Opinion
NO. 2016-CA-000475-ME
05-19-2017
E.S. APPELLANT v. M.S.V, M.L.V. Jr., and Z.E.V. APPELLEE
BRIEF FOR APPELLANT: John H. Helmers, Jr. Corey Shiffman Callie E. Walton Louisville, Kentucky BRIEF FOR APPELLEES: Nicole Tyler Cook Brianna Abbott J. Gregory Troutman Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 14-AD-500133 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES. ACREE, JUDGE: This is an appeal from an order and judgment of the Jefferson Family Court granting the petition for adoption of Z.E.V. (Child) by her step-mother, M.S.V., and order of judgment terminating the parental rights of the minor child's biological mother, E.S. (Mother). Mother has not raised any argument justifying reversal of the family court's decision. Therefore, we affirm.
I. Factual and Procedural Background
Child's biological parents, M.L.V., Jr. (Father) and E.S. (Mother), were married in June 2002. Child was born in January 2006. Father and Mother separated, and Father filed a divorce petition when Child was three years old. A divorce decree was entered in June 2010, and the parties shared joint custody of Child. Post-decree, the parties continued to find themselves, periodically, in family court dealing with issues of custody and visitation. Father was concerned with Mother's erratic behavior and possible impairment due to substance abuse issues. Mother persisted in reporting to Child Protective Services (CPS) her allegations that Father was physically or sexually abusing Child. In total, Mother made eight separate referrals to CPS against Father from about 2010 through 2013. Even though none of Mother's allegations could be substantiated, Father and Child did not have contact from December 2012 through April 2013 because of Mother's allegations.
Father met M.S.V. (Step-Mother) in 2010, and they were married in October 2011.
Child has been in Father's and Step-Mother's exclusive care since August 2013 after Mother's arrest for solicitation to commit murder of Father and Step-Mother and for two counts of trafficking in a controlled substance. Mother pleaded guilty to the charges and was sentenced to fifteen-years' imprisonment.
Mother stipulated to her criminal convictions at the termination trial. The family court took judicial notice of: the guilty plea signed by Mother on March 25, 2014; the judgment on the guilty plea entered April 9, 2014; and the judgment and conviction of sentence entered on June 6, 2014.
Step-Mother filed a petition to adopt Child in April 2014. Father filed his formal consent to Step-Mother's adoption of Child; however, Mother did not consent. Step-Mother filed an Amended Adoption Petition at the court's request in July 2014. Step-Mother testified that she loves Child as her own and wants to provide a loving, stable home environment to Child. Step-Mother is involved at Child's school and has been active along with Father in providing care for Child in her daily activities. A hearing was conducted on the matter on March 13, July 6, October 19, and October 23, 2015. The family court heard extensive testimony concerning the events leading up to Mother's arrest and those occurring thereafter that were relevant to the Child's best interests.
Ultimately, the Jefferson Family Court found that all legal requirements for the involuntary termination and adoption had been met pursuant to KRS 199.500 and KRS 625.090. Accordingly, the court entered an order granting the petition for adoption, making comprehensive findings of fact and conclusions of law supporting the termination of Mother's parental rights, and terminating Mother's parental rights. This appeal followed.
Additional facts will be discussed as they become relevant.
II. Standard of Review
This Court's review in a termination of parental rights matter addresses whether the family court's decision was clearly erroneous. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998); Kentucky Rule of Civil Procedure (CR) 52.01. The findings of the family court will not be disturbed unless there exists no substantial evidence in the record to support them. Id. Substantial evidence has been defined as "[e]vidence that a reasonable mind would accept as adequate to support a conclusion[.]" Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations omitted).
III. Analysis
Mother presents this Court with several arguments, including: (1) the termination order is not supported by substantial evidence; (2) the family court committed reversible error by not allowing Mother to call Child as a witness; (3) the family court erred when it failed to appoint a guardian-ad-litem (GAL) for Mother because she was incarcerated at the time of the termination hearings; and (4) the family court erred when it ordered Mother's private counsel to represent her through the appeal, despite counsel's objection, and when the court capped counsel's fee at $500.00. We address each of these arguments in turn.
Substantial evidence
KRS 199.500(4) allows an adoption without the consent of the biological living parents of a child if "it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child." KRS 199.500(4). Accordingly, such a proceeding operates to terminate the non-consenting parent's parental rights.
KRS 625.090 requires satisfaction by clear and convincing evidence of a three-part test before parental rights may be terminated. First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). Consideration of the second and third parts requires the family court to analyze several enumerated factors. Even upon satisfaction of all three prongs, the family court may exercise its discretion not to terminate if the parents prove by a preponderance of the evidence that the children will not be abused or neglected in the future. KRS 625.090(5); D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 111 (Ky. 2012).
Mother first argues there is not substantial evidence supporting the family court's conclusion that Child is an "abused and neglected child" because there is no evidence of record of physical abuse or emotional harm perpetrated by Mother against Child.
The family court found, by clear and convincing evidence, that Child was abused and neglected by Mother when measured by the standard set out in KRS 600.020(1)(a)(1), (2), (3), and (4). Specifically relevant here, an "abused and neglected child" is one whose health or welfare is harmed or threatened with harm when his or her parent:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;Id.
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child[.]
Mother contends Father and Step-Mother failed to prove, and the family court failed to make any findings, that she physically abused Child. We agree, nevertheless, emotional harm or injury is unquestionably sufficient for a child to be considered abused and neglected under the statute. And the family court's finding that Child was emotionally harmed by the actions of Mother is supported by substantial evidence.
KRS 600.020(26) defines "emotional injury" as "an injury to the mental or psychological capacity or emotional stability of a child as evidenced by a substantial and observable impairment in the child's ability to function within a normal range of performance and behavior with due regard to his or her age, development, culture, and environment as testified to by a qualified mental health professional[.]" KRS 600.020(26).
There was significant testimony provided by Tammy Beam, licensed psychological associate, and Dr. Sally Brenzel, licensed clinical psychologist, to support the family court's findings that Child had been emotionally harmed by Mother.
Ms. Beam provided services to Child's family as their reunification therapist. Their interaction began in April 2013 after a lengthy period of time during which Father had no contact with Child because of unsubstantiated allegations made to CPS regarding abuse. Ms. Beam had regular sessions with Child, and sessions with Child's Father, Step-Mother, and sibling. There were also a couple of sessions in which Child and Mother participated.
Ms. Beam's overall assessment disclosed that Child exhibited behaviors indicating emotional instability. Specifically, Ms. Beam regularly observed dramatic shifts in Child's affect during transitions during the sessions. For example, Child would be very happy, eager, and talkative in the sessions with her paternal family, but when told the session was ending, Child would become robotic, monotonic, and sullen. Child would then make disclosures to Ms. Beam in her mechanical and distant state such as: that she did not enjoy the session; memories of an alleged violent encounter between Father and Mother when she was just three years old; Child asked Ms. Beam if she saw Father kick Child under the table during a session; another time, Child provided a negative account of her feelings toward Father.
The quick transitions between expressions continued throughout Child's reunification therapy with Ms. Beam. Ms. Beam thought the behavior was unusual and was concerned that Child was experiencing a significant loyalty bind between her Father and Step-Mother and Mother. Ms. Beam was further concerned that this conflict within Child was the result of internal or external pressures or both. Ms. Beam's observations in the sessions did not match the accounts provided by Child. Child would behave as if she did not want the sessions to end and would make plans and talk about the future with her paternal family, but then would state that she did not want to come back to the sessions.
Ms. Beam had limited interaction with Mother, but did not find Mother to be particularly supportive or cooperative with the reunification therapy. Mother would report that Child had gastric issues, but the Child never reported anything similar. Ms. Beam stated she had punctuality and communication issues with Mother. At a status meeting between Ms. Beam and Mother, Ms. Beam testified that Mother was focused on what Mother thought should happen, and Ms. Beam believed Mother had a very limited insight about the message Ms. Beam was trying to relate to her about Child.
Mother was aware that Ms. Beam was going to be recommending unsupervised time between Father and Child. Ms. Beam stated that Mother provided a dramatic account of extreme behaviors (outbursts, nightmares, bedwetting, and gastric issues) that Child had been exhibiting at home over the past several weeks, but Mother could not explain why she had not brought this up to any therapist before this time. Ms. Beam stated that Mother seemed concerned about the relaxed contact between Child and Father, and that she seemed more concerned about Ms. Beam's recommendations than she was concerned about Child's issues.
