Termination of Parental Rights, Case Digest, C.J.M. v. Com, Ky Court of Appeals

C.J.M. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000590-ME

and

C.F.A. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000591-ME

Published: Opinion Affirming

County: Garrard

C.J.M. (“the mother”) and C.F.A. (“the father”) appeal in separate cases
from the order and judgment of Garrard Circuit Court terminating their parental
rights.

C.K.A. (“the child”) was born on May 10, 2010 to the parties who lived
together but were not married. On June 1, 2011, the Cabinet for Health and
Family Services of the Commonwealth of Kentucky (the Cabinet) filed a petition
for involuntary termination of the parental rights of both the mother and the
father.  Shortly after the child’s birth,
she tested positive for marijuana. 
During a home visit at the parent’s residence on May 19, 2010, the
worker and a colleague observed a large amount of beer cans and beer cases
under the porch, and determined that the child did not have a crib or bassinet.

The mother admitted using marijuana during and prior to pregnancy and
disclosed that she had two other children from a different relationship who
were placed with their father in Ohio that she had not seen in a long
time.  The father objected to taking a
drug test, admitted marijuana use and stated he was not going to stop.  The Cabinet workers were concerned about their
own safety because of the father’s erratic behavior.  The child, pursuant to an emergency custody
order, entered foster care. The father’s aunt was given temporary custody, but
when difficulties arose, the child was placed with a foster family with whom
she still resided at the time of the trial.

At an adjudication hearing in August, 2010, the court found that the
father neglected the child and the mother had stipulated to neglect.  The family court entered a disposition order
and adopted the Cabinet’s case plan. 
Both parents and the child were appointed counsel, but the parents fired
their appointed counsel during the dependency proceedings.  Counsel was reappointed for the termination
action.  Both parents also filed civil
rights action in Garrard Family Court and United States District Court, all of
which were dismissed.  During the
dependency action, the Cabinet prepared several case plans requiring certain actions
by the parents and payment of child support from each of them.

Subsequently, the father become increasingly hostile and resisted working
the Cabinet’s case plan while the federal case was pending.  In September, 2010, the father requested
waiver of further court appearances and waiver of reasonable efforts to reunite
him with the child.  In October, 2010 the
mother went to a domestic violence shelter and stayed about one month.  In February, 2011, the father was arrested
and charged with terroristic threatening against a Cabinet worker and her
supervisor.  He pled guilty and was
ordered to have no contact with the worker or her supervisor.

On April 1, 2011, the family court held the annual permanency planning
required by the statute and, after consideration of the parents’ progress,
changed the goal for the child from reunification to adoption.  On June 1, 2011, the Cabinet filed a petition
for involuntary termination of parental rights and the trial was conducted
February 7, 2012.  At trial, the Cabinet
testified that the child was doing well, had been in foster care approximately
two years, and the foster family wanted to adopt her if given the
opportunity.  The mother testified that
the Cabinet failed to use reasonable efforts to reunite the child with
her.  She described her various
difficulties with transportation, finances, and communication, and discussed
her failure to complete tasks related to her own case plan.  The father testified that termination of his
parental rights was not warranted because the Cabinet did not use reasonable
efforts to reunite him with the child.

On February 27, 2012, the Garrard Circuit Court entered Findings of Fact,
Conclusions of Law, and an Order Terminating Parental Rights and Judgment.  The Order explained that both parents had
abandoned the child for a period of at least 90 days, had failed to make
adequate efforts in the child’s best interests so she could be returned to
their custody, had failed to protect the child’s right to a safe, nurturing
home, and finally it was in the child’s best interest to terminate the mother's
and father’s parental rights.  Pursuant
to KRS 600.020(1), the child was abused and neglected.  The family court thus determined that under
KRS 625.090, it had been established by clear and convincing evidence that the
parents were not providing a safe, nurturing home, and there was no reasonable
expectation of significant improvement in the immediately foreseeable
future.  Both parents appealed from these
orders and are separately represented.

Both parents argue that the Cabinet failed to make reasonable efforts to
reunite the child with them and that they were without effective assistance of
counsel during critical phases of the juvenile case.  The Cabinet’s position is that clear and
convincing evidence supported the termination and the parents waived
representation during the dependency proceedings.

KRS 625.090 provides the statutory direction for a circuit court to
involuntarily terminate parental rights. 
There must exist at least one of the ten factors enumerated in the
statute.  Further, the Cabinet must make
reasonable efforts to reunite the child with the parents.  The Court of Appeals found sufficient
evidence to remove the child from the home to ensure her safety.  The child tested positive for cocaine at
birth and both parents admit they used marijuana before and during the
pregnancy.  Neither parent had seen the
child for more than one year, they were not working on the case plan, and both
had child support arrearages.

With respect to the Cabinet’s obligation to make reasonable efforts
toward reunification of the family, the Court of Appeals found that the mother
was offered many services associated with her case plan, but did not avail
herself of them.  Likewise, the father
ignored efforts to work toward reunification and chose not to see the
child.  On the issue of failure to
provide effective assistance of counsel, the Court of Appeals noted that the
parties dismissed their respective counsel during a portion of the dependency
action. The Court of Appeals found that neither party had proven that their
decision to be unrepresented occurred at a critical stage.

The Garrard Circuit Court’s order terminating the parental rights of the
mother and the father is affirmed.

Digested by
Sandra G. Ragland, Diana L. Skaggs + Associates