R.S.W. v. HONORABLE LINDA RAE BRAMLAGE, FAMILY COURT JUDGE CABINET FOR HEALTH AND FAMILY SERVICES; A.M.J.; J.S.W.; K.L.W.; and K.S.W.
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RENDERED:
JANUARY 5, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000597-ME
R.S.W.
v.
APPELLANT
APPEAL FROM GALLATIN CIRCUIT COURT
HONORABLE LINDA RAE BRAMLAGE, FAMILY COURT JUDGE
ACTION NO. 04-AD-00004
CABINET FOR HEALTH AND
FAMILY SERVICES; A.M.J.;
J.S.W.; K.L.W.; and K.S.W.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER1 AND DIXON, JUDGES; PAISLEY,2 SENIOR JUDGE.
DIXON, JUDGE:
Appellant, R.S.W.3, appeals from an order of the
Gallatin Family Court involuntarily terminating his parental
rights to his three minor children.
Because the findings of the
1
Judge David A. Barber concurred in this opinion prior to the expiration of
his term of office on December 31, 2006. Release of the opinion was delayed
by administrative handling.
2
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
3
Because this opinion addresses allegations of parental unfitness and child
abuse, we shall use initials in place of names to protect the identities of
the parents and children involved.
Family Court are not clearly erroneous, we affirm its order
terminating R.S.W.’s parental rights.
R.S.W. and S.L.P.W. were married in December 1999,
approximately fourteen months after the birth of their first
child, J.S.W.
19, 2003.
The twins, K.L.W. and K.S.W. were born on March
The family, along with another child belonging to
S.L.P.W., resided in a trailer located in Gallatin County,
Kentucky.
The Cabinet for Health and Family Services
(hereinafter “the Cabinet”) first became involved in this matter
on December 17, 2003, following an incident at the family
residence.
R.S.W., impaired by drugs and alcohol, drove his car
into the side of the trailer following an argument with S.L.P.W.
S.L.P.W. and the children were inside the trailer at the time of
the incident, and, in fact, J.S.W. was taken to the hospital
with minor injuries.
R.S.W. fled the scene before police
arrived.
The following day, the children were placed in the
custody of the Cabinet.
On January 25, 2004, R.S.W. turned
himself into authorities and was subsequently convicted of
first-degree wanton endangerment and sentenced to three years’
imprisonment.
He was scheduled to be released in July 2006
On March 6, 2004, the Gallatin Family Court made a
finding of abuse against R.S.W. and a finding of neglect against
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S.L.P.W.
Following the dispositional hearing on March 18, 2004,
R.S.W. was ordered to follow the recommendations set forth in
the Cabinet’s report, as well as to have no contact with his
children.
On October 21, 2004, the family court entered an order
waiving reasonable efforts to reunite the children with either
S.L.P.W. or R.S.W., and changed the permanency goal for the
children to adoption.
The Cabinet thereafter filed a petition
for involuntary termination of parental rights and appointment
of a guardian ad litem.4
Following a trial in November 2005, the
family court issued its findings of fact and conclusions of law
terminating R.S.W. and S.L.P.W.’s parental rights.
R.S.W.
appealed to this Court as a matter of law.
The sole issue presented on appeal is whether the
family court erred in finding that the Cabinet made reasonable
efforts to reunify R.S.W with his children.
R.S.W. claims that
the Cabinet failed to make any efforts to reunite him with his
family from the time that the children were removed from the
household in December 2003 until the family court waived any
further efforts at reunification in October 2004, and, in fact,
intentionally thwarted any effort at such.
4
Although the involuntary termination action was filed against both parents,
S.L.P.W. had previously executed a voluntary petition to terminate her
parental rights with respect to all four of her children.
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KRS 625.090, which governs in cases of involuntary
termination of parental rights, provides that in order for such
termination to occur, the court must find by clear and
convincing evidence that the child either is an abused or
neglected child, and that termination is in the child’s best
interest.
In determining the best interest of the child and the
existence of a ground for termination, the trial court considers
a number of factors, including “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 . . . .”
KRS 625.090(3)(c).
The relevant provisions of KRS 620.020 are
as follows:
“Reasonable efforts” are defined as: The
exercise of ordinary diligence and care by
the department to utilize all preventative
and reunification services available to the
community in accordance with the state plan
for Public Law 96-272 which are necessary to
enable the child to live safely at home.
KRS 620.020(10)
“Reunification services” are defined
as:[R]emedial and preventative services
which are designated to strengthen the
family unit, to secure reunification of the
family and child where appropriate, as
quickly as practicable, and to prevent the
future removal of the child from the family.
KRS 620.020(11).
At trial, the Cabinet’s social worker assigned to the
case, Mel Jones, testified as to the services the Cabinet
offered R.S.W.
Jones stated that she first met with R.S.W. on
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January 9, 2004, when he checked himself into Eastern State
Hospital.
At that time, R.S.W.’s problems were identified as
substance abuse, mental health, and anger management.
The
Cabinet offered R.S.W. a treatment plan including participation
in individual and group counseling, medications, parenting
classes, anger management, and completion of a psychological
evaluation, as well as recommendations upon discharge.
Following R.S.W.’s discharge from Eastern State, he
turned himself into police and was incarcerated.
He was
detained at the Carroll County Detention Center where the only
available services were Alcoholics Anonymous and Narcotics
Anonymous.
Although those services were offered to R.S.W., he
refused to sign a release to permit the Cabinet to determine
whether he had participated in such.
Jones further testified that R.S.W. rejected a second
treatment plan that was offered to him in July 2004.
However,
Jones stated that she nevertheless continued to visit him in
jail and attempted treatment-planning conferences until the
family court waived any additional reasonable efforts to reunite
the family.
R.S.W. relies on L.B.A. v. Cabinet,731 S.W.2d 834 (Ky.
App. 1987) for the proposition:
The Court has frequently emphasized the
importance of family. The rights to
conceive and raise one’s children have been
-5-
deemed “essential,” . . . “basic civil
rights of man,” . . . and “[r]ights far more
precious . . . than property rights.” The
integrity of the family unit has found
protection in the Due Process Clause of the
Fourteenth Amendment . . . and the Ninth
Amendment. (Quoting Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31
L.Ed.2d 551 (1972).
R.S.W. believes that the Cabinet took an “all or nothing”
approach with his parental rights, violating both a statutory
mandate and his constitutional rights.
We disagree.
To be clear, Jones admitted at the hearing that she
did not like R.S.W., and that she would do anything in her power
to make sure the children were not harmed again.
Jones noted
that the children were initially placed with R.S.W.’s parents,
but were subsequently removed after the parents violated a court
order prohibiting the children from having contact with R.S.W.
Jones noted that no other family members offered to take the
children.
While R.S.W. characterizes Jones’ actions as an
attempt to thwart any reunification, we are of the opinion that
the Cabinet did, in fact, make all reasonable efforts in
accordance with the statute.
Even R.S.W. testified at trial
that he did not know what else Jones or the Cabinet could have
done to help him.
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The standard of review in parental rights termination
cases is set forth in M.P.S. v. Cabinet for Human Resources, 979
S.W.2d 114, 116-117 (1998):
The trial court has a great deal of discretion in
determining whether a child fits within the
abused or neglected category and whether such
abuse or neglect warrants termination.
Department for Human Resources v. Moore, Ky.
App., 552 S.W.2d 672, 675 (1977). This Court’s
standard of review . . . is confined to the
clearly erroneous standard in 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.
See also R.C.R. v. Commonwealth, Cabinet for Human
Resources, 988 S.W.2d 36 (Ky. App. 1999).
Contrary to R.S.W.’s assertions, the record is replete
with substantial evidence to support the trial court’s findings.
The trial court found that R.S.W. had engaged in an
“irresponsible, violent and criminal lifestyle,” which led to
his incarceration; that R.S.W. was charged and convicted of
promoting contraband for attempting to make alcohol while
incarcerated; that R.S.W. has continued to have a drug and
alcohol problem for which he has refused the Cabinet’s treatment
plans; and that there was “no reasonable expectation of
improvement in the parental care and protection considering the
age of the children.”
Accordingly, we find no reversible error
in the trial court’s termination of R.S.W.’s parental rights.
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The decision of the Gallatin Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marcus D. Gale
Covington, Kentucky
Cynthia Kloeker
Covington, Kentucky
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