T.W. v. FATHER CHILD

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Court of Appeals of Kentucky.

T.W. v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY;  J.W., RESPONDENT, FATHER;  S.M.W., A CHILD

NO. 2009-CA-001446-ME

Decided: July 16, 2010

BEFORE:  ACREE AND MOORE, JUDGES;  BUCKINGHAM, Double SENIOR JUDGE. BRIEFS FOR APPELLANT:  Jacqueline M. Caldwell Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:  Dilissa G. Milburn Assistant Counsel Mayfield, Kentucky NO BRIEF FOR J.W., RESPONDENT, FATHER;  AND S.M.W., A CHILD

NOT TO BE PUBLISHED

AFFIRMING

T.W., the mother of a minor child, S.W., seeks reversal of the Hickman Circuit Court's decision to terminate her parental rights and transfer custody of S.W. to the Cabinet for Health and Family Services with authority to place the child for adoption.   The circuit court determined that termination was in the best interests of the child and the court's findings were not clearly erroneous;  therefore, we affirm.

When the circuit court issued its opinion, S.W. was approximately six and one-half years old.   Of those six and one-half years, S.W. spent over 57 months in homes other than her parent's and remained in the custody of the Cabinet.   S.W.'s long relationship with the Cabinet began in October of 2004, when an abuse and neglect referral indicated that T.W. left S.W. at home unsupervised.   S.W. was discovered on the floor asleep by the front door.   In addition to leaving S.W. unsupervised, the referral expressed concern that T.W. let S.W. wander too close to the road on more than one occasion.   The relative also reported that S.W. would fall out of bed in the middle of the night and T.W. would not wake up despite the fact that they were sleeping in the same bed.   The relative indicated that his wife would have to go to the child's aid.

In late 2004, S.W. was removed from T.W.'s care and the Cabinet began efforts to reunite mother and child.   Given the lengthy relationship between S.W. and the Cabinet, this Court will not attempt to convey the entirety of the factual circumstances involved in this case.   Instead, we will discuss only those facts that are relevant to this Court's review.

On May 6 and 11, 2009, a trial regarding custody of S.W. took place in Hickman Circuit Court.   The Cabinet had filed an action pursuant to KRS 625.050 seeking involuntary termination of parental rights of both S.W.'s parents.   At the time of the trial S.W.'s father was incarcerated.   This appeal is brought only by T.W.

T.W. argues the circuit court abused its discretion by relying on hearsay evidence offered by the Cabinet's witnesses.   She also alleges the circuit court's determination that S.W. was abused and neglected and that termination was in her best interest was not supported by clear and convincing evidence.   Lastly, T.W. argues that she set forth clear and convincing evidence that she was able to provide for T.W. just as she was able to provide for her two other children.

In reviewing the decision of the circuit court this Court must keep in mind that “[t]he trial court has broad discretion in determining whether the child fits within the abuse or neglected category and whether the abuse or neglect warrants termination.”  W.A. v. Cabinet for Health and Family Services, 275 S.W.3d 214, 220 (Ky.App.2009).   The circuit court's decision will only be reversed if it is clearly erroneous;  that is, the decision will only be reversed if there is no substantial evidence to support it.  Id.

The grounds for termination of parental rights are contained in KRS 625.090 and statutes referred to therein.   First, in the absence of the parent's conviction on a criminal charge of physical or sexual abuse of the child, a court of competent jurisdiction, including the court adjudicating the termination petition must determine that the child is “an abused or neglected child, as defined in KRS 600.020(1)[.]” KRS 625.090(1)(a)1, 2. The Hickman Circuit Court determined that S.W. is an abused and neglected child as defined in KRS 600.020(1)(b), (c), (d), and (i) which states

(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:  ․

(b) Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;

(c) Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;

(d) Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;  ․ 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[.]

KRS 600.020(1).

The second requirement of KRS 625.090(2) is that the circuit court find by clear and convincing evidence that one (1) or more of ten (10) grounds exist justifying termination of parental rights.   The Hickman Circuit Court determined that two such grounds existed relative to T.W. They were

(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;  ․ or

(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.

KRS 625.090(2).

Finally, in adjudicating the best interests of the child, the circuit court must consider each of the following factors:

(a) Mental illness as defined by KRS 202A.011(9), or mental retardation as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;

(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;  and

(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.

KRS 625.090(3).   The circuit court makes reference in its Findings of Fact and Conclusions of Law to each of these factors, though only KRS 625.090(3)(c) is cited specifically.

In accordance with the statute, the parents are permitted to “present testimony concerning the reunification services offered by the cabinet and whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent.”  KRS 625.090(4).   Finally, the circuit court “in its discretion may determine not to terminate parental rights” if the parent can prove “by a preponderance of the evidence that the child will not continue to be an abused or neglected child ․ if returned to the parent[.]”  KRS 625.090(5).

Having thoroughly examined the record, we conclude that the circuit court's determination regarding abuse and neglect is supported by substantial evidence.   Likewise, this same evidence supports the circuit court's conclusion that termination is in S.W.'s best interest.   T.W.'s argument regarding hearsay does not affect our conclusion.   Even if the testimony cited by T.W. as hearsay was excluded, there is still substantial evidence to support the court's findings.   Furthermore, while T.W. argues that two social workers from Kentucky improperly testified regarding her conduct in Indiana, this same evidence was later presented by officials from Indiana who testified from personal knowledge.

At trial, substantial evidence was presented regarding T.W.'s history of drug use, mental illness, and general instability.   The court learned that while married to S.W.'s father, T.W. had a child by another man, Lonnie Grieves, who was a convicted drug dealer.   It was brought to light that T.W. spent time with Grieves despite warnings that he might pose a danger to her children.   Indeed, her two other children were returned to her custody by the State of Indiana with the express condition that she would not associate with Mr. Grieves.   However, she did not live up to this condition.   Indiana officials attempted to respond to a complaint filed in August of 2008 regarding T.W. and Grieves, but they were unable to find them.   The complaint expressed concerns regarding domestic violence and methamphetamines.

T.W.'s association with Grieves also put her sobriety in jeopardy.   The court found that she failed a drug screen in May of 2008.   Her past drug use was so extreme that on one occasion she was briefly imprisoned so as to protect her third child from drug use during pregnancy.   On another occasion during S.W.'s commitment, T.W. suffered a drug overdose.

In addition to the substantial amount of evidence regarding T.W.'s drug use, the evidence indicated that she also had a history of mental illness.   Records indicated she suffered from bi-polar disorder and schizophrenia.   It was also brought to the circuit court's attention that these conditions were not adequately and consistently treated.

T.W. also testified that she used a variety of narcotic pain medication and despite having taken those medications on the day of the trial she had driven herself to the courthouse.   The circuit court's opinion noted that “no competent medical evidence [was] provided to the Court or the Cabinet that she has legal prescriptions for Hydrocodone or Morphine Sulphate, or that these substances are medically necessary or appropriate.”

Along with evidence regarding her mental illness and drug use came other evidence showing general instability including several notices of eviction from various residences.   While T.W. was able to show that she regained custody of her other two children, serious concerns were raised regarding her ability to adequately parent a third child.   While T.W. states that a report by the Cabinet found her suitable for reunification, she takes the recommendation out of context.   The report to which T.W. refers finds that her new home is suitable.   However, the report goes on to express concern that T.W. would be unable to manage three young children.

The record is also replete with evidence that the Cabinet undertook extensive efforts to reunite T.W. with S.W. The Cabinet's attempts at reunification are an important consideration under KRS 625.090(3)(c).  The Cabinet had been working with T.W. for several years.   She has received monetary, mental health, and parenting support.   However, despite its efforts, the Cabinet was never able to place S.W. back in T.W.'s home.   The social worker assigned to the case testified that she never reached the point at which she believed T.W. was ready to be reunited with S.W.

While there is some evidence indicating that T.W. has progressed and that she currently has custody of her other two children, there is also substantial evidence that termination is in the best interests of S.W. Finding substantial evidence does not require that the evidence be uncontroverted.  W.A. v. Cabinet, 275 S.W.3d at 220.   Given S.W.'s age and the amount of time she has spent in the custody of the Cabinet, stability is essential for her well-being.   The evidence set forth above is only a fraction of that presented at trial.   In light of all the evidence presented, the circuit court determined that termination was the best way to ensure that S.W.'s interests were protected.

Substantial evidence supports the Hickman Circuit Court's Findings of Fact and Conclusions of Law;  where required, the evidence satisfies the clear and convincing standard.   Therefore, we affirm the circuit court's July 2, 2009 Order Terminating Parental Rights and Order of Judgment.

ALL CONCUR.

ACREE, JUDGE: