Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: MAY 2, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA ME J. W. APPELLANT APPEAL FROM EDMONSON CIRCUIT COURT v. HONORABLE RONNIE C. DORTCH, JUDGE ACTION NO. 10-AD CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; R. M. W., A CHILD; AND C. J. W., A CHILD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: J.W. appeals from the Edmonson Circuit Court s order terminating her parental rights to her two children, R.M.W. and C.J.W. After careful review, we affirm.

2 R.M.W. was born in June 2001, and C.J.W. was born in October 2002, to the Appellant, J.W., and J.W. (hereinafter the Father), who were married at the time the children were born. The children were removed from the parents home by order entered July 24, 2008, due to a domestic violence incident between the parents that the children witnessed. Both parents admitted that they had been drinking prior to the incident, and both parents stipulated to neglect at that time. Through prior counsel, the parents stipulated that grounds existed justifying the original removal of the children. The Cabinet for Health and Family Services (Cabinet) filed a petition for termination of parental rights on May 17, The termination case was originally set to be heard on February 15, However, on February 4, 2012, the Father perished in a single-vehicle automobile accident. The trial in this matter was subsequently rescheduled for November 21, The record reflects that treatment plans were allegedly completed with J.W., which consisted of her getting substance abuse counseling. J.W. completed an in-patient treatment program in Nashville, Tennessee, but she was also supposed to attend an out-patient treatment program when she was released, attend Alcoholics Anonymous meetings, and follow up with an out-patient substance abuse counselor. J.W. s testimony at trial was that she did not need further outpatient alcohol treatment, and therefore she did not seek any subsequent treatment. Plans were made to return the children home even though J.W. was not compliant with her treatment plan. Extended visitation was started in the -2-

3 summer of Visits were extended to several hours and eventually moved to the home. There was at least one overnight visit, during which a surprise home visit was conducted. J.W. admitted to her social worker that she and her husband had an argument in front of the children and she then bought alcohol and started drinking. Visitation with the children was subsequently stopped based on the children s therapist s recommendation. At the hearing in the termination proceeding, the Cabinet presented evidence that the children were originally removed because of allegations of substance abuse and domestic violence between the parents. The initial Cabinet worker, Leta Harper, testified that the substance abuse involved only alcohol. The subsequent social worker, Jennifer Soldevilla, confirmed that the only substance abuse involved in this case was alcohol. Ms. Soldevilla testified that the original treatment plan established for the family involved only domestic violence counseling for the Father and substance abuse counseling for J.W. While the Father completed his counseling, that fact is not relevant to the instant case because he is now deceased. Ms. Soldevilla testified that J.W. successfully completed a four-to sixweek in-patient program as part of her counseling regimen for alleged alcohol abuse. Ms. Soldevilla agreed that an in-patient treatment program is the most intense therapy one could receive for alcohol abuse because it involves an element of commitment or hospitalization as part of the recovery process. She further testified that J.W. provided proof that she had also attended some AA meetings -3-

4 following the completion of her in-patient therapy; however, J.W. did not provide proof that she was continuing to attend AA meetings throughout the proceedings. J.W. also provided her with written confirmation of her attendance at counseling meetings through June Ms. Soldevilla testified that she was making a final investigation prior to returning the children to the home during 2009when J.W. admitted that she had purchased alcohol and had it in her home during a visitation with the children. Ms. Soldevilla testified that she praised J.W. for being honest with her about the alcohol consumption. The children s therapist, Lindsey Green, also testified at the termination hearing. Ms. Green s testimony was that both of the children had significant problems since their placement in foster care. R.M.W. had serious temper tantrums that consisted of throwing things, tearing things up, and uncontrollable and inconsolable crying. R.M.W. also exhibited sexually acting out behaviors. She would touch the family pets inappropriately, and she drew phallic symbols on her closet wall. R.M.W. would also defecate on the floor. Ms. Green testified that while R.M.W. arrived at the foster home with these behaviors, there was a significant increase in her tantrums and defecating on the floor after she visited with her parents. R.M.W. also told Ms. Green that J.W. was drinking during visits. Ms. Green testified that R.M.W. is diagnosed with selective mutism, which she described as a trauma-based condition where a child essentially chooses not to speak. R.M.W. had no developmental delay that -4-

5 prevented her from speaking, but she was not speaking when she first came into foster care. Ms. Green believed that the cause of R.M.W. s behavioral problems was the traumatic environment she experienced at the parents home. She testified that the children found it frightening and anxiety-provoking to visit. Regarding C.J.W., Ms. Green testified that he was more hyperactive after visits with the parents. She described that he was very wild and ran around. The longer the visits lasted, the longer the children s behaviors continued. Ms. Green testified that both children suffer from reactive attachment disorder, which is essentially a failure to bond. She described that children with this disorder usually come from dysfunctional homes with no structure. Ms. Green testified that both of the children s behaviors are markedly improved since visitation with the parents stopped. R.M.W. no longer defecates on the floor and has not since November 2009, when the children s current therapist began working with them. R.M.W. is an A-B student, and C.J.W. is a B student. On cross-examination, Ms. Green stated that while the children had not had any visitation with their parents since November 2009, that R.M.W. was allegedly still defecating on the floor through July 2010, or nine months after visitation stopped. She also acknowledged that being removed from their natural parents home was a stressful event and that the children could also be stressed from the fact that they were taken back to the foster home after being allowed to see their natural parents during visitation. She also acknowledged that she has not had anything to do with this case since two years prior to the hearing, and she was -5-

6 therefore unaware of the positive changes that J.W. had made in her life during that time period. The Cabinet also presented evidence that the foster parents, Wayne and Sandy Salmon, wish to adopt both children. The Salmons adopted two other foster children, two teenage males, who were in the home when R.M.W. and C.J.W. arrived. J.W. also testified at the hearing. She testified that she had made many positive changes to her life since the death of her husband and the removal of her children. J.W. is currently employed at the Medical Center in Bowling Green. She has a manufactured home with four bedrooms and two bathrooms situated upon one and a third acres in a rural setting. She wants her children to come home. J.W. testified that neither R.M.W. nor C.J.W. had exhibited any unusual or troublesome behaviors while living in her home. She specifically denied that R.M.W. had ever gone to the bathroom on the floor. J.W. further testified that she had completed the in-patient alcohol treatment program and the AA meetings, but that she did not believe that there was anything she was supposed to have done with regard to the issue of alcohol that she failed to do. She also testified that she had completed parenting classes and had received counseling regarding domestic violence and improving her marriage. On cross-examination, J.W. indicated that since the visitation with the children stopped, she had not done anything further to comply with her treatment plan. She also admitted that she continued to drink after this time. J.W. read from -6-

7 a letter from the marriage counselor she and the Father sought marital counseling from, which stated, [J.W.] became very angry with therapist and left prematurely. She has not been back to the agency since that time. J.W. also indicated that the most recent domestic violence incident between her and her husband occurred in 2011 and that J.W. was the perpetrator. She threatened to kill her husband, and he filed for an emergency protective order. J.W. was ordered to vacate the residence. That order was still in effect when the Father died. J.W. generally minimized the issue of why the children were in foster care to begin with, and she demonstrated an attitude that it was ridiculous that her children were removed and that the Cabinet was seeking termination of parental rights. She repeatedly told Cabinet workers that she did not need substance abuse treatment. Upon further questioning, J.W. admitted that her children should have been removed when they were placed into foster care. However, she testified that she was pushed into entering in-patient treatment, that there was no need to do any follow-up treatment, and that she did not believe she had ever had an alcohol problem. After the termination hearing, on January 25, 2013, the Edmonson Circuit Court entered two separate orders terminating J.W. s parental rights with respect to each of her two children. This appeal timely followed. -7-

8 Our standard of review in termination of parental rights cases is set forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, (Ky. App. 1998): 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. Department for Human Resources v. Moore, Ky.App., 552 S.W.2d 672, 675 (1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR [Kentucky Rules of Civil Procedure] 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, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934). Furthermore, [t]he findings of the trial judge may not be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses. Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995), citing CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986). Under Kentucky Revised Statutes (KRS) , the Cabinet must meet a three-prong test in order to involuntarily terminate parental rights and establish that 1) the child is abused or neglected; 2) termination would be in the child's best -8-

9 interest; and 3) one of several listed grounds exists as enumerated in KRS (2). On appeal, J.W. argues that that the trial court erred in admitting into evidence and considering testimony pertaining to domestic violence. J.W. argues that the issue of domestic violence was rendered moot upon the Father s death. Thus, J.W. does not take issue with the first two prongs, but argues that the trial court did not consider her prognosis for improvement within a reasonable amount of time with regard to the abuse and her ability to care for the children s needs. KRS (5) affords a parent the opportunity to prove by a preponderance of the evidence that the children will not continue to be abused or neglected if returned to the parent. The trial court, in its discretion, may then determine whether or not to terminate parental rights. Essentially J.W. s argument is that because the Father is deceased, the domestic violence simply cannot continue, and thus evidence of such violence was irrelevant and inadmissible. The Cabinet counters that these children were removed from their parents due to the children being present during a domestic violence incident and because of J.W. s substance abuse problems. The Cabinet points out that both parents stipulated to neglect at the adjudication hearing, and that J.W. has not made significant progress on her case plan to have these children returned to her, resulting in the children remaining in foster care for fifteen out of the last twentytwo months. Thus, J.W. has not proved that she has had sufficient improvement in her ability or desire to parent the children to justify reunification. -9-

10 Particularly regarding the relevance of domestic violence evidence subsequent to the Father s death, the Cabinet argues that as there was no jury in this case, the trial court properly ruled that it could properly evaluate the relevancy of the evidence regarding domestic violence. The Cabinet argues that the evidence about the most recent incident of domestic violence, in which J.W. was the perpetrator of the violence, was particularly relevant in the instant case. We agree with the Cabinet that J.W. cannot show that it was clearly erroneous for the trial court to admit the evidence about the initial instance of domestic violence that gave rise to both the neglect petition and the ultimate termination petition. We also agree that the trial court could determine the relevancy of the evidence concerning domestic violence. J.W. testified that she is happy and in a healthy relationship now. The social worker and the children s therapist testified that J.W. did not follow through on her case plan, despite her admitted knowledge that the only way to get her children back was to do so. Thus, while J.W. presented evidence that she had improved somewhat, the trial court was in the best position to judge her credibility against the credibility of the social worker and the counselors involved in this case. It was not clearly erroneous for evidence about the initial domestic violence issues that instigated the termination action to be admitted by the trial court. In no way does the record reflect that the bulk of the testimony was about the domestic violence. Rather, our review of the hearing indicates that the parties spent the vast majority of the time discussing -10-

11 J.W. s alcohol abuse and the steps she did or did not take with regard to her treatment plan to address this issue. J.W. s only other argument on appeal to this Court is that the trial court erred by focusing solely on J.W. s past behavior and did not give proper consideration to her ability to parent the children going forward. J.W. cites to our decision in M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846 (Ky. App. 2008), wherein this Court vacated the trial court s order terminating parental rights. We concluded that the Cabinet had failed to satisfy its burden of establishing grounds for termination because all of its proof focused upon past behaviors without any significant evaluation of the future parenting capacity of the natural parent. Id. at 855. We agree with the Cabinet that the instant case can be distinguished from M.E.C. In that case, the mother had availed herself of numerous services which might have been expected to bring about a reunion of the family. In the instant case, outside of the in-patient alcohol treatment, J.W. did not avail herself of the services available to her. She did not attend all AA meetings, she did not attend other required out-patient treatment for her alcoholism; in fact, she did not even admit that her alcohol abuse was an issue. The record reveals that J.W. downplayed her alcohol abuse, stating that she did it to deal with her stress but did not feel she had a drinking problem. Furthermore, and importantly, the testimony was that she did not avail herself of the Cabinet s efforts to have her attend counseling sessions with the children or participate in their therapy in any material -11-

12 way. Thus, she did not, through counseling, place herself in a position to enhance her future parenting capacity. We are not persuaded that this case is analogous to M.E.C., and we do not agree with J.W. s conclusion that the trial court erred by only considering J.W. s past parenting and failed to consider her ability to parent going forward. Because the trial court s findings were supported by substantial evidence, they were not clearly erroneous. Accordingly, we affirm the order of the Edmonson Circuit Court terminating the parental rights of J.W. to her children, R.M.W. and C.J.W. ALL CONCUR. BRIEF FOR APPELLANT: David T. Sparks Bowling Green, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Mary Gaines Locke Munfordville, Kentucky -12-