Cabinet for Health & Family Serv. V. A.G.G.

• Decision Date: 20 April 2006
• Docket Number: No. 2005-SC-0631-DGE.,2005-SC-0631-DGE.
• Citation: 190 S.W.3d 338
• Parties: CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and Attorney General, Intervenor, Appellants v. A.G.G.; and W.E.G., Appellees.
• Court: United States State Supreme Court — District of Kentucky

190 S.W.3d 338

CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and Attorney General, Intervenor, Appellants v. A.G.G.; and W.E.G., Appellees.

No. 2005-SC-0631-DGE.

Supreme Court of Kentucky.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

G. Thomas Mercer, Cabinet for Families and Children, Office of Legal Services, Louisville, Counsel for Appellant Cabinet for Health and Family Services, Commonwealth of Kentucky.

Gregory D. Stumbo, Attorney General, State Capitol, David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellant Attorney General.

Benjamin D. Rogers, Rogers & Driver, LLP, Glasgow, Counsel for Appellee A.G.G.

Rita E. Riherd, Glasgow, Counsel for Appellee W.E.G.

Opinion of the Court by Justice COOPER.

Appellees A.G.G. ("mother") and W.E.G. ("father") are the natural parents of two boys, N.E.G., born June 15, 1996, and A.E.G., born January 7, 2001. Following a two-day trial, the Barren Family Court entered judgments terminating the parental rights of the mother and father to the two children and committing the children to the custody of Appellant, Cabinet for Health and Family Services ("CHFS"). The Court of Appeals vacated the judgments and remanded for a new trial, perceiving that the family court judge had admitted improper hearsay evidence in contravention of the holdings in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App.1985). We granted discretionary review and now reverse the Court of Appeals and reinstate the judgments of the Barren Family Court.

Both parents are mentally disabled due to "lower intellectual functioning." Evidence introduced at trial proved that the family lived primarily at two residences, their own rented mobile home and a residence owned by the children's paternal grandparents. CHFS employees testified at trial that their home visits revealed both residences¹ to be filthy, unsanitary, unsafe for human habitation (broken windows, exposed electrical wires, holes in the ceiling and floor), infested with cockroaches (including one found in A.E.G.'s nebulizer), and strewn with mouse feces. The children and their clothing were filthy, their hygiene was poor, and they emitted a foul odor. CHFS had been attempting with limited success to provide the mother and father with services, including parenting education services, since shortly after N.E.G.'s birth in 1996, and continuously after December 2001. Mostly, the parents ignored their scheduled appointments with social workers. There was evidence that N.E.G. was absent from school nine times and tardy on thirteen other occasions over a two-month period prior to his removal from the custody of his parents. He could neither count nor recite the alphabet. CHFS referred the children to day care, but they failed to attend regularly.

CHFS ultimately learned that two persons (later identified as the children's paternal uncles, J.G. and E.G.), who lived primarily at the paternal grandparents' residence, had been identified as possible sexual offenders. As will be further discussed, infra, there was evidence at trial that J.G. sexually abused N.E.G. at the paternal grandparents' residence. A dispositional report prepared by CHFS on June 20, 2002, and adopted as a disposition order by the family court on June 21, 2002, contained numerous recommendations for improvements, including regular school attendance by N.E.G., improved home sanitation and hygiene, and that the children have no contact with their paternal grandfather and other named members of their father's extended family.

On October 17, 2002, the children were removed from the custody of their mother and father and placed in foster care because of the failures of the mother and father to abide by the provisions of the disposition order. On October 21, 2002, the family court held both parents in contempt of court for violating the conditions of the order. The foster mother later reported to CHFS that she had observed N.E.G. sexually "acting out" with A.E.G. and other children. On October 1, 2003, almost a year after the children were removed from their parents' custody, and after repeated unsuccessful attempts to convince the mother and father to respond to family services and to upgrade their living conditions so that they could be reunited with their children, CHFS filed this petition for involuntary termination of their parental rights.

Among the findings of fact entered by the family court in support of its judgments were, inter alia:

8. [N.E.G. and A.E.G.] are abused and neglected children as defined in KRS 600.020(1) and termination of parental rights would be in the best interest of the children; in that Respondents have caused or allowed each child to be sexually abused or exploited (See also KRS 625.090(2)(f) and KRS 600.020(1)(e)) and in that Respondents have failed to provide sanitary living conditions in the children's home (See also KRS 625.090(2)(e) and KRS 600.020(1)(d)).

9. [The mother and father] have caused or allowed the children to be sexually abused or exploited.

10. [The mother and father], for a period of not less than six (6) months have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the children and there is no reasonable expectation of improvement in parental care and protection, considering the age of the children.

11. [The mother and father], for reasons other than poverty alone, have continuously or repeatedly failed to provide or are incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the children's well-being and there is no reasonable expectation of significant improvement in the parents' conduct in the immediately foreseeable future, considering the age of the children.

12. It is in the best interest of [N.E.G. and A.E.G.] that termination of parental rights be ordered because the children need the stability provided by CHFS placing them for adoption.

13. CHFS has rendered or attempted to render all reasonable services to [the mother and father] in an effort to bring about a reunion of the family.

14. [The mother and father] have made few, if any, adjustments in their circumstances, conduct or conditions to make it in the best interest of the children to be returned home.

15. [N.E.G. and A.E.G.] have made substantial improvements while in foster care and they are expected to make more improvements upon termination of parental rights.

I. SUFFICIENCY OF THE EVIDENCE.

Parental rights are so fundamentally esteemed under our system that they are accorded Due Process protection under the Fourteenth Amendment of the United States Constitution. O.S. v. C.F., 655 S.W.2d 32, 33 (Ky.App.1983). They can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so. KRS 625.090; Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982); N.S. v. C & M.S., 642 S.W.2d 589, 591 (Ky.1982).

The family court's findings of facts set forth above were not clearly erroneous, CR 52.01, and were supported by clear and convincing evidence. While the evidence that N.E.G. was sexually abused was stronger than the evidence that A.E.G. was sexually abused, there was ample evidence that the parents "[c]reate[d] or allow[ed] to be created a risk that an act of sexual abuse . . . [would] be committed upon [A.E.G.]," KRS 600.020(1)(f), when they ignored the disposition order's mandate that the children not be taken to the home of the paternal grandparents and either ignored or failed to notice that A.E.G. was being sexually abused by N.E.G. Further, while abandonment or abuse of an older child alone is not clear and convincing evidence sufficient to support termination of parental rights to a younger child, such evidence coupled with other evidence of abuse or neglect of the younger child may be sufficient. O.B.C. v. Cabinet for Human Res., 705 S.W.2d 954, 956 (Ky.App.1986).

II. HEARSAY.

The Court of Appeals vacated the judgments because it perceived that the testimony of N.E.G.'s therapist, Julie Griffey, and that of Dr. Jeffrey Blackerby, a pediatrician, violated the proscription against the introduction of testimonial hearsay enunciated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree.

Julie Griffey is a licensed marriage and family therapist employed by "Life Skills," a regional comprehensive care center. She holds a masters degree in marriage and family therapy and has twenty-seven years of experience in the field. "Years ago," Life Skills designated her as its specialist in child sexual abuse, a designation requiring continuing education in sexual abuse, including child-interviewing skills. Due to behavioral problems exhibited by N.E.G. while still living with his parents, CHFS referred him to Griffey for diagnosis and therapy. Griffey testified that during the initial session on July 25, 2002, N.E.G. made no statements indicating that he had been sexually abused. Two followup appointments were scheduled but not kept. Griffey did not see N.E.G. again until October 24, 2002, after he was removed from the custody of his parents. She testified that, on this occasion, N.E.G. exhibited delayed speech, aggression, and disruptive behavior. Again, however, he made no statements indicating that he had been sexually abused. Griffey saw N.E.G. again on May 23, 2003, after being advised of the foster mother's report that N.E.G. was exhibiting sexually aggressive behavior. This time, Griffey initiated a "good touch—bad touch" vocabulary with N.E.G., using anatomically...