Opinion
NO. 2019-CA-000584-ME NO. 2019-CA-000585-ME NO. 2019-CA-000586-ME NO. 2019-CA-000587-ME NO. 2019-CA-000588-ME NO. 2019-CA-000589-ME
02-07-2020
C.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; C.I.N., AND A.I.L.N., A MINOR CHILD APPELLEES AND C.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.M.A.; AND A.A.A., A MINOR CHILD APPELLEES AND C.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.M.A.; AND C.M.A., A MINOR CHILD APPELLEES AND C.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.M.A.; AND C.J.D.A., A MINOR CHILD APPELLEES AND C.A. APPELLANT v. CABINET FOR HEALTH AND FAMILYSERVICES, COMMONWEALTH OF KENTUCKY; D.M.A; AND K.D.D.A., A MINOR CHILD APPELLEES AND C.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; D.M.A.; AND S.M.A., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT Margaret G. Hicks Cadiz, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 18-AD-00027 APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 18-AD-00028 APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 18-AD-00029 APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 18-AD-00030 APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 18-AD-00031 APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 18-AD-00032 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. CLAYTON, CHIEF JUDGE: C.A. ("Mother") is the biological mother of five minor children, C.M.A., C.J.D.A., S.M.A., K.D.D.A., and A.A.A. (A.A.A. was incorrectly referenced in some of the court filings as A.K.A.) (collectively, the "Older Children"), whose biological father is D.A. ("Father"). Mother is the biological mother of one minor child, A.I.L.N. (the "Youngest Child"), whose biological father is Mother's boyfriend, C.N. ("Boyfriend") (the Older Children and the Youngest Child are referred to collectively herein as the "Children"). Mother appeals from the Calloway Circuit Court's orders terminating her parental rights to the Children.
After careful review, we affirm the trial court's orders terminating Mother's parental rights. Further, we grant appellant counsel's motion to withdraw from representation of Mother by separate order.
BACKGROUND
Mother had a case history with the Cabinet for Health and Family Services (the "Cabinet") regarding the Older Children dating back to 2008. Over twenty referrals were made over the years to the Cabinet regarding concerns for the Older Children's well-being and safety while in Mother's care. Unmet hygiene needs, unsanitary home conditions, lack of supervision, unresolved caregiver mental health needs, and medical neglect were repeated concerns with the family.
The Cabinet filed for, and was granted, temporary emergency custody of the Older Children in May of 2010. The trial court found that the Older Children were dependent because the home was unsafe and unsanitary. Additionally, A.A.A. was found to be neglected by Mother and Father, as A.A.A. was diagnosed with non-organic failure to thrive and the family missed several of A.A.A.'s doctor appointments. The Cabinet returned the Older Children back to the home in August and September of 2010. After the Older Children's return, the family worked with in-home services provided through the Cabinet for approximately a year thereafter.
Subsequently, in July 2013, the Cabinet substantiated a case against Mother and Father of basic neglect of K.D.D.A. due to lack of supervision, and the Cabinet opened another in-home ongoing case with the family. The family completed the Family Preservation Program ("FPP"), but the Cabinet continued to receive ongoing reports about the family concerning unacceptable living conditions and caregiving risks.
In February of 2014, the Cabinet substantiated a case against Mother of risk of harm of neglect of C.M.A. when C.M.A. witnessed Mother's attempted suicide. Father was injured in the incident and Mother was charged with assault, second degree, domestic violence and was required to receive treatment at a crisis center.
In March of 2014, the Cabinet substantiated another case against Mother of risk of harm of neglect of C.M.A. based on the sexual abuse of C.M.A. by her grandmother's boyfriend, who was residing with the family at the time.
Again, in September 2015, the Cabinet substantiated another case against Mother and Father of basic neglect of the Older Children due to repeated hygiene concerns, as well as the medical neglect of C.J.D.A., who was not being given his prescribed medication. While unsubstantiated, there were also allegations regarding Father's aggressive behavior towards the Older Children and several accounts of unexplained bruises on C.J.D.A. and K.D.D.A. The Cabinet substantiated a case of physical assault and injury to K.D.D.A. against Father in November of 2015, and the Cabinet found that additional services were needed in December of 2015 due to additional bruising on K.D.D.A.
