 2014, the Cabinet filed an emergency custody order upon learning that Mother and children were residing in the paramour's home despite a no-contact order issued in a domestic violence (DVO) proceeding. There were also physical abuse allegations of J.G.M. by his natural father, W.J. The children were eight and nine years old. The court determined the children were neglected and placed at risk of physical abuse by Mother; H.L.M. and J.G.M. were committed to the Cabinet in August 2015.
The family court ordered Mother to participate in and complete the following reunification services: supervised visitation; psychological evaluation and compliance with all recommendations; protective parenting classes; medical evaluation; counseling; maintaining stable housing; and attendance at the Center for Women and Families to address domestic violence. Mother participated in her treatment plan to the best of her ability. Reunification services were ordered for each of the children's fathers as well.
H.L.M.'s father is C.W. and Mother's husband. J.G.M.'s father is W.J. The parental rights of both men were terminated in the proceeding in Jefferson Family Court. Neither man is a party to this appeal. Mother's former paramour, C.B., was the perpetrator of domestic violence against Mother mentioned in the first dependency petition. It was C.B.'s home that Mother and children were residing in despite a no-contact order as described in the second dependency petition.
When the children first entered the Cabinet's custody in September 2014, they presented with several issues. Certain aspects of H.L.M.'s behavior concerned the Cabinet including stealing, lack of honesty, emotional instability, developmental delays, and food hoarding. H.L.M. also reported sexual abuse by Mother's paramour. Mother was not supportive of H.L.M. in making the accusation.
J.G.M.'s behavior included stealing, inability to maintain appropriate behavioral boundaries including sexually inappropriate behaviors, aggression, defiance, impulsiveness, low self-esteem, and food hoarding. Each child engaged in therapy to address these issues. In therapy, J.G.M. initially identified Mother as "safe", but then later identified her as "unsafe." J.G.M. tearfully identified Mother's paramour as the "mean man" who hit Mother and "whipped him." When Mother told J.G.M. that his natural father was going to visit, the child was worried that the "man might try to kill" him. J.G.M.'s inappropriate behavior increased in severity in 2016, and he was referred to Our Lady of Peace for intensive mental health treatment.
Ultimately, the Cabinet filed a petition for the termination of Mother's parental rights in May 2016. At trial, the court heard testimony from Mother, the Cabinet, and therapists who provided services to the family.
By order entered January 20, 2017, the family court terminated parental rights to H.L.M. and J.G.M. It found clear and convincing evidence that: (1) the children had been previously adjudged neglected and were neglected consistent with KRS 600.020(1)(a); (2) termination was in the children's best interests; and (3) Mother and both Fathers were unfit to parent children. Mother now appeals.
Kentucky Revised Statutes.
Additional facts will be discussed as they become relevant.
STANDARD OF REVIEW
Where the sufficiency of the evidence is challenged on appeal, we are permitted to reverse only where the trial court's findings of facts were clearly erroneous. Cabinet for Health & Family Servs. v. I.W., 338 S.W.3d 295, 299 (Ky. App. 2010). All that is needed "is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted).
ANALYSIS
KRS 625.090 requires satisfaction by clear and convincing evidence of a three-part test before parental rights may be terminated. First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interests. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2).
Mother has raised several grounds upon which she believes the evidence was insufficient to prove the statutory prerequisites of termination.
Reasonable efforts for reunification
Mother argues the order of termination should be reversed because there is insufficient evidence that the Cabinet provided reasonable efforts and services in its attempt to reunite the family. She claims that after she was diagnosed with a serious mental health issue, the Cabinet failed to offer her any treatment or medication. Our review of the record indicates otherwise.
Prior to terminating a respondent's parental rights to a child in the custody of the Cabinet, a family court must consider "whether the [C]abinet has, prior to the filing of the petition[,] made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents[.]" KRS 625.090(3)(c). "'Reasonable efforts' means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community . . . which are necessary to enable the child to safely live at home[.]" KRS 620.020(11).
The testimony at trial revealed that Mother did not avail herself of the services offered as a part of her case plan. The Cabinet worker testified that the psychological evaluator's report stated Mother was uncooperative, and therefore, the report was incomplete. However, Mother was diagnosed with a major depressive disorder, and counseling and a medical evaluation were recommended. Mother was evaluated by Seven Counties Services for counseling and was recommended to complete protective parenting classes. The Cabinet referred Mother to attend the protective parenting classes on three separate occasions; each time, Mother was discharged for noncompliance. Mother's accountability statements for the classes were deficient because they were inconsistent with the children's version of events and she refused to take any responsibility for the situation. Mother also continued contact with violent partners. She was eventually removed from the protective parenting classes, but allowed to continue in Domestic Violence Survivors classes. Mother was removed from those classes due to excessive absences. The therapist at Seven Counties Services testified that Mother did not make any progress in her treatment.
The dependency petitions were based upon incidents of domestic violence committed by Mother's paramour, C.B., and J.G.M.'s father, W.J. In July 2016, domestic violence occurred between Mother and her husband, C.W. --------
Mother also did not complete the medical evaluation. Seven Counties Services requires attendance at three consecutive counseling sessions to be eligible for a medical evaluation. Mother failed to meet the threshold requirements.
Mother additionally claims the Cabinet prevented reunification between herself and her children by limiting her visitation to only 1-2 hours per week. However, as the caseworker explained, Mother was still maintaining contact with inappropriate people as evidenced by the bruises and injuries visible when she arrived at the supervised visits. As recently as three weeks prior to the termination trial, Mother appeared at a supervised visitation in the company of H.L.M.'s father, despite a domestic violence incident between them a few months earlier. The caseworker testified that there could not be any expansion of her visitation until Mother began making progress on her case plan. The supervised visitation that did occur was in the caseworker's office and was limited because the visits had to transpire within normal business hours. The caseworker attempted to set up visitation at a local center for women and families, but Mother did not do her part to follow through with that. Additionally, the children's therapist testified that she attempted to integrate Mother into the children's therapy sessions, but Mother would not take responsibility for any part of the situation and would not complete the recommended protective parenting classes. Mother also failed to appear at another scheduled session with the children.
Based on the foregoing, the family court's finding that the Cabinet provided reasonable efforts to reunite Mother with children is supported by substantial evidence. Mother's inability to complete the necessary steps to reunification with her children was due to her own volition and not any failure of the Cabinet. Findings under KRS 625 .090(2)(e) , (g) , and (j)
Mother next asserts that the circuit court's findings under KRS 625.090(2)(e), (g), and (j) are not supported by substantial evidence. We disagree.
KRS 625.090(2)(j) requires a showing that the children have been "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." The termination petition was filed in May 2016, and the children had been in the custody of the Cabinet since September 2014. Mother does not dispute that this requirement has been met, but insists that it is because the Cabinet failed to provide reasonable reunification services. As we have previously discussed, the Cabinet's efforts in this case were more than reasonable. Therefore, this argument is without merit, and this prong of the termination statute has been satisfied. See KRS 625.090(2) (termination shall only be ordered if the family court finds the existence of at least one of the statutory grounds enumerated in KRS 625.090(2)); Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014) (the family court need only find "one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists").
Although unnecessary, we will briefly address the other two parts of the second prong of the statute the circuit court found were met by clear and convincing evidence and with which Mother also takes issue, KRS 625.090(2)(e) and (g).
KRS 625.090(2)(e) provides that a parent is unfit if "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[.]" Mother fits this definition.
Mother asserts there is no evidence that she personally poses a threat to either of her children and, consequently, this section of the statute cannot be satisfied. However, the record demonstrates that the children were neglected in the underlying dependency actions because of Mother's violent relationships and her inability to protect the children from dangerous men in her life. H.L.M. reported that she was subject to sexual abuse by Mother's paramour. Mother has shown that she is incapable of providing parental protection to her children throughout the entirety of this action because she has not completed any of the reunification services offered to her and she continued to be involved with partners that exhibited violence toward her. Her children have been in the custody of the Cabinet since September 2014, and Mother has yet to change her situation. Accordingly, the circuit court's conclusion that Mother is incapable of providing essential parental care and protection to her children and that there is no reasonable expectation of improvement is supported by substantial evidence.
KRS 625.090(2)(g) says a parent is unfit if "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[.]"
Mother argues that this statutory requirement is not supported by any evidence because she was never ordered to pay any child support for her children. She claims she brought gifts to the children when she visited them. The evidence was that Mother was employed, but she had not provided the children with any material necessities of life while they had been in foster care. The court provided that the finding was based largely on Mother's significant mental health issues and her inability to work through the reunification services to change her lifestyle, rather than poverty alone. Such a finding is supported by the record.
Best interests
Lastly, Mother argues substantial evidence is lacking to support the finding that termination of her parental rights is in the children's best interests. Again, we disagree.
Termination must be in the children's best interests. KRS 625.090(1)(b). In evaluating the children's best interests, the family court is statutorily required to consider numerous factors, including "[t]he efforts and adjustments the parent has made in [her] circumstances, conduct, or conditions to make it in the child[ren]'s best interest to return [her] to [her] home within a reasonable period of time, considering the age of the child." KRS 625.090(3)(d). Of course, that is not the only statutory factor that must be taken into account. Others include: mental illness or intellectual disability; acts of abuse or neglect towards any child in the family; reasonable efforts made by the Cabinet to reunite the child with the parents; the child's physical, emotional, and mental health, and the possible improvement of the child's welfare should termination occur; and the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to so do. KRS 625.090(3).
Mother contends that aside from the services offered by the Cabinet and despite a serious, untreated mental health diagnosis, she was able to obtain employment and a residence in which she could care for the children. She claims to have distanced herself from her past violent relationships and to have maintained positive interactions with her children throughout her separation from them and, therefore, termination is not in the best interests of her children.
The circuit court found that Mother had not been compliant with the remedial orders arising from the dependency actions resulting in the children remaining in the Cabinet's custody for not less than twenty consecutive months prior to the termination trial. The statute provides that the efforts and adjustments of the parent occur within a reasonable time, and the court concluded the children had been deprived of stability and permanency for too long. This finding is not unreasonable. Further, despite being aware of her mental health diagnosis, Mother did not seek treatment though it was available to her. There were also domestic violence incidents occurring as recently as July 2016. The children's therapists testified that they would need a stable and consistently safe environment to continue their progress thus far made in therapy. Furthermore, the therapists, foster mother, and caseworker each testified that behavior of the children greatly improved since 2014, and that improvement is expected to continue. They were placed in a concurrent foster home and are attached to their foster mother.
Mother did not demonstrate to the court that she is capable of protecting the children from abuse or neglect while in her care. It is clear from the record the family court considered all the appropriate statutory factors in determining that termination of Mother's parental rights was in the children's best interests. Accordingly, we find no error.
CONCLUSION
For these reasons, the Jefferson Circuit Court's order of judgment terminating Mother's parental rights to H.L.M. and J.G.M. is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Shelley Santry
Louisville, Kentucky BRIEF FOR APPELLEES: Mary Stewart Tansey
Louisville, Kentucky