Opinion
NO. 2016-CA-000728-ME NO. 2016-CA-000729-ME NO. 2016-CA-000730-ME
05-19-2017
F.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.R. (FATHER); AND B.R. (A CHILD) APPELLEES AND F.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.R. (FATHER); AND J.R. (A CHILD) APPELLEES AND F.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.R. (FATHER); AND T.R. (A CHILD) APPELLEES
BRIEF FOR APPELLANT: A. Jason Baute Carrollton, Kentucky Lisa F. Osborne Carrollton, Kentucky BRIEF FOR APPELLEE: Trisha Zeller Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00006 APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00007 APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00008 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES. COMBS, JUDGE: Appellant, F.R. (Mother), appeals from Orders of the Carroll Circuit Court terminating her parental rights to her three minor children. After our review, we affirm.
Mother and J.H.R. (Father) were married in 2000. Three minor children were born during the marriage. On August 28, 2015, Appellee, Cabinet for Health and Family Services (the Cabinet), filed Petitions for Involuntary Termination of Parental Rights in Carroll Circuit Court as to each of the children as follows: No. 15-AD-00006 in the interest of BRR, a male child born in 2009; No. 15-AD-00007 in the interest of JAR, a male child born in 2005; and 15-AD-00008 in the interest of THR, a male child born in 2003.
The circuit court appointed counsel for Mother, counsel for Father, and a Guardian Ad Litem to represent the infant children. It conducted a trial on April 18, 2016. Brandi McIntyre, the Cabinet's current caseworker, and Mother testified.
On April 20, 2016, the circuit court entered detailed Findings of Fact and Conclusions of Law, including a summary of the applicable law, as follows:
A court may involuntarily terminate parental rights where it finds by clear and convincing evidence that a child is abused or neglected within the meaning of KRS 600.020(1) and that termination would be in the child's best interest. KRS 625.090(1); M.E.C. v. Com., Cabinet for Health and Family Services, 254 S.W.3d 846, 851 (Ky. App. 2008). In addition to these two requirements, a court must also find the existence of one or more of the grounds set forth in KRS 625.090(2). Id. [sic].
Kentucky Revised Statutes. --------
The circuit court made the following findings:
As indicated by the testimony of the Cabinet's assigned caseworker, Brandi McIntyre, as of the date of the filing of the petition in this TPR action, the Respondent parents have not been compliant with the aforementioned remedial orders and the Cabinet's court-approved case treatment plan arising out of the Petitioner children's DNA actions. The Respondent parents have not availed themselves of the services provided by the Cabinet or have otherwise failed to make sufficient progress in the court-approved case treatment plan to allow for the safe return of the Petitioner children to parental custody and care, and the Cabinet subsequently has been unable to recommend reunification of the Petition children with the
Respondent parents. Due to the failure or inability of both Respondent parents to fully engage in treatment and reform the behaviors which led to the removal of the Petitioner children from parental custody, the Petitioner children could not be safely returned to parental custody for the past forty-two (42) months that the children have been in state care. As this Court's further findings and analysis of the facts will show, during all that time "for a period of not less than six (6) months" each of the Respondent parents have [sic] been continuously or repeatedly incapable of providing essential parental care and protection for the Petitioner children. KRS 625.090(2)(e).
Furthermore, by the testimony of the Cabinet's caseworker, Ms. Brandi McIntyre, it is clear that, at least as long as the Petitioner children have been in state care, each of the Respondent parents have [sic] continuously or repeatedly failed to provide or have [sic] been incapable of providing the Petitioner children "with essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well being." KRS 625.090(2)(g). ....
The circuit court recited that in determining whether termination of parental rights (TPR) is in the child's best interest, it must consider the six factors set forth in KRS 625.090(3). KRS 625.090(3) provides:
In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall 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 court considered each of those factors as set forth at pages 11- 14 of its Findings of Fact and Conclusions of Law. The court reiterated its previous findings that the children were abused or neglected due to the parents' stipulation in the underlying DNA actions. It also found that the Cabinet presented clear and convincing evidence through Ms. McIntyre's testimony that the children were abused or neglected within the meaning of KRS 600.020(1) by not having their material, emotional, and healthcare needs met by the Respondent parents for failure to keep a clean and safe environment for the children. It also noted the parents' failure or inability to comply with the court's remedial orders and with the Cabinet's court-approved case treatment plan so that the children could be returned to parental custody.
In addition, the court acknowledged that the Cabinet had made appropriate referrals to various types of counseling and services. Ms. McIntyre testified that she was unaware of any other services or referrals that the Cabinet could have provided. Ms. McIntyre also testified that the parents had not been compliant with the court's remedial orders in the DNA actions as of the filing date of the petitions in the TPR action, "particularly with respect to finding stable, clean and appropriate housing to meet the children's need[s] and securing stable employment."
The court found that the Respondent parents had not availed themselves of the services that the Cabinet provided and that they otherwise failed to make sufficient progress with the treatment plan to allow for safe return of the children, resulting in the subsequent inability of the Cabinet to recommend reunification. The trial court also found that Ms. McIntyre testified that she had visited the children in their placements and that they were doing much better since their removal from parental custody; and that since the children had been in state care, both parents were in arrears in their court-ordered support.
The trial court concluded that the Petitioner children, BRR, JAR, and THR, have been adjudged to be abused or neglected children as defined in KRS 600.020(1) by a court of competent jurisdiction. The court also found the Petitioner children to be abused or neglected as defined in the statute based upon the clear and convincing evidence presented in the TPR proceeding and that it is in the best interest of the children that the parental rights of Mother and Father be terminated.
The trial court concluded that Mother and Father each for a period of not less than six (6) months continuously or repeatedly failed or refused to provide -- or had been substantially incapable of providing -- essential parental care and protection for each of the children with there being no reasonable expectation of improvement in parental care and protection considering the age of the children. KRS 625.090(2)(e). The trial court also concluded that Mother and Father, each for reasons other than poverty alone, continuously or repeatedly failed to provide -- or had been incapable of providing -- essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well being with no reasonable expectation of improvement in parental conduct in the immediately foreseeable future considering the age of the children. KRS 600.090(2)(g). The trial court further concluded that the Petitioner children have been in foster care under the responsibility of the Cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights. KRS 625.090(2)(j).
On April 20, 2016, the circuit court entered Orders terminating parental rights and Orders of Judgment as to each of the children.
Mother appeals. Mother's counsel has filed a Motion seeking leave to withdraw as counsel and to file a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967). By Order of this Court entered November 21, 2016, the Motion was passed to this panel, and Appellant was permitted to proceed, pro se, and to file a supplemental brief, if desired, within 30 days of this Court's Order. No supplemental brief has been filed.
Anders explains that:
[Counsel's] role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his 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.Id. 386 U.S. at 744. On appeal, we must re-examine the grounds asserted in the Anders brief. "[W]e are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 372 (Ky. App. 2012).
In reviewing a decision to terminate parental rights, we apply a clearly erroneous standard. "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Com., Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citations omitted).
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)-(j) exists.Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
In the cases before us, the court found that each child was an abused or neglected child as defined in KRS 600.020(1). The court determined that termination of the parent's rights was in each child's best interest. In conducting the best-interest analysis, the trial court carefully considered the factors in KRS 625.090(3) as set forth above. As required by the statute, at least one of the enumerated grounds for termination in KRS 625.090(2)(a)-(j) exists -- i.e., that the children had been in foster care for fifteen of the most recent twenty-two months preceding the filing of the petitions to terminate parental rights. KRS 625.090(2)(j). Having independently examined the record, we hold that the three prongs of KRS 625.090 have been satisfied.
Accordingly, we affirm the Judgments of the Carroll Circuit Court Terminating Parental Rights. By separate order we grant Appellant's Counsel's Motion to Withdraw.
ALL CONCUR. BRIEF FOR APPELLANT: A. Jason Baute
Carrollton, Kentucky Lisa F. Osborne
Carrollton, Kentucky BRIEF FOR APPELLEE: Trisha Zeller
Louisville, Kentucky