J.A.D. v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; C.M.D., JR.; M.T.D.; H.A.A.; S.F.A. A.M.A.
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RENDERED: AUGUST 3, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001614-ME
J.A.D.
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 06-AD-500056
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; C.M.D., JR.; M.T.D.; H.A.A.; S.F.A.
A.M.A.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND THOMPSON; JUDGES; GRAVES,1 SENIOR JUDGE.
GRAVES, SENIOR JUDGE: J.A.D. appeals from orders of the Jefferson Circuit Court
terminating her parental rights to her children C.M.D., Jr.; M.T.D.; H.A.A.; S.F.A.; and
A.M.A.2 For the reasons stated below, we affirm.
1
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute
21.580.
2
To protect the privacy of the minor children we use the initials of the principal parties involved
in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
J.A.D. is the mother of C.M.D., Jr., a male born December 19, 1994;
M.T.D., a male born September 9, 1996; H.A.A., a female born September 8, 2001;
S.F.A., a female born September 8, 2001; and A.M.A, a female born September 30, 2002.
C.M.D., Sr. is the legal father of the five children inasmuch as the children were born
during his marriage to J.A.D. However, T.A.A. is the putative father of H.A.A., S.F.A.
and A.M.A. and was thus named as a party to the termination proceedings pursuant to
KRS3 625.065.4
The present petition was filed February 14, 2006.5 The petition sought to
terminate the parental rights to the children of J.A.D., C.M.D., Sr., and T.A.A. A hearing
on the petition was held on July 6, 2006. Following the hearing the family court issued
orders granting the Cabinet's petition. This appeal by J.A.D. followed.
STANDARD OF REVIEW
Our standard of review in termination of parental rights cases is set forth in
M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky.App. 1998), as
follows:
The trial court has a great deal of discretion in determining
whether the child fits within the abused or neglected category
and whether the abuse or neglect warrants termination.
Department for Human Resources v. Moore, 552 S.W.2d 672,
3
4
Kentucky Revised Statutes.
C.M.D., Sr. and T.A.A are not named as parties to the present appeal.
5
Prior petitions had been filed by the Cabinet involving some or all of the children on January
19, 2001; October 8, 2002; October 21, 2002; November 29, 2004; and October 27, 2005.
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675 (Ky.App. 1977). This Court's standard of review in a
termination of parental rights action 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. V.S. v. Commonwealth,
Cabinet for Human Resources, 706 S.W.2d 420, 424
(Ky.App. 1986).
“Clear and convincing proof does not necessarily mean
uncontradicted proof. 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.” Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9
(1934).
KRS 625.090 permits the termination of parental rights only upon a finding,
by clear and convincing evidence, of all of the following: (1) that the child has been
adjudged or shown to be abused or neglected as defined in KRS 600.020(1);6 (2) that
6
KRS 600.020(1) defines an abused or neglected child as follows:
"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
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termination would be in the child's best interest after taking into consideration the
grounds listed in KRS 625.090(3);7 and (3) the existence of at least one of the grounds
listed in KRS 625.090(2).8
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 twentytwo (22) months;
7
KRS 625.090(3) provides as follows:
In determining the best interest of the child and the existence of a ground for termination, the
Circuit Court shall consider the following factors:
(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;
(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.
8
KRS 625.090(2) provides as follows:
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:
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ISSUES PRESENTED
Before us, J.A.D. contends that (1) the findings of the family court in
support of the involuntary termination of her parental rights were not proven by clear and
convincing evidence, were clearly erroneous and were not supported by substantial
evidence, and (2) that family court's decision to transfer of custody of the children to the
Cabinet ignored a viable alternative (to place the children with their maternal
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(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;
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;
(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
(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.
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grandmother) and was, therefore, clearly erroneous and not supported by substantial
evidence. We consider these issues in turn.9
SUBSTANTIALITY OF EVIDENCE
We first consider J.A.D.'s argument that the findings of the family court in
support of the involuntary termination of her parental rights were not proven by clear and
convincing evidence, were clearly erroneous, and were not supported by substantial
evidence.
We begin our review by setting forth the family court's relevant findings of
fact in support of its termination decision as contained in its July 6, 2006, Findings of
Fact and Conclusions of Law:
6. The Jefferson Family Court first became involved with
this family when the Cabinet filed a petition on approximately
January 19, 2001 alleging
[T]he child, [C.M.D., Jr.], defecates on himself
at school two or three times a week, sometimes
more than one time a day. The mother reports
that he does that at home also. The child is very
submissive in school and will seldom talk to
anyone. When he has these accidents he
becomes very fearful and cries when school
staff try to take him home. The child is
reported to be very hungry at school as though
he has not eaten. On or about 11/16/00, he told
school staff that he had not eaten dinner the
night before nor breakfast that morning at
home. School staff report[ed] that the child
comes to school very dirty and sometimes has
had dried feces on his clothing. This problem
of the child defecating on himself has been an
9
J.A.D. concedes that these issues were not properly preserved for appellate review. However,
we nevertheless address the issues raised.
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ongoing problem since at least June yet the
mother has not taken the child to counseling for
this problem. School personnel have urged the
mother to get help for the child. The child's
physician also told the mother on or about
11/24/00 to take the child to Seven Counties
Services for the problem. The child was also
referred for counseling on 09/10/00 by Kim
Grisold who was a target assessor assigned to
the mother through KTAP. The referral was
made due to the child defecating on himself and
behavior problems at home. The mother took
the child to the first appointment only and never
returned. The child recently had to be sent
home from school due to head lice.
A sibling petition was filed on the child [M.T.D.] that reads
similarly. The respondent mother retained custody of the
boys despite the filing of this petition upon the condition that
both children and mother cooperate with counseling. The
respondent mother was also subsequently ordered, within
court action on this petition, to seek employment, to
cooperate with treatment for the family through Children's
First, to provide visits to the boys' father [C.M.D., Sr] in
prison if possible, to cooperate with medical appointments
and treatment for the boys, and to enroll the boys in summer
school.
On July 25, 2001, the respondent mother stipulated to neglect
of both [C.M.D., Jr.] and [M.T.D.], admitting that “At the
time of the Petition, mother failed to obtain appropriate
medical and/or psychological care for both children and
mother failed to follow the school personnel's
recommendations regarding the children.” On that date, the
Court ordered that the boys have no contact with [T.A.A.],
attend all medical and psychological appointments, take all
prescribed mediations, to participate in counseling with their
mother and to be in school daily. At a dispositional hearing
of the boys' case on October 3, 2001, they were allowed to
continue in their mother's custody on conditions of no contact
with [T.A.A.], daily school attendance, continued
participation by the family in counseling, medical and
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psychological treatment compliance, medication compliance,
and reasonable visits to be provided t[o] their father [C.M.D.,
Sr.] upon his release from prison.
The next court involvement for this family came after the
birth of their three (3) daughters. On October 8, 2002 the
Cabinet filed a petition on the three (3) girls alleging
[O]n or abut 10-4-02 the child's [A.M.A.] twin
siblings, [H.A.A.] and [S.F.A.], were admitted
to Kosair's due to suspected failure to thrive. At
the time of admission, the children weighed
12.1 lbs and 11.0 lbs. The twins were unable to
crawl, sit up or walk. According to Dr. Brenda
Osborne, the average weight for a one-year old
female is 22 lbs. [A.M.A.] was born on 9-3002. An ECO was obtained by Judge Joan Byer
on or about 10-7-02. On or about 10-7-02, the
child was discharged from Norton's Hospital
and placed in foster care. The affiant believes
the child is at a high risk of neglect due to the
condition of her twin siblings.
A similar petition was filed for each of the three girls and
resulted in their being placed in the temporary custody of the
Cabinet on October 15, 2002 and orders that the parents have
substance abuse treatment, psychological evaluations, and
parenting training.
