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K.A.N. v. Commonwealth

Court of Appeals of Kentucky
Dec 1, 2023
No. 2023-CA-0248-ME (Ky. Ct. App. Dec. 1, 2023)

Opinion

2023-CA-0248-ME

12-01-2023

K.A.N. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND J.A.J.N., A MINOR CHILD APPELLEES

BRIEF FOR APPELLANT K.A.N.: Marsha Megan Hughes Richmond Mt. Sterling, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky


NOT TO BE PUBLISHED

APPEAL FROM MONTGOMERY CIRCUIT COURT HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 22-AD-00011

BRIEF FOR APPELLANT K.A.N.: Marsha Megan Hughes Richmond Mt. Sterling, Kentucky

BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kevin Martz Covington, Kentucky

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

OPINION

CALDWELL, JUDGE:

K.A.N. (Mother) appeals from the termination of her parental rights to J.A.J.N. (Child). We affirm.

Pursuant to Court policy and to protect the privacy of the minor child, we do not identify Mother or Child by name.

FACTUAL AND PROCEDURAL HISTORY

Prior to Child's birth, the Montgomery Circuit Court terminated Mother's parental rights to two other children in March 2020. The termination orders and supporting findings of fact and conclusions of law reflect ongoing concerns about Mother's substance abuse along with findings of abandonment, failure to provide necessities and essential parental care and protection, and the children having been in foster care for at least fifteen months before the termination petitions were filed.

Mother gave birth to Child in July 2021. Both Mother and Child tested positive for controlled substances including methamphetamines.

A couple of days after Child's birth, the Cabinet for Health and Family Services (the Cabinet) filed a juvenile neglect petition in Montgomery District Court. The investigating social worker's affidavit expressed concern about Mother's ability to care for a newborn due to substance abuse and mental health challenges and recommended drug screens, mental health assessment and supervised visitation. The district court granted the Cabinet emergency custody.

District court records indicate Mother waived a temporary removal hearing and the Cabinet was granted temporary custody. The district court made a finding of neglect in late October 2021 and stated on docket notes that no visitation would be permitted unless Mother worked her case plan.

In December 2021, the Cabinet filed a dispositional report. It stated that Mother's whereabouts were unknown, noted her prior history with the Cabinet, and indicated that Mother was not cooperating with case planning.

In January 2022, the Cabinet filed another dispositional report. It requested that Child be committed to the Cabinet and recommended a goal change to adoption. The Cabinet also recommended that the district court determine that the Cabinet was no longer required to make reasonable reunification efforts. District court docket notes indicated the district court followed the Cabinet's recommendations and ordered that Mother have no contact with Child.

In May 2022, the Cabinet filed a petition to involuntarily terminate Mother's parental rights to Child in Montgomery Circuit Court. The case proceeded to trial in late January 2023. The Cabinet introduced into evidence the district court records about Child's case and court records about the termination of Mother's parental rights to two other children.

The Cabinet also presented the testimony of the ongoing social worker. According to the ongoing social worker's testimony, she sent a letter to Mother when the ongoing worker was assigned to the case in June 2022, but Mother did not respond. The social worker testified that, according to Cabinet records, Mother did not contact the Cabinet from late July 2021 until October 2022, when Mother reported entering residential treatment at Karen's Place.

The social worker further testified to meeting with Mother to establish a case plan in late 2022, despite the fact the district court determined reasonable efforts were not required. The social worker acknowledged that Mother had completed some case plan requirements such as attending parenting classes and that Mother was undergoing mental health treatment at Karen's Place. However, the social worker testified that Mother had not yet fulfilled other case plan requirements such as obtaining employment and stable housing.

The social worker also testified that Mother had never provided any support for Child - instead, all support was provided by the Cabinet and the foster family. And she testified that, according to Cabinet records, Mother had made no efforts to check on Child or request visits from late July 2021 until October 2022.

The social worker opined that termination of Mother's parental rights was in Child's best interest. She also stated that Child had been living with the same foster family since the summer of 2021 and that Child was bonded with her foster parents. She asserted that Child did not know Mother due to lack of contact and that it would be traumatic to remove Child from the foster family's home.

Mother acknowledged in her testimony that she had "messed up" in the past and had a history of substance abuse. But she testified to being sober since September 2022 - about four months before the termination trial. She also testified to being in Karen's Place for residential treatment since October 2022. She stated she had completed a large portion of the treatment program, but she admitted she had about two months in the program left.

Mother admitted having no employment or housing, noting that she was not allowed to have a job while in treatment at Karen's Place and indicating she could not seek other housing while she stayed there. She testified to intending to obtain employment when she completed treatment at Karen's Place, perhaps as a peer support specialist there. She noted that Karen's Place would accommodate visitation with children and that staff would be willing to supervise visits. She asked the court to give her additional time to show she could maintain her sobriety and obtain stable housing and employment.

