M. (M.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.

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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2009-CA-000395-ME M.M., MOTHER v. APPELLANT APPEAL FROM MARION CIRCUIT COURT HONORABLE DOUGHLAS M. GEORGE, JUDGE ACTION NO. 07-AD-00009 COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES. WINE, JUDGE: M.M., a mother (“appellant”), appeals an order of the Marion Circuit Court terminating her parental rights to her minor children. On appeal, appellant argues that the trial court lacked substantial evidence to support a finding under Kentucky Revised Statute (“KRS”) 625.090(1)(a)(2) that her children were neglected. Factual Background Appellant is the mother of four children involved in this action, R.K., D.M., A.M., and F.M. (hereinafter referred to, collectively, as “the children”). On February 4, 2005, the Cabinet for Health and Family Services (“the Cabinet”), filed a Juvenile Dependency, Neglect and Abuse Petition in the Marion District Court alleging that the children were neglected while in their mother’s care. Appellant suffered from substance abuse problems and had suffered with drug addiction since the age of fourteen. She often participated in methadone treatment programs in an attempt to treat her addictions.1 Indeed, her youngest child had cocaine in its system at birth. Although she was involved in treatment programs for her addictions, appellant twice tested positive for heroin and admitted to using the drug oxycontin during the pendency of this action.2 A temporary removal hearing was held on February 16, 2005, and the children were removed from appellant’s care due to chronic hygiene issues including lice, lack of supervision, and medical neglect. The children were temporarily placed with their maternal grandmother. On March 5, 2005, a hearing was conducted on the petition wherein the Marion District Court found the children to be neglected. The children remained in the custody of their maternal grandmother and a case plan was established for appellant. Despite the proximity 1 Apparently appellant became addicted to morphine at the age of fourteen after being involved in a motor vehicle accident. 2 In fact, appellant appeared at one of her court hearings concerning the children while under the influence of heroin. -2- to her children and the fact that she was being offered services for reunification at a free or reduced cost locally, appellant decided to move to Ohio with her boyfriend. In September of 2005, while the appellant was in Ohio, her children were removed from the grandmother’s home because they had missed multiple days of school and the grandmother was uncooperative with the Cabinet. The children were placed into foster care. Although appellant remained in Ohio, she did continue visitation with the children while they were in foster care. Once placed in foster care, it was determined that the children were in need of extensive therapy to deal with behavioral issues related to their upbringing. In May of 2006, one of the children, after being hospitalized in a psychiatric hospital, disclosed during treatment that appellant was physically, verbally, and emotionally abusive to her. The child begged not to be forced to continue visitation with her mother because it made her worry that she might have to live with her again one day. The child also disclosed sexual abuse at the hands of one of appellant’s former boyfriends. Upon recommendation of the psychologist and social workers, the Marion District Court entered an order terminating appellant’s visitation with the children in May of 2006, finding that further visitation would not be in the best interest of the children. Thereafter, the court required appellant to undergo a psychological evaluation and therapy as a first step toward resuming visitation with the children. Although she continued to undergo methadone treatment in Columbus, Ohio, appellant never completed a psychological evaluation. -3- In May of 2006, M.M. tested positive for heroin. Then, in June of 2006, appellant again tested positive for heroin. During a June hearing concerning the children in Marion District Court, appellant actually admitted to the judge that she was high on drugs while in court.3 In November of 2006, the Marion District Court held an adjudication hearing and entered an order finding the children to be dependent, neglected or abused. On August 15, 2007, the Cabinet filed a petition for involuntary termination of parental rights in Marion Circuit Court. Appellant’s parental rights were terminated by separate orders of the Marion Circuit Court dated February 2, 2009, after the children had been in foster care for 44 months. Appellant now appeals from those orders. Analysis On review of an order terminating parental rights, we ask whether the trial court’s findings were clearly erroneous. Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172 (Ky. App. 2004). The findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support them. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). A court may involuntarily terminate parental rights where it finds by clear and convincing evidence that a child is abused or neglected under KRS 600.020(1) and that termination would be in the child’s best interest. KRS 625.090; M.E.C. v. Com., Cabinet for Health and Family Services, 254 S.W.3d 3 While appellant claimed to be under the influence of oxycontin at the time, the drug screen showed that she was on heroin. -4- 846, 851 (Ky. App. 2008). In addition to these two requirements, a court must also find the existence of one or more of the grounds set forth in KRS 625.090(2). Id. In this case, the Marion Circuit Court concluded that termination was appropriate because clear and convincing evidence was presented to establish that the children were abused or neglected under KRS 600.020(1)(i). KRS 600.020(1)(i) provides that a child is neglected when a parent, [f]ails 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. Here the court found that the children were abused or neglected under KRS 600.020(1)(i) and that termination would be in the best interests of the children. The court also found that two or more of the grounds in 625.090(2) were met, stating that the natural mother, “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 [children’s] well-being and that there is no reasonable expectation of significant improvement in [appellant’s] conduct in the immediately foreseeable future.” KRS 625.090(2)(g). The court further found that the children had “been in foster care under the responsibility of the cabinet for [more than] fifteen (15) of the most recent twenty-two (22) months,” noting that the children had been in foster care for 44 months, which was nearly three times the amount of time -5- contemplated by the Kentucky General Assembly. KRS 625.090(2)(j). As such, all of the required findings for termination were made. We now