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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

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)

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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)

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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

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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

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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

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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.

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0876%3A2. Public record. Not legal advice.