Opinion
NO. 2020-CA-0986-ME NO. 2020-CA-0987-ME NO. 2020-CA-0988-ME
04-16-2021
V.L.R.E. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, As Petitioner and Next Friend of M.E.R.E. APPELLEE V.L.R.E. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, As Petitioner and Next Friend of A.J.R. APPELLEE V.L.R.E. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, As Petitioner and Next Friend of C.J.C.R. APPELLEE
BRIEF FOR APPELLANT: John P. Sienkiewicz Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE LISA H. MORGAN, JUDGE
ACTION NO. 20-AD-00001 APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE LISA H. MORGAN, JUDGE
ACTION NO. 20-AD-00002 APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE LISA H. MORGAN, JUDGE
ACTION NO. 20-AD-00003 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. KRAMER, JUDGE: V.L.R.E. ("Mother") appeals three August 7, 2020 orders of the Scott Family Court respectively terminating her parental rights regarding her daughter, M.E.R.E, and her two sons, C.J.C.R. and A.J.R. She contends the family court should be reversed for three reasons. First, she asserts that the evidence adduced was insufficient to justify terminating her parental rights with respect to her three children. Second, she asserts the family court should reconsider its orders because of a post-judgment change of circumstances. Third, she asserts her counsel's performance during the proceedings below was deficient. Upon review, we affirm.
Receipt of the record in these matters took several months due to administrative delay resulting from staff reductions during the Covid-19 pandemic. The record was received in the presiding Judge's chambers on March 30, 2021.
As to Mother's first assertion, much of it involves the fact that G.O.R., Sr. - the father of two of her children - fathered four other children with another woman, K.B., and that many of the family court's findings in its respective orders discussed those four other children and K.B.'s conduct toward them, in addition to Mother's conduct toward her own children at issue in this matter. The four children G.O.R., Sr., fathered with K.B. are C.R. (born October 2011); C.R. (born January 2013); K.R.O. (born April 2014); and G.O.R., Jr. (born May 2015). Mother's children, who are the subjects of the instant appeals, are C.J.C.R. (born July 2013, fathered by W.R.); M.E.R.E. (born February 2015, fathered by G.O.R., Sr.); and A.J.R. (born June 2016, fathered by G.O.R., Sr.). Mother contends the family court erred by failing to consider her conduct separately from that of G.O.R., Sr., and K.B. and that the family court likewise failed to consider the evidence regarding her children separately from the evidence relating to G.O.R., Sr.'s four other children.
As discussed in depth below, the family court also terminated the parental rights of G.O.R., Sr. He did not appeal, and Mother did not name him as an appellee in this consolidated matter.
We disagree. For necessary context, we begin with the family court's summation of the evidence, which is consistent with the record and uncontested by Mother:
7. Stephanie Manley testified . . . for the Cabinet. Ms. Manley was the investigative worker in May 2017. Ms. Manley testified that [Mother] and [G.O.R., Sr.] share [A.J.R.] and [M.E.R.E.] [Mother] and [W.R.] share [C.J.C.R.] There are four other children that are the children of [G.O.R., Sr.] and [K.B.] They are in the permanent custody of a relative in Ohio.
The Cabinet first became involved with the family in May 2015 with [K.B.] and [G.O.R., Sr.] At the time, there were concerns of domestic violence, risk of harm, and lack of supervision. [G.O.R., Sr.] was alleged to be the domestic violence perpetrator and [K.B.] was alleged to have a substance abuse problem. The children were removed and placed with a relative in Ohio. The parents were offered services. [G.O.R., Sr.] was compliant and he ended up getting custody back of the four children in approximately December 2016.
The Cabinet next received a referral on May 24, 2017. [G.O.R., Jr.] was brought to the doctor's office by [G.O.R., Sr.] and [Mother] for a well-child visit. He had multiple bruises and injuries including a black eye, bruises on his back, a large bump on his head, and seven different stab marks that looked like they were made by a fork. He was two years old at the time and appeared underweight and malnourished. He weighed 12.6 lbs. at the time and had fallen off the growth chart. The pediatrician then sent the child and family to UK Hospital for a full evaluation. [G.O.R., Sr.] and [Mother]
reported that the child had been with his mother, [K.B.], and she caused the injuries. They admitted that they knew they were not supposed to leave the children unsupervised with [K.B.] because of the court order entered at the end of the 2016 case.
Ms. Manley testified hospital staff asked for the other children to come in for evaluations as well. Specifically, [A.J.R.] was found to have a healing fracture in his left forearm and left wrist. Some of the other older children had various injuries to other parts of their bodies as well. When Ms. Manley interviewed the parents, they denied knowing when and how the injuries occurred. There were some accusations by the parents that the children injured themselves or the siblings hurt each other. However, one of the stab wounds on [G.O.R., Jr.] went all the way to the bone and could not have been done by a child. The parents also stated that [G.O.R., Jr.] was a picky eater and they had been told to give him pedialite and iron. However, they reported to the hospital that he coughs a lot but was a good eater. Ms. Manley further testified that the parents reported they were fearful of [K.B.] so when she would come over to the house and want to take the children, they let her. As a result of these concerns, all seven children were removed from [Mother] and [G.O.R., Sr.] The oldest four eventually went to the relative near Dayton, OH where they were placed in the 2015 case. [M.E.R.E., C.J.C.R.], and [A.J.R.] were placed via prevention plan with a family friend. This friend violated the prevention plan by allowing the kids to be unsupervised with [G.O.R., Sr.] and [Mother] so the Cabinet requested and received emergency custody on June 23, 2017. Ms. Manley testified that [Mother] identified [W.R.] as [C.J.C.R.'s] father. She stated he was in Mexico but could not provide any other information. [Mother] stated he had
never been part of [C.J.C.R.'s] life and she did not want him involved. Ms. Manley was unable to make contact with [W.R.] due to the lack of information and he never stepped forward to make contact.
Further, the parents were provided initial case plans on June 29, 2017. [Mother] was asked to (1) Cooperate with the Cabinet; (2) Complete a mental health assessment and follow recommendations; (3) Complete a parenting assessment and follow all recommendations; (4) Provide verification of all tasks; (5) Complete a series of parenting classes and recommendations; (6) Complete a Dr. Feinberg assessment; (7) Demonstrate an ability to create a safe and nurturing environment during visitation; (8) Maintain contact with social worker and notify her of any contact changes; (9) Maintain lawful housing and employment; (10) Follow the visitation schedule and complete the Sunflower Kids paperwork; (11) Bring all needed items to visits; (12) Make an attempt to be present at doctor's appointments; and (13) Drug screen at request of Cabinet. [G.O.R., Sr.] was asked to (1) Cooperate with Cabinet; (2) Complete a mental health assessment and follow recommendations; (3) Complete a parenting assessment and follow all recommendations; (4) Provide verification of all tasks; (5) Complete a series of parenting classes and recommendations; (6) Complete a Dr. Feinberg assessment; (7) Demonstrate an ability to create a safe and nurturing environment during visitation; (8) Maintain contact with social worker and notify her of any contact changes; (9) Maintain lawful housing and employment; (10) Follow the visitation schedule and complete the Sunflower Kids paperwork; (11) Bring all needed items to visits; (12) Make an attempt to be present at doctor's appointments; and (13) Drug screen at request of Cabinet. Visits were set up initially once per week. The parents were provided case plans, referrals to community partners, home visits, and visitation schedules.
Ms. Manley testified the parents made minimal progress while she had the case. The parents visited and participated in home visits but no other tasks were completed. Additionally, a Dr. Feinberg assessment was requested because of the complexity of the case. There were significant injuries and multiple alleged perpetrators. The parents minimized the concerns and injuries and Ms. Manley believed [Mother] was the perpetrator of the abuse and felt she favored her children over the four older children, who took the brunt of the abuse and neglect. [Mother] admitted to being in a caretaking role and the other children disclosed other acts of abuse in the home. [G.O.R., Sr.] also allowed this to happen and continued to have [Mother] as the primary caretaker so there were concerns about his protective capacity. Additionally, there were concerns that the parents allowed [K.B.] to take the children unsupervised despite the court order. Ms. Manley maintained case responsibility until approximately December 2017.