On October 21, 2002 the Cabinet filed additional petitions on
the boys alleging
[O]n or about 10-14-02 telephone contact with
Advanced Dental Center revealed that [C.M.D.,
Jr.] and [M.T.D.] have dental needs that have
not been met. [M.T.D.] has never been seen
and [C.M.D. Jr.] needs multiple fillings for
cavities. Neglect was previously substantiated
on these children on or about November 2000
and the court orders have not been followed.
The neglect was due to significant behavioral
indicators with the children of maltreatment,
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other's failure to get medical or mental health
treatment, and the children not eating properly.
The mother and children's case with Seven
Counties Services was closed due to
noncompliance despite that this was court
ordered. There is also a court order that the
children are to have no contact with [T.A.A.]
who resided in the mother's home. The children
have had contact with him. The children's
siblings, [S.F.A.], [H.A.A.] and [A.M.A.] were
removed from the mother on or about 10-7-02
due to [S.F.A.] and [H.A.A.] being diagnosed
[with] failure to thrive. These children were
severely malnourished. The children, [C.M.D.,
Jr.] and [M.T.D.] are currently staying with the
maternal grandmother by agreement.
Resultantly, on October 23, 2002, [C.M.D., Jr.] and [M.T.D.]
were placed in the temporary custody of their maternal
grandmother, Ellen Dean. The Court further ordered that the
boys be in counseling and that their mother have supervised
visits with them as well (as with the girls).
On November 20, 2002, at a pretrial conference regarding the
cases for all five (5) children, the Court ordered that the
parents were to produce documentation less than 24 hours old
from the health department demonstrating that they were free
of lice before each supervised visit with the children. The
Court continued to order that the boys receive counseling and
medical treatment as well.
On December 12, 2004 both [J.A.D.] and [T.A.A.] completed
their psychological evaluations pursuant to Court order.
[T.A.A.'s] evaluation noted that he had a self-defeating
pattern of behavior that led to mistrust and intervention by
those in authority and that the tended to become antagonistic,
argumentative and defensive in justifying his behaviors. The
evaluation recommended that [T.A.A.] receive relationship
and individual counseling.
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[J.A.D.'s] evaluation diagnosed her with dysthymic disorder
and noted that she adapted to what others expected of her at
the expense of her self-identity. The evaluator further noted
an undercurrent of depression, significant emotional neglect
from her own childhood, and that she was overwhelmed by
rearing five children. The evaluator recommended
relationship and individual counseling for [J.A.D.].
At Court for all five (5) children on February 19, 2003, both
[J.A.D.] and [T.A.A.] stipulated to neglect of the children
noting “Parents filed to meet the medical/dental and
nutritional needs of the children at the time of the petition.
Therefore, the children were neglected.”
On March 28, 2003, the Home of the Innocents conducted a
parenting assessment of the family, including the children,
[J.A.D.] and [T.A.A.]. The assessor noted concerns about the
family including: 1. parents denial that twins were
underweight or delayed at removal; 2. prior CPS history; 3.
[C.M.D., Jr.'s] encopresis and mother's denial of that being a
problem; 4. the boys' behavioral problems; 5. the parents'
prior criminal histories which include numerous drug charges;
6. the parent's belief that there are no family problems; 7. the
parents' paranoia that CPS took the children simply to let
others adopt them; 8. that the parent provided the assessor
with false information; 9. the previous physical abuse to
[M.T.D.] by [T.A.A.]; and, 10. [J.A.D.'s] failure to comply
with the no contact order between [T.A.A.] and [M.T.D.].
The assessor recommended psychological evaluations,
random drug screens for the parents, and in home worker for
the family, individual counseling and possible Alcoholics
Anonymous for [J.A.D.], Alcoholics Anonymous for [T.A.A.]
and possible permanent placement of the girls outside of this
family.
