V.S. v. Com., Cabinet for Human Resources, s. 84-CA-1903-M

• Decision Date: 21 March 1986
• Docket Number: 84-CA-1907-MR,Nos. 84-CA-1903-M,s. 84-CA-1903-M
• Citation: 706 S.W.2d 420
• Parties: V.S. and H.S., Appellants, v. COMMONWEALTH of Kentucky, CABINET FOR HUMAN RESOURCES, and B.S., B.S., L.H.S., A.S., L.S., and B.S., Appellees. E.S., Appellant, v. COMMONWEALTH of Kentucky, CABINET FOR HUMAN RESOURCES, and P.H.S., Appellees.
• Court: Kentucky Court of Appeals

Page 420

706 S.W.2d 420

V.S. and H.S., Appellants, v. COMMONWEALTH of Kentucky, CABINET FOR HUMAN RESOURCES, and B.S., B.S., L.H.S., A.S., L.S., and B.S.,

Appellees.

E.S., Appellant, v. COMMONWEALTH of Kentucky, CABINET FOR HUMAN RESOURCES, and P.H.S., Appellees.

Nos. 84-CA-1903-MR, 84-CA-1907-MR

Court of Appeals of Kentucky.

March 21, 1986.

Edward Dove, Madisonville, Dale Prince, Johnson & Prince, Elkton, for appellants.

Susan McBeath, Office of Counsel, Cabinet for Human Resources, Frankfort, Harold Johns, Dillingham & Johns, Elkton, for appellees.

Before CLAYTON, DUNN and McDONALD, JJ.

McDONALD, Judge:

This case involves two actions for termination of parental rights which were consolidated for trial purposes. The Cabinet for Human Resources (CHR) seeks to remove the children and terminate the parental relationship of H.S. and V.S. with their six infant children and the parental relationship of their daughter, E.S., with her son, P.H.S. In all, H.S. and V.S. had 11 children.

The facts show a continuing pattern of neglect by the parents of these remaining seven children. Beginning in 1977, CHR made contact with this family in Muhlenberg County. Thereafter, CHR supplied a vital and continuing stream of social services such as homemaking, food, clothing, utility payments, medical services, and family planning. The aid was necessary to alleviate critical situations and to bring about self-support and family efficiency. To the date of the trial there has been no substantial evidence of the slightest improvement or even interest in improvement by this family. Because these cases are of such grave consequence and affect so seriously the lives of many, we will give a detailed analysis of the evidence and issues before this court.

Housing. This family has lived in four different locations during the period preceding the temporary custody order entered. They presently live in a very small trailer as squatters. They have no lease or contract to pay rent. They acquired their present housing under the guise of a temporary stay when the family moved upon Curtis Boley's property and they have remained there since under his charity and sufferance.

Their first dwelling was a trailer in Muhlenberg County which was repossessed. They then moved to two locations in Logan County in rapid succession, ultimately establishing their home in a dilapidated farmhouse that was open to the weather, without running water or toilets, and was heated only by an old fireplace with a broken chimney. They made no attempt to remove or repair that structure while they occupied it and, in fact, had the utilities cut off shortly before the children were removed under a petition for neglect.

Their present home is a trailer, 8' X 26', which was formerly occupied by one person. A view of the exhibits show it's more accommodating for chickens than for human beings. There is no substance or reality to the hope expressed by them that they will add to their present living structure. This fact is denied by the landowner upon whose land they are squatting. Their home, wherever it has existed, has always been grossly inadequate in size. The family is subjected to the elements of weather and vermin. Only after the family was reduced in size from three adults and seven children to three adults has there been any improvement in the cleanliness of their living quarters.

Food/Hunger. The children eat hungrily when fed by neighbors or by personnel at the schools. At first they were fed breakfast and lunch at school by volunteering teachers, and then later as part of the school food program. The children have been observed retrieving food discarded by their classmates from garbage cans, and consuming it. On the other hand, the facts show no accounting of the use of hundreds of dollars per month in food stamps, welfare funds, and multiple donations from private sources. The conclusion is inescapable that the funds and donations were used for things other than the family's basic needs for which they were intended, all to the children's detriment and deprivation.

Personal Hygiene. The children were always seen filthy dirty. The feet were black, their necks ringed with ground-in dirt, hair matted and unwashed. Their condition was so bad that it took several baths to scrub away the filth following their removal from their parents' home.

Clothes. The children's clothes were inadequate despite an avalanche of donations. They did not have proper shoes or coats for winter and, in fact, arrived at school without these articles repeatedly. The school had to keep alternate clothes for them. The clothes they did wear were dirty and unrepaired. P.H.S. was observed wearing diapers which obviously had not been changed for long periods of time.

Medical Circumstances. These children were obviously ill and observed to be carrying untreated and infected wounds and cuts. The infant, P.H.S., is totally deaf but this fact was not discovered until he was removed from his mother and she was told. This child did not receive any special training to enable him to learn the language skills necessary for the human thinking process. At 34 months of age he knew two words. Two children were found to have scabies which were treated only at the insistence of the state welfare agency.

The children are mentally retarded but have received no special training for that condition by the parents.

Sleeping Conditions. The children habitually slept in crowded conditions with unchanged linens. The parents had their own spaces but the children, for example, were forced to sleep several to a couch or bed.

Physical Abuse. There was no evidence of unreasonable physical punishment or abuse, although the children were extremely withdrawn and unresponsive to teachers, classmates, and neighbors.

Sexual Abuse. There is hearsay testimony that H.S. sexually abused his older daughter. The same quality of testimony accuses H.S. of attempting to have sexual relationships with two of his daughters presently removed. H.S. has denied these allegations. Rightfully, the trial court made no finding of sexual abuse in this regard and we do not detect any influence of this inadmissible evidence upon the trial court. There is psychological testimony that these two daughters have a fear of men now, especially of their father. The two children mimicked adult sexual acts while in their foster homes.

Maternal Influences. V.S. does not demonstrate adequate parenting skills necessary to meet the needs of her children. She does not apply herself to CHR's offer to train her. While she claims to love her children she does not show continuous interest in them, does not watch over them or provide for them.

E.S. is a very young mother without skills or education. She has refused to seek state assistance suggested to her for the reason that she wants to raise her son by herself. However, she has no personal resources to follow through with her desires.

Paternal Influence. Other than objecting to having his rights terminated, H.S. displays hardly any other interest in his children. He is a very infrequently employed farmhand who has no skills beyond raising and harvesting tobacco. In 1983 he earned $800 and was satisfied that he was thereby gainfully employed. Since his arrival at the Boley farm he has worked occasionally as a day laborer for the landowner. When jobs are obtained for him he will leave them. For example, his excuse for leaving a job will be that the lunch break is not long enough, or he will have some other synthetic excuse to quit.

The Removal of the Children. The parents knew why their children were temporarily removed from their custody. They were aware of the treatment plans worked out with CHR to unite their family. The plan required the parents to find suitable housing, keep it clean, find steady employment, and acquire parenting skills. They refused and failed to meet these requirements as planned. They demonstrated efforts to comply only at a time just prior to the trial of the case. It is overwhelmingly obvious the parents wanted all of the welfare benefits they could muster but none of the responsibilities attendant with the benefits.

The Foster Homes. Since the removal of the children to foster homes they demonstrate great improvement. They are learning personal hygiene and grooming skills, and how to complete household chores. Former habits such as sexual mimicking and playing with their own excrement have ceased. The children now are outgoing in personality and improving in school within the limits of their abilities. The children love their parents but the difference between their former home and their foster homes is noticed by a remark from one of them, "I live in a real house now."

The testimony before the trial court has produced a voluminous record for review, and with that in mind, we will discuss the many allegations of error subscribed to the trial court.

The appellants' first assignment of error attacks the sufficiency of evidence before the trial court upon which the termination of parental rights would be proper. It is contended that the Cabinet failed in its burden of proof by clear and convincing evidence that the infant, P.H.S., has been abandoned or substantially, continuously or repeatedly neglected or abused. Further, it is contended that the trial court erred in considering the economic factors and poverty of the parents as relevant to the issue of whether the parental rights of the appellants should be terminated.

The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and N.S. v. C. and M.S., Ky., 642 S.W.2d 589 (1982). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to...