Opinion
2022-CA-1454-ME 2022-CA-1456-ME 2022-CA-1457-ME
03-01-2024
D.L.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.D.G.; AND J.D.G., JR., A MINOR CHILD APPELLEES AND D.L.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.D.G.; AND L.L.G., A MINOR CHILD APPELLEES AND D.L.R. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.D.G.; AND K.D.G., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Justin D. Crocker Russellville, Kentucky BRIEFS FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LOGAN CIRCUIT COURT HONORABLE JOE W. HENDRICKS, JR., JUDGE ACTION NOS. 22-AD-00022, 22-AD-00023, 22-AD-00024
BRIEFS FOR APPELLANT:
Justin D. Crocker
Russellville, Kentucky
BRIEFS FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES:
Leslie M. Laupp
Covington, Kentucky
BEFORE: COMBS, McNEILL, AND TAYLOR, JUDGES.
OPINION
TAYLOR, JUDGE:
AFFIRMING
D.L.R. brings Appeal Nos. 2022-CA-1454-ME, 2022-CA-1456-ME, and 2022-CA-1457-ME from orders terminating her parental rights to L.L.G., J.D.G., Jr., and K.D.G. entered September 23, 2022, in the Logan Circuit Court. We affirm.
The relevant facts are undisputed. D.L.R. is the biological mother and J.D.G. is the legal father of L.L.G., J.D.G., Jr., and K.D.G. L.L.G. was born on May 31, 2019, J.D.G., Jr., was born on April 23, 2020, and K.D.G. was born on August 19, 2021.
J.D.G. is the legal father of L.L.G., J.D.G., Jr., and K.D.G. by virtue of causing his name to be placed on the children's birth certificates. J.D.G. has not pursued an appeal from the order terminating his parental rights.
The Cabinet became involved with D.L.R. and J.D.G. in July of 2020 when it received a report of a social media video showing D.L.R. throwing a cup of ice in the face of her one-year-old child, L.L.G. The report also included concerns that D.L.R. and J.D.G. were unable to meet the children's basic needs. Shortly thereafter, the Cabinet received additional reports that D.L.R. and J.D.G. were going into wealthier neighborhoods begging for money. An investigation ensued, but the Cabinet had difficulty establishing contact with both D.L.R. and J.D.G. A case worker for the Cabinet filed another report in August of 2020 after observing D.L.R. walking down a busy road in the heat of the day with L.L.G. and J.D.G., Jr. The case worker stopped and discovered both children were soiled and sweating profusely. The Cabinet immediately negotiated a safety plan with D.L.R. and J.D.G. that included D.L.R. staying off busy roads with her young children, J.D.G. finding employment, D.L.R. and J.D.G. having their water service turned back on, and D.L.R. applying for benefits under the Kentucky Transitional Assistance Program. The Cabinet subsequently negotiated a case plan for the family on October 21, 2020.
At this time, K.D.G. had not yet been born.
Then, on November 2, 2020, the Cabinet received another report regarding the children. This report alleged that the children were taken to a doctor's appointment covered in dirt and had broken skin folds on their necks from lack of bathing. There were also concerns that J.D.G., Jr., was developmentally delayed and not receiving appropriate developmental support. The report further stated that J.D.G., Jr., was observed being covered in bug bites and that roaches were seen crawling out of his baby stroller.
The Cabinet attempted a home visit on November 4, 2020, but D.L.R. and J.D.G. were not there. A maternal uncle answered the door and allowed the case worker inside. The case worker discovered the home was infested with roaches, had a strong odor of urine, and still no water service. When later questioned about substance misuse, J.D.G. responded that he had smoked marijuana the previous week. The Cabinet immediately filed a petition and obtained emergency custody of L.L.G. and J.D.G., Jr. The Cabinet also filed a dependency, neglect, and abuse petition alleging the children were abused and/or neglected pursuant to Kentucky Revised Statutes (KRS) 600.020.
A temporary removal hearing was conducted on November 6, 2020. L.L.G. and J.D.G., Jr., were placed in the temporary custody of the Cabinet. D.L.R. and J.D.G. were ordered to cooperate with the Cabinet and with all treatment providers. On January 21, 2021, an adjudication hearing was held in the Logan Circuit Court. At the hearing, D.L.R. and J.D.G. stipulated that L.L.G. and J.D.G., Jr., were neglected as a result of the deplorable conditions in the home. They further stipulated to the failure to meet the children's basic needs and admitted to the incident involving D.L.R. throwing a cup of ice into the face of L.L.G.
Logan County does not have a family court division or judge.
Following a disposition hearing, by order entered March 4, 2021, L.L.G. and J.D.G., Jr., were committed to the custody of the Cabinet. The order also adopted the Cabinet's case plan recommendations which included that D.L.R. cooperate with the Cabinet, complete a psychological assessment, complete a substance abuse evaluation, maintain stable employment, maintain appropriate housing, complete parenting classes, and demonstrate newly acquired parenting skills during visitation.
On August 19, 2021, a third child, K.D.G., was born to D.L.R. The Cabinet sought and obtained emergency custody of K.D.G. the day after his birth. The Cabinet also filed a dependency, neglect, and abuse petition wherein it was alleged that K.D.G. was neglected and/or abused due to D.L.R. testing positive for marijuana at the time of K.D.G.'s birth, the home remaining in a deplorable condition, the substance abuse problem of D.L.R., and the lack of progress by D.L.R. and J.D.G. on the case plan established regarding L.L.G. and J.D.G., Jr.
A temporary removal hearing was conducted on August 25, 2021. The Cabinet was granted custody of K.D.G., and he was placed in the same foster home as L.L.G. and J.D.G., Jr. At the adjudication hearing on November 4, 2021, D.L.R. and J.D.G. stipulated that K.D.G. was neglected due to D.L.R.'s marijuana use while pregnant and the deplorable condition of the home. A separate dispositional hearing was waived, and K.D.G. was committed to the custody of the Cabinet.
The Cabinet filed Petitions for Involuntary Termination of Parental Rights as to all three children on April 22, 2022. An evidentiary hearing was conducted on June 27, 2022. By orders and judgments entered September 23, 2022, D.L.R. and J.D.G.'s parental rights were terminated as to L.L.G., J.D.G., Jr., and K.D.G. These appeals follow.
Counsel for D.L.R. tendered to this Court an Anders brief and a motion to withdraw as counsel for D.L.R. In support of the motion, counsel directed our attention to Anders v. California, 386 U.S. 738 (1967) and AC. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012) for the proposition that withdrawal from representation is justified where the record demonstrates that the appeal is wholly frivolous. Anders, 386 U.S. 738, as adopted in this Commonwealth by AC, 362 S.W.3d 361, provides that when counsel determines an appeal to be without merit, he or she may withdraw from representation and appellant is then given notice and 30 days leave to file a pro se brief or other pleading. By order entered January 18, 2023, this Court granted D.L.R. 30 days leave to file a pro se brief; however, D.L.R. did not file a pro se brief. Our review proceeds accordingly.
When a party files an Anders brief in a termination of parental rights case, this Court is not required to address every conceivable argument that an appellant could have raised on appeal. AC, 362 S.W.3d at 370. This Court's review is analogous to a palpable error review requiring only that we "ascertain error which 'affects the substantial rights of a party.'" Id. (quoting Kentucky Rules of Civil Procedure (CR) 61.02)..
In Kentucky, termination of parental rights is granted upon satisfaction, by clear and convincing evidence, of a tripartite test. Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, KRS 625.090(1) requires that a child be adjudged neglected or abused as defined in KRS 600.020. Second, KRS 625.090(1)(c) requires that termination must be in the child's best interest. Third, at least one of the conditions set out in KRS 625.090(2) must be established. The circuit court's judgment terminating parental rights will be reversed only if clearly erroneous. CR 52.01; Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). The court's judgment is not clearly erroneous if supported by substantial evidence. Id.
Pursuant to KRS 600.020:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
. . . .
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
. . . .
7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being . . . .
Based on our review of the record before this Court on appeal, the Cabinet presented unrefuted evidence to the circuit court at the evidentiary hearing consistent with the statutory requirements. The court's findings were supported by clear and convincing evidence and thus are not clearly erroneous.
KRS 625.090 provides as follows:
(2) 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;
. . . .
(j) That 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[.]
As concerns L.L.G., J.D.G., Jr., the circuit court found that the above three provisions of KRS 625.090 had been satisfied by the Cabinet. As concerns K.D.G., the circuit court found the provisions of KRS 625.090(2)(e) and (g) had been satisfied by the evidence presented. The circuit court then found that termination of D.L.R.'s parental rights was in the best interest of L.L.G., J.D.G., Jr., and K.D.G. based upon a thorough analysis of the evidence as required by KRS 625.090(3). Again, based upon our review of the record, we cannot conclude that the circuit court's findings of fact were clearly erroneous and must agree that it was in the best interest of L.L.G., J.D.G., Jr., and K.D.G. to terminate D.L.R.'s parental rights.
For the reasons stated, we affirm the Logan Circuit Court's order entered November 23, 2022, terminating D.L.R. 's parental rights in Appeal Nos. 2022-CA-1454-ME, 2022-CA-1456-ME, and 2022-CA-1457-ME.
ALL CONCUR.