D.J.S. v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, As Next Friend of A.N.S., A Child
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 1, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001105-ME
D.J.S.
v.
APPELLANT
APPEAL FROM HENDERSON FAMILY COURT
HONORABLE SHEILA NUNLEY-FARRIS, JUDGE
ACTION NO. 04-AD-00019
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES, As Next Friend of
A.N.S., A Child
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
BUCKINGHAM, SENIOR JUDGE:
D.J.S. appeals from a final order of
the Henderson Family Court granting the Cabinet for Health and
Family Services’ petition to involuntarily terminate her
parental rights to her daughter, A.N.S.
D.J.S. has struggled
with drug addiction since the birth of A.N.S.
After numerous
attempts at sobriety, D.J.S. suffered a relapse in August of
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2003, which resulted in A.N.S.’s placement with the Cabinet.
The Cabinet continued to have custody of A.N.S. through October
of 2004 when it filed a petition to involuntarily terminate
D.J.S.’s paternal rights.2
Subsequent to a hearing, the court
entered an order terminating D.J.S.’s parental rights.
Challenging the sufficiency of the evidence, D.J.S. has appealed
this order.
A.N.S. was born on November 1, 2002.
child tested positive for cocaine.
Cabinet became involved with A.N.S.
At birth, the
As a result of this, the
However, because D.J.S. had
agreed to go to Oasis for an in-patient treatment program
immediately upon being discharged from the hospital, A.N.S. was
allowed to remain with D.J.S.
As a result of this incident, on
February 13, 2003, D.J.S. was adjudged to be a neglected child.
D.J.S. would thereafter enter six separate in-patient
drug treatment programs between November 1, 2002, the date of
A.N.S.’s birth, and December of 2004.
D.J.S. attended four
separate in-patient programs through Oasis and two separate
programs through Lincoln Trail.
In each case, D.J.S. would
successfully complete the 30-day in-patient programs, only to
relapse within a month or two of the program.
Evidence
presented before the court indicated D.J.S. had abused crack
2
T.W.S., A.N.S.’s father, filed a petition for voluntary termination of his
parental rights. The order terminating his parental rights has not been
challenged.
-2-
cocaine for the past ten years and had abused alcohol since the
age of 17.3
As a result of one of D.J.S.’s relapses, A.N.S. was
removed from her custody on August 12, 2003.
Subsequent to her
removal, A.N.S. was again adjudged to be a neglected child.
Further, the child was committed to the care of the Cabinet.
In
turn, the Cabinet placed A.N.S. in a foster home where she has
remained ever since.
D.J.S.’s last in-patient treatment program with
Lincoln Trail took place in September of 2004.
Given D.J.S.’s
inability to stay sober and drug free and her inability to
substantially complete any of the services offered by the
Cabinet, the Cabinet filed a petition to involuntarily terminate
D.J.S.’s parental rights on October 14, 2004.
On December 16, 2004, D.J.S. entered her seventh inpatient treatment program since A.N.S.’s birth.
This program,
100 days in duration, was provided through Progressive Health
Center in Zachary, Louisiana.
D.J.S. successfully completed the
program and was released on March 25, 2005.
A hearing on the
Cabinet’s petition was held 35 days later on April 29, 2005.
3
A byproduct of D.J.S. substance abuse has been an extensive criminal record.
D.J.S.’s actions have resulted in various sentences both in and out of
Kentucky. At the time of the hearing, D.J.S. presented evidence suggesting
she had resolved the actions pending in Kentucky, but had one action
remaining in Indiana.
-3-
The court entered an order terminating D.J.S.’s
parental rights on May 4, 2005.
In its order, the court found:
•
[A.N.S.] has been in foster care under the
responsibility of the Cabinet for Health and Family
Services for fifteen (15) months preceding the filing
of the Petition to terminate parental rights.
•
[A.N.S.] was adjudicated as a neglected child by Order
of the Henderson Family Court, Juvenile Action No. 03J-00003-003.
•
[A.N.S.] is a neglected child as defined in KRS4
600.020.
•
It is in the best interests of [A.N.S.] that the
parental rights of [D.J.S.] be terminated.
Based on these findings, the court concluded the
threshold requirements of KRS 625.090(1) were met.