turn to a discussion of whether any of the above findings of the trial court were clearly erroneous. The trial court found the children were neglected based upon appellant’s failure to progress in her goals identified by the Cabinet. Her goals as identified by the Cabinet were as follows: (1) complete parenting classes; (2) obtain a mental health evaluation; (3) maintain suitable housing and employment; (4) maintain contact and visitation with the children; (5) complete her GED; (6) remain drug and alcohol free; and (7) follow all court orders. We will address each in turn. First, there appears to be conflicting evidence in the record concerning whether appellant completed parenting classes. However, a certificate was entered into the record for completion of a “Positive Paths Parenting Program.” As to the second goal, appellant never underwent a mental health evaluation as ordered by the court. Third, it was never established that appellant maintained suitable housing and employment. To begin, appellant’s own testimony made clear, that before 2007, she did not maintain her own residence, but lived with her boyfriend, James Protsman (“Protsman”). After March of 2007, M.M. alleged that she rented out half of a home owned by Protsman’s mother in Ohio and that Protsman was no longer living there (she testified that Protsman lived at the racetrack where he -6- worked). The credibility of her testimony on this matter was clearly within the discretion of the trial judge. Indeed, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Kentucky Rules of Civil Procedure (“CR”) 52.01. Finally, appellant’s residence was not approved by Ohio’s child services agency after an intrastate home inspection was performed. As to the fourth case goal, we do not disagree that appellant made reasonable efforts to see the children before visitation was terminated by the trial court. However, she did not make reasonable efforts to undergo a psychological evaluation and therapy in order to regain visitation with the children after visitation was terminated. The trial court clearly told appellant that undergoing a psychological examination was a “first step” in regaining visitation with the children. Concerning the fifth goal, we see no indication in the record that appellant completed her GED. Sixth, by her own admissions, and by drug tests performed in the interim, it is clear that appellant did not remain “drug free” during the pendency of the actions herein concerning her children’s removal. She tested positive for heroin twice, admitted to using the drug oxycontin, and even showed up for a court hearing while under the influence of heroin.4 Finally, appellant’s 4 Further, there seemed to be some speculation by the Cabinet that appellant was not taking her methadone, but was selling it or giving it to her boyfriend. Mr. Protsman, the boyfriend that appellant moved to Ohio with, was given a drug screen where it was found that he had methadone in his system. It is unclear how he obtained the methadone. No findings were made by the trial court on this matter. -7- seventh goal was not met because she failed to follow court orders as she did not undergo a psychological evaluation as ordered by the court. In sum, considering that appellant failed to substantially complete most of these goals, we cannot say the trial court was clearly erroneous in finding that she failed to progress toward completion of these goals. Further, there is no question that the children were in the care of the Cabinet for well in excess of 15 months preceding the hearing, and that appellant had been “working” on her goals for over three years. Next, we consider the trial court’s findings that two of the grounds in KRS 625.090(2) were met. The trial court first found, under KRS 625.090(2)(g), that appellant, “for reasons other than poverty alone, ha[d] continuously or repeatedly failed to provide or [was] incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary. . .” for the children, and that there was no reasonable prospect of improvement in the foreseeable future. KRS 625.090(2)(g). There is substantial evidence in the record that appellant failed to obtain and maintain a suitable residence for the children, that she never obtained full-time employment which delivered a regular paycheck, that she was unable to remain drug-free, and that she otherwise failed to offer any money or support for the children while they were under the care and custody of the Cabinet. The trial court did not err by finding that appellant failed to provide, or was incapable of providing, essential care and protection for the children. -8- Moreover, the trial court also found under KRS 625.090(2)(j) that the children had remained in foster care for more than fifteen of the preceding twentytwo months before the hearing. Indeed, the children had been in foster care for three-and-a-half-years by that time. As the Commonwealth aptly points out, the Kentucky General Assembly made significant changes to our termination statutes after the enactment of the Adoption and Safe Families Act (“ASFA”). One such provision was KRS 635.090(2)(j), which was intended to prevent children from languishing in the foster care system for years. Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172 (Ky. App. 2004). Certainly, the three-and-a-half years spent by the children in foster care qualifies as the sort of languishing or “foster care drift” that the Kentucky General Assembly was trying to prevent. Id. at 177. We have no question that the trial court’s findings here were supported by substantial evidence. Further, we note that substantial evidence of abuse or neglect was presented at the hearing. Psychologists and social workers involved with the children testified to numerous allegations of abuse or neglect made by the children concerning their biological parents, including their biological mother. They further testified to severe behavioral disorders and inappropriate sexual behaviors in the children, which indicated that ongoing abuse or neglect had occurred. In light of the foregoing, we find that the Marion Circuit Court’s factual findings supporting its termination order were supported by substantial evidence. -9- Regardless of our determination herein, we agree with the Commonwealth that any error of the Marion Circuit Court with respect to its finding of neglect based upon appellant’s failure to progress in her case goals would be harmless because the children had previously been adjudged to be neglected by a court of competent jurisdiction pursuant to KRS 625.090(1)(a)(1) by order of the Marion District Court. Conclusion For the reasons stated herein, we affirm the judgment and order of the Marion Circuit Court. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Joseph R. Stewart Lebanon, Kentucky Richard G. Sloan Cabinet for Health and Family Services Elizabethtown, Kentucky -10-

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