Cabinet for Health and Family Services v. K.S., 2018-SC-000523-DGE

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtOPINION OF THE COURT BY JUSTICE BUCKINGHAM
Citation585 S.W.3d 202
Parties Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, and A.W.S., a Child, Appellants v. K.S., Mother, Appellee
Docket Number2018-SC-000523-DGE
Decision Date26 September 2019

585 S.W.3d 202

Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, and A.W.S., a Child, Appellants
v.
K.S., Mother, Appellee

2018-SC-000523-DGE

Supreme Court of Kentucky.

SEPTEMBER 26, 2019


COUNSEL FOR APPELLANT, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Mona Sabie Womack, Abigail Voelker, Cabinet for Health and Family Services, Office of Legal Services.

COUNSEL FOR APPELLANT, A.W.S., A CHILD: James Richard Scott, Covington.

COUNSEL FOR APPELLEE, K.S., MOTHER: George Andrew Thompson.

OPINION OF THE COURT BY JUSTICE BUCKINGHAM

The Kenton Family Court found K.S.’s son to be a neglected child and terminated K.S.’s parental rights.1 K.S. appealed, and the Court of Appeals vacated and remanded. 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 reinstate the judgment of the Kenton Family Court.

BACKGROUND

K.S. is the mother of A.W.S., a male child who was born on January 6, 2014. K.S. advised hospital personnel that she did not know how to properly care for the child, and the Cabinet became involved and took custody, placing the child in foster care six days later, where he remains to this day. The father has been absent from the child’s life since birth and has never sought reunification with the child.2

K.S. resided with her mother in an apartment that was not suitable for the child due to concerns with bedbugs and roaches; the presence of her mother’s brother, who had prior abuse allegations against him; and the lack of food.

K.S. has been diagnosed with a pervasive developmental disorder (autism ), and her full-scale I.Q. score is 65. The Cabinet has rendered and offered services in an attempt to keep the family together. When the Cabinet determined that matters were not progressing appropriately, on June 16, 2017, well over three years after taking custody of the child, it filed a petition to involuntarily terminate the parental rights of K.S. and the child’s father.

A trial was held on December 5, 2017. Dr. James Rosenthal, a licensed psychologist, testified that he had met with K.S. on two occasions, April 25, 2014, and June 6,

585 S.W.3d 205

2014. He stated that he was initially advised by K.S. that she was being treated for autism and depression. Based on K.S.’s prior medical records and his own evaluation of her at that time, he diagnosed K.S. with a pervasive developmental disorder and mild mental retardation.3 He noted her full-scale I.Q. score of 65, which is considered borderline mental retardation, and stated that it could only deviate plus or minus five points. Dr. Rosenthal testified that he found deficits in K.S.’s social judgment, age appropriate social relationships, and cognitive skills. Additionally, he testified that intellectual disabilities usually do not improve after the age of 14 and that he did not expect any improvement by K.S. in this area even with additional treatment.

Dr. Rosenthal further testified that the child would be at risk of abuse or neglect if returned to K.S.’s care. He concluded that the stress of caring for the child would only further impair K.S.’s ability to provide appropriate care, which would increase the risk of abuse or neglect. Additionally, he testified that due to K.S.’s intellectual disabilities, she is unlikely to improve to a degree that would permit her to adequately care for the child and that there were no services that would abate the concerns if the child were returned to her care. Dr. Rosenthal did think, however, that K.S. could live independently in an apartment by herself and work part-time, which she was doing at the time of the trial.

The Cabinet’s other witness was Kevin Minch, a Cabinet services office supervisor who had been employed by the Cabinet for 19 years. Minch testified that K.S. had completed most of the tasks in her case plan with the Cabinet but that he had ongoing concerns about her ability to parent the child over the long term due to her cognitive limitations. He testified that K.S. had been offered many services, but none could correct her ongoing cognitive impairments. He stated that the Cabinet’s observations concerning K.S. were consistent with those of Dr. Rosenthal.

Minch further testified that even though K.S. was very likeable, worked well with the Cabinet, and loves her child, these impairments were the reason the child had not been returned to her care but had remained in foster care since birth. When asked if this was a case of "willing to be a parent" versus "ability to parent," he responded "yes." In this regard Minch also testified that he was unaware of any additional services that could be offered to allow a safe return of A.W.S. to K.S. within a reasonable period of time.

Minch noted that there was a lack of appropriate housing during this entire time and that the residence in which K.S. had lived with her mother was filthy, bug-infested, and lacked food. He acknowledged that K.S. had recently obtained an apartment close to her mother’s residence but that her occupancy was unstable because she had only a month-to-month lease. Minch also testified that K.S. had supervised visitation with the child for two hours on alternate weekends at the Cabinet’s office but that these visits appeared to him to be more playtime as opposed to parenting. He stated he had not witnessed a parent/child bond during the visits.

Minch acknowledged that at the onset of the case, individualized services based on

585 S.W.3d 206

K.S.’s disability were not provided to her. He testified that the Cabinet became aware of the availability of such services in January 2017 when it was informed of such by Maureen Simpson-Henson, K.S.’s autism advocate. From that time such services were made available to K.S. Minch also stated that if the Cabinet had it to do over, it would have assisted K.S. in obtaining the services at that time. Although Minch was unaware of all services offered to K.S. beginning in January 2017, he stated he was aware she had been referred to NorthKey but that she declined the services.

Minch also conceded that for eight or nine months between January 2016 through January 2017, the case became stagnant because of changes in Cabinet caseworkers. He stated, however, that during this entire period of time services were provided to K.S., she continued her regular visitation with A.W.S., and there was always a caseworker assigned to K.S. who was available to her. Further, he stated that K.S. never requested custody or additional services during this time.

Minch testified there were individual services that could benefit K.S. and that she was receiving services for developmental delays, including speech therapy and physical therapy. Nevertheless, Minch testified he thought the Cabinet had made reasonable efforts to reunify K.S. with her child but that the situation had not progressed to a sufficient level due to K.S.’s cognitive disabilities. And, as noted above, he testified he was unaware of any additional services that could be offered to K.S. that would result in the safe return of the child to K.S. within a reasonable time.

Minch further stated that in April or May of 2017, a month or so before the Cabinet filed the petition to terminate K.S.’s parental rights, the Cabinet had recommended to the trial court that the family receive an assessment by Dr. Edward Conner.4 This assessment never took place because, according to Minch, K.S.’s autism advocate notified the Cabinet that the release K.S. had signed in connection with the assessment should be "destroyed."

Minch testified that termination proceedings were instituted shortly thereafter because the Cabinet felt it had hit a "roadblock" when the proposed assessment fell through. He also stated that A.W.S. "had been in permanency limbo for too long at this point." At the time the petition was filed, the child had been in foster care with the same family for 41 months, and at the time of the trial, the child had been in foster care for 46 months. Concerning the foster parents, Minch stated that the child has a strong emotional attachment to them and calls them "mommy" and "dad."

In addition to the testimony of Dr. Rosenthal and Kevin Minch, the Cabinet sought to introduce an assessment from the CATS Clinic.5 Dr. Rosenthal had recommended a CATS assessment, and Minch testified that the assessment provides a recommendation as to long-term placement and was relied upon by the Cabinet in this case.

K.S.’s attorney, however, objected to the introduction of the report on grounds of

585 S.W.3d 207

hearsay since a CATS representative was not present to testify. The trial court sustained the objection, and the CATS assessment report was not allowed into evidence.

Maureen Simpson-Henson, K.S.’s autism advocate since January 2017, testified on K.S.’s behalf. Simpson-Henson is a speech and language pathologist who worked with K.S. by providing speech and language therapy to her when she was a young child in the school system. She stated that she was on the original team of professionals that diagnosed K.S. with autism during her childhood.

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18 practice notes
  • Cabinet for Health & Family Servs. v. H.L.O., 2020-SC-0276-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • 29 Abril 2021
    ...so the change to the relevant timeframe does not affect our consideration.11 See, e.g. , Cabinet for Health & Family Servs. v. K.S. , 585 S.W.3d 202 (Ky. 2019) (affirming trial court's finding that child was in foster care from initial placement with the Cabinet); K.H. , 423 S.W.3d 204 (Ky.......
  • B.N.W. v. Cabinet for Health & Family Servs., NO. 2020-CA-0412-ME
    • United States
    • Court of Appeals of Kentucky
    • 29 Enero 2021
    ...been permitted supervised visitation, even if regular, does not negate a risk of abuse. See Cabinet for Health & Family Servs. v. K.S., 585 S.W.3d 202, 207, 215 (Ky. 2019) (holding that the child was neglected under KRS 600.020 due to the mother's limited cognitive abilities even though she......
  • B.B. v. Commonwealth, 2020-SC-0488-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Agosto 2021
    ...a great deal of discretion in determining whether the child is dependent, neglected, or abused. Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (See also M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998)). Under CR[7]52.01, a trial court's findin......
  • J.W. v. Cabinet for Health & Family Servs., NO. 2020-CA-0357-ME
    • United States
    • Court of Appeals of Kentucky
    • 30 Octubre 2020
    ...the family court's order of termination was based on clear and convincing evidence." Cabinet for Health and Family Services v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (citation omitted). We first address Father's second argument that the court erred in terminating parental rights because the t......
  • Request a trial to view additional results
18 cases
  • Cabinet for Health & Family Servs. v. H.L.O., 2020-SC-0276-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • 29 Abril 2021
    ...so the change to the relevant timeframe does not affect our consideration.11 See, e.g. , Cabinet for Health & Family Servs. v. K.S. , 585 S.W.3d 202 (Ky. 2019) (affirming trial court's finding that child was in foster care from initial placement with the Cabinet); K.H. , 423 S.W.3d 204 (Ky.......
  • B.N.W. v. Cabinet for Health & Family Servs., NO. 2020-CA-0412-ME
    • United States
    • Court of Appeals of Kentucky
    • 29 Enero 2021
    ...been permitted supervised visitation, even if regular, does not negate a risk of abuse. See Cabinet for Health & Family Servs. v. K.S., 585 S.W.3d 202, 207, 215 (Ky. 2019) (holding that the child was neglected under KRS 600.020 due to the mother's limited cognitive abilities even though she......
  • B.B. v. Commonwealth, 2020-SC-0488-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Agosto 2021
    ...a great deal of discretion in determining whether the child is dependent, neglected, or abused. Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (See also M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998)). Under CR[7]52.01, a trial court's findin......
  • J.W. v. Cabinet for Health & Family Servs., NO. 2020-CA-0357-ME
    • United States
    • Court of Appeals of Kentucky
    • 30 Octubre 2020
    ...the family court's order of termination was based on clear and convincing evidence." Cabinet for Health and Family Services v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (citation omitted). We first address Father's second argument that the court erred in terminating parental rights because the t......
  • Request a trial to view additional results

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