CABINET FOR FAMILIES AND CHILDREN v. S.B.S. and R.T.
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: February 2, 2001; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000324-MR
CABINET FOR FAMILIES AND CHILDREN
and T.L.S., a minor, by and through
her Guardian ad Litem
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 98-AD-00003
v.
S.B.S. and
R.T.
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order dismissing the
Cabinet for Families and Children’s petition for involuntary
termination of parental rights based on a determination that the
mother did not abandon the child because she initially consented
to the child’s commitment to the Cabinet.
We adjudge that the
trial court’s determination that the mother did not abandon the
child was in error and, thus, we vacate the order and remand for
further proceedings.
The child, T.S., was born on May 15, 1991.
The mother,
S.B.S., was married to H.S., Jr. at the time of conception and
birth.
However, the biological father of the child is R.T.
On March 22, 1993, when T.S. was 22 months of age, the
Cabinet for Families and Children (the “Cabinet”) obtained
emergency custody of T.S. because S.B.S. was incarcerated, had a
serious substance abuse problem, and T.S.’s uncle could no longer
care for her.
Neither H.S. nor R.T. have had any contact with
T.S. with the exception of some sporadic support provided by R.T.
On April 21, 1993, T.S. was committed to the care of the Cabinet
as a dependent child.
At this time, S.B.S. consented to the
commitment because she agreed that T.S. was better off in the
custody of the Cabinet due to her substance abuse problem.
T.S.
was initially placed in foster care for a year until April 28,
1994 when she was placed in the home of T.S.’s maternal
grandmother.
Subsequently, on May 2, 1994, the Cabinet revoked
its commitment.
However, in February of 1995, T.S. was
voluntarily committed by the grandmother because of the
grandmother’s illness.
The child was returned to the care of the
grandmother on July 10, 1995, but was thereafter again placed in
the custody of the Cabinet on October 16, 1995 by emergency order
because the grandmother had died.
At the time of the
grandmother’s death, S.B.S.’s whereabouts were unknown to the
Cabinet.
On November 16, 1995, T.S. was again committed to the
Cabinet and subsequently placed in foster care with relatives of
S.B.S., where she remains to this date.
-2-
Subsequent to T.S.’s initial commitment to the Cabinet
on April 21, 1993, a plan was established by the Cabinet for the
return of T.S. to S.B.S.
The goals of the plan were that S.B.S.
was to complete an inpatient drug and alcohol treatment program,
remain substance free, obtain safe and appropriate housing, and
obtain a parenting assessment.
S.B.S. made no effort to achieve
any of these goals at this time.
S.B.S. saw T.S. at her mother’s funeral and a few days
later called the Cabinet to inquire about T.S.’s placement in
foster care, but then had no further contact with the Cabinet for
approximately six months.
At this time, the Cabinet again
established a treatment plan which had the same goals as the
previous treatment plan.
However, S.B.S. did not attend the
treatment plan conference and admittedly made no serious effort
to deal with her drug problem at that time.
A visitation plan
was also established by the Cabinet after T.S. was placed in
foster care with the relatives of S.B.S.
However, S.B.S. only
visited T.S. once on May 13, 1996 during which T.S. was scared
and crying, so S.B.S. left after 15 minutes.
According to
S.B.S., she made other attempts to visit T.S. during this time,
but was discouraged by the foster parents who did not want S.B.S.
to be around T.S.
On January 4, 1998, pursuant to a charge of thirdoffense possession and a guilty plea to second offense, S.B.S.
was accepted into the Fayette Circuit Court Drug Court Program.
It is undisputed that S.B.S. was an exceptional participant in
-3-
the program and did not have one absence or positive drug screen
while in the program.
On January 21, 1998, the Cabinet filed a petition for
involuntary termination of parental rights of S.B.S., H.S., and
R.T.
S.B.S. was served with process on January 30, 1998 by a
warning order attorney.
S.B.S. thereafter gave notice that she
was contesting the termination and counsel was appointed on her
behalf.
In April of 1998, S.B.S. attended a conference with the
Cabinet and indicated her desire to comply with the treatment
plan in order to get T.S. back.
She was advised by the Cabinet
that its goal was now termination of parental rights and that
there was nothing she could do to get T.S. back.
She was further
informed that visitation was not in the best interest of T.S.
At the termination hearing, S.B.S. testified that
because of her drug addiction from 1991 to January, 1998, she was
unable to care for T.S.
She admitted that she had three
convictions for drug-related offenses as well as a probation
violation and theft convictions.
She stated, however, that she
now has her priorities straight and is able to care for her
daughter.
She testified that she has a steady job and stable
housing.
The order of the Fayette Circuit Court terminated the
parental rights of H.S. and found that grounds existed to
terminate the parental rights of R.T.
However, the court
dismissed the petition as to S.B.S., adjudging that S.B.S. never
abandoned T.S. because she consented to the child’s initial
commitment to the Cabinet.
At the request of the Cabinet, since
-4-
the court was not ordering the termination of S.B.S.’s parental
rights, the parental rights of R.T. were not terminated so that
he could still be ordered to provide support for T.S.
The court,
however, did allow T.S. to remain in the custody of the Cabinet
until a determination could be made as to “the future propriety
of returning the child to her maternal parent.”
From this order
of the circuit court, the Cabinet now appeals.
The Cabinet does not deny that its desire is for the
parental rights of S.B.S. to be terminated so that T.S.’s current
foster parents can adopt T.S.
T.S. is presently still in foster
care with the relatives of S.B.S. and has been there since
November of 1995.
The evidence at the hearing established that
T.S. is a happy, healthy seven-year-old who is doing very well in
her Fayette County Magnet School.
The Cabinet argues that the trial court’s conclusion of
law that S.B.S. could not have abandoned T.S. since she consented
to her commitment to the Cabinet was in error, while S.B.S.
argues that such determination was a finding of fact which could
not be overturned unless there was no substantial evidence to
support the finding.
It is noted that a trial court’s findings
of fact with regard to a termination of parental rights petition
are governed by the clearly erroneous standard set forth in CR
52.01.
R.C.R. v. Commonwealth Cabinet for Human Resources, Ky.
App., 988 S.W.2d 36 (1999).
It has been held the state must
present its proof in a termination of parental rights case by
clear and convincing evidence.
Santosky v. Kramer, 455 U.S. 745,
102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
-5-
In our view, the
determination of whether a parent has abandoned a child is a
mixed question of fact and law.
In the present case, the
significant facts relative to S.B.S.’s actions are essentially
undisputed.
It is not disputed that because of S.B.S.’s drug
problem, she could not care for T.S. and, thus, consented to
T.S.’s commitment to the Cabinet in 1993.
It is further
undisputed that S.B.S. thereafter failed to make any effort to
comply with the Cabinet’s treatment plan and continued to abuse
drugs until 1998.
The sole basis of the trial court’s ruling
that there was no abandonment in this case was that S.B.S.
consented to T.S.’s initial commitment to the Cabinet.
We
believe this was a conclusion of law, an erroneous conclusion of
law.
KRS 625.090(2)(a) provides:
(2) 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:
(a) That the parent has abandoned the
child for a period of not less than
ninety days;
There is no statutory definition of “abandon” relative to KRS
625.090(2)(a).
In O.S. v. C.F., Ky. App., 655 S.W.2d 32, 34
(1983), our Court stated, “Generally, abandonment is demonstrated
by facts or circumstances that evince a settled purpose to forego
all parental duties and relinquish all parental claims to the
child.”
In our view, simply because a parent voluntarily gives
her child over to the Cabinet for commitment because she is
addicted to drugs does not preclude a finding of abandonment.
When S.B.S. allowed T.S. to be committed to the Cabinet because
-6-
she was addicted to drugs and thereafter made no good faith
attempt to stop abusing drugs and meet the Cabinet’s treatment
plan for almost five years, she clearly demonstrated her intent
to forego and relinquish all parental duties and claims.
Under
the trial court’s logic, a parent who wishes to continue abusing
drugs need only consent to the child’s commitment to the Cabinet
in order to reclaim the child years later when she has finally
gotten clean.
By this time, the child has either languished in
the foster care system or, as in the present case, has bonded
with a foster care family and must suffer the emotional
consequences of being torn therefrom.
Even if we assume, for the sake of S.B.S.’s argument,
that S.B.S. did take care of T.S. for some of the time that T.S.
was placed with S.B.S.’s mother, S.B.S.’s mother was still the
one legally responsible for T.S. and S.B.S. was admittedly still
using drugs during this period.
been caring for T.S.
Thus, S.B.S. should not have
Further, the state need only prove that the
abandonment was for at least 90 days.
Prior to T.S.’s placement
with her grandmother, T.S. had been in foster care for over a
year.
Likewise, after the grandmother’s death when T.S. was
placed with the current foster parents in 1995, she saw T.S. only
once and made no serious attempt to meet the Cabinet’s treatment
plan until 1998.
Accordingly, we reverse the trial court’s finding that
S.B.S. did not abandon T.S., vacate the judgment, and remand to
the trial court for further proceedings on the petition for
-7-
involuntary termination of both S.B.S.’s rights and R.T.’s
rights.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, COMMONWEALTH OF
KENTUCKY CABINET FOR FAMILIES
AND CHILDREN:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, S.B.S.:
Anthony D. Wilson
Lexington, Kentucky
David W. Mossbrook
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
