K. (T.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: JULY 29, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-002004-ME
T.K.
v.
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO. 09-AD-00028
CABINET FOR HEALTH AND
FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY;
D.S.K., AN INFANT; AND M.D.K.,
AN INFANT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KELLER AND VANMETER, JUDGES.
KELLER, JUDGE: The Boyle Family Court terminated the parental rights of T.K.
(the mother) and J.K. (the father) to their children, D.K. (the son) and M.K. (the
daughter). The mother’s termination rights are the only ones at issue because the
father has not appealed the decision terminating his parental rights. For the
following reasons, we affirm.
FACTUAL BACKGROUND
On November 7, 2008, the Cabinet for Health and Family Services (the
Cabinet) received a call from the Boyle County Police Department stating that
drugs, marijuana, and drug paraphernalia were present in the parents’ home within
easy reach of the children, and that there was minimal food in the home. At the
time, the son was five years old, and the daughter was almost two years old.
Because the mother and father agreed for the children to be placed with their
paternal grandmother and step-grandfather, a nonremoval petition of neglect was
filed in the Boyle Family Court. Pursuant to an agreed upon prevention plan, the
mother and father were only allowed to have supervised visits with the children.
On or about January 16, 2009, the children were placed in foster care after it was
discovered that the mother was having unsupervised visits with the children in
violation of the prevention plan.
At a hearing held on August 17, 2009, the family court concluded that, based
on the parents’ lack of progress in completing their case plans, the Cabinet was no
longer required to make reasonable efforts to reunify the children with them. On
December 4, 2009, the Cabinet filed a petition for involuntary termination of
parental rights in the Boyle Family Court against the mother and father. On
December 23, 2009, the mother filed a motion to reinstate reasonable efforts to
reunify the family, and the family court denied her motion. On July 9, 2010, the
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mother again filed a motion to reinstate reasonable efforts to reunify the family,
and the family court denied her motion.
A bench trial was subsequently held on August 27, 2010, and on October 27,
2010, the family court issued its findings of fact, conclusions of law, and orders
terminating the parental rights of the mother and father to their children. The
following is a summary of the testimony and evidence presented at trial that is
relevant to this appeal.
1. Gayle Learned
Gayle Learned (Learned), a social service clinician for the Cabinet, testified
by deposition as follows. On November 7, 2008, Learned was “on call” for the
Cabinet when she received a call from the police that drugs and drug paraphernalia
were present in the parents’ home within the reach of the children, and that there
was not adequate food in the home. After receiving the call, Learned went to the
home and found the father there with the police and his two children. The mother
was not present. The father told Learned that the mother had left their home, and
that she had not returned when he thought she would. The father also explained
that he became agitated because the children were asking for food, and the mother
had the food stamps. The father told Learned that, after he found some
prescription drugs and drug paraphernalia within the reach of the children, he
contacted the police.
Learned testified that she went upstairs and looked in the master bedroom.
The police had already retrieved the marijuana and drug paraphernalia. However,
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Learned observed a couple of pill bottles on the window sill within easy reach of
the children, and one of the bottles was tipped over with pills coming out of it.
Learned also testified that the daughter followed her upstairs, grabbed a pill from
the window sill, and that she had to retrieve the pill from the daughter.
Learned further testified that approximately thirty minutes after she arrived,
the mother returned to the home with an unidentified adult male. Learned testified
that the police searched the vehicle the mother arrived in and found approximately
eight Lortabs in an unmarked prescription bottle between the front seats of the
vehicle. The mother denied that the pills were hers; however, she was criminally
charged with their possession. Finally, Learned testified that as a result of the
November 7, 2008, incident, she filed a nonremoval petition of neglect in the
family court.
2. Virginia Jones
Virginia Jones (Jones) testified by deposition to the following. From
December 2008 to approximately late May or early June of 2009, she was the
ongoing case worker assigned by the Cabinet to work with the mother and father.
Jones testified that under the initial prevention plan, the children were placed with
their paternal grandmother and step-grandfather, and that the mother and father
were allowed to have supervised visitation with the children. However, the
prevention plan was violated when the grandmother permitted the mother to have
unsupervised visits with the children. Thus, in January 2009, the Cabinet placed
the children in foster care.
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Jones further testified that the Cabinet developed case plans with the mother
and father to work toward reunification. The case plans required the mother and
father to maintain stable housing; cooperate with the Cabinet; complete a substance
abuse assessment; complete a mental health assessment; comply with random drug
screens; attend visitations with the children; and participate in an assessment with
the University of Kentucky’s Comprehensive Assessment and Training Services
(CATS) clinic.
