MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES COMMONWEALTH OF KENTUCKY

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Court of Appeals of Kentucky.

M.D.L., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY

;  M.J.M., FATHER;  S.M.B., A CHILD;  S.D.B., A CHILD;  K.M.L., A CHILD;  AND K.M.L., A CHILD APPELLEES AND NO. 2012–CA–000992–ME M.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY ;  M.D.L., MOTHER;  K.M.L., A CHILD;  AND K.M.L., A CHILD APPELLEES

NO. 2012–CA–000984–ME

Decided: May 31, 2013

BEFORE:  ACREE, CHIEF JUDGE;  STUMBO AND THOMPSON, JUDGES. BRIEF FOR APPELLANTS/APPELLEES M.D.L. AND M.M.:  John H. Helmers, Jr. Elizabeth Bricking Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY:  G. Thomas Mercer Louisville, Kentucky NO BRIEF FILED FOR APPELLEES S.M.B., A CHILD;  S.D.B., A CHILD;  K.M.L., A CHILD;  AND K.M.L., A CHILD

NOT TO BE PUBLISHED

OPINIONAFFIRMING

M.D.L. (Mother) and M.M. (Father) appeal from the Jefferson Family Court's April 17, 2012 judgment terminating their parental rights.   On appeal, Mother and Father argue that Kentucky Revised Statute (KRS) 625.090(1)(a) is unconstitutional;  there was not sufficient evidence to support the family court's judgment;  and the Cabinet for Health and Family Services had not made sufficient efforts to reunify the family.   The Cabinet argues to the contrary.   Having reviewed the record and the arguments of the parties, we affirm.

I. Facts and Procedure

These two cases were tried together before the family court, and Mother and Father have filed a joint brief before this Court.   Mother's case involves four children:  K.M.L. (younger son), born on October 17, 2001;  K.M.L. (younger daughter), born on July 21, 2004;  S.D.B. (older daughter), born on May 11, 1998;  and S.M.B. (older son), born on April 4, 1995.   The biological father of older son and older daughter died on April 12, 2003.   Father's case involves only his biological children—younger son and younger daughter.

Mother and Father first came in contact with the Cabinet in February 2005 when the Cabinet filed a dependency, neglect, and abuse petition because Father had assaulted Mother in the presence of younger son.   Following a hearing, the family court granted temporary custody of younger son to Mother, and ordered Mother to obtain domestic violence counseling for herself and counseling for younger son.   The court also ordered Father to have no contact with younger son or Mother.

In May 2005, Mother was charged with assaulting W.B., the paternal grandmother of older son and older daughter.   The Cabinet filed another dependency, neglect, and abuse petition because younger daughter was present when the assault took place.   Following a hearing, the court awarded temporary custody of the children to W.B. The children remained in W.B.'s custody until August 2005, when the court returned custody to Mother on the condition that she complete a parenting class and continue counseling.   The court also awarded Father visitation provided he undergo regular drug screening and attend anger management/domestic violence classes.

In June 2007, Mother and Father got into an altercation while intoxicated.   At the time, they were camping in eastern Kentucky with younger son and younger daughter.   During the altercation, Father allegedly attempted to stab Mother and younger daughter suffered an injury below her left eye when Mother accidently struck her.   The Cabinet filed a dependency, neglect, and abuse petition in Magoffin Family Court.   That court awarded temporary custody of younger son and younger daughter to Father's sister and her husband.   Following an adjudication hearing, the Magoffin Family Court determined that younger son and younger daughter were abused or neglected, and transferred the case to the Jefferson Family Court.   In October 2007, the Jefferson Family Court committed younger son and younger daughter to the Cabinet.   The family court also awarded Mother supervised visitation provided she:  attend counseling;  undergo a drug and substance abuse assessment and a psychological evaluation;  submit to random drug screens;  complete anger management counseling;  and cooperate with the Cabinet.   Father was not mentioned and apparently did not participate in the 2007 proceedings.

In January 2008, the Cabinet filed another dependency, neglect, and abuse petition alleging that, despite no contact orders, Mother spent the Christmas holidays with Father and his family, and took the children for an extended stay with their paternal uncle.   The petition also alleged that Mother had missed three court-ordered drug screens.   Following a temporary removal hearing, the family court permitted Mother to retain custody of older son and older daughter and, in August 2008, the court returned custody of younger son and younger daughter to Mother.

In February 2010, the Cabinet filed the final dependency, neglect, and abuse petition that gave rise to this appeal.   In that petition, the Cabinet alleged the children had been neglected and abused because younger daughter was using sexual language;  was acting bizarrely;  had poor hygiene;  and was not dressed in weather appropriate clothing.   The petition also alleged that younger son exhibited sexualized behavior and had been discharged from counseling for non-compliance.

Following a temporary removal hearing, the family court found reasonable grounds to believe the allegations in the petition and placed all four children in the temporary custody of the Cabinet.   Additionally, the family court ordered Mother to:  undergo a psychological assessment and random drug screens;  attend individual and family counseling;  and cooperate with the Cabinet.   Thereafter, Mother stipulated she had neglected younger son and younger daughter by failing to attend to their mental and physical health needs.   Furthermore, at the request of the Cabinet, the children began attending individual, group, and family counseling, and, from August 2010 until July 2011, younger son was placed in a residential treatment facility.   Father did not participate in the 2010 proceedings because he was incarcerated.

In October 2011, the Cabinet filed petitions seeking to terminate the parental rights of both Mother and Father.   In its petition, the Cabinet alleged that:  the children had been committed to the Cabinet since May 21, 2010;  the children were abused and neglected as defined by KRS 600.020;  the children had been in foster care for 15 of the preceding 22 months;  and that the Cabinet had facilities available to receive custody of the children.   As to Mother and Father, the Cabinet alleged that:  they had abandoned younger son and younger daughter for not less than 90 days;  they had failed to provide a safe and nurturing home for their respective children;  they had “continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection” for their respective children;  they had failed “for reasons other than poverty” to provide for their respective children's food, clothing, shelter, medical care, and education;  and there was “no reasonable expectation of significant improvement” in the foreseeable future.

On December 27, 2012, Father filed a motion asking the court to find KRS 625.090(1)(a)(1) unconstitutional.   In support of his motion, Father argued the statute provides for a lower burden of proof than is permissible in a termination of parental rights case.

On March 6 and 8, 2012, the family court held a hearing on the Cabinet's petitions.   At the hearing, the Cabinet presented testimony from Amy Beth Lockwood, a therapist who provided individual, group, and family counseling to the children and Mother;  Nicole Wheatley, a therapist who provided counseling primarily to younger son;  and Sonjequita Johnson, the Cabinet case manager assigned to work with the family.   Mother offered her own testimony;  the testimony of her sister, M.H.;   the testimony of W.B.;   and the testimony of Sandra Reynolds, one of the Cabinet's case managers from eastern Kentucky.   Father offered his own testimony, the testimony of his sister, and the testimony of Dr. Said Oomar, a psychiatrist who saw younger son in 2007.   We summarize each witness's testimony below.

1. Amy Beth Lockwood

Lockwood testified she has provided individual and group counseling for the children and family counseling for Mother and the children.   According to Lockwood, older daughter suffers from anxiety and depression, and has issues related to trusting adults.   Older son has attempted suicide twice and has issues related to managing anxiety and anger.   Younger son suffers from attention deficit/hyperactivity disorder (ADHD) and has issues related to sexually reactive behavior, trust, and anger management.   Younger daughter suffers from an adjustment disorder, recurring nightmares, and has issues related to developing peer relationships and coping with anxiety.

Lockwood testified that the children needed consistency and were making progress.   Lockwood noted that, while Mother initially attended therapy with some regularity, her attendance had become inconsistent, and Mother missed all but two of the monthly sessions from June 2011 to February 2012.   According to Lockwood, this lack of consistency interfered with the therapeutic process and hindered the children's progress.   Despite Mother's inconsistency with therapy, Lockwood stated Mother was fairly consistent with visitation.

Regarding the children's placement, Lockwood testified they are attached to their foster parents and that the Cabinet case manager had discussed possible adoption with them.   Lockwood believes the children are open to adoption because they want and would have a safe and loving home.

Finally, Lockwood admitted Father was not a client and that she had not had any contact with Father or with Father's family members.

2. Dr. Said Oomar

Dr. Oomar saw younger son in 2007 when younger son was living with Father's sister and her husband.   According to Dr. Oomar, younger son had symptoms of ADHD and reactive attachment disorder (RAD), which is a reaction to a lack of nurturing and exposure to violence.   Dr. Oomar prescribed ADHD medication and noted that routine disruption can exacerbate both ADHD and RAD.

3. Nicole Wheatley

Wheatley testified that younger son has been diagnosed with ADHD and oppositional defiant disorder (ODD), and that he participated in individual, group, and family therapy.   As did Lockwood, Wheatley testified that Mother initially cooperated with and participated in therapy with younger son.   However, Mother had missed several scheduled therapy sessions, particularly in the three months preceding the hearing.   When Mother missed sessions, younger son would either become upset—crying and throwing temper tantrums—or he would show no emotion.

On cross-examination, Wheatley admitted she was not aware that younger son had been diagnosed with RAD. However, she stated that treatment for RAD would focus on consistency, imposing behavioral limits, and building trust—treatment that would also be used with ODD. As did Lockwood, Wheatley testified Mother was more consistent with visitation than with therapy.

4. Sonjequita Johnson

Johnson became the Cabinet's case manager for the family in March 2011.   Johnson testified the children were committed to the Cabinet in early 2010 and a reunification plan for the family was developed.   Pursuant to that plan, Mother was required to:  obtain and maintain stable employment and housing;  participate in individual and family counseling/therapy;  and cooperate with the Cabinet and child support office.   Father was required to complete substance abuse treatment after his release from incarceration, and to cooperate with the Cabinet and child support office.

Johnson testified that Mother had difficulty finding stable employment and housing;  she missed several appointments for counseling/therapy;  and she had difficulty being on time for visitation.   In December 2011, Mother went to Las Vegas during the Christmas holidays.   Mother did not tell Johnson she was doing so, and she missed several counseling/therapy sessions and visitations.   When she returned, Johnson told Mother that visitation would be stopped until Mother underwent a drug screen.   Mother refused and, as a result, she had not seen the children since mid-December 2011.

As to Father, Johnson testified that, while he was incarcerated, he sent one letter to each of his children but made no other attempts to contact them.   Johnson stated that Father should have contacted her when he was released from incarceration on January 3, 2012, but he did not.   When she had not heard from Father, Johnson attempted to contact him but was unsuccessful.

On cross-examination, Johnson admitted that the Cabinet had provided no services to Father while he was incarcerated and that she had not communicated to him the Cabinet's plan.   Furthermore, Johnson admitted she had not been in contact with Father's family members to determine if placement with any of them would be appropriate.

Finally, Johnson testified she did not know of any other steps the Cabinet could take to reunify the family.

5. Mother

Mother testified that, after the children were committed to the Cabinet in February 2010, she had difficulty contacting her case manager.   According to Mother, her case manager would not respond to her phone calls and letters requesting a case plan and assistance.   Therefore, Mother enrolled in parenting classes and counseling on her own.   According to Mother, the case manager finally responded to her in August or September 2010, and the Cabinet then arranged for individual and family counseling for her.

Mother testified she was compliant with her case plan and consistently attended counseling and visitation until May 2011, when she lost her housing, was arrested, and was charged with disorderly conduct and trespassing.   Mother stated she missed several scheduled appointments in the summer of 2011 because of these preceding events, and because three of her relatives died that summer.   However, Mother noted that since then she had obtained employment and had moved in with W.B.;   therefore, she could supply a stable home.

On cross-examination, Mother admitted to the incidents of domestic violence involving her, Father, and W.B. Mother also admitted she had previously stipulated that the children were neglected and/or abused and at risk of being neglected or abused;  that the Children had been temporarily placed with W.B., Father's relatives, and in foster care;  and that the Cabinet had required her to take a number of steps, including attending anger management classes and counseling and undergoing regular drug screening.   Mother testified that she believes she complied with the Cabinet's requirements and that the court should not terminate her parental rights.

6. W.B.

W.B. testified that, since 2005, the children and Mother have lived with her several times, most recently in 2009 and early 2010.   When the children were removed from her home in February 2010, W.B. was surprised because she believed Mother was following the Cabinet's plan.   W.B. admitted she and Mother had an altercation in 2005;  however, she stated they had resolved their differences, and Mother and all four children were welcome in her home.

7. M.H.

M.H., Mother's sister, testified that Mother has provided for the children's needs whenever they were with her.

8. Sandra Reynolds

Reynolds testified she became involved with the family following the 2007 altercation between Mother and Father.   She observed bruises and bite marks on both parents, and a mark above younger daughter's left eye.   Mother told Reynolds that she did not remember hitting younger daughter, but she did not deny it happened.

9. Father

Father has a lengthy criminal record that includes convictions for DUI, domestic violence, receiving stolen property, tampering with evidence, and possession of a firearm by a convicted felon.   He has been incarcerated several times, most recently from 2009 until January 3, 2012.   While incarcerated this last time, the Cabinet's case manager only visited Father once, to advise him that the Cabinet's goal was to place the children for adoption.   When the case manager asked if he would voluntarily terminate his parental rights, Father refused.   According to Father, the case manager did not accept his phone calls, did not forward the six letters he had written to his children, and provided no services to him.   However, Father did voluntarily attend Alcoholics Anonymous meetings and anger management classes offered by the jail.   When he was released from jail, Father contacted his attorney to determine what he could do to reconnect with his children.   However, Father had not had any contact with anyone from the Cabinet, and he stated he did not know what was required of him.

Finally, Father admitted he had not seen the children since 2008, and he did not know if they would remember him;  however, he believes Mother is a good parent and that either she or his sister could care for the children.

10. Father's Sister

Father's sister testified that she cared for the younger son and younger daughter when the Cabinet temporarily placed them with her in 2007.   She does not know why the children were removed from her care, but she would welcome them back if the court or Cabinet placed them with her.

After reviewing the evidence, the family court found as follows:

The Respondent, [Father], has abandoned the children, [younger son] and [younger daughter].   He has failed to visit or otherwise contact the children for a period or periods of not less than ninety (90) days in duration and he has not maintained regular contact with the Cabinet during said period or periods to inquire into the well-being of the children.   Moreover, since the children were first removed from parental custody, the [F]ather has not availed himself of the reunification services provided by the cabinet or has otherwise failed to make sufficient progress in the court-approved case treatment plan to allow for the safe return of the children to parental care.

[Mother] and [Father], for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for their respective children, ․ and there is no reasonable expectation of improvement in parental care and protection, considering the age of the children.   Despite the Cabinet's reasonable efforts to reunify the children with the parents, they have remained unwilling or incapable of caring for the immediate and ongoing needs of the children for reasons including but not limited to abandonment of the children through the [F]ather's failure to maintain regular contact with the children and his failure to maintain regular contact with Cabinet representatives to inquire into his children's well-being;  the [F]ather's adoption of a criminal lifestyle that has resulted in his repeated or continued incarceration;  and the parents' failure to provide for the material needs of the children.   Moreover, as indicated by the testimony of the Cabinet's caseworker and other witnesses, while the children have been in foster care, the parents have failed to cooperate with the Cabinet to fully comply with Court orders and reach reunification goals set forth in the Cabinet's court-approved case treatment plan.   As a result, the children have been unable to return safely to parental custody and care and instead has [sic] remained in the Cabinet's care and custody for not less than twenty-three (23) consecutive months.

The Respondents, [Mother] and [Father], have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well-being and there is no reasonable expectation of significant improvement in parental conduct in the immediately foreseeable future, considering the age of the children.   The Cabinet's caseworker testified that, while the children have been in the care and custody of the Cabinet, the parents generally have not provided the children with food, shelter, clothing, medical care or educational care despite the parents' apparent ability to work.   Nor have the parents otherwise provided the children with substitute financial assistance since the children have been in the care and custody of the Cabinet.

The children's physical, mental and emotional needs have been met while in the Cabinet's care and custody and the children are expected to make continuing improvements in these areas upon termination of parental rights.   From the totality of the evidence presented, this Court is unpersuaded that the children would not continue to be abused or neglected as describes in KRS 600.020(1) if returned to parental custody.   Frankly, even if this Court had been persuaded that the children would not continue to be abused or neglected if returned to parental custody, under the circumstances of this case, this Court would not be inclined to exercise the discretion granted to it by KRS 625.090(5) to do so.   Instead, this Court has concluded that termination of parental rights is in the best interest of all the children, and the Cabinet for Health and Family Services has facilities available to accept the care, custody and control of the children and is the agency best qualified to receive custody.

The children have been in foster care under the responsibility of the Cabinet for Health and Family Services for fifteen (15) of the most recent twenty-two months preceding the filing of the petition to terminate parental rights in this action due to the failure of the aforesaid Respondents to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the children to parental custody.   Based on the totality of the evidence presented, this Court finds the testimony by each of the parents to the effect that Cabinet social workers had failed to make reasonable efforts to reunify them with the children to lack credibility.   Instead, the evidence is clear that the [M]other and the [F]ather each have failed to make themselves reasonably available for the services to which the Cabinet has referred them or which were recommended by service providers to whom they had been referred by the Cabinet.   For example, the [M]other did not make herself reasonably available for family therapy sessions with the children at the request of Ms. Lockwood and Ms. Wheatley;  and the [F]ather has rendered himself unavailable for reunification services as a result of his frequent and extended incarcerations, and he did not contact the Cabinet immediately upon his most recent release from incarceration as he was requested to do so that services could be made available to him.

The Court has considered evidence pertaining to each enumerated ground in the Cabinet's Petition for Involuntary Termination of Parental Rights and has determined by clear and convincing evidence that the Cabinet has met the burden of proving each ground independently of one another.   Each individual ground for termination found in this action is sufficient to satisfy the element for termination of parental rights as set forth in KRS 625.090(2).

Based on the foregoing Findings of Fact, the Court makes the following Conclusions of Law:

1. The children ․ have been adjudged to be abused or neglected as defined in KRS 600.020(1) by a court of competent jurisdiction.   Moreover, the children ․ are found in this proceeding to be abused or neglected as defined in KRS 600.020(1);  and it is in the best interest of the children that the parental rights of Respondents ․ be terminated.

2. The Respondent [F]ather ․ has abandoned the children ․ for a period of not less than ninety (90) days.  KRS 625.090(2)(a).   As a result, the children are abused or neglected children.  KRS 600.020(1)(g).

3. The Respondent parents ․ for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the children ․ and there is no reasonable expectation of improvement in parental care and protection considering the age of the children.  KRS 625.090(2)(e).   As a result, the children are abused or neglected children.   KRS 600.020(1)(c) and (d).

4. The Respondent parents ․ for reasons other than poverty alone, have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the children's well-being and there is no reasonable expectation of significant improvement in parental conduct in the immediately foreseeable future, considering the age of the children.  KRS 625.090(2)(g).  As a result, the children are abused or neglected children.   KRS 600.020(1)(h).

5. The children ․ have 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)(j).  Inasmuch as the Respondents ․ have failed to make sufficient progress toward identified goals set forth in the court-approved case plan to allow for the safe return of the children to parental custody that has resulted in the children remaining in foster care for fifteen (15) of the most recent twenty-two (22) months, the children are abused or neglected children.  KRS 600.020(1)(i).

6. When considered in the context of all the relevant statutory factors set forth in KRS 625.090(3), the Cabinet for Health and Family Services has rendered or attempted to render all reasonable services to the parents that might be expected to bring about a reunion of the family.   Given the efforts made by the Cabinet and the Jefferson Family Court to reunify this family, no additional services are likely to bring about parental adjustments enabling a return of the children to parental custody within a reasonable time, considering the age of the children.

7. The Cabinet has met the children's physical, emotional and mental health needs since removal from parental custody and the prospects are for continuing improvement in the children's welfare if termination is ordered.

