G.A.S. v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; N.D.S., AN INFANT; A.K.S., AN INFANT; A.J.S., AN INFANT; N.A.S., AN INFANT; G.M.S., AN INFANT
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RENDERED: SEPTEMBER 14, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000891-ME
G.A.S.
v.
APPELLANT
APPEAL FROM GALLATIN FAMILY COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 05-AD-00004
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; N.D.S., AN INFANT;
A.K.S., AN INFANT; A.J.S., AN INFANT;
N.A.S., AN INFANT; G.M.S., AN INFANT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND KELLER, JUDGES.
KELLER, JUDGE: G.A.S. appeals from the order of the Gallatin Family Court
terminating his parental rights to his five children. In this appeal, G.A.S. argues that the
family court erred in finding that he failed, refused, or was incapable of providing
parental care for his children. For the reasons set forth below, we affirm.
FACTS
G.A.S. and J.M.D.S. had five children; three girls – N.D.S., now age 10,
A.K.S., now age 8, A.J.S., now age 3; and two boys – G.M.S., now age 7 and N.A.S.,
now age 5. Following the birth of the last child, A.J.S., the couple married. As of the
time of the termination hearing the couple remained married. J.M.D.S. voluntarily
agreed to terminate her parental rights to the children.
Personnel from the Cabinet for Health and Family Services (the Cabinet)
first had contact with this family in 2003 following a telephone call indicating that
J.M.D.S. was overwhelmed and could not take care of the five children. The Cabinet
opened a case file and offered various services to both J.M.D.S. and G.A.S. The only
service the couple took advantage of was the Family Preservation program, which is
designed to assist with structuring and supervising in the home environment. During
2003, Cabinet social worker Patrick Helmers (Helmers) visited the family home two to
three times a month. On those visits, Helmers found that the home was a mess and that
J.M.D.S. was receiving little, if any, help from G.A.S.
On November 19, 2004,1 Andrea Conley (Conley), an investigative social
worker for the Cabinet, received a call from the family's case worker. The case worker
indicated that she needed to see the children but had been unable to find them. Conley
found G.A.S. at a relative's house and asked him where the children were. G.A.S., who
was intoxicated, stated that J.M.D.S. had just driven away with the children and that she
1
It is unclear from the record the extent of contact personnel from the Cabinet had with the
family between 2003 and November of 2004. However, what may or may not have occurred
during that time frame is not relevant to this appeal.
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was intoxicated. G.A.S. then told Conley where J.M.D.S. was going. Conley found
J.M.D.S., who was intoxicated, at a "rowdy party" with a number of other intoxicated
people. Conley found the children in the house and telephoned the police. Eventually,
the children were removed from the house and temporarily placed with relatives of
G.A.S. and J.M.D.S. When it became apparent that long-term placement with relatives
would not work, the Cabinet sought to have the children committed to its care, which the
family court did in January of 2005. The children were then placed in foster care.
After the children were committed to the Cabinet, Helmers met with G.A.S.
on a number of occasions to outline what steps G.A.S. needed to take in order to be
reunited with the children. Those steps included undergoing a chemical dependency and
mental health assessment; participating in parenting classes; establishing and maintaining
stable housing and employment; undergoing random drug screens; and participating in
anger management classes. Helmers testified that G.A.S. had not undertaken any of
those steps. Helmers also testified that, while the children were in or near Gallatin
County, G.A.S. participated in 90% of his visitations. However, during those visitations
G.A.S. acted more like a big brother than a father and did not undertake any type of
parental role.
In addition to the above, the evidence revealed that G.A.S. and J.M.D.S.
had a relationship replete with domestic violence both before and after the children were
committed to the Cabinet's care. A great deal of the violence related to G.A.S.'s failure to
care for or support the children, which has been a chronic problem for G.A.S. As
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evidenced by Helmers's testimony that, at the time of the termination hearing, G.A.S. had
a substantial child support arrearage and, despite working for the preceding two months,
had done nothing to reduce that arrearage. Finally, we note that Helmers and Conley
both testified that Cabinet personnel were contacted on at least two occasions and advised
that one or more of the children were out in the community unsupervised.
G.A.S. testified that he could not participate in a number of the programs
recommended by the Cabinet because of financial and/or transportation problems.
Notably, G.A.S. also testified that he did not participate in the parenting classes because
he did not need them. However, G.A.S. testified that, if he were reunited with his
children, that would provide incentive for him to begin participating in the other
programs.
Additionally, G.A.S. testified that he had been living with his grandmother,
Mary Roberts (Roberts), for several months, in a house big enough to house the children.
According to G.A.S., Roberts could assist with supervising the children. However, we
note that, although Roberts agreed that she could assist with the children and had done so
in the past, Roberts had not contacted anyone at the Cabinet regarding becoming a
guardian of the children. Finally, we also note that G.A.S.'s father also resides with
Roberts and J.M.D.S. testified that G.A.S.'s father may have previously molested N.D.S.
As to the children's current status, Helmers testified that they have all
improved and, for the most part, appear to be thriving in foster care. Furthermore, he
indicated that two families have expressed an interest in adopting all five children.
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STANDARD OF REVIEW
Our standard of review in termination of parental rights cases is set forth in
M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky.App. 1998):
The trial court has a great deal of 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 standard of 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, 726, 70 S.W.2d 5, 9
(1934).
With this standard in mind, we will address the issues raised by G.A.S. on appeal.
ANALYSIS
G.A.S. argues on appeal that there was not sufficient evidence to support
the family court's findings that he failed, refused, or was incapable of providing parental
care for the children and that there was no reasonable expectation that situation would
change in the foreseeable future.
The General Assembly provided the mechanism for the involuntary
termination of parental rights in KRS 625.090. The statute creates a three-pronged test,
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whereby the Cabinet must prove, and the family court must determine, that 1) the child is
abused or neglected; 2) termination would be in the child's best interest; and 3) one of
several listed grounds exists. In deciding the second and third prongs, the circuit court is
required to consider several enumerated factors, including “[t]hat the parent has
abandoned the child for a period of not less than ninety (90) days[,]" KRS 625.090(2)(a),
or:
[t]hat 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).
Going through the statutory steps in order, the first determination the family
court must make is whether the child is, or has been adjudged to be, abused or neglected
as defined in KRS 600.020(1). In pertinent part, KRS 600.020(1) defines an abused or
neglected child as follows:
(1) “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:
...
(d) Continuously or repeatedly fails or refuses to
provide essential parental care and protection for the
child, considering the age of the child;
...
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(h) Does not provide the child with adequate care,
supervision, food, clothing, shelter, and education or
medical care necessary for the child's well-being. . . . ;
(i) Fails to make sufficient progress toward identified
goals as set forth in the court-approved case plan to
allow for the safe return of the child to the parent that
results in the child remaining committed to the cabinet
and remaining in foster care for fifteen (15) of the most
recent twenty-two (22) months.
In the present case, the circuit court found that the children had been abused
or neglected and noted the testimony that the children had been:
6. [F]ound unsupervised at a party where marijuana was
being smoked and alcohol being consumed. . . . The children
could not be supervised by the Respondent, [G.A.S.] as he
was also under the influence of alcohol. . . .
7. The Respondent parents have a long standing history of
failing to appropriately supervise their children. The Cabinet
for Health and Family Services had worked with the family
from 2003 regarding supervision issues, without success.
Neither parent demonstrated any desire to parent and
supervise these children.
...
12. Neither [parent] has completed anything on their case
plan. Neither have full time consistent employment, despite
being physically and mentally healthy. Neither have
independent housing nor have they paid their court ordered
child support. The Respondent, [G.A.S.], was before the
Gallatin District Court in 05-F-00163 for flagrant non-support
of these children. . . . [G.A.S.] was to pay $55.00 per week in
child support from January 24, 2006 forward. The only
payment that has been made since January 24, 2006 was a tax
intercept. [G.A.S.] testified that he has been working lately,
but admitted he did not use the income to pay his child
support for these children. . . .
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...
14. The children have made substantial improvements while
in foster care, and are expected to make more improvements
upon termination of parental rights.
The evidence, as summarized by the family court and as summarized hereinabove, is
sufficient to convince ordinarily prudent-minded people that the children were neglected
or abused. Therefore, we discern no error in the family court's finding of neglect or
abuse.
We next address whether the termination is in the best interest of the
children. To determine whether termination would be in a child's best interest, a trial
court is required to consider the following factors, which are set forth, in pertinent part, in
KRS 625.090(3):2
(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 620.0203 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
2
A trial court must also consider these factors when determining whether a ground for
termination exists pursuant to KRS 625.090(2).
3
“Reasonable efforts” is defined as “the exercise of ordinary diligence and care by the
department to utilize all preventative and reunification services available to the community in
accordance with the state plan for Public Law 96-272 which are necessary to enable the child to
safely live at home[.]” KRS 620.020(10).
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best interest to return him to his home within a reasonable
period of time, considering the age of the child;
(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.
As noted in the testimony of Helmers, the Cabinet made significant efforts to assist both
J.M.D.S. and G.A.S. to develop and/or improve their parenting skills before and after the
children were removed from the home. However, with the exception of limited
participation in one pre-termination program and making post-termination visits with the
children, G.A.S. took no initiative to participate in any programs designed to help him
parent the children. Furthermore, G.A.S., by all accounts, did not participate in the care
of the children nor has he provided for their support. Finally, as noted by Helmers, the
children have improved significantly while in foster care and continued improvement is
anticipated. Thus, there is clear evidence of substance that it is in the best interest of the
children to terminate G.A.S.'s parental rights and we discern no error in the family court's
finding.
The third and final prong to be considered by the trial court is whether there
is clear and convincing evidence of one or more of the following grounds enumerated in
KRS 625.090(2). In pertinent part, those grounds are:
(a) That the parent has abandoned the child for a period of
not less than ninety (90) days;
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...
(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 foreseeable future, considering the age of the
child[.]
From the evidence, it is clear that G.A.S. has consistently failed to provide
parental care or support for his children since at least 2003. J.M.D.S. testified that G.A.S.
did not help with the children in any significant way before the children were committed
to the Cabinet. The overwhelming evidence indicates the G.A.S., faced with loss of his
children, did not find steady work or stable housing, did not participate in any programs
recommended by the Cabinet, and has not, of his own volition, paid any child support.
These facts clearly support the family court's findings that G.A.S. failed to provide
parental care for his children and that it is unlikely that G.A.S.'s behavior will improve.
Therefore, we will not disturb the family court's findings.
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CONCLUSION
For the reasons set forth above, we affirm the Gallatin Family Court's order
terminating G.A.S.'s parental rights to his children.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John J. Osterhage
Warsaw, Kentucky
Cynthia Kloeker
Covington, Kentucky
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