M.L.J. v. Cabinet for Health & Family Servs.

Full title: M. L. J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jan 10, 2014

NO. 2013-CA-000295-ME (Ky. Ct. App. Jan. 10, 2014)

Opinion

NO. 2013-CA-000295-ME NO. 2013-CA-000296-ME NO. 2013-CA-000300-ME NO. 2013-CA-000301-ME

01-10-2014

M. L. J. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE AND B. M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT, M.L.J.: A. Jason Baute Carrollton, Kentucky BRIEFS FOR APPELLANT, B.M.: Crystal L. Heinz Milton, Kentucky BRIEFS FOR APPELLEE: Cynthia Kloeker Florence, Kentucky

LAMBERT

NOT TO BE PUBLISHED

APPEALS FROM CARROLL CIRCUIT COURT

HONORABLE A. BAILEY TAYLOR, SPECIAL JUDGE

ACTION NOS. 12-AD-00006 AND 12-AD-00007

APPEALS FROM CARROLL CIRCUIT COURT

HONORABLE A. BAILEY TAYLOR, JUDGE

ACTION NOS. 12-AD-00006 AND 12-AD-00007

OPINION

AFFIRMING

BEFORE: LAMBERT, TAYLOR, AND VANMETER, JUDGES. LAMBERT, JUDGE: M.L.J. and B.M. have appealed from the Carroll Circuit Court's January 15, 2013, findings of fact, conclusions of law, and judgments terminating their parental rights to their two children, A.M. and W.M. Finding no error or abuse of discretion, we affirm the judgments on appeal.

M.L.J (the Mother), born December 31, 1986, and B.M. (the Father), born June 11, 1956, are the biological parents of two children: a daughter, A.M., born in June 2006 (Child 1); and a son, W.M., born in May 2008 (Child 2). The parents were never married to each other. At the age of eighteen, the Mother moved in with the Father and his wife, L.M., as well as their two older daughters. While living in the house together and with the knowledge of L.M., the Mother and the Father began a sexual relationship which resulted in the birth of their two children. The Mother lived in this household, on and off, for several years.

The household has a long history of substantiated neglect and domestic violence, as detailed in the University of Kentucky Comprehensive Assessment & Training Services (CATS) assessment reports dated March 28, 2012. Juvenile Dependency, Neglect, and Abuse (DNA) petitions were filed against the parents in Carroll District Court on January 19, 2011, by Cabinet for Health and Family Services worker Tara Walker. In the petitions, Ms. Walker stated:

[Child 1 or Child 2] is at risk of harm due to ongoing domestic violence between his parents [the Father] and [the Mother] and [the Father's] wife [L.M.]. [The Mother] has been recommended by [the Mother's] therapist that she have mental health treatment, however, [the Mother] has failed to follow through with this. [The Mother] over the last couple of years has been transient and unstable. She has gone back and forth between [the Father's] home and her family's home. She has failed to protect the children by leaving the children with her mother [name omitted] who had her rights terminated and has significant mental health concerns. On 1-14-2011 [the Mother] was arrested for violation of an EPO.

At that time, the Mother's sister was exercising custody or control of the children. Following a temporary removal hearing that day, Child 1 and Child 2 were removed from the home, placed in the temporary custody of the Cabinet, and entered into foster care due to the Mother's transiency (she and the children had moved out of the Father's house at this time), untreated mental health issues, exposing of the children to domestic violence, violating an EPO/DVO, and leaving the children with inappropriate caregivers. Child 1 had been hospitalized the prior month for making suicidal statements, and she made allegations of abuse and sexual abuse against the Father and her half-sisters. Both children were committed to the Cabinet for Health and Family Services (the Cabinet) pursuant to orders of the Carroll District Court entered January 19, 2011. The court entered a finding of neglect by both parents after an adjudication hearing on June 13, 2011.

The disposition hearing was rescheduled several times. The Father requested a continuance to obtain another attorney on July 6, 2011, and on the next date, August 17, 2011, he indicated that his attorney was not able to attend. The hearing was finally held on September 14, 2011. Prior to the hearing, the Cabinet filed a dispositional report, detailing the history and current status of the case as of July 1, 2011. The report indicated the Cabinet's efforts to prevent the children's removal: "Before removal a case plan had been developed, home visits were conducted and a referral was made to NorthKey." The report also detailed the Cabinet's efforts to reunify the family, if the children were removed:

A case plan has been developed with both parents to address the issues related to the removal of [the children]. As per [the Mother's] case plan she has attended parenting classes, sessions at the Women's Crisis Center and has received medication from her doctor regarding her mental illness. [The parents] are maintaining attachment by speaking with their children Tuesday, Thursday and Saturday and visiting on Fridays. The Cabinet will be requesting a UKCATS assessment to help this family. This assessment is part of [the Father's] case plan, but effects [sic] the entire family.

Because the case plans had not been fulfilled, the Cabinet did not recommend a return to the parents, but it kept the permanency goal as reunification. The Cabinet also addressed whether any relatives could provide possible placement for the children, but none was appropriate due to past histories with the Cabinet or the inability to manage the children. The Cabinet recommended a CATS assessment for a thorough evaluation, which it stated would help the family fulfill their case plan objectives. Specifically for the parents, the Cabinet recommended that they cooperate with the Cabinet, complete a domestic violence assessment, complete a CATS assessment, and follow the recommendations of both assessments.

At the hearing, the district court began by stating that the case was set for disposition. The father did not have an attorney as he could not afford to pay the one he had hired, so the district court appointed a guardian ad litem (GAL) to represent him and stated it was going forward with disposition that day. The district court reviewed the report as set forth above, and it adopted all of the recommendations in the report, including the completion of the CATS assessments. The Cabinet indicated that the CATS team would be contacting the parents to start the assessments and that the assessment would be all-encompassing, including domestic violence recommendations. The district court informed the parents that depending on what the CATS assessments revealed, additional assessments might be required. The court scheduled a review for November 9, 2011, as a CATS assessment generally takes six to eight weeks to complete. By order entered September 15, 2011, the district court memorialized its oral rulings and ordered that the children were to remain in the custody of the Cabinet and ordered CATS and domestic violence offender training (DVOT) assessments.

The cases were again before the district court on November 9, 2011. At the hearing, a new attorney, Mr. Holland, made his first appearance for the Father and noted that the Father objected to the disposition recommendations, including the finding of neglect and his children being placed away from him. He noted that it had been nine months, but the court reminded Mr. Holland that the continuances were due to the Father's problems retaining an attorney. The Father's counsel still wanted the matter expedited. The Cabinet stated that the CATS assessments were scheduled for January, so progress was being made. The parties then discussed supervised visitation for the upcoming holidays, but the record does not establish if a solution was reached. In its written order, the court adopted the recommendation of the Cabinet and scheduled the cases for review the following year. At a permanency hearing on March 28, 2012, the court again adopted the recommendations of the Cabinet. At a review on May 23, 2012, the court scheduled a hearing on the CATS assessments for later that year.

