O. S. v. CABINET FOR HUMAN RESOURCES
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RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002867-MR
O. S.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS WINE, JUDGE
ACTION NO. 95-AD-00175
CABINET FOR HUMAN RESOURCES
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
O.S. appeals from an order of the Jefferson
Circuit Court that terminated her parental rights to her
children, J.M.M. and C.V.S.
O.S. argues that the circuit court
erred by finding that she failed to obtain medical care for her
children and that no evidence existed indicating the children
should be returned to her, and that the court improperly admitted
opinion testimony.
After reviewing the record, the applicable
law, and the arguments of counsel, we affirm.
O.S. is the biological mother of J.M.M., born May 4,
1991, and C.V.S., born May 13, 1992.
In January 1994, when the
family was first investigated by the Cabinet for Human Resources
(CHR), O.S. was living with R.M., C.V.S.’s biological father.
CHR was contacted after a doctor examined J.M.M. and discovered
extensive contusions on her buttocks.
In February 1994, a
medical examination of C.V.S. revealed: contusions on his eye,
ear, cheeks, chest, back, buttocks, and thighs; abrasions on his
forehead, arm, and hand; a laceration in the upper lip; an x-ray
of the right distal femur showed a healing fracture; and a report
by a radiologist of a basilar skull fracture.
J.M.M. and C.V.S.
were immediately removed from the home and placed in foster care.
On June 7, 1994, O.S. and R.M. stipulated in Jefferson
Family Court that the children were “abused and neglected in that
both J.M.M. and C.V.S., while in the custody of O.S. and R.M.,
received physical injuries by other than accidental means. . . .”
On November 17, 1995, CHR petitioned the Jefferson Circuit Court
to involuntarily terminate O.S.’s parental rights to J.M.M. and
C.V.S.
On October 10, 1997, the circuit court terminated O.S.’s
parental rights pursuant to Kentucky Revised Statutes (KRS)
625.090.
This appeal followed.
KRS 625.090 permits the involuntary termination of
parental rights only upon clear and convincing evidence that the
child is abused or neglected and that termination is in the best
interests of the child.
In addition, the court must find by
clear and convincing evidence the existence of one or more of the
facts described in KRS 625.090(1)(a)-(f).
In considering the
best interests of the child, the court must consider the factors
set forth in 625.090(2)(a)-(f).
“Civil Rule 52.01 provides in
part that findings of fact will not be set aside unless clearly
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erroneous, with due regard given to the opportunity of the trial
judge to view the credibility of the witnesses.”
Reichle v.
Reichle, Ky., 719 S.W.2d 442, 444 (1986); V.S. v. Commonwealth,
Cabinet for Human Resources, Ky. App., 706 S.W.2d 420, 424
(1986).
On appeal, O.S. argues that there was insufficient
evidence to find that she had failed to obtain medical care for
the children.
The circuit court specifically found that “a Court
of competent jurisdiction adjudged the children to be abused or
neglected.
This burden was met by the September 20, 1994 Order
of Judge Fitzgerald based upon the [June 7, 1994] stipulation of
[O.S.].”
The circuit court then found:
1. [O.S.] inflicted or allowed to be
inflicted upon [C.V.S.], by other than
accidental means, serious physical injury
[KRS 625.090(1)(b)].
2. [O.S.] had continuously or repeatedly
inflicted or allowed to be inflicted upon
[J.M.M.], by other than accidental means,
physical injury [KRS 625.090(1)(c)].
3. That while [O.S.] has shown some
progression through treatment and counseling,
she has continually or repeatedly failed to
obtain medical care necessary and available
for the well being of the children and
that there is no reasonable expectation of
significant improvement...[KRS
625.090(1)(f)].
Even if we were to assume that the circuit court erred in the
third finding, O.S.’s argument would not form a proper basis upon
which to reverse the circuit court’s decision.
Because the June
7, 1994 stipulation entered into by O.S. is sufficient to support
the first and second findings, the circuit court did not err in
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finding that at least one of the factors set forth in KRS
625.090(1)(a)-(f) was present by clear and convincing evidence.
Second, O.S. argues that the circuit court erred in
finding that no evidence existed indicating that the children
should not be returned to her.
O.S. relies on a letter written
by Judy Eubank, a Psychological Associate who worked with the
family for over a year.
In the letter, Judy Eubank recommended
increased visitation for O.S. in preparation for the return of
full custody.
The circuit court found that “[n]o social worker
or therapist, nor the guardian ad litem for the children
recommended returning the children to [O.S.]...”
Taken in
context, the circuit court was obviously referring to the
recommendations of the people currently participating in the
treatment of the family.
The pertinent hearings for this case
took place in March and May of 1997, while Judy Eubanks ceased
working with the family in August 1995.
Third, O.S. argues that the circuit court improperly
admitted opinion testimony.
The circuit court, in its findings
of fact, made reference to a video taped deposition of the
medical examiner that was not introduced into evidence and
adopted a portion of the family court order which utilized the
video taped deposition in evaluating the injuries to the
children.
The Kentucky Supreme Court, in Prater v.
Cabinet for Human Resources, Ky., 954 S.W.2d
954, 959 (1997), stated that, “Admission of
incompetent evidence in a bench trial can be
viewed as harmless error, but only if the
trial judge did not base his decision on that
evidence, G.E.Y. v. Cabinet for Human
Resources, supra, at 715, Holcomb v. Davis,
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Ky., 431 S.W.2d 881, 883 (1968), or if there
was other competent evidence to prove the
matter in issue, Escott v. Harley, 308 Ky.
298, 214 S.W.2d 387, 389 (1948).” (Emphasis
original)
In this case, the matter in issue concerned the opinion of the
medical examiner on whether C.V.S.’s injuries were the result of
abuse or neglect.
Because the injuries were adequately proven to
be the result of abuse or neglect by the family court stipulation
entered into by O.S., any error committed by the circuit court in
reciting the family court’s order containing such conclusions is
harmless.
O.S.’s final argument is without merit as it attempts
to recite the previous three arguments and advance a notion of a
cumulative effect on the circuit court’s order.
Since we have
addressed each argument individually we see no reason why we
should re-address them in a cumulative manner.
For the following reasons, the order of the Jefferson
Circuit Court terminating the parental rights of O.S. is hereby
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Ovene Sloan
Louisville, KY
Kathleen L. Patterson
Frankfort, Kentucky
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