Opinion
NO. 2020-CA-0561-ME NO. 2020-CA-0562-ME
04-16-2021
A.D.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.B.; AND J.M.B., A CHILD APPELLEES AND A.D.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.B.; AND J.M.L.B., A CHILD APPELLEES
BRIEF FOR APPELLANT: Lance A. Daniels Paintsville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 19-AD-00010 APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 19-AD-00011 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. GOODWINE, JUDGE: A.D.S. ("Mother") appeals from the Johnson Circuit Court, Family Division's findings of fact, conclusions of law, and judgments involuntarily terminating her parental rights to her two minor children. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for Mother has filed an Anders brief stating the appeal is wholly frivolous, which was accompanied by a motion to withdraw as counsel. After careful review of the record, we affirm. We grant counsel's motion to withdraw by separate order.
In the same proceedings, the family court terminated the parental rights of the children's biological father. He did not appeal.
Anders v. State of California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
BACKGROUND
The children were placed in the custody of the Cabinet for Health and Family Services in April 2018 due to substance abuse, domestic violence, and the deplorable condition of the family's home. Mother's case plan required her to cooperate with substance abuse treatment through Community of Hope, complete parenting classes, and comply with random drug screening. Mother did not successfully complete these tasks and, as a result, the permanency goal for the children was changed to adoption on March 19, 2019.
The Cabinet filed petitions to involuntarily terminate Mother's parental rights on April 26, 2019. Mother was present and represented by appointed counsel at trial. The family court heard testimony from Charlotte Howard, the Cabinet social worker assigned to the case; Mother; and Elizabeth Burchett, Mother's substance abuse counselor at Community of Hope.
Howard testified the children had been in foster care for twenty-one consecutive months. Mother inconsistently participated in substance abuse treatment through Community of Hope and never moved beyond the first phase of the program. She attended supervised visits with the children from April 2018 to December 2018 but then ceased all communication with the Cabinet. Her only other communications were a single visit with the children in April 2019 and a conversation with Howard in November 2019. Howard explained that the Cabinet offered Mother all available services.
Mother then testified to her abusive relationship with the children's father. At the time of trial, she had been living at Turning Point, a domestic violence shelter, for approximately two weeks. Mother testified to reentering the Community of Hope program for the fifth time in January 2020. Mother admitted to having been incarcerated for one week in January 2020. She also admitted to testing positive for illicit substances in the months prior to trial. On December 3, 2019, Mother tested positive for marijuana. On December 23, 2019, January 2, 2020, and January 21, 2020, Mother tested positive for marijuana, amphetamines, and methamphetamine. She had negative drug screens on January 27, 2020 and January 30, 2020.
Finally, Burchett testified Mother failed to complete substance abuse treatment on multiple occasions and reentered intensive outpatient treatment two weeks prior to trial. Burchett emphasized the importance of consistency for maintaining sobriety and expressed reservations about Mother's present ability to parent the children without supervision.
The family court entered findings of fact, conclusions of law, and judgments terminating Mother's parental rights on February 20, 2020. Upon a motion by Mother, the family court entered specific findings of fact on March 20, 2020. The court found the children neglected under KRS 600.020(1). It found termination was in the children's best interest. KRS 625.090(1)(c). Finally, the court found by clear and convincing evidence the existence of three grounds supporting termination under KRS 625.090(2). This appeal followed.
Kentucky Revised Statutes.
Receipt of the record in these matters took several months due to administrative delay resulting from staff reductions during the Covid-19 pandemic. The record was received in the Presiding Judge's chambers on March 30, 2021.
STANDARD OF REVIEW
In compliance with A.C., 362 S.W.3d at 371, Mother's counsel filed an Anders brief. In A.C., this Court adopted the procedures identified in Anders, supra, for appeals from judgments terminating parental rights where appointed counsel, after a good-faith review of the record, determines the appeal is wholly frivolous. Id. If counsel can find no meritorious grounds for appeal, "he should so advise the court and request permission to withdraw." Id. at 364. Thereafter, this Court's review under Anders procedures is "akin to palpable error review requiring us only to ascertain error which affects the substantial rights of a party." Id. at 370 (citation omitted).
ANALYSIS
Mother's counsel provided her with a copy of the brief and informed her of her right to file a pro se brief raising any issues she deemed meritorious. A.C., 362 S.W.3d at 371 (citation omitted). Mother did not file a pro se brief. Counsel could not identify anything in the record which "might arguably support the appeal[.]" Id. After a thorough review of the record, we agree no meritorious error exists in the family court's findings.
"[T]ermination of parental rights is a grave action which the courts must conduct with 'utmost caution'. [It] can be analogized as capital punishment of the family unit because it is 'so severe and irreversible.' Therefore, to pass constitutional muster, the evidence supporting termination must be clear and convincing." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (citations omitted). KRS 625.090 requires that the following three prongs are satisfied: "(1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
KRS 625.090(2) was amended effective June 27, 2019 and the grounds are now (a)-(k).
Herein, the family court found the children were neglected under KRS 600.020(1) based on the following:
1. [Mother] has had positive drug screens in the last three months, and she has failed to complete her case plan or even work a case plan over the last year or so.
2. [Mother] had no contact with the child[ren] or the worker between April and December of 2019, and thus abandoned the child[ren].
3. [Mother] failed to pay any child support, even though it was not ordered on behalf of the child[ren].Record ("R.") at 149.
4. The child[ren] ha[ve] been in foster care for the last twenty-two months, and [are] thriving therein.
Citations to the record are to Johnson Circuit Court No. 19-AD-00010. The two cases were tried jointly by the family court and the records are nearly identical. --------
Next, the family court found termination of Mother's parental rights was in the children's best interests. The court found the Cabinet made reasonable efforts to reunite the family. Mother failed to complete her case plan or make any adjustments necessary for reunification. Considering Mother's conduct throughout the case, the family court found there was no "probability of improvement at this time." R. at 149. The court determined the children's "condition[s] ha[d] improved since placement in foster care and continued progress [was] expected" if Mother's parental rights were terminated. R. at 136. Mother had not financially supported the children since they entered foster care.
Finally, the family court needed only to find "the existence of one (1) or more" grounds listed in KRS 625.090(2), and it found by clear and convincing evidence the existence of three grounds. The court found the following:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . .
(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; [and]KRS 625.090(2).
. . .
(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[.]
After a thorough review of the record, we are convinced substantial evidence supports the family court's decision to terminate Mother's parental rights. Mother failed to make the requisite adjustments for the children to be returned to her custody. She did not complete substance abuse treatment and tested positive for illicit substances less than a month before trial. She had no contact with the children for more than nine months and provided them no care or protection for almost two years. Based on Mother's inconsistent behavior, there was no reasonable expectation of significant improvement in her conduct in the immediately foreseeable future.
CONCLUSION
Accordingly, we affirm the judgments of the Johnson Circuit Court, Family Division terminating Mother's parental rights.
ALL CONCUR. BRIEF FOR APPELLANT: Lance A. Daniels
Paintsville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky