Opinion
2021-CA-0610-ME 2021-CA-0611-ME 2021-CA-0612-ME
01-21-2022
C.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; AND K.T.L.T., A CHILD APPELLEES AND C.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; B.L.W., A CHILD; AND J.W. APPELLEES AND C.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; R.B.; AND S.F.B., A CHILD APPELLEES
BRIEF FOR APPELLANT: David W. Mossbrook Lexington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE TRACI H. BRISLIN, JUDGE ACTION NOS. 20-AD-00041, 20-AD-00042, 21-AD-00045
BRIEF FOR APPELLANT: David W. Mossbrook Lexington, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Tiffany L. Yahr Lexington, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
OPINION
COMBS, JUDGE:
Appellant, C.K. (Mother), appeals from orders of the Fayette Family Court terminating her parental rights to her three minor children in these consolidated appeals. After our review, we affirm.
By order entered on October 19, 2021, this Court granted the Cabinet's motion to consolidate to the extent that the Cabinet is permitted to a file single brief and that all three appeals will be considered by the same three-judge merits panel.
Mother's counsel, David W. Mossbrook, has filed a motion for leave to withdraw as counsel and to file a brief pursuant to A.C. v. Cabinet for Health & Family Services, 362 S.W.3d 361 (Ky. App. 2012), and Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). By order entered on August 13, 2021, this Court noted that counsel stated that he provided copies of the motion to withdraw and Anders brief to Appellant; that she was informed of her right to file, pro se, a brief raising any issues she deems meritorious; and that no response to the motion to withdraw had been filed. This Court passed the motion to withdraw to this merits panel, ordered the tendered Anders brief filed, and permitted Mother to proceed pro se and to file a supplemental brief within 30 days. No supplemental brief has been filed. We now proceed with our review.
C.K. is the mother of three children: B.W., a female born in 2009; S.B., a female born in 2013; and K.T., a male born in 2015. In December 2017, the Cabinet received a referral alleging that Mother was using drugs, that the home was full of cockroaches and bedbugs, and that random men appeared in the home when Mother was not there. During the investigation, Mother had a black eye and reported having been in a fight with a friend in front of the children. Mother was asked to undergo drug screening; she tested positive for cocaine. On February 2, 2018, the Cabinet filed neglect petitions. On February 9, 2018, the children were placed in the Cabinet's custody. On April 20, 2018, Mother stipulated to neglect, and the children were committed to the Cabinet on May 17, 2018.
Mother and the children have a history with the Cabinet going back many years prior to 2017 as outlined at paragraph 10, pages 8-10 of the family court's findings of fact and conclusions of law.
Ultimately, the Cabinet filed petitions for termination of parental rights in the interest of each of the three children. The matter was tried on March 29 and April 1, 2021. The Cabinet called the following witnesses: Corey Birch, a licensed professional clinical counselor and a team leader with the University of Kentucky CATS project; Mary Ann Franco, B.W.'s and K.T.'s therapist; Mikka McGee, S.B.'s therapist; Debra Gabbard, a volunteer for CASA assigned to the family; Jennifer Walker, a Cabinet supervisor for the family; and Keisha Williams, the ongoing Cabinet worker. Mother also testified. On April 22, 2021, the court entered detailed findings of fact and conclusions of law, orders terminating parental rights, and orders of judgment as to each child.
"CATS is the 'Comprehensive Assessment and Treatment Services' Project at the University of Kentucky Center on Trauma and Children." R.M. v. Cabinet for Health and Family Services, 620 S.W.3d 32, 37 n.4 (Ky. 2021).
Court Appointed Special Advocate.
The fathers' parental rights were also terminated. None appealed.
Mother appealed. Where, as here, counsel files an Anders brief and a motion to withdraw, "we are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." AC, 362S.W.3dat372.
In Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014), our Supreme Court explained as follows:
KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-G) exists.
Kentucky Revised Statutes.
The standard of our review is whether the trial court's findings are clearly erroneous. CR 52.01.
Kentucky Rules of Civil Procedure.
C.A.W. v. Cabinet For Health & Family Services, Commonwealth, 391 S.W.3d 400, 403 (Ky. App. 2013) (internal quotation marks and citations omitted).The trial court has a great deal of discretion in an involuntary termination of parental rights action. . . . [Findings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people.
In the case before us, the family court found that each of the children had previously been adjudged to be a neglected child: B.W. on December 15, 2010, January 29, 2014, April 20, 2018, and May 17, 2018; S.B. on January 29, 2014, April 20, 2018, and on May 17, 2018; and K.T. on April 20, 2018. The first prong of the tripartite test is satisfied as to each child. KRS 625.090(1)(a)l.
The second prong requires that the court find by clear and convincing evidence that termination would be in the best interest of the child. KRS 625.090(1)(c). In conducting its best interest analysis, KRS 625.090(3) requires the court to consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a
reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
The family court considered Mother's mental health, her history of substance abuse, and her continued assertions that positive drug screens for fentanyl and cocaine were false. The court found that despite Mother's long period of sobriety, she lacked insight into the severity of her addiction. As recently as March 2021, Mother had gone to the emergency room and received a prescription for opiates for pain resulting in a reasonable concern for relapse. The court also found that Mother has had many relationships with men that resulted in domestic violence and that Mother continues to make poor decisions as evidenced by her recent relationship with an incarcerated individual.
The court determined that the Cabinet had offered or provided all reasonable services to the family ~ even postponing the termination case to attempt reunification with Mother. But despite these services, Mother had not been able to make sufficient adjustment in her circumstances to allow for each child to return home within a reasonable period of time as would be consistent with their best interest.
The court found that Mother is unable to meet the mental health needs of the children. According to expert testimony, the children are unable to live together due to their complex trauma and sexually reactive behavior. They need structure and stability in order to continue to improve. And furthermore, the children disclosed being afraid of Mother. The court believed that the children's progress could be undone if they were placed back in Mother's home.
The family court found that B.W. is currently in a potentially adoptive home, that S.B. is currently in an adoptive home, and that K.T. is currently in an adoptive home. Each child's therapist and the CASA volunteer testified regarding each child's tremendous progress with behaviors and trauma. Each child's relationship with his or her siblings is damaged to the extent that it is not in the best interest of any of the children to live together. Each child is in a foster home meeting the child's mental health needs, prioritizing education, and providing the love and stability the child needs. Each child has improved in foster care, and it is expected that each will continue to improve with a permanent adoptive placement.
The court also noted Mother's failure to pay a reasonable portion of substitute physical care and maintenance despite her being financially able to do so. Testimony at the hearing established that Mother had an arrearage on her child support obligation.
The family court properly considered the applicable statutory factors in conducting its best interest analysis. Its conclusion that termination is in each child's best interest has a substantial evidentiary foundation ~ namely, the testimony of the Cabinet's witnesses, which is summarized in detail in the court's findings of fact. The second prong of the tripartite test is satisfied as to each child.
The third and final prong, KRS 625.090(2), requires the court to find by clear and convincing evidence the existence of one or more enumerated grounds. Only ground one is required. Subsection (j) provides:
[t]hat the child has 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 petition to terminate parental rights [.]
The family court found that each child had remained in foster care for the requisite period of time. As counsel notes in the Anders briefs, B.W. was in foster care from February 9, 2018, to the filing of the TPR petition on January 28, 2020, a period of 24 months; S.B. was in foster care from February 9, 2018, to the filing of the TPR petition on March 15, 2021, a period of 37 months; and K.T. was in foster care from February 9, 2018, to the filing of the TPR petition on January 28, 2020, a period of 24 months. The third prong of the tripartite test is satisfied as to each child.
We conclude from our independent review of the record that no "non-frivolous grounds" exist and that indeed meritorious grounds do exist to support the orders of the trial court terminating Mother's parental rights. Accordingly, we affirm. By separate order, we grant counsel's motion to withdraw.