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

539 S.W.3d 692
CourtCourt of Appeals of Kentucky
DecidedJanuary 26, 2018
DocketNO. 2016–CA–000609–ME; NO. 2016–CA–000610–ME; NO. 2016–CA–000611–ME
StatusPublished
Cited by2 cases

This text of 539 S.W.3d 692 (J.L.C. v. Cabinet for Health & Family Servs.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.L.C. v. Cabinet for Health & Family Servs., 539 S.W.3d 692 (Ky. Ct. App. 2018).

Opinion

TAYLOR, JUDGE:

J.L.C. brings Appeal Nos. 2016-CA-000609-ME, 2016-CA-000610-ME, and 2016-CA-000611-ME from Findings of Fact and Conclusions of Law and Orders Terminating Parental Rights and Orders of Judgment entered in the Fayette Circuit Court, Family Court Division (family court) terminating her parental rights separately as to T.S.T., T.M.T. and M.L.T. We affirm all three appeals.

J.L.C. is the biological mother of three children, T.S.T., born September 2, 2004, T.M.T., born April 17, 2006, and M.L.T., born October 2, 2007.1 As early as 2005, the Cabinet for Health and Family Services, Commonwealth of Kentucky (Cabinet) began receiving referrals from individuals concerned for the well-being of J.L.C.'s children. There were specific concerns regarding J.L.C.'s inability to parent the children due to her substance abuse issues. The Cabinet began providing services to J.L.C. including substance abuse treatment. Unfortunately, J.L.C. struggled to maintain sobriety. Over the next several years, the Cabinet received other referrals regarding J.L.C.'s children, and the Cabinet continued to provide services.

In January 2013, the Cabinet received a referral that T.S.T. and T.M.T. were truant from school, and a petition alleging educational neglect was filed. The Cabinet did not originally seek to remove the children from J.L.C. However, shortly thereafter J.L.C. was arrested for alcohol intoxication and incarcerated. A caseworker for the Cabinet discovered J.L.C. had left her three children in the care of her mother. J.LC.'s mother had previous involvement with the Cabinet including a history of domestic violence with J.L.C.'s stepfather. When J.L.C. was a minor, there were substantiated acts of physical abuse by J.L.C.'s stepfather against her. And, there were also allegations that J.L.C.'s stepfather had sexually abused J.L.C.2 J.L.C.'s mother and stepfather still resided together.

Under the circumstances, the Cabinet determined J.L.C.'s mother was not an *694appropriate caregiver for J.L.C.'s three children. On July 3, 2013, the Cabinet filed an emergency petition for custody as to M.L.T., T.M.T., and T.S.T. A temporary custody order was entered granting custody of the three children to the Cabinet, and the children were placed in foster care. The Cabinet's initial plan following removal of the children was for reunification of J.L.C. and the children.

Once in the Cabinet's custody, the children were placed in a foster home. All three children immediately manifested profound behavioral issues. The children also suffered from medical neglect; two of the children needed surgery; and one had an untreated pinworm infection. A physical exam also revealed that one of the girls had likely been sexually abused. All three children also suffered from severe dental neglect that required extractions and surgery.

T.S.T., T.M.T., and M.L.T. were all initially placed in the same foster home. The oldest of the three children, a male, was removed from the foster home where his two younger sisters resided. The children were separated after the oldest child displayed sexually reactive behavior toward his younger sisters. This child had also reported being sexually abused by J.L.C.'s stepfather and J.L.C.'s brother.

The Cabinet continued to work with J.L.C. toward the goal of reunification. During this time J.L.C. struggled with sobriety, and she frequently relapsed resulting in positive drug screens. The Cabinet eventually changed its permanency goal for the children from reunification to adoption. Then, on October 23, 2015, the Cabinet filed petitions for involuntary termination of J.L.C.'s parental rights as to T.S.T., T.M.T., and M.L.T. Following an evidentiary hearing, by orders entered April 1, 2016, J.L.C.'s parental rights were terminated as to T.S.T., T.M.T., and M.L.T. These appeals by J.L.C. follow.

The Court's review of an action to terminate parental rights is confined to the clearly erroneous standard of Kentucky Rules of Civil Procedure (CR) 52.01 based upon clear and convincing evidence. Com., Cabinet for Health and Family Servs. v. T.N.H. , 302 S.W.3d 658 (Ky. 2010). Clear and convincing evidence is not necessarily uncontradicted evidence; rather, it is evidence "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Id. at 663 (quoting M.P.S. v. Cabinet for Human Res. , 979 S.W.2d 114, 117 (Ky. App. 1998) ). And, an appellate court must "give a great deal of deference to the family court's findings." T.N.H. , 302 S.W.3d at 663 (citing K.R.L. v. P.A.C. , 210 S.W.3d 183, 187 (Ky. App. 2006) ).

J.L.C. asserts that the family court erred by failing to recognize that the Cabinet violated Kentucky Revised Statutes (KRS) 620.090 and 922 Kentucky Administrative Regulations (KAR) 1:140 by not placing the children with a relative following their removal from J.L.C.'s custody, thus, denying her "due process" of law. Specifically, J.L.C. contends that the children should have been placed with a maternal aunt rather than in foster care.

We harbor grave doubt as to whether a violation of KRS 620.090 and/or 922 KAR 1:140 would result in a constitutional due process violation claim. Nevertheless, we shall address J.L.C.'s underlying assertion of error.

KRS 620.090 governs temporary custody orders and contains a preference for placement of children with qualified available relatives. 16 Louise E. Graham & James E. Keller, Kentucky Practice-Domestic Relations Law § 25:34 (2016).

*695KRS 620.090(1) specifically provides, in relevant part, that "[p]reference shall be given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known." And, the administrative regulation that governs the Cabinet's foster care and adoption permanency services is 922 KAR 1:140. Section 3(3)(a) of 922 KAR 1:140 provides that "[u]pon removal of a child from the child's home, placement shall be ...

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539 S.W.3d 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jlc-v-cabinet-for-health-family-servs-kyctapp-2018.