The district court eventually scheduled an evidentiary hearing for August 29, 2012. Prior to the hearing, the Cabinet filed a report providing the court with a detailed history of the case as well as the recommendations contained in the CATS assessment reports. The Cabinet described the children's current situation as follows:

[Child 1] is currently in special education classes at her elementary school. [Child1] has an IEP to help target her delays. It has been reported to this worker that [Child 1] has tantrums daily and is extremely violent. Recently [Child 1] hit a pregnant teacher in the stomach which caused her to go on homebound. [Child 1] has exhibited these problems with her foster parents. [Child 1] was recently admitted to NorthKey Hospital for 2 weeks due to her extreme behaviors. [Child 1] is extremely violent with her foster parents and brother. She is currently receiving therapy weekly through the foster care agency. [Child1] is also on medication to help manage her behaviors. [Child 1] has made progress on her speech.
She is able to pronounce certain words that she was unable to pronounce before. The school reports that [Child 1] is extremely bright. [Child 1] received multiple tests through the middle school and through NorthKey which have resulted in [Child 1] no longer being diagnosed as mildly mentally retarded. [Child 1] does continue to exhibit symptoms of PTSD and continues to carry that diagnosis.
[Child 2] is doing well in his current placement. [Child 2] was unable to transfer to a Headstart program in his current county but is on the waiting list. [Child 2] exhibits behaviors that are normal for a child his age. [Child 2] does have trouble with speech and has received speech therapy in the past. [Child 2's] speech has improved and continues to improve each day. [Child 2] has had no behavioral problems since the last review.

The Cabinet recommended that the parents follow all recommendations of the CATS assessment reports and fully cooperate with the Cabinet, that the children remain committed to the Cabinet, and that the permanency goal be changed to adoption.

At the start of the August 29, 2012, hearing, the district court indicated it was holding the hearing because the parents objected vehemently to the CATS reports and it wanted to provide them with the opportunity to question the witnesses regarding the results of the assessments. The district court heard testimony from Dr. James Rosenthal, a licensed psychologist from NorthKey Community Care, and from Dr. Jennifer Alderando, a licensed psychologist with the CATS multidisciplinary team. Dr. Rosenthal testified first.¹ Dr. Alderando testified that the purpose of the assessments was to determine whether the Mother or the Father could parent their children. She discussed the CATS assessments, including the risk factors for each parent and the recommendations for the children. Based upon the results, the CATS team did not recommend a return of the children to either parent and the team was unable to make any recommendations that could be put in place to mitigate the risks. She indicated that lack of contact between the Mother and the Father was not enough to address all of the risks because other clinical factors were at play.

1 Dr. Rosenthal and Dr. Alderando also testified at the termination of parental rights hearing, and their testimony is set forth in detail later in this opinion.

At the conclusion of the hearing, both parents argued that the district court should not follow the results of the CATS assessments or the Cabinet's recommendations. The Mother argued that the CATS team did not do a psychological mental health assessment on the parents, but merely followed past reports. The Father shared the same objection and noted that the Cabinet's report did not completely set forth Dr. Rosenthal's and the CATS assessment recommendations at the end of the report. The Cabinet, in turn, argued that the problem here was not a mental health issue, but a character issue; that it was not in the best interest of the children to return them to their parents; and that the district court should follow the recommendations of the CATS assessment reports. The children's GAL agreed with the Cabinet and CATS report and did not believe that the children should be returned to parents. The district court adopted the CATS assessment recommendations, with the exception of the recommendation for supervised visits, which the court ordered stricken. The district court also required the parents to follow the recommendations of CATS assessments.

Following the hearing and in keeping with its oral ruling, the district court entered an order on August 29, 2012, changing the permanency plan to adoption and ordering that the children remain committed to the Cabinet. The district court found that the children had been in foster care for fifteen of the last twenty-two months, that the Cabinet had requested a goal change to begin termination of parental rights, that the Cabinet had presented evidence to the court regarding the case and the progress of the children, that reasonable efforts had been made to finalize the permanency plans, and that the children's best interests would be served by following the Cabinet's recommendation based upon the evidence presented at the hearing.

On July 24, 2012, prior to the district court's ruling above, the Cabinet filed petitions in the Carroll Circuit Court seeking an involuntary termination of parental rights of both parents to their children. In the petitions, the Cabinet alleged that the parents had failed to protect and preserve their children's fundamental right to a safe and nurturing home; that the children were abused and neglected as defined in Kentucky Revised Statutes (KRS) 600.020; and that it was in the children's best interests that parental rights be terminated. A trial date was set for October 26, 2012, but just prior to trial, the parents filed motions for an independent psychological examination by an independent psychologist of his or her choice and paid for by the Cabinet. The Cabinet objected to the motions, arguing that additional evaluations were unnecessary because both parents had been evaluated in addition to the CATS assessments and the circuit court did not have the authority to order the Cabinet to pay the cost of cumulative psychiatric or psychological assessments. The court denied the motions by calendar order entered October 22, 2012.

The circuit court held the termination of parental rights hearing on October 26, 2012, as scheduled. Dr. Rosenthal, a licensed psychologist at NorthKey Community Care, was the first witness to testify for the Cabinet. He did a psychological work-up of the Mother upon the request of the Cabinet in early 2012, but was unable to complete his assessment because she did not appear for all of the evaluation dates. Dr. Rosenthal completed an assessment based upon the first day of the Mother's evaluation, although he would have liked to have completed additional testing. In the assessment, Dr. Rosenthal discussed the Mother's past history of abuse and neglect, her limited academic development, and her multiple placements as a child. Her presentation was depressed, and she reported a suicide attempt. He was unable to perform IQ testing or a personality inventory, but he would have if she had the ability to read adequately. He diagnosed the Mother with Depressive Disorder NOS and Personality Disorder NOS with cluster B traits, which was her primary diagnosis. He indicated that her personality disorder could be addressed through therapy and sometimes with medication, but it would take a considerable amount of time for her to become functioning. He did not review any other records prior to writing his report because the Mother had not signed any releases that would allow him to do so, but he was able to review records later that had been provided by the Cabinet. The records reflected the Mother's stay in a psychiatric hospital as well as other psychiatric treatment. She had been in state custody since 1997 and her parents had been abusive to her. He was not surprised about her convictions for assault, burglary, arson, and alcohol intoxication based upon her diagnoses, including borderline personality disorder, based upon her lack of insight and impulsivity. Her issues were very chronic.

Dr. Rosenthal completed an assessment of the Father in January and February 2012. The Father denied experiencing any abuse as a child or any mental health issues in his family. He related to Dr. Rosenthal that he married his second wife quickly (after a week) because his former wife said she would get married before he did, and he said she would not. He lived with his wife and children along with the Mother and his children with her, but he did not see anything wrong with this. Dr. Rosenthal found this very odd and clinically significant in exposing the children to this type of lifestyle. He reported that the Mother came to live with his family when she was eighteen years old, and she stayed there, on and off, for about six years. He said that the Mother came on to him and that he resisted her advances as long as he could. He did not believe his wife minded that he had two children with the Mother. Dr. Rosenthal described his decision-making as rash and impulsive. The Father reported that he had completed the ninth grade and quit school to go to work. Dr. Rosenthal noted the Father's criminal history, including convictions for aggravated assault and terroristic threatening, and his history of substance abuse. Based upon testing, the Father's IQ was 84, in the low to average range. He worked better with his hands, and his verbal skills were lacking. He noted that the Father was irritated by the evaluation process, but he did not present as depressed. Dr. Rosenthal did not find any mental disorder under Axis I or Axis II, and he was not able to complete the MMPI personality inventory due to the Father's inability to read. He recognized antisocial features in his behavior, but not enough to support a diagnosis of antisocial personality disorder. The Father did not report having any past psychological assessments or a history of mental illness, but the Cabinet presented an assessment from NorthKey from 2000. Dr. Rosenthal was not aware of the 2000 report. For the 2012 evaluation, Dr. Rosenthal recommended marital counseling due to his guarded presentation and his long-term extramarital affair in his home that had resulted in the birth of two children.

Dr. Rosenthal agreed that it would be important for the court to consider the Father's wife's assessment in making any decision in this case. Dr. Rosenthal saw L.M. on July 9, 2012, his fourth attempt to see her due to her cancellations. She reported domestic violence was occurring in the home and was aware of the Father's affair and resulting children. He diagnosed L.M. with Major Depression, recurrent, under Axis I, as well as Mild Mental Retardation and Dependent Personality Disorder under Axis II. He recommended that she continue therapy and treatment with her provider, attend a women's crisis center program, and discuss whether marital counseling was appropriate with her counselor. Without seeing the children, he was unable to state whether L.M. could protect them. He noted that L.M. was not consistent in keeping her therapy appointments.

On cross-examination, Dr. Rosenthal expressed grave concerns that the Mother could care for her children based upon her history and diagnoses. This also depended upon the children and whether they had behavioral or developmental issues. When asked whether the details of the Mother's arson charge (she started a fire to stay warm) would change his opinion, Dr. Rosenthal stated that his opinion would not change because her actions showed poor insight, lack of judgment, and impulsivity. He had no information about the Mother's current treatment or whether she was still taking her medication. He recommended long-term counseling but stated that medication would not cure her personality disorder or how she interacted with her environment.

Records from NorthKey established that the Mother had sought treatment after the time of the assessment. The GAL asked about the Mother's compliance with mental health treatment, but Dr. Rosenthal indicated that he did not review that information. Dr. Rosenthal went through her records and identified several "no shows" and cancelations of appointments. He agreed that the CATS assessment reports would be the best information about the family and recommendations. Her prognosis for improvement was poor.

Regarding the Father, Dr. Rosenthal stated that he was compliant with what he asked him do to, and he did not diagnose him with a mental disorder. His concerns were his legal history, immoral behavior, and how he was with providing care for the children. Dr. Rosenthal stated that he had no information to consider about how the Father was providing care for the children when making his evaluation, but he stated this would be important for the court to consider in making its decision. On redirect examination by the Cabinet, Dr. Rosenthal denied that the Father had informed him about domestic violence incidents. He also testified that the Mother had not been compliant with her own treatment.

Dr. Alderando was the next witness to testify telephonically. She is a licensed psychologist with the CATS multidisciplinary team, where she compiles data gathered by team members into a report form, facilitates a meeting and analysis of the data, finalizes the report, and submits it to the Cabinet. The Cabinet generally provides questions it would like answered regarding functioning. She completed a report related to the children in this case, and she provided a description of how the assessment took place. She testified that the Father was not assessed regarding his interactions with the children because he had not seen them for a long enough time. Based upon the evaluation, she noted that the children presented with many needs and that the parents had been offered an adequate opportunity to engage in services, but that both parents exhibited several risk factors for future maltreatment of the children. The CATS team could not come up with a plan to permit reunification that would mitigate the risk of future maltreatment and address the needs of the children. She testified regarding the services offered to the parents, noting that the team had reviewed the case plan, with which they found no problem. The problem was with the parents and with the team's determination that the prognosis for change was poor and any changes that might be made could not be made in a timely fashion.

Dr. Alderando's conclusion and recommendations were that the children should not be returned to either parent. The team could not formulate a plan that would result in reunification. For Child 1, who was five years old at the time of the assessment, the team recommended therapy to help with behavioral issues and coping skills, and it did not recommend visitation with her half-sisters. Her mental health diagnoses were PTSD, Disruptive Behavior Disorder NOS, rule out ADHD and Oppositional Defiant Disorder, neglect of child, child victim of sexual abuse, mild mental retardation, and speech impediment. Child 2's mental health diagnoses were rule out ADHD, neglect of child, and speech impairment. The team's recommendation for Child 2 was that he continue to be monitored at school for behavioral issues.

Dr. Alderando testified regarding the risk factors each parent exhibited. The Mother's risk factors were unresolved trauma; low motivation to engage in treatment; failure to acknowledge the children's exposure to violence; her experience of violence and the impact on the children; her inability to consistently meet the children's basic and special needs; her inability to avoid criminal justice involvement and limited insight into how her actions affect her ability to be a consistently safe and effective caregiver; poor support system; and possible low intellectual functioning, which would impair her ability to learn new skills. The Father's risk factors were his failure to acknowledge the scope of violence in the home, neglect, dysfunctional family dynamics, and the impact on his children; a pattern of self-involvement and denial of any difficulties; failure to work his case plan; failure to fully engage in the process to begin treatment to address neglect and violence; failure to utilize services already provided; poor relationships and low motivation to maintain a relationship with the children; making statements that he did not want the children if their mother was still involved in their lives; and minimizing Child 1's mental health needs and having poor plans for meeting the children's specialized needs. Regarding the allegation of sexual abuse of Child 1, the team determined that the claim had been unsubstantiated, but that some sexual exposure or act was still a clinical issue that should be addressed in treatment and that Child 1 should be monitored for signs.

On cross-examination, Dr. Alderando stated that the Mother had been asked to complete a psychological assessment, which had not been done; that she had completed her parenting class, but was continually arguing and did not fully engage or technically complete it; and that she had visited with her children until she was incarcerated. Regarding whether her release from incarceration would have an impact on the recommendations of the report, Dr. Alderando testified that she could only speak to what had happened during the assessment because no one had been seen since then. The arrest revealed limited insight on the Mother's part. At the time of the report, there was no plan the team could come up with that would mitigate the risks fully. The Mother could not improve her risk factors in a timely manner, which is why the focus moved to permanency of the children.

Regarding the request for the CATS assessments, Dr. Alderando testified that the request was made in September 2011. She agreed that the Mother was compliant and did nothing to delay the evaluation. The Mother did not receive a copy of the report until the September 2012 hearing, although the report had been completed March 28, 2012, and had been overnighted to the Cabinet at that time. Dr. Alderando was not aware of anything the Mother had done after the assessment was made regarding her cooperation or compliance.

Regarding the Mother's interaction with Child 1, Dr. Alderando stated that they enjoyed interacting with each other and she displayed some good parenting skills, but lacked structure. Regarding Child 2, the CATS team saw good skills exhibited by the Mother, and she appeared comfortable and engaged with him. Dr. Alderando did not observe the Father with the children.

The next witness to testify was Kathy Resetar, who provides private parenting classes that are generally twelve sessions in length. Both parents were in her class and attended all twelve sessions. None of the classes were pleasant, as the Mother and the Father fought with each other. Every class included an argument over their children. The Mother would say the foster parents were awful and mean to the children; the Father would deny that Child 1 had any special needs. The Father could not understand why he had to take the classes. One of the classes dealt with anger; the Mother stated that she would drink a beer to deal with anger, which Ms. Resetar said was inappropriate. The Father did not answer the question. She testified that the Father only completed the classes because he had to be there. He scored the same on the pre-and post-tests, while the Mother scored one better on the post-test. The Mother was a little more engaged in the classes, while the Father just "sat there" and did not want to be present. Both the Mother and the Father needed more classes. The Father's wife attended all of the sessions as well. The Father's older daughters attended the anger session, and they became very upset and cried over the arguments between the Mother, the Father, and L.M. (their mother). The three adults' behavior during the anger class showed that they had no regard for the children in the room, which Ms. Resetar stated was very inappropriate as they should have been concentrating on their parenting skills. The Cabinet had recommended that all three parties participate in the classes together. She only passed the Father because he attended all twelve classes, although he did not participate or understand why he was there.

The next witness to testify was P.H., the foster mother for the children. At the time of the hearing, the children were six and four years old, respectively. They were placed with P.H. on February 10, 2012, and the children were not visiting with their parents at that time. The Father had decided not to visit, and the Mother was unable to obtain transportation. The Father began one-hour supervised visitation every other week at the DCBS office around March. Many visitations were rescheduled or canceled at the last minute; he attended about 60% of the visits. The visits ended in June. The children enjoyed their visits with the Mother, but displayed defiant behavior afterwards. Child 1 would urinate all over her room after visits. Child 2 would become aggressive and smear feces. Visitations began with the Mother when she was released from incarceration in July and stopped at the end of August based upon a court order. P.H. was not sure when the Father's visitations stopped. She testified that after visits, the children's aggressive behavior increased and would last for a couple of days. Child 1 had temper tantrums that would last for many hours at a time, and she would be extremely violent, attacking her brother. Behavioral problems, including fecal smearing and urination throughout the house, ended when visitation ended. In addition, Child 1's tantrums had decreased, she was not as defiant, she began bonding well at home, and she was somewhat less manipulative in her behavior. Child 2 became less aggressive; he had been acting aggressively across the board. He did not talk as much about cutting his neck and the necks of others.

P.H. testified that Child 1 acted out sexually, masturbated in public, and talked about sexual acts she had witnessed. She was receiving therapy and medication for her mental health issues, which helped control her impulsive behavior. P.H. reported that therapy was helping Child 1, and she was able to talk about how she was feeling, providing "glimmers of hope." Child 1 had been placed on homebound school due to her violent behavior, but she had since returned to school on August 15. She had improved and was almost on par for her age, having made tremendous strides in her behavior and education between August and October. She had seen her parents maybe one time since she started school. Child 2 was receiving therapy and had been referred for behavioral intervention through the Headstart program. P.M. stated she wanted to adopt both children if the court terminated parental rights.

On cross-examination, P.H. related an incident with Child 1 when the children first came into her care. Child 1 fell off the swing in the back yard, got her shirt dirty, took all of her clothes off, and began a tantrum. She had to be carried into the house, where she ran around, hitting her brother, trying to break the television screen, knocked magazines and candles off of a table, and knocked over a coffee table and dragged it into her room. This lasted several hours. P.H. called an emergency line for guidance as to how to de-escalate the tantrum, and Child 1 was admitted to NorthKey. P.H. also related her opinion that the acting out after visitations appeared to be play-acting of domestic violence episodes, quoting the children as saying, "There are the cops, put your hands behind your back!" and "I'm going to cut your neck!" P.H. admitted that the children loved their parents and missed them, and that they talked about wanting to live with them.

Tara Walker was the next witness to testify. Ms. Walker is a social worker for the Cabinet. She works with families where abuse or neglect has been substantiated. She currently works with the family at issue in this case. The facts leading to the removal were the Mother's transiency, the Mother's failure to seek help for her mental health issues, the children's exposure to domestic violence in the home among all three adults, and exposure to the Mother's parents whose rights had previously terminated. The Mother had also been arrested for violating an EPO when she was found at the Father's home. The children were first placed with the Mother's sister; she was unable to handle the children. She was pregnant, and Child 1 punched her in the stomach. No other relative placement was appropriate. The children had remained in foster care since January 19, 2011. The adjudication hearing was held in June 2011, after a series of postponements. The Cabinet had requested the district court to order CATS assessments in March 2011, but the request was denied because the adjudication had not been held and the Father had objected. After the adjudication, the district court found that both parents had neglected their children. The disposition hearing was held September 14, 2011. At that time, the district court ordered the CATS assessments as well as the DVOT assessment, which was coupled with the CATS assessments. A few days later, she sent in the referral for the CATS assessments.

Ms. Walker testified that the district court found that reasonable efforts had been made to reunify the family and changed the permanency goal to adoption. When asked whether either parent had abandoned the children, Ms. Walker testified that the Father did not visit for a period of time starting in December 2010, telling her that he did not want to confuse the children and would be okay with termination of parental rights if the Mother was not going to have anything to do with the children. When the Mother returned to jail in February 2012, the Father resumed his visits. He continued to visit until the end of August 2012, when the court ordered visitation to stop because it was not in the children's best interest. Prior to that time, the parents would visit with the children on a biweekly basis. Ms. Walker stated that the Mother was always engaged with the children, while the Father did not interact with them, but instead sat and watched. Regarding discipline, she saw the Mother redirect the children once and saw her restrain Child 1 when she was having a tantrum. She saw the Father redirect the children once.

Ms. Walker testified about the family's history of domestic violence, and the Cabinet introduced certified copies of the parents' respective criminal convictions. Ms. Walker stated that the parents had failed to provide essential parental care and protection for a period of six months, noting that several cases had been entered and that the Mother had been transient. Incidents of domestic violence in the home put the children at risk of physical and emotional injury. Food had not been an issue for the family; transience and domestic violence had been the big issues. The children had been in foster care for fifteen of the last twenty-two months; their stay in foster care would reach two years in January.

The Cabinet instituted treatment plans with the parents after the children were placed into foster care. The problems identified with the Mother were her mental health, parenting skills, transiency, allegations of drug use, and exposure to domestic violence. The Cabinet wanted to help her with stability, such as getting an apartment, which she did in January before she returned to the Father in March when the EPO had been resolved. The Mother had also taken parenting classes. Ms. Walker planned to address feedback from the parenting counselor that the Mother needed additional classes, but the Mother needed to address her mental health issues first. For mental health treatment, the Mother went to NorthKey for counseling and to her general practitioner for medications. She also went to Dr. Rosenthal for psychological treatment. The Cabinet offered to provide services regarding the domestic violence. The Mother had related several incidents of domestic violence - the Father would beat her in the closet, there was a hole in the wall behind the dresser where he had thrown her into the wall while she was pregnant, he threatened to hurt one of the children to calm that child down, he had pulled her around by her hair, and he had beaten her. The children could hear what was going on, but were not present to see it, according to the Mother's reports. The Cabinet offered services at the women's crisis center, and the Mother completed the sessions in the Owen County DCBS office. Ms. Walker did not know if she took the counselor's domestic violence training to heart.

The Cabinet also helped the Mother find shelter at the end of November 2011, where she stayed for less than two weeks until she moved in with a relative. She lived with the relative until January 2012, and then lived with her mother until she was incarcerated for burglary and, later, for arson. The Mother did not have independent housing, and she stayed with her grandmother when she was released from incarceration. Therefore, Ms. Walker provided the Mother with services to obtain housing, including a housing sheet with Section 8 housing information, as well as telephone numbers for food, furniture, and other resources.

Ms. Walker testified that the Mother was on disability and did not work. She did not find drug use to be a problem based upon the Mother's negative drug test, but she was not aware of any further mental health counseling. Ms. Walker had not seen any significant changes in the Mother, other than that she was no longer living with the Father. She had recently gotten herself in some situations that appeared to show that she had gone backwards in her treatment, which placed the children more at risk.

Ms. Walker wanted to get the comprehensive CATS assessments done to see what the family dynamics were. She wanted to know how the domestic violence had impacted the children and adults, what the relationships between all of the adults were, and if they could all live together with the risks in place. This would also permit the Cabinet to put in place a plan that would work. However, the CATS assessment reports did not set forth any plan that would work to reunify the family. Ms. Walker reported that the Father's biggest problem was his violence, which the Cabinet had been dealing with since 1997, and exposing his children to disputes with his wife and the Mother. The Cabinet wanted to help with parenting, noting that the children had exceptional needs. The assessments were necessary so the Cabinet could move forward with a better plan.

For the Father, Ms. Walker stated that the Cabinet had provided him with services for domestic violence, including the CATS assessments, treatment with Dr. Rosenthal, and parenting classes. The Cabinet also did home visits. The Father had two case plans in place; one for this case, and another one for his other family members, including L.M. and two daughters. In December 2011, Ms. Walker stated that the two daughters had been removed due to domestic violence. The Father completed Dr. Rosenthal's evaluation and parenting classes. Despite the services offered, Ms. Walker did not believe he had made any significant changes that would put the children less at risk. She noted that his other children were returned to him based upon an agreed order in another county and with another judge, and it included a condition he have no contact with the Mother and comply with the Cabinet, among other requirements. He had tried to contest the no contact order numerous times.

Ms. Walker was present when the Father made threats against the Mother in December 2010, after she had received a referral on the family. Ms. Walker interviewed the Father, and he stated that the EPO was "just a piece of paper" and was not going to stop him from killing her. He received a conditional discharge for his criminal conviction for making these statements. The Father had not been cooperative with the Cabinet, refusing to sign documents and calling Cabinet workers liars. He did sign a plan in December 2011, which was a joint plan with both sets of family members. Regarding his parenting skills, Ms. Walker testified that she had to make him engage with the children during visitation, which he did after encouragement. He did not engage with them on his own. The Father's visitation ended at the end of August. Ms. Walker could not identify any lifestyle changes since the Father had received services. The Cabinet would need to see consistent changes, including no reports of domestic violence and lifestyle changes that would reduce the risk to the children.

Regarding Child 1, Ms. Walker stated that she has a diagnosis of PTSD. The Cabinet took her to Our Lady of Peace around Christmas prior to her entering foster care. At the age of four, she ran into the street threatening to kill herself. She was admitted for several weeks and received the diagnosis during her stay. She was also diagnosed with being a victim of abuse and given a provisional diagnosis of mild mental retardation. Regarding Child 2, Ms. Walker stated that he did not have any diagnoses at that time. His behaviors had increased and decreased over time. The children were initially placed in a foster home in January 2011, where they stayed until May 2011. They were moved because the foster parents feared for their safety. The Father made the foster mother uncomfortable during telephone conversations and told the foster parents he knew all about them, including where they lived. The children were in the second foster home from May 2011 to February 2012. The foster family did not have any problems taking care of the children, despite their behaviors, but the foster mother was overwhelmed with her other children and her teenage daughters having children. The foster mother also spanked Child 2, prompting the children's move to another foster home.

During their stay in foster care, Ms. Walker testified that the children's physical and mental health had improved. With Child 1, she began with a diagnosis of mild mental retardation. In 2012, she was reassessed at NorthKey. She was no longer considered mildly mentally retarded and had made amazing progress with her speech. Her behavior had gotten much better, and she had not been kicked out of school. Child 2 had also improved. Ms. Walker stated that he underwent a procedure in 2011 to clip his tongue, which helped with his speech. Ms. Walker described both children as bright and stated that their behavior had improved since being removed from the parents. Ms. Walker expected the progress to continue if the children remained in a safe and stable environment, such as the one they were in, and they would be able to overcome all of their challenges.

Ms. Walker testified that neither parent had demonstrated the ability to take care of the children based upon the special care the children needed, the Mother's own issues, and the Father's lack of change related to violence since 1997. Ms. Walker stated that there was no reasonable expectation for improvement in either parent, noting how long the domestic violence had been going on and that the Mother was not capable of taking care of both herself and her children and completing normal daily tasks involved with that. No additional services were available to return the children to the parents. Ms. Walker believed that termination of parental rights was in the best interest of the children in order to establish permanency and progress further with their foster family.

On cross-examination, Ms. Walker explained that the Mother's problems did not lie with her ability to engage and bond with her children. Rather, her problems were in her ability to manage and handle daily tasks due her mental health issues, which she did not consistently address. When asked whether the Mother had been given time since August 2012 to address the issues in the CATS assessments, Ms. Walker said she had much more time to address these issues, although she agreed that two months from the time the parties received the CATS assessment reports (August 29, 2012) was not a reasonable amount of time for the Mother to accomplish what she needed to do. However, Ms. Walker did not believe that the Mother would be able to make reasonable improvements in a reasonable amount of time that would allow her to take care of herself and her children.

On cross-examination by the Father, Ms. Walker discussed the reasonable efforts the Cabinet had provided, but once the Cabinet received the CATS assessment reports back without any recommendations included, there was not much the Cabinet could do at that point to safely reunify the family. She could not identify any significant lifestyle changes, noting that the Father's compliance with the Cabinet was based upon the agreed order in the other case. Pursuant to the terms of the agreed order, he was required to comply or face six months in jail. Ms. Walker believed that the Cabinet had exhausted all reasonable efforts for the Father. On cross-examination by the GAL, Ms. Walker testified that the Cabinet had encountered issues getting the CATS assessments ordered based upon the scheduling of the disposition and that the assessments took six months to complete.

On redirect examination, Ms. Walker testified that the wait time for a CATS assessment is generally 90 days or more, which was consistent in this case. The Cabinet continued to offer services during that time, including visitation and a referral for marital counseling in the companion case between the Father and his wife.

The final witness to testify was the Mother, who was 26 years old at the time of the hearing.² She admitted to having received a five-year probated sentence for the arson conviction. Her last contact with the children was a supervised visitation a week or two before they started school. She exercised unsupervised visitation between November 2011 and December 2011 or January 2012, when it was changed to supervised based upon an incident with her mother during a visitation when she took the children to her aunt's house. The Mother had been taking her medication for panic attacks and depression since January 2012, but had stopped doing so three weeks ago when she decided she wanted to take a different route to see how she would do without medication. She reported that she was getting counseling through the probation and parole office, if she needed to talk to the counselor. She was no longer seeing Dr. Steinberg because her medical card did not cover his services, but she was currently seeking medical treatment through another provider. She stated that she had had numerous panic attacks since the children had been in the care of the Cabinet.

2 The Father did not choose to testify.
--------

Regarding her housing situation, the Mother stated that she lived in a one-bedroom apartment in Carrollton, where she had been living since her release from jail about a month prior to the hearing, but she hoped to move into a two-bedroom apartment where she would have room for the children. She stated that the apartment would cost $550.00 per month, and she would have to pay for electricity. If she received custody of the children, she would apply for TAPP benefits, which would help support the children. She also planned to apply for benefits for Child 1. The Mother stated that she been receiving SSI disability benefits from the time she turned eighteen because of her low reading level. She noted her difficulties working at Burger King.

The Mother stated that she was under an agreement in the other case to have no contact with the Father, but she had nothing to do with that agreement. She stated that she would follow any requirements of the Cabinet to keep her children and that she had been cooperating with the Cabinet. She wanted to reunify with the children and questioned whether the Cabinet had done anything to reunify the family. She stated that the Cabinet kept giving them more tasks to work on the case plan, but she had been continuing to work on her plan through completing parenting classes, seeking counseling from the women's crisis center, and moving from the Father's residence in November 2011.

The Mother believed that she was capable of caring for Child 1, noting that she had enrolled her in NorthKey before she was removed. She said that she would find the necessary services for both children, noting that she would have free transportation to take them to appointments. The children's shot records were up-to-date and she had WIC services before their removal. She blamed the Cabinet for her instability, and she did not believe the Cabinet had done anything to protect her children. She said she loved and cared for her children, and would do anything to protect them. She admitted that she had made mistakes, but she knew it was time for her to start acting like a parent to her children. The Father would be the next alternative if she did not get custody.

On cross-examination by the Cabinet, the Mother stated that she had seen Gary Marshall, her counselor, once this year. She did not know the name of the doctors or practice she was seeking treatment from. She did not have a copy of a lease showing that she had independent housing or any receipts for her rental payments. On cross-examination by the Father, she stated that she and the Father took the children to the doctor when they were sick. She did not know if the Father had ever been violent to their children, and was not aware how he treated his adult children. She did not identify any behavioral problems when the children lived with her and the Father, stating they knew better than to do such things as spread feces in the home. School officials reported a few behavioral issues with Child 1, when she did not want to get on the bus and had outbursts in classrooms. The Mother thinks the Father had a good bond with the children, and she remembered that the Father would want to play ball with them and take them to the park. She stated that he was a good father to the children and met their needs. On cross-examination by the GAL, she admitted that she had testified in the past that there was domestic violence between her and the Father.

At the close of the testimony, the circuit court permitted the parties to make closing arguments. The GAL stated that all three elements of the statute had been met: the children had been declared to be neglected or abused, they had been in foster care for fifteen of the last twenty-two months, and based upon the CATS assessment reports and testimony, removal was in their best interest. The Father argued that the Cabinet had not introduced any evidence of any violence to the children and that the prospect of improvement of the children's welfare alone was not enough to justify termination of parental rights. If the children were to come home, the parents would be able to handle any needs the children might have, with the oversight of the Cabinet. The Father pointed to his daughters at home, who were thriving, as well as the Mother's testimony that he was a good father. He requested that the children be returned. The Mother argued that based upon fairness and due process concerns, the time delay regarding the CATS assessments violated her rights and she was not provided with enough time to work on and complete a case plan. She suggested that the court provide her with additional time through another assessment or court order to complete a case plan for supervised visitation, then permit the parties to arrive at a point where it could be determined whether reasonable efforts had been made and whether the parents had made progress. She also argued that the time period should have been tolled due to the delay in receiving the CATS assessment reports.

The Cabinet argued that it met its burden in establishing the grounds necessary to support termination and that it was in the children's best interest that parental rights be terminated. In support, the Cabinet pointed to the Mother's mental health issues and that the district court made a finding that the Cabinet had made reasonable efforts to reunify the family. The Cabinet stated that the parents had completed some parenting classes, but had not made the necessary lifestyle changes to justify reunification, noting that domestic violence had continued. Furthermore, the CATS assessment reports did not include any recommendation that would alleviate the risk of harm if the children were returned to either parent.

The court entered an oral ruling granting the Cabinet's petitions to terminate the parental rights of both the Mother and the Father. The court's concern was that the parents lacked the ability, either by choice or emotional makeup, to give the children the care that they deserved and needed. The testimony was uncontroverted that there had been vast improvements since the children had been placed into foster care and that the parents had failed to provide parental care and protection and necessities of life.

During the course of the hearing, the parties discussed the date of the dispositional hearing; the court determined that the district court had held this hearing on September 14, 2011, pursuant to the district court's file. The circuit court indicated that it would use this date for purposes of the termination proceedings. The parents raised constitutional due process objections because it took too long to move for termination of parental rights after the dispositional hearing.

On January 15, 2013, the circuit court entered its findings of fact, conclusions of law, and judgments, in which it memorialized its oral ruling and terminated the parental rights of the Mother and the Father. The court found, based upon the evidence presented at the hearing, that both parents had, for a period of six months, continuously or repeatedly failed or refused to provide essential parental care and protection for their children, and there was no reasonable expectation of improvement; that for reasons other than poverty alone, the parents had continuously or repeatedly failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well-being and there was no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future; that the Cabinet had rendered or attempted to render all reasonable services to the parents which might be expected to reunify the family and no additional services were likely to bring about a reunification; that the children had been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months; and that it was in the best interests of the children that parental rights be terminated. Accordingly, the circuit court terminated the Mother's and the Father's parental rights and declared the children to be wards of the state in the custody of the Cabinet, with the authority to place the children for adoption. These appeals by both parents followed.

Before we may reach the merits of these appeals, we must address what could potentially be a jurisdictional impediment in that none of the four notices of appeal filed in these consolidated appeals named the children as appellees. In R.L.W. v. Cabinet for Human Resources, 756 S.W.2d 148, 149 (Ky. App. 1988), this Court held that "children shall be necessary parties to any appeal from an action terminating, or failing to terminate their parents' parental rights." The Court dismissed the appeal, stating that, "[f]ailure to name an indispensable party is grounds for dismissal of an appeal." Id. citing Yocom v. Franklin County Fiscal Court, 545 S.W.2d 296 (Ky. App. 1976).

However, cases rendered since that time have softened the effect of this ruling under certain circumstances. In R.C.R. v. Com. Cabinet for Human Resources, 988 S.W.2d 36, 40 (Ky. App. 1998), this Court recognized that Blackburn v. Blackburn, 810 S.W.2d 55 (Ky. 1991), had "relaxed the standards for compliance with CR [Kentucky Rules of Civil Procedure] 73.03[.]" The R.C.R. Court noted that unlike the situation in R.L.W., "the children were named in the caption of the notice of appeal as being the party 'in the interest of' whom the appeal was filed. Moreover, the children's guardian ad litem was served with copies of all relevant pleadings." Id. The Court concluded that "the inclusion of the children's names in the caption of the notice of appeal was sufficient to confer upon this Court jurisdiction over the children, to provide the parties with fair notice of the appeal, and to identify the parties thereto." Id. See also Morris v. Cabinet for Families and Children, 69 S.W.3d 73, 74 (Ky. 2002) ("Appellants' notice of appeal named the minor child, CJM, in the caption, and, although he was not included in the certificate of service, copies of the pleadings were provided to the child's guardian ad litem. These factors together substantially comply with the requirements of CR 73.03 and provided sufficient notice to all parties concerned that the minor child was also an Appellee.").

In the present cases, we have already stated that none of the notices of appeal named the children as parties to the appeals. Further review of the Mother's notices (and amended notices) of appeal establishes that the children's names were listed in the captions and that the children's GAL was served, which provided the children with fair notice that the appeals had been filed. More problematic are the notices of appeal filed by the Father. The children were not named anywhere in the notice, either in the body or in the caption. However, the notices were served upon the children's GAL, which we will again hold provided the children with sufficient notice that the appeals had been filed. Therefore, we hold that both parents have invoked the jurisdiction of this Court, despite the deficiencies in the notices of appeal.

In her appeals, the Mother presents three arguments: 1) that the unreasonable delay in completing the CATS assessment reports violated her statutory and constitutional rights and therefore the Cabinet failed to meet reasonable efforts to reunify her with her children; 2) that she was improperly denied the opportunity to obtain her own mental health evaluation; and 3) that the Cabinet failed to establish by clear and convincing evidence that her rights should be terminated pursuant to KRS 625.090. In his appeals, the Father presents four arguments: 1) that the trial court improperly terminated his parental rights pursuant to KRS 625.090; 2) the delay in obtaining the CATS assessment reports violated his due process rights; 3) the trial court failed to comply with KRS 625.090(6) by making a decision within thirty days to terminate parental rights or dismissing the petition, thereby violating his due process rights; and 4) the trial court failed to consider his defense that the Cabinet did not make reasonable efforts to reunify him with his children. We shall consider the arguments collectively when appropriate.

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, 116-17 (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 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, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934).

We also recognize that the United States Supreme Court has emphasized the fundamental nature of the liberty interest natural parents have for the raising of their child:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982) (footnote omitted). I. DELAY IN COMPLETING CATS ASSESSMENTS

The first issue we shall address is whether the six-month delay in completing and obtaining the CATS assessment reports violated the parents' due process rights. Both parents essentially argue that the Cabinet did not make reasonable efforts to reunify the family. The Father contends that the district court kept continuing the disposition from November 2011 until the evidentiary hearing was held in August 2012, and that the Cabinet had the reports in its possession for five months prior to the hearing, but did not make any new referrals to help the family reunify. Furthermore, he did not have time to complete any foreseeable plan the Cabinet might create after the CATS assessments had been completed. The Mother contends that she was led to believe that the children could not be returned until the CATS assessments had been completed and she had completed the recommendations. Because the CATS team did not give any recommendations to effect a reunification of the family, it was impossible for the Mother to complete the case plan. In response, the Cabinet contends that neither parent sought review of the district court's order for any claimed due process violations in relation to the CATS assessments via an appeal to the circuit court and that the juvenile record reflects that disposition was held in September 2011 as the circuit court found.

First, we agree with the Cabinet and the circuit court that the disposition was held by the district court on September 14, 2011. The August 29, 2012, hearing was held to address the results of the CATS assessments. We also do not perceive any unusual delay in the scheduling of the assessments and the completion of the associated reports. While we do question why several months elapsed until the parents (or their attorneys) obtained the results of the assessments, we do not see any harm in the late receipt because the CATS team was unable to offer any recommendations that would address the risks posed by the parents in a reasonable amount of time. Additionally, we agree with the Cabinet that neither parent chose to appeal any due process violations arising from the alleged due process violations.

We find no merit in the parent's arguments that the Cabinet failed to make reasonable efforts to reunify the family. In termination of parental rights proceedings, one element the court must consider and decide is whether the Cabinet has made reasonable efforts to reunify the family:

In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
. . . .

(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[.]

KRS 625.090(3). KRS 620.020(12) defines "reunifications services" as "remedial and preventive services which are designed to strengthen the family unit, to secure reunification of the family and child where appropriate, as quickly as practicable, and to prevent the future removal of the child from the family[.]" As the Cabinet argues, the record is replete with evidence concerning the Cabinet's efforts to offer services to both the Mother and the Father to effect a reunification, including parenting classes, psychological and psychiatric evaluations and treatment, aid with housing, visitation, and home visits. II. DELAY IN DECISION

Next, the Father argues that his due process rights were violated based upon the delay in the circuit court's entry of its judgment terminating his parental rights. He contends that the termination hearing was held on October 26, 2012, and that the judgment was not entered until January 15, 2013, eighty-two days after the statute requires. The Cabinet argues that the Father did not establish how this delay negatively impacted his due process rights.

KRS 625.090(6) provides that:

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.

In his brief, the Father quotes the above statute as stating that the failure to enter a decision within thirty days "is a violation of the parent's due process right." Nowhere in the statute is this statement to be found.

We agree with the Cabinet that the Father has failed to establish how his due process rights were violated in this regard. Rather, we perceive this thirty-day requirement as a means to address the expedited nature of termination proceedings and juvenile actions in general. III. FAILURE TO ORDER MENTAL HEALTH EVALUATION

Next, the Mother argues that the circuit court erred in denying her request to obtain an independent mental health evaluation at the Cabinet's expense, arguing again that her due process rights were violated. She asserts that because the CATS assessment reports did not provide any recommendations for a case plan, she should be allowed to obtain her own evaluation. We disagree.

The Mother underwent numerous mental health evaluations in addition to the CATS assessments, including assessments or evaluations at NorthKey and Caritas Peace Center. There was no need for additional assessments in this case. Furthermore, we agree with the Cabinet's argument below that the circuit court did not have the authority, pursuant to the separation of powers doctrine, to require the Cabinet to pay the cost for additional, cumulative evaluations as the Mother requested. "In actions involving the Commonwealth, the trial court may assess costs against the State, its officers, and its agencies, but the fees shall be imposed only to the extent permitted by law. CR 54.04." Department for Human Resources v. Paulson, 622 S.W.2d 508, 509 (Ky. App. 1981). IV. FAILURE TO CONSIDER DEFENSE THAT CABINET DID NOT MAKE REASONABLE EFFORTS

Next, we shall consider the Father's argument that the circuit court failed to consider his defense that the Cabinet did not make reasonable efforts to reunify the family. As the Cabinet stated in its brief, this is more of an argument related to the sufficiency of the evidence.

In its findings of fact, the circuit court made several findings related to the services the Cabinet offered to the family and the parents' lack of success in effecting any changes in their lifestyle:

9. . . . [The Father,] although he completed the tasks on his case plan, failed to incorporate what he learned into his lifestyle. He continued to engage in acts of domestic violence and his conduct in parenting classes was verbally aggressive and inappropriate. . . .
10. The Carroll District Court ordered that the family complete a UK CATS assessment to assist the Cabinet for Health and Family Services to determine if there was any conceivable case plan that could be put in place that would make reunification possible for this family. . . . Ms. Alderando testified that the prognosis for either parent to make changes in their lives to mitigate risk to [the children] in a timely manner is poor and the fit between the level of the children's needs and the adults to provide for those needs is also poor. Therefore, the CATS treatment team concluded that they could not generate a plan or foresee a scenario which would mitigate these risks for maltreatment or result in reunification.
. . . .
13. The Cabinet for Health and Family Services has attempted to render services either directly or by referral in an effort to keep the family together including working with the family while the [children were] placed in foster care. The Cabinet for Health and Family Services has offered services to the mother . . . for years, including when she was a juvenile. The Cabinet has offered services to this family unit since 2007, without the respondents demonstrating any significant lifestyle changes to lessen the risk of harm to the children. [The children] were removed in January of 2011 after the Cabinet had offered services to this family for four years.

The circuit court then concluded:

3. The Cabinet for Health and Family Services has rendered or attempted to render all reasonable services to the parents which reasonably might be expected to bring about a reunion of the family, no additional services are likely to bring about a reunion of the family, and no additional services are likely to bring about parental adjustments enabling a return of the child to the parents within a reasonable time, considerating the age of the [children.]

Based upon the circuit court's findings, we must reject the Father's argument that the circuit court failed to consider his defense that the Cabinet did not make reasonable efforts to reunify the family. Rather, the record establishes, and the circuit court properly found, that the Cabinet had offered services to the family to effect a reunification, but neither parent was able to demonstrate a lifestyle change that would lessen the risk of harm to his or her children. V. WHETHER TERMINATION OF PARENTAL RIGHTS WAS APPROPRIATE

Finally, we shall consider the parents' arguments that termination of parental rights was not supported by clear and convincing evidence and that the circuit court did not properly apply KRS 625.090.

The General Assembly provided the mechanism for the involuntary termination of parental rights in KRS 625.090. Pursuant to this statute, the Cabinet must meet a three-prong test and establish that 1) the child is abused or neglected; 2) termination would be in the child's best interest; and 3) one of several listed grounds exists. In deciding the second and third prongs, the circuit court is required to consider several enumerated factors, including "[i]f 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[.]" KRS 625.090(3)(c). We have already held that sufficient evidence supports the circuit court's finding that the Cabinet made reasonable efforts to reunite the family.

KRS 625.090(2) provides that "[n]o 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[.]" The list includes several grounds, but for purposes of this case, we shall limit our consideration to those grounds that the circuit court found, which 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;
. . . .
(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) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.

Furthermore, the statute requires the court to consider several enumerated factors set forth in KRS 625.090(3) in order to determine whether a ground exists:

(a) Mental illness as defined by KRS 202A.011(9), or mental retardation 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;
(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.

The Mother contends that the Cabinet did not meet its burden in establishing the three grounds listed above, and she specifically argues that the time provided for in KRS 625.090(2)(j) should be tolled based upon the delay in receiving the CATS assessment reports. The Father, in turn, argues that the district court did not make a finding of neglect as to him because he was not listed on the original petitions, and therefore the Cabinet did not establish that prong of KRS 625.090(1)(a). He also asserts that the circuit court only made findings on the factors in KRS 625.090(3)(a) and (e), which address the mental illness of a parent and the physical, emotional, and mental health of the child.

The circuit court found as follows:

7. The [parents] were living in a home with [the Father's] wife . . . together with the children from both relationships. [The children] were exposed to domestic violence between [the Mother,] [the Father] and [L.M.]. [The Mother] has mental health issues and has failed to follow through with recommended treatment. She has been transient and unstable. [The parents] failed to
protect [the children] from exposure to domestic violence and a lack of stability in their lives.

The court also addressed the parents' ability to complete their case plans. In addition to the statements above related to the Father's domestic violence and conduct in parenting classes, the court made the following findings about the Mother:

[The Mother] failed to complete mental health treatment and failed to make any significant lifestyle change even though she attended parenting classes. [The Mother] has a history of psychiatric hospitalizations, including Eastern State Hospital. [The Mother] has a number of psychiatric diagnoses, including post traumatic stress disorder, personality disorder and a mood disorder NOS. [The Mother] refused mental health treatment as she opined it was not of benefit to her. [The parents] have criminal histories related to theft, burglary, violence and alcohol.

Based upon our review of the record and consideration of the circuit court's findings, we must agree with the Cabinet that termination of parental rights was warranted. First, the children were adjudged to be neglected in the juvenile action, and both parents were before the court on the DNA petitions. Therefore, KRS 625.090(1)(a) has been met. Second, the evidence supports the circuit court's findings that several grounds existed. Certainly, the evidence clearly and convincingly establishes that the parents were incapable of providing essential parental care and protection for either child and there was no reasonable expectation of improvement pursuant to KRS 625.090(2)(e). The record is replete with evidence of ongoing domestic violence in the home, and neither parent successfully applied any skills they should have learned in the parenting classes to change their lifestyle. Additionally, the Mother has failed to successfully address her mental health issues. While the evidence is less overwhelming for the ground contained in KRS 625.090(2)(g), related to the failure to provide essential food, clothing, shelter, medical care, or education for the children's well-being, we also must agree that the Cabinet has established this ground so far as the children's medical and mental issues. Finally, we do not accept the argument that the time requirement of KRS 625.090(2)(j) should be tolled. The record is clear that at the time the termination of parental rights petitions were filed, the children had been in foster care for fifteen of the most recent twenty-two months. In making these findings, the court certainly considered the mental health issues the Mother had been experiencing and the Father's history of domestic violence, as well as the health of the children, both in the need to be free from domestic violence and from a dysfunctional home. And third, we agree with the circuit court that termination of parental rights was in the children's best interest to provide them with the stability and treatment they need to be healthy children and continue with their documented progress.

Accordingly, we hold that clear and convincing evidence supports the findings of the circuit court and that the circuit court did not abuse its discretion in terminating the Mother's or the Father's parental rights to their two children.

For the foregoing reasons, the judgments of the Carroll Circuit Court are affirmed.

VANMETER, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT, M.L.J.: A. Jason Baute
Carrollton, Kentucky
BRIEFS FOR APPELLANT, B.M.: Crystal L. Heinz
Milton, Kentucky
BRIEFS FOR APPELLEE: Cynthia Kloeker
Florence, Kentucky