Opinion
2021-CA-0745-ME
06-10-2022
R.L.M. APPELLANT v. D.L.N.; H.W.N., A MINOR CHILD; AND J.W.N. APPELLEES
BRIEF FOR APPELLANT: Ashley Wiggins White Paducah, Kentucky BRIEF FOR APPELLEES D.L.N. AND J.W.N.: Jennifer Mills Peek Paducah, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN FAMILY COURT HONORABLE DEANNA W. HENSCHEL, JUDGE ACTION NO. 20-AD-00089
BRIEF FOR APPELLANT:
Ashley Wiggins White
Paducah, Kentucky
BRIEF FOR APPELLEES D.L.N. AND J.W.N.:
Jennifer Mills Peek
Paducah, Kentucky
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
OPINION
CALDWELL, JUDGE:
R.L.M. ("Mother") appeals from the McCracken Family Court's termination of her parental rights to H.W.N. ("Child"). Mother argues that the family court erred in its application of statutes and in taking judicial notice of matters from the divorce and child custody case between Mother and J.W.N. ("Father"). Mother also asserts that the evidence presented was insufficient to constitute clear and convincing evidence supporting the findings required for termination. For the reasons expressed in this Opinion, we conclude that reversal is not merited after careful review of the record and applicable law. So, we affirm.
Pursuant to court policy aimed at protecting the privacy of the minor child, we do not refer to the child or to the other parties involved in this case by name.
FACTS AND PROCEDURAL HISTORY
The present case arose when D.L.N. ("Stepmother"), the wife of Father, filed a petition for adoption of Child. Father filed a notice that he consented to Stepmother adopting Child. Mother filed a response indicating that she did not consent to Stepmother adopting Child.
The family court elected to bifurcate the proceedings. In other words, it would determine whether to terminate Mother's parental rights before it determined whether to grant Stepmother's petition for adoption. No one objected to the bifurcation.
Following an evidentiary hearing, the family court entered findings of fact and conclusions of law along with an order terminating Mother's parental rights to Child in May 2021. The family court took note of certified court records admitted into evidence of five cases in which Mother had been criminally charged since 2019.
The family court took judicial notice of its findings made in the divorce and child custody case between Mother and Father - including its expressed concerns about Mother's mental health and substance abuse issues resulting in orders to obtain assessments, treatment, and drug screens. It also took note of findings about Mother's convictions in 2017 and 2018 for offenses committed in Child's presence - aggravated driving under the influence (DUI) with Child in the vehicle and harassment and disorderly conduct for an altercation which Child witnessed.
Based on judicial notice, the family court also found that primary residential custody of Child was shifted from Mother to Father due to concerns about Mother's mental health and substance abuse. Likewise, it found that Mother had been ordered to pay child support of about $200 a month and was awarded only supervised visitation until she presented a negative hair screen for drugs. It found that Father filed notices to deny visitation, in 2019, due to Mother's criminal charges and again, in 2020, due to concerns Mother had relapsed on drugs.
The family court found that it awarded Father sole custody based on concerns about Mother's mental health and decision-making ability in its December 2019 custody and timesharing order. It further found that it ordered Mother to submit to a nail drug screen in September 2020, which came back positive for methamphetamine. And it found "Mother has taken no action since that time to reinstate her visitation or inquire about the child's wellbeing [sic]." (Record ("R."), p. 40.)
The family court's written order made no explicit reference to statutes about adoption proceedings such as KRS 199.500 or KRS 199.502. Instead, it simply stated that proceedings to involuntarily terminate parental rights were governed by KRS 625.090. And it found Child to be an abused or neglected child - based on his having witnessed domestic violence, having been abandoned by Mother, and Mother's DUI with Child in the vehicle.
Kentucky Revised Statutes.
Though not alleged in the petition for adoption, the family court found that Mother had abandoned Child for a period of not less than ninety days. The family court specifically found Mother "took no action to see the child, inquire about the child, or any substantial effort to support the child for over ninety days." (R., p. 38).
As alleged in the adoption petition, the family court found that Mother had failed to provide essential parental care and protection for over six months and that Mother had repeatedly failed to provide necessities such as food and clothing for reasons other than poverty alone - and that there was no reasonable expectation of improvement in either regard given Child's age.
The family court terminated Mother's parental rights, but it did not rule upon the petition for adoption in its order. It also stated that this order was final and appealable and that there was no just cause for delay. Further facts will be discussed as needed.
STANDARDS OF REVIEW
As termination of parental rights is a very serious matter impacting significant constitutional rights, "utmost caution" is required, and termination of parental rights should only occur when statutory requirements are clearly met. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008).
Generally, we review a family court's application of the law to the facts de novo. K.H. v. Cabinet for Health and Family Services, 358 S.W.3d 29, 31 (Ky. App. 2011). We also review de novo questions of statutory interpretation - such as which statutes govern adoptions or terminations of parental rights - though we review evidentiary rulings for abuse of discretion. A.F. v. L.B., 572 S.W.3d 64, 69 (Ky. App. 2019).
We review the family court's findings of fact under the clearly erroneous standard set forth in CR 52.01, keeping in mind that findings to support termination of parental rights are constitutionally required to be by at least clear and convincing evidence. A.F., 572 S.W.3d at 69-70 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982)).
Kentucky Rules of Civil Procedure.
In other words, findings of fact will not be disturbed unless not supported by substantial evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
Error in Citing KRS 625.090 With No Reference to KRS 199.502 Harmless
First, Mother argues that the family court erroneously applied KRS 625.090 rather than KRS 199.502. Preservation of this issue appears to be questionable at best since Mother has not directed our attention to any portion of the record in which she made this argument to the family court.
Though Mother claims in her brief that all alleged errors were preserved by her demanding an evidentiary hearing and filing an appeal, we disagree with this contention. Neither asking for an evidentiary hearing nor filing an appeal effectively brought the issue of which statutes applied to the family court's attention before the appeal. See MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 2014) ("The critical point in preservation of an issue remains: was the question fairly brought to the attention of the trial court."). Furthermore, during closing arguments in the evidentiary hearing, Mother's counsel did not refer to KRS 199.502 and instead simply argued that the requirements of KRS 625.090 were not met, although Stepmother's counsel mentioned KRS 199.502. And Mother's appellant brief does not direct our attention to where in the record she advanced the argument that KRS 199.502 rather than KRS 625.090 applied.
Mother points out that a stepparent such as Stepmother is not among the types of parties expressly listed in KRS 625.050 as having the authority to file a petition for involuntary termination of parental rights under KRS 625.050(3).
As Stepmother lacked the authority to file a petition for involuntary termination of parental rights under KRS 625.050 and instead filed a petition for adoption, KRS 199.502 applies to the proceedings commenced by Stepmother since Mother did not consent to adoption. See also KRS 199.500(4). Yet the family court did not refer to KRS 199.502 or KRS 199.500 in its written order. Instead, it simply stated that KRS 625.090 governed proceedings for involuntary termination of parental rights.
As Mother correctly asserts, strict compliance with the statutory procedures set forth in KRS Chapter 199 is required in adoption proceedings. R.M. v. R.B., 281 S.W.3d 293, 297 (Ky. App. 2009). And although the family court had not yet ruled on whether Stepmother could adopt Child prior to the filing of this appeal, this case commenced with a petition for adoption and indisputably is an adoption proceeding.
Though this case was commenced as an adoption proceeding, the family court had not yet ruled on whether Stepmother's petition for adoption would be granted when it issued the order terminating Mother's parental rights. Therefore, though Mother cites KRS 199.520(1) in her brief, we need not address its requirement that before an adoption may be granted, a court must determine that all legal requirements for adoption (including jurisdiction) must be met since no adoption is before us. Furthermore, no one has directed our attention to an argument in any portion of the record that the family court lacked jurisdiction over the proceedings or the parties.
That being said, KRS 199.502 incorporates some of the same language as KRS 625.090 - despite the lack of explicit reference to KRS 625.090 specifically or to KRS Chapter 625 generally in KRS 199.502. Cf. KRS 199.500(4) (notwithstanding specified exceptions to parental consent requirements in KRS 199.500(1), allowing for adoption without the consent of the biological living parents "if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child.").
Unlike termination of parental rights under KRS 625.090, adoption without parental consent under KRS 199.502 does not require a finding that the child has been abused or neglected. See B.L. v. J.S., 434 S.W.3d 61, 67 (Ky. App. 2014). Still, the fact that the family court also found that Child was abused or neglected (a finding it was not necessarily required to make) does not necessarily mean that the family court failed to make the findings required to permit consideration of adoption without consent under KRS 199.502.
Similar to the required findings of parental unfitness in KRS 625.090(2), KRS 199.502(1) states in pertinent part that an adoption may be properly granted without a parent's consent only if the family court finds any of the specified conditions about the child such as:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . . .
(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[.]
This Court has noted substantial similarities between KRS 625.090(2) and KRS 199.502(1), and acknowledged that in some respects similar determinations must be made under these provisions. See R.M., 281 S.W.3d at 296 (finding no error in family court's allowing parties seeking adoption without parental consent to present evidence relevant to obtaining involuntary termination of parental rights under KRS Chapter 625 given similarities between KRS 199.502(1) and KRS 625.090(2)). And this Court has provided guidance concerning the interplay between adoption statutes in KRS Chapter 199 and involuntary termination of parental rights statutes in KRS Chapter 625.
As we stated in R.M.: "Provisions of KRS Chapter 625 are applicable only as permitted by KRS 199.500(4), and as specifically enumerated in KRS 199.502." Id. at 297. Ideally, the family court would have explicitly acknowledged in its written order the limited application of KRS Chapter 625 only as permitted by KRS 199.500(4) and KRS 199.502 instead of simply stating that KRS 625.090 governed involuntary termination of parental rights.
Nonetheless, the error in the family court's simply referring to KRS 625.090 without also referring to KRS 199.502 was harmless. The family court found failure or inability to provide essential parental care and protection for at least six months and repeated or continuous failure or inability to provide necessities - with no reasonable expectation of improvement in either regard. In doing so, the family court found at least one specified condition to permit considering granting adoption without consent required by KRS 199.502 - by clear and convincing evidence - pled in the adoption petition.
As permitting adoption without a parent's consent necessarily entails terminating the parent's parental rights, see, e.g., C.M.C. v. A.L.W., 180 S.W.3d 485, 489 (Ky. App. 2005), our precedent has recognized that required findings for adoption without consent must be made by clear and convincing evidence despite the lack of explicit reference to this standard in KRS 199.502. See, e.g., A.F., 572 S.W.3d at 70.
Even though the family court may not have explicitly referred to the correct governing statute, it made the required findings to permit considering whether to grant the adoption without Mother's consent. KRS 199.502(1). See also KRS 199.500(4). In short, we do not perceive that the family court's failure to explicitly refer to KRS 199.502 - standing alone - merits relief under the facts here. Cf. A.K.H. v. J.D.C., 619 S.W.3d 425, 432 (Ky. App. 2021) (reversing denial of stepfather's petition for adoption without consent as family court's error in requiring stepfather to establish all requirements in KRS 625.090 rather than simply meeting requirements of KRS 199.502 prejudiced stepfather). Instead, the family court's error in failing to cite KRS 199.502 and simply referring to KRS 625.090 was harmless as the error did not adversely affect Mother's substantial rights. See CR 61.01.
As an additional distinction, the stepfather in A.K.H. objected to the bifurcation of the proceedings. 619 S.W.3d at 428. In contrast, no one objected to the bifurcation of the proceedings in the instant case. See also A.F., 572 S.W.3d at 72 ("Our concern, however, is that neither Mother nor Father objected to a bifurcated proceeding. Any argument that bifurcation is not permitted by KRS 199.502, or that bifurcation in this case prejudiced Mother's and Father's defense of parental rights, cannot now be asserted because neither argument was preserved. . . . [W]e see no procedural impediment to bifurcating these the [sic] proceedings. Bifurcation, however, is not routine practice.").
No Palpable Error in Unpreserved Issues About Judicial Notice
KRE 201(b)(2) allows a court to take judicial notice of adjudicative facts which are "not subject to reasonable dispute" as a result of being: "Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Our Supreme Court has construed KRE 201 as setting a "high standard" for taking judicial notice of adjudicative facts since doing so "bypasses some of the fundamental requirements for verification and authenticity that otherwise safeguard the integrity of evidence." Marchese v. Aebersold, 530 S.W.3d 441, 447 (Ky. 2017).
Kentucky Rules of Evidence.
As Mother aptly points out in her brief, this Court has discussed how taking judicial notice in family court can be problematic since judges may be familiar with the parties from other cases before it. A judge may mistakenly rely on general impressions from a prior case instead of properly focusing on the evidence before it in the present case if he or she does not carefully apply rules regarding evidence and judicial notice. See S.R. v. J.N., 307 S.W.3d 631, 638 (Ky. App. 2010). Nonetheless, a court "may take judicial notice of its own records and rulings, and of all matter patent on the face of such records, including all prior proceedings in the same case." M.A.B. v. Commonwealth, Cabinet for Health and Family Services, 456 S.W.3d 407, 412 (Ky. App. 2015).
Mother argues the family court erred in taking judicial notice of statements in orders in the divorce and custody case which summarized disputes in witnesses' testimony without resolving such disputes through true factual findings. See S.R., 307 S.W.3d at 637 (Unless a court rules on "the truth or falsity of that evidence in the prior proceedings, thereby making it a judicially noticeable finding of fact, then that evidence cannot be judicially noticed."). But other than the previously mentioned incorrect statement that all issues on appeal were preserved by request for evidentiary hearing or by filing the appeal, Mother fails to indicate how this alleged argument about error in taking judicial notice was raised to the family court and therefore preserved for our review.
We conclude the argument about judicial notice is not properly preserved based upon our review of the record. Thus, we may review only for manifest injustice if we elect to review this unpreserved error at all. CR 61.02 (Palpable error affecting a party's substantial rights "may" be considered on appeal "even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."). (Emphasis added.) And after thorough review of the family court's findings and the record before us, we conclude that the family court's taking judicial notice did not amount to a palpable error affecting Mother's substantial rights and resulting in manifest injustice here. CR 61.02.
Perhaps because Mother perceived all issues to be preserved, Mother did not request palpable error review. Given the compelling interests at stake, this Court sometimes reviews unpreserved errors in termination of parental rights cases - even where palpable error review has not been requested. See, e.g., G.P. v. Cabinet for Health and Family Services, 572 S.W.3d 484, 489-90 (Ky. App. 2019). Nonetheless, Kentucky precedent generally indicates that unpreserved issues need not be addressed in the absence of a request for palpable error review unless there are "extreme circumstances amounting to a substantial miscarriage of justice[.]" See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008) ("Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to [Kentucky Rule of Criminal Procedure] RCr 10.26 unless such a request is made and briefed by the appellant."); see also Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018) ("The language of CR 61.02 is identical to its criminal law counterpart, RCr 10.26, and we interpret that language identically."). Assuming that this precedent applies in the context of a case terminating parental rights, perhaps we should decline to address the judicial notice issue at all given the difficulty of establishing "extreme circumstances amounting to a substantial miscarriage of justice[.]" Shepherd, 251 S.W.3d at 316. However, given the serious nature of termination proceedings, we will proceed with review.
Mother does not clearly assert any inaccuracy or other error in any particular findings based on judicial notice of the divorce and custody case. Instead, Mother generally argues the family court erroneously utilized statements in the divorce and custody case orders which were not true factual findings resolving disputes in testimony. But Mother fails to specifically identify the unresolved factual disputes at issue or discuss how they ultimately affected the family court's termination decision. And it is not our responsibility to make arguments for appellants. See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) ("It is not our function as an appellate court to research and construct a party's legal arguments, and we decline to do so here.").
Although the family court undoubtedly alluded to some divorce and custody case orders in which it had discussed disputes in testimony without resolving such disputes in its findings of fact, we do not perceive that the family court actually relied on one party's disputed testimony in making its findings nor does Mother pinpoint where this allegedly occurred. And to the extent that Mother intends to argue that the family court erroneously took judicial notice of pleadings filed by Father, a court may properly take notice of the fact that a pleading was filed though it should not take judicial notice of allegations in a pleading. Rogers v. Commonwealth, 366 S.W.3d 446, 451-52 (Ky. 2012). We construe the family court's references to pleadings filed by Father such as notices of intent to deny visitation as merely noting the fact these pleadings were filed.
Furthermore, though there is no dispute that the family court intended to take notice of its orders in the divorce and custody case, no orders from the divorce and custody case are in the record on appeal for this case for us to review. It is an appellant's responsibility to make sure that the record on appeal is complete so that the appellate court can properly review all allegations of error. Smith v. Smith, 450 S.W.3d 729, 731 (Ky. App. 2014). To the extent that the record is incomplete, we must resolve the appeal on the record before us and we can assume that omitted portions of the record would support the family court's decision. Id. at 732.
Given the lack of preservation of any issue with judicial notice and the lack of specific argument about how the family court's taking judicial notice actually prejudiced Mother, as well as the evidence supporting the findings of grounds for adoption without consent which we discuss next, we conclude any error in this regard does not merit relief.
Substantial Evidence Supports the Family Court's Finding of Failure or Inability to Provide Essential Parental Care and Protection
As our Supreme Court has directed, "judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). See also CR 52.01. Given the deference we must accord to the family court's judgments about the credibility of witnesses and the weight of the evidence, we cannot disturb its factual findings as they are supported by substantial evidence and therefore are not clearly erroneous.
The family court found multiple grounds required by KRS 199.502(1). Though it explicitly referred only to KRS 625.090 rather than also to KRS 199.502, the findings it made invoked the language of KRS 199.502(1) as well as KRS 625.090(2). See also KRS 199.500(4).
In the context of proceedings commenced with a petition to involuntarily terminate parental rights under KRS 625.050, it is sufficient to prove along with other requirements just one ground of parental unfitness in KRS 625.090(2). Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Similarly, one properly pled and proven ground for allowing consideration of adoption without a parent's consent is sufficient to satisfy KRS 199.502(1) - which requires pleading and proving "any of the following conditions exist[ing] with respect to the child[.]" (Emphasis added.)
We decline to address the sufficiency of the evidence for the finding of abandonment, which was not alleged in the petition for adoption. We also decline to address the sufficiency of evidence to support the finding of failure to provide necessities such as food or clothing. Nonetheless, the family court's finding, by clear and convincing evidence, of failure or inability to provide essential parental care and protection - with no reasonable expectation of improvement given Child's age - is not clearly erroneous.
The family court set forth in detail findings of fact concerning failure or inability to provide essential parental care for at least six months. See KRS 199.502(1)(e); KRS 625.090(2)(e). It found Mother had a "lengthy criminal history and ongoing criminal lifestyle" (R., p. 39) - based partly on taking judicial notice of findings in the divorce and custody case about Mother's 2017-2018 convictions for aggravated DUI and harassment/disorderly conduct offenses committed in Child's presence. The criminal history and lifestyle finding was also based on certified court records, admitted into evidence, regarding Mother's being charged with five or more crimes since 2019.
In addition to noting Mother's criminal history, the family court also found a long-standing history of mental health and substance abuse problems. The family court recounted how it expressed concerns about Mother's mental health and substance abuse issues and therefore ordered Mother to undergo assessments and obtain treatment for these issues in the divorce and custody case. And it found that Mother had failed to fully comply with its orders for obtaining assessments and treatment, despite taking note of Mother's testimony about some recent efforts to address mental health and associated issues:
Mother testified that she does not recall if she ever received the mental health assessment, but maybe she got one through a probation officer at one point. She testified that she took a substance abuse assessment in 2020 and no services were recommended. . . . The Respondent/Mother did not provide any documentation
to back up her claim that she has received treatment for substance abuse or mental health. She testified and provided documentation that in 2021 she has been receiving services from [a domestic violence crisis center] for being a victim of domestic violence. She believes the services received for being a victim of domestic violence should suffice for the mental health treatment requested by this Court. . . . She intends on enrolling in parenting classes [and] in therapy.(R., p. 40). This summation of Mother's testimony at the termination hearing is accurate based on our review. (Mother testified to having signed up for parenting classes and group therapy but that these classes and therapy would not begin until a few weeks after the termination hearing.)
The family court also took note of the trial testimony of Mother's domestic violence advocate at the crisis center about Mother's participating in education for domestic violence victims and seeming candid and forthcoming to the advocate. However, it also found that the advocate admitted that Mother did not tell her about her conviction for aggravated DUI and that the advocate was not aware of Mother receiving any substance abuse treatment. The family court accurately summarized the advocate's testimony based on our review.
In addition to finding a failure to obtain court-ordered assessments and treatment for mental health and substance abuse, the family court also noted Mother's positive drug screen for methamphetamine about six months before the termination hearing. The family court took note of Mother's disputing the accuracy of the drug screen and denying that she (Mother) took methamphetamine. And it noted that Mother testified to having prescriptions for Klonopin and opiates and taking them as prescribed, despite the drug screen's not detecting these prescription drugs. But the family court pointed to Mother's not providing a more current drug screen for its consideration.
In addition to the criminal history and failure to comply with court-ordered assessment and treatment and recent positive drug screen, the family court found that Mother had taken no action since the positive drug screen to "reinstate her visitation or inquire about the child's wellbeing [sic]." (R., p. 40). This finding is supported by substantial evidence, including Mother's admissions in her testimony that she did not ask Father about Child or request visitation with Child following the filing of the adoption petition, since she thought it would be best to work this out in court. The adoption petition was filed in October 2020, nearly six months before the evidentiary hearing on termination. Mother also admitted that she had not actually seen Child for several months before the termination hearing.
Though Mother testified to having her own mother (Child's maternal grandmother) ask Father about a Christmas visit via a text before the adoption petition was filed, she testified to not pursuing this or any other visitation requests further after the filing of the adoption petition.
These factual findings concerning Mother's failure or inability to provide essential parental care and protection are supported by substantial evidence - both documentary evidence, such as the criminal case court records and testimony from Mother and others including her domestic violence advocate. Overall, the family court found that Mother had made "minimal progress during the last three years" considering Mother's positive drug screen and her failure to submit proof of court-ordered assessments and treatment for mental health and substance abuse issues. (R., p. 41).
The family court also found that Mother had made some recent improvements "mostly geared toward being a victim of domestic violence" but that "improvement is not feasible in the foreseeable future." (R., p. 41). In essence, the family court found that there was no reasonable expectation of improvement in terms of Mother's ability to provide essential care and protection given the Child's age despite some recent efforts to improve:
Considering her history, she would need a very lengthy period of sobriety and stability to convince this Court that she has changed. The Court must consider the age of the child and this young child is entirely dependent on the person providing for his care. This heightens the expectation of progress and the Respondent/Mother has not met that expectation. This child deserves the permanency sought in the petition.(R., pp. 41-42).
The family court also found that Mother's testimony was not credible especially since Mother had "pled guilty to perjury in this very Court[.]" (R., p. 40). Mother accurately points out that she had pled guilty to perjury in McCracken Circuit Court rather than in McCracken Family Court - based on the certified criminal court records and the lack of evidence of a guilty plea to perjury in family court in the record before us. Nonetheless, the family court's minor misstatement on this point was harmless given the certified criminal records of Mother's entering a guilty plea to perjury in circuit court in the record on appeal. Furthermore, Mother's testimony at the termination hearing admitting that she pled guilty to perjury but denying that she committed perjury and admitting that she had a positive drug screen but denying drug use could have cast further doubt on her credibility and expectations for improvement in ability to provide parental care.
As Mother points out, she was not required to eradicate all problems immediately in order to avoid termination of her parental rights. See F.V. v. Commonwealth, Cabinet for Health and Family Services, 567 S.W.3d 597, 608 (Ky. App. 2018); M.E.C., 254 S.W.3d at 855. Instead, termination based on her failure or inability to provide essential parental care and protection required proof of no reasonable expectation of improvement by clear and convincing evidence. See KRS 199.502(1)(e); KRS 625.090(2)(e). Furthermore, courts must consider not only past conduct but also recent improvements in determining whether reasonable expectations of improvement in providing essential parental care and protection exist. M.E.C., 254 S.W.3d at 854.
Mother clearly testified to some recent improvements in her life - such as her obtaining employment, getting her medications adjusted, and participating in some services from the domestic violence crisis center. The family court considered these recent improvements, specifically finding Mother made some improvements in the weeks leading up to trial, including obtaining employment and receiving services for being a victim of domestic violence. But ultimately, despite these recent improvements, the family court still found a lack of reasonable expectation of improvement in terms of providing essential parental care and protection considering Child's age - based on reasons set forth in its findings and supported by substantial evidence.
Specifically, the family court found that Mother provided no documentation of proof of court-ordered substance abuse and mental health assessments for the divorce and custody case. Despite Mother's testimony about good intentions, the family court also essentially found that Mother had not yet enrolled in therapy or parenting classes or provided substantial financial support to Child. It found that Mother had a positive drug screen for methamphetamine in September 2020 and did not provide a current drug screen. The family court also found that Mother had "not taken any steps to treat her substance abuse." (R., p. 41). The family court also considered the young age of the child (five years old at the time of the termination hearing) and his being "entirely dependent on the person providing for his care." (R., p. 42).
Having carefully reviewed the record, the family court's findings explaining its finding of no reasonable expectations of improvement in Mother's ability to provide essential care and protection to Child are supported by substantial evidence. And though Mother argues similarities in her case which support relief, M.E.C. is clearly distinguishable. Despite any other similarities between Mother's and M.E.C.'s situations, the evidence indicated that Mother had not yet accomplished all that M.E.C. had by the time of the termination trial. See M.E.C., 254 S.W.3d at 854 ("At the conclusion of the trial, M.E.C. was in a substance abuse treatment center, had a full-time job, acquired parenting classes for herself, and had resolved most of her legal issues."). In contrast, Mother had signed up for parenting classes and therapy which had not yet begun at the time of trial and had not yet attended substance abuse treatment - though unlike M.E.C., Mother lacked the assistance of a case plan or a social worker to help her obtain services as her brief points out.
This is a difficult case. At first blush, it may seem that Mother's parental rights were unjustly terminated based largely on her not seeing Child when her visitation was at Father's discretion. And perhaps various orders in the divorce and child custody case appear problematic at least when viewed outside the complete divorce and child custody case record. Yet the merits of the family court's orders in the divorce and child custody case were not challenged by an appeal in that case and are not properly before us to decide in this appeal. Furthermore, the testimony presented, including Mother's own testimony, supports an inference that Mother's not seeing Child for several months before the termination hearing stemmed largely from her, admittedly, not requesting visitation. That coupled with evidence of Mother's recent positive drug screen and criminal history in recent years, as well as lack of compliance with court-ordered requirements for mental health and substance abuse assessments and treatment supports the family court's findings of grounds to consider adoption without Mother's consent under KRS 199.502(1)(e) by clear and convincing evidence.
The evidence was sufficient to support the finding, by clear and convincing evidence, of grounds to terminate based on failure or inability to provide essential parental care or termination with no reasonable expectation of improvement under KRS 199.502(1)(e). Given the deference we must accord to the family court's assessment of credibility and the weight of the evidence, we must affirm.
Further arguments in the briefs which we have not discussed herein have been determined to lack merit or relevancy to resolving this appeal.
CONCLUSION
For the reasons stated herein, the judgment of the McCracken Family Court is hereby AFFIRMED.
McNEILL, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION.