Opinion
2023-CA-0410-ME 2023-CA-0414-ME
02-23-2024
B.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND R.A., A CHILD APPELLEES and B.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.A., A CHILD APPELLEES
Brief for Appellant: Daniel Sherman Greenville, Kentucky Brief for Appellee Commonwealth of Kentucky, Cabinet for Health and Family Services: Kevin Martz Covington, Kentucky
NOT TO BE PUBLISHED
Appeal from Muhlenberg Circuit Court Honorable Brian Wiggins, Judge Action Nos. 22-AD-00030, 22-AD-00031
Brief for Appellant: Daniel Sherman Greenville, Kentucky
Brief for Appellee Commonwealth of Kentucky, Cabinet for Health and Family Services: Kevin Martz Covington, Kentucky
Before: Acree, Goodwine, and Jones, Judges.
OPINION
ACREE, JUDGE
On February 26, 2023, the Muhlenberg Circuit Court entered orders terminating B.B.'s ("Mother's") parental rights relative to her biological children, M.A. and R.A. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for Mother filed notices of appeal on her behalf and, subsequently, filed an Anders-type brief reaching the conclusion that no meritorious claim of error exists that would justify reversal of the orders terminating parental rights in this case. Counsel accompanied the brief with a motion to withdraw, which was passed to this merits panel. After careful review, we affirm the circuit court's order terminating Mother's parental rights; and, as counsel has fully complied with the requirements of A.C. and Anders, we have granted his motion to withdraw by separate order.
The circuit court also terminated the parental rights of children's putative father, T.A. He did not appeal.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Pursuant to A.C., the function of this Court is "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. Such review is analogous to a palpable error review, requiring only that we ascertain whether any error affects the substantial rights of a party. Id. at 370. If such a review results in the Court's agreement with an appellant's counsel that there is no nonfrivolous ground for appealing the termination of parental rights, it is appropriate to affirm the trial court.
With that in mind, we will briefly summarize the facts and procedural history relevant to our disposition of this matter. On or about April 27, 2021, dependency/neglect/abuse ("DNA") proceedings were initiated against Mother, and the children were removed from her custody by order of the Muhlenberg District Court. On July 1, 2021, the children were placed in the temporary custody of the Cabinet for Health and Family Services ("Cabinet"); on October 28, 2021, following an adjudication hearing, the district court found the children to be neglected; on March 24, 2022, following disposition, the children were committed to the Cabinet; and, on August 11, 2022, the Cabinet filed a petition with the Muhlenberg Circuit Court to terminate Mother's parental rights.
At the February 23, 2023 termination hearing ultimately held in this matter, the Cabinet's social worker testified that the children's parents had been provided all services reasonably necessary to enable reunification, and Mother made no contention to the contrary. Those services included a reunification plan in May 2021 which chiefly required Mother to cease using illegal drugs and to secure regular employment and safe and stable housing. For nearly two years thereafter, no significant barriers prevented Mother from complying with her plan. Nevertheless, substantial evidence reflected that Mother failed to comply. Specifically, Mother continued to test positive for methamphetamines throughout the pendency of the underlying proceedings, most recently in January 2023. Mother also had a demonstrated ability to obtain employment; but, since April 27, 2021, she failed to maintain any employment longer than two or three months or to maintain safe and stable housing.
After the children were placed in foster care on July 1, 2021, Mother consistently visited with them on a weekly basis and often brought them snacks and gifts on those occasions. Since that time, however, she never sufficiently provided for the children's well-being. As of the February 23, 2023 termination hearing, Mother had an outstanding arrearage of court-ordered child support that had resulted in a finding of contempt, and she adduced no compelling evidence supporting that she would be in a position to provide the children - who had been out of her custody for almost two years already - with sufficient care or a safe and stable home within a reasonable period of time. Conversely, the children, whose foster parents were adequately caring for them and willing to provide them a permanent home, demonstrated appropriate developmental improvement and appeared to be on-target.
As indicated, the circuit court terminated Mother's parental rights, and this consolidated appeal followed. Termination of a party's parental rights is proper upon satisfying a three-part test by clear and convincing evidence. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, the court must find the child "abused or neglected[,]" as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). The family court's termination decision will only be reversed if it is clearly erroneous. Cabinet for Health &Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Such a decision is clearly erroneous if there is no substantial, clear, and convincing evidence to support the decision. Id.
Kentucky Revised Statute.
Here, the circuit court made the requisite findings, supported by sufficient evidence of record, to support its orders terminating Mother's parental rights. After recounting what has been set forth above, the circuit court found the children to be neglected, and that Mother had failed to demonstrate the children would not continue to be neglected if returned to her care. KRS 600.020(1); KRS 625.090(1)(a). It found Mother was unfit to parent on the grounds specified in KRS 625.090(2)(e) and (g). It found Mother failed to make reasonable efforts or adjustments to make it in the children's best interests to return to her custody within a reasonable period of time, considering their ages. KRS 625.090(3)(d). The circuit court also determined the Cabinet had offered Mother reasonable services and had made reasonable efforts to reunify her with the children, and that it was unlikely additional services would bring about lasting parental adjustment capable of permitting reunification. KRS 625.090(3)(c) and (4).
In relevant part, KRS 625.090(2) provides:
No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(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; ...
(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[.]
The Court in the case now before it has undertaken the appropriate review and agrees with counsel for Mother that there is no nonfrivolous ground that would justify reversal of the trial court. Therefore, we AFFIRM the February 26, 2023 orders of the Muhlenberg Circuit Court terminating Mother's parental rights to the children, M.A. and R.A.
ALL CONCUR.