Mother's attorney argued in closing that since Child was only about eighteen months at the time of the hearing, that Child might adjust well to having visits with Mother. She requested that the court decline to terminate Mother's parental rights, and instead allow Mother more time to demonstrate her ability to maintain her sobriety and obtain employment and housing.

The Cabinet's attorney acknowledged that Mother had been making some efforts over the last few months and that Mother was unable to secure employment or other housing while in treatment at Karen's Place. However, he asserted that Child's need for permanency within a reasonable time was paramount. And given Child's bonding with foster parents and Mother's lack of inquiry into Child's welfare for well over a year, he argued that requirements for termination were met, and that termination would be in Child's best interest.

After taking the matter under advisement, the court issued an order terminating Mother's parental rights to Child with supporting findings of fact and conclusions of law a few days after trial. Mother filed a timely appeal.

Mother's attorney filed an Anders brief and a motion to withdraw as counsel, stating there were no meritorious grounds for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d. 493 (1967). See also A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012). Mother's attorney certified that Mother was provided with a copy of the Anders brief and advised of her right to file a supplemental brief. Mother did not file a supplemental brief. The Cabinet filed an appellee brief. Further facts will be discussed as needed.

STANDARD OF REVIEW

Termination of parental rights is a grave action requiring "utmost caution." M.E.C. v. Commonwealth, Cab. for Health and Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008). Thus, the evidence to support termination must be clear and convincing. KRS 625.090; see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (holding due process requires proof by at least clear and convincing evidence for termination of parental rights).

Kentucky Revised Statutes.

Even so, a circuit court's decision to involuntarily terminate parental rights is accorded great deference on appellate review and its factual findings are reviewed under the "clearly erroneous" standard of CR 52.01, meaning these findings shall not be disturbed unless they are not supported by substantial evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).

Kentucky Rules of Civil Procedure.

CR 52.01 governs "all actions tried upon the facts without a jury" and provides in pertinent part: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

Nonetheless, before terminating parental rights, the family court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the family court must find at least one ground for termination set forth in KRS 625.090(2) (often described as grounds of parental unfitness). In determining the child's best interests and whether there are ground(s) of parental unfitness, the trial court must consider the factors listed in KRS 625.090(3).

Clear and convincing evidence does not mean uncontradicted proof, but "proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Com., Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).

See, e.g., A.R.D. v. Cabinet for Health and Family Services, 606 S.W.3d 105, 109 (Ky. App. 2020).

Even if the trial court determines that the requirements of KRS 625.090(1)-(3) are met, KRS 625.090(5) provides: "If the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent, the court in its discretion may determine not to terminate parental rights." Given the trial court's discretion expressly recognized in KRS 625.090(5), the trial court's decision whether to terminate if the parent satisfies KRS 625.090(5) is reviewed for abuse of discretion.

ANALYSIS

Statutorily Required Findings Made and Supported by Substantial Evidence

The trial court made all findings required by KRS 625.090(1)-(3) by clear and convincing evidence based on our review of its written judgment. Specifically, the family court found that Child was an abused or neglected child, that multiple KRS 625.090(2) grounds for termination exist, and that termination was in Child's best interest based on the factors set forth in KRS 625.090(3). Furthermore, the trial court's findings are supported by substantial evidence based on our review of the trial videorecording and documentary evidence in the record. No

The trial court found the grounds for termination set forth in KRS 625.090(2)(a),(e),(g) & (h)i.e., abandonment, failure to provide essential parental care and protection, failure to provide necessities such as food and shelter, and Mother's parental rights to other children having been terminated before Child's birth based on conditions or factors which had not yet been corrected.

Reason to Reverse Based on Our Independent Examination of Record

Following our independent examination of the record and review of the trial court's KRS 625.090 findings, "we agree with counsel's estimation and perceive no basis warranting relief on appeal." A.C., 362 S.W.3d at 372. Thus, we grant Mother's counsel's motion to withdraw by separate order.

Following our directions in A.C., 362 S.W.3d at 371, counsel identified potential challenges to the termination decision, though counsel explained why those issues ultimately lack merit in counsel's estimation. We address the possible arguments for reversal below, although we ultimately affirm.

Mother's counsel states that she did not object to any action of the trial court and that she is unaware of any objections which were not made but should have been made. Yet counsel suggests that one could argue the trial court abused its discretion although she believes this argument would not be meritorious.

More specifically, Mother's counsel states one could argue that the trial court erred in finding Mother would not be able to properly care for Child based on recent events before the hearing. She points to Mother being in treatment at Karen's Place and having maintained sobriety for four months at the time of trial. She also notes Mother had completed some case plan tasks and was undergoing continuing mental health treatment. And she suggests one could argue Mother should get additional time to complete the case plan and maintain sobriety since addiction is a complicated disease which is difficult to treat within a few months and since Child is so young.

However, counsel also notes Mother's failure to contact the Cabinet or cooperate with it when she was neither incarcerated nor in treatment. She asserts Mother did not enter treatment voluntarily but was court-ordered to do so. And she recognizes that Mother had not completed her case plan at the time of trial (some eighteen months after Child's birth).

Next, counsel suggests that Mother could argue she did not intentionally put child at risk since Child was removed at birth. And she suggests Mother could argue that Mother's being sober for a few months before trial indicates prospects of future improvement. She also points out Mother was not able to fulfill certain case plan requirements like obtaining employment and stable housing because of her ongoing treatment at Karen's Place. And she suggests one could argue Mother completed the portions of the case plan requirements she could while in treatment and that Mother is very motivated to care for Child, who is arguably young enough to adjust well to changes.

However, counsel recognizes one could also argue that the trial court did not err in finding low expectations of improvement given Mother's long battle with addiction (followed by only a few months of sobriety prior to trial). She also recognizes that it is undisputed that Mother failed to or was unable to provide any care or support for Child during Child's whole life for reasons including criminal activity, substance abuse, and instability. So, she believes the trial court was within its discretion to terminate parental rights rather than decline to do so pursuant to KRS 625.090(5).

The Cabinet agrees with Mother's counsel's estimation of there being no meritorious grounds to reverse the termination. In addition to there being substantial evidence to support the trial court's findings of KRS 625.090(1)-(3) grounds, the Cabinet asserts Mother failed to prove by a preponderance of the evidence that Child would not continue to be abused or neglected if returned to her care. And it contends the trial court did not abuse its discretion in not declining to terminate parental rights pursuant to KRS 625.090(5).

Noting its prior finding that Mother failed to make sufficient efforts and adjustments to safely return Child to her within a reasonable time, the trial court found that Mother had not shown by a preponderance of the evidence that Child would not be abused or neglected if returned to her care. And the trial court stated that even if she had made the required showing by a preponderance of the evidence, it would decline to exercise its discretion not to terminate her parental rights because it found termination to be in Child's best interest.

We recognize Mother made commendable progress in the months leading to trial by entering treatment at Karen's Place, maintaining sobriety for a few months, and taking parenting classes. But we conclude the trial court did not abuse its discretion in terminating her parental rights and that its factual findings are supported by substantial evidence. Furthermore, we are not inclined to second-guess the trial court's assessment of the weight and credibility of the evidence presented.

As stated in CR 52.01: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." And as stated by Kentucky Supreme Court precedent, we review with deference the trial court's weighing of the evidence and resolution of conflicting evidence:

Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and footnotes omitted). See also D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 114 (Ky. 2012).

We note the trial court commended Mother for her recent efforts in achieving sobriety for four months, seeking mental health treatment, and completing parenting classes. However, the trial court indicated that Mother would need to be able to show she could maintain sobriety outside a controlled setting to make safe reunification possible.

The trial court also noted that Mother still lacked employment and housing. And though it acknowledged that obtaining employment and housing was not possible while she was at Karen's Place, it found that this barrier to obtaining employment and housing resulted from Mother waiting until Child was in foster care for fifteen months to do anything to address the concerns leading to Child's removal. Thus, the trial court found that it would take considerably more time for Mother to show sufficient progress to make reunification possible, so that Child could not be safely returned to Mother's care within a reasonable time considering Child's age. These findings are supported by substantial evidence.

Also, as the Cabinet points out, it was appropriate for the trial court to consider the child's need for permanency - especially given state and federal legislation aimed at limiting the time children linger in foster care. See generally Cabinet for Families and Children v. G.C.W., 139 S.W.3d 172, 177 (Ky. App. 2004) (discussing federal Adoption and Safe Families Act (AFSA) and amendments to KRS 600.020 and KRS 625.090 to conform to ASFA time limits).

And despite any argument that Child's young age means that Child could adapt well to changes in visitation and caregivers and that a longer opportunity to change should be provided, the Cabinet adeptly suggests that perhaps the opposite is true. As quoted in the Cabinet's brief, this Court has stated: "We know age is an important consideration and that more significant and quicker progress must be demonstrated when younger children are the subject of the termination of parental rights." M.E.C., 254 S.W.3d at 855. Though the facts and circumstances of each case are unique, the trial court's decision to immediately terminate parental rights rather than allowing Mother further time to improve was not an abuse of discretion under the facts and circumstances of this case.

In sum, we have independently reviewed the record and discern no reason to disturb the termination of Mother's parental rights to Child. The trial court made the necessary findings, its findings are supported by substantial evidence, and it did not abuse its discretion in terminating Mother's parental rights to Child immediately rather than allowing additional opportunity for improvement based upon the record before us. Thus, we affirm its judgment.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Montgomery Circuit Court.


Summaries of

K.A.N. v. Commonwealth

Court of Appeals of Kentucky
Dec 1, 2023
No. 2023-CA-0248-ME (Ky. Ct. App. Dec. 1, 2023)
Case details for

K.A.N. v. Commonwealth

Case Details

Full title:K.A.N. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND…

Court:Court of Appeals of Kentucky

Date published: Dec 1, 2023

Citations

No. 2023-CA-0248-ME (Ky. Ct. App. Dec. 1, 2023)