M. (J.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000258-ME
J.M., NATURAL MOTHER
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE VIRGINIA WHITTINGHILL, JUDGE
ACTION NO. 08-AD-500273
CABINET FOR HEALTH AND FAMILY SERVICES,
COMONWEALTH OF KENTUCKY; S.M.M., AN INFANT;
B.N.M., AN INFANT; AND C.L.M., AN INFANT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES.
THOMPSON, JUDGE: J.M. (mother) appeals from a Jefferson Family Court
order terminating her parental rights to her children, S.M.M., B.N.M, and C.L.M.
Although the father’s parental rights were also terminated, he did not appeal. The
sole issue presented is whether the family court’s order terminating mother’s
parental rights and transferring custody to the Cabinet for Health and Family
Services (Cabinet) is supported by clear and convincing evidence that the children
were abused and neglected and that it was in their best interest to have their
mother’s rights terminated. We conclude that the record amply supports the
court’s order and affirm.
The Cabinet became involved with the family in April 2006, when it
filed an initial verified dependency action regarding S.M.M., born on December
15, 1996, and B.N.M., born on December 20, 1999. At that time, C.L.M. was not
yet born. It was alleged that both children had excessive school absences. After
the mother agreed to ensure that the children would have no additional absences
except when excused by a physician’s note, the children were permitted to remain
in her care and custody.
On July 6, 2006, the Cabinet filed its second petition in which it
alleged that the Cabinet received a police report that on May 22, 2006, the father
entered the mother’s home and placed his hands around her neck. Although she
was temporarily able to escape, the father dragged the mother inside the home and,
in the children’s presence, an altercation ensued. The petition further alleged that
the parents had not been cooperative with the Cabinet and that neither attended the
scheduled court date regarding the initial petition.
A temporary removal hearing was held and the family court again
returned the children to the mother. It further ordered that the mother obtain an
Emergency Protective Order (EPO) and a Domestic Violence Order (DVO), to
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have counseling at the Center for Women and Families and counseling through
Seven Counties for victims, and to cooperate with the Cabinet and secure regular
employment. The father was ordered to have no contact with the mother and the
children until further order of the court and to enroll in and complete all domestic
violence counseling. The children were to be assessed for counseling at Seven
Counties Services and all recommendations completed.
The mother entered, and the family court accepted, a stipulation that
the children were abused and neglected children within the meaning of Kentucky
Revised Statutes (KRS) 600.020(1), that the children were educationally neglected,
and that the domestic violence occurred as stated in the July 2006 petition.
In April 2007, the Cabinet filed a third dependency petition stating
that since March 26, 2007, S.M.M. had missed forty-eight days of school and that
the situation had not improved. It further stated that the mother failed to comply
with the Cabinet’s request that the child be medically evaluated. According to the
petition, the father had been noncompliant with prior court orders, with the
Cabinet’s directives, and had a history of assault, domestic violence and drug
charges.
At the temporary removal hearing, the family court again allowed the
children to remain in the custody of the mother and further ordered that the mother:
(1) ensure the children attend school; (2) ensure that the children are assessed for
counseling and follow the Cabinet’s recommendation; (3) secure employment; (4)
obtain a psychological evaluation and follow all recommendations; and (5)
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cooperate with in-home service providers and the Cabinet’s treatment plan. On
June 12, 2007, the mother entered, and the family court accepted, a written
stipulation that the children were victims of educational neglect.
After C.L.M’s birth, on November 26, 2007, the Cabinet filed its
fourth dependency petition. In addition to alleging that the mother had been
noncompliant with previous court orders, the petition stated that C.L.M. tested
positive for cocaine at the time of birth and that the mother failed to comply with
the court’s prior orders. At that time, the father was incarcerated on drug-related
charges.
Following a temporary removal hearing, the children were placed in
the temporary custody and care of the Cabinet. The mother was ordered to: (1)
enroll in individual counseling; (2) enroll and complete drug treatment; (3)
maintain independent housing; (4) establish paternity for the infant; (5) secure
regular employment; (6) submit to random drug testing; and (7) pay child support
in the amount of $50 per week.
On December 18, 2007, the parents entered, and the family court
accepted, a written stipulation in the pending dependency action that the children
were abused and neglected within the meaning of KRS 600.020(1) and further that:
M.’s (mother’s) substance abuse resulted in birth of child
with cocaine in its system, domestic violence at hands of
father, who also has substance abuse issues. Family has
not been properly supervised and children . . .have had
excessive absences from school.
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The children were committed to the care and custody of the Cabinet on February
19, 2008.
In July 2008, the Cabinet filed an action to terminate the parental
rights of the mother and father to S.M.M., B.N.M. and C.L.M. A hearing was held
at which time the family court heard testimony from therapists from Seven
Counties Services, representatives of the children’s school, the foster parent, the
Cabinet worker assigned to the case, the parents’ therapist, and the parents.
Sandra Freeman, B.N.M.’s therapist, testified that B.N.M. suffers
from anxiety, worry, and memories of domestic violence. She testified that the
child has become more outspoken and gained self-confidence since therapy began.
Although B.N.M. has a favorable prognosis, if returned to her parents, her
prognosis is poor.
Tyler Horn, S.M.M.’s therapist, testified that S.M.M. also suffers
from anxiety and S.M.M. admitted that he had experienced sexual abuse while in
his mother’s custody. The therapist explained that because of S.M.M.’s anxiety
regarding the abuse, at the time of the trial it had not been fully explored. Because
of the complexity of S.M.M.’s mental health, Horn recommended continued
therapy.
The mother’s therapist, Linda Leavitt, diagnosed mood disorder,
attention deficit disorder (ADD), victim of domestic violence and of neglect to her
children. The mother takes Cymbalta for depression, Strattera for ADD, and
Seroquel as needed for sleep.
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The trial court also heard testimony from the principal of the
children’s school, Tiffany Gerstner. She was aware of the children’s excessive
absenteeism and testified that school personnel had attempted to intervene through
the family resource coordinator who worked with the family. She recalled that the
children lacked personal hygiene and were withdrawn while in their mother’s care.
She also recalled that S.M.M. had difficulty staying awake in class. She testified
that the children were now outgoing, engaged in extracurricular activities, and
excited about school.
Barb Kissell, the school’s family resource coordinator, has known the
children since they began attending school. She dealt with the children concerning
head lice, attendance, and academic struggles. She testified that the children were
frequently absent. After she became suspicious that some of the physicians’
excuses were computer generated, she contacted the various physicians who
purportedly signed the notes to validate the excuses, but only some were validated.
She agreed with Ms. Gerstner that the children were now outgoing and had
blossomed socially.
The children’s foster mother testified that when the children were
initially placed in her care, B.N.M. had extensive head lice causing sores on her
head. S.M.M. was withdrawn. The children’s foster mother was given bottles
containing medication for the children, which included Clonidine, Seroquel and
Topomax. Concerned about the medications, she scheduled an appointment for the
children with a psychiatrist who instructed that the children not be administered
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any of the medications. After the children were no longer medicated, the children
were noticeably more alert. Soon after the children arrived at the foster home,
B.N.M. was treated for severe ear wax and both of the older children were treated
for extensive dental decay. The infant suffers from the effects of the mother’s drug
use during pregnancy and receives occupational, physical and speech therapy.
The foster mother testified that the children were anxious when they
arrived at her home and frightened that the father would injure the mother. While
living with their mother, the children’s diet consisted primarily of cereal and ramen
noodles. It was not until June 2007, that B.N.M. told the foster mother that she and
S.M.M. had been sexually abused by Paul, a forty-year old babysitter.
B.N.M. relayed that there were numerous parties at her parents’ home
and she saw her parent’s engage in drug-related activity. Upon further inquiry, she
told the foster mother that Paul touched her in her “private areas” and that S.M.M.
was forced to watch. She decided not to question S.M.M. but instead called the
child abuse hotline and the family’s social worker. The foster mother confirmed
the consensus of the school personnel that the children had improved physically
and mentally since their arrival to her home.
The family’s social worker, Kay Collins, testified that she first met the
family in 2005, when a final notice of truancy was served by a school official. She
described the mother’s cycle of noncompliance with case treatment plans and court
orders. She testified that the mother would comply with the plans and orders just
prior to a court date, but returned to noncompliance soon after the proceedings
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ended. She further testified that since the children’s commitment to the Cabinet,
the mother has not provided support for the children. She recommended that the
parental rights be terminated to eliminate further damage to the children.
Amy Age began treating the parents three months prior to the
September 2008 trial. She testified that the parents had been compliant and that
the parents were on the fourth step of a twelve-step program but stated that fewer
than 5 percent of first-time participants complete the program.
The mother testified that she attributed her drug use during pregnancy
to depression. She denied over-medicating her children and minimized the
domestic violence.
On appeal the mother contends that the family court’s findings, that
termination of her rights was in the children’s best interest and that termination
was warranted under KRS 625.090, were not supported by clear and convincing
evidence. We are not persuaded that the family court erred.
Our standard of review in termination of parental rights cases is
confined to Kentucky Rules of Civil Procedure (CR) 52.01, based upon clear and
convincing evidence. We will not disturb the trial court’s findings of fact unless
there is no substantial evidence in the record to support its findings. V.S. v.
Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky.App.
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 the evidence sufficient to convince ordinarily prudent-minded
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people.” M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky.App.
1998).
The findings of the family court were extensive and included the
abundant services offered by the Cabinet to the family. It found that the parents’
recent efforts to reunite the family were “too little too late” and that the children’s
interest “would not be served by hoping their parents can get it right this time.”
Ultimately, the family court concluded that the Cabinet had proven by clear and
convincing evidence that termination was warranted and that the children’s best
interests were served by termination.
The family court found that the condition specified in KRS
625.090(2)(e) had been met by clear and convincing evidence. That statute
provides:
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[.]
In addition, KRS 625.090(1)(b) requires that the court find by clear and convincing
evidence that termination is in the child’s best interest.
The evidence clearly demonstrated that the mother failed to provide
essential care and support for her children over a time span much longer than six
months. The children suffered physical and mental neglect and were exposed to
physical violence, sexual abuse, drug abuse, and were themselves unnecessarily
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medicated. Despite the repeated attempts by the Cabinet and the court, the mother
refused to consistently participate in the services offered to ensure the protection of
her children. It was not until the Cabinet sought termination of her parental rights
that she took steps to comply with treatment plans.
We conclude that there is clear and convincing evidence that the
children’s best interest are served by termination. The judgment of the Jefferson
Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Bethanni E. Forbush-Moss
Louisville, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Brenda L. Bourgeois
Louisville, Kentucky
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