C. L. G. C. VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JACKSON CIRCUIT COURT
HONORABLE GENE CLARK, JUDGE
ACTION NO. 07-AD-00003
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF KENTUCKY;
D.M.C., A CHILD; AND I.M.C., A CHILD
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
NICKELL, JUDGE: C.L.G.C. (“Mother”)1 has appealed from the Jackson Family
Court’s October 25, 2007, order involuntarily terminating her parental rights to two
of her children, D.M.C. and I.M.C.2 For the following reasons, we affirm.
Pursuant to the policy of this Court, in termination of parental rights cases, to protect the
privacy of minors and their parents, we refer to them only by their initials.
Although the parental rights of Mother and the fathers of the two children involved were
terminated, only Mother has appealed the family court’s decision.
A petition seeking termination of parental rights was filed on March
30, 2007, and a hearing on the petition was held on October 9, 2007. Violet Cain
(“Cain”), the family’s social worker, testified regarding the family’s history, her
involvement with the family and the services rendered. The Cabinet for Health
and Family Services (“Cabinet”) first became involved with Mother in 2003 in
relation to Mother’s oldest child, C.C.3 That referral did not result in a
substantiation of abuse or neglect, but during the investigation, Mother and her
husband, R.M.C., admitted using and abusing illegal drugs and prescription pills.
A referral later that same year was substantiated based on R.M.C. cutting his throat
in front of C.C. following a fight with Mother. A third referral that year resulted in
a substantiation of neglect when Fayette County police discovered Mother and two
men were smoking crack cocaine in C.C.’s presence. Further investigation
resulted in C.C.’s removal from the home and ultimate adjudication as a neglected
child in late 2003. The Cabinet continued to provide services to Mother and
R.M.C. in an attempt to reunify the family. Mother and R.M.C. failed to comply
with the requests the Cabinet made and failed to follow their case plan.
D.M.C. was born to Mother and R.M.C. on February 18, 2005, when
Mother was 19 years of age. The Cabinet provided ongoing services to the family
until mid-2005 when it filed a petition seeking court intervention in the Jackson
Family Court because Mother and R.M.C. were not complying with their case plan
C.C. is not the subject of this termination proceeding. However, the Cabinet’s previous
involvement with Mother and her children is pertinent to the proper resolution of the instant
matter. Mother does not have custody of this child.
and continually changed residences between Jackson and Owsley Counties.
Around that same time, Mother filed a domestic violence complaint against R.M.C.
alleging he had threatened her and had bitten D.M.C. At the temporary removal
hearing, Mother tested positive for methadone. D.M.C. was removed from the
home and placed with his maternal grandparents for a short period of time. He was
removed from that home following his grandparents’ arrest for writing bad checks
and possessing marijuana plants in their home. D.M.C. entered foster care on July
12, 2005, where he remained throughout the pendency of the instant action. He
was committed to the Cabinet as a neglected child on August 30, 2005. The
Cabinet continued to provide reunification services to the family, but those efforts
were hampered by Mother’s frequent changes of residence without notifying Cain,
her ongoing case worker.
I.M.C. was born to Mother and her paramour, M.L.C., on May 12,
2006, when mother was 20 years of age.4 Mother and child tested positive for
methadone and benzodiazepines just after the birth. I.M.C. suffered seizures as a
result of the presence of the drugs and was transferred to a Lexington children’s
hospital for twelve days of treatment shortly after his birth. The Cabinet
immediately filed a dependency, neglect and abuse petition in the Jackson Family
Court. I.M.C. was placed in foster care on May 23, 2006, and has remained there
during the pendency of the instant action. I.M.C. was adjudicated as a neglected
child on June 27, 2006, and the family court suspended reunification efforts for
Paternity of this child was established in the Jackson Family Court on July 24, 2006.
R.M.C. that same date. I.M.C. was committed to the Cabinet on August 24, 2007,
and reunification efforts were suspended for Mother at that time. The children
progressed normally while in foster care, except for health problems I.M.C.
experienced due to his drug-induced post-birth seizures.
During the period of commitment, Mother’s visitation and contact
with the children was sporadic. Mother initially visited D.M.C. once per week.
She was allowed to visit I.M.C. at the hospital, but visited only once for a short
amount of time. Several periods in excess of ninety days passed without Mother
having any contact with either of the children. The Cabinet increased visitation to
two hours, three times per week, eventually increasing to five times per week.
Mother and M.L.C. complained the frequent visitation was unreasonable and
interfered with the other things they had to do. Mother did not visit D.M.C.
between September 2005 and June 2006, and visited neither child after July 12,
2006. She sent no cards, gifts or letters and did not attempt telephonic contact.
Mother, R.M.C. and M.L.C. were severely delinquent in their court-ordered child
support payments. Mother had several periods of incarceration during the
children’s lives because of her drug use. She was incarcerated at the time the
termination hearing was held on October 9, 2007.
Mother testified at the termination hearing that she had used illegal
drugs for approximately eight years. She also admitted using drugs while she was
pregnant with I.M.C. She testified she was aware of I.M.C.’s health problems but
had never attended any of his doctor’s visits. She acknowledged she had not
written letters or made phone calls to either of her children even though she was
not prohibited from doing either. She asked the court to give her one more chance
as she believed she would be a better mother as a result of the lessons she had
learned while in prison. She believed the court should wait until sometime in 2009
when she was released from incarceration before terminating her rights.
The children’s maternal grandmother testified on behalf of Mother.
She stated she believed Mother had changed for the better and would be a better
parent in the future.
The foster mother testified regarding the children’s development and
their attachment to the foster home. She stated D.M.C. had been in her care since
he was three years of age, and I.M.C. had come into their care upon his release
from the hospital soon after his birth. She also discussed I.M.C.’s medical history
and frequency of his doctor’s visits.
In addition to the above testimony, the family court received into
evidence the juvenile records for the children, rejection of the Cabinet’s services
executed by both fathers, the criminal records of all three parents, and child
support records for all three parents. At the end of the hearing, the family court
indicated a termination of parental rights order would be entered. Orders
terminating all parental rights for both children along with findings of fact and
conclusions of law were entered on October 25, 2007. Mother filed a post-trial
motion requesting rehearing and reconsideration which the family court treated as
a motion to alter, amend or vacate the judgment or for a new trial pursuant to CR5
59.01, as well as a motion for visitation with I.M.C. These motions were denied
by order entered on January 22, 2008. This appeal followed.
Mother raises three allegations of error in this appeal. First, she
contends the family court erred in basing its decision to terminate her parental
rights solely upon her “young age” or, alternatively, solely upon the basis of her
incarceration. Mother next alleges the Cabinet failed to prove reasonable efforts
had been made to reunify the family. Finally, she contends the Cabinet failed to
present sufficient evidence to support the family court’s decision to terminate her
parental rights. We disagree.
Mother first alleges the family court relied upon her incarceration as
the sole basis for terminating her parental rights. As an alternative theory, she
argues the trial court relied solely upon her “young age” as the basis for its
The twelve-page findings of fact and conclusions of law entered by
the family court included multiple specific findings supporting its determination
that termination of parental rights was in the best interests of the children. The
court analyzed the nine-part definition for a neglected child set forth in KRS6
600.020(1) and found Mother’s actions had resulted in D.M.C. fitting five of the
Kentucky Rules of Civil Procedure.
Kentucky Revised Statutes.
definitions and I.M.C. fitting four.7 Both children were thus adjudicated to be
neglected children. The court went on to analyze the grounds for termination of
parental rights set forth in KRS 625.090 and found termination was in the
children’s best interest for many of the same reasons it had adjudicated them to be
neglected. Mother contends these findings were impermissibly based solely upon
her young age or, alternatively, because of her incarceration. After a careful
review of the record and the family court’s detailed oral and written findings, we
hold both of these contentions to be without merit.
In reaching the decision to terminate Mother’s parental rights, the
family court specifically found Mother had abandoned her children for multiple
periods in excess of ninety days. However, the court was careful to note these
periods of abandonment predated Mother’s present incarceration and included
periods when Mother was not incarcerated. It is well-settled that incarceration
alone is an insufficient basis upon which to base a decision to terminate parental
rights, J.H. vs. Cabinet for Human Resources, 704 S.W.2d 661 (Ky.App. 1985),
and the family court’s detailed findings clearly indicated its awareness of this rule
In determining the children were neglected, the family court found Mother had: (1) abandoned
both children for a period or periods in excess of ninety days, KRS 600.020(1)(g); (2) engaged in
a pattern of conduct rendering her incapable of providing for the children’s immediate and
ongoing needs for a period or periods in excess of ninety days, KRS 600.020(1)(c); (3)
continuously and repeatedly failed or refused to provide essential parental care and protection for
the children, KRS 600.020(1)(d); (4) failed to provide the children with adequate care,
supervision, food, clothing, shelter, and educational or medical care for a period or periods in
excess of six months, KRS 600.020(1)(h); and (5) D.M.C. had been in foster care under the
Cabinet’s responsibility for fifteen of the immediately preceding twenty-two months, KRS
600.020(1)(i). The court also found D.M.C. and I.M.C. had previously been adjudicated
of law. However, in Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660,
661 (Ky. 1995), our Supreme Court stated “[a]lthough incarceration for an isolated
criminal offense may not constitute abandonment justifying termination of parental
rights, incarceration is a factor to be considered. . . .”
The family court found the various periods of abandonment evidenced
Mother’s intent to abandon her children prior to and during her incarceration.
Further, the family court found Mother’s pattern of conduct toward the children
was mainly caused by her drug use and her conduct rendered her incapable of
providing for their appropriate care. The trial court also made findings as to
Mother’s failure to provide essential supervision and care, including food, shelter,
clothing, and medical and educational care. No evidence to the contrary was
presented to the family court other than the self-serving testimony presented by
Mother and the maternal grandmother. In light of the extensive findings made by
the family court supporting its decision, and the weight and sufficiency of the
evidence adduced at trial supporting such decision, we are unable to conclude the
decision to terminate Mother’s parental rights was based solely upon her
incarceration. The family court’s decision was based upon clear and convincing
evidence as required by statute and will not be disturbed on this appeal.
We are also unable to discern from the record Mother’s basis for
arguing the trial court based its decision solely upon her young age. It appears this
argument has been created out of whole cloth. In contravention of CR
76.12(4)(c)(v), Mother does not cite us to the record indicating the factual basis
supporting this legal argument, and further cites no legal authority supporting her
position. Further, we are concerned by Mother’s reliance on multiple non-final
unpublished opinions of this Court. Such reliance is inappropriate and cannot
serve to support her argument. CR 76.28(4)(c); CR 76.30(2). In spite of these
failings, we have reviewed the record and the only reference we are able to locate
regarding Mother’s age occurred at the end of the termination hearing when the
court made a passing reference to Mother’s relatively young age and indicating his
hope she could turn her life around for the better. We have scoured the record and
no other mention of Mother’s age is to be found. The court’s oral and written
findings contain no indication Mother’s age had any bearing on the decision to
terminate her parental rights. Thus, Mother’s contention is without merit and there
was no error.
Next, Mother contends the Cabinet failed to prove reasonable efforts
for reunification had been made. We disagree. In presenting this argument,
Mother again fails to comply with the mandates of CR 76.12(4)(c)(v). Her brief
contains only bare allegations that the evidence presented was insufficient to
support the trial court’s finding that reasonable efforts had been provided. She
provides no citation to the record and again relies solely upon an unpublished
decision for legal support of her argument in contravention of CR 76.28(4)(c). Our
review of the record indicates there was substantial evidence presented that the
Cabinet had been providing services aimed at reunifying this family for a
substantial amount of time prior to the filing of the instant termination petition.
We are unable to discern any clear error in the family court’s finding as to
reasonable efforts, and as such, we will not disturb its finding. CR 52.01; Reichle
v. Reichle, 719 S.W.2d 442 (Ky. 1986).
Finally, Mother alleges the Cabinet failed to meet its burden of proof
to sustain the termination of her parental rights. Our review is limited to whether
the trial court’s findings were clearly erroneous; that is, whether they were
supported by clear and convincing evidence. If so supported, the trial court’s
findings will not be disturbed on appeal. CR 52.01; R.C.R. v. Commonwealth,
Cabinet for Human Resources, 988 S.W.2d 36, 38 (Ky.App. 1999).
KRS 625.090(1) provides in pertinent part that a circuit court may
involuntarily terminate all parental rights of a parent to a child if it finds by clear
and convincing evidence the child is either now a neglected child as that term is
defined by statute or has previously been adjudicated as such by a court of
competent jurisdiction, and that termination is in the child’s best interests. The
court must also find by clear and convincing evidence the existence of at least one
of ten listed grounds for termination set forth in KRS 625.090(2)(a)-(j).
In the case sub judice, the family court found the two children had
previously been adjudicated as neglected. The court went on to find, as discussed
earlier in this opinion, that both children currently satisfied the definition for
neglected children and adjudicated them as such. After making additional
findings, the family court found termination of parental rights was in the children’s
A trial court has broad discretion in determining whether a child
satisfies the definition of an abused or neglected child and whether such abuse or
neglect is sufficient to warrant termination of parental rights. See R.C.R., supra,
988 S.W.2d at 38 (citing Department of Human Resources v. Moore, 552 S.W.2d
672, 675 (Ky.App. 1977)). We will not substitute our judgment for that of the
family court unless there is no substantial evidence in the record to support such a
finding. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420,
424 (Ky.App. 1986). We limit our review to the clearly erroneous standard set
forth in CR 52.01. We note “[c]lear 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.” R.C.R., supra, 988 S.W.2d at 38 (quoting Rowland v.
Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
The testimony before the family court revealed numerous instances of
illicit drug usage, continuous failure to comply with requests made by the Cabinet,
claims of domestic violence, and general neglectful behavior by Mother, all of
which were appropriate for the family court to rely upon in making its
determination. As a result, this testimony convinces us the family court was not
clearly erroneous in concluding the children were neglected. After reviewing the
statutory factors which must be considered prior to terminating parental rights, we
are unable to hold the family court committed clear error in determining
termination was in the best interests of the children. Although Mother disagrees
with the family court’s decision, there was sufficient testimony adduced at trial to
support the finding that four or more of the grounds for termination listed in KRS
625.090(2) existed. A finding of one of the grounds is all that is required. Even in
light of the conflicting testimony and the differences of opinion of the parties, we
will not substitute our decision for that of a trial court. Wells v. Wells, 412 S.W.2d
568, 571 (Ky. 1967). Therefore, as the evidence adduced at the termination
hearing was sufficient to support the trial court’s findings of neglect and to
terminate Mother’s parental rights, there was no clear error and we will not disturb
the judgment on appeal. CR 52.01.
Therefore, for the foregoing reasons, the judgment of the Jackson
Family Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Kenneth S. Stepp
Stephen D. Spurlock