Ms. Beam also observed Mother and Child together in a session. She had them engage in an expressive activity, which Child had previously routinely enjoyed. Despite Mother's attempts to engage Child in the activity, Child initially refused to participate and only mildly did so near the end of the session. Child was withdrawn and quiet.
At the meeting just prior to Mother's arrest, Ms. Beam testified that Mother's demeanor had changed. She appeared very calm and focused. Ms. Beam stated that Mother had essentially had a complete turn-around about the reunification process and even stated to Ms. Beam that maybe the abuse allegations by Child were fabricated. Ms. Beam stated that Mother attempted to prompt Child as to why Child had not addressed her negative feelings about the reunification process. When Child became distant and uncooperative with Mother's prompting, Mother appeared to become frustrated with Child.
Shortly thereafter, Mother was arrested for solicitation to commit the murder of Father and Step-Mother. Father consulted with Ms. Beam as to how to explain the situation to Child in developmentally appropriate terms. When Child was informed, Child was simply quiet and still. Ms. Beam consulted with other doctors and decided that it would be best for Child to take a break from therapy with professionals. Because Child had been questioned forensically and therapeutically about so many events over the previous years a break in therapy seemed appropriate under the circumstances unless Child began exhibiting alarming behaviors.
It appears from the record that Child did not have any sessions with Ms. Beam again until August 2014. When the sessions resumed, the purpose was to have Child speak about whatever she felt she wanted to discuss. Ms. Beam stated that Child disclosed what life with Mother was like during the reunification process. Child stated she did not like it that everyone was mad at one another. She said she obeyed Mother because Mother told her that failure to obey would mean they would never see each other again. Child stated that Mother directed her to say that Father had hurt her even though he never did. Child stated that if Child did not perform, Mother would punish her by ignoring her or taking her dog away. Child also disclosed a secret language between herself and Mother that they would rehearse and use while they were engaged with professionals. The language was symbolic, similar to sign language. Child disclosed that Mother would heat a thermometer under a desk lamp and hold Child's face under the lamp as well to say that Child was sick when really she was not sick. Child stated that she and Mother would rehearse their secret language and would practice drawing pictures, depicting Mother's home as nice with hearts and Father's house as dark and scary with a gun. Child stated she cooperated with Mother so that Mother would not become upset with her.
Child disclosed that she was happy she did not have to live that way anymore and that it felt good to talk about everything that was going on during that time.
When the step-parent adoption was being considered, Ms. Beam and Child's GAL discussed it with Child. Child was very positive and endorsed it. Child stated she wanted the chance to have a normal family. Ms. Beam testified that Child viewed the adoption as receiving an extra mother, not as a replacement for Mother.
Ms. Beam testified that Child was clearly attached to both parents. However, she said the unhealthy characteristics of the Child's attachment to Mother outnumbered the healthy ones. Ms. Beam testified that it was an unstable and inconsistent attachment, and Mother used withdrawal of the attachment as punishment, which was emotionally devastating for Child. Ms. Beam believed that the dramatic emotional shifts she observed in Child were coping mechanisms responsive to extreme emotional stress or trauma felt by Child who was trying to please Mother by pretending not to like Father and lying to professionals about it all.
Dr. Sally Brenzel also testified. Dr. Brenzel first became involved with the family in 2012. She conducted an issue-focused assessment to help address what was in Child's best interests for the parenting schedule.
During the assessment, Father had expressed concern about Mother's mental state and impaired functioning. Mother disclosed to Dr. Brenzel the several prescription medications she was taking, which were all confirmed by the prescribing parties, and addressed allegations of a previous drug abuse history. Mother did not believe she was addicted to prescription drugs or that she was abusing any medications. Mother asserted Father had been physically and sexually aggressive during the marriage.
Dr. Brenzel's conclusions and recommendations of the assessment were that there was insufficient information regarding Father and the abuse allegations. However, there was sufficient information to suggest that Mother had chronic physical and mental health issues which impaired her functioning and impacted her behavior and may explain the repeated allegations of abuse against Father. In Dr. Brenzel's opinion, Mother's actions were harmful to Child and put Child's relationship with all three parents at risk.
