Opinion
NO. 2020-CA-0572-ME NO. 2020-CA-0573-ME
01-08-2021
J.C.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.L.M.; AND T.W. APPELLEES AND J.C.M. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.L.T.; AND N.T. APPELLEES
BRIEF FOR APPELLANT: Vincent J. Eiden Crestwood, Kentucky BRIEF FOR APPELLEE: Kate R. Morgan Shelbyville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 19-AD-00016 APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 19-AD-00017 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES. DIXON, JUDGE: J.C.M. (Mother) appeals from the Oldham Circuit Court orders terminating her parental rights to her sons, A.L.M. and A.L.T., entered on March 25, 2020. After careful review of the record, briefs, and law, we affirm.
PROCEDURAL BACKGROUND
In May 2019, the Cabinet for Health and Family Services (CHFS) petitioned the trial court to terminate Mother's parental rights to her two children. The final hearing was held in September 2019. Despite knowledge of the hearing, Mother was not present, and the ongoing social worker (Social Worker) was the sole witness. After the hearing, Mother moved the trial court to reopen proof. Her motion was granted, and a second hearing was held in December 2019. The following evidence was introduced at the hearings.
In 2016, CHFS filed its first dependency, neglect, and abuse (DNA) petitions for the children when Mother's youngest child, A.L.T., was born testing positive for opiates. Mother stipulated to neglect and successfully worked a case plan. In December 2017, CHFS filed its second DNA petitions for the children after Mother was observed under the influence with A.L.M. in her care. Mother was arrested for possession of an illegal substance, as well as on an outstanding warrant. The children were placed in the temporary custody of relatives/fictive kin. In August 2018, the children were committed to the custody of CHFS and placed with S.T., an approved foster parent. Mother was found to have neglected the children.
S.T. is A.L.T.'s paternal aunt and fictive kin to A.L.M.
Over the course of the DNA proceedings, CHFS provided Mother with four case plans, three of which she signed, to work toward reunification. Under the plans, Mother was required to: attend consistent and appropriate supervised visitations; complete assessments for protective parenting, mental health, and substance abuse, and to follow any recommendations therefrom; complete random drug screens; demonstrate sobriety for at least six months; and demonstrate stable housing and employment.
Prior to October 2019, Mother's only progress on her case plans was participation in some visits and drug screens, as well as completion of two mental health assessments. Mother conceded that she: had not visited with the children since March 2019, did not follow through with the recommendations of the mental health assessments, was not compliant with random drug screens, and had used an illegal substance as recently as October 2019.
Social Worker addressed CHFS's concerns with Mother's visitation. Originally, Mother had supervised visitation every other week for two hours per visit. However, this was reduced to once a month after Mother was routinely late, failed to engage the children for 25 minutes while on her cellphone, allowed the children to play in an unsafe manner, and slept during two visits. Mother denied sleeping. Beyond Mother's conduct, Social Worker testified the children demonstrated negative behaviors after visitations, such as being extremely emotional and having tantrums.
After March 2019, Mother failed to attend scheduled visitations and failed to contact CHFS. In June 2019, when Mother remained absent from the children's lives for 90 days, visitation was stopped until Mother became compliant with her case plans. Mother stated the missed visits were a result of difficulties in her life, such as becoming homeless in May 2019 and not having a cell phone.
CHFS presented evidence that Mother had failed to provide adequate support for the children. In January 2019, Mother was ordered to pay $298.50 per month in child support; she was in arrears $1,463.75 as of September 2019. Mother conceded she had not paid the full amount but asserted she paid what she could. Mother brought Christmas and birthday presents to the final hearing and had previously provided a pack of diapers and some snacks during visits. Mother admitted she has been unemployed since May 2019 but indicated she was seeking a new job.
CHFS identified Mother's lack of stable housing as a concern. Mother previously lived with the children's maternal grandfather, whose history of domestic violence precludes CHFS from approving the home. Mother testified she was presently residing at a sober living facility after completing a 30-day substance abuse program through Stepworks. Mother asserted she voluntarily entered the program after her health issues, resulting in open heart surgery, necessitated follow-up treatment at the facility. Mother acknowledged that the children would not be permitted to live at her current residence but indicated she had contacted other facilities which would allow her to have the children.
Social Worker was unaware of any additional services that would assist Mother in reunification and opined that Mother had not demonstrated any improvement in parental conduct that would support an expectation of change. The uncontroverted testimony was that the children are doing well in their placement and are strongly attached to S.T., whom they call "Mommy." The children have received services to correct speech delays and have shown improvement. S.T. has been approved for adoption, and Social Worker testified that termination would be in the children's best interest as they will benefit greatly from having a stable and safe home environment.
Involuntary termination of parental rights (TPR) actions are governed by KRS 625.090. TPR may be granted only if the trial court finds a three-pronged test has been met by clear and convincing evidence. Id. First, the child must be deemed abused or neglected as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, the trial court must find the existence of at least one statutory ground for termination listed in KRS 625.090(2). Third, termination must be found to be in the best interest of the child after consideration of the factors listed in KRS 625.090(3).
Kentucky Revised Statutes.
With regard to the first prong of the test, the trial court determined that the children had previously been adjudged to be neglected, and CHFS had established neglect independently during the TPR proceedings.
As to the second prong, the existence of a statutory factor, the trial court determined: (1) Mother abandoned the children for a period of at least 90 days; (2) Mother, for a period of not less than six months, continuously failed to provide essential parental care and protection for the children, and there is no reasonable expectation of improvement, considering the age of the children; and (3) Mother, for reasons other than poverty alone, continuously failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's wellbeing, and there is no reasonable expectation of improvement in her conduct in the immediately foreseeable future, considering the age of the children.
Finally, as to the third prong, the trial court determined termination to be in the children's best interest. In reaching this conclusion, the trial court found that Mother had made insufficient efforts for it to conclude it was in the children's best interest to reunify within a reasonable period of time; CHFS made reasonable efforts and rendered all reasonable services toward reunification; the children have improved while in foster care and will likely continue to improve if termination is granted; and Mother failed to provide financial support.
The trial court entered a judgment terminating Mother's parental rights in accordance with its findings and conclusions. This appeal timely followed.
STANDARD OF REVIEW
The trial court's findings of fact are subject to the clearly erroneous standard of review. CR 52.01. Accordingly, we give great deference to the trial court's findings of fact and will only set them aside if the record is devoid of substantial evidence to support them. D.G.R. v. Commonwealth, Cabinet for Health and Family Servs., 364 S.W.3d 106, 113 (Ky. 2012). Application of the law to the facts we review de novo. Id.
Kentucky Rules of Civil Procedure.
ANALYSIS
Our review of this matter is hindered by the fact Appellant's brief raises no claims of error, as well as counsel's express assertion that there are no meritorious issues. In lieu of raising claims, counsel requests that the Court independently review the matter.
In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), this Court held that Anders style no-merit briefs are permissible in certain TPR appeals and established a procedure for counsel to follow in such cases. Herein, Mother's counsel did not comply with the dictates of A.C. as he failed to file a motion to withdraw as counsel and, thereby, advise the Court of his conclusion the appeal was wholly frivolous. Id. at 371. As a result of this failure, Mother was not afforded the opportunity to file a supplemental brief.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 12 L.Ed.2d 493 (1967). --------
Based on counsel's failure to raise any claims or to adhere to the procedures to properly utilize an Anders brief, it would be within this Court's discretion to forego further analysis. However, given the significant rights at issue, we have opted to independently review the record for nonfrivolous grounds justifying reversal. Id. at 372.
Upon review, we conclude the trial court erred in respect to its findings that Mother had wholly failed to pay her ordered child support and that she was almost $2,000 in arrearage. Mother's uncontroverted testimony was that she paid a portion the child support payments, and CHFS's evidence supports this assertion. However, despite this error, the trial court's determinations that (1) the children have been adjudged neglected; (2) Mother has failed to provide parental care and protection for a period of at least six months with no reasonable expectation of change in the foreseeable future; and (3) termination is in the children's best interest, are amply supported by the record. Accordingly, the requirements of KRS 620.090 have been met, and there is no valid basis for relief from the termination judgments.
CONCLUSION
Therefore, and for the foregoing reasons, the orders of the Oldham Circuit Court terminating Mother's parental rights are AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Vincent J. Eiden
Crestwood, Kentucky BRIEF FOR APPELLEE: Kate R. Morgan
Shelbyville, Kentucky