Opinion
2022-CA-0645-ME 2022-CA-0646-ME
01-27-2023
J.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.B., A MINOR CHILD; AND L.B. APPELLEES AND J.A. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; L.B.; AND L.B., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Stefanie L. Durstock Ft. Mitchell, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT HONORABLE CHRISTOPHER J. MEHLING, JUDGE ACTION NOS. 21-AD-00128, 21-AD-00129
BRIEFS FOR APPELLANT: Stefanie L. Durstock Ft. Mitchell, Kentucky
BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
OPINION
COMBS, JUDGE
J.A. (Mother) appeals from orders of the Kenton Circuit Court terminating her parental rights to her two children. After our review, we affirm.
Mother's counsel, Stefanie L. Durstock, has filed motions for leave to withdraw as counsel and to file briefs pursuant to A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). By order entered September 15, 2022, this Court passed the motions to withdraw to this merits panel, ordered that the tendered Anders briefs be filed, and permitted Mother to proceed pro se and to file supplemental briefs within 30 days thereof. No supplemental briefs have been filed. We now proceed with our review.
Mother is the natural mother of A.B., a female born in 2019, and L.B., Jr., a male born in 2014. The children's father is L.B. (Father). On October 26, 2021, the Cabinet filed petitions for the involuntary termination of parental rights in the interest of each child. On April 8, 2022, the cases were tried. On April 28, 2022, the trial court entered detailed findings of fact and conclusions of law (FFCL) and judgments terminating parental rights.
Mother has 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." A.C., 362 S.W.3d at 372; i.e., to determine if any meritorious grounds from appeal do indeed exist.
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)-(j) exists.
Kentucky Revised Statutes.
The standard governing our review is whether the trial court's findings are clearly erroneous. CR 52.01.
Kentucky Rules of Civil Procedure.
The trial court has a great deal of discretion in an involuntary termination of parental rights action.... [F]indings 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.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).
KRS 625.090(1) provides that the court may involuntarily terminate parental rights if it finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction; [or]
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding[]
In the cases before us, the trial court found -- and the record establishes -- that:
4. Court involvement began with this family on May 23, 2019, with a DNA petition regarding both children being filed by the Cabinet. Mother and newborn [A.B.] both tested positive for buprenorphine at [A.B.'s] birth despite mother not having a current prescription. Both mother and father admitted they were sharing the pills. Kenton County Cases 19-J-451-001 and 452-001.
5. There was a finding of neglect as to both parents by admission. The children were removed from the parents'
care on October 18, 2019, upon the filing of a second petition, 002 in each case.
6. In trailer 002 it was alleged that mother was suffering auditory hallucinations that there were cameras and listening devices in her home and one on her child; that she also thought persons were listening through her cellphone; and that she thought [Father] and the children were plotting against her. She testified positive for amphetamines, methamphetamines, and cocaine. She was hospitalized at SUN Behavioral Hospital. . . . There was a finding of neglect on November 14, 2019. Both parents were responsible.
Dependency, neglect, and abuse.
Subsequently, a third DNA petition was filed, and the children were again removed.
The first prong of the tri-partite test regarding neglect or abuse is satisfied as to each of the children.
Next, the court must determine if it is in the child's best interest that parental rights be terminated -- the second prong of the tri-partite test. In conducting a best-interest analysis, the trial court must consider the factors enumerated in KRS 625.090(3):
(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.
In its FFCL, the trial court considered Mother's mental health. The court explained that it had ordered the Cabinet to obtain a full psychological assessment, which was performed by Dr. Jean Deters. Dr. Deters testified at the trial by Zoom. Dr. Deters diagnosed Schizophrenia Spectrum Disorder, paranoid type. Mother suffers both delusions and hallucinations, and she believes that she has a speaker lodged in her throat that records voices and broadcasts negative messages. The trial court found as follows:
14. Mother's hallucinations consist of hearing voices. These voices urge her when bathing [L.B.], Jr. to touch his penis. The voices urge her to place her finger inside [A.B.] She denies ever acting on these voices. . . .
17. Dr. Deters opined that mother cannot distinguish reality from delusions. She opined that mother would always need the help of a third party because of this. She opined that father cannot do this as he does not understand or refuses to understand her needs.
18. Dr. Deters has recommended that mother receive partial hospitalization or an intensive outpatient program. She should have medication management by a physician. Her prognosis is poor and her condition is not curable. . . .
19. Dr. Deters opined that mother cannot care for herself, let alone her children, until she undergoes such treatment.
The best-interest analysis also requires the trial court to consider acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family. As noted above, the trial court considered the prior findings of neglect of the children. It also considered the Cabinet's reasonable reunification efforts, having found that:
36. Unlike most termination cases, this case had a reunification attempt in 2021 which failed and resulted in another removal.
37. This court does not believe there are any other services that could be provided to either parent to improve the situation as it existed as of the trial.
The trial court considered Mother's efforts and adjustments to make a return to home be in the children's best interest. The court did find that Mother was sober, bonded with the children, and visited them regularly; however it also found that:
32. The mother meanwhile has not undertaken any treatment as outlined by Dr. Deters. She continues to believe she has swallowed some type of speaker. She claims that she is no longer hearing voices, but now hears music. This court does not believe that assertion is credible as nothing has been done with her for over a year regarding her mental health. Mother admits that in the past she heard the voices, heard the speaker, believes many were plotting against her, and she continues to be a safety threat to her children. The Cabinet's plan for mother was to complete everything that Dr. Deters recommended.
The court did not believe that Mother would exhibit any further improvement in her situation, attitude, or conduct and that her "mental health situation also will not improve as she has had almost 10 months to take action per Dr. Deters's recommendations."
The trial court considered each child's physical, emotional, and mental health and prospects for the improvement of the child's welfare if termination were ordered:
34. The children have improved since being placed in foster care. [L.B.] Jr.'s speech has improved. Mother missed many of his speech therapy appointments. He has stopped acting out in school and at home. He is doing well in school and has an IEP [Individual Education Program]. [A.B.] had become non-verbal and was behind developmentally. This has improved; she is now verbal and is developmentally on target. The children are placed together. They are bonded to the foster parents.
The foster parents initially tried to have an open relationship with mother and father but that proved unworkable.
We are satisfied from our review that the trial court properly considered the applicable best-interest factors and that its findings have a substantial evidentiary foundation. Therefore, the second prong of the tri-partite test is satisfied as to each child.
Before it can terminate parental rights, the trial court must find by clear and convincing evidence the existence of one or more grounds as set forth in KRS 625.090(2). Only one ground is required. In each of the cases before us, the trial court found that the children have been in foster care in excess of 15 of the last 48 months prior to the filing of the petitions, a finding that satisfies KRS 625.090(2)(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[.]"). The third prong of the tripartite test has been met as to each child.
Accordingly, we affirm the judgments of the Kenton Circuit Court terminating Mother's parental rights to each of the children. By separate order we grant the motions to withdraw filed by Mother's counsel, Stefanie L. Durstock.
ALL CONCUR.