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K.M.E. v. Commonwealth

Court of Appeals of Kentucky

November 9, 2018



          BRIEFS FOR APPELLANT: Vincent F. Mallon Louisville, Kentucky.

          BRIEFS FOR APPELLEE: Mary Stewart Tansey Louisville, Kentucky.



          NICKELL, JUDGE.

         K.M.E. ("Father") is the putative father of K.H.J.W. ("Son"), born July 17, 2007, and K.D.W. ("Daughter"), born June 17, 2008. Father challenges orders and judgments entered in two cases by the Jefferson Circuit Court, Family Division, ordering involuntary TPR and awarding custody of children to the Cabinet for Health and Family Services ("CHFS") with authorization to place them for adoption. We will consider two of the three issues raised by Father-whether CHFS proved statutory grounds justifying TPR and whether CHFS made reasonable efforts to reunite the family. A third issue, seeking reconsideration of A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012) ($500 maximum fee for attorney representing indigent parent through completion of case which includes appeal), is not properly before us and will not be considered. Following review of the record, briefs and law, we affirm.


         Son and Daughter were originally placed with Father following a temporary removal hearing on August 8, 2013, occasioned by the filing of a petition alleging substance abuse by L.S.E.W., the children's biological mother ("Mother").[2] On October 31, 2013, the children were deemed abused and neglected based on Mother stipulating her drug usage placed the children at risk.

         Around January 12, 2016, Father called the CHFS hotline stating he wanted to relinquish custody of the children because they were out of control. He described the children as stealing food and candy-both of which he said they could have had on request. He also claimed the children were stealing alcohol, watching pornography on the computer and bullying other children. Father stated the children did not want to live in his home and he could not handle them due to his and his wife's health issues.

         Emergency custody petition filed in early March 2016 alleging Father physically abused Daughter by whipping her with paint sticks wrapped in duct tape, leaving significant bruising on the child's right forearm, left wrist, and lower back. Father stipulated his use of "inappropriate corporal punishment" in writing, prompting trial court to find Father abused or neglected his children, remove Son and Daughter from Father's home, and give temporary custody of both children to CHFS where they have remained since June 2016. Order of disposition required Father to pay child support, cooperate with CHFS and actively participate in treatment and social service programs. According to Angela Swartz, the family's second caseworker, [3] since the children entered state custody, Father has paid no child support and has provided no parental care or protection to either child. Swartz also stated she had no reason to believe Father would change his ways in a reasonable amount of time given the ages of his children. Swartz expressed concern Father could not discipline the children without using corporal punishment. The March 2016 petition, and the single-day trial convened on October 4, 2017, form the basis of these appeals.

         At trial, Sarah Herzog-a licensed professional counselor associate and qualified mental health professional-testified she became Daughter's therapist in March 2016. Herzog testified Daughter has been diagnosed with adjustment disorder and oppositional defiance, both of which she exhibits through tantrums, not listening, and not following directions. Herzog testified she became Son's therapist in May 2016. Son has been diagnosed with adjustment disorder, oppositional defiance and post-traumatic stress disorder. He exhibits aggression, anger and physical fighting at school. Both Son and Daughter take medication for mental health issues.

         Herzog used behavior modification, cognitive interventions, play and expressive therapy with the children. Both children improved over time and she views their prognosis as good with consistent parental oversight. She considered adoption to be an appropriate goal. On April 27, 2017, the trial court approved a CHFS petition to change the permanency goal to adoption.

         Herzog directed one family therapy session in late May 2016. Attended by Son, Daughter, and Father, the session went well until Father announced he was relocating to Michigan within the week. In the wake of Father's revelation, the focus of the session shifted to helping the children process Father's imminent departure. Father relocated to Michigan as of May 29, 2016, ending Herzog's contact with him.

         Herzog continued working with the children until April 2017, and again from September 2017 through November 2017. Herzog testified she is familiar with the children's foster family which is addressing the children's medical, mental, and emotional needs. Herzog evinced concern about lingering harm and neglect from the initial referral.

         According to Swartz, reunification services ordered for Father included: attend abusive parenting classes; participate in supervised visitation; cooperate with CHFS; submit to random drug screens; and, complete a substance abuse assessment after any positive drug test. In describing Father's compliance, Swartz testified he submitted to some drug screens. According to the trial court's findings of fact, Father tested positive for marijuana, but failed to complete the substance abuse assessment. Swartz referred Father to abusive parenting classes at Centerstone Transitions where he attended only two classes-on April 18 and 25, 2016, before being discharged from the program. Via letter to Sisson, Amy Noll, Principal Therapist/Supervisor at the Transitions Unit of Seven Counties Services, Inc., described Father's performance in those classes.

During each of those sessions [Father] reported that he did spank his daughter but denied that this was abusive in any way. [Father] was offered the opportunity to complete the accountability statement (statement describing the incident and how it was abusive) and a follow up appointment but he declined.
Transition's Parenting After Abuse Group is based on the parent's ability to take responsibility for the behaviors that led to the injury to their child. [Father] has denied responsibility for any physical abuse to the child. Therefore, he does not meet the criteria for our program at this time. To meet the criteria for the recommended treatment, [Father] will need to be able to discuss the abusive incident and the impact of the abuse on his child.

         After moving to Michigan, Father routinely telephoned the children in Kentucky and regularly communicated with Swartz. He also completed nurturing parenting classes in Michigan, [4] knowing they did not qualify as the court-mandated abusive parenting classes. Paperwork from Sisson indicates Father was told it was fine to take the nurturing parenting classes in Michigan, but they would not substitute for the court-ordered abusive parenting classes.

         On May 4, 2017, CHFS filed TPR petitions for both children naming both parents. Citing KRS[5] 625.090(2)(a), (e), and (g), CHFS petitioned for termination of Father's rights on three grounds-abandonment, failure/inability to provide essential care and protection to the children for not less than six months, and failure/inability to provide "essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being" without reasonable expectation of improvement.

         Father returned to Kentucky in early August 2017 to avoid TPR and work his case plan, remaining in the Commonwealth about one month. During that month he resumed working in Kentucky, underwent more drug ...

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