V.S.S. v. CABINET FOR FAMILIES AND CHILDREN, AS PETITIONER AND NEXT FRIEND OF T.M.S., A CHILD, M.I.S., A CHILD, AND T.R.S., A CHILD
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RENDERED:
DECEMBER 24, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000965-MR
V.S.S.1
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 00-AD-00020
v.
CABINET FOR FAMILIES AND CHILDREN, AS
PETITIONER AND NEXT FRIEND OF T.M.S.,
A CHILD, M.I.S., A CHILD, AND
T.R.S., A CHILD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
V.S.S has appealed from separate orders entered
by the Greenup Circuit Court on April 8, 2002, which terminated
her parental rights to three of her children, T.M.S., M.I.S.,
and T.R.S.
Having concluded that the trial court’s decision to
terminate V.S.S.’s parental rights is supported by clear and
1
In order to protect the privacy of the children, we will use initials to
identify the parents and children.
convincing evidence that her children were abused or neglected
while under her care and that it is in their best interests to
have their mother’s parental rights terminated, we affirm.
V.S.S. is the biological mother of six children.
This
appeal concerns the termination of her parental rights to
T.M.S., who was born on March 26, 1996; M.I.S., who was born on
February 15, 1997; and T.R.S., who was born on February 22,
1998.
V.S.S.’s husband, R.E.S., is the biological father of
T.M.S., M.I.S., and T.R.S.2
In June 1998, M.I.S. was brought to
Cincinnati Children’s Hospital in Cincinnati, Ohio, where he was
diagnosed with multiple and chronic subdural hematomas and
retinal hemorrhaging.
On June 30, 1998, Angela Estepp, a
supervisor with the Kentucky Cabinet for Families and Children,
received a referral from the hospital concerning M.I.S.’s
condition.
Shortly thereafter, Estepp contacted Dr. Bloom, one
of the doctors who treated M.I.S.
Dr. Bloom informed Estepp
that he believed M.I.S. had been abused and that his symptoms
were consistent with “shaken baby syndrome.”
Dr. Bloom also
informed Estepp that M.I.S. had bruises on his back, thighs, and
buttocks.
Estepp also spoke with Judy Woods, a social worker,
2
V.S.S. and R.E.S. are also the biological parents of J.S., who was born on
June 9, 1999, and V.S., who was born on March 26, 2001. V.S.S. currently has
custody of J.S. and V.S. R.E.S. is also the biological father of three other
children, all of whom were born prior to his marriage to V.S.S. R.E.S.’s
parental rights to the children born prior to his marriage to V.S.S. have
been terminated.
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who informed her that neither the father nor the mother had been
to see M.I.S. at the hospital for several days.
On July 7, 1998, the Cabinet filed in the Greenup
District Court a petition for an emergency custody order
pertaining to M.I.S., alleging that M.I.S. had been physically
abused.
The Cabinet also petitioned the Greenup District Court
for emergency custody orders with respect to T.M.S. and T.R.S.,
alleging that T.M.S. and T.R.S. would be seriously endangered if
left in the care of their parents.
On July 9, 1998, the Greenup
District Court ordered these three children to be removed from
the family home and temporarily placed in the Cabinet’s custody.
The district court further ordered the parents to pay child
support for each child in the amount of $60.00 per month.
On
August 10, 1998, the district court ordered the parents to each
obtain a G.E.D. and to complete parenting classes.
The father
was subsequently charged with assault in the first degree3 (child
abuse), and on May 27, 1999, the father pled guilty to the
charge of criminal abuse in the second degree.4
On November 27, 2000, the Cabinet filed a petition in
the Greenup Circuit Court for the involuntary termination of
R.E.S.’s and V.S.S.’s parental rights to T.M.S., M.I.S., and
T.R.S.
The case was tried before the circuit court on March 22,
3
Kentucky Revised Statutes (KRS) 508.010.
4
KRS 508.110.
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2002, and V.S.S. and R.E.S. both testified.
Estepp and Angela
Keeton, a social worker with the Cabinet, also testified at the
trial.
On April 8, 2002, the trial court entered orders
terminating R.E.S.’s and V.S.S.’s parental rights to T.M.S.,
M.I.S., and T.R.S.
In sum, the trial court found that each
child was an abused and neglected child as defined by KRS
600.020(1) and that the termination of R.E.S.’s and V.S.S.’s
parental rights was in T.M.S.’s, M.I.S.’s, and T.R.S.’s best
interests.
This appeal followed.5
V.S.S., the mother, takes issue with several of the
trial court’s findings.6
More specifically, V.S.S. contends the
trial court’s determination that she continuously or repeatedly
refused to provide or has been substantially incapable of
providing essential parental care and protection for T.M.S.,
M.I.S., and T.R.S., and that there is no reasonable expectation
of improvement is clearly erroneous.
V.S.S further contends
that the trial court’s determination that she continuously or
repeatedly failed to provide or is incapable of providing
essential food, clothing, shelter, medical care or education for
T.M.S., M.I.S., and T.R.S., and that there is no reasonable
expectation of significant improvement in her conduct is clearly
erroneous.
V.S.S. next contends that the trial court’s finding
5
T.M.S., M.I.S., and T.R.S. have remained in foster care since they were
removed from the family home in July 1998.
6
R.E.S., the father, did not file an appeal.
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that the termination of her parental rights was in the best
interests of T.M.S., M.I.S., and T.R.S. is clearly erroneous.
V.S.S. also contends that the trial court’s determination that
T.M.S. and T.R.S. are abused and neglected children as defined
by KRS 600.020(1) is clearly erroneous.
KRS 625.090 governs the termination of parental
rights.
The statute provides, in pertinent part, as follows:
(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)
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;
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)
(2)
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:
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(a) That the parent has abandoned
the child for a period of not
less than ninety (90) days;
(b) That the parent has inflicted
or allowed to be inflicted upon
the child, by other than
accidental means, serious
physical injury;
(c) That the parent has continuously
or repeatedly inflicted or
allowed to be inflicted upon the
child, by other than accidental
means, physical injury or
emotional harm;
. . .
(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
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foreseeable future, considering
the age of the child; [or]
. . .
(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.
(3)
In determining the best interest of
the child . . . the Circuit Court
shall consider the following factors:
. . .
(b) Acts of abuse or neglect as
defined in KRS 600.020(1) toward
any child in the family;
(c) If the child has been placed
with the cabinet, whether the
cabinet has, prior to the filing
of the petition made reasonable
efforts as defined in KRS
620.020 to reunite the child
with the parents unless one or
more of the circumstances
enumerated in KRS 610.127 for
not requiring reasonable efforts
have been substantiated in a
written finding by the District
Court;
(d) The efforts and adjustments the
parent has made in his
circumstances, conduct, or
conditions to make it in the
child’s best interest to return
him to his home within a
reasonable period of time,
considering the age of the
child;
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(e) The physical, emotional, and
mental health of the child and
the prospects for the
improvement of the child’s
welfare if termination is
ordered; and
(f) The payment or the failure to
pay a reasonable portion of
substitute physical care and
maintenance if financially able
to do so.
In summary, the statute requires a finding that: (1)
the child is an abused or neglected child;7 (2) termination would
be in the best interests of the child; and (3) one or more of
the factors set out in KRS 625.090(2)(a)-(g) are present.8
7
Pursuant to KRS 600.020(1), an abused or neglected child means:
[A] child whose health or welfare is harmed or
threatened with harm when his parent, guardian, or
other person exercising custodial control or
supervision of the child: [ ] [i]nflicts or allows to
be inflicted upon the child physical or emotional
injury as defined in this section by other than
accidental means; [ ] [c]reates or allows to be
created a risk of physical or emotional injury as
defined in this section to the child by other than
accidental means; [ ] [e]ngages in a pattern of
conduct that renders the parent incapable of caring
for the immediate and ongoing needs of the child
including, but not limited to, parental incapacity
due to alcohol and other drug abuse as defined in KRS
222.005(12); [ ] [c]ontinuously or repeatedly fails
or refuses to provide essential parental care and
protection for the child, considering the age of the
child; . . . [a]bandons or exploits the child; or [ ]
[d]oes not provide the child with adequate care,
supervision, food, clothing, shelter, and education
or medical care necessary for the child’s well-being.
8
See R.C.R. v. Commonwealth, Cabinet for Human Resources, Ky.App., 988 S.W.2d
36, 38 (1999).
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The standard of review governing an appeal from an
order terminating parental rights is well established.
As this
Court stated R.C.R., supra:
The trial court has broad discretion in
determining whether the child fits within
the abused or neglected category and whether
the abuse or neglect warrants termination.
Department for Human Resources v. Moore,
Ky.App., 552 S.W.2d 672, 675 (1977). This
Court’s review in a termination of parental
rights action is confined to the clearly
erroneous standard in CR 52.01 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. V.S. v. Commonwealth, Cabinet for
Human Resources, Ky.App., 706 S.W.2d 420,
424 (1986). “Clear and convincing proof
does not necessarily mean uncontradicted
proof. It is sufficient if there is proof
of a probative and substantial nature
carrying the weight of evidence sufficient
to convince ordinarily prudent-minded
people.” Rowland v. Holt, [ ] 253 Ky. 718,
70 S.W.2d 5, 9 (1934).9
We conclude that the findings challenged in this
appeal are supported by clear and convincing evidence.
The
mother testified that she witnessed the father physically abuse
M.I.S. on two separate occasions.
More specifically, she stated
that she witnessed the father attempt to pull M.I.S. off the
floor by his earlobes because the child would not walk.
Moreover, the mother testified that she failed to pay child
9
Id. at 38-9.
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support for T.M.S., M.I.S., and T.R.S. prior to 2001.10
The
mother stated that she only began paying child support for
T.M.S., M.I.S., and T.R.S. because she did not want to go to
jail.
The mother further testified that the father had abused
her in the past.
The mother stated that she only continued her
relationship with the father because she was unable to support
herself.
The mother testified that she earned approximately
$600.00 over the past two years.
The mother further testified
that her lack of knowledge and failure to obtain a G.E.D.
substantially contributed to her inability to support herself
and her children.
The mother stated that she attempted to
obtain a G.E.D. but that she eventually decided to quit
attending classes.
The mother also stated that she separated
from the father a week before the trial because she knew she was
coming to court and she was afraid that she might lose her
children if she continued staying with him.
Nevertheless, the
mother testified that she loved the father and that she would
prefer to live with him and the children.
In addition, Estepp, the Cabinet supervisor, testified
that she made several home visits prior to the removal hearing
which occurred in July 1998.
Estepp stated that when she
visited the family residence, she usually found the children
strapped in car seats on the back porch.
10
Estepp testified that
As previously discussed, the mother was ordered to pay child support in the
amount of $60.00 per month for T.M.S., M.I.S., and T.R.S, in July 1998.
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she established a reunification plan with the mother shortly
after T.M.S., M.I.S., and T.R.S were removed from her custody
and that the mother visited the children on several occasions.
Estepp stated that while she believed the mother loved her
children, she feared the mother would not be able to protect the
children from their father.
Estepp testified that she believed
termination of the mother’s parental rights was in the best
interests of T.M.S., M.I.S., and T.R.S.
Keeton, the Cabinet social worker, testified that she
was assigned to the mother’s case in August 1999.
Keeton
explained that she met with the mother and the children on
several occasions.
Keeton further explained that she observed
T.M.S., M.I.S., and T.R.S. as they were returning from visits
with their mother and she testified that on several occasions
the mother would return T.R.S. with feces in his diaper.
Keeton
also stated that on one occasion she observed blisters on
T.R.S.’s buttocks.
Based on the aforementioned testimony, we are
unpersuaded that the trial court’s finding that T.M.S., M.I.S.,
and T.R.S. were abused and neglected children as defined by KRS
600.020(1) is clearly erroneous.
The testimony described above
clearly demonstrates that T.M.S., M.I.S., and T.R.S. were
subjected to a dysfunctional family environment permeated by
child neglect, abuse, and violence.
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Moreover, the mother’s own
testimony supports the trial court’s finding that she was
substantially incapable of providing essential parental care and
protection for T.M.S., M.I.S., and T.R.S., and that there is no
reasonable expectation of improvement in her parental care and
protection of the children.
The mother admitted that she failed
to pay child support for T.M.S., M.I.S., and T.R.S. for an
extended period of time.
The mother further testified that she
was unable to support herself and her children due to the fact
she was unable to obtain suitable employment, yet she admitted
that she quit attending classes that would have enabled her to
obtain a G.E.D.
In addition, the mother’s testimony
demonstrates her unwillingness to leave the father, despite the
fact that he physically abused M.I.S.
The testimony introduced
at trial further supports the trial court’s finding that the
mother is incapable of providing essential food, clothing,
shelter, medical care or education for T.M.S., M.I.S., and
T.R.S, and that there is no reasonable expectation of
improvement in her conduct.
Furthermore, we conclude that the
trial court did not err in finding that the termination of the
mother’s parental rights was in T.M.S.’s, M.I.S.’s, and T.R.S.’s
best interests.
While the mother obviously disagrees with the
trial court’s findings, we simply cannot conclude that “there
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exists no substantial evidence in the record to support its
findings.”11
Based on the foregoing reasons, the orders entered by
the Greenup Circuit Court terminating V.S.S.’s parental rights
to T.M.S., M.I.S., and T.R.S. are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Luke Bentley III
Vanceburg, Kentucky
Kirk D. Woosley
Paris, Kentucky
11
R.C.R., 988 S.W.2d at 38 (citing V.S. 706 S.W.2d at 424).
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