J. (R. G. S.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: FEBRUARY 26, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000713-ME
R.G.S.J.
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE LARRY E. THOMPSON, JUDGE
ACTION NO. 08-AD-00009
CABINET FOR HEALTH AND
FAMILY SERVICES, COMMONWEALTH
OF KENTUCKY; D.R.N.S., A MINOR CHILD;
AND L.C.J., A MINOR CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND VANMETER, JUDGES; GRAVES,1 SENIOR
JUDGE.
VANMETER, JUDGE: R.G.S.J. appeals from findings and a judgment entered by
the Pike Circuit Court, Family Division, terminating her parental rights to two
minor children. For the reasons stated hereafter, 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 Statutes
(KRS) 21.580.
R.G.S.J. is the biological mother of D.R.N.S. and L.C.J. (collectively
referred to as “the children”), who were born in 1992 and 1998, respectively.
D.R.N.S.’s biological father is unidentified, while L.C.J.’s biological father
voluntarily terminated his parental rights during the proceedings below.
The children have not resided with R.G.S.J. since July 2005, when
they were removed from her home after their four-year-old brother, J.J., drowned
in a neighbor’s pool after spending several hours outside, unsupervised, one
morning while R.G.S.J. slept. This event occurred several months after R.G.S.J.
failed to seek medical assistance after her teenage son was accidentally shot in the
abdomen by his stepfather. The record shows the teenager prevailed upon a
neighbor to take him to a hospital for emergency treatment requiring abdominal
surgery.
The Pike Circuit Court, Family Division, adjudicated the children
neglected in January 2006, and committed them to the Cabinet for Health and
Family Services (Cabinet) in March 2006.2 In June 2006, after an eight-day jury
trial, R.G.S.J. was convicted of second-degree manslaughter relating to J.J.’s death.
She was sentenced to ten years’ imprisonment. In March 2009, a panel of this
court reversed the judgment of conviction on the ground that evidence of prior bad
acts was improperly introduced at trial. The matter was remanded to the trial court
for a new trial.
2
D.R.N.S. also was adjudicated neglected in October 1995.
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Meanwhile, in March 2008 the Cabinet filed the underlying petition
seeking the termination of R.G.S.J.’s parental rights. As amended, the petition
alleged that R.G.S.J. was imprisoned, that she and L.C.J.’s father had “failed to
protect and preserve their children’s fundamental rights to a safe and nurturing
home,” that the children were neglected as defined in KRS 600.020, and that it was
in the children’s best interest to terminate parental rights. More specifically, the
petition alleged that R.G.S.J. had failed to provide for the children’s medical and
other needs, that she had exposed them to domestic violence and inadequate
supervision, that despite the Cabinet’s efforts she had not made sufficient “efforts
or adjustments” so that a return to her care would be in the children’s best interest,
and that the children’s condition had improved since placement in foster care.
Finally, the petition stated that R.G.S.J. had been convicted of causing or
contributing to J.J.’s death due to neglect, and that D.R.N.S. and L.C.J. had been in
foster care, under the Cabinet’s responsibility, for more than fifteen of the twentytwo months immediately preceding the filing of the termination petition.
The trial court conducted a two-day termination hearing in February
and March 2009. Between the two hearing dates, this court rendered its opinion
reversing R.G.S.J.’s manslaughter conviction. Thus, in reaching its decision the
trial court noted that R.G.S.J. was awaiting further judicial proceedings and
remained charged with second-degree manslaughter, but otherwise disregarded the
fact of her conviction.
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In its order, the trial court found by clear and convincing evidence that
the children had been adjudicated neglected and committed to the Cabinet by a
court of competent jurisdiction, and that they were in the Cabinet’s care and
custody for twenty-four consecutive months before the termination petition was
filed. The court stated that in determining whether it was in the children’s best
interest to terminate R.G.S.J.’s parental rights, it considered neglect of “any child
in the family[,]” KRS 625.090(3)(b), including the prior findings of neglect
relating to J.J.’s death and R.G.S.J.’s failure to seek immediate medical care when
the teenage son was shot. The court considered the Cabinet’s reasonable efforts to
provide available preventive and reunification services to enable the children to
safely live at home, KRS 620.020(10), and found from the evidence that R.G.S.J.
had failed to either comply with prior court orders or cooperate with the Cabinet’s
reunification efforts. The court found that the children were doing well and were
having their needs met in foster care, and that they needed permanency in their
lives. Further, the court determined that R.G.S.J. had inflicted emotional harm
upon the children by failing to seek medical treatment when their older brother was
shot, and “by subjecting them to the trauma of” J.J.’s death.
The trial court concluded, as a matter of law, that clear and convincing
evidence showed the children previously were adjudged neglected by a court of
competent jurisdiction. The court found that the Cabinet had provided reasonable
reunification services, but that R.G.S.J. had failed to make the necessary changes
to permit the children’s return, and that there was “no reasonable prospect of any
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improvement.” Concluding that it would be in the children’s best interest to
terminate R.G.S.J.’s parental rights, the court entered an order to that effect. This
appeal followed.
In circumstances such as those alleged herein, an involuntary
termination of parental rights requires the trial court to find by clear and
convincing evidence that the child has been adjudged, by either the trial court in
the termination proceeding or a “court of competent jurisdiction” in an earlier
proceeding, to be abused or neglected as defined in KRS 600.020(1). See KRS
625.090(1)(a). The court must also find, by clear and convincing evidence, that the
termination of parental rights would be in the child’s best interest, KRS
625.090(1)(b), and that at least one of the ten grounds set out in KRS 625.090(2)
exists. Such grounds include:
(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;
....
(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;
....
(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
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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.
KRS 625.090(2).
When determining the child’s best interest and the existence of any
grounds for termination, the trial court must consider the factors enumerated in
KRS 625.090(3), including:
(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[.]
Finally, as stated in K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky.App.
2006), appellate review of a decision to terminate parental rights is
limited to the clearly erroneous standard set forth in
Kentucky Rules of Civil Procedure (CR) 52.01. R.C.R.
-6-
v. Commonwealth, Cabinet for Human Resources, 988
S.W.2d 36, 38 (Ky.App. 1998). Since [the parent
seeking termination] was the petitioner at the trial court
level, she had the burden of proof and was required to
prove by clear and convincing evidence that Father's
parental rights should be terminated. KRS 625.090(1).
With this in mind, we are required to give considerable
deference to the trial court's findings, and we will not
disturb those findings unless no substantial evidence
exists in the record to support them. Commonwealth,
Cabinet for Families and Children v. G.C.W., [139
S.W.3d 172 (Ky.App. 2004)]. In addition, the trial court,
as the finder of fact, has the responsibility to judge the
credibility of all testimony, and may choose to believe or
disbelieve any part of the evidence presented to it.
Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16
(Ky. 1977).
Here, the record contains undisputed substantial evidence to show that
in January 2006, the Pike Circuit Court, Family Division, adjudged D.R.N.S. and
L.C.J. to be neglected children. As the court undeniably was one of competent
jurisdiction, the first ground for the termination of parental rights was satisfied by
clear and convincing evidence. See KRS 625.090(1)(a)1.
Next, the record indicates that when the petition was filed, several
grounds existed to support the termination of parental rights. One of the grounds
was eliminated when R.G.S.J.’s second-degree manslaughter conviction was
reversed on appeal, as R.G.S.J. then no longer stood convicted of having caused or
contributed to J.J.’s death through neglect. See KRS 625.090(2)(i). Nevertheless,
the trial court found and the evidence showed that several other grounds remained
to support the termination of parental rights, including the undisputed fact that the
children had been in foster care, under the Cabinet’s responsibility, for more than
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fifteen of the twenty-two months immediately preceding the filing of the
termination petition. See KRS 625.090(2)(j). Thus, clear and convincing evidence
supported the “existence of one (1) or more” of the grounds set out in KRS
625.090(2).
Finally, the trial court examined the issue of whether the termination
of parental rights would be in the children’s best interest. See KRS 625.090(1)(b).
As noted above, the court found that the children had been out of their mother’s
home for over three years, that they were doing well and their needs were being
met in foster care, and that they needed permanency in their lives. Additionally,
the court considered the findings of neglect relating to the children’s older and
younger brothers, as well as evidence, some of which was conflicting, regarding
the Cabinet’s and R.G.S.J.’s efforts toward reunification. Having reviewed the
evidence, we conclude the trial court did not clearly err by finding that the
children’s best interest would be served by the termination of parental rights.
The judgment of the Pike Circuit Court, Family Division, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Timothy A. Parker
Prestonsburg, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
David T. Adams
Paintsville, Kentucky
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