D.A.E. v. J.T.E.; T.E.E.; A.W.E.; T.A.E.; AND CABINET FOR FAMILIES & CHILDREN, COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 26, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001010-MR
D.A.E.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEVIN GARVEY, JUDGE
ACTION NO. 00-FC-007818
v.
J.T.E.; T.E.E.; A.W.E.; T.A.E.;
AND CABINET FOR FAMILIES & CHILDREN,
COMMONWEALTH OF KENTUCKY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, MILLER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
D.A.E. appeals from an order of the Jefferson
Family Court terminating his parental rights to three minor
children, T.E.E, A.W.E., and J.T.E.
We affirm.
At the time of D.A.E.’s marriage to his wife, T.A.E.,
she was already pregnant with twin boys.
The putative father is
one Greg Martin; however, the Cabinet for Families and Children
(Cabinet) has been unable to locate him.
D.A.E., therefore, is
the legal father of T.E.E. and A.W.E. although he is not their
biological father.
D.A.E and T.A.E. also had a son, J.T.E., who
was born in 1992.
The Cabinet was actually involved with the
family prior to the birth of this youngest child due to domestic
violence issues and, in 1993, all three children were removed
from the home for the first time.
The children were removed and returned numerous times
between March 1993 and October 2000 when the present petition for
termination of parental rights was filed.
D.A.E. and T.A.E.
received extensive services from the Cabinet addressing issues
such as safety, supervision, housekeeping, medical neglect,
speech, parenting, and counseling for both parents and children.
During this time some nineteen case plans were worked out between
the Cabinet and the parents in order to maintain this family as a
unit.
In March 1998 the children were placed in foster care, and
their parents stipulated to neglect on May 7, 1998.
D.A.E. and
T.A.E. finally separated from one another and D.A.E. began trying
to regain custody of the three children.
At this time, D.A.E. began to fluctuate regarding
whether he wanted all three children or just his biological
child, J.T.E. In January 2000, D.A.E. began to have visitation
with all three children on alternating weekends and overnight
visitation with each child in turn on Wednesday nights.
A prior
petition for termination of parental rights was dismissed at the
Cabinet’s request, and the children were returned to D.A.E. in
June 2000.
Despite receiving extensive support services,
D.A.E.’s ability to parent all three children began to
deteriorate immediately.
In August 2000, the children were
removed from D.A.E.’s home, and he announced that he wanted to
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seek custody of the youngest child only from that point on.
Nevertheless, D.A.E. proved unable to parent his biological child
and the Cabinet moved for termination of parental rights to all
three children on October 17, 2000.
After a lengthy hearing and
detailed findings of fact, the trial court concluded that there
were several grounds that justified terminating both D.A.E.’s and
T.A.E.’s parental rights.
This appeal followed.
D.A.E. argues that the trial court erred in its
determination that the Cabinet proved the grounds for terminating
his parental rights by clear and convincing evidence.
His
argument centers on the Cabinet’s request to dismiss a prior
petition to terminate parental rights and a letter written by
members of the family’s treatment team that D.A.E. had made
significant progress in his ability to parent the three boys.
This letter and the subsequent decision to dismiss the first
petition for termination resulted in the children being removed
from foster care and placed in D.A.E.’s home in June 2000.
There
were numerous problems during that time which culminated in the
Cabinet’s decision to remove all three children from the home on
August 26, 2000.
On that date, an aide from Seven Counties
Services arrived at the home to find one of the twins jumping on
the couch, the youngest child holding a table up off the floor as
though he intended to throw it, a bed jacked up near the ceiling
on a car jack, and their father in the kitchen asking for help.
Kentucky Revised Statute (KRS) 625.090, governing
involuntary termination of parental rights, describes a threeprong test which must be met by clear and convincing evidence
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prior to terminating parental rights.
First, the child must be
abused or neglected as defined by KRS 600.020.
Termination of
parental rights must also be in the child’s best interests under
the standard set forth in KRS 625.090(1)(b).
Finally, the court
must find the existence of at least one of ten specific
conditions enumerated by KRS 625.090(2).
The trial court has a
great deal of discretion in determining whether this test has
been met.
MPS v. Cabinet for Human Resources, Ky. App., 979
S.W.2d 114 (1998).
