Opinion
2021-CA-0828-ME
01-28-2022
J.L. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND B.J.R.L., A MINOR CHILD APPELLEE
BRIEF FOR APPELLANT: Cobie D. Evans Smithland, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CRITTENDEN CIRCUIT COURT HONORABLE BRANDI H. ROGERS, JUDGE ACTION NO. 21-AD-00002
BRIEF FOR APPELLANT: Cobie D. Evans Smithland, KentuckyBRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
OPINION
MAZE, JUDGE
J.L. (Father), appeals from an order of the Crittenden Family Court terminating his parental rights to his son. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), Father's 1 counsel filed an Anders brief conceding that no meritorious error exists for an appeal to this Court. Counsel accompanied the brief with a motion to withdraw, which was passed to this merits panel. After careful consideration, we grant counsel's motion to withdraw by separate order and affirm the family court's order terminating Father's parental rights.
Anders v. State of Cal., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
B.J.R.L. (the Child) was born in October 2017. The Child's mother died in August 2018. While no father was listed on the Child's birth certificate, genetic testing in July 2019 confirmed Father as the biological father of the Child. On July 8, 2019, the Cabinet received a report of possible neglect of the Child. The Child, who was then twenty months old, was left unattended, dirty, without clothes or shoes, covered in bug bites and bruises, and with injuries to his lip. Father had left the Child in the care of his girlfriend, who could not locate Father initially. Later that day, Father was contacted, but would not disclose where he was, saying only that he was "working."
The Cabinet obtained an emergency custody order for the Child at that time. Thereafter, the Child was adjudicated a neglected/abused child and disposition was held on November 5, 2019. The Child was placed in the custody of the Cabinet. Father was given a case plan, with the goal being reunification with the Child. 2
On February 24, 2021, the Cabinet filed a petition to terminate Father's parental rights to the Child. The family court appointed counsel for Father and a guardian ad litem for the Child. The matter then proceeded to an evidentiary hearing held on May 5, 2021.
Cabinet Social Worker Lori Robertson testified about the circumstances surrounding the removal of the Child, as well as her subsequent interactions with Father on his case plan. Following the Child's removal, Father was living in Tennessee and advised Robertson that he intended to use service providers in that state to complete his case plan tasks. Robertson provided Father with a list of approved service providers in Tennessee, but Father engaged the services of other providers without input from the Cabinet.
Robertson further testified that Father was not current on his child support obligations. She also testified that Father became irate and argumentative during discussions about his case plan tasks. Father was not cooperative with the Cabinet in obtaining the needed releases from his Tennessee providers. He also maintained minimal contact with the Cabinet during the first year of his case plan.
While Father later completed mental health assessment and parental capacity assessment, neither provider was approved by the Cabinet and the Cabinet was unable to verify the information provided in the reports. Robertson added that the Cabinet had reason to question these because Father failed to provide accurate 3 information to the providers about his criminal and substance abuse histories. Similarly, the Cabinet also discounted Father's completion of a parenting program because it was not with an approved provider and lacked supporting documentation.
During this period, Father was living with his paternal grandmother in Tennessee. Robertson testified that the Cabinet requested Tennessee authorities to conduct an evaluation of the home under the Interstate Compact on the Placement of Children (ICPC). Three separate ICPC evaluations were denied due to unsuitable conditions in the home. In April 2021, Father advised the Cabinet that he had moved to Bell County, Kentucky, near his mother's home. The Cabinet was unable to perform an evaluation of the residence at the time of the hearing.
Robertson testified that Father had sporadic supervised visitation with the Child since mid-2020. She stated those visits did not go well, as Father spent his time making accusations against the Cabinet in the Child's presence. On several occasions, he became agitated and argumentative so that the police had to be called. Father also made statements that he would "take" the Child back to Tennessee "one way or another." Robertson testified that these visits had a detrimental impact on the Child.
Father testified about his efforts to work his case plan and seek reunification with the Child. In its findings, the family court found his testimony 4 "lacked veracity and trustworthiness in nearly all aspects. From little points to big ones, [Father's] explanations would change once challenged and the Court finds his efforts to side-step any direct answer astonishing." The family court noted that Father continued to deny any substance abuse disorder despite positive drug screens for methamphetamine when the Child was removed. Father also admitted to using pain pills and Suboxone for back pain but could not name any specific diagnosis supporting the need for such treatment. Father's testimony about his drug use was also contradicted by the statements he made to his medical providers.
The family court also noted that Father provided evasive and inconsistent information about his employment and his criminal history. He had pending non-support charges for other children. While Father advised the court that he moved back to Kentucky, the family court noted that he has other children living in Tennessee and he claims to still work in Tennessee. Father was also unable to answer any questions about the care he provided to the Child while in his custody.
Following the hearing, the family court entered its findings of fact and conclusions of law on June 15, 2021. The family court found that: (1) the Child had been abused and neglected; (2) Father had abandoned the Child for more than ninety days; (3) Father had failed to provide essential care and protections for reasons other than poverty alone and there was no reasonable expectation of 5 improvement; (4) the Cabinet made reasonable efforts to reunite Father with the Child; and (5) the best interests of the Child would be served by terminating Father's parental rights. The family court entered a separate order terminating Father's parental rights on the same date. This appeal followed.
As an initial matter, Father's appointed counsel filed an Anders brief in compliance with A.C., supra. In A.C., this Court adopted and applied the procedures identified in Anders, supra, regarding appeals from orders terminating parental rights where counsel cannot identify any non-frivolous grounds to appeal. A.C., 362 S.W.3d at 364. Those procedures require counsel to engage in a thorough and good faith review of the record. Id. "If counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." Id. (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400).
Counsel complied with the requirements of A.C. and Anders by providing Father with a copy of the brief and informing Father of his right to file a pro se brief raising any issues he believes meritorious. A.C., 362 S.W.3d at 371. Father has not filed a pro se brief. We will enter a separate order granting counsel's motion to withdraw.
Because termination of parental rights involves a fundamental liberty interest, the statutory findings must be supported by clear and convincing evidence. 6 Cabinet for Health & Fam. Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). "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." Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (quoting M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998)). We review the trial court's factual findings under a clearly erroneous standard, giving due regard to the ability of the trial court to evaluate the credibility of witnesses and to judge the weight of the evidence. CR 52.01. However, the sufficiency of the trial court's findings, as well as the trial court's application of the law to those findings, are issues of law which we review de novo. D.G.R. v. Commonwealth, Cabinet for Health & Fam. Servs., 364 S.W.3d 106, 113 (Ky. 2012).
Kentucky Rules of Civil Procedure.
KRS 625.090 sets out the findings necessary to support an involuntary termination of parental rights. First, the circuit court must find that the child is "an abused or neglected child." KRS 625.090(1)(a)2. "The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination." K.S., 7 585 S.W.3d at 209 (citation omitted). In this case, the Child was previously found to be abused and neglected.
Kentucky Revised Statutes.
Second, the family court "must find the existence of one or more of [the] specific grounds set forth in KRS 625.090(2)." M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254 S.W.3d 846, 851 (Ky. App. 2008). The family court made findings under KRS 625.090(2) (a), (e), and (g), concluding that:
[Father] has abandoned the child for a period of not less than ninety (90) days;
for a period of not less than six (6) months, [Father] 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;
for reasons other than poverty alone, [Father] has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
and
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[.]8
As outlined above, there was abundant evidence supporting the family court's findings on each of these factors. At the time of the hearing, the Child had been in foster care for nearly three years. There was no evidence that Father had provided significant support or care for the Child either before or after removal. He had only limited contact with the Child following removal and was well behind on his child support obligation. Such facts amply support the finding of abandonment. And given Father's lack of progress and cooperation on his case plan, the family court was well within its discretion to find that there was no reasonable expectation of improvement in the foreseeable future. Therefore, we find no basis to disturb the family court's findings.
Finally, the family court must find termination of parental rights would be in the child's best interests, after considering the factors set forth in KRS 625.090(3)(a)-(f). Here, the family court thoroughly discussed the applicable factors, including finding that Father failed to make reasonable efforts or adjustments in his circumstances and that the Cabinet provided reasonable efforts and services toward reunification. The family court also addressed the progress which the Child has made while in foster care and his prospects for adoption. Again, we find no basis to disturb the family court's findings.
Counsel's Anders brief refers to the provisions of KRS 625.090(5), which affords the family court discretion whether to terminate parental rights "[i]f 9 the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child[.]" In light of the substantial uncontested evidence discussed above, the family court was not obligated to consider its discretion under this section. Furthermore, the family court found that the Child "is in an adoptive home and is in urgent need of permanency at this time."
In sum, the family court made all the required findings for termination of Father's parental rights required under KRS 625.090. The family court's factual findings on all statutory factors were supported by substantial evidence and its conclusions of law were not clearly erroneous. Therefore, the family court did not err in granting the Cabinet's petition to terminate Father's parental rights.
For the foregoing reasons, we affirm the findings of fact, conclusions of law, and the judgment of the Crittenden Family Court terminating Father's parental rights in this matter.
ALL CONCUR. 10