Opinion
NO. 2012-CA-001806-ME NO. 2012-CA-001807-ME
01-10-2014
M.M.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMLY SERVICES; B.S.G.M., A MINOR CHILD APPELLEES AND M.M.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMLY SERVICES; AND R.C.R.K., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Sara Cathi Harrison West Paducah, Kentucky Melissa M. Kobielski Paducah, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 12-AD-00013
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 12-AD-00014
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. STUMBO, JUDGE: M.M.K. appeals from the September 12, 2012 findings of fact and conclusions of law and corresponding orders of the McCracken Family Court that terminated Appellant's parental rights to her two minor children. Because we hold that the trial court's orders are supported by substantial evidence, we affirm.
Appellant is the natural mother of minor children B.S.G.M. and R.C.R.K., who are the subjects of the underlying termination proceedings. In 2010, a child abuse referral was received by the Cabinet for Health and Family Services ("Cabinet") regarding suspected abuse of B.S.G.M. B.S.G.M., who was 55 days old at the time of the referral, had a broken right arm, three broken ribs, possible breaks in his right ankle and left shoulder, and a possible eye injury. B.S.G.M. and his older brother, R.C.R.K., were adjudicated abused by the McCracken Family Court and subsequently committed to the Cabinet where they have continuously remained in foster care. Approximately two months after the children were committed to the Cabinet, Appellant was arrested and charged with criminal abuse, perjury, and trafficking morphine. Appellant is currently serving a sentence on those charges.
At the time of the termination of parental rights hearing, the minor children were residing in a foster home along with their half-siblings.
On March 9, 2012, the Cabinet filed a petition for involuntary termination of parental rights for each child, in two separate actions. A final hearing, regarding both children, was held on August 9, 2012. On September 12, 2012, the trial court's findings of fact and conclusions of law were entered in each action. Therein, the trial court found that B.S.G.M. and R.C.R.K. were abused children and that termination would be in their best interests. In addition, corresponding orders which terminated Appellant's parental rights were entered in both cases. These appeals followed. Although the parental rights of B.S.G.M. and R.C.R.K.'s respective fathers were also terminated in the proceedings, those terminations have not been appealed and are therefore not addressed herein.
The grounds necessary to terminate a parent's rights are set out in Kentucky Revised Statues (KRS) 625.090, which requires the trial court to find, from clear and convincing evidence, that the child has been adjudged an abused or neglected child and that termination would be in the best interest of the child. KRS 625.090 (1). In addition, the trial court must find, by clear and convincing evidence, the existence of one or more of the following:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;KRS 625.090(2).
(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 child have been involuntarily terminated;(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; or
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
(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 rights.
We review a trial court's termination of parental rights under a clearly erroneous standard of review, which requires clear and convincing evidence. M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846 (Ky. App. 2008). "Hence, this Court's review is to determine whether the trial court's order was supported by substantial evidence on the record." Id. at 850. Therefore, we "will not disturb the trial court's findings unless no substantial evidence exists on the record." Id.
In the case before us, Appellant concedes that the statutory requirements of KRS 625.090 were met. However, she argues that termination was unjust based upon the lack of physical evidence that she committed the abuse. We disagree. The trial court found that B.S.G.M. is an abused child in that Appellant allowed him to be abused, and that R.C.R.K. is an abused child because Appellant placed him at risk of harm because of his sibling's physical injuries. There was sufficient evidence presented in support of these findings. Appellant further argues that termination was unjust because she participated in her case plan and visited with the children until her incarceration. The trial court found that Appellant had failed to provide essential parental care and protection to both children and that there was no reasonable expectation of improvement by Appellant to provide care or protection within a reasonable time. Again, there was sufficient evidence to support these findings. Indeed, Appellant herself concedes that the statutory requirements of termination were met. Accordingly, we find no error with the trial court's September 12, 2012 findings of fact and conclusions of law and orders terminating the parental rights of Appellant.
Appellant makes an additional argument that the underlying actions would have never progressed to a termination proceeding if the children had been placed with relatives, as opposed to a foster family. However, no such argument was addressed by the trial court and Appellant has failed to cite to that portion of the record in which this argument was presented to the trial court. "An appellate court 'is without authority to review issues not raised in or decided by the trial court.' " Meyers v. Commonwealth, 381 S.W.3d 280, 286 (Ky. 2012)(citation omitted). This argument is therefore not properly preserved for our review. Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v).
For the foregoing reasons, the September 12, 2012 findings of fact and conclusions of law, and order terminating Appellant's parental rights are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Sara Cathi Harrison
West Paducah, Kentucky
Melissa M. Kobielski
Paducah, Kentucky
BRIEF FOR APPELLEE,
CABINET FOR HEALTH AND
FAMILY SERVICES:
Dilissa G. Milburn
Mayfield, Kentucky