8. Petitioner, Cabinet for Health and Family Services, is entitled to a judgment terminating the parental rights of the Respondents ․ to the children ․;  moreover it is in the best interest of said children that parental rights of said Respondents be terminated and that custody be transferred to the Cabinet for Health and Family Services as wards of the Commonwealth with authority residing in the Cabinet to place said children for adoption.

9. The Court has considered evidence pertaining to each enumerated ground in the Cabinet's Petition for Involuntary Termination of Parental Rights and has determined by clear and convincing evidence that the Cabinet has met the burden of proving each ground independently of one another.   Each individual ground for termination found in this action is sufficient to satisfy the element for termination of parental rights as set forth in KRS 625.090(2).

Based on the above findings of fact and conclusions of law, the family court entered a judgment terminating the parental rights of Mother and Father to their respective children.   Mother and Father filed a joint motion to alter, amend, or vacate, alleging the children had been abused in their foster home and that they had been removed from that home.   The family court denied the motion, and Mother and Father filed this appeal.

II. Standard of Review

When reviewing a decision to terminate parental rights we must determine if the decision was supported by clear and convincing evidence.   In so doing, we utilize the clearly erroneous standard of review.   Kentucky Rules of Civil Procedure (CR) 52.01;  K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky.App.2006).   To be clear and convincing, evidence does not have to be uncontradicted, it only has to be “of a probative and substantial nature ․ sufficient to convince ordinarily prudent-minded people.”  M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky.App.1998) (citation omitted).   When reviewing the evidence, we must give a great deal of deference to the family court's findings, and we will not disturb those findings unless there is no evidence of substance to support them.  K.R.L., 210 S.W.3d at 187.   However, determining whether a statute is unconstitutional is a question of law which we review de novo.  Wilfong v. Commonwealth, 175 S.W.3d 84, 91 (Ky.App.2004).

III. Analysis

Applying the appropriate standard of review, we address separately the issues raised by the Appellants.

1. Constitutionality of KRS 625.090(1)(a)

KRS 625.090(1)(a) provides in pertinent part that the circuit court may involuntarily terminate parental rights if it finds by clear and convincing evidence that:  “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;  [or] 2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in [the termination] ․ proceeding.”   The Appellants argue that KRS 625.090(1)(a) is unconstitutional because it permits the trial court to adopt a prior finding of abuse or neglect that only had to be proven by a preponderance of the evidence, rather than by the constitutionally mandated clear and convincing evidence standard.   If we presume for the sake of argument only that such an argument might apply to KRS 625.090(1)(a)1, which permits the trial court to rely on a prior finding of abuse or neglect, it will not apply to KRS 625.090(1)(a)2, which permits the trial court to make an independent finding of abuse or neglect based on clear and convincing evidence presented during the termination proceedings.

The family court herein did not solely rely on KRS 625.090(1)(a)1. Instead, it also relied on KRS 625.090(1)(a)2 and found from proof presented during the termination proceedings that there was clear and convincing evidence of abuse or neglect.   If the family court had relied solely on KRS 625.090(1)(a)1 we would be compelled to inquire into the constitutional argument further.   However, that is not the case before us, and we need not address the issue.

2. Sufficiency of the Evidence Regarding Termination

The Appellants argue that the Cabinet did not meet its burden of proving the elements necessary to support involuntary termination of their parental rights.   In order to involuntarily terminate parental rights, the family court must undertake a three-step analysis.   First, the family court must determine whether a child has been abused or neglected.  KRS 625.090(1)(a).   A child has been abused or neglected when his or her parent does one or more of the following:

1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;

2. 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;

3. 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;

4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;

5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;

6. Creates or allows to be created a risk that an act of

sexual abuse, sexual exploitation, or prostitution will be committed upon the child;

7. Abandons or exploits the child;

8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being.   A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone.   This exception shall not preclude a court from ordering necessary medical services for a child;

9. 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). Double

Next, the family court must determine if the Cabinet has proven one of the following grounds by clear and convincing evidence:

(a) That the parent has abandoned the child for a period of not less than ninety (90) days;

(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;

(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;

(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;

(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;

(f) That the parent has caused or allowed the child to be sexually abused or exploited;

(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;

(h) That:

1. The parent's parental rights to another child have been involuntarily terminated;

2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination;  and

3. The conditions or factors which were the basis for the previous termination finding have not been corrected;

(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect;  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, the family court must determine if termination is in the best interest of the child.  KRS 625.090(1)(b).  In determining whether termination is in the best interest of the child, and whether grounds for termination exist, the family court shall consider the following factors:

(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability 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 evidence before the family court established that, except for writing several letters to his children, Father had no contact with them since 2008;  both Mother and Father engaged in acts of domestic violence with each other and others in the presence of some of the children;  at least one child was injured during one of these acts of domestic violence;  Mother left the children with W.B. twice during the Christmas holidays;  Mother ignored a no-contact order, which she had sought, and took the children to the residence of their paternal uncle;  Mother has been unable to obtain and sustain employment and a stable residence;  and neither Mother nor Father have consistently provided for the children's shelter or medical care.   That evidence is sufficient to support the family court's finding of neglect or abuse as defined by KRS 600.020(1).   It also supports the family court's finding that termination of parental rights is appropriate under KRS 625.090(2).   Therefore, we discern no error in the family court's finding that the children were neglected or abused, and that there were sufficient grounds to terminate parental rights.

We also discern no error in the family court's determination that termination of parental rights is in the children's best interest.   The Cabinet has provided services to this family since 2005.   Those services included individual, group, and family counseling;  parenting and anger management classes;  supervised visitation;  and foster care;  all of which admittedly benefitted Mother and the children more than Father.   However, we note that Father was incarcerated much of the time and there is little if any evidence Father availed himself of any services offered by the Cabinet when he was not imprisoned.   Furthermore, while Mother initially availed herself of the Cabinet's services each time they were offered, she was not able to do so consistently over time.   This is particularly true since 2010 when Mother missed a significant number of individual and family counseling and therapy sessions.   Finally, the evidence established that all of the children have improved psychologically and emotionally since being placed with the Cabinet.   As noted above, despite evidence to the contrary, the preceding is sufficient to support the family court's finding that termination of parental rights is in the children's best interest.

3. Whether the Cabinet Made Efforts at Reunification

Mother argues that the Cabinet did not make reasonable efforts at reunification.   In support of this argument, Mother reiterates she had difficulty contacting one of her caseworkers, and services were not timely provided by the Cabinet.   The family court, exercising its discretion, found this testimony to be less than credible.   Witness credibility is an issue for the trial court to resolve and we cannot reverse the trial court's finding in that regard absent an abuse of discretion.   See CR 52.01;  Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky.App.2009).   Having reviewed this lengthy record, we cannot fault the family court's credibility assessment.   Furthermore, as noted above, during its nearly seven years of contact with this family, the Cabinet has offered a plethora of services.   Therefore, we cannot say that the family court's finding that the Cabinet made sufficient efforts at reunification is clearly erroneous.

4. Whether Evidence Supported Finding

Father Abandoned Children

Father argues he did not abandon his children, but that he was involuntarily kept from them because of his incarceration.   He also argues that, even while incarcerated, he attempted to keep in contact with his children by sending six letters for them to the caseworker.   As does Mother, Father blames the Cabinet for failing to contact him and failing to forward the letters to his children.

There is evidence to the contrary.   Father was incarcerated from 2009 to January 2012, but he testified he had not seen his children since 2008.   He did not explain his absence from their lives prior to his incarceration.   Furthermore, the Cabinet caseworker testified there were only two letters to Father's children in her file, not six.   Finally, although he knew the Cabinet was seeking to terminate his parental rights, Father did not contact the Cabinet caseworker when he was released from incarceration in January 2012.   That is sufficient evidence of substance to support the family court's finding that Father abandoned his children.

IV. Conclusion

Having reviewed the record and considered the arguments of the parties, we conclude that the family court did not abuse its discretion in terminating M.M. and M.D.L.'s parental rights.   Furthermore, because the constitutionality of KRS 625.090(1)(a)1 is not before us, we decline to address that issue.

all concur.

JOINT

ACREE, CHIEF JUDGE: