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

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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


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

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