R.G.B. v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES
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RENDERED:
OCTOBER 20, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000193-ME
R.G.B.
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NO. 05-AD-00008
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH
AND FAMILY SERVICES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.
ABRAMSON AND GUIDUGLI, JUDGES; BUCKINGHAM,1 SENIOR
ABRAMSON, JUDGE: R.G.B. appeals from a January 6, 2006, order of
the Fayette Family Court terminating her parental rights with
respect to her natural children B.R. (d.o.b. 12/29/90) and A.O.
(d.o.b. 11/17/97) and assigning those rights to the Cabinet for
Health and Family Services so that the children could be
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.
adopted.
R.G.B. contends that the trial court gave insufficient
consideration to the efforts she has made to reestablish her
life after a devastating period of drug and alcohol abuse.
She
claims that she is again able to care for her children and
should be allowed to do so.
Because the trial court’s contrary
findings are adequately supported by the record, we affirm its
order terminating R.G.B.’s parental rights.
For the most part the facts are not in dispute.
R.G.B. suffers from Attention Deficit, Hyperactive Disorder
(ADHD) and depression and has, since late adolescence, been
subject to periodic and increasingly severe periods of alcohol
and drug abuse.
She has been married three times, each marriage
ending in divorce after no more than three years.
children:
She has two
B.R. from her second marriage, in California, and
A.O. from her third marriage, in Kentucky.
The outbreaks of her
addictions have led to several hospitalizations, but they have
been separated by significant periods of sobriety.
During one
such outbreak, in 1995, the Cabinet removed B.R. from R.G.B.’ s
custody and sent her to California to live with her father.
For
several years thereafter, however, R.G.B. maintained sobriety,
completed her PhD in Psychology, and formed and managed a
successful consulting practice in Lexington.
In 1999, B.R.
rejoined her mother and new sister in Kentucky.
Unfortunately,
in about late 2001, R.G.B. entered upon a new phase of drinking
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and abusing prescription medications, which she obtained via the
internet.
The abuse gradually became acute, culminating in the
fall and winter of 2003 with several emergency-room treatments
for overdoses, with the emergency removal of the children from
R.G.B.’s custody, with the collapse of her business, and with
the suspension of her professional license.
When, in February
2004, an intoxicated R.G.B. threatened the friends who had
accepted temporary custody of the children, the Cabinet removed
the children to foster care and warned R.G.B. that she risked
losing her parental rights if she did not take steps to restore
her ability to parent.
Since then, R.G.B. has made efforts to turn her life
around.
In April 2004 she entered the Tammi House Recovery
Program in or near Clearwater, Florida, an in-patient substanceabuse treatment facility.
Although she initially sought
treatment in Florida only because the Kentucky facilities all
had long waiting lists, her treatment in Florida led her to
relocate there.
She completed the Tammi House program in July
2004, and then began out-patient treatment with an affiliated
program called Operation Par.
Through Operation Par she
obtained on-going treatment for her ADHD and, according to
R.G.B., began attending AA/NA meetings.
She met a friend in
Clearwater, whose mother at first gave her living space in her
condominium and later, apparently, agreed to lease the entire
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unit to her through a Florida housing-assistance program.
She
also obtained food stamps and applied for Social Security
Disability Benefits.
These measures led the Cabinet’s social workers to
consider a reunification plan whereby B.R. would again be sent
to her father in California, and A.O. would be returned to
R.G.B. in Florida.
Pursuit of that plan ceased, however, when
B.R.’s father refused to participate.
The Cabinet’s goal for
the children then became adoption, and in February 2005 it
petitioned for termination of R.G.B.’s parental rights.
While
the matter was pending, in July 2005, a visitation dispute
arose, and R.G.B. again relapsed.
She came to court intoxicated
and was obliged to return to Florida to reestablish sobriety.
The trial court heard the termination matter in
November 2005.
The Cabinet offered proof of the severe neglect
the children had suffered during 2003 as a result of R.G.B.’s
incapacity, and proof of R.G.B.’s continuing fragility, her
continuing unemployment, and her limited financial resources.
The Cabinet also offered the testimony of the children’s social
workers and therapists and of B.R. to the effect that the
children had adjusted well to their foster family, that the
foster family was eager to adopt both of them, and that B.R., at
least, wished not to live with R.G.B.
Emphasizing both the
unacceptable risk that R.G.B. would again have a serious relapse
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as well as her inability, more than two years after the removal
of the children, “to get her financial affairs in order or to
obtain employment,” the family court granted the Cabinet’s
petition and ordered the termination of R.G.B.’s parental
rights.
Appealing from that order, R.G.B. contends that the
court’s finding that she continues to be incapable of providing
parental care is not supported by sufficient evidence.
We
disagree.
R.G.B. correctly notes that, as it pertains to this
case, KRS 625.090 permits the termination of parental rights
only upon a finding, by clear and convincing evidence, of all of
the following: (1) that the child has been adjudged or shown to
be abused or neglected; (2) that termination would be in the
child’s best interest; and (3) the existence of at least one of
the grounds listed in KRS 625.090(2).
R.G.B. concedes that the
horrific conditions she subjected the children to for several
months in late 2003 amounted to abuse or neglect.
And she does
not dispute that a rational fact finder could believe that the
adoption of both children into the foster family that has
provided a stable haven from those conditions is clearly and
convincingly in the children’s best interest.
With respect to the KRS 625.090(2) grounds, the trial
court found the existence of all of the following:
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(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; . . . [and]
(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.
R.G.B. contends that any emotional harm she may have inflicted
was not severe enough to satisfy the statutory requirement and
that her ability to provide parental care and support has
significantly improved and can be reasonably expected to
continue improving.
Because the existence of any one of these grounds
would be sufficient to uphold the trial court’s order, we shall
focus on the strongest and most serious, i.e., ground (e)
regarding failure to provide essential parental care and
protection with no reasonable expectation of improvement.
This
Court must uphold the trial court’s finding if it is supported
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by substantial evidence.
M.P.S. v. Cabinet for Human Resources,
979 S.W.2d 114 (Ky.App. 1998).
Here, substantial evidence is
evidence a rational fact finder could deem clear and convincing.
Id.
There is no dispute that R.G.B.’s severe drug and alcohol
abuse rendered her incapable of providing essential parental
care and protection for her children.
Furthermore, there is no
dispute that her incapacity lasted more than six months, through
her completion of the Tammi House program.
Contrary to R.G.B.’s
assertions, moreover, evidence that a rational fact finder could
deem clear and convincing supports the trial court’s findings
that her incapacity continued until the hearing and was
reasonably likely to continue indefinitely beyond that.
As the trial court noted, more than two years after
the emergency removal of her children, R.G.B. remained
unemployed and had yet to confront her dire financial situation.
Not only were these significant obstacles to her providing
stable care for her children, but they were also significant
challenges to her sobriety which she had not yet faced.
Her
sobriety, furthermore, did not appear even relatively secure.
Her July 2005 relapse clearly demonstrated that alcohol abuse
remained a serious risk, and her own therapist testified that
more such relapses were likely.
Faced with termination of her
parental rights, R.G.B. did not even provide the trial court
with any proof corroborating her representations that she
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regularly attended AA/NA meetings.
Given R.G.B.’s history of
periodically severe dysfunction, the risk these likely relapses
posed to the health and welfare of R.G.B.’s children could
reasonably be deemed unacceptable.
The trial court’s finding of
“no reasonable expectation of improvement in parental care and
protection” is clearly and convincingly supported by the record.
Without greater assurance than this record provides
that R.G.B. has the ability to meet the emotional and practical
demands of parenthood and would not again subject her children
to the devastating consequences of her illnesses, the trial
court did not err by finding that she was, and could reasonably
be expected to remain, substantially incapable of providing
essential parental care and protection for B.R. and A.O.
As the
trial court opined, when the children are adults, if R.G.B. has
obtained sobriety and control of her mental health issues, an
adult relationship between mother and child may be possible, but
for now termination is clearly in the children’s best interest.
The Cabinet proved all the elements of KRS 625.090, and the
trial court appropriately granted its petition to terminate
R.G.B.’s parental rights.
Accordingly, we affirm the January 6,
2006, order of the Fayette Family Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Ross Stinetorf
Todd & Walter
Lexington, Kentucky
David W. Mossbrook
Assistant Counsel
Cabinet for Health and Family
Services
Lexington, Kentucky
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