J.F.M. and B.M., her husband ON REMAND v. CABINET FOR FAMILIES AND CHILDREN, COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 10, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002718-MR
J.F.M. and B.M., her husband
APPELLANTS
ON REMAND FROM THE SUPREME COURT
ACTION NO. 1999-SC-0902-DG
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 97-AD-00026
v.
CABINET FOR FAMILIES AND CHILDREN,
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE:
This matter is before us on remand by the
Kentucky Supreme Court in Morris v. Cabinet for Families and
Children, Ky., 69 S.W.3d 73 (2002).
The Court reversed and
remanded our opinion rendered August 5, 1999 and ordered that the
case be reconsidered upon the merits.
Upon reconsideration, we
affirm.
C.J.M. was born December 17, 1988.
At the time of his
birth, his mother, J.F.M., and his father, B.M., were neither
married nor cohabitating.
B.M.'s criminal history included
charges of disorderly conduct in 1982, terroristic threatening in
1992, and a sodomy conviction in 1986.
B.M. had at least two
charges of driving under the influence of alcohol by August 1998.
In 1995, B.M.'s daughter filed an Emergency Protective Order
against him.
J.F.M. had three other children by different fathers.
In July of 1992, J.F.M. was diagnosed with multiple sclerosis.
B.M. then moved in with J.F.M., C.J.M, and J.F.M.'s three other
children.
In December 1993, the Fayette District Court issued a
Domestic Violence Order (DVO) on behalf of C.J.M. and one of
J.F.M.'s other children, G.W.C.
The petition alleged B.M. struck
J.F.M. and G.W.C., and threatened to kill J.F.M.
The petition
further alleged the use of a weapon in a prior incident and that
B.M. was considered armed and dangerous.1
C.J.M. and G.W.C. were
removed from J.F.M.'s custody June 22, 1995 by order of the
Fayette Juvenile Court.
The record indicates that J.F.M. had
been evicted and that she and the children were homeless.
J.F.M.
repeatedly refused assistance offered through the Cabinet for
Human Resources, now Cabinet for Families and Children (CFC),
appellee herein.
B.M.'s whereabouts were at that time unknown.
G.W.C. was placed with his biological father and C.J.M. was
placed in foster care.2
Approximately one month after the children's removal,
B.M. returned, and he and J.F.M. were married.3
Pursuant to
1
J.F.M. later claimed this was a conspiracy by the Fayette
District Court and that her signature on the Domestic Violence
Petition was forged.
2
J.F.M.'s remaining two children eventually moved in with
their respective fathers.
3
The record indicates one of the reasons they married was
(continued...)
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C.J.M.'s removal, the CFC recommended J.F.M. and B.M. receive
parenting assistance and follow all recommendations therefrom.
It was further recommended that B.M. cooperate with treatment for
alcohol use, complete an anger management course, and either
provide verification of completion of sexual offender treatment
or initiate current treatment.
None of the recommendations was
followed, primarily because B.M. denied any issues therein.
A psychiatric evaluation of J.F.M. indicated she
suffered from dementia related to multiple sclerosis, and
psychotic disorder.
A neurological evaluation of J.F.M.
indicated that as she was wheelchair bound she would need
“supplemental services” to continue parenting.
J.F.M. continued
to refuse assistance primarily because she denied her physical
condition.
She further denied B.M. had domestic violence, or
sexual abuse issues.
In March of 1997, the CFC filed an action in the
Fayette Circuit Court to terminate J.F.M. and B.M.'s parental
rights to C.J.M.
The action went to trial August 4 and 5, 1998.
The circuit court found the following: (1) for reasons other than
poverty alone, J.F.M. and B.M. failed to provide a safe home, and
essential care for C.J.M., (2) C.J.M. was at risk for being a
victim or perpetrator of sexual abuse, (3) the CFC made
reasonable attempts at reunification of the family over a period
of about three years, (4) J.F.M. and B. M. did not follow
recommendations, and there was no reasonable expectation of
3
(...continued)
because J.F.M. was informed by a caseworker they stood a better
chance of having C.J.M. returned to them if they were married.
-3-
improvement, (5) C.J.M. made substantial improvement in foster
care, and (6) termination of J.F.M. and B.M.'s parental rights
was in C.J.M.'s best interest.
J.F.M. and B.M.'s parental rights were terminated by an
August 20, 1998 judgment of the Fayette Circuit Court.
and B.M. appealed to this Court.
J.F.M.
The appeal was dismissed for
failure to name a necessary party, to wit, C.J.M.