In anticipation of the dispositional hearing on the children's
most recent petitions, Peggy Kinnetz, Jackie Ralston, and
Brenda Gary (Seven Counties Services therapists for the
family members) submitted a letter to the Court reporting that
the parents had completed their Baby School program with
the girls and that [J.A.D.] was near completion of another
parenting program group in their agency. Both [J.A.D.],
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[C.M.D., Sr.] and the boys had participated in individual
therapy and the family had also received family therapy - all
through Seven Counties Services. The family had excellent
attendance in these treatment but the providers continued to
be concerned about the level of parenting skills and decision
making abilities of these parents. Both parents had been
repeatedly urged to more openly participate in group and yet
they only rarely joined in discussions and when they did, they
offered only vague statements. Neither of these parents
evidenced a comprehensive understanding of parenting or an
ability to problem solve. The providers observed these
parents to have limited parenting skills with their daughters in
that their interactions with them were very limited in scope
and did not stimulate intellectual or emotional growth in the
children. Furthermore, their verbal interactions were few and
their eye contact limited with the girls. The parents also
showed little interest in [A.M.A.] and never developed as
much interest in her as they had in the twins. Similarly,
[A.M.A.'s] actions suggested anxiety around their parents.
Both boys continued to have severe behavioral and emotional
problems (including school adjustment problems and
oppositional defiance) but their behaviors were improving as
they adjusted to their new placement. The providers
recommended that the boys be returned to their mother's
custody but that the girls remain out of the home.
On May 28, 2004 the Court returned custody of the boys to
their mother on the conditions that they remain in counseling.
The girls were committed to the Cabinet and permitted to
have supervised visits weekly with their parents. On January
14, 2004, the parents' visits with the girls were expanded to
unsupervised weekly visits. On June 23, 2004, the parents
visits with the girls were again expanded, to include weekend
overnight visits.
On August 2, 2004, Seven Counties therapist Peggy Kinnetz
provided another report to the Court on this family's progress
in treatment and noted that while the parents, [J.A.D.] and
[T.A.A.], had been consistent in their appointments she
continued to have concerns about the parents' failures to
address ongoing, daily problems within the home and the
supervision of the children. She did note that progress had
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been made and that these parents had demonstrated that they
could maintain regular and consistent care for the children
and therefore “cautiously” recommended that the girls be
returned to their parents' custody so long as they continued in
treatment and were in protective daycare.
On August 4, 2004, the Court allowed unlimited overnight
visits for the girls with their parents (supervised placement).
At the annual review of the girls' case, on November 24,
2004, [A.M.A.] was brought to court by her parents with
bruises on her face. The Court immediately remanded the
supervised placement noting that the girls remained
committed to the Cabinet. A new petition was filed
regarding the girls on November 29, 2004 alleging
On or about November 24, 2004 the family was
scheduled to appear on Family Court, Division
2, for an Annual Review. When the family
arrived above the named child [A.M.A.] had a
bruise on the right side of her fact, the bruise
had the appearance of a hand print. Natural
parents stated that the bruise occurred at
daycare on November 19, 2004. Phone
conversation with the Director, Kristie Rice,
revealed that the bruise did not occur at the
daycare and the child did not attend daycare on
November 22nd or 23rd. Judge Hugh Smith
Haynie ordered that the child be evaluated by a
Forensic specialist to determine if the bruise
was indeed caused by a hand print. The
examiner determined that the bruise was the
result of someone smacking the child. The
child was placed with her two sisters in a foster
home per the court order of November 24,
2004.
On December 1, 2004 the court ordered that the girls remain
committed, that their parents cooperate with the Brooklawn
Lifeskills Program and that the family continue in counseling.
On December 27, 2005 Michele Isham, with Brooklawn
Lifeskills Program, visited [J.A.D.], [T.A.A.] and the children
at their home (during a supervised visit with the girls) and
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noted that the visit did not go well, that the girls screamed
throughout the visit and refused to interact with their mother
and that [J.A.D.] was angry and yelling throughout the visit.
Despite these concerning behaviors, both parents denied any
wrongdoing or family problems that could be addressed
through Brooklawn, instead blaming “the state” for removal
of the girls and any family problems they had. Resultantly,
Brooklawn closed their case with the family given the parents'
unwillingness to accept any responsibility or treatment for the
family's current circumstances.
On January 26, 2005, Peggy Kinnetz reported that she had
referred the parents to individual counseling (as they had
discontinued treatment with Seven Counties Services, despite
Court orders to the contrary, after the children were returned
to their home). She further noted that [J.A.D.] was only
minimally cooperating with treatment and lacked in ability to
care for all five (5) of these children.
Beginning in approximately February 2005, the Cabinet
began receiving increasingly frequent reports from the boys'
schools that [M.T.D.] and [C.M.D., Jr.] coming to school
inappropriately clothed (clothes either far to small or large),
dirty and disheveled, often missing days of school due to head
lice, with worsening behavior problems that were minimized
by [J.A.D.], and with reports by [M.T.D.] of [T.A.A.] having
hit him, sometimes leaving marks. The Cabinet addressed
these reports and concerns with [T.A.A.] and [J.A.D.] who
continued to deny any wrongdoing and minimized each
concern.
On February 9, 2005, the most recent petition on the girls was
informally adjusted upon conditions of their receiving no
corporal punishment. The girls were returned to supervised
placement with their parents on this date.
From February 2005 through October 2005, therapists,
counselors, teachers, and daycare providers continued to
report with increasing frequency concerns about the children
and their home environment. Reports of the boys'
deteriorating behaviors and appearance at school continued.
[M.T.D.] ultimately required hospitalization for his behaviors
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in April 2005. The girls' daycare providers, and then teachers
in the fall of 2005, also reported significant concerns about
their absenteeism due to lice infestations and their conditions
(dirty, inappropriate clothing). Both school and daycare
reported having sought assistance from [J.A.D.] that she
continued to minimize their concerns.
In March 2005, [T.A.A.] was incarcerated and remained so
until October 2005. [J.A.D.] was on the Home Incarceration
Program from March until June 2005. The underlying
conviction for both parents was Criminal Abuse II, regarding
the twins' failure to thrive during the first year of their lives.
Seven Counties Services also continued to report growing
concerns about the family, on May 25, 2005, noting that
“despite the efforts of several mental health agencies [Seven
Counties Services, Home of the Innocents In-Home Services,
Brooklawn Family Services, Caritas Peace, and U of L Child
Evaluation Center] it does not seem as if this family is
developing and functioning effectively.” The letter goes on
to itemize the innumerable services provided to this family
since 2000 and concludes by indicating that “We have serious
concerns about this mother's ability to parent.”
The girls returned to Court on July 20, 2005, and the Court
opined that “CHFS has provided every conceivable service to
NM [natural mother] but concerns still exist. NM is
compliant. GAL, CA & CHFS all agree there is no basis,
legal basis for continued commitment. Return custody to
mother.”
Soon thereafter, even the physical condition of the family
home began to deteriorate and the Cabinet social worker
noted an increasing number of roaches during each month's
home visits and in October, [M.T.D.'s] teacher reported that
when the child opened his backpack at school about 30
roaches crawled from it. [J.A.D.] repeatedly voiced an
intention to move to more suitable housing but failed to do so.
By October 2005, [J.A.D.] and the infant petitioners were in
crisis. Seven Counties Services reported that many, if not
most, of the family's recent counseling appointments had been
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unattended, [M.T.D.] was no longer taking his prescribed
medication, and no progress had been made by the family.
The boys' schools reported that their behaviors continued to
worsen and that they continued to come to school wearing
clothes either far too large or small. The girls' school
reported that they had only attended a few days and were in
danger of losing their placements in Head Start due to their
chronic lice infestations. The school further reported that
when the twins did attend school they are so dirty (often with
dried feces on their backs and buttocks) that school staff
washes them off in the bathroom each morning before classes
begin. The children's medical appointments and tests had
also been ignored by [J.A.D.] and the family was completely
noncompliant with Cabinet recommendations and Court
orders.
On October 27, 2005 the Cabinet filed a petition on all five
(5) children alleging[10]
On or about October 20, 2005, affiant was
notified by JCPS personnel that said child's
[C.M.D., Jr.] sibling had head lice. It was
reported that JCPS had made several attempts to
contact [J.A.D]., natural mother, by phone to
pick sibling up, but had been unable to reach
her. Head lice have been an ongoing issue with
siblings and said child since August 2004. Said
child has currently missed 7.5 days of school,
he has been tardy 7 times. It was reported that
absences were due to head lice on two
occasions. JCPS personnel also have reported
concerns that the child comes to school dirty. It
is reported that child had a foul odor most of the
time. Peggy Kinnetz, Seven County Services
has reported to affiant that natural mother has
failed to bring said child to counseling
consistently. Child has been involved with CPS
on and off since 1997 for neglect.
On November 2, 2005 [] at a temporary removal hearing for
the infant petitioners, Judge Hannie noted “Ct [court] finds
10
The October 27, 2005, petition is the petition presently under consideration.
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that due to the children's extreme & continuing hygiene
problems, children are clearly at risk of abuse &/or neglect &
removal is absolutely necessary. Family has very long CHFS
history & children were on supervised placement w/NM @
time of latest pet. Problems such as head lice etc. . . . are so
severe school & daycare have refused to allow children to
attend on repeated occasions. Due to the long & repetitive
nature of this case - WAIVE REAS. [reasonable] EFFORTS.
TC of children to CHFS.” The infant petitioners have
remained continuously in the Cabinet's care and control since
this removal date. As of this date, this removal petition has
not been finally adjudicated.
Upon removal, the girls were placed in foster care and the
boys were placed with their maternal grandmother. At a
treatment meeting held on November 3, 2005, the parents
([J.A.D.] and [T.A.A.]) agreed to complete individual
counseling and family counseling with the children.
Within two (2) weeks of the children entering the Cabinet's
custody, each of their school[s] reported drastic
improvements in the children's health and appearance and
behaviors. Despite the waiver of reasonable efforts, the
Cabinet assisted and encouraged the parents in resuming
counseling services. The respondent father noted to the
Cabinet on December 5, 2005 that he simply had too much
going on in his life right then to do counseling. He did
however ultimately resume counseling and has completed
approximately three (3) months of individual counseling. The
respondent mother resumed counseling with Linda Spain at
Seven Counties Services (and Peggy Kinnetz) but that ended
with her incarceration in December 2005 upon a plea of
guilty to Endangering the Welfare of a Minor (regarding her
failure to appropriately supervise [M.T.D.] prior to his
removal from her home and his being found on the streets by
a police officer). As a result of this conviction, her probation
for the Criminal Abuse II conviction was revoked and she
was sentenced to serve 185 days. She remained incarcerated
until June 29, 2006. She had not contacted Linda Spain or the
Cabinet since her release in order to resume her counseling.
These most recent periods of counseling for the parents, as in
the past, have not resulted in any significant improvements in
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that they both continue to deny responsibility for the
children's history of abuse/neglect and removal from their
care and they both fail to identify any areas of their life that
they feel might benefit from further treatment, instead
repeatedly indicating that they only attend because the
Cabinet has told them to, not because they actually need or
desire any treatment.
[T.A.A.] has participated in regular visits with the children
since their removal and while he plays with them
appropriately during these visits, the children's behavioral
problems inevitably flare during the visits which then
dissolve into chaos. [T.A.A.] fails to discipline or control the
children during such episodes, instead relying the the Cabinet
social worker on the maternal grandmother to control the
children. [J.A.D.] was also participating in visits with the
children prior to her most recent incarceration but she, like
her paramour, is unable to appropriately control or discipline
the children without much oversight and intervention.
[C.M.D., Sr.] had been incarcerated throughout most of the
Cabinet's involvement with this family. He did attend Court
in 2002 and met with the Cabinet social worker who advised
him of her contact information, a visitation plan and treatment
services recommended for and available to him thorough the
Cabinet. He did participate in one visit with his boys during
Thanksgiving 2002 because their maternal grandmother took
the boys to see him, but he failed to request or to participate
in any other of the visits offered him with the children. The
Cabinet mailed him case plans and information about his
children and requested his response thereafter but he never
again contacted his social worker about the case or his
children. The social workers' work address and phone
numbers have not changed since she provided them to him in
2002. He has not seen or provided for his children in over
two (2) years. He has not suggested any possible relative
placements for his children or otherwise expressed any
interest in their well being whatsoever. He failed to
participate in any of the Cabinet['s] offered treatment
programs and even his wife, [J.A.D.], was unaware of his
whereabouts until the Cabinet located him in prison during
the pendency of this termination action.
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Neither [T.A.A.] nor [J.A.D.] have paid child support for any
of these children or otherwise provided any clothes, school
supplies, or other necessities of life for them since their
placement into the Cabinet's custody. Neither parent is
currently involved in any treatment services in an effort to
reunite with their children and it is unlikely that any such
reunification could occur in the foreseeable future given the
parents' current noncompliance, the extensive history of abuse
and neglect to these children, and the extent of services
previously offered to this family without any lasting progress
from the family.
The order went on to determine that the children were abused and neglected
children; that the parents, for a period of not less than six months had failed or refused to
provide, or have been substantially incapable of providing essential parental care and
protection of the children, and that there was no reasonable expectation of improvement;
that the parents, for reasons other than poverty alone, have continuously or repeatedly
failed to provide or incapable of providing essential food, clothing, shelter, medical care
or education reasonably necessary and available to the children's well being and that there
is no reasonable expectation of significant improvement in the parents' conduct in the
immediately foreseeable future; that the Cabinet had made reasonable efforts to reunite
the family and that no additional services are likely to bring about parental adjustments
enabling a return of the children to their parents; and that it was in the children's best
interest to be committed to the custody of the Cabinet.
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Upon the record as a whole, particularly upon the evidence and testimony
presented at the July 6, 2006, evidentiary hearing, the foregoing findings and
determinations of the family court are supported by clear and convincing evidence. As
demonstrated by the extensive findings set forth above, those findings describe a longterm and ongoing pattern of parental neglect, as evidenced by some or all of the children's
failure to thrive, soiled clothing, poor hygiene, inadequate medical care, inadequate
dental care, and lice infestation. The evidence further demonstrates that some or all of
the children were subjected to inadequate supervision, physical abuse, and roach-invested
living conditions. The record also demonstrates that the children were subjected to an
environment which involved substance abuse.
In short, the family court's determinations that the statutory requirements
for the termination of J.A.D.'s parental rights have been met are supported by clear and
convincing evidence as reflected in the evidence and testimony presented at the July 6,
2006, evidentiary hearing. As such, we will not disturb the decision of the family court.
ALTERNATIVE PLACEMENT
J.A.D. also argues that the family court failed to properly consider the
placement of the children with the children's maternal grandmother, Ellen Dean, as an
alternative to placement with the Cabinet. In support of her argument, J.A.D. states as
follows:
Ellen Dean has provided an invaluable service to the Cabinet,
to the Appellant and also to these children. To ignore her as
an alternative placement for custody is beyond belief. She is
ready willing and able to accept these children, and/or to
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assist her daughter. She also has the necessary experience
and training to make a difference. She is in the best interest
of the children.
This argument consists simply of the conclusory allegations of the
appellant. She cites us to no testimony or evidence in support of her position that it
would be in the best interest of the children to be committed to the custody of Dean in
preference to the Cabinet. As such, we have no basis to disturb the family court's
decision to commit the children to the custody of the Cabinet rather than to their maternal
grandmother.
CONCLUSION
For the foregoing reasons the judgment of the Jefferson Family Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert C. Bishop
Elizabethtown, Kentucky
Erika L. Saylor
Cabinet for Health & Family Services
Louisville, Kentucky
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