COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL. V. ALL SITTING. ALL CONCUR.
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RENDERED : JANUARY 21, 2010
TO BE PUBLISHED
sixyremr ~ourf of
2008-SC-000318-DGE
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES;
and J.L.H., A CHILD
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
CASE NOS . 2006-CA-001288-MR and 2006-CA-001736-MR
JEFFERSON CIRCUIT COURT NO. 05-AD-500432-T
T.N.H., MOTHER, and P.N .Y., FATHER
APPELAEES
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING
We granted discretionary review in this case wherein the Court of
Appeals reversed the decision of the Jefferson Family Court terminating the
parental rights of the mother, who was a minor and committed to the Cabinet,
because the Cabinet did not present specific evidence of the likelihood that the
mother not would develop the necessary skills to successfully parent the child
when she reaches majority age. We adjudge that proof that the minor parent
will be unable to effectively parent the child when the parent reaches the age of
majority is not required under KRS 625.090(2)(e) or (g) . Because the Cabinet
presented sufficient evidence that it was unlikely that the mother's conduct
and ability to effectively parent the child would improve in the immediately
foreseeable future, we reverse the decision of the Court of Appeals and
reinstate the judgment of the Jefferson Family Court terminating the mother's
parental rights.
T.N .H. is the natural mother of a son, J .L.H., born April 13, 2003, when
T.N.H . was fourteen years of age. Shortly after the birth, on July 30, 2003, the
Cabinet for Health and Family Services (the "Cabinet") filed a petition for
dependency and neglect, alleging that T. N.H. was neglecting J. L. H. At that
time, both mother and son were placed in the custody of a maternal aunt,
where they remained until August 28, 2003, when both mother and son were
voluntarily committed to the Cabinet's custody. At that point, both mother and
son were placed in a foster home, where J.L.H. remained at the time of the
termination hearing.
During T.N.H.'s placement at the foster home, she was disruptive and did
not participate in the care of J.L .H. She ultimately ran away from the home
and was dismissed from school . She was thereafter placed in the Mary Kendall
Home in Owensboro where she was provided counseling services for her
negative behavior. During her stay at the Mary Kendall Home, although her
aggressive behavior and grades improved, she went AWOL three times.
Nevertheless, she graduated from the home's treatment program on February
11, 2005, and was then placed in the Home of the Innocents Pregnant Parent
Teen Facility ("HOI").
While at HOT, T.N.H . was offered parenting classes and counseling and
was admitted into a program which permitted her to attend high school while
caring for her son. The program at HOI allowed J .L.H. to go to school with
T.N.H:::each morning where he would atten -daycare while T.N . H. was in :class.
At night, J.L.H. would stay with his foster parents, and on weekends, mother
and son were allowed overnight visits at the maternal aunt's home.
During her time at HOI, despite some sporadic improvement in some
areas, T.N.H . failed to participate in the services offered her because she
insisted she did not need parenting classes, repeatedly violated curfew, sought
negative peer influences, and ran away several times. As to her relationship
with J. L.H., T. N. H.'s social worker, James Cra.wford, testified that there was no
apparent bonding between the two and the child continued to call T.N .H. by
her first name instead of "mommy." Further, T.N.H . continued to require
extensive direction in her parenting of J.L.H and repeatedly stayed out with
friends instead of tending to the needs of J.L.H . T.N .H. last ran away from HOI
on April 9, 2005, after only two months in the program.
The evidence established that during the last time T.N.H . was AWOL
from HOI, she had no contact with J.L.H., who remained in the same foster
home, and did not make any inquiry about his well-being for 107 days . From
April 9, 2005 until July 27, 2005, T.N.H. was with her boyfriend and only
returned to seek medical assistance from the Cabinet after her boyfriend had
physically abused her.
Upon T.N .H.'s return, she was temporarily placed in a foster home
because she had lost her placement at HOI due to her extended absence. On
August 4, 2005, T.N.H. was placed at Kentucky Baptist Homes for Children
in : Jendale, Kentucky where, unfortunately, she continued her
previous pattern of running away, fighting with peers, and failing to cooperate
with the treatment program . KBHC provided T.N .H. with counseling,
independent living skills training, parenting classes, and supervised visits with
J.L.H. On February 27, 2006, T.N.H. graduated from the KBHC program.
However, at the time of her discharge, T. N. H . had not yet obtained her high
school diploma or GED and, according to the testimony of Crawford, had not
demonstrated any substantial improvement in her parenting abilities or
personal judgment.
After her discharge from KBHC, T.N.H. was placed in the Boys Haven
Pre-Independent Living Program in Louisville . As of the date of the termination
hearing, T.N.H. remained in that placement and resided in a dormitory there
with full-time supervisory staff. At the time of the hearing, T.N.H. had a parttime job and was about to complete the I It', grade.
As for J .L.H., Crawford testified that he was doing very well in his
placement with his foster family. According to Crawford, J .L.H. was happy
and attached to his foster parents, calling them "mom" and "dad ." Crawford
testified that the foster parents were willing to adopt J .L .H.
The Cabinet filed its petition for involuntary termination of 11 DOWs
parental rights on November 28, 2005 . 1 The hearing was held on March 7,
2006. Crawford was the only witness for the Cabinet. T.N.1-1. and her maternal
aunt- testified for. TN .H . . Thereafter on March 23, 2000; the family court
entered its order granting the petition . The family court specifically found:
that J.L.H. was an abused or neglected child as defined in KRS 600.020(l)
(KRS 625 .090(l)(a)2 .); that it was in the best interests of J.L.H . that parental
rights be terminated (KRS 625.090(l)(b)) ; that T.N.H. for a period of not less
than six months had continuously or repeatedly failed or refused to provide or
had been incapable of providing essential parental care for J. L. H and there was
no reasonable expectation of improvement in parental care and protection (KRS
625 .090(2)(e)); that T.N.H., for reasons other than poverty alone, had
continuously or repeatedly failed to provide or was incapable of providing
essential food, clothing, shelter, medical care or education reasonably
available
necessary and
for &LIH.'s well-being and there was no reasonable
expectation of significant improvement in T.N.H .'s conduct in the immediately
foreseeable future MRS 625 .090(2)(9)); that T.N.H. had abandoned the child for
a period of not less than ninety days (KRS 625.090(2)(a)) ; and that J.L.H . has
been in foster care under the responsibility of the Cabinet for fifteen of the
most recent twenty-two months preceding the filing of the petition to terminate
parental rights (KRS 625.090(2)0)).
The petition was also filed against J .L .H .'s father, P .N .Y., who thereafter voluntarily
terminated his parental rights and did not enter an appearance in the Court of Appeals.
On appeal, the Court of Appeals vacated the judgment terminating
T.N.H .'s parental rights. The Court. of Appeals adjudged that, while the Cabinet
presented evidence that T.N.H. failed to provide essential care and protection
for, her son and was incapable of providing for- his - material end emotional
needs MRS 625.090(2)(e) and (g)) ; the Cabinet: had failed to prove that T.N.H.
was incapable of rendering such care in the future pursuant to the "no
reasonable expectation of [significant] improvement" language in KRS
625.090(2)(e) and (g) . The Court of Appeals opined that, in cases where the
mother is a minor, the Cabinet should "present the family court with some
testimony, preferably expert testimony, as to the likelihood that when the teen
reaches adulthood, the parent cannot effectively parent the child ." We
subsequently granted the Cabinet's motion for discretionary review.
The grounds for involuntary termination of parental rights in KRS
625.090 relevant to the case at hand provide as follows:
(1) The Circuit Court may involuntarily terminate all
parental rights of a parent of a named child, if the
Circuit Court finds from the pleadings and by clear
and convincing evidence that:
(a) 1 . The child has been adjudged to be an abused or
neglected child, as defined in KRS 600.020(1), by a
court of competent jurisdiction ;
2. The child is found to be an abused or neglected
child, as defined in KRS 600.020(1), by the Circuit
Court in this proceeding; or
3 . The parent has been convicted of a criminal charge
relating to the physical or sexual abuse or neglect of
any child and that physical or sexual abuse, neglect,
or emotional injury to the child named in the present
termination action is likely to occur if the parental
rights are not tenninated ; and
(b) Termination would be in the best. interest of the
child .
(2) No terminatio -,of parental rights shall be ordered: _°
unless the Circuit Court also finds by clear and
convincing evidence the existence of one (1) or more of
the following grounds :
(a) That the parent has abandoned the child for a
period of not less than ninety (90) days;
(e) 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;
(g) 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[.
(j) That the child has been in foster care under the
responsibility of the cabinet for fifteen (15) of the most
recent twenty-two (22) months preceding the filing of
the petition to terminate parental rights.
The definition of an "abused or neglected child" is set forth in KRS
600 .020(l) and provides in pertinent part:
(1) "Abused or neglected child" means a child whose
health or welfare is harmed or threatened with harm
when his parent, guardian, or other person exercising
custodial control or supervision of the child:
(d) Continuously or repeatedly fails or refuses to
provide essential parental care and protection for the
child, considering the age of the child;
(g) Abandons or exploits the child;
(h) Does not provide the child with adequate care,
supervision, food, clothing, shelter, and education or
medical care necessary for the child's well-being. . . .
or
(i) Fails to make sufficient progress toward identified
goals as set forth in the court-approved case plan to
allow for the safe return of the child to the parent that
results in the child remaining committed to the
cabinet and remaining in foster care for fifteen (15) of
the most recent twenty-two (22) months[ .]
From Crawford's testimony at the termination hearing and the exhibits
introduced by the Cabinet, we can easily say there was evidence presented that
J.L.H. was an "abused or neglected child" within the meaning of KRS
600.020(1)(d), (g), (h), and (i) . Even the Court of Appeals recognized "Jilt is not
difficult to conclude that in the years prior to the termination hearing, mother
did not provide essential care and protection for son and was incapable of
providing for any of his material and emotional necessities."
T. N. H. claims there was no evidence that J. L. H. was abused or neglected
within the meaning of KRS 600 .020(1) because the child was committed to the
Cabinet this whole time and all of his emotional, supervisory and material
needs were met by the Cabinet through the maternal aunt or foster parents,
who were the ones exercising custodial control and supervision over J.L.H.
This argument is not well taken. Just because the child, and the parent for
that,-,rnatter, are committed to the-.Cabinet does not mean that the parent has
no further responsibilities to the child . To the contrary, the Cabinet developed
a case plan for T. N. H. that set forth specific duties and goals she was to meet
regarding her relationship with and care of J .L.H. Additionally, the Cabinet
continually offered services to T.N.H . that were intended to help her with these
duties and goals. Yet, the evidence bore out that time and time again T.N .H.
neglected her duties to J .L .H . and failed to complete the goals set out by the
Cabinet.
For instance, during the time that T.N.H. was at HOI, which was to be an
opportunity for T.N .H. to bond further and increase her parental role with
J.L.H., T.N.H. was to care for the child when he was with her on school days
and on weekends when she received extended overnight visitation with him at
her aunt's home. The evidence established that T.N.H. would not adequately
supervise or discipline J.L.H . or provide him with the necessary structure when
he was in her care. Worse yet, she would simply go AWOL during this time,
leaving the child to be cared for by her aunt or the foster parents . At one point,
she was gone for 107 straight days, never calling to even check on J.L.H. and
completely ignoring her responsibilities to J.L.H. under the case plan .
T.N.H. also argues that her parental rights cannot be terminated for
failing to provide for the child's financial and material needs because she and
J .L.H. were both committed to the Cabinet and she was forbidden by her case
plan from working and was required to go to school. We agree that T.N.H .
could not have had her parental rights terminated for failing to provide for
J.L .H:'s material needs (food, clothing, shelter= -medical care) if that was the .
sole reason for termination . See Dep't. _for Human Res. v. Moore, 552 S.W.2d
672 (Ky.App . 1977) . Indeed, regardless of whether the parent is a minor or an
adult, the language of KRS 625.090(2)(8) does not allow for termination on that
basis alone unless the parent has failed to provide for the child's material
needs "for reasons other than poverty alone[ .]" In the present case, even if it
was error for the trial court to find that T.N.H., for reasons other than poverty
alone, failed to provide for J .L.H .'s material needs under KRS 625.090(2)(8)),
the Cabinet presented evidence of other grounds for termination under KRS
625.090(2)(x), (e), and (j). Under the language of KRS 625.090(2), the existence
of only one of the grounds in that section needs to be proven by clear and
convincing evidence.
