G. (N. M.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: AUGUST 21, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001699-ME
N.M.G.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT,
FAMILY COURT DIVISION
HONORABLE PATRICIA WALKER FITZGERALD, JUDGE
ACTION NO. 07-AD-500367
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAIMLY
SERVICES; N.D.J.G.; K.L.G.; D.D.G.;
AND CATHERINE SPALDING,
GUARDIAN AD LITEM
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.
TAYLOR, JUDGE: N.M.G. brings this appeal from three June 27, 2008, orders of
the Jefferson Circuit Court, Family Court Division, involuntarily terminating her
parental rights to three minor children, N.D.J.G., K.L.G., and D.D.G. and from an
August 27, 2008, amended order. We affirm.
On November 13, 2007, the Cabinet for Health and Family Services,
Commonwealth of Kentucky (Cabinet) filed a petition for involuntary termination
of parental rights seeking to terminate appellant’s parental rights as to N.D.J.G.,
K.L.G., and D.D.G. 1 in the family court.
The family court conducted an evidentiary hearing. By orders entered
June 27, 2008, the family court made detailed findings of fact and conclusions of
law. Therein, the court found that based upon clear and convincing evidence,
N.D.J.G., K.L.G., and D.D.G. were abused and neglected as defined by Kentucky
Revised Statutes (KRS) 600.020(1). In these orders, the court painstakingly
detailed the egregious physical abuse suffered by the children as well as
appellant’s neglect of them. Based upon these findings of fact, the family court
entered separate orders terminating appellant’s parental rights to each of the three
children on June 27, 2008.
Appellant timely filed a motion pursuant to Kentucky Rules of Civil
Procedure (CR) 59 to alter, amend, or vacate the June 27, 2008, findings of fact,
1
N.D.J.G. was born August 15, 1999; K.L.G. was born July 26, 2003; and D.D.G. was born
September 24, 2004.
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and conclusions of law. By order entered August 27, 2008, the family court
amended its findings of fact and conclusions of law. This appeal follows.
Involuntary termination of parental rights is governed by Kentucky
Revised Statutes (KRS) 625.090. KRS 625.090 provides that parental rights may
be involuntarily terminated if the court finds by clear and convincing evidence that
the child is abused or neglected and that termination is in the child’s best interest.
M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114 (Ky.App. 1998). And,
concomitantly, the court must further find at least one of the specified grounds for
termination of parental rights as set forth in KRS 625.090(2). An appeal from an
order of involuntary termination of parental rights is reviewed pursuant to the
clearly erroneous standard found in Kentucky Rules of Civil Procedure (CR)
52.01. M.P.S., 979 S.W.2d 114.
Appellant contends the family court erred by terminating her parental
rights. Appellant specifically contends that the family court erred in its best
interest analysis by failing to consider the Cabinet’s lack of reasonable efforts to
reunite appellant with the children. In support thereof, appellant merely asserts
that she was initially referred to domestic violence counseling when she actually
needed abusive parenting counseling and that her psychological assessment was
delayed five months due to a lack of funding.
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KRS 625.090 delineates the grounds for involuntary termination of
parental rights. KRS 625.090(3)(c) specifically addresses reunification efforts and
provides:
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 620.020 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[.]
Essentially, KRS 625.090 requires a court to consider whether the Cabinet made
reasonable efforts to reunite the child with the parent. Reasonable efforts are
defined by KRS 620.020(10) as the “exercise of ordinary diligence and care by the
department to utilize all preventative and reunification services available . . .
necessary to enable the child to safely live at home[.]”
In the case sub judice, it is undisputed that appellant was initially sent
to domestic violence counseling rather than abusive parenting counseling. Once
the Cabinet became aware of the referral, it quickly referred appellant to abusive
parenting counseling. It is also uncontroverted that appellant’s psychological
assessment was delayed. A review of the record, however, reveals that the Cabinet
made reasonable efforts to reunite the children with appellant and in so doing
provided numerous services to appellant over the past eight years. Among the
services provided to appellant were family therapy, abusive parenting therapy,
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mental health assessment and counseling, daycare references, out-of-home care for
the children, prevention planning, and housing and employment counseling.
Despite the vast number of services provided to appellant, her
psychological assessment still revealed a number of troubling issues. Appellant’s
assessment revealed that due to her lack of empathy for the children and her
limited intellectual functioning she may not have the capacity to even benefit from
the services provided. In its amended order, the family court specifically found:
3.
[T]here were some delays in providing services to
[appellant]. [Appellant] initially was referred to,
or elected without appropriate guidance to attend,
domestic violence offenders’ treatment rather than
abusive parenting counseling. She later transferred
to a program that focused on child-related issues.
The Forecast [psychological] assessment was
delayed due to funding issues. The Court did
consider these delays in rendering its decision.
However, the Court also considered that
[appellant] was provided intensive services prior to
the time that [N.D.J.G.] was returned to her, the
limited progress she had made in eight (8) months
of counseling for abusive parenting issues, and the
various evaluations and reports that indicated that
due to her limited intellectual functioning and lack
of empathy she might not have the capacity to
benefit successfully from those services. These
considerations, together with the seriousness of the
children’s injuries and the length of time the
children have been removed from her care,
necessitate finding another permanent home for
these children.
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The court clearly believed the Cabinet had made reasonable efforts to reunite
appellant with the children. Considering the seriousness of the children’s abuse
coupled with appellant’s lack of progress, the family court through extensive
findings, determined that termination of appellant’s parental rights would be in the
children’s best interest. Upon careful review of the record in this case, we can find
no error in the family court’s findings.
For the foregoing reasons, the orders of the Jefferson Circuit Court,
Family Court Division, are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
John E. Hamlet
Louisville, Kentucky
BRIEF FOR APPELLEES N.D.J.G.,
K.L.G., AND D.D.G.:
Catherine Spalding
Guardian Ad Litem
Louisville, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES:
Brenda L. Bourgeois
Louisville, Kentucky
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