C.D.G. v. CABINET FOR FAMILIES AND CHILDREN, COMMONWEALTH OF KENTUCKY; AND J.M.G., A MINOR CHILD
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RENDERED: APRIL 25, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000241-MR
C.D.G.
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 01-AD-00010
CABINET FOR FAMILIES AND
CHILDREN, COMMONWEALTH
OF KENTUCKY; AND J.M.G.,
A MINOR CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
C.D.G. appeals from an order terminating
parental rights and order of judgment of the Warren Circuit
Court.
We affirm.
On May 9, 1996, C.D.G. gave birth out of wedlock to
J.M.G.
On February 7, 2001, the Cabinet for Families and
Children, Commonwealth of Kentucky (hereinafter “CFC”) filed a
petition pursuant to KRS 625.050, et seq., seeking the
involuntary termination of C.D.G.’s parental rights as to J.M.G.
As a basis for the action, CFC pointed to at least three
instances of physical abuse directed at J.M.G. in 1999 and 2000
in which C.D.G. slapped J.M.G. and pinched his legs causing
bruising.
CFC also noted a possible finding of emotional abuse.
The record goes on to describe prior instances of J.M.G. being
placed in foster care, and C.D.G.’s alleged behavioral problems
including threatening to hit J.M.G., throwing objects, and
shoving and kicking him.
On January 4, 2002, a final hearing on the petition
was conducted in Warren Circuit Court.
Upon taking proof, the
court rendered an order and judgment on January 7, 2002,
terminating C.D.G.’s parental rights.
The court found in
relevant part that C.D.G. had inflicted physical injury or
emotional harm on J.M.G., and for a period in excess of six
months had failed or refused to provide essential care and
protection to him.
It concluded that J.M.G. met the statutory
definition of an abused and neglected child and ordered that
full care, custody and control of J.M.G. be vested with CFC.
This appeal followed.
C.D.G. now argues that the evidence presented to the
Warren Circuit Court does not support its decision to terminate
her parental rights and that the trial judge erred in failing to
so rule.
She maintains that the statutory grounds for
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termination have not been met, to wit:
that J.M.G. was not
abused or neglected; that the court improperly determined that
J.M.G.’s best interest required termination; and, that other
statutory grounds like continuous infliction of physical injury
or emotional harm were not met.
She goes on to argue that CFC
failed to provide professional medical assistance enabling her
to control her behavior.
Lastly, she maintains that the court
erred in failing to exercise its discretion under KRS 625.090(5)
not to terminate her rights since a preponderance of the
evidence showed that the abuse or neglect would not continue.
In sum, she seeks an order reversing the Warren Circuit Court’s
order and judgment terminating her parental rights.
As the parties are well-aware, involuntary termination
proceedings are adjudicated pursuant to KRS Chapter 600.
KRS
625.090 states that,
(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: . . . (a)(2) The
child is found to be an abused or neglected
child, as defined in KRS 600.020(1), by the
Circuit Court in this proceeding . . . and
b) termination would be in the best interest
of the child.
It goes on to set forth a list of additional factors, one of
which must be found by clear and convincing evidence in order to
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support an order of termination.
In the matter at bar, the
court relied on two such factors, i.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; (KRS 625.090(2)(e)) . . .
and
. . . 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[.]
(KRS 625.090(2)(g)).
We have closely studied the record, the written
arguments, and the law, and find no error in the trial court’s
order and judgment terminating C.D.G.’s parental rights.
The
court expressly found that each of the statutory elements was
satisfied, and evidence exists in the record upon which the
court properly so found.
First, the court found that J.M.G.
was “abused and neglected” (KRS 625.090), and the record
supports this finding.
The record indicates that C.D.G. bit and
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slapped J.M.G., struck him in the face and hit him in the mouth
with a toy requiring an emergency room visit.
Similarly, evidence exists upon which the court
properly concluded that C.D.G. continuously or repeatedly failed
or refused to provide or has been substantially incapable of
providing essential parental care (KRS 625.090(2)(e)) and
continuously or repeatedly failed to provide or is incapable of
providing essential food, clothing, shelter, medical care, or
education (KRS 625.090(2)(g)).
A finding that either of these
factors was met is sufficient to satisfy KRS 625.090(2).
Evidence was presented that C.D.G. was unwilling or unable to
provide for J.M.G.’s reasonable needs to such a degree that he
was placed in foster care for fifteen of the twenty-two months
preceding the filing of the petition.
Other evidence exists
regarding problems C.D.G. experienced with stress, anxiety and
anger, and that these difficulties so interfered with her
ability to care for J.M.G. that his reasonable needs were not
met.
We are not persuaded by her argument that CFC failed to
provide professional medical assistance enabling her to control
her behavior.
Finally, the court concluded that termination of
C.D.G.’s parental rights was in J.M.G.’s best interest.
The
cumulative weight of the evidence supports this conclusion, and
the trial court did not err in so ruling.
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We are not persuaded by C.D.G.’s argument that the
statutory prerequisites for termination were not met.
Substantial evidence exists in the record supportive of the
trial court’s findings, Sherfey v. Sherfey, Ky. App., 74 S.W.3d
777 (2002), and the court properly reached its conclusions of
law in accordance with KRS Chapter 600. As such, we find no
basis for tampering with its order terminating C.D.G.’s parental
rights.
For the foregoing reasons, we affirm the order
terminating C.D.G.’s parental rights and the order of judgment
entered by the Warren Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
Amanda Anderson Young
Bowling Green, KY
BRIEF FOR APPELLEE, CABINET FOR
FAMILIES AND CHILDREN:
Mary Gaines Locke
Munfordville, KY
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