8. Jennifer Smith testified next for the Cabinet. Ms. Smith has been the ongoing worker for this case since December 2019. Testimony and exhibits showed on August 27, 2018 both [G.O.R., Sr.] and [Mother] stipulated to neglect.[FN]
[FN] Ms. Smith initially testified that [G.O.R., Sr.] stipulated to dependency but, after reviewing the record, the Court clarified in its oral findings that he actually stipulated to neglect.
All three children were committed to the Cabinet's custody on September 17, 2018. [Mother] completed a mental health assessment in March 2018 but there were no recommendations. She also completed domestic violence and parenting classes in July 2018. [G.O.R., Sr.] completed a mental health assessment in March 2018 and he was recommended to complete a series of parenting classes. Ms. Smith testified that the records did
not reflect [G.O.R., Sr.] had completed those classes. The parents were also working with the Amen House to get additional household items and items for the kids.
As a result of the progress on their case plans, the parents' visits were increased to bi-weekly unsupervised. However, the children were returning from visits complaining about minor injuries and the parents being mean. In July 2019, the Cabinet received a referral that [G.O.R., Jr.] had bruises on his inner ears and that the parents would flick the kids in their ears and hit them in the face. At that point, the visits were stopped and went back to supervised at Sunflower Kids/Greenhouse 17. A new set of petitions were filed as to these new allegations. The Court informally adjusted the new case in January 2020 but changed the goal to adoption of these three children.
Ms. Smith testified that the parents had completed the case plan tasks and were meeting with them monthly. She would discuss visits with the kids and a general follow up. After Dr. Feinberg's recommendations were released, the parents never sought any clarification or anything they could do for reunification. Ms. Smith further testified that she was never able to make contact with [W.R.] and he has never stepped forward to assert any rights.
Further, all three children are placed together in the same home since removal in June 2017. Ms. Smith testified that, in her observations, the children are very attached and comfortable in the foster home. They are very happy, healthy, energetic kids. The children were having contact with the parents over the phone because of Covid but face-to-face visits have just restarted at Greenhouse 17. Ms. Smith asserted that, in her work with the family, she has not seen any changes in these parents or that they have taken any responsibility for the situation. The parents have also not expressed anything they would have done differently. The Cabinet remains concerned
about the amount of time the children have remained in care and negative behaviors the children exhibit after contact. It is also concerning that another report with the same maltreatment occurred after the parents have engaged in services and in the middle of the Dr. Feinberg assessment, thus the risk has not been mitigated. Ms. Smith had not seen any improvement in [G.O.R., Sr.'s] protective capacity and there were no other services Ms. Smith could think of to offer the family.
9. Connie Blankenship testified next for the Cabinet. The children came to Ms. Blankenship's home in June 2017 and they have remained in her home continuously since that time. Initially, [M.E.R.E.] was very scared and had a lot of sores on her body. [M.E.R.E.] and [C.J.C.R.] were not potty trained and both had significant problems with their teeth that required caps and fillings. [C.J.C.R.] had trouble hitting [M.E.R.E.] and would get time-out, but those behaviors have improved. The older children were enrolled in school and did well behaviorally and academically. [C.J.C.R.] is interested in soccer and [M.E.R.E.] wants to participate in dancing. [A.J.R.] has also developed normally. The children have met and interacted with Ms. Blankenship's extended family and they all get along well. The children have rules and consequences, including time-out. They have small chores and get rewards for good behavior. Ms. Blankenship testified that her home is an adoptive home for these children should they become available. They also refer to her as "Nana" and her husband as "Poppa."
10. [G.O.R., Sr.] testified next. [He] was born in Mexico and is the father of [A.J.R.] and [M.E.R.E.] [He] testified he gets along well with [A.J.R.] and they have a good relationship. He further described his relationship with [M.E.R.E.] as good as well. When they were visiting regularly, [G.O.R., Sr.] and [Mother] would pick up the kids, feed them, [and] make sure they were getting to bed at a good time. Prior to the removal in 2017, [he] was working full time.
[G.O.R., Sr.] further testified that he understood all the questions asked of him during Dr. Feinberg's assessment. He came to the US at age 15 and completed the 8th grade. He completed parenting classes and domestic violence classes. He asserted that he provided proof to one of his social workers. [He] believed he could provide a safe and adequate home for his children and he would not commit the errors from before. He and [Mother] would parent the children and he has learned how to be a good father and take care of his family through the parenting classes. He also learned many things from the domestic violence classes including to be thankful and respectful to people. [He] testified he has a good relationship with [Mother] and the classes he has taken have helped. He would like the children returned to him because he loves them very much and he has changed.
On cross-examination, [G.O.R., Sr.] explained the children were removed in 2015 because of [K.B.'s] drug use but he could not explain why the children were not placed with him and instead went to the relative in Ohio. Further, [he] did not see all the injuries to his son when he took him to the doctor in 2017. He did see the stab marks on his ([G.O.R., Jr.'s]) arm and bandaged the injuries. He did not know who caused the injuries because he was working. He has also never seen [Mother] be unkind to his children. [He] also did not know when [A.J.R.] fractured his arm. He also stated that if [Mother] touched the children, he did not believe she has hurt them.
11. [Mother] testified next. [She] is 27 years old and she was born in El Salvador. She was 14 years old when she came to the US and had finished the 9th grade in her home country. She is the mother of [M.E.R.E., C.J.C.R.], and [A.J.R.] [G.O.R., Sr.] is the father of two of the children. The father of the other child ([W.R.]), knows what is going on and she provided contact
information to the social worker. [W.R.] does contact her just to check on [C.J.C.R.]
[Mother] further testified that she and [G.O.R., Sr.] have been together for 7 years but are not married. During that time, [Mother] has been in a caretaking role for [G.O.R., Sr.'s] other four children. In 2017, [G.O.R., Sr.] was at work so she was alone with all seven children. Two of the kids were playing with the kitchen drawers when he ([G.O.R., Jr.]) hurt himself. [Mother] did not witness it and only found out after he was crying. She also believed [K.B.] caused his other injuries. She denied hitting the children but admitted to pulling on [K.R.O.]'s ears because he was fighting with another child and made her mad. This act was a normal form of discipline in her culture.
[Mother] has visited with her three children both supervised and unsupervised. Those visits went well. She has also completed domestic violence classes and classes for loving mothers. The classes were helpful and [Mother] admitted that there were some circumstances in the past that she could have handled differently. If the children were returned, she would parent them differently based on what she has learned in the classes. Also, parenting three children would be easier than trying to parent all seven children. Before, she took care of her children but she and [G.O.R., Sr.] would argue if she tried to discipline his children. [Mother] did understand that her visits with the children were returned to supervised because of the bruise on [G.O.R., Jr.'s] ear but she did not know how that injury occurred. She also did not know why the children would report she was being mean to them or flicking them in their ears after unsupervised visits. [Mother] voiced some concerns about how the foster parents discipline her children. She would like her children returned because they are her kids and she will continue to keep fighting for them.
On cross-examination, [Mother] again stated that [G.O.R., Jr.'s] injuries occurred when he was with his mother. When he was injured in 2019, he was with [G.O.R., Sr.] and not her. [Mother] admitted to pinching [K.R.O.]'s ears but denied pinching [G.O.R., Jr.]'s ears. She also denied that the children had problems with their teeth. [Mother] agreed [G.O.R., Jr.] was severely underweight but stated he was given special formula when he came home from the hospital and when he came back from the relative.
To be clear, there were only concerns that G.O.R., Sr., and Mother allowed K.B. to take the children K.B. shared with G.O.R., Sr. Nothing indicates K.B. took any of the children at issue here, i.e., Mother's children.
As indicated, the family court also directed Mother and G.O.R., Sr., to undergo a parental capacity evaluation. In that respect, Dr. David Feinberg provided expert testimony, which the family court likewise summarized:
Dr. Feinberg completed a parental capacity evaluation for the family in November 2019. As part of this evaluation, Dr. Feinberg utilizes direct interviews with the parents, group and individual observations, records review, psychometric testing, and collateral interviews. The evaluation included [Mother], [G.O.R., Sr.], [C.J.C.R.], [M.E.R.E.], and the four other children. As the parents are native Spanish speakers, interpreters were used for the interviews. The psychometric testing was provided in Spanish to the parents but ultimately Dr. Feinberg had concerns about the validity of the results due to the language change so he did not use this information in formulating his conclusions.
Dr. Feinberg testified that, overall, the parents described their lives and their relationship with the children as wonderful, happy, and with no real problems. This was true for both parents and related to all topics including childhood and past involvement with DCBS. [G.O.R.,
Sr.] denied any history of domestic violence but both parents asserted they had filed an EPO or DVO against K.B., the mother of four of the children. Neither parent discussed [K.B.] having filed an EPO/DVO against them. The parents, and specifically [G.O.R., Sr.] was unable to provide any real details regarding the first removal in 2015. Specifically, the parents took no responsibility for their actions, which was a concern for future protective behavior. [G.O.R., Sr.] acknowledged that he worked hard and went to court a lot to regain custody but he was not able to give any information about how he made lifestyle changes or what he would do to prevent future maltreatment.
The parents had similar explanations for the events leading up to and resulting in the children's removal in 2017. [Mother] expressed no understanding why she should have to bear responsibility for [G.O.R., Sr.]'s other children, and she really had no affinity toward them. This was also prominent in Dr. Feinberg's interviews with the children who described [Mother] as mean and they did not see her as a mothering figure. Further, [G.O.R., Sr.] gave no indication that he appreciated how serious the situation was at the time of the removal, even with his child being injured and instead blamed the injuries on the other children. [G.O.R., Sr.] also gave no indication that he understood how adverse [Mother] was to his other children. He generally answered questions about his children with few details and recognized no problems with his children or his parenting. Further, neither parent expressed any empathy for what the children have experienced. Dr. Feinberg believed that this lack of empathy provides a reasonably low level of confidence that the children would be safe and appropriately supervised in the future. More likely than not, the same dynamics would cause the same problems and it seemed overwhelming that the risk associated with the removals would happen again.
Dr. Feinberg further testified that, during the observations of child-parent interaction, the thing that stood out was the emotional connection between the children and foster parents. The observations were not negative; the children just seemed to have no connection to the parents. The lack of bond was also evident as neither parent could really discuss any details about an individual child's life. Dr. Feinberg believed these parents' definition of parenting was very minimal, despite having taken parenting classes. While Dr. Feinberg acknowledged that these parents have cultural differences in their parenting styles, the issues of reasonable supervision or protection or feeding or clothing span all cultures. Particularly, when children have been removed in the past, a parent needs to be able to acknowledge past wrong behaviors and discuss how they will do things differently in the future. For these parents, they presented nothing that gave Dr. Feinberg confidence that anything would change in their parenting in the future.
Overall, Dr. Feinberg recommended no reunification between the children and the parents. Dr. Feinberg found no evidence of any acceptance of responsibility or the parents' understanding of a need to change. It seemed highly likely that, if the children were returned, things would go back to being the same as before. This was especially concerning given the children were now older and tend to require more complex and sophisticated parenting skills. Additionally, the loss of positive psychological caregivers for the children would be detrimental. Moreover, these parents are not really candidates for therapy and they had already been through parenting [classes] so there were no other services available that would offer an opportunity to change the
dynamic of the family as presented. [Mother's] favoritism toward her children versus [G.O.R., Sr.]'s children was extreme to the extent it created a risk of harm to any children.
According to Dr. Feinberg's November 8, 2019 parental capacity evaluation report regarding Mother and G.O.R., Sr., in addition to C.J.C.R. and M.E.R.E., all five of the other children participated and were included in the study.
To be clear, Dr. Feinberg testified the children have strong emotional bonds with their foster parents. In stating "[t]he observations were not negative; the children just seemed to have no connection to the parents," the family court was summarizing Dr. Feinberg's observations regarding the children's bonds with Mother and G.O.R., Sr.
Regarding the family court's findings of fact and conclusions of law, in general the termination of a party's parental rights is proper upon satisfying a three-part test by clear and convincing evidence. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, the court must find the child "abused or neglected[,]" as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). The family court's termination decision will only be reversed if it is clearly erroneous. Cabinet for Health and Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Such a decision is clearly erroneous if there is no substantial, clear, and convincing evidence to support the decision. Id.
Kentucky Revised Statute.
As to the first part of this test, it is undisputed that on August 27, 2018, Mother's three children were previously and correctly adjudged to be neglected as defined in KRS 600.020. And, with regard to these subsequent termination proceedings, the family court made the same determinations in its August 7, 2020 orders based upon KRS 600.020(1)(a)2, 4, and 8. With respect to each provision, the family court explained:
Testimony and exhibits showed that the children came into care after a referral from [G.O.R., Jr.'s] pediatrician for several injuries and being extremely underweight. As a result of that investigation, at least three of the other children were found to have injuries, including [A.J.R.], who was noted to have a healing fracture in his arm. Neither [G.O.R., Sr., nor Mother] was able to explain [A.J.R.'s] injury in testimony before this Court. Also, when they came into care, [M.E.R.E.] and [C.J.C.R.] were not potty trained, had tooth decay, and had poor diets. They had also been living in a home that lacked essential parental care and appropriate supervision to protect them from injury. Four of their siblings were subjected to significant neglect and physical abuse. According to [Mother's] testimony and as reported in Dr. Feinberg's assessment, the parents often argued or fought, usually over the children. Throughout these proceedings, in the course of the testimony heard at trial, and as noted in Dr. Feinberg's assessment, both parents have shown significant lack of parental capacity to protect the children or ensure their basic needs were met in the home. At times they have also exhibited a lack of empathy, a lack of credibility, or a lack of any insight or accountability into the trauma these children have suffered.
Regarding the second part of this test (i.e., whether termination was in the best interests of Mother's children pursuant to KRS 625.090(1)(c)), the family court made the following findings regarding each child in its respective August 7, 2020 orders:
(1) [Mother] and [G.O.R., Sr.] have committed acts of neglect or abuse as defined in KRS 600.020(1) toward
other children in the family. Both of these parents have stipulated to neglect in each of the siblings' cases, including [G.O.R., Sr.'s] other four children that are now in the permanent custody of a relative. Those four children sustained physical injuries and were subjected to resentment, abuse, and lack of care in the home.
(2) Prior to the filing of this petition, reasonable efforts have been made by the Cabinet to reunite [C.J.C.R., M.E.R.E., and A.J.R.] with [their] parent[s] but those efforts have been unsuccessful. This Court finds the Cabinet has provided case plans, visitation plans, referrals to community partners, home visits, and a Dr. Feinberg assessment at no cost. The parents were on a path to reunification until one of the children sustained another injury while in the parents' care. The children also reported being yelled at and inappropriate discipline during those unsupervised visits.
(3) Despite the availability of these services, the Respondent parents have failed or refused or [have] been unable to make sufficient effort and adjustments in their circumstances, conduct, or conditions to make it in the best interest to return [C.J.C.R., M.E.R.E., and A.J.R.] to their home within a reasonable period of time, considering the [children's] age[s]. The Court notes that the parents participated in case plans and made efforts to complete many of those tasks however, based on Dr. Feinberg's evaluation and the testimony heard at trial, the parents did not make any actual adjustments to their mindset, insight, or accountability to ultimately change their circumstances which led to the removal of the children or to make it in the best interest of the children to be returned. The Court further finds there are no additional services identified as being available or likely to bring about lasting parental adjustments to safely return the children to the parents' custody.
(4) [C.J.C.R., M.E.R.E., and A.J.R. are] currently in an adoptive home. Testimony and exhibits presented show
that [C.J.C.R., M.E.R.E., and A.J.R. have] been in the same foster home, with [each other], since June 2017. During that time, [C.J.C.R., M.E.R.E., and A.J.R. have] formed a bond and attachment with the foster parents and extended family. [They are] healthy, developmentally on track, and doing well in school. Further, Dr. Feinberg testified that the children, including [A.J.R.], see their foster family as their psychological parents and to remove them from that security would be detrimental. All of [C.J.C.R.'s, M.E.R.E.'s, and A.J.R.'s] needs are being met by the foster family and it is expected [they] will continue to improve with a permanent adoptive placement. Further, this Court finds [these children have] little emotional attachment to the parents and there is a high risk of abuse or neglect and a high risk of a re-removal if returned to the parents' custody.
Finally, with respect to the third part of this test, the family court concluded as follows:
Pursuant to KRS 625.090(2), the following grounds exist for termination of the parental rights of [Mother] and [G.O.R., Sr.]
(1) For periods of not less than six months, [Mother] and [G.O.R., Sr.] have failed or refused to provide or [have] been substantially incapable of providing essential parental care and protection for the child[ren], and there is no reasonable expectation of improvement in parental care and protection, considering the age of the child[ren]. Testimony and exhibits show that when the children came into care, they were ages 3, 2, and 11 months. They are now ages 7, 5, and 4. They came into care after a referral from [G.O.R., Jr.'s] pediatrician for several injuries and being extremely underweight. As a result of that investigation, at least three of the other children were found to have injuries, including [A.J.R.],
who was noted to have a healing fracture in his arm. Neither parent was able to explain [A.J.R.]'s injury in testimony before this Court. Also, when they came into care, [M.E.R.E.] and [C.J.C.R.] were not potty trained, had tooth decay, and had poor diets. They had also been living in a home that lacked essential parental care and appropriate supervision to protect them from injury. Four of the siblings were subjected to significant neglect and physical abuse. According to [Mother's] testimony and as reported in Dr. Feinberg's assessment, the parents often argued or fought, usually over the children. Throughout these proceedings, in the course of the testimony heard at trial, and as noted in Dr. Feinberg's assessment, both parents have shown significant lack of parental capacity to protect the children or ensure their basic needs were met in the home. At times, a lack of empathy, a lack of credibility, or a lack of insight or accountability as to the trauma these children have suffered. As a result, these parents have failed or been incapable of providing essential parental care and protection for [these children]. This failure has lasted for over six months and there is no reasonable expectation of improvement in [these parents'] care and protection, considering the child[ren]'s age[s]. Given the lack of insight gained over the last three years and after completing various classes towards reunification, there is still no improvement or reasonable expectation of improvement.
(2) The child[ren] [have] been in foster care under the responsibility of the Cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights. Testimony and exhibits show th[ese] child[ren] entered foster care on or about June 23, 2017 and the petition to terminate parental rights was filed on January 21, 2020, more than 30 months later.
See KRS 625.090(2)(e).
See KRS 625.090(2)(j). --------
As discussed, Mother contends the family court erred by failing to consider her conduct separately from that of G.O.R., Sr., and K.B. and that the family court likewise failed to adequately consider the evidence regarding her children separately from the evidence relating to G.O.R., Sr.'s, four other children.
