H.L.O. v. Cabinet for Health & Family Servs.
| Decision Date | 05 June 2020 |
| Docket Number | NO. 2019-CA-000685-ME,2019-CA-000685-ME |
| Parties | H.L.O. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.R.-L.O., A MINOR CHILD APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM LETCHER CIRCUIT COURT
H.L.O. has appealed from the Letcher Circuit Court's amended findings of fact and conclusions of law and the judgment involuntarily terminating her parental rights to her daughter, E.R.-L.O. We reverse.
H.L.O. (the Mother) has three children; E.R.-L.O. (the Child) is her third child, born in 2016. She is the subject of this appeal. Her other two children are T.J.C., born in 2008, and S.C., born in 2011. Shortly after the Child's birth, Holly Hammock, a Social Services Worker for the Cabinet for Health and Family Services (the Cabinet), filed a Juvenile Dependency, Neglect, or Abuse Petition in the Letcher District Court (Case No. 16-J-00025-001) seeking to declare that the Child was neglected or abused. The affidavit stated:
[The Mother] gave birth to [the Child] on **/**/16. [The Mother] tested positive for Methamphetamines and Buprenorphine at the time of the birth. [The Child] started showing [signs] of withdrawal and was sent to Pikeville Medical Center. [The Mother] denies taking any Methamphetamines. [The Child] tested positive for Buprenorphine but was not tested for Methamphetamines. [The Mother] also has custody of her other two children, This agency has concerns with [the Mother] testing positive and her previously having her children removed due to drug abuse issues. This agency asked that the father of [the Child], [J.H.] take a drug screen and he failed to do so.1
In an emergency custody order affidavit, Hammock stated:
[The Child] was born drug addicted and tested positive for Suboxone at birth. Her mother . . . tested positive for Methamphetamines and Suboxone at delivery. It was confirmed that [the Mother] is prescribed Suboxone. [The Child] was transferred to Pikeville Medical Center to be treated for the drug addiction. Mother and father have a history of removal for drug abuse issues with [the Child's] siblings in 2014. The father has been asked totake two drug screens, but has failed to do so at this time. [The Child] is being released from Pikeville Medical Center on 02/27/16 and this agency was not able to approve any given relatives to this date.
The Child was taken into the emergency custody of the Cabinet on February 26, 2016, and a temporary removal hearing was scheduled. After that hearing, the Child was placed in the temporary custody of the Cabinet by order entered March 31, 2016. The Cabinet was ordered to explore potential relative placement, and the Mother was ordered to enroll in and timely complete a program with Advancing Solutions. At the adjudication hearing on April 26, 2016, the mother stipulated to neglect, and the district court ordered the Child to remain in the custody of the Cabinet. Child support was also ordered.
A disposition hearing was held on June 9, 2016, after which the district court ordered the Child to remain committed to the Cabinet. The Cabinet was ordered to set the Mother's visitation based upon her attendance at Advancing Solutions and her sobriety. The next hearing was scheduled for July 12, 2016. Findings and recommendations of an interested party review board were filed just prior to that date. The social worker stated that:
[M]other visits one hour weekly that go well. Mother is working her case plan at this time. Worker cannot find her at home in order to visit and do pill count. There are several possible father possibilities. Mother does not have transportation, no employment, and no income. Mother states that she is attend[ing] "Advancing Solutions" and "UK TAP." Foster parents state that theygot this child straight from the hospital. They have one biological son in the home. [The Child] continues to have withdrawals. She sleeps all night and [is] a very happy baby.
The review board recommended that the Child remain in her current placement to give the Mother time to complete and maintain her case plan. The court reset the review hearing for August 2, 2016, as the Mother was about to be placed in Phase 2 of the Advancing Solutions program.
On August 29, 2016, the district court ordered that the Mother could receive unsupervised visitation with the Child after hearing testimony from Cabinet worker Jay King. On October 3, 2016, the court ordered the Mother to pay child support in the amount of $100.00 per month beginning September 1, 2016, and to provide health insurance if she could afford to do so at a reasonable cost or through an employer. The court held another review on November 15, 2016, at which time Mr. King stated that the Mother had been struggling with services, had tested positive for Percocet use, had been arrested for public intoxication during a visitation at the Cabinet, and had been arrested for shoplifting. The December 8, 2016, order set a permanent custody hearing for early 2017.
Prior to that hearing, the interested party review board recommended that the Child remain in her current foster home because her needs were being met and that the goal be changed to adoption for the Child's stability. The findingsreflected that the Mother had experienced a setback in her program and had tested positive for drugs. Visits went well when she showed up, but the Mother had shown up for one visit while under the influence and went to jail. The district court held the permanency hearing on March 14, 2017, and entered an amended order on March 24, 2017, changing the permanency plan to adoption and ordering that all reunification efforts were to cease.
On July 27, 2017, the Mother, through counsel, filed a motion to redocket the case. She had graduated from the Advancing Solutions program and planned to continue with the after-care program. The Mother had recently obtained temporary custody of her other two children and wanted to work to restore custody of all of her children under the Cabinet's supervision. She requested that the Cabinet reinstate reunification efforts with the goal for the Child to be returned to her. The motion was noticed to be heard on August 1, 2017. There is no indication in the record that the district court ruled on this motion.
On January 8, 2018, the interested party review board filed its findings and recommendations. The Child had been doing well. All of her needs were being met, and she had bonded well with her foster parents. The review board recommended that the Child remain in her current placement, where she had been since her birth. The Cabinet, through Mr. King, filed an annual permanency review on March 9, 2018. After detailing the Child's life in her foster home, Mr.King recommended that she continue to remain in the Cabinet's custody and that the goal should remain adoption.
On April 9, 2018, the district court entered another order ruling that the permanency plan was adoption and that the Child remain committed to the Cabinet. DNA testing was ordered to determine paternity. The court found that returning the Child to the home would be contrary to her welfare, that it was in the Child's best interests to change the custody of the Child, that reasonable efforts had been made to prevent removal from the home, that reasonable efforts had been made to finalize the permanency plan for the Child, that the Child needed protection and extraordinary services pursuant to Kentucky Revised Statutes (KRS) 620.140, that the Child had been in foster care for 15 of the last 22 months, and that the Cabinet had recommended the Child should be placed for adoption. The matter was to be redocketed for review on March 19, 2019.
DNA testing filed with the district court on May 3, 2018, ruled out J.H. as the Child's biological father. Later testing filed with the court on May 9, 2018, established that T.J.R. was the Child's biological father.
On May 8, 2018, the Cabinet filed a verified petition in Letcher Circuit Court to involuntarily terminate the Mother's parental rights. The Cabinet also sought termination of T.J.R.'s and J.H.'s parental rights. In the petition, the Cabinet alleged that the Child had been adjudicated to be abused or neglected onApril 28, 2016, and was committed to the Cabinet on June 17, 2016. It went on to allege that the Mother, T.J.R., and J.H. failed to protect the Child's fundamental right to a safe and nurturing home; that they neglected the child; that they failed to provide essential care and protection for the Child; that they failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary for the Child's well-being; that T.J.R. and J.H. had abandoned the Child for 90 days; that the Child had been in foster care for 15 of the last 22 months; that the Cabinet had rendered or offered services to rehabilitate and reunite the family but the parents had not made such efforts that it would be in the Child's best interest to be returned to the care of a parent; and that the Child had improved in foster care. The Cabinet stated that it was in the best interest of the Child that parental rights be terminated. The court appointed a guardian ad litem (GAL) to represent the Child. A warning order attorney was appointed for T.J.R., and J.H. was dismissed as a party on October 2, 2018, as he was excluded as the Child's father by DNA testing. The warning order attorney filed a report on November 17, 2018, stating that he had mailed T.J.R. a letter regarding the action, but he had not responded to the notice. In addition, the court appointed counsel for the Mother.
The court held an evidentiary hearing on February 1, 2019. The Cabinet called social worker Jay King for its first witness. He was assigned the Mother's case, and he discussed the February 2016...
To continue reading
Request your trial