Opinion
NO. 2017-CA-001596-ME NO. 2017-CA-001597-ME
06-29-2018
M.K.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; AND D.J., an infant APPELLEES AND M.K.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; AND S.B., an infant; APPELLEES
BRIEF FOR APPELLANT: Christopher D. Wilkie Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 16-AD-00277 APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 16-AD-00276 OPINION
AFFIRMING
** ** ** ** **
BEFORE: D. LAMBERT, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: M.K.B. ("Mother") appeals from the August 30, 2017, orders of the Fayette Circuit Court, Family Division, terminating her parental rights to S.B. and D.J. On appeal, Mother contends the trial court erred because there was insufficient evidence supporting its finding of neglect or abuse. Mother also contends the Cabinet for Health and Family Services ("the Cabinet") did not provide substantial evidence supporting its finding TPR was in the children's best interest. Following a careful review, we affirm.
On September 26, 2016, the Cabinet filed petitions to involuntarily terminate Mother's parental rights to her two minor children. The petitions alleged S.B. and D.J. were abused or neglected children. One petition sought TPR as to S.B., a daughter, born on May 18, 2006, in Fayette County, Kentucky, when Mother was fifteen years old. The second petition sought TPR as to D.J., a son, born on August 24, 2012, in Fayette County, Kentucky. The Cabinet filed separate petitions for S.B. and D.J. as to the putative father.
In August 2008, W.D.J. was adjudged to be S.B.'s father in Case Number 07-J-1394. His only participation in the proceeding was submitting to the paternity test.
In December 2014, W.D.J. was determined to be the father of D.J. in Case Number 13-J-1136.
W.D.J. appealed separately in Case Numbers 2017-CA-001591-ME and 2017-CA-001592-ME, which were consolidated for briefing purposes. W.D.J. refers to the children as "S.M.K.B." and "D.G.K.J." in his appeals.
The Cabinet first became involved with the family in 2007, when Mother was still a juvenile. At the time, the Cabinet received a referral indicating Mother was leaving S.B. with the baby's maternal grandmother for long periods of time with no contact. Mother was also using marijuana and was involved with truancy court. After the Cabinet filed a neglect petition, S.B. was adjudged to be neglected in October 2007, and maternal grandmother was awarded temporary custody of S.B. Mother was placed in the Cabinet's custody through a dependency, neglect, and abuse action at the same time and was referred to a chemical dependency program. After completing the program, because she was preparing to attend college, Mother gave permanent custody of S.B. to maternal grandmother in November 2008.
In July 2015, the Cabinet received a new referral for the family, this time regarding maternal grandmother's home. Multiple relatives with Cabinet history were living at the residence, and maternal grandmother was abusing drugs. On July 20, 2015, the Cabinet placed S.B. in foster care and on August 3, 2015, the trial court adjudged her to be neglected. The Cabinet notified Mother at the time to let her know her daughter was in foster care and offered her a case plan for reunification. Mother initially refused to come in to receive the plan, refused to visit, and refused to drug screen. When she eventually submitted to a drug screen, she tested positive for cocaine and marijuana.
Mother's son, D.J., had lived with her since his birth. Because of the positive drug screen, the Cabinet requested emergency custody of D.J. Although there were no allegations against him in the current referral, Father was not a suitable placement option due to his history of domestic violence and criminal record. The trial court granted emergency custody to the Cabinet on August 27, 2015, and D.J. was adjudged neglected on August 31, 2015.
Mother received her case plan for reunification on August 28, 2015. She was asked to: complete a substance abuse assessment and follow all recommendations; complete a psychosocial assessment and follow all recommendations; complete a parenting assessment; submit to drug screens; participate in supervised visitations; create a relapse prevention program; and, seek a sober support system and demonstrate a changed lifestyle. The Cabinet offered free drug screens and referrals to community partners to help her complete these tasks. Mother was compliant with parts of her case plan. She reported going to Alcoholics Anonymous or Narcotics Anonymous weekly but did not provide proof of attendance. She also completed an intensive out-patient rehabilitation program. However, she continued to test positive for cocaine throughout the program. Mother was ultimately dismissed from her parenting and substance abuse classes for absences and ongoing positive drug tests.
Both children were committed to the Cabinet on October 12, 2015. The Cabinet gave Mother the opportunity to visit the children every two weeks for two hours. However, after Mother had several positive drug screens, the Cabinet suspended her visits on June 6, 2016, until she could produce thirty days of negative drug screen results. She was unable to do so and did not visit the children again. On August 29, 2016, the Cabinet changed the permanency goal from "return to parent" to "adoption." The Cabinet petitioned for involuntary TPR of both parents as to both children on September 26, 2016.
The Cabinet did not have contact with either parent after the permanency goal change in August 2016 and May 2017. The Cabinet provided Mother with a new case plan, which consisted of completing the tasks from the original unfinished plan and renewing her drug testing order. As of April 2017, the trial court had ordered Mother to pay child support of $299 per month. Nonetheless, despite having a full-time job, Mother was in arrears of $4,385.11. Mother completed a parenting class in June 2017. She resumed drug testing but continued to test positive for marijuana until August 2017.
Following a bench trial on the involuntary TPR petitions, the trial court issued its findings of fact and terminated Mother's rights to both children on August 30, 2017. These appeals followed.
Our review of TPR petitions is confined to the clearly erroneous standard set forth in CR 52.01, requiring clear and convincing evidence. Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). As this Court has previously stated, clear and convincing proof does not mean uncontradicted proof. C.H. v. Cabinet for Health and Family Services, 399 S.W.3d 782, 788 (Ky. App. 2013) (citation omitted). Rather, 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." V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)). "In a trial without a jury, the findings of the trial court, if supported by sufficient evidence, cannot be set aside unless they are found to be 'clearly erroneous.' This principle recognizes that the trial court had the opportunity to judge the witnesses' credibility." R.C.R. v. Commonwealth, Cabinet for Health and Family Services, 988 S.W.2d 36, 39 (Ky. App. 1998) (citations omitted).
Kentucky Rules of Civil Procedure.
A trial court has broad discretion in determining whether a child satisfies the definition of an abused or neglected child and whether the abuse or neglect is sufficient to warrant TPR. See id. at 38 (citing Dep't for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977)). We will not substitute our judgment for the trial court's findings of fact unless no substantial evidence in the record supports such findings. V.S., 706 S.W.2d at 424. We review the application of the law to the facts de novo. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010).
TPR, while not a criminal matter, touches on a parent's constitutional right to raise a child, and therefore, requires clear adherence to governing statutes. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). With these standards in mind, we conclude the trial court supported its ruling with clear and convincing evidence resulting in Mother's TPR.
Mother contends the trial court erred because the Cabinet did not sufficiently prove neglect, TPR as to Mother was in S.B.'s and D.J.'s best interest, and, Mother cannot provide for the children. We disagree.
The Cabinet must "make every effort to reunite . . . families and support them . . . to keep the families together as units." V.S., 706 S.W.2d at 424. When the Cabinet's efforts fail, termination proceedings may begin. KRS 625.090 governs involuntary TPR and provides strict guidelines for the proceedings. The statute sets out a three-pronged test for TPR. M.P.R. v. Cabinet for Health and Family Services, 520 S.W.3d 409, 412 (Ky. App. 2017). First, the trial court must find the child is or has been adjudged abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Next, the trial court must find one or more grounds enumerated in KRS 625.090(2)(a)-(j) exists. Finally, the trial court must find TPR is in the child's best interest under KRS 625.090(3).
Kentucky Revised Statutes.
In 2018, the General Assembly amended KRS Chapters 620 and 625. However, the relevant provisions cited in this Opinion remained unchanged. --------
As a predicate to ordering involuntary TPR, a trial court must find, clearly and convincingly, the child was previously adjudicated an abused or neglected child or make such a finding in the current proceeding. KRS 625.090(1)(a)1. and 2. The trial court correctly found both S.B. and D.J. were neglected as defined by KRS 600.020(1), due to both parents' absences and drug abuse. S.B. was first adjudged neglected in October 2007 and again on August 3, 2015. The trial court adjudged D.J. neglected on August 31, 2015. Mother does not dispute these findings. Accordingly, the first prong of the test for TPR as to Mother has been satisfied.
In the second prong of the test, the trial court must find evidence of at least one ground listed in KRS 625.090(2). The trial court relied on KRS 625.090(2)(a), (e), and (g) as grounds for TPR as to Mother.
The first ground applies to Mother's TPR action if "the parent has abandoned the child for a period of not less than ninety (90) days[.]" KRS 625.090(2)(a). The trial court found Mother abandoned both children for at least ninety days when she ceased visitation in June 2016 and did not attend her court appearances in July and August of 2016. Mother testified she repeatedly tried to contact her case worker but could not reach her by phone. The trial court did not find her testimony persuasive. Mother was then out of contact with the Cabinet until April 2017, exceeding the ninety-day minimum for abandonment. We discern no error in the trial court's determination of abandonment.
Next, the trial court found Mother, "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). By the time of trial, both children had been out of Mother's custody nearly two years. In addition to abandoning the children, the trial court found Mother did not sufficiently progress toward goals identified in the Cabinet's reunification plan, to allow the children to safely return to her custody.
The trial court emphasized Mother's failure to progress toward resolution of her drug abuse and dependency. Although she completed some rehabilitative services, she still abused marijuana. Mother testified she had started attending Alcoholics Anonymous or Narcotics Anonymous regularly again since May 2017. However, she provided no documentation to support her claim. Mother was unable to maintain her sobriety, failed to seek further treatment, and unsuccessfully engaged in other services offered to her by the Cabinet. She was also behind in child support payments and had inconsistently contributed to the children's economic well-being. Therefore, the trial court correctly determined Mother failed to provide essential care for the children for more than six months.
Finally, the trial court found for reasons other than poverty alone, the parents have continuously or repeatedly failed or are incapable of providing essential food, clothing, shelter, medical care, or education and that there is no reasonable expectation of significant improvement in the immediately foreseeable future considering the ages of the children. KRS 625.090(2)(g). The analysis for this finding is similar to KRS 625.090(2)(e). Based on the evidence presented during the trial, as discussed above, we discern no error in the trial court's determination on this ground.
There is an additional requirement when analyzing TPR based on the grounds provided in either KRS 625.090(2)(e) or (g): "where the lack of ability to provide parental care and protection is the basis for involuntary termination, the trial court must find that there is no reasonable expectation of improvement in parental care and protection[.]" M.E.C., 254 S.W.3d at 855 (quoting Forester v. Forester, 979 S.W.2d 928, 930 (Ky. App. 1998)). The Cabinet must evaluate the parent's ability to improve and provide adequate parenting in the future, rather than rely solely on past conduct. Id. The court should consider the ages of the children and the parent should demonstrate more significant and quicker progress when younger children are subject to TPR. Id. Although the trial court may not rely entirely on past behavior, it is indicative of future conduct, particularly when, as here, the Cabinet has already offered repeated opportunities for improvement over many years. Mother had not completed her case plan and was unable to maintain her sobriety even with the many resources made available to her. These findings support the trial court's conclusion of no reasonable expectation Mother would improve in the future.
Mother's primary argument is the Cabinet failed to meet its burden in proving the last prong of the test by not demonstrating TPR was in the best interests of the children. When determining best interests, the trial court must consider six different factors, as enumerated in KRS 625.090(3):
(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.
The first factor focuses on parental mental health or intellectual disability. There is no evidence in the record of a mental health issue or intellectual disability for Mother; therefore, the factor does not apply.
The trial court's finding regarding the second factor, addressing any neglect toward any child in the family, is undisputed by Mother. KRS 625.090(3)(b). This factor has been met.
The third factor is whether the Cabinet made reasonable efforts to reunite children with parents. KRS 625.090(3)(c). Here, the Cabinet provided both parents reasonable services to facilitate reunification as demonstrated by testimony about the case plan developed to reunify the family. Despite these efforts, Mother did not complete her case plan. The trial court found the Cabinet provided Mother multiple case plans, free drug screening, supervised visitations, and referrals to community partners. We hold the trial court did not err in finding the Cabinet reasonably tried to reunite the family prior to ordering TPR.
The fourth factor under KRS 625.090(3)(d) is adjustments made by the parent. There is sufficient evidence, given the children's ages, of little expectation of improvement in Mother's circumstances, conduct, or conditions within a reasonable time. The primary issue is Mother's inability to maintain sobriety for an extended period of time. Her first child, S.B., had been out of her custody for over seven years by the time the Cabinet initiated this action. She had dependency issues then and, despite being offered resources, continued to have positive drug screens. Mother has been unable to complete the rest of her case plan in a timely manner. The trial court did not err in finding Mother's efforts to improve were untimely and insufficient.
For the fifth factor, the physical, mental, and emotional health of the child and prospects for improvements to the child's welfare, the trial court considered the children's foster care placement. KRS 625.090(3)(e). S.B. entered Cabinet custody on July 20, 2015. D.J. entered Cabinet custody on August 27, 2015. The children are thriving in foster care. They have been placed together, and the older child is doing well in school. Both children have bonded with their foster mother, and on entry of TPR, foster mother intends to begin the adoption process to provide a permanent stable home. The trial court did not err in finding this factor was met.
Finally, the last factor under KRS 625.090(3) is any failure to pay a reasonable portion of child support given the parent's financial resources. KRS 625.090(3)(f). Mother has failed to financially provide for the children since being ordered to pay child support and has amassed a substantial arrearage, despite having consistent full-time employment. As such, the trial court did not err in finding Mother failed to pay a reasonable portion of substitute physical care and maintenance although she was financially able to do so.
Considering the trial court's findings on these six factors and other evidence in this case, the trial court did not err by finding TPR as to Mother is in the children's best interests. Mother's assertions to the contrary are without merit.
There is substantial evidence supporting Mother's TPR. For a period of not less than six months, Mother failed or was substantially incapable of providing essential care for the children, she was unable to financially support the children during these proceedings, and consistently tested positive for marijuana use. During a period of ninety days or more she had no contact with the children or the Cabinet. Risking further instability while awaiting parental compliance would not be in the best interests of the children. V.S., 706 S.W.2d at 424 ("The risks are too great to experiment further with the children's future."). The trial court's determination of abuse and neglect and subsequent TPR as to Mother satisfied statutory requirements, was in the children's best interests, and was supported by clear and convincing evidence.
For the foregoing reasons, the orders of the Fayette Circuit Court, Family Division, terminating Mother's parental rights to S.B. and D.J., and granting custody to the Cabinet, are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher D. Wilkie
Lexington, Kentucky BRIEF FOR APPELLEE: Tiffany L. Yahr
Lexington, Kentucky