Appendix — T. G. v. Kentucky Cabinet for Health and Family Services (No. 09-120)

1A

625.090 Grounds for termination.

1)

2)

The Circuit Court may involuntarily terminate all

parental rights of a parent of a named child, if the

Circuit Court finds from the pleadings and by

clear and convincing evidence that:

a) 1. The child has been adjudged to be an abused

or neglected child, as defined in KRS

600.020(1), by a court of competent

jurisdiction;

2. The child is found to be an abused or

neglected child, as defined in KRS

600.020(1), by the Circuit Court in this

proceeding; or

3. The parent has been convicted of a criminal

charge relating to the physical or sexual

abuse or neglect of any child and that

physical or sexual abuse, neglect, or

emotional injury to the child named in the

present termination action is likely to occur

if the parental rights are not terminated;

and

b) Termination would be in the best interest of the

child.

No termination of parental rights shall be ordered

unless the Circuit Court also finds by clear and

convincing evidence the existence of one (1) or

more of the following grounds:

a) That the parent has abandoned the child for a

period of not less than ninety (90) days;

b) That the parent has inflicted or allowed to be

inflicted upon the child, by other than

accidental means, serious physical injury;

c) That the parent has continuously or repeatedly

inflicted or allowed to be inflicted upon the

d)

e)

f)

g)

2A

child, by other than accidental means, physical

injury or emotional harm;

That the parent has been convicted of a felony

that involved the infliction of serious physical

injury to any child;

That the parent, for a period of not less than

six (6) months, has continuously or repeatedly

failed or refused to provide or has been

substantially incapable of providing essential

parental care and protection for the child and

that there is no reasonable expectation of

improvement in parental care and protection,

considering the age of the child;

That the parent has caused or allowed the

child to be sexually abused or exploited;

That the parent, for reasons other than poverty

alone, has continuously or repeatedly failed 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 that there is no

reasonable expectation of significant

improvement in the parent's conduct in the

immediately foreseeable future, considering

the age of the chi'd;

h) That:

1. The parent's parental rights to

another child have _ been

involuntarily terminated;

2. The child named in_ the

present termination action

was born subsequent to or

during the pendency of the

previous termination; and

3)

i)

3A

3. The conditions or factors which

were the basis for the previous

termination finding have not

been corrected;

That the parent has been convicted in a

criminal proceeding of having caused or

contributed to the death of another child as a

result of physical or sexual abuse or neglect; or

That the child has been in foster care under the

responsibility of the cabinet for fifteen (15) of

the most recent twenty-two (22) months

preceding the filing of the petition to terminate

parental rights.

In determining the best interest of the child and

the existence of a ground for termination, the

Circuit Court shall consider the following factors:

a)

b)

Cc)

Mental illness as defined by KRS 202A.011(9),

or mental retardation as defined by KRS

202B.010(9) of the parent as certified by a

qualified mental health professional, which

renders the parent consistently unable to care

for the immediate and cngoing physical or

psychological needs of the child for extended

periods of time;

Acts of abuse or neglect as defined in KRS

600.020(1) toward any child in the family;

If the child has been placed with the cabinet,

whether the cabinet has, prior to the filing of

the petition made reasonable efforts as

defined in KRS 620.020 to reunite the child

with the parents unless one or more of the

circumstances enumerated in KRS 610.127 for

not requiring reasonable efforts have been

substantiated in a written finding by the

District Court;

4)

5)

6)

4A

d) The efforts and adjustments the parent has

made in his circumstances, conduct, or

conditions to make it in the child's best

interest to return him to his home within a

reasonable period of time, considering the age

of the child;

e) The physical, emotional, and mental health of

the child and the _ prospects for the

improvement of the child's welfare if

termination is ordered; and

f) The payment or the failure to pay a reasonable

portion of substitute physical care and

maintenance if financially able to do so.

If the child has been placed with the cabinet, the

parent may present testimony concerning the

reunification services offered by the cabinet and

whether additional services would be likely to

bring about lasting parental adjustment enabling

a return of the child to the parent.

If the parent proves by a preponderance of the

evidence that the child will not continue to be an

abused or neglected child as defined in KRS

600.020(1) if returned to the parent the court in

its discretion may determine not to terminate

parental rights.

Upon the conclusion of proof and argument of

counsel, the Circuit Court shall enter findings of

fact, conclusions of law, and a decision as to each

parent-respondent within thirty (30) days either:

a) Terminating the right of the parent; or

b) Dismissing the petition and stating whether

the child shall be returned to the parent or

shall remain in the custody of the state.

Effective: July 14, 2000

History: Amended 2000 Ky. Acts ch. 60, sec. 6,

effective July 14, 2000. -- Amended 1998 Ky. Acts ch.

57, sec. 16, effective March 17, 1998. -- Amended

1994 Ky. Acts ch. 242, sec. 17, effective July 15, 1994.

-- Amended 1988 Ky. Acts ch. 350, sec. 75, effective

April 10, 1988. -- Created 1986 Ky. Acts ch. 423, sec.

105, effective July 1, 1987.

NO. 05AD500119T JEFFERSON CIRCUIT COURT

FAMILY DIVISION NINE (9)

IN THE INTEREST OF: AMANDA JULIET

MALLIN,

AN INFANT

ORDER TERMINATING PARENTAL RIGHTS

AND

ORDER OF JUDGMENT

This cause coming on to be heard on the

petition filed by the Cabinet for Health and Family

Services, Commonwealth of Kentucky, to terminate

the parental rights of the mother of the infant

Petitioner, Amanda Juliet Mallin, female, born on

January 17, 2008, and it appearing that all necessar

parties have been properly brought before the Court;

the Guardian Ad Litem haviing filed a report; and,

the Court having heard the evidence and found by

clear and convincing evidence that:

1. The child, Amanda Juliet Mallin, is an

abused and neglected child as defined in KRS

600.020.

2. The Respondent mother, for a penof of not

less than six (6) months, has continuously or

repeatedly failed or refused to provide or has been

substantially incapable of providing essential

parental care and protection for the child and there is

no reasonable expectation of improvement in

parental care and protection, considering the age of

the child.

3. The Respondent mmother, for reasona other

than poverty alone, has continuously or repeatedly

7A

failed 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 the parent’s conduct in

the immediately foreseeable future, considering the

age of the chhild.

4. Termination of parental rights is in the best

interest of the child.

5. The Cabinet for Health and Family Services

is best qualified to receive custody of the child.

NOW, THEREFORE, IT IS ORDERED AND

ADJUDGED that the parental rights of the

Respondent mother of Amanda Julie Mallin, are

hereby terminated, and

IT IS FURTHER ORDERED that the

Respondent mother, under oath, was questioned by

this Court about possible fathers for the infant

petitioner and was unable to name any persons other

than those previously excluded and is_ thereby

estopped from naming any further putative fathers

for Amanda Juliet Mallin;

IT IS FURTHER ORDERET that the full care,

custody and control of the infant Petitioner, Amanda

Juliet Mallin, be vested in the

Cabinet for Health and Family Services,

Commonwealth of Kentucky, with auithority to place

said child for adoption,and,

IT IS FURTHER ORDERED that the infant

Petitioner, Amanda Juliet Mallin, shall be and

hereby is made a ward of the State.

This is a final judgment, there being no just

cause for delay.

This the 14 day of March, 2006.

JUDGE, JEFFERSON CIRCUIT COURT

FAMILY DIVISION NINE(9)

SA

RENDERED: MAY 18, 2007; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2006-CA-001008-ME

T.G., MOTHER

APPELLANT

APPEAL FROM JEFFERSON FAMILY COURT

v. HONORABLE STEPHEN M. GEORGE,

JUDGE

ACTION NO. 05-AD-500119

COMMONWEALTH OF KENTUCKY,

CABINET FOR HEALTH AND FAMILY

SERVICES; A.J.M., AN INFANT

APPELLEES

OPINION

REVERSING

oR eK KOK OKoK KK

BEFORE: ACREE, KELLER, AND LAMBERT,

JUDGES

KELLER, JUDGE: T.G. has appealed from the

Jefferson Family Court’s March 16, 2006, order

terminating her parental rights to her infant

daughter, A.J.M., and transferring her custody to the

Cabinet for Health and Family Services with the

authority to place her for adoption. Having

determined that the family court abused its

discretion in terminating T.G.’s parental rights, we

reverse.

9A

T.G. is the biological mother of A.J.M., born

January 7, 2004. Upon her birth, the Cabinet

requested that A.J.M. be put on a 72-hour hold and

filed an Emergency Custody Order (ECO) to obtain

custody of her. The ECO was based on T.G.’s

diagnosis of obsessive compulsive disorder and the

prior removal of her two older children due to her

noncompliance with treatment and her stipulation of

abuse and neglect. The ECO was later dismissed.

On August 26, 2004, the Cabinet filed for a

second ECO, which was granted, and four days later

filed a Juvenile Dependency, Neglect and Abuse

Petition, alleging that A.J.M. was a neglected and

abused child. The supporting affidavit from social

worker Sky Tanghe read as follows:

On or about July 29, 2004 CHFS received a

replor|t of neglect of child’s NM, [T.G.], indicating

while NM was at the bat[t]ing cage in Louisville KY

she laid child on the concrete ground. During further

investigation of case DCBS was advised by NM that

she had 3 rental properties, one of which she would

not allow social workers to enter, another home

(where NM and child resided) was found to be in

unsafe and unsanitary conditions. There are items

stacked to the ceiling, the kitchen sink was full with

dirty dish[es] and stagnant water, [the] kitchen floor

was cluttered with several boxes, paint can and old

food. The NM signed a safety plan stating that she

would reside at her 3” [property.] This FSW observed

this home and found home to be empty with a daybed

(without a mattress) and a playpen. FSW has

concerns that NM is not actually living in this home.

NM reports she is remodeling her other 2 properties

in order to rent them to others. Child currently

attends daycare at Kindercare iearning center, staff

has indicated concerns over NM’s | behavior,

specifically stating there have been several times NM

has brought the child into daycare with only a diaper

LOA

on and has asked the teacher to dress the child. On

morning of 8-18-04 NM brought child to daycare,

dressed. The NM was asked to fill out a form, in the

middle of doing so she stopped, grabbed the child and

stormed outside. NM then brought child back into

daycare undressed, she asked teacher to dress child

when she woke up (the child was already awake in

NWM’s arms). Daycare indicates child appears never to

be clean and her clothes are filthy. On first day NM

came to pick child up from daycare she did not

recognize her chiid. The NM looked at the teacher

and then at her child and then asked where her child

was, she then slowly turned around and panicked

asking where her child was. NM has a significant

history with CPS, her oldest two children are in the

permanent custody of [t]heir MGM due to neglect by

NM and NF. Mother has been diagnosed with

obsessive compulsive disorder and elements of a

paranoid personality. NM has_ received an

assessment from Dr. Linda Baille]y who believes NM

would benefit from ongoing supportive and evaluative

therapy as well as medication for her anxiety

disorder. Child’s NF, [Andrew M.], is not paying child

support and does not having ongoing supportive

contact with child. Affiant believes this child is at

significant risk of neglect if left in the home with her

NM.

