Opinion
NO. 2016-CA-001878-ME
08-11-2017
P. L. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES; AND P.D.R.H., a child APPELLEES
BRIEF FOR APPELLANT: James Wooton, II Hyden, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH & FAMILY SERVICES: Stephen D. Spurlock London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLAY CIRCUIT COURT
HONORABLE ALLEN B. ROBERTS, SPECIAL JUDGE
ACTION NO. 16-AD-00014 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, MAZE, AND NICKELL, JUDGES. LAMBERT, J., JUDGE: P.L. (the Mother) appeals from the Clay Circuit Court granting the Commonwealth of Kentucky Cabinet for Health and Family Services' petition for involuntary termination of parental rights to P.D.R.H. (the Child). We affirm.
The Child was born on December 1, 2014, in Lexington, Kentucky. At the time of the Child's birth, the Mother, who resides in Laurel County, Kentucky, tested positive for three medications, none of which were prescribed to her. The Child was determined to be drug dependent and was treated with morphine during the withdrawal process. The Child also suffered (and continues to do so) from multiple profound birth defects, including spina bifida, hydrocephaly, and neurogenic bowels and bladder. The Child's needs are complicated and many. She requires around the clock care; her very life depends on it.
The Cabinet intervened immediately after the Child's birth, seeking first to remove custody from the parents and placing the Child in appropriate foster care. Over the next fifteen months, the Cabinet sought to reunify the family; services were offered to both parents. The Mother entered into a case plan but failed completely; a second case plan was instituted in January 2016. The array of services offered to the Mother consisted of drug screening and counseling, parenting skills training, attendance in the Child's individualized health planning (which included all members of the Child's care team and involved review of the Child's diagnoses, progress, treatment, medical and custodial care). Again the Mother failed or fell significantly short of each of the case plan's goals.
J.H., the Father, acknowledged paternity but does not appeal from the Clay Circuit Court's termination of his parental rights.
Meanwhile, the Child thrived in foster care, and the foster parents expressed an interest in adopting her. The Cabinet filed its petition for involuntary termination of parental rights in March 2016. The Clay Circuit Court appointed a guardian ad litem for the Child, and both parents were represented by counsel. A hearing was held on October 13, 2016, and the circuit court entered its decision four weeks later. The Mother appeals.
The sole issue for our consideration is whether the circuit court should have analyzed less restrictive measures "that would accomplish the governmental interest of protecting the Child" before terminating the Mother's parental rights. Because Kentucky's statute pertaining to termination of parental rights lacks a requirement of such analysis, the Mother continues, it is unconstitutional and the order of the Clay Circuit Court should be set aside.
We disagree. Kentucky Revised Statute (KRS) 418.075 requires that the Attorney General be notified whenever a statute is challenged on constitutional grounds:
(1) In any proceeding which involves the validity of a statute, the Attorney General of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the petition and be entitled to be heard."[S]trict compliance with the notification provisions of KRS 418.075 is mandatory." Benet v. Com., 253 S.W.3d 528, 532 (Ky. 2008), citing Maney v. Mary Chiles Hospital, 785 S.W.2d 480, 482 (Ky. 1990). The record before us (both at the circuit court and appellate court levels) lacks any such notice to the Attorney General. We are bound by statutory and case law to decline any discussion of this issue. Prickett v. Com., 427 S.W.3d 812, 814 (Ky. App. 2013).
(2) In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal appellate courts in any forum which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant's brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect.
Furthermore, in its detailed scrutiny of the Mother's situation, the Clay Circuit Court did in fact address counsel's argument that Kentucky's termination of parental rights statute lacks constitutional safeguards. We quote the circuit court's order:
The Court has considered the argument of counsel and this Court is unpersuaded that a "least restrictive" provision must be read into the Kentucky statute. On the contrary, the Kentucky statute as it relates to termination of parental rights, is narrowly tailored. The statute mandates specific analysis and specific findings be made on a clear and convincing evidence standard. Further, the statute gives the trial court the discretion to refuse to terminate, if the parent can prove that the child would not be abused or neglected if returned to the parents.The needs of the Child in this case are extreme: Her very life depends on her constant and particular care. The Cabinet demonstrated by clear and convincing evidence that the Child was abused or neglected, that termination was in the Child's best interest, that the Mother was incapable of providing the care necessary to sustain the Child's life, and that there was no reasonable probability of improvement. See Cabinet for Health & Family Services. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). We find no error in the Clay Circuit Court's determination that the Cabinet was entitled to a judgment terminating the Mother's parental rights.
[U]nder the logic of the argument set forth by counsel, this Court cannot foresee a set of circumstances where the Court could ever take the step of terminating parental rights. There would always appear to be a "less restrictive" alternative, even if it involved the parent in the particular case, visiting with the child through a glass partition.
The order of the Clay Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James Wooton, II
Hyden, Kentucky BRIEF FOR APPELLEE
CABINET FOR HEALTH &
FAMILY SERVICES: Stephen D. Spurlock
London, Kentucky
James Wooton moved to withdraw as P.L.'s counsel after the brief on her behalf was filed in the Court of Appeals. The motion was granted on May 5, 2017. No new counsel has appeared of record, thus P.L. now appears pro se. --------