M.P.S. v. Cabinet for Human Resources
| Decision Date | 16 January 1998 |
| Docket Number | No. 97-CA-0295-MR,97-CA-0295-MR |
| Citation | 979 S.W.2d 114 |
| Parties | M.P.S., Appellant, v. CABINET FOR HUMAN RESOURCES, Next Friend of S.A.S. and Paula Fitzgerald, Guardian Ad Litem For S.A.S., Appellees. |
| Court | Kentucky Court of Appeals |
Lori Arnold Ackerson, Louisville, for Appellant.
Kathleen L. Patterson, Cabinet for Families & Children, Frankfort, for Appellee CHR.
Paula Fitzgerald, Louisville, for Appellee Fitzgerald, Guardian At Litem, etc.
Before COMBS, DYCHE and HUDDLESTON, JJ.
M.P.S. appeals an order of the Jefferson Circuit Court terminating her parental rights to her daughter, S.A.S. We affirm.
In January 1992, M.P.S. was charged with first-degree criminal abuse as a result of incidents relating to her oldest child. She subsequently pled guilty and was sentenced to five years in the penitentiary. On June 25, 1992, while incarcerated, M.P.S. gave birth to S.A.S. The child was immediately taken from appellant, and has not been entrusted to her for any period of time, other than for brief supervised visits, since her birth. On November 24, 1992, the Cabinet for Human Resources ("Cabinet") filed a petition to involuntarily terminate M.P.S.'s parental rights regarding S.A.S., the child which is the subject of this action, and appellant's two other children, A.E.S. and S.E.S. In March 1994, the Jefferson Family Court terminated appellant's parental rights to all three children. M.P.S. appealed the judgment to this Court.
Meanwhile, in April 1994, M.P.S. walked away from a work detail. She was subsequently caught, convicted of escape, and sentenced to an additional two years' imprisonment. On March 17, 1995, this Court rendered an opinion affirming the trial court's termination of parental rights with respect to A.E.S. and S.E.S., but reversing with respect to S.A.S. On July 2, 1995, the Cabinet filed the present petition for involuntary termination of appellant's parental rights to S.A.S. Following a trial, on November 27, 1996, the trial court issued an order terminating M.P.S.'s parental rights to S.A.S. This appeal followed.
M.P.S. first alleges that the trial court's termination of her parental rights was not supported by clear and convincing evidence and was erroneous as a matter of law. She argues that, since this Court decided M.P.S.'s previous appeal, neither the facts nor the law has changed. The law of the case rule requires a comparison of the evidence presented in the two cases to determine if the substance and probative effect of the evidence presented in the second case were equal or superior to the evidence presented in the first case. A former opinion becomes the law of the case only where the facts are substantially identical, or the same, upon the trial of each case. Reibert v. Thompson, 302 Ky. 688, 194 S.W.2d 974, 975 (1946); Lake v. Smith, Ky., 467 S.W.2d 118, 119 (1971). In our previous review of this matter, we concluded that no evidence had been produced that S.A.S. was an abused or neglected child. M.P.S. v. Cabinet for Human Resources, Ky.App., 94-CA-000775-MR, rendered March 17, 1995. However, in the present proceeding the Cabinet produced six witnesses, including a court appointed psychologist, to address this issue. The evidence produced by the Cabinet in this proceeding is substantially greater than in the former case, and, in view of this, the law of the case doctrine is not controlling in our review of this appeal.
KRS 625.090 sets forth the grounds for termination of parental rights. The statute requires a finding 1) that the child, by clear and convincing evidence, is an abused or neglected child, and 2) that the termination would be in the best interest of the child. "Abused or neglected child" is defined in KRS 600.020(1). In its order terminating parental rights, the trial court made the following findings relating to whether S.A.S. is an abused or neglected child and whether termination would be in her best interest:
.....
7. The respondent mother has repeated [sic] failed to protect and preserve the child's fundamental right to a safe and nurturing home, thus this Court finds that [S.A.S.] is a neglected child.
8. The respondent mother, for reasons other than poverty alone, has continuously or repeatedly failed or refused to provide or is incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well being and there is no reasonable expectation of significant improvement in M.P.S.'s conduct in the immediately foreseeable future, considering the age of the child. [M.P.S.] has been offered numerous services by the Cabinet and the Department of Corrections but because of her mental limitations has been unable to utilize the information provided.
9. These service [sic] provided by the Cabinet and the Department of Corrections to [M.P.S.], over a period of years, have brought about no improvement in M.P.S.'s ability to provide parental care and control to her child, [S.A.S.], and there is no reasonable expectation of significant improvement in the immediately foreseeable future considering the age of the child.
11. Termination of parental rights is in the best interest of the child, [S.A.S.],....
The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, Ky.App., 552 S.W.2d 672, 675 (1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, Ky.App., 706 S.W.2d 420, 424 (1986).
Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934). The record contains substantial evidence to support the findings of the trial court. The court-appointed psychologist, Dr. Dennis Buchholz, testified that appellant was substantially incapable of providing essential parental care and protection and has significant limitations in her overall cognitive abilities. He further stated that she would not be able to independently care for the child and that, because her 65 IQ was a permanent aspect of...
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...nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998) (quoting Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934)). KRS 199.502(1) provides that "an adoption may be gr......
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...nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998) (citing Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934) ). "The trial court has a great deal of discretion in ......
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...in KRS 625.090(2)(a)-(j) exists.K.H., 423 S.W.3d at 209. As to the applicable standard of review, in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998), this Court recognized that:The trial court has a great deal of discretion in determining whether the child fits......