Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. K.S.

Supreme Court of Kentucky

September 26, 2019

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, and A.W.S., A CHILD APPELLANTS
v.
K.S., MOTHER APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2018-CA-000088-ME KENTON FAMILY COURT NO. 17-AD-00116.

          COUNSEL FOR APPELLANT, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Mona Sabie Womack Abigail Voelker Cabinet for Health and Family Services Office of Legal Services.

          COUNSEL FOR APPELLANT, A.W.S., A CHILD: James Richard Scott.

          COUNSEL FOR APPELLEE, K.S., MOTHER: George Andrew Thompson.

          OPINION

          BUCKINGHAM JUSTICE.

         The Kenton Family Court found K.S.'s son to be a neglected child and terminated K.S.'s parental rights.[1] K.S. appealed, and the Court of Appeals vacated and remanded. The Cabinet for Health and Family Services (Cabinet) petitioned this Court for discretionary review, which we granted. After our review of the record and the law, we reverse the Court of Appeals and reinstate the judgment of the Kenton Family Court.

         BACKGROUND

         K.S. is the mother of A.W.S., a male child who was born on January 6, 2014. K.S. advised hospital personnel that she did not know how to properly care for the child, and the Cabinet became involved and took custody, placing the child in foster care six days later, where he remains to this day. The father has been absent from the child's life since birth and has never sought reunification with the child.[2]

         K.S. resided with her mother in an apartment that was not suitable for the child due to concerns with bedbugs and roaches; the presence of her mother's brother, who had prior abuse allegations against him; and the lack of food.

         K.S. has been diagnosed with a pervasive developmental disorder (autism), and her full-scale I.Q. score is 65. The Cabinet has rendered and offered services in an attempt to keep the family together. When the Cabinet determined that matters were not progressing appropriately, on June 16, 2017, well over three years after taking custody of the child, it filed a petition to involuntarily terminate the parental rights of K.S. and the child's father.

         A trial was held on December 5, 2017. Dr. James Rosenthal, a licensed psychologist, testified that he had met with K.S. on two occasions, April 25, 2014, and June 6, 2014. He stated that he was initially advised by K.S. that she was being treated for autism and depression. Based on K.S.'s prior medical records and his own evaluation of her at that time, he diagnosed K.S. with a pervasive developmental disorder and mild mental retardation.[3] He noted her full-scale I.Q. score of 65, which is considered borderline mental retardation, and stated that it could only deviate plus or minus five points. Dr. Rosenthal testified that he found deficits in K.S.'s social judgment, age appropriate social relationships, and cognitive skills. Additionally, he testified that intellectual disabilities usually do not improve after the age of 14 and that he did not expect any improvement by K.S. in this area even with additional treatment.

         Dr. Rosenthal further testified that the child would be at risk of abuse or neglect if returned to K.S.'s care. He concluded that the stress of caring for the child would only further impair K.S.'s ability to provide appropriate care, which would increase the risk of abuse or neglect. Additionally, he testified that due to K.S.'s intellectual disabilities, she is unlikely to improve to a degree that would permit her to adequately care for the child and that there were no services that would abate the concerns if the child were returned to her care. Dr. Rosenthal did think, however, that K.S. could live independently in an apartment by herself and work part-time, which she was doing at the time of the trial.

         The Cabinet's other witness was Kevin Minch, a Cabinet services office supervisor who had been employed by the Cabinet for 19 years. Minch testified that K.S. had completed most of the tasks in her case plan with the Cabinet but that he had ongoing concerns about her ability to parent the child over the long term due to her cognitive limitations. He testified that K.S. had been offered many services, but none could correct her ongoing cognitive impairments. He stated that the Cabinet's observations concerning K.S. were consistent with those of Dr. Rosenthal.

         Minch further testified that even though K.S. was very likeable, worked well with the Cabinet, and loves her child, these impairments were the reason the child had not been returned to her care but had remained in foster care since birth. When asked if this was a case of "willing to be a parent" versus "ability to parent, " he responded "yes." In this regard Minch also testified that he was unaware of any additional services that could be offered to allow a safe return of A.W.S. to K.S. within a reasonable period of time.

         Minch noted that there was a lack of appropriate housing during this entire time and that the residence in which K.S. had lived with her mother was filthy, bug-infested, and lacked food. He acknowledged that K.S. had recently obtained an apartment close to her mother's residence but that her occupancy was unstable because she had only a month-to-month lease. Minch also testified that K.S. had supervised visitation with the child for two hours on alternate weekends at the Cabinet's office but that these visits appeared to him to be more playtime as opposed to parenting. He stated he had not witnessed a parent/child bond during the visits.

         Minch acknowledged that at the onset of the case, individualized services based on K.S.'s disability were not provided to her. He testified that the Cabinet became aware of the availability of such services in January 2017 when it was informed of such by Maureen Simpson-Henson, K.S.'s autism advocate. From that time such services were made available to K.S. Minch also stated that if the Cabinet had it to do over, it would have assisted K.S. in obtaining the services at that time. Although Minch was unaware of all services offered to K.S beginning in January 2017, he stated he was aware she had been referred to NorthKey but that she declined the services.

         Minch also conceded that for eight or nine months between January 2016 through January 2017, the case became stagnant because of changes in Cabinet caseworkers. He stated, however, that during this entire period of time services were provided to K.S., she continued her regular visitation with A.W.S., and there was always a caseworker assigned to K.S. who was available to her. Further, he stated that K.S. never requested custody or additional services during this time.

         Minch testified there were individual services that could benefit K.S. and that she was receiving services for developmental delays, including speech therapy and physical therapy. Nevertheless, Minch testified he thought the Cabinet had made reasonable efforts to reunify K.S. with her child but that the situation had not progressed to a sufficient level due to K.S.'s cognitive disabilities. And, as noted above, he testified he was unaware of any additional services that could be offered to K.S. that would result in the safe return of the child to K.S. within a reasonable time.

         Minch further stated that in April or May of 2017, a month or so before the Cabinet filed the petition to terminate K.S.'s parental rights, the Cabinet had recommended to the trial court that the family receive an assessment by Dr. Edward Conner.[4] This assessment never took place because, according to Minch, K.S.'s autism advocate notified the Cabinet that the release K.S. had signed in connection with the assessment should be "destroyed."

         Minch testified that termination proceedings were instituted shortly thereafter because the Cabinet felt it had hit a "roadblock" when the proposed assessment fell through. He also stated that A.W.S. "had been in permanency limbo for too long at this point." At the time the petition was filed, the child had been in foster care with the same family for 41 months, and at the time of the trial, the child had been in foster care for 46 months. Concerning the foster parents, Minch stated that the child has a strong emotional attachment to them and calls them "mommy" and "dad."

         In addition to the testimony of Dr. Rosenthal and Kevin Minch, the Cabinet sought to introduce an assessment from the CATS Clinic.[5] Dr. Rosenthal had recommended a CATS assessment, and Minch testified that the assessment provides a recommendation as to long-term placement and was relied upon by the Cabinet in this case.

         K.S.'s attorney, however, objected to the introduction of the report on grounds of hearsay since a CATS representative was not present to testify. The trial court sustained the objection, and the CATS assessment report was not allowed into evidence.

         Maureen Simpson-Henson, K.S.'s autism advocate since January 2017, testified on K.S.'s behalf. Simpson-Henson is a speech and language pathologist who worked with K.S. by providing speech and language therapy to her when she was a young child in the school system. She stated that she was on the original team of professionals that diagnosed K.S. with autism during her childhood.

         In January 2017 Simpson-Henson advised the Cabinet of additional services available to assist K.S., and she stated that K.S. had improved her parenting skills and could continue to improve them. She also testified that additional available services would "absolutely" help K.S. in her daily life. She noted that K.S. was very bright and has become much more independent since A.W.S.'s birth. She stated that K.S. has matured and learned to take care of herself much better since the birth of A.W.S. Simpson-Henson described K.S. as a "high-functioning individual with autism."

         K.S. testified on her own behalf. She acknowledged that when A.W.S. was born, she did not know how to care for him and that she told hospital personnel that. She stated that she took parenting classes and believes she has the ability to parent the child. K.S. also testified that she loves her son and has had regular supervised visitation with him since birth. She also stated that she has complied with everything the Cabinet would have her to do. She testified that she now has a suitable apartment with two bedrooms and that she knows what to do when health emergencies arise.

         On December 14, 2017, the family court entered Findings of Fact and Conclusions of Law and a Judgment Terminating Parental Rights. Therein, the court terminated the parental rights of K.S. and the child's father. The court's findings, which it noted were based on clear and convincing evidence, included that while K.S. had completed most of her tasks with the case plan, her developmental delays impeded a return of the child to her. Further, the court concluded that K.S.'s ability to change was limited due to her mental health diagnosis. The court stated that while K.S.'s current level of functioning had improved, it was not likely to change, especially considering the stress of parenting should the child be returned to her care.

         More specifically, the court found that the parents had "failed to protect and preserve the child's fundamental right to a safe and nurturing home and this is a neglected child." The court noted that K.S. was able to take care of herself to a degree, but that "there was not any testimony that she would have the ability to provide care and protection for a minor child." Further, the court stated that "neither parent has made sufficient progress toward identified goals" and "neither parent has been able to achieve self-sufficiency or the necessary parenting skills to care for this child, resulting in the minor child remaining in foster care for 46 months."

         The court found that the 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 child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child." See KRS[6] 625.090(2)(e). Specifically, the court determined that "[t]here is a significant risk of neglect if the child were returned." In addition, the court found that the child had been in foster care for a total of 46 months, which was the child's entire life. See KRS 625.090(2)(j).

         Further, the court found that the 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 child's well-being and there is no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future, considering the age of the child." See KRS 625.090(2)(g).

         The court further found that termination of parental rights was in the child's best interest, as the child will be able to achieve permanency and stability. The court noted that the child was in an adoptive home where his ongoing needs were being met consistently by the foster parents. See KRS 625.090(3)(e).

         Also, the court found that K.S. "has been consistently unable to care for the immediate and ongoing physical or psychological needs of the child because of the parent's emotional illness, mental illness, or mental deficiency as defined in KRS 202A.011(9) or KRS 202B.010(9), and the condition has been diagnosed by a qualified mental health professional." See KRS 625.090(3)(a).

         In addition, the court found that the Cabinet had attempted to render services to keep the family together, but that there were "no further available and reasonable reunification services which may be offered by the Cabinet that would be likely to bring about lasting parental adjustment enabling a return of the child to the parents." See KRS 625.090(3)(e). Finally, the court concluded that the child is a neglected child as that term is defined in KRS 600.020(1). Following the entry of the judgment terminating the parental rights of the parents, K.S. appealed to the Court of Appeals.

         The Court of Appeals vacated the family court's judgment terminating the parental rights of K.S. and remanded the case "for additional services to the Mother to ascertain whether the Mother is capable of parenting this child while keeping in mind the child's best interest." The Court of Appeals reasoned that the evidence was insufficient to prove the child was neglected.

         In explaining its decision, the Court of Appeals noted that Dr. Rosenthal had testified that the "risk of neglect" was high, given K.S.'s reasoning skills. The Court of Appeals stated it could not accept the Cabinet's assertion that the child was neglected when "the Mother never had the opportunity to parent the child independently because Child has always been committed to the Cabinet's custody." The Court of Appeals further held that "for a parent to neglect a child, he or she must intend to do so." Based on that holding, the Court of Appeals concluded that "the, facts of this matter implicate dependency, which is different from neglect." Following the decision of the Court of Appeals vacating and remanding to the Kenton Family Court, we granted the Cabinet's motion for discretionary review.

         The Court of Appeals rendered its decision on August 17, 2018. One month later, on September 27, 2018, we rendered our opinion in Cabinet for Health and Family Services on behalf of C.R. v. C.B., 556 S.W.3d 568 (Ky. 2018). In that case, the trial court had found the child to be neglected due to the risk of harm associated with the parent's substance abuse issues. Id. at 571. In that case, as in this one, the Court of Appeals reversed the trial court and held that the child could not be found to be neglected because the parent had never exercised custodial control or supervision over the child. Id.

         In the C.B. case, this Court reversed the Court of Appeals and reinstated the orders of the trial court terminating the parental rights of the parent. Id. at 576. Therein, we plainly held that "a parent does not have to be exercising control or supervision in order to be found to have neglected or abused a child." Id. at 573. We stated that "a family court certainly does not have to wait for actual harm to occur before taking protective measures." Id. at 576.

         THE FAMILY COURT'S DECISION TO TERMINATE K, S.'S PARENTAL RIGHTS IS SUPPORTED BY THE RECORD

         Standard of Review

         In Cabinet for Health & Family Servs. v. K.H., we described the applicable appellate standard of review in a termination of parental rights case as follows:

.... the trial court has wide discretion in terminating parental rights. Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)). Thus, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. Kentucky Rules of Civil Procedure ("CR") 52.01. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." T.NH., 302 S.W.3d at 663. Due to the fact that "termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." D.G.R., 364 S.W.3d at 113.

423 S.W.3d 204, 211 (Ky. 2014).

         "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." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998) (citing Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934)). "The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination." Id. (citing Department for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977)).

         The Family Court's Termination Judgment

         Pursuant to KRS 625.090, to involuntarily terminate parental rights, the trial court must find by clear and convincing evidence: (1) that the child is an abused or neglected child as defined by KRS 600.020(1); (2) that termination would be in the best interest of the child; and (3) that one or more of the grounds enumerated in KRS 625.090(2) exists. KRS 625.090(1) and (2). In considering the best interest of the child and the existence of a ground for termination, a court is required to consider the factors enumerated in KRS 625.090(3).

         First, the family court had to determine whether the child was an abused or neglected child as that term is defined in KRS 600.020(1). In its Findings of Fact and Conclusions of Law, the family court made the following findings:

24. [K.S. (and the Child's 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 the child and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child. Neither parent has demonstrated an ability to provide appropriate parental care for the child. There is significant risk of neglect if the child were returned.
25. [K.S. (and the Child's Father)] for reasons other than poverty alone, have continuously or repeatedly failed or refused to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well-being and there is no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future, considering the age of the child. . . . Respondent mother does not pay any child support. Neither parent showed evidence of providing for the daily needs of the minor child, including food, clothing, shelter, medical care or education.
26. The child subject of this action has been in foster care under the responsibility of the Cabinet for Health and Family Services, for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights. At the time of the filing, the child had been in foster care for 41 months. At the time of trial, he has remained in care for a total of 46 months, which is [his] entire life.

         The testimony of Cabinet witnesses Dr. James Rosenthal and Cabinet supervisor Kevin Minch provides clear and convincing evidence to support these findings, and they will not be disturbed upon review. Dr. Rosenthal testified that in his professional opinion K.S.'s disability was such that she was unlikely to improve to a degree that would permit her to give adequate care to the child and that there were no services that would abate the concerns if the child were returned to her. Minch testified that the Cabinet's observations were consistent with Dr. Rosenthal's and that he was unaware of any additional services that could be offered to K.S. that could result in a safe return of the child to her within a reasonable period of time. Further, he noted that child had been in foster care for nearly four years at the time of the trial and that the child "has been in permanency limbo far too long at this point." In support of this opinion, Minch stated that during the lengthy period the child had been in foster care, matters had not progressed to a degree that would allow a return of custody to K.S. And, Minch noted that shortly before termination proceedings were filed, the Cabinet had recommended an assessment by Dr. Conner but that K.S. had declined to participate.

         In light of the above testimony, we conclude that there was clear and convincing evidence to support the findings and conclusions of the trial court. These findings fit within the definitions of an "abused or neglected child" under KRS 600.020(1) (a). See KRS 600.020(1)(a)3 f[e]ngages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child"); KRS 600.020(1)(a)4 ("[continuously or repeatedly fails or refuses to provide essential parental care and protection for the child"); KRS 600.020(1)(a)8 ("[d]oes not provide the child with adequate care, supervision, food, clothing, shelter, or medical care necessary for the child's well-being"); and KRS 600.020(1)(a)9 ("[f]ails 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 for fifteen (15) of the most recent twenty-two (22) months").

         After finding the child is an abused or neglected child, the trial court next must determine by clear and convincing evidence whether termination is in the best interest of the child.[7] The factors to be considered by the trial court in determining the best interest of the child are listed in KRS 625.090(3).

         In support of its conclusion that termination was in the best interest of the child, the family court made the following findings:

27. It is in [the child's] best interests that the parental rights of [K.S.] be terminated. The minor child will be able to achieve permanency and stability. He is in an adoptive home, where his ongoing needs are being consistently met by the foster parents.
28. [K.S.] has been consistently unable to care for the immediate and ongoing physical or psychological needs of the child because of the parent's emotional illness, mental illness, or mental deficiency as defined in KRS 202A.011(9) or KRS 202B.010(9), and the condition has been diagnosed by a qualified mental health professional.

         It is apparent that the family court considered the factors enumerated in KRS 625.090(3). In fact, the court made specific reference to the factors in KRS 625.090(3)(a), (c), and (d). Again, the testimony of Dr. Rosenthal and Kevin Minch and K.S.'s underlying mental health and Cabinet records provide clear and convincing evidence in support of the court's findings. We will not disturb these findings in our review.

         Lastly, no termination of parental rights is permitted unless the trial court finds by clear and convincing evidence that one of the grounds listed in KRS 625.090(2) exists. The relevant grounds contained in KRS 625.090(2) are:

(2) No termination 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:
(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) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights.

         As reflected in the family court's findings of fact, the court determined the grounds listed in KRS 625.090(2)(e), (g), and (j) were present. The existence of only one of the grounds in the statute needs to be proven by clear and convincing evidence. Com., Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Again, the testimony of the Cabinet's witnesses and the underlying Cabinet and medical records provide clear and convincing evidence to support the court's findings, and such findings will not be disturbed on appeal.

         Intent Requirement

         In its decision vacating the family court's order, the Court of Appeals asserted that there was an intent requirement associated with KRS 600.020. More specifically, the Court of Appeals' decision states as follows:

A review of [KRS 600.020] shows that for a parent to neglect a child, he or she must intend to do so. We do not believe it has been established that Mother intended to neglect the child. Instead, the facts of this matter implicate dependency, which is different than neglect. While dependency may occur in circumstances similar to neglect, it lacks the requisite intent on the part of the parent. "A child who suffers harm as a result of a parent's intentional acts is neglected or abused. In contrast, a child is dependent if the harm results from a parent's unintentional acts, or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.