Dr. Brenzel testified that she believed Mother had shared inappropriate information with Child. She sensed that Child felt responsible for Mother's feelings and was to reject Father to please Mother. Dr. Brenzel believed that Mother was giving messages to Child that they were not safe in Father's presence. Dr. Brenzel stated that Child had to go through multiple interviews with CPS, forensic interviews, had been involved in a 911 call and with police initiated by Mother, had a psychological assessment, and had been coached to lie to professionals who could have helped Child. She testified that all of this was damaging to Child.
Dr. Brenzel had served as a consultant for Ms. Beam during the reunification process between Child and Father. She explained the changes in Child's affect at the transition of the sessions as Child holding two very disparate realities regarding her relationships with her parents, and that a child at such a tender age cannot reconcile them. This had impaired Child's psychological and emotional state, confused Child about right and wrong, and confused her about what had or had not actually happened to her.
After Mother's arrest in August 2013, Dr. Brenzel filed an affidavit with the family court as a Qualified Mental Health Professional concerning emotional injury to Child. She also testified to the many ways in which Mother inflicted emotional harm on Child and placed Child at risk of emotional harm. The family court noted the following emotional harm to Child caused by Mother in its findings of facts based upon Dr. Brenzel's testimony:
-The harm caused by the excessive absences and tardies in Kindergarten and First Grade;
-The difficulty focusing and maturing in school observed by the teachers;
-The reasons for her absences - gastric and stomach problems - had no medical etiology and may have been made up by the mother;
-The attachment to both parents had been disrupted for significant periods of time;
-[Child's] psychological growth was inhibited because her ability to love and be loved by her father resulted from some rejection by her mother and the child was torn between them;
-She had been pressured and had become facile in lying to multiple adults about what was happening to her and in her home;
-She was placed in a position of being alone with and caring for a mentally ill parent without any assistant or support;(R. 408). Dr. Brenzel further testified that Child will need continued therapy as she works through these emotional injuries as well as other issues that may surface due to Mother's actions.
-Getting the needed help to [Child] was delayed for years;
-Child[ren] are not capable of protecting themselves, especially if that would contradict what they're being told by a primary care-giving parent;
-She was on her own in trying to reason through the complex dynamics going on in this case, and was unable to do so;
-Each interview required [Child] to lie to adults or accept the consequences imposed by [Mother];
-Children 3-4 years old don't have the ability to create memory symptoms and must rely upon adults to lay those down, and these false memories were given to her beginning when she was three (3) years old;
-She suffered anxiety at each shift between parents, each therapeutic appointment, each forensic interview because it was on her shoulders;
-If [Mother] had been successful in her criminal plot, she would have made [Child] an orphan.
Based upon the foregoing, there is nothing supportive of Mother's argument that the family court erred in its conclusion that Child was emotionally injured by Mother, and was therefore, an abused and neglected Child pursuant KRS 625.090(1). No competent proof supports the argument.
The family court serves as the finder of fact and determines the weight of the evidence, including the credibility of witnesses. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The family court found the considerable and detailed testimony of Ms. Beam and Dr. Brenzel to be credible and persuasive. The finding that Child is an abused and neglected child pursuant to KRS 625.090(1) is plainly supported by substantial evidence, and therefore, is not clearly erroneous.
Next, Mother argues that there was no evidence supporting the family court's findings under KRS 625.090(2). The court need only find one ground of parental unfitness under this section of the termination statute. In this case, the family court found two grounds, KRS 625.090(2)(c), "the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;" and (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[.]" Id.
The family court made numerous factual findings supporting KRS 625.090(2)(c). Mother repeatedly inflicted emotional harm on Child. First, Mother's eight separate unsubstantiated reports to CPS beginning in 2009 that Father had physically or sexually abused Child required Child, when Child was just three years old, to go through several forensic interviews, CPS interviews, and psychological assessments. Mother further directed Child to behave in such a way or to lie to others, or both, so that it appeared Child was afraid of or did not like Father. We have already recounted how this manifested through Child's behavior at the therapy sessions with Ms. Beam.
The court also found that Mother had struggled with drug dependency issues since the early 2000s. Mother testified that, at various times, she had either been diagnosed or suffered from RSD, ADHD, PTSD, depression and anxiety, and as a result, at various times, was taking two or more forms of opioids, anti-depressants, anti-anxiety, and ADHD medications in combination. She has continued taking a variety of controlled substances since she sought substance abuse treatment and learned she was pregnant with Child in 2004.
Father testified that the main reason for his and Mother's separation and divorce was her erratic behavior and impaired functioning. There were at least two incidents in which Mother was driving recklessly and, due to Mother's impaired condition, Child had to be driven to her destination separately. After the incidents, Father found methadone, Ambien, Cymbalta, Lyrica, Imitrex, and Lexapro in Mother's purse. She claimed to have been taking all of her medications as prescribed.
The family court reviewed the parenting situation in 2011 as the parties were attempting to work on a parenting schedule. Mother was receiving pain medication from her psychiatrist who was treating her for PTSD with major depression, anxiety with panic attacks and ADHD, pain management, and medication for migraine headaches from her primary care physician. She was also prescribed a muscle relaxant, anti-depressants, and sleep medication. At this time, Mother was ordered only supervised visitation with Child and was required to submit to drug tests.
In Mother's testimony, she blamed her actions on the overuse of her prescribed medications. She further believed that it was neglect or mistake on the part of her physicians that ultimately caused her drug dependency. Mother continuously minimized the effect of her drug usage and its impact on her ability to care for Child.
Finally, Mother admitted that she did not consider how attempting to have Child's Father and Step-Mother murdered might harm Child. Mother further believed that she had not emotionally harmed Child. The family court did not find Mother's testimony to be sincere or credible. In view of Mother's intentional interference in Child's relationship with her paternal family, her substance abuse issues, and her plot to murder Father and Step-Mother, we agree with the family court that there is substantial evidence supporting its finding under KRS 625.090(2)(c).
Only one ground of parental unfitness is needed to satisfy KRS 625.090(2) (termination shall only be ordered if the family court finds the existence of at least one of the statutory grounds enumerated in KRS 625.090(2)). In this case, the family court found two grounds under this statutory parameter. Although unnecessary, we will briefly address the court's findings under KRS 625.090(2)(e) with which Mother also takes issue.
The court noted that due to her incarceration, Mother would be absent and incapable of providing essential parental care and protection to Child in the future. Mother's recent motion for shock probation was denied in January 2015. Due to the nature of her crime and under these circumstances, Mother is prohibited from any contact with Father and Step-Mother. And, if Mother serves the entirety of her sentence, Child will be the age of majority when Mother is released.
Additionally, the evidence concerning Mother's substance abuse issues and behavior exhibited in the past certainly demonstrates that she has been incapable of providing essential parental care and protection to Child. Provided the lack of credibility the family court placed upon Mother's testimony, it did not believe Mother had genuinely been working on her character and self-improvement while she had been incarcerated thus far. There was also testimony from Child's school about Child's excessive absences while in Mother's care and concerns over how the absences affected Child's performance in school. Accordingly, the court believed that if Mother were ever allowed to re-enter Child's life, abusive conduct would likely occur. The evidence of record in this case supports such a finding.
Calling Child as a Witness
Mother next asserts that the family court should have permitted her to call Child as a witness to testify in relation to the Child's wishes and as a fact witness.
Mother requested that the family court review the best interest factors listed in the custody statute, KRS 403.270. The court properly declined to do so because this is an adoption and termination of parental rights action, but acknowledged a recent Kentucky Supreme Court case, Addison v. Addison, which plainly provided that the decision to permit a child to testify in a custody or visitation matter is within the sound discretion of the trial court. 463 S.W.3d 755, 764 (Ky. 2015); KRS 403.290(1).
The protection afforded to children by the custody statute is paralleled in the termination statute. In an involuntary action for termination of parental rights, a "child may be permitted to be present during the proceedings and to testify if the court finds such to be in the best interests of the child." KRS 625.080(2). The statute further provides that such a decision is within the family court's discretion. Id. The same concern underlying the decision in Addison of potentially traumatizing a child if called as a witness to testify in a controversy between his or her parents, especially where the child is of tender years, is also present in a termination of parental rights action. Addison, 463 S.W.3d at 764 ("The elementary principles of humanitarianism are so strongly against the placing of a child between its parents that we feel a trial court should have a wide latitude in protecting the child." Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971)).
Here, the family court determined that calling Child as a witness would not be in Child's best interests:
The Court has heard observational and expert testimony from qualified mental health professionals regarding the "emotional split" that [Child] experienced for years due to her desire to please [Mother], which forced her to suppress and deny her true feelings about her father. The child has been subjected to numerous interviews and forensic interviews with social workers, therapists, etc. and has been in counseling on and off for years. When [Mother] was arrested, the child's therapist determined that the child had been so "saturated" with interviews and therapy that it would be in her best interests to allow the child to process what was happening at her own pace rather than again subject her to additional counseling. The child was, and is, in need of normalcy, and this Court determined, in agreement with the therapists, that calling [Child] as a witness would be very damaging to the child. The trial began in March 2015 and the child would have been asked to testify about things that occurred when she was as young as three years of age. The Court found that it was not in the child's best interests to again have to answer inquiries about her parents. The Court has heard sufficient factual and expert testimony from the witnesses presented to fully address the issues presented here.(R. 411-12). Based upon this sound reasoning, we cannot say the family court abused its discretion in declining Mother's request to call Child as a witness.
Mother additionally contends that Child should have been permitted to testify because the family court heard profuse amounts of hearsay testimony through Child's therapists. We disagree.
Mother's argument lacks specificity and citation to the record of such objections to certain testimony. As a result, we generally respond that our Supreme Court has held that statements made by an alleged victim during an assessment performed by a therapist are admissible under KRE 803(4). Commonwealth for Health & Family Services. v. A.G.G., 190 S.W.3d 338, 344 (Ky. 2006). Our review of the record indicates counsel for Mother did make some objections at trial relevant to this argument, specifically during Ms. Beam's testimony; however, the family court properly overruled the motion based upon exceptions to the hearsay rule. Accordingly, we find no error.
Kentucky Rules of Evidence.
Guardian-Ad-Litem appointment for Mother; Denial of Withdrawal of Counsel and Fee Capping
Mother's remaining arguments: (1) that the family court erred when it failed to appoint a guardian-ad-litem (GAL) for her because she was incarcerated at the time of the termination hearings; and (2) that the family court committed reversible error when it ordered private counsel to continue to represent Mother through her appeal over objection and capped the fee at $500.00, are not preserved for appellate review in accordance with CR 76.12(4)(c)(v).
"[A]n appellate court cannot consider items that were not first presented to the trial court." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. 2012). Our options are "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions . . . ; or (3) to review the issues raised in the brief for manifest justice only." K.M.J. v. Cabinet for Health and Family Services, 503 S.W.3d 193, 196 (Ky. App. 2016) (citation omitted).
However, our review of the record in this case suggests that Mother's omissions in her brief pertaining to these arguments are more than mere oversight or mistake by counsel. The record indicates that Mother failed to ever ask the family court to appoint a GAL for her and was at all times represented by privately-retained counsel. It further appears that the family court never ordered counsel to continue to represent Mother through her appeal for a fee of $500.00. The only action taken by the family court relevant to these arguments is an order entered on April 4, 2016, granting Mother's motion to proceed in forma pauperis. The order simply provides: "Motion having been made and the court being otherwise sufficiently advised, it is hereby ordered that the counsel for respondent, [Mother], may prosecute this action through its conclusion without payment of costs." (R. 424). On appeal, our review is confined to matters properly made a part of the record below. Fortney v. Elliott's Adm'r, 273 S.W.2d 51, 52 (Ky. 1954); Rohleder v. French, 675 S.W.2d 8, 10 (Ky. App. 1984). Because the record does not support Mother's allegations, there is no error for this Court to review.
Mother's actual motion does not appear in the court record. --------
IV. Conclusion
For these reasons, the Jefferson Family Court's findings of fact, conclusions of law, and order and judgment terminating Mother's parental rights to Child as well as the order and judgment of adoption of Child by Step-Mother are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John H. Helmers, Jr.
Corey Shiffman
Callie E. Walton
Louisville, Kentucky BRIEF FOR APPELLEES: Nicole Tyler Cook
Brianna Abbott
J. Gregory Troutman
Louisville, Kentucky