Turning to
the final prong under KRS 625.090(2), the court found the
Cabinet had established at least one of the required factors.
In particular, the court concluded:
•
•
4
[D.J.S.] had abandoned [A.N.S.] for a period of not
less than ninety (90) days. KRS 625.090(2)(a)
[D.J.S.], 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 [A.N.S.] and there is no reasonable expectation of
improvement in parental care and protection,
considering the age of the child. KRS 625.090(2)(e)
Kentucky Revised Statutes
-4-
•
[A.N.S.] has been in foster care under the
responsibility of the Cabinet for Health and Family
Services for fifteen (15) months preceding the filing
of the Petition to terminate parental rights. KRS
625.090(2)(j)
•
[D.J.S.] 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
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)
It is from this order that D.J.S. appeals.
Kentucky law has long recognized that “[t]he 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.”
R.C.R. v. Commonwealth, Cabinet
for Human Resources, 988 S.W.2d 36, 38 (Ky.App. 1999), citing
Department of Human Resources v. Moore, 552 S.W.2d 672, 675
(Ky.App. 1977).
jury.
This case was tried before the court without a
As such, the trial court heard the evidence and entered
its findings of fact and conclusions of law.
On review, such
“[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.”
CR5 52.01.
5
In addition, in reviewing findings of fact by the
Kentucky Rules of Civil Procedure.
-5-
See
trial court, “the test is not whether we would have decided it
differently, but whether the findings of the trial judge were
clearly erroneous or that [s]he abused [her] discretion.”
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Thus, a
court’s findings cannot be disturbed unless there is no
substantial evidence in the record to support them.
S.W.2d at 38.
R.C.R., 988
This court in R.C.R. further stated that:
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.
Id. at 38-9, quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5,
9 (1934).
In Kentucky, KRS 625.090 governs the involuntary
termination of parental rights.
As noted by this court in
Commonwealth, Cabinet for Families and Children v. G.C.W., 139
S.W.3d 172 (Ky.App. 2004), a court may not terminate a parent’s
rights over their objection unless it finds by clear and
convincing evidence:
(1) that the child is an “abused or
neglected child, as defined by KRS
600.020(1)” and (2) that termination would
be in the child’s best interest. KRS
625.090(1). After that threshold is met,
the court must find the existence of one of
the numerous grounds recited in KRS
625.090[(2)][.]
-6-
Id. at 175-76.
D.J.S. argues the court erred when it found the
Cabinet had established any of the grounds within KRS
625.090(2).
Specifically, D.J.S. asserts that:
•
The court was clearly erroneous in finding A.N.S. had
been in the Cabinet’s care for 15 months preceding the
filing of the petition.
•
There was no evidence of an intent to abandon A.N.S.
•
As to (1) parental care and protection, and (2)
essential food, clothing, shelter, medical care or
education, the Cabinet failed to show, by clear and
convincing evidence, that there was no reasonable
expectation of improvement.
The Cabinet concedes that the court was clearly erroneous in
finding A.N.S. had been in its care for 15 of 22 months
immediately preceding the petition.6
However, as to the
remaining grounds, the Cabinet argues the court did not commit
reversible error.
Since any one of the grounds listed in KRS
625.090(2) is sufficient to satisfy the third prong of the
analysis, the Cabinet asserts the court did not abuse its
discretion in terminating D.J.S.’s parental rights.
KRS 625.090(2) sets out various grounds, one of which
must be established by clear and convincing evidence before
parental rights may be involuntarily terminated.
6
One of the
A.N.S. was removed from D.J.S.’s custody on August 12, 2003. The petition
was filed October 14, 2004. In addition, A.N.S. had been removed for a 72hour period in May of 2003. Thus, in the 22-month period preceding the
petition, A.N.S. had been in the Cabinets care for 14 months and 5 days.
-7-
grounds concerns abandonment “for a period of not less than
ninety (90) days[.]”
In regard to abandonment, D.J.S. argues
the Cabinet failed to introduce evidence of intent to abandon
the child.
This court addressed the issue of abandonment in O.S.
v. C.F., 655 S.W.2d 32 (Ky.App. 1983).
In that case, this court
noted that “abandonment is demonstrated by facts or
circumstances that evince a settled purpose to forego all
parental duties and relinquish all parental claims to the
child.”
Id. at 34.
This court addressed the issue again in a
subsequent case, V.S. v. Commonwealth, Cabinet for Human
Resources, 706 S.W.2d 420 (Ky.App. 1986).
In V.S., this court
noted that “abandonment rests mainly upon intent.”
Id. at 424.
In establishing intent, the court in V.S. recognized “[t]he
proof in this case lies in past performance.”
Id.
The court
concluded the facts were sufficient such that “[t]he risks
[were] too great to experiment further with the children’s
future.”
Id.
In reaching its conclusion as to abandonment, the
court had extensive evidence before it concerning D.J.S.’s
history of substance abuse.
To begin with, D.J.S. had completed
six previous in-patient drug treatment programs only to suffer
relapses within a month or two.
At the time of the hearing,
-8-
D.J.S. had just completed her seventh in-patient program, this
one lasting 100 days.
D.J.S. has failed to show how the court abused its
discretion in finding she had abandoned A.N.S. for a period of
not less than 90 days.
While D.J.S. attempts to cast her
substance abuse as a medical condition, she ignores the fact
that the choices she made resulted in the addiction, resulted in
the various in-patient enrollments, and ultimately resulted in
each relapse.
Under these circumstances, we cannot say the
court abused its discretion.
D.J.S. challenges the remaining two grounds with one
argument.
These grounds concern (1) providing parental care and
protection, KRS 625.090(2)(e), and (2) providing essential food,
clothing, shelter, medical care and education, KRS
625.090(2)(g).
D.J.S.’s argument is directed at the court’s
conclusion that the Cabinet had proven by clear and convincing
evidence that there was no reasonable expectation of
improvement.
In reaching its conclusion as to these two grounds,
the court had before it both evidence of D.J.S. past
performance, as well as evidence of expected future performance.
As to past performance, the court was faced with the fact that
between A.N.S.’s birth in November of 2002 and the time the
hearing was held on the petition for termination in April of
-9-
2005, D.J.S. had been in and out of in-patient drug treatment
programs on seven different occasions.
Following within a month
or so of each of the first six programs, D.J.S. had suffered a
relapse.
In addition, D.J.S.’s substance abuse had resulted in
various criminal violations.
While D.J.S. has pointed to the
fact that she had been clean and drug free since the last inpatient program, she also testified it would be at least six
months before she would be ready to assume the care and custody
of A.N.S.
As for her legal problems, D.J.S. pointed out the
fact that charges in Kentucky had been resolved.
Having said
that, she acknowledged charges remained to be resolved in
Indiana.
In an attempt to deflect the impact of her continuing
periods of incarceration and in-patient treatment, D.J.S. argues
that these absences were not of her choice.
Once again, this
ignores the choices she made concerning substance use, her
actions while under the influence, her election to seek inpatient care, and her choices that led to the many relapses.
As
noted by this court in J.H. v. Commonwealth, Cabinet for Human
Resources, 704 S.W.2d 661, 663 (Ky.App. 1986), “absence,
voluntary or court-imposed, may be a factor to consider in
determining whether [a child has] been neglected[.]”
Further,
proof of past performance is a factor for the court to consider.
See V.S., 706 S.W.2d at 424.
Given the evidence before the
-10-
court, of both past and future performance, we cannot say the
court abused its discretion in concluding the Cabinet had
established, by clear and convincing evidence, that there was no
reasonable expectation of improvement.
In appealing the court’s order terminating her
parental rights, D.J.S. has challenged only findings related to
the third prong of the analysis under KRS 625.090.
While D.J.S.
was correct in noting the court ‘s finding was clearly erroneous
as it related to A.N.S. having been in the Cabinet’s care for 15
of 22 months proceeding the petition, she was not successful in
her challenges as to the remaining grounds under KRS 625.090(2).
As the statute requires the court to find the existence of “one
or more,” we find no abuse of discretion in the court’s
conclusion that D.J.S.’s parental rights should be terminated.
The order of the Henderson Family Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Joel L. Wesch
Henderson, Kentucky
Dilissa G. Milburn,
Assistant Counsel
Mayfield, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Kristy Fulkerson
Owensboro, Kentucky
-11-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
