Opinion
2021-CA-0477-ME
04-22-2022
A.N.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; K.N.J., AMINOR CHILD; AND L.C.B. APPELLEES
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky. BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE DERWIN L. WEBB, JUDGE ACTION NO. 20-AD-500341
BRIEF FOR APPELLANT: Vickie Masden Arrowood Louisville, Kentucky.
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND McNEILL, JUDGES.
OPINION
McNEILL, JUDGE.
Appellant, A.N.J. (Mother), is the natural mother of eight children, only one of whom, K.N.J. (Child), is the subject of the present case. The Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet), became involved with this family in Daviess County, Kentucky, due to allegations that Mother left her then five-month-old Child home alone when she ran out the back door to avoid being arrested on a warrant. As a result, the Cabinet filed a dependency, neglect, or abuse (DNA) petition against Child's parents in Daviess Family Court. The Cabinet filed a second DNA petition as a result of Mother's continued misconduct. Both petitions resulted in affirmative findings of abuse or neglect due to Mother's substance abuse and abandonment of Child. The Cabinet in Jefferson County became involved when Child's father, L.C.B. (Father), was arrested on January 18, 2019 and had Child with him in the vehicle at that time. He was in possession of cocaine and had outstanding arrest warrants. Child was placed in the temporary custody of a relative and then committed to the Cabinet on October 24, 2019. The Cabinet subsequently filed a petition for the involuntary termination of parental rights (TPR).
A TPR trial was held on March 10, 2021, via Zoom, during which several witnesses testified, including Mother. After considering the totality of the evidence, the circuit court issued an order terminating parental rights. The court further ordered that Child be placed in the custody of the Cabinet as a ward of the state, with the authority to place Child up for adoption. Mother now appeals to this Court as a matter of right.
Zoom is a teleconferencing software program that allows for remote legal proceedings and has been used widely during the COVID-19 pandemic.
In its order, the court found that Father was before the court through service by warning order attorney. However, Father did not file an answer to the TPR petition or otherwise contest the merits of the Cabinet's action.
STANDARD OF REVIEW
We review parental termination cases based upon the clearly erroneous standard set out in CR 52.01. See Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). Therein, the Kentucky Supreme Court elaborated on the applicable standard of review as follows:
Kentucky Rules of Civil Procedure.
To begin, we note that the trial court has wide discretion in terminating parental rights. Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citingK.R.L. v. P.AC, 210 S.W.3d 183, 187 (Ky. App. 2006)). Thus, our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence. [CR] 52.01. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." [T.N.H.], 302 S.W.3d at 663.Id. Substantial evidence is that, when "taken alone or in the light of all the evidence . . . has sufficient probative value to induce conviction in the minds of reasonable men." Blankenship v. Lloyd Blankenship Coal Company, Inc., 463 S.W.2d 62, 64 (Ky. 1970). With these standards in mind, we turn to the applicable law and facts of the present case.
ANALYSIS
Mother raises nine issues on appeal, collectively arguing that the court erred in its findings. In support of her general argument, and on four separate occasions in her brief on appeal, Mother provides nearly identical language referencing her own testimony wherein she claims that she has been clean and sober since 2014 and that she had stable housing, stable employment, a support group, a husband, and custody of one of her children. Mother also generally asserts that COVID-19 restricted her access to services to reconnect with Child. However, her argument here lacks specificity and a nexus between the alleged error and COVID-19. Lastly, Mother reiterates throughout her argument on appeal that she was erroneously limited to "therapeutic" visitation with Child and that the Cabinet failed to make appropriate arrangements. In contrast, the circuit court determined that Mother was previously subject to an order to have "no contact" with Child, and that the Cabinet did not have authority to expand visitation beyond therapeutic. While the underlying case was pending, Mother resided in Alabama while Child resided in Kentucky, thus making visitation arrangements difficult if not impossible provided the practical and legal limitations of caseworkers in both states. Having considered Mother's arguments, the record, and the law, we affirm.
In K.H., the Kentucky Supreme Court observed that "[t]he involuntary termination of parental rights is a scrupulous undertaking that is of the utmost constitutional concern." 423 S.W.3d at 209 (citation omitted). The Court further elaborated as follows:
The U.S. Supreme Court has unequivocally held that a parent has a "fundamental liberty interest" in the care and custody of his or her child. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This fundamental interest "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State . . . ." Id. at 754-55, 102 S.Ct. 1388. Therefore, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id.Id. Under KRS 625.090(1), however, the circuit court may involuntarily terminate all parental rights if the 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;
(b) The Cabinet for Health and Family Services has filed a petition with the court pursuant to KRS 620.180; and
(c) Termination would be in the best interest of the child.
Kentucky Revised Statutes.
It is undisputed here that Child has been adjudged to be abused or neglected and that the Cabinet has properly filed a TPR petition. Therefore, our analysis is focused on whether termination of Mother's parental rights is in the Child's best interest and whether the additional dictates of KRS 625.090(2) have been satisfied.
When determining the best interest of the child as a ground for termination, the circuit court is directed to consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability 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 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;
(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.KRS 625.090(3).
KRS 625.090(2) provides that no termination of parental rights shall be ordered unless the circuit court also finds by clear and convincing evidence the existence of one or more of the grounds listed in KRS 625.090(2)(a) through (k). KRS 625.090 additionally provides the circuit court with discretion to consider the following:
(4) 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.
(5) 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.
In its order and accompanying twenty-one pages of findings, the circuit court determined that termination of parental rights was in Child's best interests, having considered every factor enumerated under KRS 625.090(3), which the court supported with substantial testimonial evidence. For example, the court specifically found:
[Mother's] testimony regarding the ability to meet [Child's] future needs if [Child] was returned to parental care was lacking in credibility. In addition to the fact that [Mother] has not successfully complied with the Court's remedial orders and the Cabinet's court-approved case treatment plan to rectify the conditions which led to [Child] being abused or neglected and removed from parental custody, [Mother] continues to deny abandoning [Child] and her other children.
The court continued by discussing Mother's denial of responsibility for not having custody of her other children - five of whom are in the custody of their maternal grandmother due to neglect. Mother also accused caseworkers of "kidnapping" and "trafficking" Child. The court identified KRS 625.090(2) subsections (a), (e), (g), and (j) as pertinent aggravating factors. In support of its findings and ultimate decision, the court relied on the testimony of the following witnesses called by the Cabinet: Brittany Lamb, the Cabinet's current caseworker assigned to Mother's case; Amy Noll, a treatment service provider with Seven Counties Services; Jill Collins, a school-based therapist for Child; Marian Watkins, the Child's foster Mother; and H.J., the Child's maternal grandmother. With the exception of her own testimony, neither Mother nor Child's guardian ad litem called any witnesses on their behalf. We need not reiterate the entirety of the underlying evidence. What is relevant to our review is that there was substantial evidence presented supporting the court's decision to terminate Mother's parental rights. We certainly cannot say that the circuit court's findings were clearly erroneous.
CONCLUSION
For the foregoing reasons, we hereby affirm the Jefferson Circuit Court's order terminating parental rights entered on March 31, 2021.
ALL CONCUR.