E. (G.) III VS. CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
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RENDERED: APRIL 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001328-ME
G.E. III
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 09-AD-00049
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF KENTUCKY,
AND S.A.E.M., A CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE, CAPERTON AND WINE, JUDGES.
CAPERTON, JUDGE: The Appellant, G.E. III, appeals the June 9, 2010, order of
the Kenton Family Court terminating his parental rights to his infant child, S.A.M.
Having reviewed the record, the arguments made by G.E. III, and the applicable
law, we affirm.
The instant matter began as a dependency, neglect, or abuse action
brought against N.M.A.P, the mother of the child, alleging that she had a paramour
who abused S.A.M. S.A.M. was born in June of 2008. G.E. III was established as
the father of S.A.M. in October of 2008, and first met S.A.M. in December of
2008. On December 8, 2008, following completion of the dependency, neglect,
and abuse action, G.E. III’s aunt was given temporary custody of S.A.M.
Although G.E. III was offered visitation with his daughter while she was staying
with the aunt, he was told he could not take her to stay overnight with him in Ohio,
where he was living with his grandmother at the time. On December 19, 2008,
G.E. III signed a safety plan agreeing that he would not keep the child in Ohio
overnight. G.E. III violated this agreement by taking his daughter to Ohio
overnight in December of 2008, and keeping her there from December 19, 2008,
through December 23, 2008. As a consequence, temporary custody of S.A.M. was
taken from the aunt, and S.A.M. has resided in Foster care since December of
2008.
G.E. III was offered a two-hour per week visitation with his daughter
and an interstate home evaluation, which was completed at the residence where he
was residing with his wife, V.E., and her daughter, on March 9, 2009. The Ohio
authorities did not approve the home placement with G.E. III because of alleged
domestic violence1, an unstable marriage, and G.E. III’s request for mental health
1
G.E. III asserted that the domestic violence allegations against him were “lies by his wife”, and
that the specific incident referenced in the home placement occurred because his wife told him
she was having an affair, and the two had an altercation after which G.E. III was arrested and
taken to the Hamilton County Detention Center. He was released later that night.
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counseling following the incident of alleged domestic violence.2 In addition, it was
noted that G.E. III was no longer actually living in the residence with his wife and
step-daughter. Another home evaluation was subsequently requested by G.E. III,
but was never conducted.3 G.E. III also subsequently requested a home study
evaluation to be conducted at his grandmother’s home.4
G.E. III’s visits with his daughter were initially inconsistent, as he
missed visits between December 23, 2008, and February2, 2009. He did visit with
S.A.M. on February 2, 2009, and February 9, 2009. G.E. III again missed visits
between February 16, 2009, and April 14, 2009. G.E. III asserts that the reason for
those missed visitations was a conflicting work schedule. G.E. III states that once
the conflict was resolved, he made every visit with his daughter from and after
April 14, 2009.
2
The night of the incident with his wife was apparently the same night that G.E. III requested to
be placed on medication for his mental health. G.E. III asserts that the only time he stopped
taking this medication was in November of 2009 after a week-long hospital stay. He began
taking them again after a social worker advised him that he needed to take them if he wanted to
be with his daughter. G.E. III was diagnosed with depression with unspecified episodic mood
disorder, and unspecified personality disorder.
3
G.E. III had apparently called the social worker who had conducted the initial home evaluation,
claiming that he and his wife were reunited, and that he wanted to continue with the home study.
The social worker explained that the referral was closed due to the domestic violence incident,
and that placement of an infant could not be recommended when the relationship with his wife
was so unstable. G.E. III was advised that if he and his wife entered into counseling, she would
be able to revisit the home study if the Cabinet sent a new referral. G.E. III stated in response
that he did not have the money for counseling.
4
The record reveals that this request was also denied, as G.E. III was not actually permanently
residing at his grandmother’s home, continued to provide various addresses which he at times
admitted were not residences where he actually lived, and moved from place to place rather
frequently.
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G.E. III asserts that he attempted to improve his life situation by
attending classes at Cincinnati State College in the fall of 2009, as well as
subsequent classes through the University of Phoenix. G.E. III testified that he
was also receiving $1,000 a month in workers’ compensation benefits. He also
testified that he had a job prospect at a family-owned business which he was to
begin in mid-2010.
On March 24, 2009, S.A.M. was committed to the Cabinet for Health
and Family Services, and on that same date reasonable efforts were waived. The
Cabinet also advised the judge that a foster family wanted to adopt S.A.M. On
April 24, 2009, the petition for termination of parental rights was filed. On June 9,
2010, the Kenton Family Court entered an order granting the petition, and
specifically found as follows:
(1) The child, S.A.M., is an abused and neglected child as
defined in KRS 600.020(1).
(2)The respondent parents of the child, for a period of not
less than six months, have continuously or repeatedly
failed or refused to provide or have been substantially
incapable of providing essential parental care and
protection of S.A.M., and there is no reasonable
expectation of improvement in parental care and
protection, considering the age of the child.
(3)That the respondent mother abandoned the child for a
period of not less than ninety (90) days.
(4) The respondent parents, for reasons other than
poverty alone, continuously or repeatedly failed to
provide or are incapable of providing essential food,
clothing, shelter, medical care or education reasonably
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necessary and available for the child’s well-being and
there is no reasonable expectation of significant
improvement in the parental conduct in the immediately
foreseeable future, considering the age of the child.
(5) Termination of parental rights is in the best interest of
the child.
(6) The Cabinet for Health and Family Services is best
qualified to receive custody of the child.
Moreover, in a separate document titled, “Findings of Fact and
Conclusions of Law” entered on the same date, the family court made numerous
other findings pertinent to its order terminating the parental rights of G.E. III and
the parental rights of N.M.A.P. Specifically, the court found, in addition to the
findings set forth in its order terminating parental rights, that based upon clear and
convincing evidence presented at trial G.E. III never provided parental care or
protection for S.A.M. The court found that G.E. III was given ample opportunity
to correct his mental health and anger issues during the pendency of the
dependency, neglect, and abuse action, as well as during the involuntary
termination of parental rights action. The court further found that G.E. III posed a
risk of harm to any child placed in his care, as he was found to present a high risk
for violence and impulsivity based on his past behavior. The court stated that from
October of 2008 through the final trial date of April 15, 2010, G.E. III failed to
make any lifestyle changes that would alleviate the risk of harm he would pose to
S.A.M. if she were placed in his care.
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In so finding, the court noted that the Cabinet had attempted to render
services either directly or by referral in an effort to keep the family together,
including working with the family while the child was placed in foster care. It also
stated that as G.E. III chose to reside in Ohio, beyond the area in which the
Kentucky Cabinet could provide services, the Cabinet was forced to rely on the
Hamilton County, Ohio Department of Jobs and Family Services to complete two
home studies regarding G.E. III. The court noted that after both studies, G.E. III’s
home was denied due to untreated mental health and anger management issues, and
the fact that G.E. III lied about where he lived.5 After G.E. III’s home was denied
as a suitable residence for S.A.M. on the first occasion, the Kenton Family Court
waived the Cabinet’s obligation to make reasonable efforts to reunite G.E. III and
S.A.M. It is from these findings and the aforementioned order terminating his
parental rights that G.E. III now appeals to this Court.
On appeal, G.E. III argues that the family court committed reversible
error by terminating his parental rights, and that the court erred in finding that valid
reasons existed to negate the Cabinet’s duty to exercise reasonable efforts to
reunify the family. In reviewing the decisions of the trial court, we note that the
trial court makes its findings based upon clear and convincing evidence, and that
our review of those findings is under a clearly erroneous standard of review. See
CR 52.01, and V.S. v. Com., Cabinet for Human Resources, 706 S.W.2d 420, 424
(Ky.App. 1986). We note that clear and convincing proof does not necessarily
5
In response to this allegation, G.E. III asserts that he sometimes provided his mother’s address
for various reasons, but never actually resided at her house.
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mean uncontradicted proof, and that it is sufficient if there is proof of a probative
and substantial nature carrying the weight of the evidence sufficient to convince
ordinarily prudent-minded people. See M.P.S. v. Cabinet for Human Resources,
979 S.W.2d 114, 117 (Ky.App. 1998)(citing Rowland v. Holt, 253 Ky. 718, 726,
70 S.W.2d 5, 9 (1934)). Thus, a trial court’s findings of fact will not be disturbed
if supported by substantial and probative evidence in the record. Id. at 116. We
review the arguments of G.E. III with this in mind.
On appeal, G.E. III states that it is not in S.A.M.’s best interest to be
separated from him, as “a child is always best served by being with their natural
parents.”6 In support of that assertion he notes that he continuously visited with his
daughter from April 14, 2009, until the end of the case. He further asserts that
although he was diagnosed with various mental disorders, these do not preclude
him from being able to provide parental care for S.A.M. G.E. III claims that he
was doing all he could to ensure that he was taking care of his mental health and
that a mental illness alone is not enough to terminate a parent’s rights.7 G.E. III
also asserts that there was no testimony below that he did not have the earning
capacity to provide “the essentials of life,” and notes his attendance in college
classes, his workers’ compensation benefits, and his job prospects for mid-2010.
Beyond these arguments, G.E. III also asserts that the Cabinet failed
to exercise reasonable efforts to reunify the family and that the court erred in
6
See brief of G.E. III, p. 6.
7
While we agree that this is so, the record below clearly indicates numerous reasons for
terminating G.E. III’s parental rights, beyond mental health reasons alone.
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determining, after the first home assessment in Ohio, that the Cabinet’s further
duties in reunifying the family were waived. In support of his assertions in this
regard, G.E. III argues that the only “reasonable efforts” he was offered by the
Cabinet to attempt reunification were visitation with his daughter and an interstate
home placement evaluation. G.E. III asserts that the Cabinet did not appropriately
assist him in obtaining mental health counseling. He argues that none of the
circumstances required the waiver of reasonable efforts in this matter.
As G.E. II correctly notes, KRS 625.090 explains the grounds for
involuntary termination of parental rights. In order to terminate parental rights, the
circuit court must find by clear and convincing evidence that the child has been
abused or neglected as defined in KRS 600.020(1).8 The circuit court must then
find by clear and convincing evidence the existence of at least one of the
enumerated statutory grounds for the termination of parental rights.9 After the
circuit court finds the existence of at least one enumerated ground, the court's final
8
KRS 600.020(1) provides that an “ ‘Abused or neglected child’ means a child whose health or
welfare is harmed or threatened with harm when his parent ... (d) continuously or repeatedly fails
or refuses to provide essential parental care and protection for the child, considering the age of
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.”
9
Included in these grounds are the following: (1) the abandonment of the child for a period of
not less than ninety (90) days; (2) the continuous and repeated failure or refusal to provide
essential parental care and protection for the child for a period of not less than six (6) months;
and (3) the continuous and repeated failure or refusal, for reasons other than poverty alone, to
provide essential food, clothing, shelter, medical care, or education reasonably necessary and
available for the child's well-being. KRS 625.090(2)(a), (e), and (g).
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step is determining whether the termination is in the best interest of the child. KRS
625.090(3).
Having reviewed these findings of fact, we conclude that the family
court's findings are supported by substantial evidence in the record and,
accordingly, are not clearly erroneous. The evidence before the family court was
of a probative and substantial nature sufficient to convince ordinarily prudentminded people that the facts were as the family court determined. The family court
correctly applied the involuntary termination statute to the facts as set forth in its
order, and we find no reason to disturb those findings on appeal.
With respect to G.E. III’s assertion that the Cabinet failed to exercise
reasonable efforts to reunify the family, we note that KRS 610.12710 sets forth
grounds upon which the court can find that parental circumstances negate the
Cabinet’s requirement to make reasonable efforts to reunify the child with his or
10
KRS 610.127 provides that: Reasonable efforts as defined in KRS 620.020 shall not be
required to be made with respect to a parent of a child if a court of competent jurisdiction
determines that the parent has: (1) Subjected the child to aggravated circumstances as defined in
KRS 600.020; (2) Been convicted in a criminal proceeding of having caused or contributed to the
death of another child of the parent; (3) Committed a felony assault that resulted in serious
bodily injury to the child or to another child of the parent; (4) Had their parental rights to another
child terminated involuntarily; (5) Engaged in a pattern of conduct due to alcohol or other drug
abuse as defined in KRS 222.005 for a period of not less than ninety (90) days that has rendered
the parent incapable of caring for the immediate and ongoing needs of the child, and the parent
has refused or failed to complete available treatment for alcohol or other drug abuse; (6) Mental
illness as defined in KRS 202A.011 or mental retardation as defined in KRS 202B.010 or other
developmental disability as defined in KRS 387.510 that places the child at substantial risk of
physical or emotional injury even if the most appropriate and available services were provided to
the parent for twelve (12) months; or (7) Other circumstances in existence that make
continuation or implementation of reasonable efforts to preserve or reunify the family
inconsistent with the best interests of the child and with the permanency plan for the child.
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her family. As noted, our review of the record indicates that G.E. III chose to
reside in Ohio and, thus, beyond the reach of the Kentucky Cabinet. It also
indicates that G.E. III provided false information as to his actual address.
Accordingly, the court found that after G.E. III’s home was denied after the first
interstate home assessment conducted by the Hamilton County Department of Jobs
and Family Services, any further duty on the part of the Cabinet to make
reasonable efforts to reunite G.E. III and his family were properly waived. We
believe that the findings of fact made by the court in this regard were supported by
substantial evidence of record and were not clearly erroneous and, moreover, that
the court correctly determined that these facts clearly fell within the parameters of
KRS 610.127. We thus find no error in the court’s determination to waive the
Cabinet’s duty to make any further attempts at reunification, and we affirm.
Wherefore, for the foregoing reasons, the June 9, 2010, order of the
Kenton Family Court, terminating the parental rights of G.E. III is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE.
Jeffrey D. Brunk
Covington, Kentucky
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