Subsequently, the Cabinet filed a dependency, neglect, or abuse petition ("DNA Petition") on May 27, 2016 regarding the Older Children, who were placed in the temporary emergency custody of the Cabinet on the same day. The impetus for the DNA Petition was that Mother had violated a prevention plan in which she represented that Boyfriend would have no contact with the Older Children until he completed a sex offender assessment. The foregoing requirement was based on evidence that Boyfriend had sexually abused his sister in California. Moreover, the family still had an open case for hygiene and environmental concerns. It was also noted that Father had a substantiated sexual abuse finding in another county, for which he was eventually sentenced to two years' imprisonment.
At the adjudication hearing on the DNA Petition, the trial court ordered that the Older Children were to remain in the Cabinet's temporary custody. Mother was given time to work on her prevention plan and was allowed visitation with the Older Children one day every other week.
Thereafter, the Cabinet removed the Youngest Child from the home immediately after his birth in February of 2017. The trial court ultimately transferred custody of the Youngest Child to the Cabinet because the Older Children were already in the Cabinet's custody and because of Mother's significant history with the Cabinet, as well as Boyfriend's history of being a sexual abuse perpetrator.
The trial court ordered the genetic testing of the Children, which was performed on January 20, 2017. The results of such testing showed that five of the six Children were diagnosed as having a chromosomal abnormality-deletion syndrome, which presented as developmental delay and intellectual disability.
On February 21, 2017, the trial court ordered that Mother and Boyfriend cooperate with a Comprehensive Assessment and Training Services ("CATS") evaluation administered by the University of Kentucky Center on Trauma and Children in order to assist the Cabinet and the trial court to determine the best interests of the Children. The results of the CATS evaluation were described in a report issued in August of 2017, which stated the following in its placement recommendations:
The [Children] have experienced considerable maltreatment and instability while in the care of [Mother] and [Boyfriend]. [Mother] has a lengthy history of [Cabinet] involvement beginning in 2008 and approximately five years of ongoing [Cabinet] service intervention meant to address caregiving risks. Per records, [Mother] has completed in-home services including Family Reunification Programs and [FPPs] but has demonstrated little evidence of meaningful change over time. [Mother's] cognitive deficits and untreated mental health symptoms make her an extremely high risk caregiver to any child in her care, much less six children with special needs who require proactive, attuned caregiving and heavy monitoring and supervision due to
their vulnerability. There appears to be a very poor fit between her children's needs and [Mother's] ability to safely assume the caregiving role.Thereafter, the Cabinet changed the permanency plans for the Children from reunification to adoption.
. . . .
Given their resistance to treatment, lack of meaningful change made in reduction to caregiving risks despite considerable intervention, and the long-term intervention that would need be needed to address their difficulties, [Mother's] and [Boyfriend's] prognosis for making the necessary changes in a timely manner that would support a safe and suitable caregiving environment is poor. Evidence suggests that the focus of case planning should be on securing permanence for all six of these children.
On June 15, 2018, the Cabinet filed petitions to involuntarily terminate the parental rights of Mother and Father regarding the Older Children and to terminate the parental rights of Mother and Boyfriend as to the Youngest Child (collectively, the "TPR Petitions"). The trial court held a hearing on March 7, 2019, concerning the TPR Petitions at which Mother and Boyfriend were present and represented by appointed counsel. Father did not appear at the hearing, as he was imprisoned and had previously agreed to have his parental rights voluntarily terminated as to the Older Children. At the time of the hearing, the Older Children had been in foster care for almost three years, and the Youngest Child had been in foster care since his birth in 2017.
Following the hearing, the trial court entered written findings of fact, conclusions of law and orders on March 14, 2019, terminating Mother's and Father's parental rights to the Older Children, terminating Mother's and Boyfriend's parental rights as to the Youngest Child, and transferring the custody of the Children to the Cabinet with authority to place the Children for adoption.
Mother, via court-appointed counsel, filed timely notices of appeal. Neither Father nor Boyfriend appealed. Mother's counsel also filed a motion to withdraw as counsel in the appeals and a brief that comported with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), citing counsel's inability to identify any issue with sufficient merit to support a meaningful argument on appeal and requesting that this Court conduct a full examination of the record for prejudicial error and to determine if any non-frivolous issues had been overlooked. By order of this Court entered July 19, 2019, counsel's motion to withdraw was passed to this Panel. The Court also gave Mother thirty days to file pro se briefs in the appeals, which she did not file.
ANALYSIS
a. Anders and A.C.
In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), a panel of this Court adopted the principles and procedures laid out in Anders in the criminal setting for appeals from orders terminating parental rights, concluding that "an indigent parent defending a termination of parental rights action enjoys a statutory right to counsel during the appeal[.]" Id. at 367. Consequently, under Kentucky law, it is necessary to utilize Anders-type briefs and procedures in termination of parental rights cases wherein appointed counsel does not believe there are any non-frivolous claims to appeal. Therefore, upon a good faith review of the record:
if counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
As previously discussed, in this case Mother's counsel submitted Anders briefs in compliance with A.C. and Anders. Following A.C., we are obligated to independently review the record and establish whether these appeals are, in fact, frivolous. A.C., 362 S.W.3d at 371.
b. Standard of Review
An appellate court will only reverse a trial court's decision to terminate a parent's rights if it is clearly erroneous, meaning there is no substantial, clear, and convincing evidence to support the decision. Kentucky Rules of Civil Procedure ("CR") 52.01; Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Therefore, the findings of the trial 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).
c. Discussion
The grounds for the involuntary termination of parental rights are set forth in Kentucky Revised Statutes ("KRS") 625.090. This statute provides that parental rights may be involuntarily terminated only if a trial court finds, in pertinent part, that a child is abused or neglected as defined in KRS 600.020(1), that termination is in the child's best interests, and the existence of one or more of ten specific grounds set out in KRS 625.090(2). KRS 625.090(1)(a)-(c), (2); M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007). Further, KRS 625.090(3) lays out factors for the trial court to consider in determining the best interests of the child and the existence of grounds for termination.
In this case, the trial court complied with all relevant statutory mandates to terminate Mother's parental rights to the Children. Pursuant to KRS 625.090(1)(a) and (c), the trial court found that the Children were abused and neglected, and that it was in the Children's best interests that Mother's parental rights be terminated.
Moreover, the trial court found by clear and convincing evidence the existence of multiple factors listed in KRS 625.090(2). Such factors were: (1) that Mother, for a period of not less than six (6) months, had continuously or repeatedly failed or refused to provide, or had been substantially incapable of providing, essential parental care and protection for the Children and that there was no reasonable expectation of improvement in parental care and protection, considering the Children's ages; (2) that Mother, for reasons other than poverty alone, had continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the Children's well-being and that there was no reasonable expectation of significant improvement in Mother's conduct in the immediately foreseeable future, considering the Children's ages; and (3) that the Children had been in foster care under the responsibility of the Cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the TPR Petitions.
Finally, the trial court stated that it had considered the factors included in KRS 625.090(3), including the Children's improvements while in foster care, Mother's inability to bring about lasting and permanent changes, and the specific acts of abuse and neglect perpetrated by Mother. Moreover, the trial court found that the Cabinet had made reasonable efforts to reunite the Children with Mother pursuant to KRS 625.090(3)(c).
Having reviewed the record in detail pursuant to Anders and A.C., we agree with counsel's belief that the evidence shows that Mother does not have grounds warranting relief and find that the evidence is more than sufficient to support the trial court's findings of fact, conclusions of law, and judgment. The trial court found that Mother was emotionally and psychologically unstable, had not significantly minimized her chronic neglect of the Children, and had a limited understanding of the Children's special needs. Further, the Cabinet gave Mother multiple opportunities to reunify with the Children by following the prevention plans, and she failed to do so each time. Accordingly, based on the Cabinet's over-eleven-year involvement with Mother, we do not believe the trial court's decision to grant termination of Mother's parental rights to the Children and to place the Children in the permanent custody of the Cabinet was in error.
CONCLUSION
For the foregoing reasons, the order of the Calloway Circuit Court is affirmed.
Furthermore, we grant the motion of Margaret G. Hicks to withdraw as counsel for Mother as set forth by separate order.
ALL CONCUR. BRIEF FOR APPELLANT Margaret G. Hicks
Cadiz, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky