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K.N.N. v. Cabinet for Health & Family Servs.

Court of Appeals of Kentucky
Dec 1, 2023
No. 2023-CA-0089-ME (Ky. Ct. App. Dec. 1, 2023)

Opinion

2023-CA-0089-ME 2023-CA-0151-ME

12-01-2023

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

BRIEF FOR APPELLANT J.B.: Brandi N. Lewis Lexington, Kentucky BRIEFS FOR APPELLANT K.N.N.: Helen L. Bongard Winchester Kentucky Kathryn N. Narramore, pro se Nicholasville, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky


NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE LUCINDA CRONIN MASTERTON, JUDGE ACTION NO. 22-AD-00082

BRIEF FOR APPELLANT J.B.:

Brandi N. Lewis

Lexington, Kentucky

BRIEFS FOR APPELLANT K.N.N.:

Helen L. Bongard

Winchester Kentucky

Kathryn N. Narramore, pro se

Nicholasville, Kentucky

BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES:

Dilissa G. Milburn

Mayfield, Kentucky

BEFORE: CETRULO, KAREM, AND MCNEILL, JUDGES.

OPINION

McNEILL, JUDGE

K.N.N. ("Mother") and J.B. ("Father") appeal from the Fayette Circuit Court's order terminating their parental rights to their minor child, J.E.N. ("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 the appeal is frivolous, accompanied by a motion to withdraw as counsel. 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 positive for opioids on January 6, 2018. The Cabinet filed a dependency, neglect, or abuse ("DNA") petition and Child was placed with his maternal grandmother. Mother received a case plan and regained custody ten months later. Father appeared at the initial DNA hearing but did not maintain contact or cooperate with the Cabinet.

The Cabinet filed a second DNA petition in June 2019 when Father was found unresponsive in his car with Child in the backseat. Child remained in Mother's custody until the Cabinet filed a third DNA petition in October 2019 following a report Mother had tested positive for THC and benzodiazepine. Custody was awarded to the Cabinet and the Child was placed with relatives.

The Cabinet worked with Mother toward reunification, requiring that she undergo substance abuse treatment, mental health treatment, drug screens, and maintain stable housing and employment. Additionally, the family court ordered Mother to complete a parental capacity evaluation. No case plan was completed for Father as he had not maintained contact with the Cabinet.

Mother made some progress in her case plan but ultimately stopped complying. She ceased drug screening in September 2021 and stopped participating in drug and mental health treatment. The report from Mother's parental capacity evaluation recommended no reunification.

In September 2020, Father requested and was given a case plan. He was asked to drug screen, complete parenting classes, maintain stable employment and housing, and complete a mental health assessment. The family court also ordered a parental capacity evaluation. Father successfully completed his case plan, however, the report from his parental capacity evaluation recommended terminating his parental rights.

Thereafter, the Cabinet filed a petition to terminate Mother and Father's parental rights in Fayette Family Court. Following a hearing, the trial court terminated both parents' rights. These appeals followed.

STANDARD OF REVIEW

We begin by noting 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). As such, "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). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). "Because termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." D.G.R. v. Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012).

Kentucky Rules of Civil Procedure.

ANALYSIS

A. Mother's Appeal

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. Pursuant to A.C., 362 S.W.3d 361, we are obligated to independently review the record to determine if the appeal is, in fact, frivolous. Additionally, Mother filed a pro se supplemental brief, arguing several grounds for appeal which we will review below.

KRS 625.090 governs the termination of parental rights in Kentucky. Before terminating parental rights, a court must find 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 child's best interest; 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 on two previous occasions. The court also found that Mother had neglected Child in the current proceeding under KRS 600.020(1)(a)3., 4., and 8. Our review of the record shows Mother twice stipulated to neglect in the underlying DNA case. This is sufficient to satisfy the first prong of KRS 625.090.

As to the second prong, the family court found that termination of parental rights was in Child's best interest. The family court made detailed findings showing that it considered all relevant factors in KRS 625.090(3). In making its determination, the court specifically found Mother had neglected Child (KRS 625.090(3)(b)); the Cabinet had rendered all reasonable reunification services to Mother (KRS 625.090(3)(c)); Mother's efforts were insufficient to make it in Child's best interest to return to his home within a reasonable time, considering Child's age (KRS 625.090(3)(d)); Child's physical, mental, and emotional health would improve if parental rights were terminated (KRS 625.090(3)(e)); and Mother had not paid child support consistently (KRS 625.090(3)(f)).

The family court recognized Mother's efforts towards reunification but noted they were inconsistent. Mother conceded she stopped drug testing and attending drug and mental health treatment. She lacked stable housing, and her then-current roommate had pending criminal charges. We cannot say the family court's findings were clearly erroneous, therefore the second prong is also met.

The third prong requires the family court to find that at least one of the eleven grounds for termination enumerated in KRS 625.090(2) exists. Here, the court found that Child had been in foster care under the responsibility of the Cabinet for fifteen cumulative months out of forty-eight months preceding the filing of the TPR petition. See KRS 625.090(2)(j). The court found additional justification for terminating parental rights under KRS 625.090(2)(e), and (g). It is clear from the record that Child was in foster care under the responsibility of the Cabinet for thirty-two months prior to the filing of the TPR action. 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.

Having independently reviewed the record, we agree with Mother's counsel that no meritorious grounds for appeal exist. Mother filed a pro se brief arguing the family court was unaware of relevant information that would have rendered a different result. Specifically, she argues numerous physician assessments show she is psychologically capable of raising Child, challenging the findings of her parental capacity evaluation. She also cites facts she believes show she can attend to her Child's medical needs. We disagree these facts would have affected the outcome. As outlined above, the family court made the requisite findings under KRS 625.090, which were supported by substantial evidence.

B. Father's Appeal

Turning to Father's appeal, he does not challenge the family court's findings concerning the first two prongs of KRS 625.090. Instead, he argues the family court erred in finding the Cabinet proved one or more grounds of parental unfitness under KRS 625.090(2). As noted above, the family court found Child had been in foster care under the responsibility of the Cabinet for fifteen cumulative months out of forty-eight months preceding the filing of the petition, satisfying KRS 625.090(2)(j). As an additional ground, it found Father had abandoned Child for a period of not less than ninety days. KRS 625.090(2)(a).

Father devotes much of his brief to the issue of abandonment. He does not directly challenge the family court's finding Child had been in foster care thirty-two months prior to the filing of the TPR petition except to state "[t]he purpose of this statute is to prevent children from lingering in foster care and establish some permanence in the child's life." He argues he is ready, willing, and able to care for Child and has completed his case plan.

However, the family court specifically found Child lingered in foster care because Father was not involved in Child's life and failed to take his parenting assessment seriously. Father does not dispute he was substantially absent from Child's first year of life and for Child's first year in foster care. Further, Father admitted he did not take his parental fitness examination seriously. Regardless, KRS 625.090(2)(j) "simply requires that the child be in foster care for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 464 (Ky. 2021) (internal quotation marks and citation omitted). As discussed above, this requirement was met in this case, and only one ground for termination needs to be proven by clear and convincing evidence under KRS 625.090(2). We find no error in the family court's termination of Father's parental rights.

CONCLUSION

Based on the foregoing, the Fayette Circuit Court's order terminating Father's and Mother's parental rights is affirmed.

ALL CONCUR.


Summaries of

K.N.N. v. Cabinet for Health & Family Servs.

Court of Appeals of Kentucky
Dec 1, 2023
No. 2023-CA-0089-ME (Ky. Ct. App. Dec. 1, 2023)
Case details for

K.N.N. v. Cabinet for Health & Family Servs.

Case Details

Full title:K.N.N. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH…

Court:Court of Appeals of Kentucky

Date published: Dec 1, 2023

Citations

No. 2023-CA-0089-ME (Ky. Ct. App. Dec. 1, 2023)