Following an adjudicative hearing on October

6, 2004, the family court entered an order finding the

allegations in the petition were true, the A.J.M. was

neglected, that reasonable efforts were made to

prevent her removal from the home, and that A.J.M.

was to remain in the custody of the Cabinet.

Following a disposition hearing, the family court

entered an order on December 8, 2004, finding that

reasonable efforts were made to prevent A.J.M.’s

removal from the home and that it was in her best

interest for the court to take custody of her. The

family court then committed A.J.M. to the Cabinet,

L1A

ordering T.G. to cooperate with the Cabinet and

participate in any treatment or social service

program, and ordered her to pay $70 per month in

child support. While the initial goal was to return

A.J.M. to her mother, the Cabinet moved to change

the permanency goal to adoption. To that end, the

Cabinet filed a Petition for Involuntary Termination

of Parental Rights on April 8, 2005, naming both T.G.

and Andrew M., A.wJ.M.’s_ putative father, as

respondents. The family court appointed a guardian

ad litem to represent A.J.M.’s interests. A bench trial

was held on November 1, 2005.

During the trial, the Cabinet introduced the

live testimony of four witnesses. Deposition

testimony from two more witnesses was filed

subsequent to the trial. Dr. Sally Brenzel, a licensed

clinical psychologist who was qualified as an expert

witness, performed a psychological evaluation on T.G.

in 2005. As a result of her evaluation, Dr. Brenzel

diagnosed T.G. with Generalized Anxiety Disorder

and Borderline Personality Disorder with obsessive

compulsive traits. She testified that these diseases

and the symptoms associated with them are

treatable, but dramatically atiect T.G.’s ability to

parent A.J.M. Her ability to parent was affected in

that she was unable to exercise good judgment and

follow through with A.J.M’s basic needs or to navigate

various relationships, both personal and

professional. In Dr. Brenzel’s opinion, improvement

would be possible if T.G. could form and maintain

baseline cornmunication with the critical people in

her life. Dr. Brenzel admitted on cross-examination

that there had not been any report of injury to A.J.M.

Dr. Peggy Kinnetz, a mental health counselor

who worked with T.G. in a parenting group, testified

that T.G. completed her classes. Dr. Kinnetz

observed T.G. with A.J.M. and was initially concerned

about a lack of bonding, although this improved. She

was noted problems with T.G.’s ability to set

12A

boundaries and to put A.J.M.’s needs above her own.

Other areas of concern included T.G.’s refusal to take

responsibility for previous neglect or abuse and her

mistrustful and suspicious nature. Regarding her

anxiety diagnosis, Dr. Kinnetz stated that the

disorder would affect her ability to make good

decisions and to relate to others.

T.G.’s stepmother, Nancy G., testified about

the problems she encountered when she and her

husband (T.G’s father and A.J.M.’s grandfather)

supervised T.G’s_ visitation with A.J.M. for

approximately two months in early 2005. While the

first few visits were very good, later ones were not.

Nancy G. testified that T.G. excessively changed

A.J.M.’s diapers, rearranged A.J.M.’s clothing, fed her

inappropriate good, engaged in arguments in A.J.M.’s

presence, kept A.J.M. up too late and left her on the

floor during a shower.

Social worker Sky Tanghe was the last witness

who testified for the Cabinet live at trial. She

testified that she had been working with the family

since 1996, when the first abuse allegation arose.

Her first contact with A.J.M. was right after her

birth, when the ECO was filed. Tanghe reopened the

case on July 30, 2004, when she received a report of

neglect. The report was that T.G. left A.J.M. on the

concrete ground while she engaged in batting practice.

An assessment team went to T.G.’s home and found

the residence to be in deplorable condition. An ECO

was entered and A.J.M. was removed. The record of

the dependency action was admitted without

objection. Tanghe also testified about the services

the Cabinet provided to T.G., including putting a

HELP team in place, providing parenting classes,

scheduling evaluations, and providing therapy. She

noted that while T.G. had _ attended her

appointments, she had not completed all of the

services recommended for her. Tanghe could not

identify any improvement related to T.G.’s mental

13A

health issues, as she could not establish a

relationship with a therapist. While Tanghe stated

that T.G.’s support payments were not consistent, she

would bring food, toys, and clothes during visitations.

A.J.M.’s physical health was good at the time of the

removal. At the time of trial, A.J.M. was medically in

great shape and was above average in intelligence

and development. Tanghe indicated that her foster

home wanted to adopt A.J.M., and that her foster

mother has a strong relationship with A.J.M.’s

maternal grandparents, so that contact would be

kept up with the family after the adoption. Finally,

Tanghe testified that there was nothing more the

Cabinet could do to address T.G.’s mental health or

to effect a successful reunification because T.G. would

not take advantage of the services offered to her or

stick with anything.

The Cabinet also relied upon the deposition

testimony of clinical psychologist Dr. Patricia

Aulbach and mental health counselor Dr. Daya Singh

Sandhu. Dr. Aulbach started a_ therapeutic

relationship with T.G. in mid-2005 regarding her

mental issues on the recommendation of Dr. Kinnetz.

T.G.s’ initial diagnosis was Generalized Anxiety

Disorder and Paranoid Personality Disorder. Dr.

Aulbach noted that T.G. was very anxious during the

sessions, due to her concerns about the Cabinet, and

they were unable to develop a_ therapeutic

relationship. At the end of their relationship, Dr.

Aulbach gave T.G. a poor prognosis, unless she was

willing to develop a relationship with a therapist and

work on her issues. Dr. Singh met with T.G. three or

four times. He was unable to formulate an opinion

regarding T.G.’s ability to parent as he did not have

enough contact with her. Dr. Singh did testify that

T.G. worried that is she _ received psychiatric

treatment, it would negatively affect her case.

T.G. relied upon the testimony of licensed

certified social worker and marriage counselor Alison

4A

Johnson. She and T.G. first met in late 2004, and

resumed their sessions in late 2005. In these

sessions, they addressed T.G.’s anxiety over her

children. During the later visits, Johnson noted that

T.G. was more balanced emotionally and was

learning to be a better parent with a greater

willingness to listen. She testified that a long-term

therapeutic relationship depended on T.G., and that

she felt connected so far. Johnson also stated that

other groups, both in and out of the home, would be

beneficial to T.G. She admitted on cross-examination

that she had not reviewed other records, but was

aware of T.G.’s diagnosis and that she was taking an

antianxiety medication. Although she could not

recommend that A.J.M. be returned home at that

time, Johnson recommended a structured transition.

T.G. also relied upon the testimony of Betty

Scharfenberger, who participated in group therapy

sessions with her at Recovery, Inc. Betty testified

that T.G. got better and calmer over time and had

improved due to the program.

Finally, T.G. testified as to the issues raised in

the proceeding. She testified that she has a degree in

advertising and marketing, and currently rents

properties. Regarding the state of her residence when

A.J.M. was removed, T.G. explained that she was

remodeling the unit, and that any problems were

either accidental or unavoidable (i.e., the clogged

sink). At the time of the trial, the unit was clean.

Regarding the batting cage incident, T.G. testified

that she did not intend to be neglectful, as she had

placed A.J.M. on a blanket and kept her eye on her.

She testified that she was under considerable

pressure from the Cabinet to be perfect. She also

was able to dispute or explain Nancy G.’s testimony

regarding the incidents from their visitations. T.G.

indicated that she wished to continue her sessions

with Alison Johnson, as they had a good therapeutic

relationship. She also pointed out that she engaged

LSA

in regular visitation with A.J.M., had been paying

child support, and had completed her parenting

classes. She believed that she could care for A.J.M.

and that she should be returned to her.

On March 16, 2006, the family court entered

its Findings of Fact, Conclusions of Law as well as

the Order Terminating Parental Rights and Order of

Judgment. In the order, the family court made the

following findings:

1. The child, [A.J.M.], is an abused and

neglected child as defined in KRS 600.020.

2. The Respondent mother, for a period of not

less..than six (6) moths, has continuously or

repeatedly failed or refused to provide or has been

substantially incapable of providing’ essential

parental care and protection for the child and there is

no reasonable expectation of improvement in the

parental care and protection, considering the age of

the child.

3. The Respondent mother, for reasons other

than poverty alone, has continuously or repeatedly

failed 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 the parent’s conduct in

the immediately foreseeable future, considering the

age of the child.

4. Termination of parental rights is in the best

interest of the child.

5. The Cabinet of Health and Family Services

is best qualified to receive custody of the child.

The family court went on to vest the Cabinet with

A.J.M.’s custody, along with the authority to place her

for adoption, and made her a ward of the State. The

family court later denied T.G.’s CR motion to alter,

amend or vacate, or for a new trial. This appeal

followed.

16A

On appeal, T.G. raises several arguments.

First, she attacks the constitutionality of KRS

625.090(1)(a)(1)., in that a court is permitted to

adopt the findings from a dependency adjudication,

which is afforded a lower standard of proof than

required in a termination proceeding. Second, T.G.

argues that the family court’s finding of abuse or

neglect was not supported by substantial evidence.

Third, she asserts that the family court’s findings

under KRS 625.090(2) that several grounds existed

were not supported by substantial evidence. In

conjunction with her last argument, T.G. asserts that

the family court erred in finding that the Cabinet

made a reasonable effort for reunification and in

considering testimony concerning her mental health,

as no witness was qualified as a mental health

expert.

STANDARD OF REVIEW

Our standard of review in termination of parental

rights cases is set forth in M.P.S. v. Cabinet for

Human Resources, 979 S.W.2d 114, 116-17 (Ky. App.

1998):

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

neglects warrants termination. Department for

Human Resources v. Moore, Ky. App., 552 S.W.2 672,

675 (1977). This Court’s standard of review in a

termination of parental rights action is confined to

the clearly erroneous standard of 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).

L7A

“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 convince ordinarily

prudent-minded people.” Rowland v. Holt, 253 Ky.

718, 726, 70 S.W.2d 5, 9 (1934).

With this standard in mind, we shall address the

issues T.G. has raised in her appeal.

ANALYSIS

The General Assembly provided the mechanism

for the involuntary termination of parental rights in

KRS 625.090. The statute creates a three-prong test,

whereby the Cabinet must prove, and the circuit court

must determine, that 1) the chid is abused or

neglected, as previously adjudged by a court of

competent jurisdiction or found to be abused on

neglected in the present proceeding; 2) termination

would be in the child’s best interest, and 3) one of

several listed grounds exists. In deciding the second

and third prongs, the circuit court is required to

consider several enumerated factors, as listed in KRS

625.090(3).

I. CONSTITUTIONALITY OF KRS

625.090(1)(a)1.

The first determination a circuit court must make

is whether a child is, or has been adjudged to be,

abused or neglected as defined in KRS 600.020(1).

Specifically, the statute reads:

(1) The Circuit Court may be _ involuntarily

terminate all parental rights of a parent of a named

child, if the Circuit Court finds from the pleadings

and by clear and convincing evidence that:

(a) 1. The child has been adjudged to be an

abused or neglected child, as defined in KRS

600.020(1), by a court of competent jurisdiction;

2. The child is found to be an abused or

neglected child, as defined in KRS 600.020(1), by the

Circuit Court in this proceeding; or

3. The parent has been convicted of a criminal

charge relating to the physical or sexual abuse or

neglect of any child and and that physical or sexual

abuse, neglect, or emotional injury to the child named

in the present termination action is likely to occur if

the parental rights are not terminated|[.]

T.G. contends that the first option violated due

process, in that ti allows a circuit court to accept

information and a finding of neglect or abuse that

was based upon the lower preponderance of the

evidence standard, as opposed to the higher clear and

convincing standard mandated in _ involuntary

termination proceedings. The Cabinet argues that

there are no constitutional implications, as the prior

adjudication effectuates a rebuttable presumption

that a child holds the status of abused or neglected,

and this presumption is merely a_ threshold

requirement in a review that as a Sum must be based

upon clear and convincing evidence. Furthermore, the

Cabinet argues that the legislature is presumed to be

aware of the different standards applicable to

dependency and termination proceedings and must

have deemed the dependency adjudications reliable

by including that particular option in the first prong.

The Unites States Supreme Court elevated the

standard of proof for termination proceedings in

Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct.

1388, 1403, 71 L.Ed.2d 599 (1982): “A majority of the

States have concluded that a ‘clear and convincing

evidence’ standard of proof strikes a fair balance

between the rights of the natural parents and the

State’s legitimate concerns .. . We hold that such a

standard adequately conveys to the fact finder the

level of subjective certainty about his factual

conclusions necessary to satisfy due _ process.”

Kentucky’s courts and the legislature have adopted

this standard of proof for involuntary termination

proceedings. KRS 625.090; N.S. v. C. and M.S., 642

S.W.2d 589 (Ky. 1982); J.E.H. v. Dept. for Human

Resources, 642 S.W.2d 600 (Ky.App. 1982). However,

the dependency, neglect, and abuse statute still

requires that a determination, in part, be based only

upon the lower preponderance of the evidence

standard. KRS 620.100(3).

We begin our analysis with the _ strong

presumption that a statute, in this case KRS

625.090(1)(a)1., is constitutional, and we must draw

all fair and reasonable inferences in favor of its

validity. Possey v. Commonwealth, 185 S.W.3d 170,

175 (Ky. 2006); Bess v. Bracken County Fiscal Court,

210 S.W.3d 177 (Ky. App. 2006). Furthermore, we

must presume that the legislature “is aware of the

constitution, previously enacted statutes and the

common law.” Lewis v. Jackson Energy Co-op Corp.,

189 S.W.3d 87, 93 (Ky. 2005). “It is clear that we

should not construe [a statute] as intending an

unconstitutional result if such a construction may be

avoided.” Kentucky Utilities Co. v. Jackson County

Rural Elec. Co-op. Corp., 438 S.W.2d 788, 790 (Ky.

1968). Furthermore, we must presume that the

legislature did not intend an unconstitutional result

in the application of KRS 625.090(1)(a)1. See City of

Louisville v. Churchill Downs, 267 Ky. 339, 102

S.W.2d 10 (1936). “The issue of whether a statute 1s

unconstitutional is a question of law subject to de

novo review.” Wilfong v. Commonwealth, 175 S.W.3d

84, 91 (Ky.App. 2004).

In the case, the way T.G. suggests the family court

applied this particular subsection (and the way it

appears that it was actually applied) clearly does not

pass constitutional muster, as it permits the court in

a termination proceeding mandating a _ higher

20A

standard of proof to adopt a finding from a

dependency action that is based upon a lower

standard of proof. We disagree with each of the

Cabinet’s assertions that the subsection was

constitutional in the way it was applied in this case.

Specifically, we disagree with the assertion that the

legislature created a rebuttable presumption. Our

review of the statute does not reveal any indication

that the legislature intended a finding under KRS

625.090(1)(a)1. to be a rebuttable presumption. In

other statutes, the legislature has clearly set forth

rebuttable presumptions, unlike in this particular

statute. See KRS 189A.010(3)(presumptions in

prosecution for operating a motor vehicle under the

influence); KRS 189.520(3)(presumptions in

prosecution for operating a non-motor vehicle under

the influence); KRS 403.213(2)(15% change in

amount of child support due is rebuttably presumed

to be material change in circumstance); KRS

406.021(4)(voluntarily acknowledgment of paternity

creates rebuttz. ble presumption of paternity); and

KRS 406.011 {child born during marriage is

presumed to be child of husband and wife).

It is the holding of this Court that the mere

filing and adoption of a prior finding of neglect or

abuse, especially one that is not made under a clear

and convincing standard, constitutes error and would

raise constitutional implications. However, in

following our mandate that we must presume that a4

statute is constitutional and draw all fair and

reasonable inferences in favor of its constitutionality,

we hold that KRS 625.090(1)(a)1. may be applied in

a manner that passes constitutional muster. At oral

argument, T.G. argued that she should be permitted

to retry the prior dependency adjudication or be

entitled to a complete reversal of the termination

judgment. We disagree with this part of T.G’s

argument, and hold that a circuit court may perform

an independent review of the evidence submitted in

21A

the dependency action and make its own

determination of abuse or neglect based upon the

elevated standard of proof. Furthermore, either party

would be permitted to offer proof to establish facts

that led to the lower court’s fiisdings of abuse, neglect

or dependency. Therefore, we hold that KRS

625.09\(1)(a)1. is constitutional, so long as it is

correctly applied. :

In the present case, there is absolutely no

indication that the family court made any type of

independent review of the evidence submitted in the

dependency proceeding. It merely adopted the result

of the prior adjudication when it determined that

A.J.M. had been adjudged to be abused or neglected.

For this reason, we hold that there is no substantial

evidence to support the family court’s finding under

KRS 625.090(1)(a)1. that A.J.M. had been adjudged

to be abused or neglected. While this would normally

require us to vacate the judgment to allow the family

court to perform an independent review of the

dependency record, in this case it is not necessary due

to our ultimate holding.

II, FINDING OF ABUSE OR NEGLECT IN THE

PRESENT ACTION

In addition to finding that a child has been

adjudged to be abused or neglected, a circuit court

may determine, based upon clear and convincing

evidence, that “the child is found to be an abused or

neglected child, a» defined in KRS 625.090(1)(a)2. An

“abused or neglected child” is defined as follows:

(1) “Abused or neglected child” means a child

whose health, or welfare is harmed or threatened

with harm when his parent, guardian, or other person

exercising custodial control or supervision of the

child:

(a) Inflicts or allows to be inflicted upon the child

physical or emotional injury as defined in this section

by other than accidental means;

(b) Creates or allows to be created a risk of

physical or emotional injury as defined in this section

to the child by other than accidental means;

(c) Engages in a pattern of conduct that renders

the parent incapable of caring for the immediate and

ongoing needs of the child including, but not limited

to, parental incapacity due to alcohol and other drug

abused as defined by KRS 222.005;

(d) Continuously or repeatedly fails or refuses to

provide essential parental care and protection for the

child, considering the age of the child;

(e) Commits or allows to be committed an act of

sexual abuse, sexual exploitation, or prostitution

upon the child;

(f) Creates or allows to be created a risk that an

act of sexual abuse, sexual exploitation, or

prostitution will be committed upon the child;

(g) Aban@ons or exploits the child;

(h) Does not provide the child with adequate care,

supervision, food, clothing, shelter, and education or

medical care necessary for the child’s well-being . . .;

or

(i) Fails to make sufficient progress toward

identified goals as set forth in the court-approved

case plan to allow for the safe return of the child to

the parent that results in the child remaining

committed to the cabinet and remaining in foster

care for fifteen (15) of the most recent twenty-two (22)

months|[.]

In the present case, the family court’s finding that

A.J.M. is at risk to be abused or neglected appears to

be based on T.G.’s mental health problems and her

history of resultant neglect or abuse or her two older

children. We note that there is only cursory

unsupported information in the record detailing the

reason T.G.’s two older children were removed from

her custody. The family court devoted a considerable

portion of its findings of fact to T.G.’s mental health

diagnoses as well as her treatment and therapy,

23A

ultimately concluding that her treatment had not

remedied her symptoms or improved her condition to

the extent that she could safely care for A.J.M. A

theme running through the reports and testimony of

her treatment providers is T.G.’s inability to engage

in relationships, therapeutic or otherwise. Another

theme is T.G.’s inability to exercise good judgment in

relation to parenting A.J.M. All providers testified

that T.G.’s diagnoses and symptoms were treatable.

At the time of the hearing, T.G. had returned to

a previous counselor, Alison Johnson, whom she

described as “enlightening.” When T.G. resumed

therapy in November 2005, Johnson indicated that

her emotions were more balanced, that she was

handling her diagnoses much better, and that she

was learning to be a better parent. Johnson also

testified that although she could not recommend a

return of A.J.M. to T.G. at that time, an eventual,

supervised return should take place. To T.G.’s credit,

there is no evidence that A.J.M. had ever been

injured, either physically or emotionally, while in her

care, and she was in fact in good health at the time of

her removal. Based upon this evidence of record, we

must conclude that there is no substantial evidence

to support the family court’s finding of abuse or

neglect under KRS 625.090(1)(a)2.

Because there is no substantial evidence to

support a finding under either subsection 1. or 2. or

KRS 625.090(1)(a), and there is no allegation of

criminal charges under subsection 3., the family court

erred in finding that A.J.M. was abused or neglected.

Thus, the first prong of the three-part test has not

been met.

Il. EXISTENCE OF GROUND IN KRS

625.090(2)

Next we will address the final prong of the three-

part test, namely, whether there is clear and

convincing evidence of one or more of several listed

24A

grounds. KRS 625.090(2). The grounds listed in the

statute are:

(a) That the parent has abandoned the child for a

period of not less than ninety (90) days;

(b) That the parent has inflicted or allowed to be

inflicted upon the child, by other than accidental

means, serious physical injury;

(c) That the parent has continuously or repeatedly

inflicted or allowed to be inflicted upon the child, by

other than accidental means, physical injury or

emotional harm;

(d) That the parent has been convicted of a felony

that involved the infliction of serious physical injury

to any child;

(e) That the parent, for a period of not less than

six (6) months, has continuously or repeatedly failed

or refused to provide or has been substantially

incapable of providing essential parental care and

protection for the child and that there is no

reasonable expectation of improvement in parental

care and protection, considering the age of the child;

(f) That the parent has caused or allowed the child

to be sexually abused or exploited;

(g) That the parent, for reasons other than poverty

alone, has continuously or repeatedly failed 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 that there is no_ reasonable

expectation of significant improvement in_ the

parent’s conduct in the immediately foreseeable

future, considering the age of the child;

(h) That:

1. The parent’s parental rights to another chid

have been involuntarily terminated;

2. The child named in the present termination

action was born subsequent to or during the pendency

of the previous termination; and

25A

3. The conditions or factors which were the basis

for the previous termination finding have not been

corrected;

(i) That the parent has been convicted in a

criminal proceeding of having caused or contributed

to the death of another child as a result of physical or

sexual abuse or neglect; and

(j) That the child has been in foster care under the

responsibility of the cabinet for fifteen (15) of the

most recent twenty-two (22) months preceding the

filing of the petition to terminate parental! nghts.

To determine whether one or more of the grounds

exist, a trial court is required to consider the

following factors, which are set forth in KRS

625.090(3):

(a) Mental illness as defined by KRS 202A.011(9),

or mental retardation as defined by KRS

202B.010(9) of the parent as certified by a qualified

mental health professional, which renders the parent

consistently unable to care for the immediate and

ongoing physical or psychological needs of the child

for extended periods of time:

(b) Acts of abuse or neglect as defined in KRS

600.020(1) toward any child in the family;

(c) If the child has been placed with the cabinet,

whether the cabinet has, prior to the filing of the

petition made reasonable efforts as defined in KRS

620.020 to reunite the child with the parents unless

one of inore of the circumstances enumerated in KRS

610.127 for not requiring reasonable efforts have

been substantiated in a written finding by the

District Court;

(d) The efforts and adjustments the parent has

made in his circumstances, conduct, or conditions to

make it in the child’s best interest to return him to

his home within a reasonable period of time,

considering the age of the child;

26A

(e) The physical, emotional, and mental health of

the child and the prospects for the improvement of

the child’s welfare if termination is ordered; and

(f) The payment or the failure to pay a reasonable

portion of substitute physical care and maintenance

if financially able to do so.

In the present case, the family court determined

that grounds existed under KRS 625.090(2)(e) and

(g). In its review of the six factors, the family court

found that the Cabinet rendered reasonable efforts to

reunify the family. KRS 625.090(3)(c). Furthermore,

the family court found that the Cabinet had met

A.J.M.’s needs since removal from T.G.’s custody and

the prospects for improvement of A.J.M.’s welfare

was greater is parental rights were terminated as her

foster family wanted to adopt her. KRS 625.090(3)(e).

Finally, the family court found that the Cabinet

examined T.G.’s mental health. KRS 625.090(3)(a).

We shall first address the factors from the list of

six the family court considered in determining

whether any grounds existed. While there was

testimony concerning T.G.’s mental illness, we note

that such mental illness must “render[] the parent

consistently unable to care for the immediate and

ongoing physical or psychological needs of the child

for extended periods of time[.]” KRS 625.090(3)(a). In

her brief, T.G. focuses on the requirement that the

mental illness must be certified by a qualified

mental health professional, but we not address that

argument, primarily because the family court did not

conclude or find that T.G.’s mental illness rendered

her unable to consistently care for A.J.M. In addition,

we note that psychologist Dr. Brenzel testified that

T.G’s diagnoses dramatically affect her ability to

parent, but are manageable, and improvement is

possible if she can form and maintain baseline

relationships with the critical people in her life.

Mental health counselor Dr. Kinnetz noted the

progess T.G. made during their 2004 sessions, but

27A

her mistrust and suspicions would not allow A.J.M.

to be returned to her at that time. Neither of these

witnesses testified that T.G.’s mental illness brought

her within the scope of the statute.

As to the reunification issue, the Cabinet did

make efforts by providing parenting classes and

therapy for T.G. However, T.G. completed what the

Cabinet recommended, and much of what the

Cabinet social worker Tanghe testified to took place

prior to A.J.M.’s birth. Furthermore, the Cabinet did

not offer in-home services to T.G. when social worker

and counselor Alison Johnson recommended these

services for a successful reunification.

Our review of the evidence fails to reveal any

substantial evidence that T.G. failed or was

incapable of providing essential food, clothing, shelter

or medical care. This was evident through the results

of A.J.M.’s medical examination and testimony that

she is above-average in both her intelligence and

developmental levels. For this reason, the family

court erred in finding otherwise.

Because we have determined that no substantial

evidence exists to support the family court’s finding

that A.J.M. was abused or neglected, or that a ground

supporting termination exists, we hold that the

family court clearly abused its discretion in

terminating T.G.’s parental rights to A.J.M. at this

time.

CONCLUSION

For the foregoing reasons, the judgment of the

Jefferson Family Court terminating T.G.’s parental

rights is reversed.

ALL CONCUR

BRIEFS AND ORAL ARGUMENT FOR

APPELLANT:

Gregory Ward Butrum

Louisville, Kentucky

BRIEF AND ORAL ARGUMENT FOR

APPELLEE, COMMONWEALTH OF

KENTUCKY, CABINET FOR HEALTH AND

FAMILY SERVICES:

Erika L. Saylor

Louisville, Kentucky

29A

Rendered August 21, 2008

Not to be published

Supreme Court of Kentucky

2007-SC-000436-DGE

AND

2007-SC-000821-DGE

COMMONWEALTH OF KENTUCKY

CABINET FOR HEALTH AND FAMILY

SERVICES; AND A.J.M., A CHILD

APPELLANT/CROSS-APPELEE

ON REVIEW FROM COURT OF APPEALS

V. CASE NUMBER 2006-CA-001008

JEFFERSON FAMILY CIRCUIT COURT NO.

05-AD-500119

T.G., MOTHER APPELLEE/CROSS-

APPELLANT

OPINION OF THE COURT BY JUSTICE

ABRAMSON

REVERSING AND REINSTATING

The commonwealth of Kentucky, cabinet for

Health and Family Services (the Cabinet) and A.J.M.

have appealed a decision of the Court of Appeals

reversing the Jefferson Family Circuit Court’s

termination of T.G.’s parental rights as to her

daughter, A.J.M. Following a December 20, 2005

30A

bench trial, and the submission of a subsequent

deposition, the Jefferson Family Circuit Court

entered and order on March 14, 2006, finding that

A.J.M. was an abused or neglected child as defined in

KRS 600.020(1), and that it was in A.J.M.’s best

interest for T.G.’s parental rights to be involuntarily

terminated. In its opinion reversing the family court’s

order, the Court of Appeals found no substantial

evidence to support the findings that A.J.M. was

abused or neglected, and no grounds for termination.

Ultimately, the Court ot Appeals held that the family

court abused its discretion by terminating T.G.’s

parental rights and awarding custody of A.J.M. to the

Cabinet with authority to place her for adoption. On

discretionary review to this Court, we find that the

family court did not abuse its discretion § in

terminating T.G.’s parental rights and that the Court

of Appeals erred in finding as such. Therefore, we

reverse the Court of Appeals Opinion and reinstate

the Jefferson Circuit Court’s order terminating T.G.’s

parental rights.

RELEVANT FACTS

Although A.J.M is now only fours years old, her

mother, T.G., has been involved with Kentuckys

Cabinet for Health and Family Services for over ten

years. In 1996, following a petition filed by the

Cabinet, the family court ordered the removal of

T.G.’s then one-year-old son, N.M., from her care

based on a pattern of domestic abuse between T.G.

and N.M.’s father. In May 1997, T.G. stipulated to the

neglect of her son and he was returned to her. In

January 1998, the Cabinet filed a second petition

with regard to both N.M. and B.M., (T.G.’s then infant

daughter) alleging T.G. was non-compliant with

necessary medical treatment. In March 2001, the

Cabinet filed its third petition noting excessive

school absences and abusive discipline. After T.G.

31A

stipulated to neglect of both children in May 2001,

the children were allowed to remain in T.G.’s care

under Cabinet Supervision. Two months later,

however, in July 2001, a fourth petition was filed

alleging a lack of supervision and abusive discipline.

The Jefferson Family Circuit Court subsequently

removed N.M. and B.M. From T.G.’s care and, after

finding both children to be abused or neglected,

awarded permanent custody of them to their

maternal grandmother in May 2002.

On January 7, 2004, T.G. gave birth to her

third child, A.J.M.’ Based on T.G.’s history of neglect,

the family court granted the Cabinet’s emergency

Custody Order (ECO) and placed A.J.M. in the

Cabinet’s custody on the day of her birth. After the

Jefferson County Attorney rejected the Cabinet’s

petition, the family court dismissed the ECO and on

January 12, 2004, returned A.J.M to T.G.’s care.

Six months later, on or about July 29, 2004,

the Cabinet received an allegation of neglect after a

batting cage attendant reported that G.G. had placed

A.J.M. on the concrete just outside of the batting cage

where T.G> was practicing.’ The Cabinet responded

to this report by sending to social workers to visit

T.G. at her residence in order to investigate A.J.M.’s

home life. During the July 30, 2004 visit, T.G.

reported that she owned three rental properties and

that two of them were in the process of being

remodeled. Although T.G. denied the social workers

access to one of her units, she did show them the unit

|! A.J.M.’s alleged father was excluded by subsequent paternity

testing and her biological father is unknown.

2

During the termination of parental rights trial, T.G. testified

that she had laid A.J.M. (then almost seven months old) down

on a blanket on her stomach a few feet away from the door of

the batting cage.

where she and A.J.M. were then living, Unit #43.' The

social workers observed this unit to have unsafe and

unsanitary conditions throughout, such as large piles

of clothes, toys, and other items stacked on the couch,

tables and the floor; dirty carpet that had dog feces

smeared on it; half-eaten containers of food and

several plates of dog food piled on the kitchen floor;

stagnant, dirty water in the kitchen sink; dirty dishes

piled in and around the sink; and a _ brownish

discoloration on the kitchen counters and around the

sink. When the social workers visited T.G.’s third

unit, unit #57, the observed that although it only

contained a daybed and a playpen, it would be

appropriate housing for a mother and child. Following

their visit, T.G. signed a safety plan agreeing to

reside in unit #57 until her primary residence, unit

#43, was improved.

Several days after this home visit, on August

6, 2004, the Cabinet created a prevention plan for

T.G., which she signed. This plan set forth five terms

of T.G. to follow, including cooperation with the HELP

Team to address the disarray of her home; consenting

to a psychological evaluation and agreeing to follow

all recommendations; and continuing to reside at

unit#57 until her other rental unit was clean and

safe. In complying with this prevention plan, T.G.

participated in a psychological evaluation by Dr.

Linda Bailey on August 16, 2004. Dr. Bailey

concluded that T.G. suffered from an anxiety disorder,

most likely an obsessive compulsive type with

evidence of paranoia, and recommended that T.G.

' Although the family court’s findings of fact indicate that T.C.

told the social workers that unit #35 was her primary

residence, the pictures submitted by the Cabinet as Exhibit #5

and T.G’s own testimony confirm that the unit was referred to

by the trial court as having unsafe and unsanitary conditions

was actually #43. At the termination of parental rights trial,

T.G. stated that she still iives in unit #43.

engage in supportive therapy and medication

treatment.

On August 24, 2004, the Cabinet social worker

followed up with T.G. bv visiting her at the unit where

she and A.J.M. had agreed to live, unit #57. Upon

arriving, however, the social worker observed that

T.G. was paranoid and disoriented. Furthermore,

other then a daybed, playpen, and some clothes piled

on the floor, the unit was still empty. Concerned that

T.G. and A.J.M. were not actually living at this unit,

the Cabinet obtained an ECO for A.J.M., and she was

placed in the Cabinets custody. A few days later, on

August 30, 2004, the Cabinet filed a petition with the

Jefferson Family Circuit Court alleging that A.J.M

was at a significant risk of neglect if left in the care of

T.G. In its petition, the Cabinet cited evidence of this

risk by noting the batting cage incident; the

deplorable condition of T.G.’s primary residence, unit

#43; the possibility that T.G. and A.J.M. may not be

living at the approved housing, unit #57; and the

concerns expressed by the workers at A.J.M.’s day

care over T.G.’s erratic behavior. '

_—- oe --

| In its petition, the Cabinet stated that the staff and the

Kindercare learning center, where A.J.M attended daycare,

“has indicated concerns of [T.G.]’s behavior, specifically stating

there have been several times [T.G.] has brought the child into

daycare with only a diaper on and has asked the teacher to

dress the child. On morning of 8-18-04, {[T.G.] brought child to

daycare dressed. [T.G.] was asked to fill out a form, in middle

of doing so she stopped, grabbed the child and stormed outside.

(T.G.] then brought child back into daycare undressed, she

asked the teacher to dress child when she woke up (the child

was already awake in [T.G.]’s arms). Daycare indicates child

appears never to be clean and her clothes are filthy. On first

day |T.G.| came to pick child up from daycare she did not

recognize her child. [T.G.] looked at the teacher and then at her

child and then asked where her child was, she then slowly

turned around and panicking (sic) asking where her child was.”

34A

After conducting a temporary removal haring

to address the allegations stated 1n the Cabinet’s

petition, the family court found on September 1,

2004, that there were reasonable grounds to believe

the petition’s allegations and that the Cabinet

should have temporary custody of A.J.M. The family

court also ordered T.G. to follow’ certain

recommendations regarding treatment of her mental

illness and improving the condition of her home.

Furthermore, the Cabinet worked with T.G. to design

a case plan with several tasks to be undertaken by

T.G., such as completing parenting classes, attending

counseling sessions, and complying with the terms of

her visitation with A.J.M., completing psychological

and psychiatric evaluations, and contacting the

Cabinet monthly.

Pursuant to her case plan, T.G. participated in

a psychological and psychiatric evaluation performed

by the Foster Care Clinic and Assessment Team

(FORECAST) on September 23, 2004, and started

attending a Parenting Skills class offered by Seven

Counties. Despite these efforts, on October 5, 2004, a

Cabinet social worker conducted a third home visit of

T.G.’s residence and found the home to still be in the

same deplorable condition, noting dog feces on the

floor, items stacked on the couch, dirty dishes in the

sink and on the kitchen counters, large boxed

scattered throughout the home, and clothes and

miscellaneous items piled in the kitchen. The next

day, on October, 6, 2004, the Jefferson Family Circuit

Court held a dependency hearing to determine the

status of A.J.M., ultimately finding that she was an

abused or neglected child and that she was to remain

in the Cabinet’s custody.

In November 2004, T.G.’s father and step-

mother began supervising visits between A.J.M. and

T.G. so as to help T.G. regain custody of her daughter

or to attain custody of A.J.M. themselves. Although

these initial visits were successful, T.G.’s_ step-

35A

mother testified at trial that by February 2005, T.G.

had become so difficult to deal with that they no

longer sought custody of A.J.M. and were unwilling to

supervise her visits with T.G. Also in November

2004, T.G. began attending therapy sessions with

Allison Johnson, a licensed certified social worker

and marital counselor, and participating in play

evaluations with A.J.M. supervised by Seven

Counties clinical psychologist, Dr. Katie LaJoie,

Psy.D. Although Dr. LaJoie reported that A.J.M. was

easily soothed by T.G., she also noted that T.G. did

not enforce limits with A.J.M., that T.G. exhibited

obsessive behaviors (cleaning the play area more

than any other parent Dr. LaJoie had ever seen), and

that further assessment was needed io determine if

T.G. would be able to properly parent A.J.M.

In December 2004, despite the family court’s

order requiring T.G. to participate in counseling

sessions, T.G. had a falling out with Allison Johnson

after only four sessions. Johnson testified at trial

that during her last session with T.G. in 2004, she

had confronted T.G. very directly about her mental

health issues and that their sessions had ended “in a

good place, but not the best place.” After T.G. left

Allison Johnson, she began seeing Seven Counties

therapist Aaron Bates for bi-monthly sessions. T.G.

also began attending two different group classes in

early 2005, a group recovery class at Recovery

Incorporated in January 2005, and Seven Counties

Young Families Group in February 2005. In March

2005, the Cabinet began supervising T.G.’s visits

with A.J.M. Although the Cabinet observed that T.G.

was loving and caring towards A.J.M., they also noted

that T.G.’s behavior was erratic and bizarre, stating

that she undressed and redressed A.J.M. several

times during her visits and that she continued to

demonstrate symptoms of severe anxiety and

obsessive compulsivity.

36A

Due to these observations and T.G.’s apparent

inability to address her mental health issues, on

April 4, 2005 the Cabinet filed a petition with the

family court to terminate T.G.’s parental rights.

Several months after the filing of this petition,

starting in June 2005, T.G. participated in a

psychological evaluation with Dr. Sally Brenzel,

Psy.D., that lasted over a month; attended individual

therapy sessions with Dr. Patricia Aulbach, Psy.D.,

for four months; briefly met with mental health

counselor Dr. Daya Singh Sandhu, Ed.D.; and finally,

in November 2005, returned as a patient to Allison

Johnson. Prior to her termination of parental rights

trial, which was held on December 20, 2005, T.G. had

completed three sessions with Allisen Johnson. In

the termination trial, the family court primarily

considered the testimony of the four therapists

mentioned above’ as well as Peggy Kinnetz, Ed.D.,

T.G.’s Seven Counties parenting group facilitator, and

Sky Tanghe, a Cabinet social worker who had been

involved with T.G.’s case since 1996.

Although T.G. herself explained in detail the

circumstances surrounding the batting cage incident

and the unsanitary condition of her home, the

majority of the Cabinet’s case focused on T.G.’s long-

lasting hostile relationship with the Cabinet, her

inability to develop a lasting relationship with a

therapist, her refusal to accept and adequately deal

with her mental health issues, and the effect that

T.G.’s unstable mental health would have on her

ability to parent A.J.M. After considering all the

evidence, on March 14, 2006, Judge Stephen George of

the Jefferson Family Circuit Court entered an order

finding that A.J.M. was an abused or neglected child

as defined in KRS 600.020(1), and grounds existed

' While both Dr. Brenzel and Allison Johnson testified at trial,

the family court alsc considered the depositions of Dr. Aulback

and Dr. Sandhu in making its determination.

37A

under KRS 625.090(2) to support the termination of

T.G.’s parental rights, and that it was in A.J.M.’s best

interest for T.G.’s parental rights to be terminated

and for the custody of A.J.M. to be transferred to the

Cabinet for Health and Family Services.

In her appeal to the Kentucky court of Appeals,

T.G. raised three arguments. First, she argued that

KRS 625-090(1)(a)1 was unconstitutional because it

permitted a court to adopt a prior court’s finding of

abuse or neglect, and in so doing, hold that a child is

neglected using a lower standard of proof than

required in a termination proceeding. T.G.’s second

and third arguments were that neither the family

court’s finding of neglect, nor its comclusion that

several grounds supporting terminations existed

under KRS 625-090(2) were supported by substantial

evidence. Although the Court of Appeals found that

KRS 625-090(1)(a)1 was constitutional if correctly

applied, it ultimately agreed with T.G. that no

substantial evidence existed in the record to support

the trial court’s finding of neglect or its finding of

grounds for termination. Following this Court’s grant

of discretionary review, the Cabinet now argues that

KRS 625.090(1)(a)1 is constitutional on its face, the

family court’s findings were supported by substantial]

evidence, and the Court of Appeals engaged in an

improper de novo review of the record in concluding

otherwise. Having thoroughly reviewed the record in

this case, we agree with the Cabinet that the family

court was not clearly erroneous in its holding and its

findings were supported by substantial evidence.

Analysis

I. Because the Family Court Expressly Found In

Its Termination of Parental Rights Proceeding

That A.J.M. Was An Abused Or Neglected Child

Under KRS 625-090(1)(a)2, T.G.’s Constitutional

38A

Challenged to KRS_ 625-090(1)(a)1 Is Not

Properly Before This Court.

Although T.G. did not raise this issue before

the trial court, she argued to the Court of Appeals

that KRS 625.090(1)(a)1 is unconstitutional because

it allows a court to adopt a prior court’s finding of

abuse or neglect, and in so doing, find that a child is

neglected using a lower standard of proof,

preponderance of the evidence, than required in a

termination proceeding, clear and convincing. ' KRS

625.090(1) states

(1) The Circuit Court may involuntarily

terminate all parental rights of a parent

of a named child, if the Circuit Court

finds from the pleadings and by clear

and convincing evidence that:

(a) 1. The child has_ been

adjudged to be an abused or

neglected child, as defined in

KRS 600.020(1), by a court of

competent jurisdiction;

2. The child is found to be an

abused or neglected child, as

defined by KRS 600.020(1), by

the Circuit Court in_ this

proceed: ng; or

‘In T.G.’s case, A.J.M. was previously adjudged to be abused

or neglected in a dependency proceeding using the

preponderance of the e* “«nsec standard. However, the United

States Supreme Court has heid that in termination of parental

rights proceedings, due process requires the trial court's

findings to be supported by clear and convincing evidence. See

Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982). This case has an added twist because Family

Court Judge Stephen George presided over both the dependency

proceedings and the termination preceding and thus, was in a

position to assess all of the evidence.

39A

3. The parent has been convicted

of a criminal charge relating to

the physical or sexual abuse or

neglect of any child and physical

or sexual abuse, neglect, or

emotional injury to the child

named in the present

termination action is likely to

occur if the parental rnghts are

not terminated; and

(b) Termination would be in the

best interest of the child.

The Court of Appeals addressed this argument and

implied that this statute could be unconstitutional if

the circuit court did not make independent findings of

abuse and neglect under the clear and convincing

standard. We decline to address this issue because it

is not before us in this case.

If the family court in this instance had only

found under the first prong that AJ.M. had

previousiy been adjudged to be an abused or

neglected child, then it appears that T.G.’s argument

regarding the statute’s constitutionality would be

relevant. However, in this case, the Jefferson Circuit

Family Court not only found that the first prong was

met, but also, expressly found that based on the

evidence presentea in the termination proceeding,

A.J.M. was an abused or neglected child was defined

in KRS 600.020(1). Because the statute indicates

that only one of the three prongs listed in KRS

625.090(1)(a) needs to be met, and because the

family court expressly found under KRS

625.090(1)(a)2 that A.J.M. was abused or neglected

based on clear and convincing evidence, T.G.’s

argument regarding the constitutionality of KRS 625-

090(1)(a)1 was not properly before us.

40A

II. Substantial Evidence Existed to Support the

Family Court’s Finding that A.J.M. Was Abused

or Neglected.

When an appellate court reviews a decision to

terminate parental rights, it must determine if the

family court’s conclusion was based upon clear and

convincing evidence and, in so doing, must apply the

clearly erroneous standard of appellate review. CR

52.01; J.M.R. v. Commonwealth of Kentucky, Cabinet

for Health and Family Services, 239 S.W.3d 116, 120

(Ky. App. 2007). “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 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 Kv, 718, 726, 70

S.W.2d 5, 9 (1934). Pursuant to the standard, an

appellate court is obligated to give a great deal of

deference to the family court’s findingy and should

not interfere with those findings unless the record is

devoid of substantial evidence to support them.

K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App.

2006). In this context, substantial evidence exist if

the proof presented would have convinced a

reasonable person by clear and convincing evidence

that A.J.M. was an abused or neglected child. With

this clear and convincing evidentiary standard in

mind, we find that T.G.’s case, the record contains the

requisite evidence to support the trial court’s finding

that A.J.M. was an abused or neglected child defined

in KRS 600.020(1).

The relevant portions of KRS 600.020(1) state

(1) “Abused or neglected child” means a

child whose health or welfare is harmed

or threatened with harm when his

parent, guardian, or other’ person

41A

exercising custodial control or

supervision of the child:

AK AK OK AK AK

(b) Creates or allows to be

created a risk of physical or

emotional injury as defined in

this section to the child by other

than accidental means;

(c) Engages in a pattern of

conduct that renders the parent

incapable of caring for the

immediate and ongoing needs of

the child including, but not

limited to, parental incapacity

dive to alcohol and other drug

abuse as_ defined in KRs

222.005;

(d) Continuously or repeatedly

fails or refuses to _ provide

essential parental care and

protection for the child,

considering the age of the child;

kK OK

44) Fails to make sufficient

progress toward identified goals

as set forth in the court-

approved case plan to allow for

the safe return of the child to the

parent that results in the child

remaining committed to the

cabinet and remaining in foster

car for fifteen (15) of the most

recent twenty-two (22) months:

Although the batting cage incident and the condition

of T.G.’s home (during three home visits in July,

42A

August, and October 2004) were alleged as grounds to

support the Cabinet’s petition, the evidence relied

upon by the trial court in its finding of neglect

primerily related to T.G.’s unstable mental health

and significant risk it posed to A.J.M. Of particular ;

importance was the evidence showing that although

T.G. genuinely loved her daughter and had made

efforts to regain custody of her, T.G.’s mental illness,

which has not significantly improved since her

diagnosis in 1997, will continue to go untreated and

will render T.G. incapable of properly parenting

A.J.M. The Cabinet presented five witnesses in

support of its peitition.

Sky Tanghe

Sky Tanghe, a social worker employed by the

Cabinet had been involved with T.G’s family since

September 1996. Tanghe gave a detailed history of

the different mental health and parenting services

offered to T.G. by the Cabinet since 1996, when the

Cabinet filed its first petition against T.G. alleging

neglect of her then one-year-old-son, N.M. Tanghe

testified that in September 1996, T.G. was ordered to

attend counseling sessions and allegedly did so in

North Carolina, where her son’s biological father was

living. Nearly a year later, in May 1997, T.G.

participated in her first psychological evaluation,

performed by Dr. Dennis Cambron, Ph.D. Tanghe

stated that Dr. Combron assessed T.G. to be of high

average intelligence, noted her weaknesses in

understanding normal developmental expectations

for an infant, and diagnosed T.G. as having Obsessive

Compulsive Personality disorder. Dr. Combron

recommended that T.G. continue participating in co-

dependency group classes and focus her individual

therapy sessions on her personality disorder.

Tanghe then noted that in December 1999,

after a referral was made by Seven Counties, T.G.

|

43A

received a parent-aid and services from the HELP

Team. In October 2001, Seven Counties referred T.G.

to the FACTs Team and T.G. began participating in

supervised visits with her two children, N.M. and

B.M., at Family Place. After three supervised visits,

however, T.G. had a falling out with the Family Place

staff and refused to have any further visits. This

service was subsequently terminated.' In December

2001, Dr. David Winsch, Ph.D., performed another

psychological evaluation of T.G., concluding that T.G.

met the criteria for an Obsessive compulsive Disorder

and that her mental illness seriously interfered with

her parenting skills. Dr. Winsch noted, however, that

if T.G. had a positive response from treatment

services offered by the Cabinet, such as childcare,

family counseling, and in-home monitoring, she could

be capable of providing appropriate care for her

children. Despite this recommendation, in May 2001,

T.G. stipulated to the neglect of both N.M. and B.M_;

in July 2001, the Cabinet filed its fourth petition

alleging lack of supervision and abusive discipline;

and in May 2002, the family court awarded

permanent custody of both children to the maternal

grandmother.

Continuing with T.G.’s history of mental! health

services, Tanghe stated that in August 2002, Dr.

Anna Podolskaya, M.D.,_ performed another

psychological evaluation of T.G. After the session, Dr.

Poloskaya noted that T.G. demonstrated paranoid

behavior and blamed everyone but herself for the

removal of her children. Tanghe stated that T.G. next

instance of involvement with the Cabinet came after

' Dr. Sally Brenze!'s report of T.G. psychological evaluation, which was

admitted into evidence at trial, notes tat at the close of each of these

supervised visits in October 2001, T.G. would engage in inappropriate,

disruptive behavior that ultimately led to her being escorted from the

building by a security officer

44A

the birth of A.J.M. in January 2004.' Following the

return of A.J.M. to T.G. on January 12, 2004, the

Cabinet placed a HELP team with T.G. for a period of

45 days. Tanghe also stated that T.G. was receiving

help from Seven Counties during this period.

Following the removal of A.J.M. from T.G.’s care in

September 2004, Tanghe noted that T.G>

participated in psychological evaluations with the

Foster Care Clinic Assessment Team (FORECAST)

and with Dr. Sally Brenzel, completed a parenting

class and “baby school” offered by Seven Counties,

and was referred to Dr. Patricia Aulback by Seven

Counties for individual therapy sessions. Despite

T.G.’s numerous opportunities since 1997 to address

her mental health., Tanghe ultimately stated that

T.G.’s lack of improvement in attending individual

therapy sessions and developing an _ ongoing

relationship with a therapist made a _ successful

reunification with A.J.M. unlikely.

Regarding T.G.’s lack of improvement, Tanghe

testified that after T.G. had been seeing Dr. Aulback

for four months, T.G. stopped attending her sessions

and claimed that she did not trust Dr. Aulbach.

Tanghe also stated even though T.G. does well in

structured, supervised settings, there was still a very

high risk that T.G. would not be able to deal with the

issues that would arise as A.J.M., who was almost

two years old a the time of the trial, continues to

develop. Furthermore, Tagnhe noted that A.J.M. has

flourished in her foster home and that her foster

parents are interested in adopting her if T.G.’s

parental rights are terminated. Tanghe testified that

if T.G. had taken advantage of the many services that

had been provided to her, she could have made

progress. However, because T.G. has chosen not to be

It does not appear from the record that T.G. engaged in any mental

health counseling or treatment services from 2002 til! 2004

open to such improvement, Tanghe did not believe

there was a likelihood of a successful reunification.

Dr. innitz :

Dr. Peggy Kinnetz, Ed.D., was qualified by a

trial court as a mental health expert. Dr. Kinnetz

stated that she led of the group classes T.G.

completed with Seven Counties. From November 4,

2004 to January 5, 2005, T.G. completed a Parenting

Skills class, and from February 23, 2005 to June 29,

2005, T.G. completed a Young Families class. Dr.

Kinnetz testified that based on T.G.’s performance in

these classes she observed that T.G. has some

difficulty properly setting boundaries for A.J.M. and

that T.G.’s needs sometimes interfered with her

daughter’s. Dr. Kinnetz stated that T.G.’s anxiety

impacted her ability to relate to others and that she

has assumed very little responsibility for the alleged

neglect of her children. With regard to specific areas

still needing improvement, Dr. Kinnetz testified that

T.G. needs to work on her ability to act on behalf of

her child. Dr. Kinnetz explained that when T.G. has to

interact with governmental! agencies, her community,

or society in general, she tends to react with suspicion

and mistrust. Dr. Kinnetz expressed concern that in

these situations, T.G. could end up isolating herself

and her child. When asked if additional group classes

would help T.G., Dr. Kinnetz replied that since T.G.’s

issues are more personal, such as relating to others,

more group classes would not be _ particularly

beneficial. Ultimately, Dr. Kinnetz did _ not

recommend returning A.J.M. to T.G. at the time of the

trial because she feared T.G.’s mistrust and paranoia

could negatively impact A.J.M.

Dr. Sally Brenzel, Psy.D.

Dr. Sally Brenzel, Psy.D., was also qualified as

a mental health expert by the trial court. From June

46A

1, 2005 till July 18, 2005, Dr. Brenzel conducted four

and a half hours of clinical interviews with T.G. and

ultimately produced a psychological evaluation of

T.G.' Dr. Brenzel testified that T.G. was very bright,

cooperative in keeping appointments and answering

questions, and initially conducted herself with an

appropriate guardedness. When asked about T.G.’s

ability to improve her mental health, however, Dr.

Brenzel testified that although T.G. does verbalize a

motivation to change, her prognosis for change is poor

because she does not appear to learn from her

experiences and _ consistently engages in a

dysfunctional pattern of behavior. Dr. Brenzel

explained that T.G.’s motivation to follow through

with her treatments does not endure and is only in

response to external circumstances, such as the

Cabinet’s insistence. In her evaluation report, Dr.

Brenzel expanded on T.G.’s inability to recognize a

need for improvement, noting that

liln interviews with professionals, including this

examiner, T.[G]. has assertively maintained that she

has never abused or neglected her children and/or

behaved inappropriately but rather that her family,

associates, and Child Protective Services have

wrongly accused, misunderstood and/or disagree with

her, worked against her, and have their own agendas

regarding removing her children from her care. T.[G].

cited her only problems to be the stress involved with

her job and _ “related financial pressure, her

‘stubbornness and over-confidence’ that she can

handle it all, her ‘anger response’ to outside

interference tn her life that ‘takes energy and time

away from the kids that I don’t have to spare,’ and an

inadequate support system.

Dr. Brenzel also discussed T.G.’s anxiety and

paranoia, which became evident after T.G.’s reaction

' In addition to her testimony about this evaluation, Dr. Brenzel’s report

regarding T.G.'s evaluation was admitted into evidence at tal.

47A

to the Rorschach Inkblot Test, which requires

patients to describe what they see in ten abstract

designs, and the Thematic Apperception Test (TAT),

which asks the examinee to tell a story in response to

a set of pictures. Dr. Brenze! explained that although

T.G.’s responses to the inkblot test undermined the

soundness of her judgment and her ability to engage

in functional relationships, T.G. initially responded

well to the TAT. However approximately two hours

after session had ended, T.G. left for extensive

messages on Dr. Brenzel’s voice mail in which she

sought to clarify her answers and provide new stories

for some of the pictures. Dr. Brenzel testified that in

the messages, T.G. was very upset and accused Dr.

Brenzel of showing her inkblot pictures that

encouraged devil worship. Dr. Brenzel testified that

in the messages, T.G. also accused a Seven Counties

employee she had seen upon leaving her session of

being out to get her and of being in control evaluation.

In her evaluation report, Dr. Brenzel further

explained that she contacted T.G. by telephone the

following day in order to discuss T.G.’s_ phone

messages. T.G. stated that she just wanted to do well

on the test and would tell Dr. Brenzel what she

wanted to hear. When Dr. Brenzel expressed concern

for T.G.’s emotional state, T.G. replied that she felt

relieved after leaving the phone messages and noted

that even if she lost all three of her children, she

would not “go in a hole.” T.G. stated that she had “a

positive drive” and would “go onto something else” if

that happened.

When questioned about T.G.’s specific mental

illness, Dr. Brenzel stated that she diagnosed T.G.

with Generalized Anxiety Disorder (GAD) and

Borderline Personality Disorder with Obsessive

Compulsive traits. Dr. Brenzel testified that these

conditions dramatically affect T.G.’s ability to be a

parent, noting that although T.G. has the intelligence

and the genuine desire to be a good parent, her

48A

mental illness has consistently prevented her from

being able to exercise good judgment regarding

safety, supervision, discipline, and educational

requirements. Furthermore, Dr. Brenzel stated that

due to her illness, T.G. has been unable to navigate

critical relationships with her family, school

personnel, social service workers, and mental health

professionals. In looking ahead to the future, Dr.

Brenzel noted that as A.M.J. gets older and more

able to assert herself, T.G.’s mental illness will make

it more and more difficult for her to properly parent

A.J.M. Although Dr. Brenzel recognized the

possibility for improvement if T.G. makes a lasting

connection with a therapist, she also stressed that

based on T.G.’s past experiences, she did not believe

that T.G. could maintain such a connection over time.

In conclusion, Dr. -Brenzel testified that T.G.’s

“prognosis to successfully parent A.J.M. was poor.”

Dr. Patricia Aulbach, Psy.D.

The trial court also considered the deposition

testimony of Dr. Patricia Aulbach, Psy.D., a clinical

psychologist employed by Seven Counties who

engaged in regular therapy sessions with T.G. from

June 8, 2005 till September 27, 2005.* In describing

her initial impressions of T.G., Dr. Aulbach stated

that T.G. never acknowledged any responsibility for

the removal of A.J.M. and had a difficult time coming

up with areas of parenting with which she needed

help. Dr. Aulbach noted that T.G.’s severe paranoia

prevented _her from focusing specifically on A.J.M.

because she consistently worried about a conspiracy

against her involving the Court, the Cabinet, and

Seven Counties. Dr. Aulbach further explained that

in general, T.G. was unable to develop a therapeutic

' This deposition was conducted on January 13, 2006, several weeks after

the termination of parental rights trial.

49A

relationship with her because T.G. feared that

anything done during her sessions would ultimately

be used against her by the Cabinet. Although Dr.

Aulbach agreed tat this was an understandable

concern for someone facing the termination of

parental rights proceeding, she also stated that

where she had been able to develop lasting

relationships with other clients facing similar

circumstances, she was not able to get past the

worries and constraints of T.G.

After several sessions with T.G., Dr.

Aulbach eventually diagnosed T.G. with Generalized

Anxiety Disorder, Paranoid Personality Disorder, and

a rule-cut of Delusional Disorder, which means there

is some evidence present but not enough to make a

complete diagnosis. Dr. Aulbach stated that although

Generalized Anxiety Disorder is responsive to

medication, treatment for a Paranoid Personality

Disorder requires “a long-term, trusting therapeutic

relationship where a therapist and the client work

together to establish new patterns of behavior and

new experiences in response to those patterns of

behavior that are corrected.”

In explaining why she was unable to develop a

relationship with T.G., Dr. Aulbach noted that during

their August 12, 2005 sessions, T.G. was unable to

deal with her emotional issues and was pre-occupied

with the upcoming parental rights hearing.’ After the

hearing was re-scheduled for December, however,

T.G.’s next session was much better and she showed

1 T.G.’s iermination of parental rights hearing was originally scheduled

for August 18, 2005. However, after T.G.’s counse] made a motion to

withdraw and T.G. expressed a desire to proceed pro se, the family court

reluctantly granted a continuance. In delaying the trial, the family court

explained that the serious nature of a termination proceeding required it to

ensure that T.G.’s mghts were adequately represented and it was not

comfortable allowing her to proceed pro se. At this point, the family court

set T.G.’s trial for December 20, 2005

S0A

an interest in improving. At the conclusion of this

session, Dr. Aulbach asked T.G if she could make a

choice between focusing on her mental health issues

with Dr. Aulbach as her therapist versus Dr. Aulbach

as a court representative. Despite this hope for

improvement, at T.G.’s next appointment on August

39, 2005, Dr. Aulbach stated that T.G. had an

altercation with the receptionist over her co-pay,

expressed a lot of paranoid thinking towards Dr.

Sally Brenzel, and complained about a conspiracy

amount Seven Counties, Dr. Brenzel, and the

Cabinet. Dr. Aulbach noted that T.G. was

unresponsive to her attempts at breaking through

this paranoid-thinki- = process. It appears from Dr.

Alubach’s testimony that T.G. did not attend another

session with her until September 27, 2005. During

this final session, T.G. was angry with Dr. Aulbach

for sharing T.G.’s diagnosis with Dr. Brenzel and

expressed distrust with their relationship. Dr.

Aulbach stated that since T.G. was not willing to

work with her on her mental health issues, they

terminated their relationship on that day.

When asked how T.G’s condition could affect

her ability to parent a two-year-old, Dr. Aulbach

explained that her main concern would be T.G.’s

potential for distorting the motivations of people

genuinely trying to help and be involved in A.J.M.’s

life. Dr. Aulbach also noted that she often felt like

T.G. was more concerned with not looking bad in from

of people rather than with A.J.M.’s_ well-being.

Ultimately, Dr. Aulbach stated that at the time she

stopped seeing T.G., which was two and a half

months before the termination of parental rights

trial, T.G.’s prognosis for improvement was poor

unless T.G. became willing to really work with her

mental health issues with a therapist.

SIA

Dr. D d Ed.D.

The trial court also considered the deposition

testimony of Dr. Daya Sandhu, Ed.D., which was

taken on August 3, 2005. Dr. Sandhu testified that he

met with T.G. for approximately three or four

sessions in July 2005. Dr. Sandhu stated that when

he first met with T.G., she was overwhelmed and

anxious. Although he suggested that she start taking

medication for her anxiety, T.G. replied that she was

afraid to take medication because the Cabinet would

then think she was a psychiatric patient and not give

her child back. Dr. Sandhu stressed in his deposition

that he really was not able te make predictions about

T.G.'s ability to improve or to parent a child because

he felt like he had only seen the “tip of the iceberg.”

He did note, however, that he and T.G. were still

pianning on having counseling sessions once a week,

and that after least six months, he should be able to

assess her parenting abilities. Although Dr. Sandhu

seemed hopefui and willing to engage in a therapeutic

relationship with T.G. at tre time of the deposition,

T.G. soon stopped attending her sessions with him.

(in her trial testimony, T.G. stated that she ended

their relationship because she was uncomfortable

meeting with Dr. Sandhu in the same office where her

former attorney also worked.)

In addition to the witnesses called by the

Cabinet, Allison Johnson, a licensed social worker

and marriage counselor, testified on behalf of T.G. at

the termination proceeding.

Allison Johnson

Johnson originally met with T.G. for four

sessions in November 2004, During these sessions,

Johnson stated that T.G. was very anxious and

paranoid. Johnson revealed that their sessions

S2A

stopped after she confronted T.G. very directly about

her mental health. Although Johnson noted that the

sessions ended in a good place, it was not “the best

place,” and T.G. subsequently ended their therapeutic

relationship. One year later, in November 2005, T.G.

returned to Johnson in order to seek therapy again.

At the time of the parental rights trial, in December

2005, Johnson had completed three sessions with

T.G. Based on these meetings, Jchnson testified that

T.G appeared less anxious and more willing to

cooperate and work on her issues. Although Johnson

stated that she could not predict whether their

relationship would continue, she recognized that it

felt connected so far. Johnson also noted that even

thcugh T.G. has the ability to become an effective

parent, she needs to understand that it will require

intensive and long-term therapy. Lastly, Johnson

acknowledged that at some point if T.G. continues to

engage in therapy, T.G. would be capable of a

systematic and supervised return of A.J.M. However,

at the time of her testimony, Johnson could not

recommend returning A.J.M. to T.G.’s care. Rather,

Johnson recommended that eventually, there be a

“structured, systematic transition.”

The testimonies ad depositions of the above-

motioned therapist and social workers constitute

substantial evidence of a clear and convincing nature

supporting the trial court’s finding that

[tIhe mental illness of the respondent

and her history of resultant abuse or

neglect to her children create a

substantial ongoing risk to [A.J.M.].

(T.G.]’s cooperation in various treatment

services has not remedied her

symptonms or improved her condition to

a point that she can safely provide for

[A.J.M.]. Her behaviors remain volatile,

S3A

erratic, paranoid, obsessive and

compulsive, and contrary to the

provision of a safe, stable environment

for the infant petitioner.

Not including T.G.’s opportunity for improvement

following the removal of her two oldest children in

1996, since the removal of A.J.M. in September 2004,

T.G. has seen fuwr different therapists: Allison

Johnson in November 2004, Aaron Bates in March

2005, Dr. Patricia Aulbach from June 2005 till

September 2005, Dr Daya Sandhu in July 2005, then

back to Allison Johnson in November 2005.

Furthermore, through her psychological evaluations

and Seven Counties services, T.G. has had the

opportunity to improve her mental health situation

through her interactions with Dr. John Gallehr. M.D.,

and Dr. Larry Meyers, M.D., of the FORECAST Team;

Katie Lajoie, Psy.D., of Seven Counties; Peggy

Kinnezt, Ed.D., of Seven Counties; Sky Tanghe of

Seven Counties; and Dr. Sally Brenzel, Psy.D.

Of these therapist and social workers who

testified, no one could recommend the reunification of

A.J.M. and T.G. at the time of the trial. As a matter

of fact, other than Allison Johnson, the therapists

who expressed an opinion of T.G.’s prognosis for

improvement all agreed it was poor. Sky Tanghe

stated that reunification would be unlikely because of

T.G.’s history of avoiding her mental health issues

and her lack of improvement. Peggy Kinnezt did not

recommend returning A.J.M. for fear of the impact of

T.G.’s mistrust and paranoia on A.J.M. Dr. Brenzel

testified that T.G.’s prognosis is poor because she is

unable to recognize a need for improvement. Dr.

Aulbach stated that T.G.’s paranoia prevented her

from focusing on A.J.J.’s needs, expressed concern

that T.G. would distort the motivations of people

trying to genuinely help A.J.M., and concluded that

T.G.’s prognosis for improvement was poor. Although

5S4A

Allison Johnson seemed hopeful that her relationship

with T.G. would continue and that T.G. could improve

over time, even she could not recommend reuniting

A.J.M. with T.G. at the time of the trial. Based on the

aforementioned testimonies and depositions, we find

that substantial evidence exist in the record to

convince a reasonable person by clear convincing

evidences that A.J.M. was an abused or neglected

child as defined in KRS 600.020(1). Therefore, the

trial court was not clearly erroneous in making its

findings and we will not disturb its ruling on appeal.

Before turning to the grounds of termination,

we note that the Court of Appeals reviewed this same

evidence but focused almost exclusively on the fact

that T.G.’s mental illness was “treatable” and the

fact that A.J.M. had suffered no physical or emotional

injury. However, the trial court properly recognized

that the extensive efforts to address T.G.’s mental

issues over many years had been unsuccessful, in

large part due to T.G.’s failure to follow through with

various mental health providers. This’ wile

theoretically treatable, T.G.’s mental illness had

been for years, and promised to remain, a serious

obstacle to effective parenting. Moreover, the absence

of actual physical or obvious emotional harm to two

year-old A.J.M. is not dispositive because, as the trial

court recognized, the “substantial ongoing risk”

created by T.G.’s conduct brought A.J.M. clearly

within the definition of an abused or neglected child

as defined in KRS. 600.020(1)(b).. We cannot

overemphasize that the Cabinet and the courts need

to wait for actual physical or emotional injury in

order to protect an abused or neglected child.

' KRS 600.020(1)(b) expressly applies to situations where a

parent or guardian “creates or allows to be created a risk of

physical or emotional injury....”

SSA

Ill. Substantial Evidence Existed to Support the

Family Court’ Finding that One Or More

Grounds Were Present to Justify Terminating

T.G.’s Parental Rights of A.J.M.

KRS 625.090(2) states that

No termination of parental rights shall

be ordered unless the Circuit Court also

finds by clear and convincing evidence

the existence of one (1) or more of the

following grounds.

The statute then enumerates ten grounds justifying

termination. In its findings of fact, the trial court

determined that two of these grounds, KRS

625.090(2)(e) and (g), were present in T.G.’s case,

stating

The respondent, (T.G.]’ for a period of not

less than six (6) months, has

continuously or repeatedly failed or

refused to provide or has_ been

substantially incapable of providing

essential parental care and protection

for the petitioner child, [A.J.M.], and

there is no reasonable expectation of

improvement in parental care and

protection considering the age of the

child.

The respondent, for reasons other then

poverty alone, has continuously or

repeatedly failed to provide or is

incapable of providing essential food,

clothing, shelter, medical care or

education reasonably necessary and

available for the petitioner child’s well-

being and there is no_ reasonable

expectation of significant improvement

56A

in the parent’s conduct in_ the

immediately foreseeable future,

considering the age of the child.

Although the Court of Appeals found that the trial

court was clearly erroneous in making these findings, '

the Cabinet argues adamantly on appeal that

substantial evidence exists in the record supporting

the family court’s determinations on this issue. We

must agree with the Cabinet.

First, there was substantial evidence relied

upon by the trial court that since September 2004,

and for reasons other than poverty alone, T.G.’s

mental illness has rendered her incapable of

providing essential care, protection, and basic

necessities for A.J.M. Sky Tanghe testified that T.G.’s

history of neglect and her lack of improvement had

created a high-risk that T.G. cannot adequately care

for A.J.M. Tanghe also noted that T.G.’s difficulties

will increase as A.J.M. grows into a toddler. In

recommending that A.J.M. not be reunited with T.G.,

Peggy Kinnetz testified that it is difficult for T.G. to

act on behalf of A.J.M. and that T.G. will likely

isolate herself and A.J.M. because of her paranoia

and mistrust of others. Dr. Brenzel stated that T.G.’s

‘ The Court of Appeals made no reference whatsoever to the

trial court’s finding regarding failure to provide “essential care

and protection.” As to “essential food, clothing, shelter or

medical care,” the appellate court concluded summarily there

was not substantial evidence of record that A.J.M. had been

denied these things and then stated: “This was evident

through the results of A.J.M.’s medical examination and

testimony that she is above-average on both her intelligence

and developmental! levels.” Again, the termination may be due

to a failure to provide or because the parent “is inc le_of

providing essential food, clothing, medical care, shelter or

education.” (Kmphasis supplied). While this ground is much

closer call then the failure to provide “essential parental care

and protections,” the trial court’s finding was not clearly

erroneous.

S7A

mental illness has consistently prevented her from

being able to exercise good judgment regarding

A.J.M.’s___ safety, supervision, discipline, and

educational requirements; T.G. cannot form

relationships essential for child-rearing; and T.G.’s

inabilities will only get worse as A.J.M. gets older.

Dr. Aulbach stresses that T.G.’s paranoia has

consistently prevented her from being able to focus on

A.J.M. basic needs. Furthermore, the trial court

considered the results of several supervised play

evaluations with T.G. and A.J.M., noting that T.G.

had trouble setting proper boundaries for A.J.M.; T.G.

obsessively cleaned the play area more than anyone

the supervisors had ever seen; T.G. insisted on

undressing and redressing A.J.M completely several

times during each visit; and T.G. demonstrated

ongoing symptoms of anxiety and obsessive

compulsivity. Based on the evidence, we conclude that

it was not clearly erroneous or an abuse of discretion

of the family court to find that T.G. was substantially

incapable of providing essential parental care,

protection, and the basic necessities for A.J.M.’s well-

being. ;

Secondly, regarding T.G.’s reasonable

expectations for significant improvement, we

reiterate our previous conclusion that there was

ample evidence in the record supporting the trial

courts finding that even at the time of the

termination triai, T.G. remained “volatile, erratic,

paranoid, obsessive and compulsive,” and that

ultimately, T.G.’s likelihood of improvement was

poor. Both Dr. Aulbach and Dr. Brenzel stated that

T.G.’s prognosis for improvement was poor because

she was unable to recognize a ned to address

seriously her mental health. In addition, Sky Tanghe

noted it was T.G.’s almost decade-long history of a

lack of improvement that made reunification unlikely

in this case. Although Allison Johnson expressed

some hope of improvement if T.G. continued their

58A

therapeutic relationship, the fact remains that T.G.

waited to reestablish this relationship until

November 2005, only one month before her

termination hearing, and that T.G. had only

completed three sessions prior to her trial. T.G. was

informed of her mental illness and her need to

establish a lasting, therapeutic relationship as for

back as 1997. Other than the one month she spent

with Allison Johnson in November 2004, T.G. had

shown no signs of improvement and had made no real

effort to address her mental health issues in the ten

years preceding the order terminating her parental

rights to A.J.M. Furthermore, even T.G.’s witness,

Johnson could not recommend that A.J.M be returned

to T.G. at the time of the trial. Therefore, since the

proof presented at trial would convince a reasonable

person by clear and convincing evidence that T.G. had

no reasonable expectations of _ significant

improvement, we find that the trial court was not

clearly erroneous in its finds that grounds existed to

support the termination of T.G.’s parental rights to

her third child.

CONCLUSION

The crux of T.G.’s argument throughout the

case was that the family court did not have

substantial evidence to support its decision to

terminate her parental rights as to the two year-old

A.J.M. However, the family court heard testimony

from several therapist and social workers regarding

T.G.’s lengthy history of neglect and abuse of her older

children; her consistent failure to adequately address

her mental health issues; her extreme paranoia and

mistrust toward people in a position to help her and

A.J.M.; and detrimental effect her unstable mental

health has had and will have on her ability to parent

A.J.M.; and her apparent inability to maintain a

lasting relationship with a therapist, and absolute

S9A

necessity given her mental health status. Despite

T.G.’s expressed desire to improve and retain custody

of A.J.M., the trial court correctly concluded that in

this instance, T.G.’s past behavior serves as the best

predictor of her future behavior. Having found that

substantial evidence exists in the record to convince a

reasonable person by clear and convincing evidence

that A.J.M. is an abused or neglected child and that

termination of T.G.’ parental rights is in A.J.M.’s best

interest, we reverse the Court of appeals decision and

reinstate the Jefferson Circuit Family Court’s March

14, 2006 Order terminating T.G.’s parental rights as

to A.J.M.

All sitting. All concur.

COUNSEL FOR APPELLANT/CROSS-

APPELLEE,

COMMONWELATH OF KENTUCKY,

CABINET FOR HEALTH AND FAMILY

SERVICES:

Erica Saylor

Cabinet for Health and Family Services

908 W. Broadway, 9 Fast

Lousiville, KY 40203

COUNSEL FOR APELLANT/CROSS

APPELLEE,

A.J.M., A CHILD:

Catherine I. Wallace

Wallace Law Office

8910 Greeneway Commons Place

Suite 100a

Louisville, KY 40220

COUNSEL FOR APPELLEE/CROSS

APPELLANT,

T.G., MOTHER:

Gregory Ward Butrum

Gregory Ward Butrum, PLLC

121 S. Seventh Street, Third Floor

Louisville, KY 40202

Supreme Court of Kentucky

2007-SC-000436-DGE

AND

_ 2007-SC-00082 1-DGE

COMMONWEALTH ..............+++ APPELLANTS/CROSS-

OF KENTUCKY, CABINET APPELLEES

FOR HEALTH AND FAMILY

SERVICES; AND A.J.M., A CHiLD

ON REVIEW FROM COURT OF APPEALS

V. CASE NUMBER 2006-CA-001008

JEFFERSON FAMILY CIRCUIT COURT

NO. 05-AD-500119

SRG 8555 Se APPELLEE/CROSS-APPELLANT

ORDER

Appellee/Cross-Appellant’s pro se petition for

rehearing of the August 28, 2008, unpublished Opinion of the

Court 1s DENIED.

All sitting. All concur.

ENTERED: February 19, 2009

/s/CHIEF JUSTICE