Opinion
NO. 2011-CA-001706-ME
02-22-2013
V .D.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND G.W.C., IV, A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: J. Ross Stinetorf Lexington, Kentucky BRIEF FOR APPELLEES: Terry L. Morrison Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCINDA CRONIN MASTERSON, JUDGE
ACTION NO. 11-AD-00024
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. CAPERTON, JUDGE: V.D.W. appeals from the August 19, 2011, judgment terminating her parental rights to G.W.C. On appeal, V.D.W. asserts that there was not substantial evidence in the record to support the trial court's findings; thus, the findings were clearly erroneous. After our review of the record, the parties' arguments, and the applicable law, we disagree with V.D.W. and, accordingly, affirm.
The action was tried before the trial court without a jury on June 17, 2011, and August 2, 2011. The petitioner, Cabinet for Health and Family Services, Commonwealth of Kentucky, (hereinafter the "Cabinet"), sought termination of parental rights of mother, V.D.W., and father. V.D.W. was before the trial court by service, appeared at trial and was represented by appointed counsel. The father was before the court by service, received notice of the trial and did not file an answer or enter an appearance. G.W.C. was before the court through service on the guardian ad litem, who appeared at trial on G.W.C.'s behalf and filed a report recommending termination of parental rights.
G.W.C. was first removed from V.D.W.'s care in January 2007 when he was almost six years old. According to that petition, V.D.W. was not cooperating with the Cabinet, was actively abusing drugs and alcohol, and had a history of mental issues including bi-polar disorder, PTSD, and OCD. G.W.C. was placed with the Cabinet for a week and then with his maternal grandmother.
The trial court noted that allegation that at the time of his birth, G.W.C. and V.D.W. tested positive for cocaine and marijuana, which V.D.W. disputed. However, the trial court made it abundantly clear that it was not relying on these allegations in reaching its decision; instead, it noted that it was undisputed that G.W.C. was not removed from V.D.W.'s care at birth.
For a few months thereafter, V.D.W.'s drug tests were mostly clean, with the occasionally positive test for opiates and benzodiazepines, which may have been prescribed for her. Then in April 2007, V.D.W. tested positive for marijuana and cocaine. On May 7, 2007, she stipulated to risk of neglect.
At about the same time, conflict started to mount between V.D.W. and her mother. At the grandmother's request, the trial court entered a series of protective orders and ordered that all of V.D.W.'s visits with G.W.C. be supervised. V.D.W. continued to use cocaine and her behavior became increasingly erratic; she violated court orders and continued to attempt to see G.W.C., raising concerns about his safety. Her case plan required mental health and substance abuse assessments and treatment.
V.D.W. asserts that her problems are the result of sexual abuse in the military. On July 24, 2007, V.D.W. entered the Lexington Veterans Affairs ("VA") Hospital for drug treatment. On intake she reported that she had been treated for psychological or emotional problems many times, including ten hospitalizations, and that she receives a pension for a psychiatric disability. V.D.W. left the Lexington VA Hospital and entered the VA Post Traumatic Stress Disorder program in Cincinnati, Ohio. At some point she left and her situation continued to deteriorate. The court entered a domestic violence order prohibiting any contact with the grandmother. In December 2007, the court awarded the grandmother permanent custody of G.W.C. and relieved the Cabinet of any further obligation to provide services to V.D.W.
V.D.W. continued to seek treatment. She underwent a VA treatment for PTSD, a cognitive behavioral parenting program, and completed a VA substance abuse program, which included drug testing, to confirm her ongoing sobriety. In April 2008, the court allowed V.D.W. to resume visits with G.W.C., to be arranged with the grandmother.
On July 7, 2008, the court returned custody to V.D.W. Shortly thereafter, the Cabinet received three new referrals. By March 2009, V.D.W. had enrolled G.W.C. in five different schools, had discontinued his therapy and prescriptions for ADHD, and he reported that she had hit him in the face with her fist. V.D.W. was not receiving any kind of mental health treatment and had relapsed. Again, G.W.C. was removed from V.D.W.'s care and placed with his grandmother. Almost immediately, V.D.W. and the grandmother were in conflict about G.W.C. Ultimately, G.W.C. was placed in the Cabinet's custody.
Throughout this time V.D.W. again actively used marijuana and cocaine as evidenced by the few drug tests in the record. The court found more disturbing her bizarre and aggressive behavior. The case was set for an adjudication hearing and after an extensive hearing in July 2009, the court found G.W.C. to be a neglected child as a result of V.D.W.'s continued drug abuse and untreated mental health issues. Her behavior became so aggressive that the court relieved the Cabinet of any obligation for home visits.
The court noted that V.D.W. suggested to G.W.C. that he was being mistreated while in foster care where there was no evidence of such mistreatment.
Planning to enter treatment in Michigan, V.D.W. asked that G.W.C. be moved to Michigan to be cared for by her cousin. However, after this request, V.D.W.'s behavior became extremely threatening and the cousin was so alarmed that she wished no further contact from V.D.W.
In August 2009, V.D.W. entered a VA domiciliary in Michigan where she stayed for approximately a month. Then she entered a PTSD treatment program in Ft. Thomas, Kentucky, where she stayed for about six weeks until discharged for noncompliance with the program's rules. V.D.W. testified that, to the contrary, she was on her best behavior. She then went to a psychiatric ward in Cincinnati for approximately a week. At the end of October, V.D.W. went to Nashville for comprehensive treatment of her PTSD, "sexual abuse trauma psychotherapy," and substance abuse. She has received consistent treatment there.
V.D.W.'s VA substance abuse counselor, LaToya Younger, testified that today V.D.W. is clean and sober, in extended aftercare, and has not had relapses while treated in Nashville. At the review on April 19, 2010, the Cabinet asked to have the goal changed to adoption and cited V.D.W.'s lack of demonstrated progress on her case plan, the extended time G.W.C. had been out of her care, and his remarkable progress in his foster care home. The guardian ad litem strongly concurred with the goal change, noting especially V.D.W.'s history of serious mental illness, instability, and G.W.C.'s happiness in his foster home. The court set the goal change for a hearing.
The record contains several letters from VA providers attesting to V.D.W.'s progress in recovery. The court noted that while this is the case, V.D.W. consistently resisted release of her complete VA records. While receiving treatment in Nashville, V.D.W. retained at least three attorneys, all of whom resigned in short order. On the heels of the March 1st hearing, V.D.W.'s attorney became so alarmed at her reactions to having custody returned that he filed a motion to withdraw, citing that it was not in the best interest of the attorney or V.D.W. to be present together at his office or elsewhere.
On August 2, 2010, the court changed the goal to adoption. Since the goal change, V.D.W. has had only minimal contact with the Cabinet and has been prohibited from seeing G.W.C. since August 2009. V.D.W. admitted that she violated the court's protective order and saw G.W.C. on several occasions in the spring of 2010 with the agreement of the foster parent. G.W.C. was removed from that foster home in May 2010 and has been in a pre-adoptive home since then.
The court then ordered that V.D.W. execute releases so that all of her medical records would be provided to the Cabinet. V.D.W. released some of her records two months after she was ordered to do; the remaining medical records provided to the trial court were produced two days before the termination of parental rights hearing.
The court, upon review of V.D.W.'s medical records, determined that the most that can be said is that she is currently sober since entering the program in Nashville. The court commended V.D.W. on this accomplishment but noted that there were remaining mental health issues; moreover, extensive treatment for PTSD might be impossible given that she has to take medication for pain.
Dr. Charles Creson, V.D.W.'s rape trauma syndrome therapist, prepared a very compelling report stating that V.D.W. was undergoing treatment for PTSD but could not appropriately engage in healing due to the stress of the court proceeding with her child. The court interpreted Dr. Creson's report as evidence that V.D.W. was still suffering from PTSD and that Dr. Creson's solution would be to return G.W.C. to V.D.W. in order for her to heal. The obvious problem with this, the court noted, was that G.W.C. could not be returned until V.D.W. was better; with the inquiry being what was best for the child, G.W.C., and not what was best for the mother, V.D.W.
The court discussed the failed experience the first time G.W.C. was returned to V.D.W. in 2008. The court had returned G.W.C. to V.D.W. based on the VA reports of her successes, particularly her documented sobriety and active participation in treatment for PTSD and addictions. The court found the recent treatment reports hauntingly similar to the reports from 2008, describing her progress in the same glowing terms. Based on the similarities, the court found that it was too risky to return G.W.C. to V.D.W. considering the gravity of her mental health challenges.
The court expressed its empathy with V.D.W.'s plight but found that there was not a reasonable expectation of enough improvement in the foreseeable future which would allow G.W.C. to return to her care. Moreover, G.W.C. was thriving, notwithstanding enduring years of V.D.W.'s erratic behavior. While she has some exceptional qualities and clearly adores him, he suffered during her frequent periods of instability. G.W.C. wished to be adopted and have the opportunity to be raised in an emotionally healthy environment.
Based upon these facts the court found that G.W.C. is an abused or neglected child as defined by Kentucky Revised Statutes (KRS) 600.020(1); that mother and father for periods of not less than six months, have continuously failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child and there is no reasonable expectation of improvement in parental care and protection considering the age of the child. Mother and father, for reasons other than poverty alone, have continuously failed to provide or are incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and there is no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future considering the age of the child. The court found that the child has been in foster care under the responsibility of the Cabinet for more than fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights. The court held that the Cabinet has offered or provided all reasonable services that are likely to permit reunification of the family, and that termination of parental rights is in the best interest of the child. The court determined that the Cabinet is the agency best qualified to receive custody of the child.
The court then directed the Cabinet to supplement the record with documents form G.W.C.'s juvenile court file as directed at trial. It is from this judgment that V.D.W. now appeals.
On appeal, the parties present one issue, namely, whether the trial court's findings were supported by substantial evidence, and were thus not clearly erroneous. In support of her argument that the findings were unsupported by substantial evidence, V.D.W. asserts that the Cabinet failed to prove the elements contained in KRS 625.090(2)(e) and (g) by clear and convincing evidence; that the cabinet failed to prove any of the factors enumerated in KRS 625.090(3) to establish that termination would be in the best interest of the child; and that V.D.W. proved by a preponderance of the evidence that the child will not continue to be abused or neglected if returned to her. The Cabinet disagrees with V.D.W.'s claims and instead asserts that the trial court's findings were not clearly erroneous and were supported by substantial evidence in the record.
(e) 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. . . .
(g) That 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. . . .
Prior to addressing the arguments of the parties on appeal, we note that considerable deference is given to the findings of the trial court in a termination of parental rights case, and the court has a great deal of discretion to determine whether a child fits within the abused or neglected category, and whether the abused or neglected condition warrants a termination of parental rights. Department of Human Resources v. Moore, 552 S.W.2d 673 (Ky. App. 1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in Kentucky Rules of Civil Procedure (CR) 52.01, based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
As set forth in Kentucky's termination statute, KRS 625.090, a court may involuntarily terminate parental rights if the court finds by clear and convincing evidence that a three-prong test has been met. First, the child must have been found to have been an abused or neglected child as defined by KRS 600.020, or the circuit court must find that the child's parent has been criminally convicted of abusing any child and that the abuse or neglect is likely to occur to the child that is the subject of the instant termination action if the parental rights are not terminated. KRS 625.090(1)(a). Secondly, the court must find that at least one of a number of specified grounds of parental unfitness exists. KRS 625.090(2). Finally, termination of parental rights must be in the child's best interest. KRS 625.090(1)(b).
KRS 625.090 sets forth:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or(b) Termination would be in the best interest of the child.
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(e) 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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(g) That 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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(j) That 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.
(a) Mental illness as defined by KRS 202A.011(9), or mental retardation 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;(4) If the child has been placed with the cabinet, the parent may present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.
(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.
(5) If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent the court in its discretion may determine not to terminate parental rights.
(6) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days either:
(a) Terminating the right of the parent; or
(b) Dismissing the petition and stating whether the child shall be returned to the parent or shall remain in the custody of the state.
KRS 600.020(1) sets forth the definition of an abused or neglected child:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when his parent, guardian, or other person exercising custodial control or supervision of the child:
(a) Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
(b) Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
(c) Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;
(d) Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
(e) Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
(f) Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
(g) Abandons or exploits the child;
(h) Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child; or
(i) Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months[.]
In making such findings, the trial court has a great deal of discretion in an involuntary termination of parental rights action. M.P.S. v. Cab't for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Thus, the findings of the court below will not be disturbed unless no substantial evidence in the record exists to support its findings. Id. Moreover, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Murphy v. Murphy, 272 S.W.3d 864 (Ky. App. 2008).
Sub judice, V.D.W. argues that the Cabinet did not produce sufficient evidence through testimony or documentation that could support the court's findings, as only the Cabinet's social worker testified to what was contained within the Cabinet's records; and V.D.W. supplied six witnesses, two from the VA and four lay witnesses to establish that the child would no longer be abused if returned to her care. We do not find this argument persuasive. "That one side presents more testimony than the other, or that one side's evidence seems superior to the other's, at least from the appellate perspective, has no bearing." D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 114 (Ky. 2012). The court was presented the voluminous record from the Cabinet's services to V.D.W., including the juvenile court record, in addition to the medical records provided by V.D.W. As noted in D.G.R.:
The termination statute, KRS 625.090, establishes different standards of proof for the Cabinet and the parents whose rights are to be terminated when the court considers the best interest of a child. While the Cabinet must prove the necessary statutory allegations by clear and convincing evidence in order for the trial court to terminate parental rights, KRS 625.090(1) and (2), the parents must only present proof by a preponderance of the evidence that the child will not be abused or neglected in the future in order to allow the trial court to exercise its discretion not to terminate, KRS 625.090(5). The Cabinet did offer proof sufficient to meet the statutory elements in KRS 625.090(1)(a) and (2), and it offered proof of several of the factors for making the best interests determination in KRS 625.090(1)(b); this was followed by responsive proof by the parents. However, it is not until the conclusion of all the proof that a trial court must apply the terms of the statute, KRS 625.090(6), and certainly any of the proof it hears can weigh on its application of the statutory factors.D.G.R. at 111.
As our courts have repeatedly held, clear and convincing proof does not necessarily mean uncontradicted proof. Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (Ky. App. 1934). 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. Id. It is not the province of this court to review the factual evidence in a termination action de novo, and we decline to do so in this instance. Below, the court had the discretion to consider various factors, including the ongoing mental health challenges facing V.D.W. as well as the possibility of repetition of past neglect. See G.G .L. v. Cab't for Human Resources, 686 S.W.2d 826, 828 (Ky. App. 1985). Ultimately, the evidence submitted below was of a nature sufficient enough to support the decision of the court.
Finding no error, we affirm the August 19, 2011, judgment terminating V.D.W.'s parental rights to G.W.C.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Ross Stinetorf
Lexington, Kentucky
BRIEF FOR APPELLEES: Terry L. Morrison
Lexington, Kentucky