Opinion
NO. 2015-CA-000844-ME
02-05-2016
A.L. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND G.L.L., AN INFANT APPELLEES
BRIEFS FOR APPELLANT: Donna M. Bloemer Covington, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-AD-00047 OPINION
AFFIRMING BEFORE: NICKELL, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: A.L. appeals from the Kenton Family Court's order terminating her parental rights and vesting custody of her minor child, G.L.L., in the Cabinet for Health and Family Services ("Cabinet"). For the following reasons, we affirm.
A.L. is the mother of G.L.L., born September 24, 2012. The father of G.L.L. is unknown. G.L.L. was born prematurely, at twenty-nine weeks, and was receiving treatment at Cincinnati Children's Hospital when the Cabinet filed a dependency petition on her behalf in Owen District Court. A petition was also filed on behalf of A.L. in Owen District Court, requesting an emergency appointment of a fiduciary for A.L., an allegedly disabled person.
A.L. is a victim of human sex trafficking. Two men were named as possible fathers of G.L.L., the husband and son of A.L.'s captor. However, no paternity testing has been conducted and G.L.L.'s father remains unknown.
The Owen District Court granted the Cabinet temporary custody of G.L.L. After the parties relocated to Kenton County, both cases were transferred to the Kenton Family Court. On December 20, 2012, the court placed A.L. under state guardianship after a jury found her to be wholly disabled in managing her personal affairs and financial resources. A.L. has remained in a state foster home since December 22, 2012.
On May 9, 2013, the court held both an adjudication and disposition hearing. The court found G.L.L. to be dependent and adopted the Cabinet's recommendations, including placing G.L.L. in the Cabinet's custody and assigning A.L. a case plan. A.L.'s case plan included requirements that she attend counseling at the Women's Crisis Center, outpatient therapy at North Key Community Care, cooperate with the permanency plan, and participate in supervised visits in order to enhance her attachment with G.L.L. and as well as learn the skills necessary to safely and appropriately parent on her own. A.L. was also referred for a psychological exam, and efforts were made to place A.L. and G.L.L. in a joint foster home.
A.L.'s case manager eventually found this service to be inappropriate for A.L., and A.L. did not return to the service.
At some point, the Cabinet changed the case plan goal from reunification to termination and adoption. A termination hearing was held on January 22, 2015. At the time of the termination hearing, A.L. was still participating in supervised visitation and therapy. She also remained under state guardianship.
Testimony at trial showed that while A.L. participated in counseling, therapy, visitation and all other requirements of her visitation plan, her caseworkers determined that the requirements were not appropriate for A.L. In an attempt to find suitable services for A.L., the Cabinet provided her with Parent-Child Interactive Therapy ("PCIT"), a service appropriate for parents with intellectual disabilities. A.L. participated in PCIT, but after three sessions, the parenting educator at PCIT determined that PCIT was not appropriate. A.L. was unable to do what was asked of her during sessions, to retain skills from session to session, and to move beyond basic supervision skills. A.L. was psychologically assessed by Dr. James Rosenthal, who concluded that A.L. has an intellectual disability. A.L. has a full scale IQ of 53 with a diagnosis of moderate mental retardation. Dr. Rosenthal further opined that A.L. has no room for improvement and no amount of training or completion of programs will change her inability to safely parent and provide for a child's needs. On May 1, 2015, the trial court entered a judgment terminating A.L.'s parental rights. This appeal follows.
A.L.'s caseworkers further testified that A.L. has no hope of improvement in parenting skills and would never be able to complete a parenting plan to satisfaction. This fact is particularly important given G.L.L.'s significant and complex medical needs.
The Kentucky Supreme Court described the standard of review in termination of parental rights cases as follows:
To begin, we note that 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 .N H., 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.Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014).
Pursuant to KRS 625.090, in order to involuntarily terminate parental rights, the trial court must find by clear and convincing evidence: 1) the child is an abused or neglected child as defined by KRS 600.020(1); 2) termination is in the best interests of the child; and 3) one of the grounds enumerated in KRS 625.090(2) exists. First, the trial court must determine whether the child is abused or neglected. KRS 600.020(1) states:
Kentucky Revised Statutes.
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide
specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child;(Emphasis added). In this case, the trial court found that A.L. had failed to make sufficient progress towards the case plan goal of reunification since A.L. was unable to learn necessary parenting skills, which resulted in G.L.L. remaining committed to the Cabinet and in foster care for 15 of the most recent 22 months.
9. Fails 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 and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months[.]
Next, the trial court must determine whether termination is in the best interests of the child. The factors to be considered by the trial court in determining the best interests of the child are listed in KRS 625.090(3).
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.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 or 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;
(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;Here, the trial court found that termination was in G.L.L.'s best interest given A.L.'s intellectual disability and G.L.L.'s medical and emotional needs. The trial court also considered the fact that G.L.L.'s foster family, with whom she is doing well, can meet those needs and has indicated a desire to adopt her.
(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.
Lastly, no termination shall be ordered 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:
(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;The trial court found that both KRS 625.090(2)(e) and (j) were met in G.L.L.'s case. A trial court may only order termination of parental rights when all three required elements of KRS 625.090 have been met.
. . . .
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
On appeal, A.L. makes three arguments. First, she claims that the trial court erred in finding that G.L.L. was neglected pursuant to KRS 600.020(1)(a)(9) because A.L. complied with all goals specifically identified in her case plan. Next, she argues that her intellectual disability alone is insufficient to support a finding of neglect or termination; she maintains that some willful failure to comply with the Cabinet's case plan or intentional neglect of G.L.L. is necessary to a finding of neglect and termination of her parental rights. Lastly, A.L. contends that the Cabinet failed to provide her with reasonable reunification services and accommodations in violation of the Americans with Disabilities Act ("ADA").
First, A.L. claims that the trial court erred in finding G.L.L. to be neglected pursuant to KRS 600.020(1)(a)(9). KRS 600.020(1)(a)(9) states that a child is abused or neglected when his or her health and welfare is threatened by a parent that
[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 and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months[.]A.L. maintains that she complied with all of the identified goals and tasks in her case plan: she attended therapy, participated in supervised visitation, complied with court orders, maintained employment, and attended PCIT classes until they were deemed inappropriate. While this is true, the clearly identified, overarching goal of the case plan was to safely return the child, G.L.L., to her parent, A.L. Unfortunately, the evidence presented at trial indicates that A.L.'s intellectual disability renders her unable to learn to safely and independently parent G.L.L. Therefore, we must agree with the trial court's conclusion that A.L. failed to make sufficient progress towards the goal of becoming a safe parent and guardian for G.L.L.
Both parties acknowledge that G.L.L. has been in foster care for 15 of the last 22 months, so that element of KRS 600.020.(1)(a)(9) is not an issue. --------
Next, A.L. argues that her intellectual disability alone is insufficient to warrant a finding that G.L.L. is neglected. She claims that some willful failure to comply with the Cabinet's case plan or some intent to abuse or neglect is required for a finding that a child is abused or neglected. In support of this argument, A.L. points out that in R.L.R. v. Cabinet for Health & Family Servs., 2010-CA-001829-ME, 2011 WL 2436810 (Ky. App., June 17, 2011), the case mentioned in the trial court's termination order, the mother's parental rights were not terminated solely because of her intellectual disability and her evaluating psychologist's opinion that she could never adequately parent a child, no matter the amount of training provided. A.L. is correct that in R.L.R., the intellectually-disabled mother also failed to comply with the orders contained in her case plan and exposed her children to prostitution, sexual abuse, and a violent father.
Nonetheless, we must interpret the language of KRS 600.020(1)(a)(9) as written. See Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (stating "[s]tatutes must be given a literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required[]"). The language of KRS 600.020(1)(a)(9) does not include an element of intent. If the legislature had intended to include an element of intent in this subsection, it would have done so. This conclusion is further evidenced by the fact that numerous other situations listed in KRS 600.020(1)(a) as constituting abuse or neglect of a child include an element of willfulness or intent. See, e.g., KRS 600.020(1)(a)(1), (5), (7). Thus, willful or intentional failure to make progress towards identified case plan goals is not necessary to a finding that a child is neglected pursuant to KRS 600.020(1)(a)(9); any failure to make such progress is sufficient.
A.L. next argues that the Cabinet failed to provide her with reasonable reunification services in violation of KRS 620.020(11) and (12) and discriminated against her as a disabled person in the providing of services in violation of the ADA. A.L. claims that the Cabinet should have made greater efforts to find a parenting education program better suited to A.L.'s needs. She further argues that she should have been allowed to complete the entirety of the PCIT program, and that Dr. Rosenthal should have reevaluated her after her training to better assess whether she was capable of parenting. However, we do not believe, given Dr. Rosenthal's opinion of A.L.'s intellectual capabilities, that any of these accommodations would have benefitted A.L. We believe the Cabinet made more than reasonable efforts to provide A.L. with the services and education it hoped would allow A.L. to be reunited with G.L.L.
Finally, we find no cause of action for an ADA violation in a termination of parental rights scenario, and A.L. has provided no legal support for the application of the ADA to this case. Furthermore, we believe the Cabinet made considerable efforts to accommodate A.L.'s intellectual disability by providing multiple education and reunification services aimed at teaching her the skills necessary to parent. Unfortunately, the Cabinet can only do so much in these instances.
We agree with the trial court that the Cabinet proved by clear and convincing evidence that G.L.L. is neglected. While we sympathize with A.L.'s plight, we believe that given A.L.'s inability to meet G.L.L.'s needs, termination of her parental rights is in G.L.L.'s best interests.
The order of the Kenton Family Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Donna M. Bloemer
Covington, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp
Covington, Kentucky