Jones testified that the mother and father did not complete the tasks in their
case plans. Both parents often missed scheduled visitations with no warning or
explanation. Jones testified that it became necessary to have one or both of the
parents arrive at scheduled visits at least one hour early to confirm that the visit
would take place because the son would get very upset when they did not attend
scheduled visitations. Jones also testified that the parents’ supervised visits with
the children were often chaotic, and that the mother often wanted to clean the
visitation room as opposed to sitting and talking with the children.
Jones further testified that the mother only sporadically submitted to her
random drug screens, several of which were positive. Furthermore, the mother did
not complete a substance abuse assessment or a mental health assessment.
Additionally, the CATS clinic refused to assess the mother and father because of
their failure to consistently attend scheduled visitations and submit to drug screens.
Finally, Jones testified that while she was the ongoing caseworker, the mother
lived with her boyfriend. She testified that because the boyfriend had a prior
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history with the Cabinet, and had an extensive history of drug use, the Cabinet
asked the boyfriend to submit to drug screens, which he refused. Jones testified
that the boyfriend had to comply with drug screenings before the children could
reside with the mother in the boyfriend’s home.
3. Jeanne McQuerry
Jeanne McQuerry (McQuerry), a social services clinician for the Cabinet,
testified at trial that she assumed responsibility of the mother’s and father’s case
plans from Jones in June 2009. McQuerry testified that there had been twentythree referrals to the Cabinet regarding this family, with the first referral beginning
in April 2001. McQuerry testified that not all the referrals were substantiated.
However, McQuerry cited a previous substantiation for neglect in November 2001
based upon a serious car accident in which the mother and her other daughter from
a previous relationship1 were involved. The mother and her other daughter were
passengers in the vehicle, and the other daughter was not in a child restraint seat.
The driver’s child, who was also not in a child restraint seat, was killed. The driver
was apparently under the influence of drugs and alcohol.
In March 2004, the mother stipulated to dependency because she was unable
to take care of her children due to ongoing pain she was experiencing from injuries
she received from previous car accidents. In April 2004, there were substantiated
spouse abuse charges against both the mother and father and both were reportedly
intoxicated and on drugs. Additionally, there was a substantiation of neglect in
1
The other daughter is in the custody and care of her paternal grandmother.
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August 2006 against the mother and father after police found drugs in their
bedroom; the mother admitted to smoking marijuana while pregnant with the
daughter; and the son described in detail the mother’s use of cocaine.
McQuerry also testified that in June 2009, she and Kurt Fogle (Fogle), who
also works for the Cabinet, conducted a routine home visit of the mother’s and
father’s home. Fogle found a marijuana roach on the floor of the living room and a
pill on the floor of the bedroom, which the father identified as Xanax.
McQuerry further testified regarding the mother’s and father’s case plans.
She stated that there were problems with visitations and that the mother talked with
the people supervising the visits more than she did with her children. In addition
to problems with visitations, the mother and father did not complete a substance
abuse assessment and refused to sign the case plans because they did not want to
participate in the CATS assessment. Furthermore, McQuerry confirmed Jones’s
testimony that the CATS clinic refused to assess the mother and father until they
were clean from drugs for at least one month.
Additionally, Steve Hutt, Certified Alcohol and Drug Counselor for
Comprehensive Care Center, wrote a letter to McQuerry on December 29, 2009.
The letter stated that, out of twenty-one appointments, the mother only kept five of
them. Specifically, the mother failed to attend or notify him that she was not
attending on twelve occasions, and she cancelled the other four. Hutt stated that he
was considering not giving the mother future appointments if she did not start
keeping them.
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As to her random drug screens, McQuerry testified that the mother did not
begin calling in consistently and testing negative for drugs until July 9, 2010. Prior
to that time, the mother was sporadically compliant with her drug screens, and she
frequently tested positive for benzodiazepines, amphetamines, opiates, and THC.
She also tested positive on a few occasions for cocaine and once for methadone.
McQuerry testified that if the mother produced valid prescriptions to the drug
testing facility, positive drug tests for prescription medications were not counted as
positive results.
Finally, McQuerry testified that she did not think it was in the children’s
best interests to continue the reunification plan. Specifically, she testified that she
believed the mother and father would not meet the children’s needs for safety and
supervision.
4. Heather Prather
Heather Prather (Prather), a therapist for Comprehensive Care Center,
testified at trial that she began providing weekly therapy to the son in January
2010. In Prather’s opinion, the son was doing well in school and at his foster
home. Additionally, Prather testified that the son told her that the mother was
mean to him and made him clean and take care of the house. The son also told her
that he felt safer with his foster family and hoped they would adopt him. Prather
further testified that the son sometimes suffers from anxiety related to permanency
issues in his life, and that he had experienced nightmares and worries related to
fears that his parents would kidnap him.
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5. Foster Mother
The children’s foster mother testified at trial that the children were placed in
her home on January 16, 2009. She testified that, when the son first arrived at her
home, he did not “know how to be a kid.” Specifically, the son always wanted to
work or sweep instead of play. However, both children are doing well and have
made great progress since they began living in her home.
The foster mother further testified that the children are well-bonded with her
and her husband, as well as the other children in their home. Additionally, she and
her husband adopted another sibling group and are interested in adopting the
children if they become available for adoption. Finally, the foster mother testified
that, of their own volition, the children call their biological parents by their first
names.
6. Grandparents
The children’s paternal step-grandfather testified that the children were
always well-fed, had good clothes, and that the mother kept a clean house.
Similarly, the children’s paternal grandmother testified that the mother kept the
house clean, made sure the children were fed and clean, and took better care of the
children than the foster parents. Finally, the children’s paternal grandfather
testified that the mother took good care of the children, the children were always
clean, and the mother kept a clean house.
7. Harold Tokle
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Harold Tokle (Tokle), the mother’s therapist, testified that he began seeing
the mother weekly or bi-weekly in April 2010, regarding her parenting and
substance abuse issues. Tokle believes that the mother has made progress and is
suited to parent her children.
8. The Mother
The mother testified at trial that she is in therapy with Tokle and has tested
negative for drugs since July 2010. She testified that she had difficulty making it
to the scheduled visitations with her children because of the pain she suffered from
injuries she received in car accidents. Additionally, the mother testified that she
did not have a driver’s license and often did not have access to transportation. The
mother explained that the father could not drive her because he went to Louisiana
to work for a period of time after the children were removed from their home.
Additionally, her father-in-law, who was her usual source of transportation, had a
transmission problem with his vehicle and had severe back pain which made it
difficult for him to drive her to visitations.
The mother further testified that she is living with her father-in-law and that
she and the father are in the process of reconciling. However, the mother did
acknowledge that she filed a domestic violence petition against the father in March
2010.
We set forth additional facts as necessary below.
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STANDARD OF REVIEW
The standard of review in a termination of parental rights case is set forth in
M.E.C. v. Commonwealth, Cabinet for Health & Family Services, 254 S.W.3d 846,
850-51 (Ky. App. 2008), as follows:
[T]his Court’s standard of review in a termination of
parental rights case is the clearly erroneous standard
found in Kentucky Rules of Civil Procedure (CR) 52.01,
which is based upon clear and convincing evidence.
Hence, this Court’s review is to determine whether the
trial court’s order was supported by substantial evidence
on the record. And the Court will not disturb the trial
court’s findings unless no substantial evidence exists on
the record.
Furthermore, although termination of parental rights is
not a criminal matter, it encroaches on the parent’s
constitutional right to parent his or her child, and
therefore, is a procedure that should only be employed
when the statutory mandates are clearly met. While the
state has a compelling interest to protect its youngest
citizens, state intervention into the family with the result
of permanently severing the relationship between parent
and child must be done with utmost caution. It is a very
serious matter.
(Citations omitted).
ANALYSIS
On appeal, the mother argues that the family court erred in terminating her
parental rights. As set forth below, we disagree.
Kentucky Revised Statute(s) (KRS) 625.090 governs involuntary
termination of parental rights proceedings. This statute permits a family court to
terminate parental rights only under limited circumstances. First, the family court
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must find by clear and convincing evidence that a child is or has been previously
adjudged abused or neglected. KRS 625.090(1)(a). The court must also find by
clear and convincing evidence that termination would be in the child’s best
interest. KRS 625.090(1)(b). Finally, the family court must find by clear and
convincing evidence the existence of one or more of the grounds for termination
that are enumerated in KRS 625.090(2)(a)-(j).
In its orders terminating the mother’s parental rights, the family court
concluded that the children were abused or neglected children as defined in KRS
600.020(1). The family court also found that the mother had failed to provide
essential parental care and protection for the children for a period of not less than
six months, and that there was no reasonable expectation of improvement in her
parental care and protection considering the age of the children. KRS
625.090(2)(e). Additionally, the family court found that the mother had
continuously or repeatedly failed, for reasons other than poverty alone, to provide
food, clothing, shelter, medical care, or education reasonably necessary for the
child’s well-being, also finding no reasonable expectation of significant
improvement in her conduct in the immediately foreseeable future. KRS
625.090(2)(g). Finally, the family court concluded that termination of the mother’s
parental rights was in the best interests of the children.
The mother contends that there was not substantial evidence to support the
family court’s finding that grounds for termination existed and that termination of
her parental rights was in the best interests of the children. KRS 625.090(3)
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provides that in determining the best interest of the child and the existence of a
ground for termination, the family court shall consider the following factors:
(b) Acts of abuse or neglect as defined in KRS
600.020(1) toward any child in the family;
(c) 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;
(d) The efforts and adjustments the parent has made in
his circumstances, conduct, or conditions to make it in
the child’s best interest to return him to his home within a
reasonable period of time, considering the age of the
child;
(e) The physical, emotional, and mental health of the
child and the prospects for the improvement of the child's
welfare if termination is ordered. . . .
With these factors in mind, we address the mother’s arguments.
We believe that the record supports the family court’s finding that
termination of parental rights was in the best interests of the children. As noted by
the family court, McQuerry and Jones testified that the mother did not complete
her case plan. After the children’s removal, the mother continued to abuse drugs
and was only sporadically compliant with drug screens. Additionally, the mother
did not complete a substance abuse assessment or a mental health assessment, and
she refused to sign her case plan because she did not want to participate in the
CATS assessment. Furthermore, the mother’s failure to have negative drug
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screens resulted in a rejection of her referral to the CATS clinic. The mother also
missed sixteen out of twenty-one appointments with the certified alcohol and drug
counselor from Comprehensive Care Center.
Furthermore, the mother only sporadically attended scheduled visits with the
children. The mother argues that she missed scheduled visitations because she
lacked access to transportation. However, this does not explain the mother’s
frequent failure to call to say she was going to miss a visit. Furthermore, there was
testimony that even when the mother did attend a visit, she was not engaged with
the children and talked with the workers supervising the visits more than she did
with her children.
As noted above, the son’s mental health therapist, Prather, testified that the
son did not wish to return to the care of his parents; he wanted to be adopted by his
foster parents; and he experienced nightmares and worries related to fears that his
parents would kidnap him. Additionally, the children’s foster mother testified that
the children had made great progress since coming to live with her, and that she
and her husband are interested in adopting the children.
We note that the mother did finally begin mental health and substance abuse
treatment with Tokle in April 2010, and that she has tested negative on her drug
screens since July 2010. However, there was substantial evidence to support the
family court’s finding that termination of the mother’s parental rights was in the
best interests of the children.
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We also believe that, based on the mother’s failure to complete her case plan
and her history of substance abuse, there was substantial evidence to support the
family court’s finding that the mother failed to provide essential care and
protection for her children for a period of not less than six months, and that there
was no reasonable expectation of significant improvement. KRS 625.090(2)(e).
Furthermore, we believe the record supports the family court’s finding that,
pursuant to KRS 625.090(2)(g), for reasons other than poverty alone, the mother
failed to provide the children’s necessities and that there is no reasonable
expectation of significant improvement in her conduct. Specifically, we believe
there is substantial evidence to support the family court’s finding that the mother is
incapable of providing essential shelter for the children. As testified to at trial, the
mother and father have a tumultuous relationship that is on again and off again. At
the time of the children’s removal in November 2008, the father had recently
moved back in with the mother. Jones testified that while she was the ongoing
caseworker, the mother lived with her boyfriend, and that based on his history, the
boyfriend would have to submit to drug screens in order for the children to be
returned to the mother in that home. At the time of trial, the mother was living
with her father-in-law, and she and the father were reconciling.
In support of her argument that there was not substantial evidence to support
this finding, the mother points to the testimony of the children’s grandparents that
the mother kept the house clean, kept the children fed and dressed, and took better
care of the children than the foster parents. Although the grandparents testified
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favorably for the mother, “the trial court, as the finder of fact, has the responsibility
to judge the credibility of all testimony, and may choose to believe or disbelieve
any part of the evidence presented to it.” K.R.L. v. P.A.C., 210 S.W.3d 183, 187
(Ky. App. 2006). Thus, based on the mother’s substance abuse history and her
instability in relationships and living arrangements, there was substantial evidence
to support the family court’s finding that the mother had previously failed to
provide the children’s necessities and that there is no reasonable expectation of
significant improvement in her conduct.
Next, we note the mother’s argument that the trial court erred in terminating
her parental rights because her case is factually similar to M.E.C. v.
Commonwealth, 254 S.W.3d 846 (Ky. App. 2008). In M.E.C., the Cabinet
removed M.E.C.’s two children. The Cabinet’s case plan for M.E.C. required her
to undergo a psychiatric evaluation and a drug assessment, follow any
recommended treatment, maintain a bond with her children, complete parenting
classes, obtain safe and secure housing for her family, and resolve her legal issues.
Subsequently, M.E.C. suffered a nearly fatal car accident and underwent multiple,
lengthy hospitalizations. She was also incarcerated on four occasions, always for
brief periods. Despite her periods of hospitalization and incarceration, M.E.C.
attempted to complete her parenting classes and substance abuse treatment, and
visited her children whenever possible. Nevertheless, the Cabinet changed its goal
from reunification to termination of parental rights eight months after the children
were removed. Id. at 848-50.
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The case was tried almost eighteen months after the children were removed.
At the time of the trial, M .E.C. had resolved almost all of her legal issues, was
employed, and had paid some of her child support. The trial court granted the
Cabinet’s termination petition, and M.E.C. appealed. Id. at 850. This Court found
that the Cabinet failed to prove that M.E.C.’s children were abused and neglected,
that reasonable services were provided to reunify the family, and that there was no
reasonable expectation of improvement in her situation. Id. at 854.
This Court also concluded that “the Cabinet failed to meet its burden for
establishing grounds for termination because all of its [court] testimony focused on
past behavior without any significant evaluation of future parenting capacity.” Id.
at 855. This Court noted that M.E.C. had never abused her children, that her
absences from them had been involuntary, and that “the Cabinet workers
themselves testified as to the children’s needs being met by M.E.C.” Of further
concern to this Court was the lack of services provided by the Cabinet and the
haste with which the treatment goal was changed from reunification to termination.
Thus, this Court vacated the judgment terminating the mother’s rights to her two
children. Id.
The circumstances of this case are different from those presented in M.E.C.
Case workers from the Cabinet testified that a case plan was developed for the
mother, and she was offered services. However, the mother made only minimal
efforts to complete her case plan or participate in the services offered.
Additionally, she continued to abuse drugs from the time the children were
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removed until after the Cabinet filed the petition for termination of her parental
rights. Like M.E.C., T.K was involved in a car accident in June 2009 that hindered
her ability to attend scheduled visits. However, unlike M.E.C., the mother in this
case frequently failed to call to say that she was not going to attend a scheduled
visit.
Furthermore, while the Cabinet workers in M.E.C. testified that the children
were well-cared for by their mother, the Cabinet workers in this case testified that
it was in the children’s best interests to terminate the mother’s parental rights.
Also, unlike in M.E.C., the family court in this case evaluated the mother’s future
parenting capacity. Thus, we believe M.E.C. is distinguishable from the instant
case, and conclude that there was substantial evidence to support the family court’s
findings.
Finally, the mother argues that the trial court was clearly erroneous in failing
to find that the children would not be abused or neglected if returned to her. We
disagree. As set forth in KRS 625.090(5), “If the parent proves by a
preponderance of the evidence that the child will not continue to be an abused or
neglected child as defined in KRS 600.020(1) if returned to the parent the court in
its discretion may determine not to terminate parental rights.” The mother argues
that she met her burden because she began counseling with Tokle in April 2010,
and, beginning approximately six weeks prior to her trial, she consistently had
negative drug screens.
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Although the mother has made some progress, which is commendable, we
believe that she failed to prove by a preponderance of the evidence that the
children would not be abused or neglected if returned to her care. Specifically, the
mother has a long history of substance abuse problems. Furthermore, a Cabinet
worker found a marijuana roach and a Xanax pill on the floor of the mother’s home
during a routine home visit nearly seven months after the children were removed
from her custody. Additionally, the mother testified that she was in the process of
reconciling with the father, who has never demonstrated any period of sobriety.
Further, as recently as March 2010, she filed a domestic violence petition against
the father.
We note that, even if the mother did prove by a preponderance of the
evidence that the children would not be abused or neglected if returned to her care,
the family court retained the discretion to terminate her parental rights. KRS
625.090(5). We cannot say that, based on the preceding, the family court abused
its discretion.
CONCLUSION
For the foregoing reasons, we affirm the Boyle Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Justin Genco
Stanford, Kentucky
Sheila F. Redmond
Lexington, Kentucky
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