K.M.W.M. v. COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN; A.N.S.W., AN INFANT; AND E.E.S., SR.
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RENDERED:
December 3, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000222-MR
K.M.W.M.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE KEVIN L. GARVEY, JUDGE
ACTION NO. 03-AD-500050
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN;
A.N.S.W., AN INFANT; AND E.E.S., SR.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TACKETT, TAYLOR, AND VANMETER, JUDGES.
TAYLOR, JUDGE:
K.M.W.M. appeals from a January 23, 2004,
judgment of the Jefferson Family Court terminating her parental
rights to the minor child, A.N.S.W.
We Affirm.
In September 2001, the Cabinet for Families and
Children (Cabinet) filed a petition against appellant alleging
risk of abuse or neglect of appellant’s five-month old infant,
A.N.S.W.1
Appellant stipulated to A.N.S.W.’s neglect, but the
child was not removed from her custody.
Following allegations
that another of appellant’s children had been physically
assaulted by her paramour, the Cabinet filed another petition
alleging risk of abuse or neglect in August of 2002.
A.N.S.W.
was subsequently removed from appellant’s home.
In November 2002, the family court found that A.N.S.W.
was a neglected child and, thus, committed her to the Cabinet’s
care and control.
This action was subsequently initiated by the
Cabinet filing a petition seeking involuntary termination of
appellant’s parental rights.2
By judgment entered January 23,
2004, the circuit court terminated appellant’s parental rights.
This appeal follows.
In a termination of parental rights case, the findings
of fact must be based upon clear and convincing evidence.
M.P.S. v. Cabinet for Human Resources, Ky. App., 979 S.W.2d 114
(1998), citing V.S. v. Commonwealth, Cabinet for Human
Resources, Ky. App., 706 S.W.2d 420 (1986).
Our review is
limited to the clearly erroneous standard of Ky. R. Civ. P. (CR)
52.01 and, as such, the family court’s findings of fact will not
1
The petition also alleged risk of abuse or neglect as to appellant’s four
(4) older children. Appellant’s parental rights to those children were
terminated in a separate action by the Jefferson Family Court on November 4,
2002.
2
A.N.S.W.’s biological father, E.E.S., Sr., consented to a voluntarily
termination of his parental rights.
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be disturbed on appeal “unless there exists no substantial
evidence in the record to support its findings.”
M.P.S., 979
S.W.2d at 116.
Appellant contends the family court erred by
terminating her parental rights to A.N.S.W.
Specifically,
appellant alleges the circuit court erroneously found, by clear
and convincing evidence, that she engaged in conduct sufficient
to establish grounds for terminating her parental rights.
Appellant further contends the family court erroneously found,
by clear and convincing evidence, that termination of her
parental rights was in the child’s best interest.
In its opinion terminating appellant’s parental
rights, the family court specifically found, by clear and
convincing evidence, that:
1. The child, [A.N.S.W.], is abused and
neglected as defined in KRS 600.020(1).
2. The Respondent father has consented to
the voluntary termination of his parental
rights.
3. The Respondent mother of said child, for
a period of not less than six 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 there
is no reasonable expectation of improvement
in parental care and protection, considering
the age of the child.
3.[sic] The Respondent mother, 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
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reasonably necessary and available for the
child’s well-being and there is no
reasonable expectation of significant
improvement in the parental conduct in the
immediately foreseeable future, considering
the age of the child.
4.[sic] The Respondent mother has
continuously or repeatedly inflicted or
allowed to be inflicted upon the child, by
other than accidental means, physical injury
or emotional harm.
5.[sic] Termination of parental rights is
in the best interest of the child.
A review of the record indicates there was sufficient
evidence of a probative and substantial nature to support the
family court’s findings of fact.
See M.S.P., 979 S.W.2d 114.
The testimony of appellant’s social worker, counselor and
psychologist, as well as appellant’s own testimony, all support
the aforementioned findings of the court.
Judy Holt, a social worker for the Cabinet, testified
that the Cabinet had an open case file with appellant for many
years.
Holt stated that the Cabinet had provided appellant and
her children with numerous treatment services over the years.
She testified the services included individual and group
counseling for both appellant and the children, in-home parent
aide services, Kentucky Impact for the children and
daycare/summer camp referrals for the children.
Holt testified
that appellant showed no progress during the Cabinet’s early
work with her and that later progress was followed by setbacks.
Holt stated that one of appellant’s abusive paramours had
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physically assaulted one of her children; following this
incident, appellant refused to agree to the terms of a safety
plan for the protection of A.N.S.W.
This refusal led the
Cabinet to seek an Emergency Protective Order, which resulted in
A.N.S.W.’s removal from appellant’s custody.
Holt also testified regarding specific incidents of
domestic violence involving appellant.
Holt stated that she
recently became aware of a new domestic violence petition filed
by appellant.
Therein, appellant had alleged that her paramour
threatened to kill her, destroyed much of her furniture, put
holes in the wall, knocked the door in, refused to leave the
residence and physically assaulted her.
The petition further
alleged that the paramour had been living with appellant for six
(6) months and was the father of her unborn child.
Holt stated
that the information appellant provided in the petition was in
direct contradiction to appellant’s long-standing assertion, to
Holt and other service providers, that this man had not been
living with her and that she was not involved in a romantic
relationship with him.
Finally, Holt also testified that
another of appellant’s abusive paramours had threatened her with
a knife.
Appellant’s domestic violence group counselor, Annie
Behymer, also testified regarding her knowledge of appellant.
Behymer acknowledged some recent progress in appellant’s
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treatment.
Behymer stated that appellant had not always been
truthful with her regarding a relationship she continued to have
with an abusive paramour.
In fact, this paramour had abused an
older sibling of A.N.S.W.
Behymer further testified that
appellant had a long history of domestic violence that included
several abusive paramours.
Appellant’s psychologist, Jamie Lichstein, also
testified regarding her knowledge of appellant.
Lichstein
confirmed that appellant had a significant history of domestic
violence and sexual abuse.
She opined that appellant’s lack of
social and family support led her to return to abusive
relationships in times of stress.
Lichstein acknowledged that
appellant had displayed cognitive distortion regarding the
severity and repetitiveness of her own abuse.
Lichstein also
testified that appellant had expressed thoughts of suicide and
had difficulty dealing with her feelings of anger.
Finally,
Lichstein admitted that she could not definitively state that
appellant was capable of providing a safe home for A.N.S.W.
Appellant testified that she had been involved with
six (6) different abusive men during her children’s lifetime.
Appellant acknowledged that three (3) of those men also
physically or sexually abused her children.
Appellant stated
that a previous paramour, once believed to be the father of
A.N.S.W., had forced himself into appellant’s home in an attempt
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to see the child.
Appellant acknowledged that a paramour who
had sexually assaulted one of her children continues to visit
the home of her sister.
Despite this knowledge, appellant
continued to assert that her sister’s home would be an
appropriate placement for the children.3
A review of the evidence reveals that the family
court’s finding that A.N.S.W. was an abused and neglected child
was supported by clear and convincing evidence.
Revised Statutes (KRS) 625.090.
See Kentucky
The evidence also demonstrates
the family court’s finding that termination of appellant’s
parental rights was in the child’s best interest was also
supported by clear and convincing evidence.
See KRS 625.090.
Upon the record as a whole, we are of the opinion there existed
clear and convincing evidence supporting the circuit court’s
termination of appellant’s parental rights.
See KRS 625.090.
For the foregoing reasons, the January 23, 2004,
judgment of the Jefferson Family Court is affirmed.
ALL CONCUR.
3
Appellant’s testimony alone would appear to support a finding that A.N.S.W.
was abused and neglected. During her testimony, she described an incident
where her older children had thrown coins and a bottle at A.N.S.W. when she
was only a few months old.
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BRIEF FOR APPELLANT:
Elizabeth Dodd Lococo
Dodd & Dodd Attorneys, PLLC
Louisville, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND
CHILDREN:
Erika L. Saylor
Louisville, Kentucky
BRIEF FOR APPELLEE A.N.S.W.,
AN INFANT:
Ellen G. Friedman
Guardian Ad Litem
Louisville, Kentucky
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