In reviewing a decision to terminate parental rights, the appellate court
must determine if the family court's conclusion was based upon clear and
convincing evidence and, in so doing, must apply the clearly erroneous
standard of appellate review. CR 52.01 ; J.M.R. v. Commonwealth, Cabinet for
Health and Family Services, 239 S.W. 3d 116, 120 (Ky.App. 2007) . "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 evidence sufficient to convince ordinarily prudent-minded people ."
10
M.P.S. u. Cabinetfor Human Res., 979 S. W .2d 114, 117 (Ky.App. 1998) (citing
Rowland u. Holt, 253 Ky. 718, 726, 70 S .W .2d 5, 9 (1934)). Pursuant to this
standard, an appellate court is obligated to give a great deal of deference to the
family court's Rndings and .should not interfere with-=those- findings unless the
record is devoid of substantial evidence to support them. K.R.L. u. P.A.C., 210
S.W.3d 183, 187 (Ky.App. 2006) .
We now turn to the Court of Appeals' basis for reversing the family
court's judgment terminating T.N.H .'s parental rights - that the Cabinet failed
to present specific evidence as to the likelihood that when T.N .H . reaches the
age of majority, she would not be capable of effectively parenting J.L.H. The
Court of Appeals reasoning was stated as follows:
In cases such as this, where the parent's age and
emotional immaturity undeniably contribute to her
lack of parenting skills, we believe that termination
must not be based solely on the parent's prior
behavior without some objective assessment of her
psychological and mental capacity to develop the
required abilities to effectively parent a child.
Essentially, the Court of Appeals made the requirements for termination of a
minor's parental rights under KRS 625.090(2)(e) and (g) more stringent by
adding the requirement of proving that there is no expectation that the minor
will be capable of rendering the necessary parental care when the teen reaches
the age of majority. We reject this enhanced standard for termination of a
minor's parental rights .
First and foremost, the language of KRS 625 .090(2)(e) and (g) does not
reflect an intent by the legislature to assess the "reasonable expectation of
improvement" of a minor parent's conduct in terms of when the parent reaches
the age of majority, thereby potentially extending the amount of time the child
would be committed to the Cabinet awaiting the parent's 18th birthday and
magical--transformati Y into a nurturing, caring parent. Rather, KRS
625.090(2)(8) specifically provides "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(.]" (emphasis added) .
As the Court of Appeals stated in Cabinet for Families and Children u.
G.C.W., 139 S.W.3d 172,177 (Ky.App . 2004) :
Congress overwhelmingly passed the AFSA to expedite
the adoption of children in foster care and to address
the phenomenon labeled as "foster care drift." See, 42
U .S.C. § 675(5)(c)(2000) ; Gordon, Drifting Through
Byzantium : The Promise and Failure of the Adoption
and Safe Families Act of 1997, 83 Minn.L. Rev. 637,
650-651 (1999) . In response to the AFSA, the
Kentucky General Assembly made significant changes
affecting the termination of parental rights: (1) the
definition of an "abused and neglected" child was
amended to include a child left to linger in foster care
for 15 of the last 22 months MRS 600.020(1)(i)) ; and
(2) the grounds for termination enumerated in KRS
625.090(2) were enhanced to include a "15/22 month"
provision (KRS 625.090(2)0)) .
By enacting time limits to conform to the AFSA, it is
clear that our legislature intended to leave children in
foster care for as brief a time as possible.
Secondly, the basic needs of a child are the same, whether the child is of
a minor parent or a parent of majority age . Why should a child of a minor
parent be forced to linger in foster care longer than the child of an adult
parent? A minor may be ill-equipped to parent simply by virtue of his or her
12
immaturity . Nevertheless, age and immaturity cannot excuse a parent: from his
or her responsibility to meet the basic needs of the child . And, as aptly stated
in the dissent in the Court of Appeals opinion below, "Adulthood is not a
guarantee of parenting skill:'-that meet even the minimum requfred under the
law. The age of majority holds no magical formula to transform a mother who
for years has refused to take her role as a mother seriously."
Several of our sister states have addressed this difficult issue of
terminating a minor parent's rights and have concluded that the negative
behavior and neglect by the minor parent must subordinate the minor's
parental rights to the child's best interest. See In re Adoption of Inez, 704
N.E.2d 509 (Mass. 1999) ; Lecky u. Reed, 456 S .E.2d 538 (Va. Ct. App . 1995) ; In
re McCrary, 600 N.E.2d 347 (Oh. Ct. App . 1991) ; Matter ofA.H., 421 N .W. 2d 71
(S.D . 1988) . In Lecky, wherein the facts were similar to the present case
(fourteen-year-old mother who would periodically show some improvement and
then run away from placement, leaving the child in foster care for two years),
the Virginia Court of Appeals determined that the age of the mother did not
alone constitute good cause to excuse her failure to resolve conditions which
prompted her child's placement in foster care, and did not preclude a
termination of her parental rights. 456 S. E .2d at 541 .
Nothing in this record attributes mother's parental
deficiencies to her age or suggests that the mere
passage of time would resolve her difficulties. Thus,
further delay would prolong Jordan's familial
instability without the promise of benefit to him, a
result clearly contrary to the child's best interests.
Under such circumstances, mother's age does not
alone constitute good cause to excuse her failure to
13
resolve the conditions which prompted Jordan's foster
care in accordance with statute .
Tine evidence was overwhelming that mother pursued
an unstable - and irresponsible lifestyle, incompatible
with Jordan's needs and reflective of an indifference to
his interests. This conduct spanned the child's entire
life, despite the best efforts and substantial resources
of DSS to assist and redirect mother in her behavior
and parenting skills . Guided by Jordan's best interest,
the record therefore provided the requisite "clear and
convincing evidence" that termination of mother's
residual parental rights in Jordan was the appropriate
statutory remedy .
Likewise, from our review of the termination hearing in the instant case,
the Cabinet presented clear and convincing evidence that T.N.H . abandoned
J. L. H for at least ninety (90) days, continuously failed to provide essential
parental care and protection for J.L.H . for at least six (6) months, and that
J.L.H . had been in foster care under the responsibility of the Cabinet for fifteen
(15) of the most recent twenty-two (22) months preceding the filing of the
petition to terminate parental rights . Furthermore, the Cabinet presented
sufficient evidence through the testimony of Crawford that there was no
reasonable expectation of significant improvement in T.N.H.'s conduct in the
immediately foreseeable future . As in Lecky, T.N.H . was repeatedly offered
services and given chances by the Cabinet to demonstrate that she could be a
parent to J.L.H. Unfortunately, she squandered these opportunities by
running away to pursue her own interests and ignored the needs of her child,
who should have been her, priority . Under the circumstances in this case, it
14
was in the best interests of J.L.H. that the parental rights of T.N .H. be
terminated so that J .L.H. could have the security and stability that every child
deserves.
- . :. . - As to- the other arguments raised-by T.N .H. in her- Appellee's brief as
alternate grounds to support the Court of Appeals decision - that the Cabinet
could not pursue termination against T.N .H. because she was committed to the
Cabinet, that J .L.H. was not properly committed to the Cabinet, and that the
petition for termination of parental rights was defective - T.N.H . should have
raised these arguments via a cross motion for discretionary review . CR
76.21 (1) . No such cross motion was filed by T.N .H . herein . Thus, the issues
are precluded from our review.
Accordingly, for the reasons stated above, we reverse the decision of the
Court of Appeals and reinstate the family court's judgment terminating T. N . H.'s
parental rights.
All sitting. All concur.
COUNSEL FOR APPELLANT
CABINET FOR HEALTH AND FAMILY SERVICES:
Erika L. Saylor
Office of Legal Services
Cabinet for Health and Family Services
908 West Broadway, 9 East
Louisville, KY 40203
COUNSEL FOR APPELLANT J. L. H:
Teresa M. Kinberger
Kinberger Law Office, PLLC
3801 Springhurst Blvd., Ste . 107
Louisville, KY 40241
COUNSEL FOR APPELLEE T.N.H.
John Harold Helmers, Jr.
Troy DeMuth
Helmers, DeMuth, & Walton PLC
429 W. Muhammad Ali Blvd.
200 Republic Bldg.
Louisville, KY 40202
COUNSEL FOR APPELLEE P.N .Y. :
John T. Fowler III
121 South 7th St.
3rd Floor
Louisville, KY 40202
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