E. B. v. COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN; C. M. B.; AND N. B. B.
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RENDERED:
September 19, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001504-MR
E. B.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 01-FC-002834T
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN;
C. M. B.; AND N. B. B.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI AND PAISLEY, JUDGES.
GUIDUGLI, JUDGE.
E. B. appeals from a Jefferson Family Court
order terminating his parental rights to his children, C. B. and
N. B.
The Family Court’s order terminating his parental rights
and transferring custody to the Cabinet for Families and
Children (hereinafter “CFC”) is supported by clear and
convincing evidence that the children are abused and neglected
and that it is in their best interest to have their father’s
parental rights terminated.1
Thus, we affirm.
C. B. was born on December 26, 1996, and N. B. was
born on January 29, 1995.
A third child, D. B., a male, was the
older brother of these children.
CFC has not moved to terminate
parental rights to this third child, and at the time of the
termination hearing, he was still residing with his father, E.
B.
By order of the Jefferson Family Court, dated December 14,
1999, C. B. and N. B. were placed in the temporary custody of
CFC.
home.
The children are presently in a state approved foster
On April 16, 2001, CFC filed a petition for involuntary
termination of parental rights of the children’s biological
mother, M. B., and biological father, E. B.
The matter came on
for a hearing before the Family Court on the following four (4)
days:
November 1, 2001; November 2, 2001; January 3, 2002; and
January 10, 2002.
On April 12, 2002, the Family Court issued an
order terminating the parental rights of the parents.
This
appeal by E. B. followed.
E. B. argues that the Family Court erred in
terminating his parental rights because (1) CFC failed to prove
by clear and convincing evidence the existence of a ground for
1
M. B., the natural mother of the children, also had her
parental rights terminated in that it was found that she had
abandoned the children. Although served through a Warning Order
Attorney, she did not participate in the termination hearing nor
has she filed an appeal in this matter.
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terminating his parental rights; (2) CFC failed to comply with
its statutory duty to provide services to E. B. and the
children; and (3) the court erred in determining that
termination was in the children’s best interests.
KRS 625.090 sets forth the statutory grounds for
termination of one’s parental rights.
In relevant part, KRS
625.090 provides:
(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.
. . .
(b)
(2)
Termination would be in
the best interest of the
child.
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:
(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
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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
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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 wellbeing 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:
(a)
Mental illness as
defined by KRS
202A.011(9), or mental
retardation as defined
by KRS 302B.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 pr
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;
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(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.
. . .
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In summary, the statute requires a finding (1) that
the child, by clear and convincing evidence, was abused or
neglected child; (2) that the termination would be in the best
interest of the child; and (3) one or more of the factors set
out in subsection (2)(a)-(j) are present.
See R. C. R. v. Com.
Cabinet for Human Resources, Ky. App., 988 S.W.2d 36 (1998).
In
its order terminating parental rights, the Family Court made the
following conclusions of law based upon detailed findings of
fact, which convincingly support its conclusions:
1. The Respondent parents, for a
period of not less than six (6) months, has
(sic) continuously or repeatedly failed or
refused to provide or has 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 ages of the children.
2. The Respondent parents, for reasons
other than poverty alone has (sic)
continuously or repeatedly failed to provide
or is (sic) 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 the parents’ conduct in the
immediately foreseeable future, considering
the ages of the children.
3. That the Respondent mother has
abandoned the children for a period of not
less than ninety (90) days.
4. That the Respondent father has
inflicted or allowed to be inflicted upon
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the infant C. J. B., by other than
accidental means, serious physical injury.
5. That the Respondent father has
caused or allowed the children to be
sexually abused or exploited.
6. The Cabinet for Families and
Children has rendered or attempted to render
all reasonable services to the parents which
might be expected to bring about a reunion
of the family. No additional services are
likely to bring about parental adjustments
enabling a return of the children to the
parents within a reasonable time,
considering the ages of the children.
7. The children’s physical, emotional
and mental health has improved since removal
from Respondent parents’ custody and the
prospects are for greater improvement in the
children’s welfare if termination is
ordered.
The Family Court heard testimony on four separate days
that demonstrated that the children had been subjected to a
dysfunctional family environment that included abandonment by
the mother, physical, emotional and sexual abuse, lack of
supervision and failure to provide child support or other
necessities of life to the children since their placement with
CFC.
Probably the most revealing finding made by the Family
Court is set out in numerical paragraph 18 of the court’s
findings of fact, which states:
18. The testimony and exhibits presented in
this trial depict a violent, controlling
Respondent father and an absentee Respondent
mother. The infant Petitioners exhibit
symptomatology consistent with child victims
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of sexual abuse and have made concise,
consistent allegations of the same against
their brother and father. The infants have
also suffered from supervisory neglect by
their father and aggressive, sometimes
violent outbursts from their brother [D.
