Opinion
2023-CA-0692-ME
03-15-2024
J.E.R. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.A.D., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Charles Phillip West Mt. Sterling, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM POWELL FAMILY COURT HONORABLE MONICA LACY, JUDGE ACTION NO. 22-AD-00002
BRIEF FOR APPELLANT: Charles Phillip West Mt. Sterling, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
OPINION
MCNEILL, JUDGE:
J.E.R. ("MOTHER") APPEALS FROM THE POWELL FAMILY COURT'S JUDGMENT TERMINATING HER PARENTAL RIGHTS TO HER MINOR CHILD, A.A.D. ("CHILD"). IN ACCORDANCE WITH A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), Mother's counsel filed an Anders brief stating he could identify no non-frivolous grounds for appeal. After careful review, we affirm. We grant Mother's counsel's motion to withdraw by separate order.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
BACKGROUND
Child was born on May 5, 2021, and was removed from parental custody on May 27, 2021, due to Child's testing positive for non-prescription narcotics at birth, and substance abuse concerns and instability of Mother and Child's father. On May 28, 2021, the Cabinet filed a dependency, neglect, or abuse ("DNA") petition, and Child was placed in custody of the Cabinet. Mother received a case plan to work towards reunification; however, she never completed the plan as she was unreachable, incarcerated, or in rehabilitation. Mother is currently in a residential treatment facility in Somerset, Kentucky. Record ("R.") at 665.
Child's father is now deceased.
In re A.A.D., No. 21-J-00016-001.
The Cabinet filed a petition to terminate Mother's parental rights in the Powell Family Court on January 4, 2022. At the April 24, 2023 termination hearing, testimony was heard from the two case workers on Mother's case who detailed their attempts to contact Mother through letters, phone calls, home visits, and absent parent searches through LexisNexis. Video Record ("V.R.") at 10:44:28 AM-10:46:39 AM. The Cabinet's only contact with either of the parents occurred in 2021, when one of the case workers made a home visit to Mother's house prior to an upcoming court date. V.R. at 10:44:29 AM. The case worker was able to speak to the Child's father; however, neither he nor Mother appeared for the scheduled October 4, 2021 hearing. V.R. at 10:46:31 AM. During the hearing, Mother testified that she never attempted to engage with Child after Child's birth. V.R. 11:01:40 AM. The family court subsequently entered an order terminating Mother's parental rights, and this appeal followed.
STANDARD OF REVIEW
A "trial court has wide discretion in terminating parental rights." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014). Thus, "our review is limited to a clearly erroneous standard which focuses on whether the family court's order of termination was based on clear and convincing evidence." Id. (citing CR 52.01). "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." M.S.S. v. J.E.B., 638 S.W.3d 354, 360 (Ky. 2022) (citation omitted). As such, an appellate court will give deference to the trial court's findings and should not interfere with those findings unless there is no substantial evidence to support them. Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Kentucky Rules of Civil Procedure.
ANALYSIS
Mother's attorney filed an Anders brief and a motion to withdraw, stating there were no meritorious grounds for appeal. See Anders, 386 U.S. 738, 87 S.Ct. 1396; A.C., 362 S.W.3d 361. When an Anders brief is filed, this Court must "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. Under KRS625.090, parental rights may be terminated when a court finds by clear and convincing evidence the following: (1) the child is or has been adjudged abused or neglected as defined in KRS 600.020; (2) termination is in the best interest of the child; and (3) at least one of the conditions in KRS 625.090(2)(a)-(k) exists. The family court found Child had been adjudged abused or neglected by Mother as defined in KRS 600.020(1). Review of the record further shows that Mother was absent, unreachable, or incarcerated throughout the entirety of the current case. R. at 651.
Kentucky Revised Statutes.
As to the second prong, the family court found that termination of parental rights was in Child's best interest. The court made findings illustrating that it considered all relevant factors in KRS 625.090(3). Specifically, the court found the Cabinet has offered all reasonable services to Mother in an effort to keep the family together (KRS 625.090(3)(c)); Mother's efforts were insufficient to make it in Child's best interest to return home within a reasonable time, considering Child's age (KRS 625.090(3)(d)); and Child has improved physically, mentally, and emotionally since placement in her foster home (KRS 625.090(3)(e)). R. at 652.
The last statutory prong requires the family court to find that at least one of the eleven grounds in KRS 625.090(2) exists. Here, the trial court found that Mother has abandoned Child for a period of not less than ninety (90) days. KRS 625.090(2)(a). The family court also found justification for terminating parental rights under KRS 625.090(2)(e) and (g). The record makes clear that Mother never attempted to contact or inquire about Child once Child was placed in the Cabinet's care. Only one ground for termination needs to be proven by clear and convincing evidence under this section. Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Therefore, we need not examine the family court's findings as to the remaining grounds. We find no error in its termination of Mother's parental rights. Mother did not file a supplemental brief, and having independently reviewed the record, we agree with Mother's counsel that no meritorious grounds for appeal exist.
CONCLUSION
Based on the foregoing, the Powell Circuit Court's judgment terminating Mother's parental rights is affirmed.
ALL CONCUR.