The Supreme
Court reversed and remanded back to this Court for decision on
the merits by opinion dated February 21, 2002.
We now address
the merits.
J.F.M. and B.M. first contend the circuit court erred
in failing “to follow the statutory standard for termination of
parental rights.”
Termination of parental rights is governed by
Kentucky Revised Statutes (KRS) 625.090, which reads in pertinent
part:
(1)
The Circuit Court may involuntarily
terminate all parental rights of a parent of
a named child, if the Circuit Court finds
from the pleadings and by clear and
convincing evidence that the child has been
adjudged to be an abused or neglected child
by a court of competent jurisdiction or is
found to be an abused or neglected child by
the Circuit Court in this proceeding and
that termination would be in the best
interest of the child. 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:
. . . .
(d) 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
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no reasonable expectation of improvement in
parental care and protection, considering
the age of the child;
(e) That the parent has caused or allowed
the child to be sexually abused or
exploited; or
(f) That the parent, 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
child's well-being and that there is no
reasonable expectation of significant
improvement in the parent's conduct in the
immediately foreseeable future, considering
the age of the child.
In the case at hand, J.F.M. has multiple sclerosis and
is wheelchair bound.
disorder.
She also suffers dementia, and psychotic
She repeatedly refused parenting assistance from CFC.
B.M. has a criminal history, including a DVO taken out on behalf
of C.J.M.
He likewise refused assistance from the CFC.
The CFC
made several recommendations to J.F.M. and B.M. that were meant
to promote reunification of the family.
It appears the only
“recommendation” of which they availed themselves was the
unofficial suggestion to get married.
C.J.M.'s foster mother, D.B., testified as to C.J.M.'s
condition upon arrival at her home.
She stated C.J.M. was frail,
would not eat, and suffered chronic colds and fevers.
At six-
and-a-half years of age, C.J.M. wore size four clothing.
His
hair was matted and his ears so blocked with wax as to require
removal by a doctor.
C.J.M.'s teeth were decayed to the point of
some being rotten and requiring removal.
necessary for a resulting infection.
-5-
Medication was
The record indicates
C.J.M.'s dental condition advanced because J.F.M. and B.M.
refused to disclose C.J.M.'s social security number to the CFC so
that a medical card could be issued.
receive childhood immunizations.
It appears C.J.M. did not
C.J.M. also exhibited sexually
inappropriate behavior.
We must conclude the circuit court's judgment was
clearly statutorily based.
Taking the aforementioned facts
together, we are of the opinion that there existed clear and
convincing evidence that C.J.M. was an abused and neglected child
under KRS 625.090.
J.F.M. and B.M. next contend the circuit court erred by
admitting into evidence a prior conviction against B.M.
In 1986,
B.M. was charged with sodomizing a thirteen year old boy and pled
guilty as part of a plea bargain.
When questioned at trial, B.M.
denied having committed the crime, in spite of the guilty plea.
J.F.M. and B.M. point out that the conviction was over ten years
old at the time of the trial.
They further assert the prior
conviction was irrelevant and prejudicial.
It appears J.F.M. and B.M. maintain that because B.M.'s
conviction was over ten years old at the time of trial it was,
per se, inadmissible.
Evid. (KRE) 609(b).
We assume this is a reference to Ky. R.
KRE 609(b) deals with the admissibility of
prior convictions for the purposes of impeachment.
We do not
believe KRE 609(b) applicable to the case at hand.
The prior
conviction was admitted for substantive purposes rather than
impeachment.
As such, we do not think B.M.'s conviction was
inadmissible because it was over ten years old.
-6-
J.F.M. and B.M. also complain B.M.'s prior conviction
was irrelevant and prejudicial.
Admission of a prior criminal
conviction may be relevant in a termination of parental rights
action when it reflects on a party's general ability to parent.
See G.E.Y. v. Cabinet for Human Resources, Ky. App., 701 S.W.2d
713 (1985).
There is abundant evidence in the record to indicate
C.J.M. was at considerable risk for sexual abuse in his home
environment, and was, indeed, already exhibiting inappropriate
sexual behavior.
Given the circumstances of the case at hand, we
believe B.M.'s sodomy conviction reflected upon his general
ability to parent C.J.M., and was, thus, relevant.
See Id.
Upon the whole, we are of the opinion the circuit court
properly terminated the parental rights of the J.F.M. and B. M..
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
John F. Rampulla III
Lexington, Kentucky
Terry L. Morrison
Frankfort, Kentucky
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