S. (T.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.Annotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 07-AD-500299
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
STUMBO, JUDGE: T.S. (hereinafter referred to as “Mother”)1 appeals from an
order of the Jefferson Circuit Court terminating her parental rights as to her minor
children, referred to herein as “Child A” and “Child B,” upon finding that the
statutory factors supporting termination were present. Mother argues that the
An order of this Court rendered March 4, 2008, directed that the record in this matter shall
remain confidential. The order reflected Court of Appeals Administrative Order No. 2006-01.
circuit court made several material errors of fact which necessitate that the orders
be reversed or vacated. She also maintains that the circuit court improperly failed
to meet the 30-day time requirement for rendering a final order as set out in KRS
625.090(6), thus requiring the orders at issue to be reversed or vacated. For the
reasons stated below, we affirm the orders on appeal.
On September 7, 2007, the Cabinet for Health and Family Services
(hereinafter “the Cabinet”) filed a Petition for Involuntary Termination of Parental
Rights and Appointment of Guardian Ad Litem against Mother and her boyfriend
“Father.” The petition alleged that the parties’ children - Child A and Child B were abused and neglected children as defined in KRS 600.020, and that it was in
the best interest of said children that the parental rights of Mother and Father be
After various procedural matters were addressed, a bench trial on the
petition was conducted on November 29, 2007. On January 23, 2008, the court
rendered its Findings of Fact and Conclusions of Law. The court found that on
August 22, 2006, the Cabinet had filed verified dependency action petitions
alleging that its representatives visited the residence of Mother on August 19,
2006, and found “urine all over the floor, dried up feces all over the floor and the
children [then ages 1 and 3] were crawling around on the floor.” The officer stated
that “there was broken glass in the bath tub and beer cans all over the house.” The
affiant found roaches in the kitchen, a strong odor throughout the home, and noted
that Mother had been diagnosed with Tourette Syndrome and Schizoid Personality
Disorder for which she was not on any medication.
In reciting the record, the court noted that a temporary removal
hearing was conducted on August 30, 2006, resulting in an order that the children
remain with the respondent parents. The order was conditioned on the parents
cooperating with a “FORECAST” team and following its recommendations,
Mother enrolling in counseling at Seven Counties Services, both parents remaining
sober, the home being maintained in a clean and orderly condition, the children not
to be left alone with the family dog, and no domestic violence.
The January 23, 2008, findings also noted that on November 9, 2006,
the Cabinet filed verified dependency action petitions against Mother and Father
alleging that on November 11, 2006, one of the children was injured when Father
threw a tape measure at Mother during a confrontation and inadvertently struck the
child in the head; that the parties were uncooperative with the Cabinet; that Father
had a history of domestic violence; and that the parties had a long history of
neglect and emotional injury against their children, resulting in their parental rights
being terminated as to three other children. On January 24, 2007, the Family Court
rendered an order committing Child A and Child B to the care and custody of the
Cabinet upon finding that Mother lacked stable housing, employment or
completion of the case plan, and that Father was not present and had not followed
the case plan.
The circuit court also addressed the evidence presented at trial, noting
that the Cabinet had engaged in reasonable attempts to reunite the family including
the making of referrals to drug and alcohol abuse treatment; mental health
assessment and counseling; FORECAST assessment; out-of-home care for the
children; “First Steps” services for the children; anger management and domestic
violence counseling; parenting classes; household management and budget
counseling, and numerous other services. The court found that the parents had not
participated in these services or had otherwise failed to make sufficient progress.
In April, 2007, Mother’s treatment with Seven County Services was terminated
due to her inability to address the issues raised by the Cabinet and her therapist.
After considering the record and the evidenced adduced at the
November 29, 2007, hearing, on January 23, 2008, the court rendered its “Order
Terminating Parental Rights and Order of Judgment,” and separate “Findings of
Fact and Conclusions of Law” in support of the order. The court found that Father
had abandoned the children, and that both Mother and Father had failed, refused or
been substantially incapable of providing essential parental care to the children. It
further found that despite reasonable efforts to unify the family, they engaged in a
pattern of conduct which rendered them incapable of rendering care to the children,
it concluded that termination of the parties’ parental rights was in the children’s
best interest, and termination was so ordered. This appeal followed.
Mother now argues that the circuit court made several material errors
in its findings of fact which necessitate the reversal of the order on appeal.2 She
contends that the court incorrectly found that she failed to avail herself of the
services being offered by the Cabinet; erroneously found that Mother failed to
show any significant improvement; and, that the circuit court improperly failed to
consider the children’s young age. Mother also argues that the circuit court
erroneously failed to meet the requirement set out in KRS 625.090(6) that parental
termination proceedings be adjudicated within 30 days of the close of the evidence.
In sum, she contends that cumulative effect of the errors demands that the order on
appeal must be reversed or vacated.
We have closely examined the record and the law, and find no basis
for reversing the order on appeal. As the parties are well aware, the elements of
involuntary termination of parental rights are set out by statute. A circuit court
may involuntarily terminate a party’s parental rights if it finds by clear and
convincing evidence that the child is abused or neglected as defined by statute; that
the termination of parental rights is in the child’s best interest; and, that at least one
of statutorily enumerated factors exists. KRS 600.020; KRS 625.090.
In her Notice of Appeal, Mother did not set out the name of the Appellee(s) either in the
caption or the body of the notice as required by CR 73.03. While this might normally result in
either a dismissal of the appeal or a show cause order arising from the failure to name a
necessary party, the Cabinet’s filing of a responsive brief demonstrated that the purpose of the
rule (i.e., notice to the appellee) was satisfied. See generally, Morris v. Cabinet for Families and
Children, 69 S.W.3d 73 (Ky. 2002).
In the matter at bar, evidence is set out in the record which reasonably
supports the circuit court’s findings of abuse or neglect. On November 29, 2006,
Mother stipulated that the children were abused or neglected as defined by KRS
600.020(1). That stipulation refers to the November 9, 2006, petition which set out
Mother’s long history of neglect and emotional injury to both the three children for
whom she previously lost parental rights as well as Child A and Child B. Also
addressed in the petition to which Mother stipulated was the history of
“environmental neglect,” i.e., a home with urine and feces on the floor, roaches in
the kitchen and broken glass in the bathtub; Mother’s failure to appear for random
drug screening; domestic violence leading to a child’s injury; and “current
uncooperativeness of pending CPS investigation.”
Furthermore, even if the stipulation was not considered, the Cabinet
tendered evidence at trial detailing the abuse and neglect which led to the
termination of parental rights as to Mother’s other three children, and demonstrated
to the circuit court’s satisfaction that
. . . the conditions or factors which were the basis for the
previous termination finding have not been corrected.
Specifically, despite the Cabinet’s reasonable
reunification efforts, the Respondent mother continue
[sic] to exhibit a failure or inability to provide her
children with essential parental care and protection, or to
provide the basic necessities of food, shelter, clothing,
medical care, or education that the children require.
Moreover, once again Respondent mother has abused her
children through her abusive relationships with men, her
unclean and unsanitary living conditions and refusal to be
compliant with mental health treatment.
Mother also argues that the circuit court improperly failed to consider
the children’s young age (then 1 and 3 years old) when adjudicating the
termination issue. In referencing the phrase “considering the age of the child” set
out in KRS 625.090(2), she states that “it stands to reason that the legislature
meant that the parent of a young child should be given more leeway by the Court
in determining whether significant improvement could be expected in the
immediately foreseeable future.”
KRS 625.090(2) sets out certain enumerated factors, one of which
must be present to support termination. At issue is KRS 625.090(2) (g), upon
which the court relied and which states 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 . . . .”
Mother claims that the court improperly failed to consider the age of
her children in its analysis, and that this failure requires reversal of the order on
appeal. We disagree. In its Order Terminating Parental Rights and Order of
Judgment, the court expressly “found by clear and convincing evidence that . . .
there is no reasonable expectation of significant improvement in the parent’s
conduct in the immediately foreseeable future, considering the age of the Petitioner
child.” This finding refutes Mother’s claim that the children’s age was not
considered as part of the court’s KRS 625.090(2) (g) analysis, and we find no error
on this issue.
Lastly, Mother argues that the circuit court failed to meet the 30-day
time requirement for rendering a final order as set out in KRS 625.090(6), which she maintains - requires the orders at issue to be reversed or vacated. While it is
true that the court missed this 30-day period by an additional 24 days, nothing in
the record indicates that Mother preserved this issue by raising it and giving the
circuit court the opportunity to correct or mitigate it. Similarly, she does not cite to
any published authority in support of her claim that reversal is required, nor reveal
how she was harmed by the purported error. Mother has not overcome the strong
presumption that the circuit court’s ruling was correct, and any error arising from
the time of the orders’ release was harmless as it did not affect her substantial
rights. CR 61.01. As such, we find no error.
For the foregoing reasons, we affirm the Order Terminating Parental
Rights and Order of Judgment, and Findings of Fact and Conclusions of Law of the
Jefferson Circuit Court.