Opinion
2022-CA-0551-ME 2022-CA-0555-ME 2022-CA-0561-ME
12-16-2022
K.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; J.B.; AND J.W.B., A MINOR CHILD APPELLEES AND K.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; J.B.; AND L.J.B., A MINOR CHILD APPELLEES AND K.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; J.B.; AND J.J.W.B., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Laura R. Eaton Hartford, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OHIO CIRCUIT COURT HONORABLE MICHAEL L. MCKOWN, JUDGE ACTION NO. 20-AD-00057, 20-AD-00058, 20-AD-00059
BRIEF FOR APPELLANT: Laura R. Eaton Hartford, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: DIXON, GOODWINE, AND L. THOMPSON, JUDGES.
OPINION
GOODWINE, JUDGE
K.B. ("Mother") appeals three judgments of the Ohio Family Court entered on April 27, 2022 terminating her parental rights to J.W.B., L.J.B., and J.J.W.B. In accordance with A.C. v. Cabinet for Health & Family Services, 362 S.W.3d 361 (Ky. App. 2012), Mother's counsel has filed an Anders brief conceding that no meritorious assignment of error exists to present to this Court. Counsel accompanied the brief with a motion to withdraw, which was passed to this merits panel. After careful review, we grant counsel's motion to withdraw by separate order and affirm the family court's judgments terminating Mother's parental rights.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
I. BACKGROUND
The family court found K.B. to be the biological mother of J.W.B., a male, born April 6, 2015; L.J.B., a female, born November 8, 2006; and J.J.W.B., a male, born February 13, 2008 (collectively "the children"). J.B. ("Father") is the biological father of all three children and did not appeal the judgments terminating his parental rights. On December 10, 2018, the children were placed in the Cabinet for Health and Family Services' ("Cabinet") custody pursuant to emergency custody orders and such custody continued via temporary custody orders entered on December 12, 2018. Removal was predicated on allegations Father sexually abused one of the children, and Mother did nothing to protect them from further acts of abuse. Each child was placed in the same foster home.
Mother executed a case plan with the Cabinet and was ordered to comply with its terms to regain custody of the children, who have remained in Cabinet custody since their removal. Mother's case plan required her to (1) complete a mental health assessment; (2) attend eight to ten therapy sessions addressing the allegations leading to the children's removal; (3) demonstrate skills learned from therapy and demonstrate protective capacity over the children; (4) complete a parenting assessment; (5) maintain a source of legal income to support herself and the children; and (6) cooperate with the Cabinet. After failing to comply with her case plan, the Cabinet petitioned to terminate both parents' parental rights on November 30, 2020. A final hearing was held on March 31, 2022, during which the children's foster mother; the Cabinet social service clinician, Lauren Marr; Mother; and Father testified.
Foster mother testified first that she had continuous possession of the children for "over three years" and was willing to adopt them. She further testified as to problems relating to the children's behavior and education along with their observed improvements since coming into her care. She indicated neither parent had visits or contact with any of the children during their time in her home.
Lauren Marr testified next and stated that Mother did not make sufficient progress working her case plan which would allow a Cabinet recommendation for reunification and that Mother refused to sign a "release of information" to demonstrate she received a mental health assessment and or mental health treatment. She further testified that Mother refused to acknowledge any acts of abuse occurred which prevented the Cabinet from offering beneficial services and prevented Mother from making improvements of her protective capacity over the children. She affirmed that both parents provided holiday gifts and - though insufficient to meet their full needs - some articles of clothing to the children but was otherwise unaware of any financial support. She indicated that Mother was initially incarcerated between mid-December 2018 through March 2019 and was convicted on October 14, 2021 of two (2) counts of complicity to first-degree sexual abuse stemming from the allegations that resulted in the children's removal for which she received a concurrent prison sentence of five (5) years.
On cross-examination, Marr acknowledged that the terms of Mother's bond prevented her from having contact with the children and that her incarceration affected progression on her case plan. Aside from statements from Mother, she was unaware of any motions filed by her to amend the no contact restrictions of her bond, and she never received any indications the criminal court made any amendments thereto. She confirmed Mother maintained contact with her. She further confirmed that she was provided therapeutic notes from Mother's attorney, but they contained nothing to confirm she completed a mental health assessment or that her treatment was addressing the underlying allegations as required by her case plan. When asked why Mother refused to sign a release of information relating to her therapy, she indicated Mother told her she was legally advised not to, and this reasoning persisted for months amid claims she was unable to reach her criminal defense attorney.
Before the conclusion of Marr's testimony, documentation was admitted into the record including the children's birth certificates, the emergency custody orders, temporary custody orders, Cabinet progress reports, the disposition order, permanency hearing orders, both parents' criminal sentencing orders, and a list of gifts and items provided by the parents to the children.
Father testified regarding his attempts to work his case plan thereafter, and the hearing concluded with Mother's testimony. Mother indicated she was appealing her conviction, seeking shock probation, and appearing before the parole board in July 2021. She provided no assurances as to the likelihood she would be granted parole and could only express a belief she would be granted shock probation. She asserted that she sufficiently complied with her case plan by attending more than twelve (12) to fifteen (15) therapy sessions, maintaining nearly continuous employment during periods she was not incarcerated, paying child support of $275 a month beginning in April 2021 up to her conviction and reincarceration in October 2021, and securing housing. She indicated she sought and was granted an amendment to her bond restrictions allowing her to work in job settings with minors under supervised conditions. She stated she never acknowledged the abuse allegations because the abused child never directly told her of the abuse. She acknowledged not completing some case plan requirements, but cited restrictions caused by the COVID-19 pandemic. On cross-examination, she conceded that she could have provided more than the gifts and clothes she gave the children, but it was difficult while "she was away." She denied that the children aside from J.W.B. had any behavioral or developmental issues while in her care.
Upon the conclusion of the hearing, the family court entered oral findings on the record. On April 27, 2022, this was followed up with written findings of fact, conclusions of law, and judgments terminating parental rights to the children. The family court found the children to be abused or neglected as defined under KRS 600.020(1). It also found termination was in the children's best interests as required under KRS 625.090(1)(c). The family court found Mother unfit to parent the children because: (a) she abandoned them for a period of not less than ninety (90) days, KRS 625.090(2)(a); failed to provide for their essential care and protection, KRS 625.090(2)(e); and failed to provide for their basic needs, KRS 625.090(2)(g). Mother's appeal followed.
Kentucky Revised Statute.
II. STANDARD OF REVIEW
Mother's 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 judgments terminating parental rights where counsel cannot identify any nonfrivolous grounds to appeal. A.C., 362 S.W.3d at 371. Those procedures require counsel to first 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).
III. ANALYSIS
Mother's counsel complied with the requirements of A.C. and Anders by providing Mother with a copy of the brief and informing Mother of her right to file a supplemental pro se brief raising any issues she found meritorious. A.C., 362 S.W.3d at 371. Mother failed to file a supplemental pro se brief. Under A.C., we independently analyzed the record, and now agree with counsel no grounds exist that would warrant disturbing the family court's judgments terminating Mother's parental rights.
"[T]ermination of parental rights is a grave action which the courts must conduct with 'utmost caution.' [It] can be analogized as capital punishment of the family unit because it is 'so severe and irreversible.' Therefore, to pass constitutional muster, the evidence supporting termination must be clear and convincing." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (quoting M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008) (other citations omitted)). "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.'" Id. (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
Termination of a party's parental rights is proper upon satisfaction of a three-part test by clear and convincing evidence. Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, the court must find the child "abused or neglected," 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 of parental unfitness. KRS 625.090(2).
The record contains sufficient evidence to support the family court's decision to terminate Mother's parental rights. Here, the family court declared the children were abused or neglected, and the testimony at the hearing supported such a finding. KRS 625.090(1)(a). Mother has not provided for the children's essential needs since their removal. KRS 625.090(2)(g). The children have indisputably resided in foster care under the responsibility of the Cabinet for at least fifteen (15) months out of the last forty-eight (48) months. KRS 625.090(2)(j). Mother has only had contact with the children through written correspondence since their removal and has therefore abandoned them for a period of not less than ninety (90) days. KRS 625.090(2)(a).
Mother did not submit a pro se supplemental brief supporting her position; however, according to the Anders brief, she believes that the family court abused its discretion in granting the termination of her parental rights. The Anders brief asserts Mother partially completed her case plan and was prevented from completing other portions due to her bond restrictions and based on the advice of her criminal defense counsel. It further indicates Mother argues that (1) return of the children to her custody upon her release from incarceration to be in their best interest; (2) she paid child support; (3) and she is appealing her criminal convictions. Upon our independent review of the entire record, we find that these arguments do not have merit.
As noted above, the family court found each child abused or neglected and that each of their interests would be best served by termination of parental rights. The family court found:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . .
(e) That the parent, for a period of not less than six (6) months, 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;
. . .
(g) That the parent, for reasons other than poverty alone, 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[.]
KRS 625.090(2). The family court also found the children to have "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." KRS 625.090(2)(j). The family court need only find "the existence of one (1) or more of the" grounds listed, and it found a total of four grounds existed to support termination of Mother's parental rights. KRS 625.090(2). Thus, any defense Mother had to the abandonment claim based on the no contact restrictions of her bond would have been insufficient to prevent termination due to a sufficiently supported finding on the other three grounds.
Further, the family court found that termination was in the best interests of the children after weighing the factors under KRS 625.090(3). The family court observed that the Cabinet offered all reasonable services to Mother that could have permitted reunification under KRS 625.090(3)(c). The family court also observed Mother "failed to make reasonable efforts or adjustments in [her] circumstances, conduct, or conditions to make it in the [children's] best interest[s] to return home within a reasonable period of time, considering the age of the [children]." KRS 625.090(3)(d). Thus, the family court did not err in determining the best interests of the children.
We reviewed the family court's termination of parental rights herein and conclude substantial evidence supports the family court's decision. Each of the children was adjudged abused or neglected. Mother had not provided essential care and protection for them, abandoned them, and failed to meet the Cabinet's requirements for the return of her children. Further, there was no reasonable expectation of significant improvement in Mother's conduct in the immediately foreseeable future.
IV. CONCLUSION
Based on the foregoing analysis, we affirm the Ohio Family Court's findings of fact, conclusions of law, and judgments terminating Mother's parental rights.
ALL CONCUR.