Opinion
2021-CA-1412-ME 1-CA-1415-ME 2021-CA-1416-ME
08-12-2022
W.K.C.[1] APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND W.E.J., A MINOR CHILD APPELLEES AND W.K.C. APPELLANT CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.L.C., A MINOR CHILD APPELLEES AND W.K.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND I.S.C., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Betty Megan Williams Mt. Sterling, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MONTGOMERY CIRCUIT COURT HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 20-AD-00023, 20-AD-00025, 20-AD-00026
BRIEFS FOR APPELLANT:
Betty Megan Williams
Mt. Sterling, Kentucky
BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:
Dilissa G. Milburn
Mayfield, Kentucky
BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES.
OPINION
DIXON, JUDGE:
W.K.C. ("Mother") appeals the judgments of the Montgomery Circuit Court, entered November 9, 2021, terminating her parental rights to W.E.J., K.L.C., and I.S.C. (hereinafter collectively referred to as "the Children"). After careful review of the record, briefs, and law, we affirm the trial court's judgments and, by separate order, grant Mother's appointed counsel's motion to withdraw.
Despite filing nearly identical self-proclaimed Anders briefs in all three appeals, differing only in the biographic details of the child at issue, counsel only motioned to withdraw in Nos. 2021-CA-1415-ME and 2021-CA-1416-ME.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On August 16, 2018, through dependency, neglect, and abuse ("DNA") proceedings, the Children were placed in the emergency custody of the Cabinet for Health and Family Services ("CHFS"). The DNA petitions alleged that maternal grandmother, who was the Children's caretaker due to Mother's incarceration on charges for possession of controlled substances, was abusing controlled substances herself, and the Children were not properly supervised. Thereafter, CHFS developed multiple case plans to assist Mother in reunifying with the Children. As part of her case plan, Mother was to maintain her sobriety. However, from the Children's removal on August 16, 2018, to March 25, 2019, Mother had five positive drugs screens and most recently tested positive for THC, amphetamines, methamphetamine, and methylenedioxymethamphetamine.
On May 4, 2020, CHFS filed the underlying petitions to terminate Mother's parental rights, and a final hearing was held on September 2, 2021. On November 9, 2021, the court entered findings of fact and conclusions of law. Therein, the court determined that the Children were neglected or abused and they had been in CHFS custody for 15 of the 48 months preceding the present action. The court further found that for at least six months, Mother had continuously or repeatedly failed to provide essential parental care or protection, as well as essential food, clothing, shelter, medical care, or education reasonably necessary, and that there was no reasonable expectation of improvement in the immediately foreseeable future considering the Children's ages. Finally, the court concluded that CHFS had made reasonable efforts to reunify the family, having provided all available services, and that termination was in the best interest of the Children. Accordingly, the court entered judgments granting CHFS's petitions and terminating Mother's parental rights.
Mother, through her appointed counsel, timely appealed. Thereafter, in accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), Mother's counsel filed an Anders brief, attesting that no meritorious issues exist to present to this Court, as well as a motion to withdraw as counsel on appeal. The motion to withdraw was passed to this panel. Mother was afforded an opportunity to file a pro se brief, but no brief was filed.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
STANDARD OF REVIEW
The trial court's findings of fact are subject to the clearly erroneous standard of review. CR 52.01. Thus, we give great deference to the trial court's findings and will only set them aside if the record is devoid of substantial evidence in support. D.G.R. v. Commonwealth, Cabinet for Health and Family Servs., 364 S.W.3d 106, 113 (Ky. 2012). We review de novo the application of the law to the facts. Id.
Kentucky Rules of Civil Procedure.
ANALYSIS
Before turning to Mother's arguments, we must address the fact that Mother did not file a designation of record and, consequently, the video recording of the final hearing was not included in the certified record on appeal. See Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016) (wherein this Court cautioned practitioners that in involuntary termination of parental rights (TPR) actions no portion of the video proceedings are automatically certified as part of the appellate record). It is settled law that Mother bears the responsibility of ensuring that we receive a complete record. Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007), abrogated on other grounds by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012). When the record is incomplete, we must assume that the contents of the missing portions support the court's decision. King v. Commonwealth, 384 S.W.3d 193, 194 (Ky. App. 2012). Bearing this standard in mind, we will proceed with our review.
TPR actions are governed by KRS 625.090. TPR may be granted only if the trial court finds that a three-prong test has been met by clear and convincing evidence. Id. First, the child must be deemed abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, the trial court must find the existence of at least one statutory ground for termination as set forth in KRS 625.090(2). Third, termination must be found to be in the best interest of the child. KRS 625.090(1)(c).
Kentucky Revised Statutes.
Mother concedes that the first prong has been met. As to the remaining criteria, Mother asserts that the court erred in granting TPR because she had complied with her CHFS case plan requirements to engage in parenting classes, attend mental health counseling, and maintain stable housing and employment; additional services would be available to her if the Children were returned; and a Mother's love should prevail. Since Mother's claims cannot be substantiated without the video proceedings, we find no error. Our review, however, is not yet complete because, given that this is an Anders appeal, we are required to fully examine the record and determine whether the appeal is frivolous. A.C., 362 S.W.3d at 371. Accordingly, we will briefly address the court's findings and conclusions supporting termination.
Regarding the first prong, the court found that the Children were abused and neglected when Mother failed or refused to provide essential parental care and protection for the Children for a period in excess of six months. KRS 600.020(1)(a)4. Having reviewed the record, we conclude that the court's findings were amply supported by the results of Mother's drug tests which were admitted into evidence and establish that she continued to test positive for illegal substances on five separate occasions over the six-month period after the Children were removed. Further, because Mother's continued use of illegal substances prevented reunification, we agree that this constituted abuse or neglect, and the first prong was met.
The court made several findings that would satisfy the second prong; however, only one is required, and plainly the Children have been in the care of CHFS for 15 of the 48 months preceding the filing of the underlying TPR petition. KRS 625.090(2)(j). Hence, the second prong has been met.
As for the third prong, the best interest determination, the court made the necessary findings as required by KRS 625.090(3). Specifically, the court found that CHFS had provided all reasonable services to aid in reunification; Mother failed to make sufficient changes in her high-risk behaviors to allow for safe return of the Children as demonstrated by her history of testing positive for methamphetamine and/or THC use and her having been incarcerated ten times since CHFS's case commenced; the Children were thriving in their pre-adoptive foster homes where they had bonded to their foster families and improved physically, mentally, and emotionally since placement; and the Children were expected to continue to improve if termination was granted.
Mother concedes in her brief that she was provided parenting classes and mental health treatment. The record further demonstrates that CHFS made multiple case plans for the family, paid for Mother's drug screens, and facilitated visitation with the Children. Despite these services and access to substance abuse treatment, Mother continued to regularly test positive for illegal substances after the Children were removed. While we are unable to determine if substantial evidence supports the court's findings pertaining to Mother's repeated incarceration and the Children's welfare without the video proceedings, we note that Mother did not refute the findings on appeal, and as stated above, we must presume that the record supports the court's determination. Consequently, we cannot say the court erred in determining that termination of Mother's parental rights was in the Children's best interest.
Having determined that the court complied with all statutory mandates and rendered detailed findings of fact and conclusions of law that are supported by the evidence, we conclude these appeals are without merit.
CONCLUSION
Therefore, and for the foregoing reasons, the orders of the Montgomery Circuit Court terminating Mother's parental rights are AFFIRMED.
ALL CONCUR.