COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN, as Next Friend of P.T.K., a Child, and J.W.K, a Child V. L.S.; and W.S.K.
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RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002526-MR
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND
CHILDREN, as Next Friend
of P.T.K., a Child, and
J.W.K, a Child
APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 97-AD-00001
V.
L.S.; and W.S.K.
APPELLEES
OPINION REVERSING AND REMANDING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; DYCHE and MILLER, Judges.
GUDGEL, CHIEF JUDGE:
This is an appeal from a judgment, entered
by the Breckinridge Circuit Court, denying a petition filed by
the Cabinet for Families and Children (CFC) seeking to terminate
the parental rights of appellees L.S. and W.S.K.
For the reasons
stated hereafter, we reverse and remand for further proceedings.
CFC filed a petition in March 1997 seeking to
involuntarily terminate L.S. and W.S.K.'s parental rights to
P.T.K. and J.W.K., who were born in July 1995 and October 1994,
respectively.
After a hearing was conducted in August 1999, the
trial court found that the children had been neglected by both
parents.
Especially pertinent to the issues on appeal are the
court's following findings of fact:
[L.K.] and [W.S.K.] have never married.
. . . .
The testimony established that [J.W.K.]
has only one kidney. His blood pressure
requires monitoring.
[P.T.K.] . . . was born prematurely
weighing a little over two pounds at
birth. . . . As a result, he had very
special needs. As a result of [L.S.'s]
failure to bond with the child and failure to
attend and complete cardiopulmonary
resuscitation (CPR) training, Kosair Hospital
and the Cabinet sought custody of [P.T.K.]
The Breckinridge District Court found
[P.T.K.] to be a dependent child by Order
entered November 21, 1995. This custody
continued from birth until October 10, 1997
when [P.T.K.] was placed back in the home of
[L.S.] and [W.S.K.]. . . . The placement was
made primarily due to the stability and
financial support [W.S.K.] provided for the
family. The Cabinet placed [P.T.K.] back
with [L.S.] and [W.S.K.] even though it had
already begun termination proceedings. . . .
The Cabinet presented the testimony of
three qualified employees who had been
directly involved with [L.S.], [W.S.K.] and
the boys. It is difficult, if not
impossible, to ascribe the term "family" to
this group. . . . [The evidence] indicates
the repeated lack of follow up by [L.S.] to
medical problems noted with the
children. . . .
[L.S.] and [W.S.K.] moved on a fairly
regular basis. While [L.S.] had lived at her
parent's residence, it was entirely
unsuitable due to garbage being in improper
receptacles, slop being kept in improper
containers, improper or no sheets on the
children's beds, dirty clothes stacked around
and a foul odor about the premises.
A treatment plan had been arranged with
[L.S.] and [W.S.K.] when [P.T.K.] was
returned in October 1997. [W.S.K.] attended
a few meetings; however, he failed to
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complete the plan. He is the primary
financial support for the family. He keeps
about one half his earnings each week for
himself without any real explanation for what
it is used. It is clear that the children's
basic necessities were not being paid for by
[L.S.] or [W.S.K.].
[L.S.] and [W.S.K.] moved . . . when
[P.T.K.] was returned in October 1997. . . .
While there, [W.S.K.] failed to participate
in parenting sessions.
[L.S.] had been counseled and had a
treatment plan to deal with parenting,
nutrition and budgeting. She made a
conscious effort to avoid meeting with social
workers to meet the goals of the plan. She
would absent herself from her home to avoid
the social workers. She would take the
children to her mother's to keep the social
workers from observing their physical
condition. [L.S.] would lie about where she
had been. The social worker even passed her
on the road and observed her in another
vehicle when [L.S.] had said she couldn't
attend a session.
[L.S.] would not fill out budgeting
forms and would not keep receipts to show
where the household income was spent.
Ms. Matthews would make unannounced
visits. She would not find milk in the
refrigerator, although she did observe
alcoholic beverages in the house. At one
point, had the worker not checked on the
status of her electric bill delinquency, the
electricity would have been shut off. There
was no legitimate reason for the children to
be without sufficient nutrition with [W.S.K.]
working and [L.S.] in the WIC program.
[L.S.] has proven herself untrustworthy,
unreliable and to have neglected the
children. Tiffany Bland's main concern had
been the inappropriate medical care provided
the boys. [L.S.] did not follow through on
requests to take the boys to a doctor.
[L.S.] could not provide receipts for
treatment on follow up visits.
Ms. Bland did state [W.S.K.] was living
in the home from October 1997. [W.S.K.] had
been cooperative in attending visits and
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foster care reviews prior to getting custody
of [P.T.K.] in October 1997.
