Cabinet for Health & Family Servs. v. P.W.

• Decision Date: 29 August 2019
• Docket Number: 2019-SC-000021-DGE,2019-SC-000020-DGE
• Citation: 582 S.W.3d 887
• Parties: CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and K.L.W.W., a Child, Appellants v. P.W., Appellee Cabinet for Health and Family Services, Commonwealth of Kentucky; and K.N.W.W., a Child, Appellants v. P.W., Appellee
• Court: United States State Supreme Court — District of Kentucky

582 S.W.3d 887

CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and K.L.W.W., a Child, Appellants

v.P.W., Appellee

Cabinet for Health and Family Services, Commonwealth of Kentucky; and K.N.W.W., a Child, Appellants

v.P.W., Appellee

2019-SC-000020-DGE

2019-SC-000021-DGE

Supreme Court of Kentucky.

AUGUST 29, 2019

MODIFIED: OCTOBER 2, 2019

COUNSEL FOR APPELLANT, CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Tiffany Lorraine Yahr, Cabinet for Health and Family Services.

COUNSEL FOR APPELLANTS, K.L.W.W., A CHILD, AND K.N.W.W., A CHILD: Nicole Dyonne Carr.

COUNSEL FOR APPELLEE, P.W.: Jennifer McVay Martin, McVay Martin Shepard, PSC.

OPINION OF THE COURT BY JUSTICE KELLER

The Fayette County Family Court terminated P.W.¹ and K.W.’s parental rights to K.N.W.W. and K.L.W.W. Both P.W. and K.W. appealed to the Court of Appeals. The Court of Appeals affirmed the trial court's termination of K.W.’s parental rights² but reversed P.W.’s termination of parental rights, holding that sufficient evidence did not support the trial court’s finding that P.W. neglected the children. The Cabinet for Health and Family Services (Cabinet) petitioned this Court for discretionary review, which we granted. After our review of the record and the law, we reverse the Court of Appeals and remand to the Court of Appeals to determine whether sufficient evidence supported the trial court’s finding that the remaining requirements of Kentucky Revised Statute (KRS) 625.090 were met.

I. BACKGROUND

P.W. was born in Ghana, Africa. She came to the United States in 2007 when she was fourteen years old. K.W. was born in Indiana and grew up in California. P.W. and K.W. were married in 2013. During their marriage, P.W. and K.W. had three children. Two of those children, K.N.W.W. and K.L.W.W., are the subjects of this appeal.

K.N.W.W., was born on September 26, 2013. In April of 2014, the Cabinet received a report that P.W. was seen crying on the side of the road, after being kicked out of a car being driven by K.W. Concerned with possible domestic violence, Mara Clay, an investigative worker for the Cabinet, visited the home of P.W. and K.W. Clay was forced to return with law enforcement, at which point she observed a dark marking on K.N.W.W.’s bottom. She requested that the mark be evaluated by the child’s pediatrician. The pediatrician, while unable to give specific information to Clay over the phone, assured her that he did not have any concerns about the child’s wellbeing. Despite this, Clay told P.W. and K.W. to bring the child to the University of Kentucky (U.K.) Hospital. At U.K. Hospital, a doctor confirmed that the spot on K.N.W.W. was a Mongolian spot

and not a bruise, however K.W. began acting erratically. He was very paranoid and aggravated. He accused the examining doctor of sexually touching K.N.W.W. Therefore, the physician placed K.N.W.W. on a medical hold and would not release him to K.W. and P.W. Both K.W. and P.W. became very upset and had to be escorted off the property by security.

Based on these events and resulting concerns about domestic violence in the home, mental health issues, and low cognitive functioning, the Cabinet filed for and was granted emergency custody of K.N.W.W. on April 3, 2014. A temporary removal hearing was held on April 7, 2014, and K.N.W.W. was placed in the Cabinet’s custody. Both parents signed and began working case plans the following week. On December 4, 2014, both parents stipulated to dependency of K.N.W.W. New case plans were developed and the family continued to work with the Cabinet.

On May 16, 2015, while K.N.W.W. was still in the custody of the Cabinet, K.L.W.W. was born to P.W. and K.W. Hospital staff reported concerns to the Cabinet regarding P.W.’s constant breastfeeding of K.L.W.W. Sara Reis, investigative worker for the Cabinet, met with the family at the hospital. P.W. became hysterical and could not finish the interview. Based on continuing concerns about mental health issues, low cognitive functioning, and domestic violence, the Cabinet requested and received emergency custody of K.L.W.W. on May 19, 2015. He was placed in the same foster home as K.N.W.W. On June 30, 2015, the family court made a finding of dependency against both parents. The family continued to work with the Cabinet.

In January of 2016, K.W. and P.W. began having unsupervised visitation with the children. In February of 2016, they began having unsupervised overnight visits with the children. Unsupervised visits were gradually increased until the children were returned to their parents' home in November of 2016.

About 10 days after the children returned home, their pediatrician reported to the Cabinet that K.N.W.W. came into his office without a shirt in cold weather and with an upset stomach. He made the referral to the Cabinet because P.W. and K.W. could not answer questions from the medical staff.

On December 19, 2016, the Cabinet received another report that K.N.W.W. arrived at daycare with a red mark on his face. He told daycare workers that K.W. had slapped him. K.W. denied slapping K.N.W.W. and stated he had no knowledge of the injury. P.W. told the Cabinet worker that she hadn't noticed the mark on K.N.W.W.’s face before she left him with K.W. that morning. K.W. and P.W. refused to sign a prevention plan but agreed to take K.N.W.W. to U.K. Hospital. The Cabinet worker was concerned about the safety of the children if left in the care of K.W. and about P.W.’s ability to protect them in the home with K.W. Therefore, both children were returned to their previous foster home that night.

Less than two weeks later, K.W. assaulted P.W. P.W. notified police and sought and obtained an emergency protective order, and then a domestic violence order, against K.W. for her and the children. K.W. eventually pled guilty in criminal cases to two counts of assault in the fourth degree – one count for slapping K.N.W.W. and the other count for assaulting P.W. He also stipulated in family court to abuse of both K.N.W.W. and K.L.W.W. P.W. signed a new case plan that included complying with the domestic violence order against K.W. However, P.W. did not believe that K.W. had slapped K.N.W.W. until after she was told K.W. had pled guilty to the criminal charge of assault. She further stated that she didn't know that slapping was domestic violence despite participating in therapy, parenting classes, and domestic violence classes over the previous two years.

Over the next two years, P.W. continued to work with the Cabinet and work on her various case plans. Despite this work, the ongoing Cabinet worker continued to have concerns about P.W.’s ability to safely parent her three children on her own. Also during this time period, Dr. David Feinberg, a licensed clinical psychologist, completed an evaluation of the family.³ This was Dr. Feinberg’s fourth family evaluation with the first occurring in November 2014 and the last occurring in May 2017. Dr. Feinberg’s first three evaluations all recommended that the Cabinet continue to provide services to the family with the ultimate goal of reunification. In his final evaluation, however, he opined that P.W. lacked insight into domestic violence, took no responsibility for the removal of her children, and could not apply the skills she learned to life. Dr. Feinberg believed that she could not parent the children on her own due to her limited stress management skills and that there were no additional services the Cabinet could provide to assist in reunification.

On November 26, 2018, the Cabinet filed petitions to terminate the parental rights of K.W. and P.W. to both K.N.W.W. and K.L.W.W. After a three-day bench trial, the trial court terminated the parental rights of both parents to both children, entering findings of fact and conclusions of law on December 6, 2017. Both parents appealed the trial court’s order to the Court of Appeals. The Court of Appeals affirmed K.W.’s termination of parental rights but reversed P.W.’s termination of parental rights, holding that sufficient evidence did not support the trial court’s finding that P.W. neglected the children. This Court granted the Cabinet’s request for discretionary review of the portion of the Court of Appeals opinion reversing the trial court’s termination of P.W.’s parental rights. We now reverse that portion of the Court of Appeals' opinion.

II. ANALYSIS

"In order to protect the rights of natural parents, Kentucky courts require strict compliance with statutory provisions governing the involuntary termination of parental rights." P.C.C. v. C.M.C. , Jr., 297 S.W.3d 590, 592 (Ky. App. 2009) (citing Day v. Day , 937 S.W.2d 717 (Ky. 1997) ).

Kentucky’s statutory provision regarding termination of parental rights is found in KRS 625.090,⁴ which requires that the trial court find by clear and convincing evidence that a three-prong test has been satisfied. First, the trial court must find that the child at issue is an abused or neglected child as defined in KRS 600.020(1).⁵ Next, the trial court must find that termination of parental rights is in the best interest of the child.⁶ Finally, the trial court must find that one of the enumerated statutory grounds for termination exists.⁷ The Court of Appeals opinion in this case only addressed the first prong of the test, and thus we will do the same. The Court of Appeals reversed the trial court by holding that "for a person to abuse or neglect a child, she must intend to do so," and finding that sufficient evidence was not presented to the trial court to support a finding that P.W. intended to abuse or neglect her children. In making this holding, the Court of Appeals cites to two authorities – its own previous opinion in K.S. v. Commonwealth ,⁸ in which this Court has granted discretionary review, and the Kentucky Practice Series , authored by Louise Everett Graham and James E. Keller.⁹ To resolve the question of whether intent is required for a finding of abuse or neglect, we must...