Opinion
NO. 2013-CA-000844-ME
03-21-2014
B. B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.B., A CHILD APPELLEES
BRIEF FOR APPELLANT: Eric S. Edwards London, Kentucky BRIEF FOR APPELLEE: Stephen D. Spurlock London, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE DURENDA LUNDY LAWSON, JUDGE
ACTION NO. 12-AD-00046
OPINION AND ORDER
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. CLAYTON, JUDGE: B.B. (hereinafter "mother") appeals the Laurel Family Court's April 15, 2013 order terminating parental rights to her daughter, D.B. After careful review, we affirm the family court's order terminating mother's parental rights. Further, we grant appellant's counsel permission to withdraw.
On November 21, 2012, the Cabinet for Health and Family Services (hereinafter the "Cabinet") filed a petition, pursuant to Kentucky Revised Statutes (KRS) 625.050, to involuntarily terminate the parental rights of B.B., the natural mother; J.B., the natural father; and, J.J., the putative father to their daughter, D.B., who was born on December 8, 2007. In a paternity action, it was determined that J.B. was the natural father of D.B. J.J. is the putative father based on the fact that the child lived with him and that he provided support for her. When the petition was filed, the locations of J.J. and J.B. were not known, and a warning order attorney was appointed for both men.
D.B. was committed to the Cabinet on September 11, 2011, after she was adjudicated to be a neglected child. The mother stipulated to the neglect in the underlying case. At the time of D.B.'s commitment, allegations were made that mother had violated a written plan to protect the child by allowing the child to spend time with J.J., who the Cabinet had previously established sexually abused the child. Nonetheless, at trial mother admitted that she does not believe that J.J. sexually abused the child and, significantly, she also acknowledged that when her daughter had reported sex abuse to her before, she had done nothing about it.
A final hearing was held on March 28, 2013. The mother and her attorney were present as was the child's guardian ad litem (GAL). The GAL recommended termination of all parties' parental rights. J.B. was not at the trial but represented by the warning order attorney who filed a report in the record. J.B. also executed a sworn petition on November 28, 2011, voluntarily terminating his parental rights to the child. J.J. was not at trial but represented by the warning order attorney who filed a report in the record.
The following information was gleaned at the trial. The child entered foster care in May 2011 and was under the responsibility of the Cabinet for at least fifteen (15) of the most recent twenty-two (22) months preceding the filing of the involuntary termination petition. She has received therapy since July 2012 for sexually reactive behaviors and anxiety. At the time of the hearing, her anxiety level had decreased to the point that she no longer pulled her hair out. Nevertheless, the child still exhibited fear about being exposed to her abuser, J.J.
After the child was committed to the Cabinet in September 2011, the mother lived with J.J. for approximately another thirteen months, that is, until late June or early July 2012. At that time, they were evicted from their residence, and the mother went to live with her parents until October 2012 when she found a home for herself. While mother worked prior to living with J.J., she did not work during the time that they lived together, but since October 2012, she has been employed.
As referenced, after J.J. and mother were evicted, she made steps toward establishing a home and finding employment. The process, however, only began after the eviction, which was more than one year after her daughter entered foster care. Further, mother did not find a home until more than sixteen months after D.B. went into foster care.
In the trial court's findings of fact, conclusions of law, and order, the trial court found that D.B. was a neglected child and that termination would be in her best interests. An order was entered that terminated mother's, J.B.'s, and J.J.'s parental rights. The mother now appeals the termination. Although the parental rights of D.B.'s fathers were terminated, they are not appealing.
After timely filing a notice of appeal on behalf of mother, her court-appointed counsel submitted an Anders brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders was adopted by this Court in A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 364 (Ky. App. 2012). In the Anders brief, counsel asserted that no meritorious issues exist on which to base an appeal. Nonetheless, he pointed out that it is incumbent upon this Court to independently review the record to decide whether the appeal is frivolous. Anders, 386 U.S. at 744, 87 S.Ct 1396 at 1400. He also attached a motion to withdraw as counsel in the appeal. Our Court allowed the Anders brief filed, permitted mother authority to continue in the proceeding pro se, granted her time to file a brief, and passed to this panel the motion to permit counsel to withdraw. Mother, however, did not file a brief.
Our standard of review in termination of parental rights cases is set forth in M.E.C. v. Cabinet for Health and Family Services, 254 S.W.3d 846, 850-851 (Ky. App. 2008). The standard is confined to the clearly erroneous standard in Kentucky Rules of Civil Procedure (CR) 52.01, which is based upon clear and convincing evidence. Therefore, the findings of the family court will not be disturbed unless no substantial evidence exists in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
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). Here, the family court found that the child had been adjudicated a neglected child and her best interest would be served by termination of parental rights.
Additionally, the trial court must find, by clear and convincing evidence, the existence of at least one of ten grounds found in KRS 625.090(a - j). In the case at bar, the family court found that:
(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;KRS 625.090(2)(e) and (j).
and
(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.
Further, the family court's judgment observed that the Cabinet has offered all reasonable services to mother that would likely have permitted reunification pursuant to KRS 625.090(3)(c). The family court held that termination of parental rights is in the best interest of the child. Thus, the family court precisely followed the statutory protocol for termination of parental rights.
In the Anders brief, it is noted that sexual abuse of the child by the putative father, J.J., was substantiated after an investigation in January 2011. The Cabinet was then granted temporary custody of the child. At an adjudication hearing held in August 2011, the mother acknowledged that she had violated the Cabinet's plan to protect her child and allowed her to be in the presence of J.J. Moreover, testimony at the termination hearing by the Cabinet social worker indicated that mother had not substantially complied with the objectives of her case plans.
Mother did not submit a brief supporting her position; however, according to the Anders brief, she believes that the family court erred in granting the termination of her parental rights because substantial evidence did not support it.
We have reviewed the family court's termination of parental rights here and conclude that substantial evidence supports the decision of the family court, and accordingly, we affirm the family court decision. D.B. was a neglected child, her parents had not provided care and protection to her, and her mother, specifically, had not only failed to meet the Cabinet's requirements for the return of her daughter but also continued to assert that D.B. had not been sexually abused.
For these reasons, the Laurel Family Court's findings of fact, conclusions of law, and order terminating mother's parental rights are affirmed.
Furthermore, we grant the motion of Eric S. Edwards to withdraw as counsel for B.B.
ALL CONCUR.
Denise G. Clayton
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Eric S. Edwards
London, Kentucky
BRIEF FOR APPELLEE: Stephen D. Spurlock
London, Kentucky