M. (C.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: FEBRUARY 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001176-ME
C. M., MOTHER
v.
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 09-AD-00014
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY; M. C. P., A MINOR CHILD
AND C. M. P., A MINOR CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; STUMBO, JUDGE; LAMBERT,1 SENIOR
JUDGE.
LAMBERT, SENIOR JUDGE: C.M. is the biological mother of the two children,
M.C.P and C.M.P. Her parental rights were terminated and the children were
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
declared wards of the state. She appeals from that determination and upon review
of the record, we affirm the judgment of the Hart Circuit Court.
A jury found C.M. guilty of one count of incest and one count of rape
in the third degree and sentenced her to serve 10 years. The biological father of the
children who are the subjects of this appeal petitioned for a voluntary termination
of his parental rights which was granted by the Hart Circuit Court. After
attempting to work with C.M.’s family, particularly the children’s aunt, as an
alternative placement of the children, the Cabinet for Health and Family Services
determined that it was in the best interest of the children for the mother’s parental
rights to be terminated also, and for the children to become wards of the state.
C.M. argues that the Cabinet failed to act in good faith and did not
exercise ordinary care when considering the children’s aunt for placement. C.M.
refers to the Cabinet’s decision to no longer consider the aunt as a potential
placement of the children as capricious. We disagree. The Cabinet initially did
consider placement of the children with the aunt. During the period of evaluation
however, three events formed a pattern the Cabinet determined not to be in the best
interest of the children.
At one point, the aunt took one of the children and the child’s
grandmother to the Hart County Jail. The child stayed in the car with another adult
while the aunt and grandmother visited C.M. Additionally, the aunt’s oldest niece
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provided a cell phone to one of the children in order for the child to call the
grandmother. There was at the time, a no contact order in place prohibiting such
communication. The third event involved the aunt driving past a site with the
children in the vehicle where much of the sexual abuse had taken place.
Testimony indicated this caused a significant setback in the emotional health of at
least one of the children.
The standard used to decide the termination of parental rights is the
best interest of the child. Kentucky Revised Statute (KRS) 625.100(1). C.M.
acknowledges that placement with a relative is an option and not a requirement.
M.E.C. v. Commonwealth of Kentucky, Cabinet for Health and Family Services,
254 S.W.3d 846, 852 (Ky.App. 2007); R.C.R. v. Commonwealth, 988 S.W.2d 36, 40
(Ky.App. 1999). In fact, the Cabinet tried placement with the aunt and it was
during that time the three events previously detailed occurred. The aunt clearly
was unable to successfully juggle the interests of herself, her sister, her mother and
the children. She failed to be able to control the environment and place the best
interests of the children at the forefront. We are not sure anyone could have
accomplished such a Herculean task in the situation her sister’s acts and decisions
had created.
We will not reverse the judgment of the circuit court unless we
believe substantial evidence is lacking to support the trial court’s decision. V.S.
and H.S. v. Commonwealth of Kentucky, Cabinet for Human Resources, 706
S.W.2d 420, 424 (Ky.App. 1986). Here, it was clear that the aunt was unable to
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place the best interest of the children foremost. That failure occurred repeatedly.
The burden is upon C.M. to show the trial court’s determination was clearly
erroneous. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (1998).
She has not met that burden and we therefore affirm the decision of the Hart
Circuit Court
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Scott Jamison
Bowling Green, Kentucky
Mary Gaines Locke
Munfordville, Kentucky
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