With that said, Mother does not contest any specific aspect of the family court's August 7, 2020 orders. Furthermore, her contentions are refuted by a plain reading of what is set forth above. Because the family court's August 7, 2020 orders are supported by substantial, clear, and convincing evidence, they are not clearly erroneous. See T.N.H., 302 S.W.3d at 663. And, to the extent that Mother is insinuating that the family court should not have considered her neglect of the children G.O.R., Sr., fathered with K.B. in its decision to terminate her parental rights regarding her own children (i.e., C.J.C.R., M.E.R.E., and A.J.R.), we agree with the Cabinet's summation on this point in its appellate brief, as supported by the record:
This underlying juvenile case initially involved seven (7) children, one (1) father, and two (2) mothers. All parties were acting as a family unit. [Mother] came to be involved with the Cabinet as a result of physical abuse and neglect of one of G.O.R. [Sr.]'s children. Just because this was not her biological child does not make the act any less heinous and puts all children in the home at risk. This risk would not have been mitigated simply by removing some of the children or the other mother from the equation as [Mother] asserts. Moreover, there was significant specific testimony as to the condition of the three children involved in this appeal, which included
medical neglect and physical abuse making it clear that [Mother's] actions were not confined to the other children. Additionally, there was no evidence presented that Mother made any statements or actions that would have led the Cabinet to believe that she wanted to set up her own home with only her three children. She consistently maintained her desire to reunite with all children and remain with G.O.R. [Sr.] As such, the trial court carefully considered the evidence against [Mother], separately from K.B., and specific to M.E.R.E., A.J.R., and C.J.C.R. and correctly found termination was appropriate.
This, in turn, leads to Mother's second point of contention. As noted, she asserts the family court should reconsider its orders because of a post-judgment change of circumstances. However, as the statute itself reflects, evidence regarding a change of circumstances per KRS 625.090(3)(d) is relevant for a trial court to consider prior to entering a final order terminating parental rights. It cannot be considered where it is introduced for the first time on appeal. See Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012) ("[A]n appellate court cannot consider items that were not first presented to the trial court."). Below, Mother made no argument and adduced no evidence in this vein through any post-judgment motion before the family court. Accordingly, we cannot consider the merits of this issue. But, even if we did, it would not change the outcome of this appeal given the evidence against Mother because it is much too little much too late.
Lastly, Mother asserts her counsel's performance during the proceedings below was deficient. Mother is correct that she was entitled to effective representation by counsel. As explained in T.W. v. Cabinet for Health and Family Services, 484 S.W.3d 302, 306 (Ky. App. 2016) (quoting Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008)), "because this Commonwealth recognizes that due process and statutory law require counsel during critical stages of a termination proceeding, '[i]t is logical that the parent's right to counsel includes effective representation.'" See A.C. v. Cabinet for Health and Family Servs., 362 S.W.3d 361, 366-67 (Ky. App. 2012).
This right, however, is not necessarily as extensive as the right to counsel in a criminal proceeding. In Z.T., 258 S.W.3d. at 36, the Court held "if counsel's errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective." The Court noted that such a "burden is onerous." Id. at 37.
Here, despite the opinion of her appellate counsel - who entered his appearance in this matter approximately two weeks before the family court entered its August 7, 2020 orders - Mother never voiced any concerns with the performance of her trial counsel below; indeed, she has only done so before this Court. And, Mother cites nothing of record indicating she bore any misconceptions "about the permanency and finality of the TPR hearing." Nor, for that matter, is any such purported misconception on her part apparent from a review of the record. Thus, these issues are not preserved for our review. See, e.g., Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). And, in any regard, Mother presents nothing more than general allegations; however, her "general allegations are insufficient as a basis" to support an ineffective assistance of counsel claim arising out of a termination of parental rights action. Z.T., 258 S.W.3d. at 37.
In conclusion, the balance of Mother's contentions of error regarding the Scott Family Court's orders terminating her parental rights lack merit. We therefore AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: John P. Sienkiewicz
Lexington, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY: Tiffany L. Yahr
Lexington, Kentucky