Our review of a decision terminating parental
rights “is confined to the clearly erroneous standard in
[Kentucky Rule of Civil Procedure] 50.02 based upon clear and
convincing evidence, and the findings of the trial court will not
be disturbed unless there exists no substantial evidence in the
record to support its findings.”
RCR v. Cabinet for Human
Resources, Ky. App., 988 S.W.2d 36, 38 (1999).
omitted.)
(Citations
“Clear and convincing proof does not necessarily mean
uncontradicted proof.
It means proof of a probative and
substantial nature carrying the weight of evidence sufficient to
convince ordinarily prudent-minded people.”
Rowland v. Holt,
Ky., 70 S.W.2d 5, 9 (1934).
The first prong of the test for terminating parental
rights is found in KRS 625.090(1)(a) which states as follows:
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:
(a)
1. The child has been adjudged to be an
abused or neglected child, as defined in
KRS 600.020(1), by a court of competent
jurisdiction;
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2. The child is found to be an abused
or neglected child, as defined by KRS
600.020(1), by the Circuit Court in this
proceeding. . .
These children had previously been committed to the Cabinet as
neglected children by the Taylor District Court in 1995 and by
the Jefferson Family Court in 1998.
In neither instance, did
D.A.E. or his wife appeal the determination that their children
were neglected.
The trial court here made a finding that the
children were abused and neglected pursuant to KRS 600.020(1).
There are by statute nine circumstances on which a finding of
abuse or neglect can be based.
Included among these are allowing
a risk of physical danger to be created by other than accidental
means, a parent’s failure to provide adequate supervision,
repeatedly failing to provide essential care and protection, and
failing to make significant progress towards identified goals
which would allow the children to be returned to the parent.
The twins were first removed from the home in 1993 due
to allegations that they had been physically abused.
later, J.T.E. was removed due to medical neglect.
Three weeks
In 1998, one
of the twins suffered scratches from a coat hanger and burns from
a cigarette lighter, these injuries being afflicted on him by one
or both of his brothers.
On one occasion while in D.A.E.’s care,
the twins set the curtains on fire.
The children were frequently
unsupervised, and D.A.E. admitted to social workers that he often
could not account for the whereabout of each child.
J.T.E.
suffered medical neglect when he sustained facial injuries after
falling from a bunk bed and his parents waited until it was too
late for stitches to seek treatment.
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Despite some eleven years
of services being provided by the Cabinet, D.A.E. has not been
able to care for the children in his home except for a period in
2000 which lasted less than three months and ended in their
removal and return to the foster home.
Consequently, we believe
that the trial court correctly found that D.A.E.’s children were
abused or neglected as defined by KRS 600.020(1).
KRS 625.090(1)(b) only allows involuntary termination
of parental rights when it in the best interest of the child.
There are several factors, listed in KRS 625.090(3), which the
trial court is directed to consider in determining whether
termination is in the best interest of the child.
In
determining that termination of D.A.E.’s parental rights would be
in the children’s best interest, the trial court considered the
following factors found in KRS 625.090(3)(c) and (e):
(c)
If a child has been placed with the
cabinet, whether the cabinet has,
prior to the filing of the
petition, made reasonable efforts
. . . to reunite the child with the
parents; . . .
(e)
The physical, emotional, and mental
health of the child and the
prospects of the improvement of the
child’s welfare if termination is
ordered. . .
The Cabinet has been involved with this family since 1990 and has
provided a myriad of services, both inside the home and out, to
both parents, and to the three boys.
Sandra Braunstein, a social
worker for the Cabinet, testified that each time services were
provided the parents were initially cooperative and interested
and then would lose interest and fail to keep appointments.
Donna Franklin, an aide with Seven Counties Services, was working
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with the family during the period between June and August 2000
when the boys were removed from the foster home and living with
D.A.E.
She testified that she was providing help with behavioral
modification to address following directions and unsafe
situations.
Although she had seen them follow directions in
their foster home, D.A.E. did not consistently enforce rules with
the result that the boys ignored his directions.
The Cabinet also presented testimony from Faye Rogers
who has had the boys in foster care, along with six other
children, since March 1998.
She testified that they arrived at
her home dirty, emotionally unstable, and with medical problems.
While in her care, they were clean, healthy, progressing well in
school, and living in a structured environment.
After living
briefly with their father in the summer of 2000, they returned to
her home exhibiting the same negative behaviors that they had
initially when she first cared for them.
Moreover, even though
D.A.E. now has visitation with only his biological son, J.T.E.,
the child returns from his father’s home tired, with bags under
his eyes and, on one occasion, sick from eating too much junk
food.
She concluded her testimony by stating that she would be
willing to continue to foster all three boys until a permanent
home could be found.
Relatives of the boys’ mother have
expressed an interest in adopting them.
We believe that the
evidence before the trial court supported its finding that
termination of D.A.E.’s parental rights was in each child’s best
interest.
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KRS 625.090(2) also requires the trial court to find
that one of ten grounds for termination of parental rights exists
by clear and convincing evidence.
The trial court found the
following three grounds for terminating D.A.E.’s parental rights:
(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;
. . . .
(g)
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;
. . . .
(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;
. . .
At the time the petition was filed on October 17, 2000, the
children had been in foster care since March 1998 with the
exception of a three month period from June through August 2000.
Clearly, the trial court was entitled to find that the ground for
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termination stated in KRS 625.090(2)(j) was proven by clear and
convincing evidence.
The trial court also entered a finding under KRS
625.090(2)(e) that D.A.E. was unable to provide essential
parental care and that there was no expectation of his
improvement.
Matthew Veroff, a Licensed Clinical Social Worker
certified by Kentucky, was D.A.E.’s primary therapist and did
family work with D.A.E. and the children.
He testified that
D.A.E. was a model client who attended counseling consistently
and made a good faith effort to implement suggested changes in
his parenting behaviors.
At the same time, D.A.E. was also
unable to set limits with the boys, made inappropriate comments
while J.T.E. was present in therapy sessions with him, and failed
to distinguish between his own wants and needs and those of his
children.
Matt testified that, although D.A.E. had received
hundreds of hours of therapeutic treatment since 1999, there had
been no progress in D.A.E.’s parenting abilities.
In addition to finding grounds for termination under
KRS 625.090(2)(e) and (j), the trial court also found that (g)
applied in that D.A.E., for reasons other than poverty alone, was
unable to provide for the childrens’ needs and there was no
reasonable prospect of improvement.
Much is made in D.A.E.’s
brief of the fact that the Cabinet always felt that all three
boys should remain together as they are extremely bonded to one
another and to their parents and that the twins are unaware that
D.A.E. is not their natural father.
Nevertheless, after all
three were removed from D.A.E.’s home on August 26, 2000, the
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Cabinet continued to provide services to D.A.E. and to allow him
to visit with J.T.E.
D.A.E.’s sister, who is a schoolteacher,
testified that her brother is incapable of parenting even the
youngest child alone.
According to the sister, she and her
cousin paid the deposit on D.A.E.’s apartment, set up furniture,
and cleaned.
brother.
From time to time, she has had to buy food for her
She testified that D.A.E., who is diabetic, often
refuses to take his medication even though he becomes easily
agitated when his sugar level is too high.
While supervising
D.A.E.’s visitation with J.T.E., the sister further observed that
D.A.E. was doing his son’s homework and that J.T.E. was
completely illiterate.
She expressed the opinion that D.A.E. and
J.T.E. interacted more as friends rather than parent and child
and that D.A.E.’s home lacked a structured environment.
D.A.E.
admitted that he and his sister are close, that she had no motive
to lie, and that she only had his son’s best interest at heart.
Matt Veroff testified that J.T.E. is more intelligent than his
father and that D.A.E. is easily manipulated by his son.
In
light of all this testimony, we believe that sufficient evidence
supported the trial court’s conclusion that D.A.E.’s parental
rights should be terminated to all three children.
For the foregoing reasons, the order of the Jefferson
Family Court terminating the parental rights of D.A.E. is
affirmed.
DYCHE, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, CABINET
FOR FAMILIES AND CHILDREN,
COMMONWEALTH OF KENTUCKY:
Robert J. Stauble
Louisville, Kentucky
Carole J. Catalfo
Assistant Counsel
Shepherdsville, Kentucky
NO BRIEF FOR APPELLEES,
J.T.E.; T.E.E; A.W.E.; AND
T.A.E.
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