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M.B. v. Commonwealth

Court of Appeals of Kentucky
Apr 29, 2022
No. 2021-CA-1401-ME (Ky. Ct. App. Apr. 29, 2022)

Opinion

2021-CA-1401-ME

04-29-2022

M.B. AND K.H. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND R.I.P.M., A MINOR CHILD APPELLEES

BRIEFS FOR APPELLANTS: Matthew Wisecup Greenup, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky


NOT TO BE PUBLISHED

APPEAL FROM GREENUP CIRCUIT COURT HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 21-AD-00025

BRIEFS FOR APPELLANTS: Matthew Wisecup Greenup, Kentucky

BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky

BEFORE: CALDWELL, TAYLOR, AND L. THOMPSON, JUDGES.

OPINION

THOMPSON, L., JUDGE

M.B. and K.H. appeal from the Greenup Family Court's order which terminated their parental rights to R.I.P.M. (hereinafter referred to as Child). Appellants argue that there was insufficient evidence to support the termination of their parental rights. We find no error and affirm.

This case involves a minor child; therefore, we will not use the names of the parties.

FACTS AND PROCEDURAL HISTORY

Appellants adopted Child on March 4, 2020. In April of 2020, the Cabinet sought emergency custody of Child after receiving a report that a child who had been previously fostered by Appellants reported sexual abuse by Appellants. The Cabinet believed that until the sexual abuse investigation regarding the other child was concluded, Child was at risk of sexual abuse in Appellants' home. Child was then placed into foster care. The Kentucky State Police also initiated a criminal investigation and criminal charges were brought against Appellants. Criminal proceedings are still pending.

Appellants were given a case plan by the Cabinet which required they undergo psychological assessments and follow any orders of the court. Appellants declined to undergo the assessments on advice of counsel. After this initial contact with the Cabinet, Appellants have had no additional contact with the Cabinet. Appellants have also not had any contact with Child. Appellants have also not provided any money, food, clothing, or other essentials to Child since Child was removed from their care.

The Cabinet filed a petition to terminate the parental rights of Appellants as to Child on June 2, 2021. A termination hearing was held on September 21, 2021. The Cabinet social worker and K.M. testified at the hearing. On September 23, 2021, the trial court entered an order terminating Appellants' parental rights. Appellant filed a motion to vacate, but it was denied. This appeal followed.

ANALYSIS

We will begin with setting forth the relevant statutes and standard of review. Kentucky Revised Statutes (KRS) 625.090 states in relevant part:

(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding[.]
. . . .
(b) The Cabinet for Health and Family Services has filed a petition with the court pursuant to KRS 620.180; and
(c) Termination would be in the best interest of the child.
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;
(h) That:
1.The parent's parental rights to another child have been involuntarily terminated;
2.The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3.The conditions or factors which were the basis for the previous termination finding have not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect;
(j) That 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; or
(k) That the child has been removed from the biological or legal parents more than two (2) times in a twenty-four (24) month period by the cabinet or a court.
(3) In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent
consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b)Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008), states:
The standard for review in termination of parental rights cases is set forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998). Therein, it is established that this Court's standard of review in a termination of parental rights case is the clearly erroneous standard found in Kentucky Rules of
Civil Procedure (CR) 52.01, which is based upon clear and convincing evidence. Hence, this Court's review is to determine whether the trial court's order was supported by substantial evidence on the record. And the Court will not disturb the trial court's findings unless no substantial evidence exists on the record.
Furthermore, although termination of parental rights is not a criminal matter, it encroaches on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met. While the state has a compelling interest to protect its youngest citizens, state intervention into the family with the result of permanently severing the relationship between parent and child must be done with utmost caution. It is a very serious matter.
(Citations omitted.) In addition,
[t]he standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence. "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."
V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (citations omitted).

We conclude that there was sufficient evidence to terminate Appellants' parental rights. Child was a neglected child pursuant to KRS 600.020(1)(a)4., because Appellants provided no essential care for Child once Child was removed from their care. They had no contact with Child and provided nothing for his care and upkeep. This also supports the following: Appellants abandoned Child, KRS 600.020(1)(a)7.; Appellants provided no food, clothing, or shelter to Child, KRS 600.020(1)(a)8.; and Appellants failed to make any progress on their case plan and allowed Child to remain in the care of the Cabinet for over 15 months, KRS 600.020(1)(a)9.

In addition, one of the factors set forth in KRS 625.090(2) must be present. We hold that KRS 625.090(2)(a), that the child was abandoned for at least 90 days, is clearly present in this case. Child was removed from the custody of Appellants in April of 2020. Appellants have had no contact with Child since then. Appellants bring to our attention the fact that, as part of the criminal proceedings, they were ordered to have no contact with any minor children. This would include Child. This order was entered September 24, 2020; however, there was no such order prohibiting their contacting Child prior to that. From April of 2020 to September of 2020, a period of five months, Appellants had no contact with Child and provided no money, food, clothes, or other essentials for Child's upkeep. In addition, the only contact Appellants had with the Cabinet was the initial case plan meeting where they declined to have a psychological assessment. This is clear and convincing proof of abandonment.

Finally, as for the best interests of Child, since being removed from Appellants' care, Child has been in about ten different foster homes. While this is unfortunate, there is still clear and convincing evidence that the termination of Appellants' parental rights is in his best interests. Appellants refused to undertake the one requirement of their case plan, have a psychological assessment. By not following through with their case plan, the factors found in KRS 625.090(3)(c) and (d) are met. In addition, Appellants have not made any arrangements to provide financial resources to Child even though they receive $1, 451 a month in adoption subsidies. This meets KRS 625.090(3)(f). We acknowledge that there was no court order requiring Appellants to pay child support; however, Appellants cannot sit back for over one and a half years and provide nothing for the child and be expected to maintain their parental rights. The factors found in KRS 625.090(3)(a) and (b) are not present in this case. As for KRS 625.090(3)(e), there was no evidence presented concerning Child's current physical, emotional, and mental health.

CONCLUSION

Based on the foregoing, we conclude that the trial court did not err in terminating the parental rights of Appellant. The factors required to terminate their rights found in KRS 625.090 were met and the evidence found in the record is clear and convincing. We affirm the family court's judgment.

CALDWELL, JUDGE, CONCURS..

TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

Respectfully, I dissent. There is no evidence in the record to justify a finding of abuse against the adoptive parents of R.I.P.M. Thus, the only legal basis for termination is neglect, which I cannot agree was proven under the peculiar facts of this case. The child was removed by the Cabinet from the adoptive parents approximately one month after the child's adoption was final. The purported basis for the removal was alleged sexual abuse asserted by another adoptive child, not R.I.P.M. Apparently, criminal charges are pending against the adoptive parents, although the Family Court makes absolutely no findings in this regard. Equally disturbing is that the bond requirements in the criminal case restricted contact with the child. And, there was no order requiring the payment of child support. At minimum, this termination is premature and should have been held in abeyance pending the resolution of the criminal case.


Summaries of

M.B. v. Commonwealth

Court of Appeals of Kentucky
Apr 29, 2022
No. 2021-CA-1401-ME (Ky. Ct. App. Apr. 29, 2022)
Case details for

M.B. v. Commonwealth

Case Details

Full title:M.B. AND K.H. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH…

Court:Court of Appeals of Kentucky

Date published: Apr 29, 2022

Citations

No. 2021-CA-1401-ME (Ky. Ct. App. Apr. 29, 2022)