Opinion
NO. 2019-CA-000610-ME NO. 2019-CA-000611-ME NO. 2019-CA-000612-ME
04-17-2020
D. M. L. M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K. M., A MINOR CHILD APPELLEES AND D. M. L. M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND B. I. O., A MINOR CHILD APPELLEES AND D. M. L. M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E. E. D. O., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT Adam S. O'Bryan Paintsville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON FAMILY COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 18-AD-00022 APPEAL FROM JOHNSON FAMILY COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 18-AD-00023 APPEAL FROM JOHNSON FAMILY COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 18-AD-00024 OPINION AND ORDER
AFFIRMING
Parties should take note that this decision is designated an "opinion and order" and, therefore, falls under Kentucky Rules of Civil Procedure (CR) 76.38. Petitions for rehearing are thus not authorized under CR 76.32(1)(a).
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. DIXON, JUDGE: D. M. L. M. ("Mother") appeals from three separate judgments of the Johnson Family Court terminating her parental rights to K. M., B. I. O., and E. E. D. O. (collectively, "the Children"). Finding no error, we AFFIRM the family court's judgments and GRANT Mother's counsel's motion to withdraw.
The current actions are the last in a series of interventions by the Cabinet for Health and Family Services on behalf of the Children. Mother has a history of drug abuse and involvement in domestic violence incidents. K. M. was adjudicated as dependent on October 28, 2014, and again on January 17, 2017. He was committed to the Cabinet's care on January 17, 2017, in case number 14-J-00152. Similarly, the family court adjudicated B. I. O. and E. E. D. O. as dependent on October 28, 2014, and found the two were neglected on March 24, 2017. These two siblings were committed to the care of the Cabinet on October 28, 2014, and April 10, 2017, in case numbers 14-J-00156 and 14-J-00157.
The Cabinet's initial goal for the family was reunification, and to that end, Mother had unsupervised visitation with the Children while working her plan. However, on December 28, 2016, when the Children were supposed to be under Mother's supervision, the Cabinet received a referral alleging sexual contact between two of the Children. The referral indicated that K. M., the oldest of the siblings in this action, attempted to have sexual intercourse with B. I. O. The report also alleged Mother had pulled B. I. O.'s hair to the point a knot formed on his head. In the Cabinet's view, Mother had allowed injury to the Children by other than accidental means. B. I. O. and E. E. D. O. were subsequently determined to be neglected, and K. M. received another finding of dependency. K. M. was remanded to a residential facility in Louisville based on his inability to control his inappropriate sexual behaviors. B. I. O. and E. E. D. O. were sent to their long-term foster parents. The Cabinet filed a petition to terminate Mother's parental rights in November 2018.
B. I. O. and E. E. D. O. have the same father, who voluntarily terminated his parental rights before the family court in this case. K. M.'s father is deceased.
At the termination hearing, the Cabinet presented evidence of its investigation, showing that Mother had completed services with the Cabinet's case plans, but she was unable to apply what she had learned. Mother had also shown she was unable to properly supervise the Children. After removal, Mother did not visit K. M. frequently in Louisville, and she often failed to appear for her scheduled, supervised visits with B. I. O. and E. E. D. O. According to the Cabinet, Mother had a habit of making promises to the Children, whether of gifts or a visit, and then failing to deliver on her promises.
The family court heard telephonic testimony from clinician Megan Kohler, who had previously performed an assessment of the family. Ms. Kohler testified the family had been the subject of twenty-four referrals involving child maltreatment, including instances of substance abuse, lack of supervision, neglect, environmental neglect, domestic violence, sexual abuse of the Children, sexual acting out by the Children, and physical abuse. Ms. Kohler also testified Mother had been arrested for criminal assault of one of her older daughters. Ms. Kohler stated Mother did not accept responsibility for any of these incidents. Instead, Mother chose to blame the Children, or to believe the physical abuse was necessary discipline, or to allege the incidents were exaggerated, or to allege the child had injured himself or herself. In Ms. Kohler's opinion, Mother was not a safe parent, had acted dangerously and abusively toward the Children, and should not be reunified with them.
Mother testified on her own behalf. She asserted she had completed all services the Cabinet required of her. She maintains regular employment at a restaurant and is currently taking classes at a community college. Mother admitted she missed a scheduled visit with B. I. O. and E. E. D. O. but contended it was because her vehicle had a flat tire. She also admitted she could not visit K. M. in Louisville very frequently due to the residential facility's distance from her home. Mother claimed K. M. "was a lot of the problem," but did not believe he perpetrated a sexual offense against B. I. O. Mother felt her rights should not be terminated because she could take care of the Children.
The family court rendered detailed findings of fact, noting its findings of neglect with regard to the Children. The court found that the Cabinet had provided assistance to Mother in an effort to reunify the family; however, Mother failed to make sufficient efforts to determine it was in the best interest of the Children to be returned to her care within a reasonably foreseeable time. Further, the court found the condition of the Children had improved in foster care. The court concluded that termination of parental rights was in the best interest of the Children.
The court recited several factors pursuant to Kentucky Revised Statute (KRS) 625.090 to support its decision: the Children were abused and neglected as defined by KRS 600.020; Mother continuously failed to provide essential parental care for the Children; for reasons other than poverty alone, Mother continuously failed to provide essential food, clothing, shelter, medical care, or education; the Children had been in foster care for fifteen months preceding the filing of the petition; and Mother failed to make reasonable efforts to change her conduct so the Children could return home.
Mother was represented by counsel during the termination proceedings. On appeal, counsel filed an Anders brief on behalf of Mother, asserting there were no non-frivolous issues to appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel also filed a motion to withdraw as Mother's attorney, and the motion was passed to this panel for consideration.
In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012), this Court concluded that appointed counsel may file an Anders brief in a termination of parental rights case after "counsel has conducted a thorough, good-faith review of the record and can ascertain absolutely no meritorious issue to raise on appeal." We must conduct our own review of the record to determine whether the appeal is, in fact, without merit. Id.
Pursuant to the procedures set forth in A.C., this Court granted Mother thirty days to file a pro se brief; however, she did not do so.
Parental rights "can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so." Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006) (citations omitted). The trial court's findings of fact are entitled to great deference; accordingly, this Court applies the clearly erroneous standard of review. CR 52.01; M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). When the record contains substantial evidence to support the trial court's findings, we will not disturb them on appeal. Id.
We have carefully reviewed the record and conclude the court's determination was supported by substantial evidence. The court rendered specific findings that the statutory requirements for termination were satisfied and that it was in the best interest of the Children to terminate Mother's parental rights. We agree with counsel's assertion that there were no meritorious grounds for appeal.
For the reasons stated herein, we AFFIRM the judgments of the Johnson Family Court in each of these appeals. Furthermore, we ORDER counsel's motion to withdraw be, and it is hereby, GRANTED.
ALL CONCUR. ENTERED: __________
/s/_________
JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANT Adam S. O'Bryan
Paintsville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky