S.H.R.M. v. Commonwealth of Kentucky, No. 2006-CA-000658-ME (Ky. App. 9/7/2007), 2006-CA-000658-ME
| Decision Date | 07 September 2007 |
| Docket Number | No. 2006-CA-000658-ME,No. 2006-CA-001103-ME,2006-CA-000658-ME,2006-CA-001103-ME |
| Parties | S.H.R.M.<SMALL><SUP>1</SUP></SMALL>, Appellant v. COMMONWEALTH of Kentucky, Cabinet for Health and Family Services; N.R., an infant; and E.R., an infant, Appellees. |
| Court | Court of Appeals of Kentucky |
Appeals from Boone Family Court, Honorable Linda R. Bramlage, Judge, Action Nos. 05-AD-00052 and 05-AD-00053.
Reneé L. Alsip, Deters, Benzinger & LaVelle, P.S.C., Crestview Hills, Kentucky, Briefs for Appellant.
Cynthia Kloeker, Covington, Kentucky, Brief for Appellee Cabinet for Health and Family Services.
Before: LAMBERT, MOORE, and NICKELL, Judges.
S.H.R.M. has appealed from two orders of the Boone Family Court entered on February 23, 2006, which, following a bench trial, terminated her parental rights to her son N.R., and her daughter, E.R. Having concluded the trial court did not err, we affirm.
On October 4, 2005, the Commonwealth of Kentucky, Cabinet for Health and Family Services (hereinafter "Cabinet"), filed two petitions in the Boone Circuit Court seeking termination of S.H.R.M.'s and B.R.'s parental rights to their two children, N.R. and E.R. B.R. did not respond to the petition nor did he appear at trial, and his parental rights to the children were terminated. In the Cabinet's case-in-chief against S.H.R.M., Dr. Ed Connor (hereinafter "Dr. Connor"), a licensed clinical psychologist who is the consultant and treating psychologist for the Northern Kentucky Children's Home where N.R. was placed; Nikki Schild (hereinafter "Schild"), a residential therapist at the Northern Kentucky Children's Home; and Anne Eason (hereinafter "Eason"), a licensed clinical social worker previously employed with Northkey Community Care, testified on behalf of the Cabinet and provided the bulk of the evidence against S.H.R.M. Their testimony, as well as other evidence presented, reveals the following:
S.H.R.M. and B.R. are the biological parents of both N.R. and E.R. N.R. was born on July 18, 1996, and E.R. was born on May 28, 1998. At some point following E.R.'s birth, S.H.R.M. was convicted of welfare fraud in Texas and served over one year in prison. During her incarceration, B.R. was the primary caregiver for the children. Subsequent to her release from custody, S.H.R.M. and B.R. divorced in 2001 and she became the primary caregiver for the children. S.H.R.M. became involved with child protective services in Texas regarding her care of the children, and subsequently moved to Kentucky in 2003.
N.R. was enrolled in kindergarten in Boone County, Kentucky. N.R. was frequently absent from school. When he was present, his severe educational delays and behavioral issues often disrupted class. N.R. was prescribed medication for hyperactivity, but S.H.R.M. administered it irregularly.
On June 18, 2003, the Cabinet became involved with the family following a report of abuse and neglect and information that N.R. had performed oral sex on a boy in the neighborhood where the family resided. Following a meeting with S.H.R.M., the Cabinet also learned N.R. had previously sexually abused E.R. The Cabinet scheduled counseling sessions for S.H.R.M. and the children, but S.H.R.M. failed to appear with the children for the counseling.
On September 12, 2003, the Cabinet received a report that N.R., now in first grade, was acting out in school; that N.R. was not regularly receiving his medication; and that E.R. was not attending kindergarten. The Cabinet referred the family to Northkey Community Care for counseling and treatment, but S.H.R.M. failed to take the children for the scheduled appointments.
On October 29, 2003, the Cabinet substantiated another report of abuse and neglect of the children. The report, made by the clinical social worker employed by N.R.'s school, stated that N.R. was acting out and had to be carried "kicking and screaming" from the classroom. Further information revealed that N.R. had again been sexually acting out on E.R.
The Cabinet filed its first petition regarding the abuse and neglect of the children by S.H.R.M. on November 26, 2003. The Boone Family Court did not initially remove the children from S.H.R.M.'s care, but did hold a hearing on February 4, 2004, regarding the allegations set forth in the Cabinet's petition. The family court found both children to be neglected, but permitted them to remain in S.H.R.M.'s home on the condition that she monitor the children's interactions with each other.
On July 8, 2004, the Cabinet filed a second petition with the Boone Family Court regarding the abuse and neglect of the children. The Cabinet stated S.H.R.M. had failed to abide by the family court's previous orders and also stated S.H.R.M. had married a registered sexual offender with whom she and the children were currently residing. An emergency custody order was entered by the family court and the Cabinet removed the children from the home.
An adjudication hearing was held on August 31, 2004. The family court again found S.H.R.M. had neglected the children and formally committed the children to the custody of the Cabinet. The children were initially placed together in the same foster home; however due to N.R.'s behavior he was psychiatrically hospitalized and then placed at the Northern Kentucky Children's Home. Following evaluation by Dr. Connor, N.R. was diagnosed with post traumatic stress disorder (PTSD) resulting from the sexual abuse he had been subjected to by B.R. Schild testified she individually counseled with N.R. and S.H.R.M. during supervised visitation. Schild opined that S.H.R.M. had minimized the severity of N.R.'s mental health issues and had repeatedly failed to take responsibility for his well-being.
Eason began treating E.R. once the child entered foster care. Eason testified E.R. had feelings of resentment and anger towards S.H.R.M., and therefore Eason opposed family counseling between E.R. and S.H.R.M. Eason stated counseling between E.R. and S.H.R.M. could begin when E.R. was more stable in her life and when S.H.R.M. became more cooperative with the Cabinet's reunification and treatment plan. However, E.R. has shown no interest in seeing or pursuing a relationship with S.H.R.M.
The Cabinet continually offered services to S.H.R.M. in an effort to reunite her with the children before filing its petitions on October 4, 2005, requesting involuntary termination of her parental rights to the children. On February 26, 2006, the family court issued its extensive and thorough findings of fact and conclusions of law, entering two orders granting the Cabinet's petition and terminating S.H.R.M's parental rights to both N.R. and E.R. This appeal followed.
S.H.R.M.'s first category of errors centers upon alleged due process violations which she claims deprived her of her fundamental constitutional rights. She first contends the trial court failed to give her proper notice of the termination hearing. It is axiomatic that due process requires adequate notice and a reasonable opportunity to be heard. See P.J.H. v. Cabinet for Human Resources, 743 S.W.2d 852, 853 (Ky.App. 1987). Thus the threshold issue is whether the notice given, if any, was adequate to allow for proper preparation of S.H.R.M.'s defense. After a careful review of the record, we hold S.H.R.M. was not denied her due process rights by the trial court's actions.
S.H.R.M. claims she was given no notice of the termination hearing which was held on February 6, 2006. At most, she claims she received notice no more than seven days prior to the hearing, an insufficient amount of time in which to secure witnesses and adequately prepare a defense. However, S.H.R.M. actually appeared on the scheduled trial date along with her counsel. No objection was raised nor was a request made for a continuance. Further, there was no indication counsel was unprepared for the hearing as he actively participated in the cross-examination of witnesses for the Cabinet and produced witnesses on behalf of S.H.R.M. Contrary to her assertions, S.H.R.M. and her counsel had several months, not just a few days, from the time the petitions were filed in which to prepare for trial.
Although the Cabinet asserts the trial date was set by agreement of the parties, we find nothing in the record to support this contention. The record is silent as to any notice being given to either side of the proposed trial date. However, the competent representation provided on behalf of both S.H.R.M. and the Cabinet during the hearing clearly indicates both sides were aware of the date with sufficient time to prepare. Finally, as no objection was made before the trial court, the issue is not properly before us as it is wholly unpreserved. See Todd v. Commonwealth, 716 S.W.2d 242, 248 (Ky. 1986); Kentucky Rules of Civil Procedure (CR) 46.
Next, S.H.R.M. contends her due process rights were violated by the Cabinet's alleged failure to use "reasonable efforts" to reunite her with E.R., as her request to participate in family therapy was denied. S.H.R.M. bases her contention on the language of KRS 620.130(2) which requires the Cabinet, after removal of a child from the home, to provide services to the parent and child which are "designed to promote the protection of the child and the return of the child safely to the child's home as soon as possible." Thus, she argues, the Cabinet must utilize all available services to facilitate the reunification of the parent and child, a requirement which was not fulfilled in her case. We disagree.
KRS 620.020(10), in pertinent part, defines "reasonable efforts" as "the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services available to the community . . . which are necessary to enable the child to safely live at the home." Preventive and reunification services are further defined by KRS 620.020(9) and (11), respectively. A careful reading of these statutory provisions reveals the Cabinet is...
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