. . . .
The last straw for the Cabinet
apparently was broken on a visit on March 19,
1998. That day a social worker found the
boys in the home apparently unsupervised.
Though she tried to call out to see if anyone
was home, . . . [an adult male friend who
allegedly was watching the children] could
not be aroused. One child had on wet shoes
at the time. The worker took the children
with her from the home. . . . When she took
the children, [P.T.K.'s] eyes were matted.
At a hearing, [L.S.] stipulated and the
Breckinridge District Court found the boys to
be neglected by [L.S.] (not [W.S.K.]) . . . .
Both boys were committed to the CFC by Order
entered April 28, 1998 to present. Since the
boys' removal from their house, [L.S.] and
[W.S.K.] have had supervised visitation with
the boys.
The boys are presently thriving in their
foster home environment.
Since removal of the children, [L.S.]
refused to cooperate with the available
social workers. . . .
At the hearing, [L.S.] testified she is
again living with her mother and had been
there with [W.S.K.] since March 27,
1999. . . . She admitted to a shortage of
heat in the yellow house . . . . She
admitted not keeping milk for a while. Her
explanation why she didn't cooperate with the
treatment plan was she didn't get along with
Dottie Watson. Ms. Watson was "aggravating
her." She admitted neglecting the children's
medical needs. She has never completed the
budgeting or parenting classes.
. . . .
. . . [W.S.K.] testified that he also
now lives with [L.S.'s] mother. Apparently,
he and [L.S.] now have another
eight-month-old child . . . . He had signed
a Case Plan on October 6, 1997 and October 7,
1998. He did not complete the Plans.
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Both [L.S.] and [W.S.K.] have recently
entered guilty pleas to Flagrant Non-support
felony charges in relation to the boys in the
Breckinridge Circuit Court.
There is no foreseeable prospect of
improvement in the parenting skills, ability,
effort, care, protection of the children or
efforts to foster the physical, mental, and
emotional health of the children.
The court found that the children had been neglected by both
parents, and that clear and convincing evidence existed to
support the termination of L.S.'s parental rights.
However,
concluding that such evidence did not exist as to W.S.K., the
court declined to terminate the rights of either parent.
This
appeal followed.
KRS 625.090, concerning the involuntary termination of
parental rights, provides in pertinent part:
(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.
3.
(b)
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
The parent has been convicted
of a criminal charge relating
to the physical or sexual
abuse or neglect of any child
. . .; and
Termination would be in the best
interest of the child.
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(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 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;
. . . .
(3)
In determining the best interest of the
child and the existence of a ground for
termination, the Circuit Court shall
consider the following factors:
. . . .
(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;
. . . .
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(6)
Upon the conclusion of proof and
argument of counsel, the Circuit Court
shall enter findings of fact,
conclusions of law, and a decision as to
each parent-respondent within thirty
(30) days either:
(a)
Terminating the right of the
parent; or
(b)
Dismissing the petition and stating
whether the child shall be returned
to the parent or shall remain in
the custody of the state.
Here, the circuit court concluded that the initial
threshold requirements of KRS 625.090(1)(a)(1) and (2) were met
by the district court's finding that the children were neglected
by L.S., and by its own finding that they were neglected by
W.S.K.
The question before the court then became whether the
termination of parental rights would be in the children's best
interests.
In determining the children's best interests and the
issue of whether clear and convincing evidence existed to show
continuous or repeated negligence pursuant to KRS 625.090(2)(e)
and/or (g), the court considered the factors set out in KRS
625.090(3).
Key to the court's analysis was the evidence
relating to the parents' efforts and adjustments in their
"circumstances, conduct, or conditions" to make it in their
children's best interests to return home "within a reasonable
period of time."
KRS 625.090(3)(d).
The court summarized this
evidence in pertinent part as follows:
. . . [L.S.] has been a failure at every
level of treatment. She has made no
legitimate effort or adjustment in her
circumstances, conduct or condition to make
it possible to consider it in the boys' best
interest to return them to her. In fact, she
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has rebelled against almost all the help
which has been offered her. She blames her
own failures on everyone else's behavior. To
make matters worse, [L.S.] and [W.S.K.] have
now created another child. Certainly, this
in part indicates an ambivalence or lack of
concern for the boys' future development,
food, clothing, shelter, and medical care.
Her new child creates an even greater drain
on their already strained resources. [L.S.]
presented herself at the hearing as a poor
witness and poor mother for the two boys.
As for [W.S.K.], he appears to be a man
of limited intelligence and resources trying
to keep his children together. He has a
severe financial burden created by his own
lack of self control. He continues to make
poor decisions. The lack of medical care
provided the children by both [W.S.K.] and
[L.S.], after listening to their own
witnesses' testimony, is probably directly
related to their own upbringing. It seems
clear he, nor [L.S.], were raised to go to
the doctor except in a dire emergency. This
is not an excuse, however, for these children
not being provided medical care. [W.S.K.]
had to be aware living in the house they were
not getting to the doctor. The social
workers' demands to [L.S.] to get medical
treatment for the boys was ignored and/or not
related to [W.S.K.]
To his credit, [W.S.K.] does have a
sincere desire to keep his children. Up to
December 1997, the Cabinet's records indicate
the children had "adequate" care. He was at
work when the last visit resulting in the
children's removal occurred. [P.T.K.'s] lack
of weight gain should have been noticed.
[W.S.K.] has exercised his supervised
visitation rights. However, he has a long
way to go before he could ever hope to get
custody. Supervised visitation is also a
continuing drain on the Cabinet's resources.
The quandary herein is that [W.S.K.] and
[L.S.] are still together though unmarried.
It is virtually impossible for this
Court to terminate only one parent's rights
under the circumstances. The reality is with
[W.S.K.] and [L.S.] being together,
termination of only one parent's rights
leaves the continued opportunity and
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certainty of contact with the children even
if [L.S.'s] parental rights are terminated.
It is only because of [W.S.K.] this Court has
any hesitation regarding termination of
parental rights. This parallels the same
situation and the Cabinet's prior rationale
for returning [P.T.K.] because of [W.S.K.'s]
positive points. [W.S.K.], however, needs to
take control of the parties' finances and to
be more involved in day to day care and
decision making.
. . . .
What really concerns the Court most is
that since their removal in April 1998 nearly
1 ½ years ago, neither [W.S.K.] nor [L.S.]
have yet to fulfill the goals of the case
permanency plan. The budgeting, parenting
and nutrition have not been completed.
With their present child support
arrearage, current support obligation and new
child's need, [W.S.K.'s] ability to provide
for the children has been stretched to, if
not beyond, his capabilities.
Thus, although the court was persuaded that clear and convincing
evidence existed to support a termination of L.S.'s parental
rights, it declined to terminate those rights based on its
conclusion that similar grounds did not exist to support the
termination of W.S.K.'s parental rights.
In our view, these
conclusions are inconsistent with one another and amount to an
abuse of the trial court's discretion.
The detailed evidence concerning chronic and
substantial neglect of the children's medical and physical needs
was certainly sufficient to support the court's conclusion that
grounds existed for terminating L.S.'s parental rights.
Although
the court apparently was reluctant to attribute blame for the
neglect to W.S.K. because he and L.S. were not married, their
marital status in fact seems irrelevant to this particular issue
-9-
since it is uncontroverted that L.S. and W.S.K. resided together
throughout most if not all of the time in question.
More
specifically, evidence was adduced to clearly show that neither
parent provided adequate physical and medical care for the
children.
Moreover, although the court found that P.T.K. was
placed in his parents' home in October 1997 "primarily due to the
stability and financial support [W.S.K.] provided for the
family," little if any evidence exists to show that W.S.K.
thereafter provided adequate levels of stability or financial
support.
Instead, the court's findings noted that both parties
failed to provide for the children's basic necessities, that
there was no accounting for the expenditure of much of W.S.K.'s
income, that W.S.K. failed to complete the CFC treatment plan,
and that he failed to participate in parenting sessions.
Although W.S.K. evidently was at work when the children were
found unsupervised at home in March 1998, that event clearly was
only one incident among many leading to the petition to terminate
parental rights, and the record contains nothing to show that
W.S.K. thereafter took any steps to ensure that such an event
would not be repeated.
Moreover, the record contains nothing to
indicate that after the children's removal, W.S.K. made any
efforts which were independent of, or greater than, those made by
L.S. to promote the return of the children to his care.
We are
therefore constrained to conclude that it was inconsistent and an
abuse of the trial court’s discretion to find that, although
clear and convincing evidence existed to support a termination of
L.S.'s parental rights, the evidence did not support a similar
-10-
finding as to W.S.K.
The court's judgment therefore must be
reversed.
The trial court's judgment is reversed, and this matter
is remanded to the trial court with directions to enter an
amended judgment consistent with the views expressed herein.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR W.S.K.:
Mary Gaines Locke
Elizabethtown, KY
Steven R. Crebessa
Brandenburg, KY
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