Opinion
2022-CA-0532-ME
12-02-2022
J.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; J.L.; C.M.; J.W.; AND O.W., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: John M. Hendricks Winchester, Kentucky. BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Erica Kemp Rompf Winchester, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM CLARK FAMILY COURT HONORABLE KIMBERLY BLAIR WALSON, JUDGE ACTION NO. 20-J-00211-001.
BRIEF FOR APPELLANT: John M. Hendricks Winchester, Kentucky.
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Erica Kemp Rompf Winchester, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND MAZE, JUDGES.
OPINION
CLAYTON, CHIEF JUDGE:
J.W. brings this appeal from a Clark Family Court order placing her minor daughter in the permanent custody of fictive kin. Upon careful review, we affirm.
J.W. ("Mother") is married to J.W. ("Father") with whom she has two daughters. Father is not a party to this appeal. Their elder child is in the permanent custody of fictive kin, C.M. and J.W. The younger child, O.W. ("Child"), was born on September 8, 2020. Shortly thereafter, the Cabinet for Health and Family Services ("the Cabinet") filed a juvenile dependency, neglect, or abuse petition alleging that Mother tested positive for THC, fentanyl, and marijuana during her pregnancy, and tested positive for methamphetamines at the birth of Child.
Mother stipulated to neglect and on October 15, 2020, the family court ordered Child to be placed in the temporary custody of the same fictive kin who have permanent custody of her sister. In its dispositional report, the Cabinet reported that Mother's drug screens had been negative since Child's birth, and that she had completed parenting classes and mental and substance abuse assessments. Mother reported that she was attending substance abuse counseling and treatment. She participated in weekly supervised visitation with Child. Following the dispositional hearing, the family court entered an order on October 29, 2020, adopting the recommendations of the Cabinet's report, which included directing Mother to cooperate with the Cabinet, complete additional assessments, comply with random drug screens, and obtain and maintain stable housing and income. The Court ordered Child not to be returned to Mother and Father until months of success on their part could be shown.
On April 14, 2021, Mother filed a motion seeking a review of the case, on the grounds that she had nearly completed her case plan. The Cabinet filed a review expressing concern about Mother's behavior towards Child during visitation, and Mother's threatening behavior towards C.M. The Cabinet requested an assessment of the parents due to continuing concerns related to parenting and mental health. The family court conducted a hearing and ordered Mother and Father to complete an assessment with Feinberg & Associates.
On February 7, 2022, Feinberg & Associates issued a 44-page parental capacity evaluation based on psychological testing and hours of individual interviews with Mother and Father, including several with Child present, as well as interviews with the Cabinet worker assigned to the case, with Child's guardian ad litem, and with C.M.
The evaluation found that Mother has many longstanding, serious, and debilitating problems, both physical and mental, and struggles to maintain sobriety. It related that Mother has a history of unresolved trauma stemming from her childhood, when she was neglected, sexually abused and assaulted multiple times, and lived in at least thirty-six different places. Mother has been hospitalized numerous times for suicidal and homicidal ideations.
Child's guardian ad litem reported that both of Mother's daughters have been with C.M. "basically since birth." She opined that the children are "comfortable and bonded" and that C.M. had tried to accommodate Mother and Father as much as possible. She stated that the children were "doing really well where they are[,]" that C.M. "does a great job caring for them and meeting their needs[,]" and that it was the "only home they've ever known."
In her interview, C.M. described Mother as an erratic, violent, and threatening individual with many mental health and drug addiction issues. C.M. related how Mother sought the children's Social Security numbers in what C.M. suspected was an attempt to obtain further benefits for herself. Mother has refused to provide funds from her own Social Security checks to support the children and became irate when it was suggested that she contribute to the cost of Child's care.
The Feinberg evaluation described Mother and Father as having significant, unresolved mental health problems and characterological flaws that are long-term and difficult to treat. It concluded that Child would be at high risk for maltreatment or neglect if placed with Mother and Father and consequently recommended that Child remain in the permanent custody of her current caregiver.
On March 21, 2022, Child's guardian ad litem filed a motion requesting the court to grant permanent custody to the fictive kin. On April 11, 2022, the Cabinet filed a review report recommending permanent custody be granted to the fictive kin, based primarily on Mother's mental health issues and evidence of ongoing substance abuse. In addition to relying on the Feinberg evaluation, the Cabinet report described Mother's serious mental health problems, including major depressive disorder, chronic post-traumatic stress disorder, a history of dissociative identity disorder, severe opioid use disorder, and severe amphetamine type substance use disorder. Mother reported several previous psychiatric admissions, and hospitalization on four occasions for suicide attempts. Mother also reported being homicidal and hearing derogatory voices. The report acknowledged that Mother completed parenting classes, continued to treat with her therapist, and attended substance abuse counseling and treatment, but noted that she had failed to appear for drug screens on several occasions and tested positive for synthetic cannabinoids on three occasions in November 2021. The report also expressed concern that Mother was huffing canned air to receive an "air duster high" which is undetectable in laboratory drug screens. As evidence for this, the report states that on March 16, 2022, about one month before the hearing on the motion for permanent custody, Mother was involved in a one-vehicle accident in which she appeared to break her ankle. The police officer on the scene reported that she handed him a can of compressed air used to dust computers and told him, "I was doing this, don't tell."
After hearing the arguments of counsel, the family court entered an order granting permanent custody of Child to the fictive kin on April 14, 2022. At that point, Child had been in their care for nearly nineteen months. This appeal by Mother followed.
Mother's counsel has filed a brief in accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), which applied the reasoning of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to hold that counsel representing a parent in a termination of parental rights case may withdraw if he or she cannot, following a thorough, good-faith review of the record, identify any non-frivolous grounds upon which to base an appeal. A.C., 362 S.W.3d at 371. Counsel for Mother has concluded upon review of the record that there are no meritorious appellate issues to raise on Mother's behalf, and he has filed a motion to withdraw.
A.C. extended the applicability of Anders only to appeals involving the termination of parental rights. We are unaware of any case law which permits the extension of Anders to other types of cases. Therefore, counsel's motion to withdraw must be denied.
Although Anders is not applicable to these proceedings, we will follow its directive "to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372 (citing Anders, 386 U.S. at 744, 87 S.Ct. at 1400). Furthermore, notwithstanding his determination that there are no meritorious grounds upon which to base an appeal, Mother's counsel has presented two potential arguments to support reversal of the family court's order, which we will review below.
KRS 403.270(2) provides that a trial court shall determine custody in accordance with the best interests of the child. The statute provides a series of factors for the court to consider in making this determination. KRS 403.270(2)(a)-(k). On appellate review, the trial court's "[f]indings of fact[] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure ("CR") 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). A judgment "supported by substantial evidence" is not "clearly erroneous." Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010) (quoting Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998)). Substantial evidence is defined as "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Id. (quoting Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972))."A trial judge has a broad discretion in determining what is in the best interests of children when he makes a determination as to custody." Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). "An abuse of discretion occurs when a trial court enters a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller, 320 S.W.3d at 141 (citations omitted).
Kentucky Revised Statutes.
As possible grounds for reversal, counsel for Mother posits that the family court lacked substantial evidence to support its finding that the award of permanent custody to the fictive kin was appropriate. The family court relied on the Cabinet report, which incorporated the conclusions of the Feinberg evaluation, and on the following statutory factors in making the "best interest" determination: The child's adjustment to his/her home, school, and community; the mental and physical health of all individuals involved; and the extent to which the child has been cared for, nurtured, and supported by any de facto custodian. KRS 403.270(2)(e), (f), and (h).
Our review indicates that the family court's decision is supported by substantial evidence in the record. The Feinberg evaluation, performed by mental health professionals, describes how Mother continues to experience difficulties with her severe and chronic mental health and substance abuse problems, exhibiting "a pattern of limited adherence to minimally acceptable standards for brief periods of time before regression into maladaptive habits." Mother's involvement in a single-vehicle accident while apparently on an "air duster high" shortly before the custody hearing indicates that she continues to struggle to maintain sobriety. The guardian ad litem's description of Child's positive relationship to the fictive kin, with whom she had lived for over sixteen months before the evaluation, fully supports the family court's finding under KRS 403.270(2)(e), (f), and (h) that permanent custody would be in Child's best interest. Indeed, the record contains very little evidence that would support a contrary conclusion.
The second argument presented by counsel is that the family court erred by failing to grant Mother a visitation schedule after it was specifically requested pursuant to KRS 403.320(1). We are unable to find a reference to this request or to the family court's ruling in the record before us. In the absence of any ruling by the family court to review, we are unable to address this issue.
For the foregoing reasons, we affirm the Clark Family Court's order granting permanent custody of Child to the fictive kin. We deny by separate order counsel's motion to withdraw from Mother's case.
ALL CONCUR.