B.]. Nonetheless, the Respondent father
continues to accept little responsibility
for his actions and fails to embrace the
possibility that sexual abuse occurred
between his children.
The Respondent father has been offered
and has participated in several counseling
and treatment services, but his lack of
insight, poor judgment, and limited
parenting skills continue. The Cabinet has
had treatment services available for the
Respondent mother but she has failed to come
forward and utilize these services, or to
maintain any contact with her children in
several years. Neither Respondent parent
has regularly provided any child support or
other necessities of life for the infant
Petitioners since their placement with the
Cabinet for Families and Children. The
Cabinet has made all reasonable efforts to
reunite this family yet the family remains
at a high risk for future abuse and neglect
given that Respondent father is not amenable
to sexual abuse treatment for himself and
his children.
Termination of parental rights is in
the best interest of the children, and the
Cabinet for Families and Children has
facilities available to accept the care
custody and control of [C. M. B.] and [N. B.
B.], and is the agency best qualified to
receive custody of the children.
The standard of review in a termination of parental
rights case is set forth in R. C. R. v. Com. Cabinet for Human
Resources, supra, as follows:
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The trial court has broad discretion in
determining whether the child fits within
the abused or neglected category and whether
the abuse or neglect warrants termination.
Department for Human Resources v. Moore,
Ky.App., 552 S.W.2d 672, 675 (1977). This
Court’s review in a termination of parental
rights action is confined to the clearly
erroneous standard in CR 52.01 based upon
clear and convincing evidence, and the
findings of the trial court will not be
disturbed unless there exists no substantial
evidence in the record to support its
findings. V. S. v. Commonwealth, Cabinet
for Human Resources, Ky.App., 706 S.W.2d
420, 424 (1986). “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.” Rowland v. Holt,
Ky., 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
Id. at 38-39.
The numerous and detailed findings made by the
Family Court based upon evidence presented during the hearing
convince us that the Family Court did not clearly err when it
determined that the children were abandoned, neglected or
abused.
We also believe that the Family Court’s conclusion that
parental termination was in the best interests of the children
is supported by the evidence.
Ample evidence was presented that
CFC had attempted to provide numerous services but that there
was “no reasonable expectation of significant improvement in the
parent(s) conduct in the immediate foreseeable future.”
Despite
E. B.’s contention that CFC failed to provide adequate statutory
and regulatory mandated services, a review of the record and
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evidence convinces us otherwise.
Despite the numerous services
provide to E. B. and his children over several years, no real
progress had been achieved.
The safety and well-being of the
children remained a great concern to many of the professionals
who dealt with the family.
While E. B. obviously disagrees with
the conclusions of the professionals and the Family Court, when
the testimony is conflicting we may not substitute our decision
for the judgment of the trial court.
Wells v. Wells, Ky., 412
S.W.2d 568, 571 (1967).
E. B. argues that the Family Court erred in finding
that CFC proved by clear and convincing evidence any of the
factors set forth in KRS 625.090(1)(a)-(j).
As stated
previously, the Family Court made specific findings, based upon
evidence presented, that the grounds set forth in KRS
625.090(2)(a), (c), (e), (f), and (g) were present.
There is
substantial evidence to support the Family Court’s
determination.
Thus, we cannot conclude that its findings are
clearly erroneous.
Nor can we say after review of the record
and the findings of fact made by the trial court, that CFC has
failed to met its burden of proving its case by clear and
convincing evidence as required by KRS 625.090.
Santosky v.
Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982);
O.B.C. and F.D.C. v. Cabinet for Human Resources, Ky. App., 706
S.W.2d 420 (1986); R.C.R. v. Commonwealth Cabinet for Human
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Resources, Ky. App., 988 S.W.2d 36, 40 (1998).
As such, we
reject E. B.’s argument that the evidence did not support the
findings made by the Family Court that sufficient grounds for
termination of parental rights existed.
KRS 625.090.
E. B. also contends that CFC did not comply with its
statutory duty to provide mandated regulatory services to his
family.
A review of the record proves otherwise.
The Family
Court specifically found that CFC “has rendered or attempted to
render all reasonable services to the parents which might be
expected to bring about a reunion of the family.
No additional
services are likely to bring about parental adjustments enabling
a return of the children to the parents within a reasonable
time, considering the ages of the children.”
in these conclusions.
We find no error
The record indicates that CFC had worked
with this family for several years and had provided numerous
services to the parents and the children.
However, little, if
any, improvement had occurred and the two young children
remained at risk for physical, emotional and sexual abuse.
There was clear and convincing evidence in the record to support
the court’s findings and the findings were not clearly
erroneous.
For the foregoing reasons, the orders of the Jefferson
Family Court terminating E. B.’s parental rights to C. B. and N.
B. are affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Mason L. Trenaman
Louisville, KY
Erika Saylor
Louisville, KY
Bryan D. Gatewood
Louisville, KY
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