Opinion
NO. 2019-CA-000007-ME NO. 2019-CA-000008-ME
03-06-2020
M.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND C.G.P., A MINOR CHILD APPELLEES M.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.A.P., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Noland Weddle Harrodsburg, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Leslie Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00018 APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 18-AD-00019 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: On November 19, 2018, the Harrison Circuit Court ("family court") entered judgments terminating the parental rights of Appellant, M.P. ("Mother"), to her biological children, E.A.P. and C.G.P. (hereinafter collectively referred to as the "Children"). After timely filing a notice of appeal, Mother's court-appointed counsel submitted an Anders brief in accordance with A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361, 363 (Ky. App. 2012).
There is a separate judgment and appeal for each child. The judgments are substantially the same, and the appeals have been consolidated for the purposes of our review.
In the Anders brief, counsel asserted that no meritorious issues exist on which to base an appeal. Nonetheless, counsel pointed out that it is incumbent upon this Court to independently review the record to decide whether the appeals are frivolous. Counsel indicated to this Court that he communicated with Mother and advised her of her right to file a brief of her own choosing. Mother has not entered an appearance in this action or otherwise communicated with this Court. Accordingly, we have independently reviewed the record for the purpose of ascertaining whether the appeal is, in fact, void of nonfrivolous grounds for reversal. Id. at 372. After having done so, we agree with counsel's assessment. On the face of the record, we can perceive no basis warranting relief on appeal. Therefore, we affirm the orders terminating Mother's parental rights to the two minor children, C.G.P. and E.A.P.
Based on the record, it appears that Mother is no longer in this country having permanently relocated to her home country of Romania. Various attempts have been made to contact Mother by mail in Romania but have not been successful due to her inability or refusal to provide a proper mailing address. Ultimately, counsel contacted Mother by email.
Along with the Anders brief, Mother's counsel filed a motion seeking permission to withdraw as counsel in both these appeals. The Court referred counsel's motions to this panel to be decided in conjunction with the underlying appeals. By separate orders, we have granted counsel leave to withdraw.
I. BACKGROUND
Mother is the biological parent of C.G.P. and E.A.P., born in 2006 and 2007 respectively. The Children were born in Romania to Mother and G.P. ("Father"), Mother's husband. Mother and Father are Romani gypsies and worked primarily in agriculture while residing in Romania. Together, Mother, Father, and the Children illegally immigrated to the United States by way of Mexico in 2014, leaving behind two other children in Romania with extended family. Initially, they lived in Arizona with two other related undocumented Romanian immigrant families, although they were homeless and travelled the country in vans together as panhandlers.
Father's rights were also terminated as part of the proceedings below. This appeal relates only to Mother. Father is mentioned only insomuch as is necessary to place this matter in the proper context.
On July 1, 2014, one of the Children's minor cousins was found unattended in a hot vehicle in a Walmart parking lot in Kentucky. The Cabinet for Health and Family Services ("Cabinet") was notified, the minor cousin's father was arrested, and the Cabinet was awarded emergency custody of the minor cousin. Mother, Father, and Children were notified and traveled from Arizona to Kentucky to pay bond for the father and inquire regarding the minor cousin's whereabouts. The family arrived at the Cabinet's Harrison County office. Mother and Father went into the office to inquire about the situation leaving the Children unattended in the family's vehicle.
Cabinet workers communicated with Mother and Father through a Spanish-speaking translator, as they spoke Spanish in addition to a unique Romanian dialect. During those communications, it was discovered that Mother and Father had left their own minor children, along with others, unattended in the vehicle parked outside of the office. The minor children had been in the unsupervised vehicle in the July heat for nearly two hours. As a result of this incident the Cabinet sought and obtained an emergency custody order for the Children. The Children have remained in the Cabinet's custody and care since August 2, 2014. Both Children arrived in foster care malnourished and requiring significant dental care. Although neither could speak English at the time, they have since learned English and are now doing well in school.
From July 2014 to December 2016, Mother and Father did not see the Children, although they did sometimes speak with them over the phone. In December of 2015, Mother voluntarily returned to Romania at the advice of the Romanian consulate, as she had just given birth to another child and feared that he too would be taken from her if she remained in the United States. Although initially prevented from leaving Arizona by immigration, Father was allowed to move to Kentucky in December 2016, and did so at the advice of his attorney. Father began weekly visits with the Children after relocating to Kentucky. During Father's visits, Mother would sometimes communicate with the Children via FaceTime on Father's phone, although by this time, the children had lost the ability to speak Romanian. Mother has had no in person visits with the Children since their removal in 2014.
Acting with the assistance of their privately retained counsel, Mother and Father submitted a written admission to the family court on May 22, 2015, stipulating by affidavit to neglect or abuse for leaving the Children in the car outside the Cabinet's office. The family court entered a corresponding order on May 27, 2015, finding that Mother and Father had neglected or abused Children by leaving them unattended in the hot vehicle. A disposition hearing was held on July 2, 2015, in which the Children were committed to the Cabinet's custody by virtue of an order entered on July 6, 2015. The family court noted that, along with other requirements, the parents must resolve their immigration and criminal issues, establish a safe, non-transient environment for the children, and present a realistic plan to allow for monitoring if the children were to return with them to Romania. The family court further ordered Mother and Father to attend domestic violence classes and undergo psychiatric assessments with a goal of return to parents.
Following the disposition hearing, the Children were interviewed by the Center on Trauma and Children's Comprehensive Assessment and Training Services ("CATS"), which concluded that the Children had been neglected and under-protected when in the care of their parents. CATS additionally found that the Children suffered from severe posttraumatic disturbance stemming from abuse at the hands of Mother and Father. Based on its findings, CATS ultimately recommended a goal of termination of parental rights and adoption of the Children. By December 2015, the Foster Care Review Board expressed concerns that the Children were truly attached to their foster family and reiterated CATS's recommendation that parental rights be terminated.
Accordingly, on September 8, 2017, the family court entered an order changing the permanency goal from reunification with parents to adoption. The family court ordered the Cabinet to pursue safe harbor protection for the children for medical care due to being brought into the United States as part of a panhandling/human trafficking operation. Although the family court stated that the parents attempted to carry out their case plan in Arizona, albeit slowly and without much progress, Father denied having any sort of plan presented to him. The family court noted that there was an overall trend among the adults involved in the matter to minimize and refuse to recognize the problems that led to the Children's removal, attributing the removal solely to misunderstanding the law in the United States. However, according to the family court, "The actions of [the Children's] parents cannot be attributed to cultural differences - it is human trafficking that cannot be condoned or minimized by this Court."
The Cabinet filed a petition for involuntary termination of parental rights on March 26, 2018, at which time Mother was appointed a warning order attorney. By May 2018, Mother and Father ceased contact with the Cabinet and the Children; as of that time, both parents are believed to have been somewhere in Romania. Neither parent has contributed to the financial support of the Children since at least 2015. The Cabinet has no information as to the parents' current status regarding housing, income, stability, and/or sobriety.
The termination hearing for the Children was conducted on September 25-27, 2018. Prior to the hearing, Mother's warning order attorney attempted to locate Mother via general Google search to no avail and attempted to contact her via Facebook. The attorney sent notices in both English and Romanian to Mother's last known addresses in Arizona and in Romania, although these were returned to sender. These notices were both in English and Romanian, albeit courtesy of Google Translator. On July 27, 2018, Father contacted Mother's warning order attorney via email regarding his intent to return to the United States for the termination proceeding. Although Mother's attorney responded to this email, it went unanswered. Mother's attorney sent a follow-up email requesting a way to contact Mother directly but did not receive a response. Consequently, neither Father nor Mother was present for the hearing. The mother of two other minors travelling with the family in 2015 was in attendance. Mother was properly before the family court by constructive service on her warning order attorney. The family court then appointed that same attorney to represent Mother's interests at the termination hearing.
The first witness to testify at the termination hearing was Dr. David Feinberg, a licensed clinical psychologist. Dr. Feinberg found Father to be evasive and dishonest even about small facts related to their living conditions in Romania and was unable to communicate with Mother at all. Dr. Feinberg testified that, throughout the course of his evaluations, the Children reported a history of neglect and physical abuse, resulting in continuing emotional distress. C.G.P. reported in her assessment that Father used to hit her, punch her, and pull her hair, and she believed Mother contributed to the abuse. According to C.G.P., Mother and Father used to threaten each other, although she never actually saw them hit each other. C.G.P. told Dr. Feinberg that the family earned money by panhandling and stealing, stating that Mother taught her how to steal. She recalled begging for money by holding up a sign so that people would give her money that Father would collect. C.G.P. also said that Father would hold a knife to Mother's throat to make her beg for money.
Dr. Feinberg concluded, and the family court accepted, that the Children view their foster parents as their primary attachments. Dr. Feinberg opined that the Children demonstrated a clear desire to be adopted by their current foster family. C.G.P. reported that she preferred not to visit or contact either Mother or Father; she wanted to stay with her foster family and "like[d] that somebody actually loves me." Dr. Feinberg further testified that, when asked to draw a picture of something she hoped would occur, C.G.P. drew a scene in which she was adopted by her foster parents, demonstrating her lack of desire to reconcile with her biological parents.
Similarly, when Dr. Feinberg asked E.A.P. to draw something bad that had occurred in her past, she drew a picture of Mother and Father without any further prompting. She reported to Dr. Feinberg that Mother and Father used to hit her and once threw a GPS and a box of chicken at her and C.G.P. for arguing. When asked what she would select as three magic wishes, E.A.P. wished (1) to be adopted; (2) be her foster mother's child; and (3) be better at drawing.
The second witness to testify on behalf of the Cabinet was Marissa Castellanos, director of the Catholic Charities of Louisville. One of its missions is to provide services to victims of labor and sex trafficking. During her work with the Children and their cousins, Ms. Castellanos came to believe that all the involved minors were coerced into panhandling. Catholic Charities screened the minors involved in this group to see if they were victims of human trafficking. She believed the Children qualified for relief as victims of human trafficking because they were brought to the United States for financial gain by adults as part of a panhandling scheme. Ms. Castellanos further explained that because human trafficking is defined by federal and state law as using force, fraud, or coercion to exploit a child for work or services, this coercive panhandling scheme met the federal and state guidelines as severe human trafficking. The Department of Health and Human Services came to the same conclusion and issued eligibility letters for the children allowing them to have some benefits in the United States.
The Cabinet's final witness was Shawn Warner, a social worker for the Cabinet. Ms. Warner informed the court that both Mother and Father had returned to Romania by early 2018, and, as a result, neither parent had provided any financial support for the Children in more than ninety days. She testified that the Cabinet had done everything in its power to provide services to Mother and Father, and that there was no real hope of a change in situation given the ages of the children and the fact that the parents had returned to Romania leaving them behind in the United States.
In its November 19, 2018 judgment, the family court specifically found the Children were abused and neglected. The family court noted that Mother and Father had abandoned the Children, abused the Children physically and emotionally, failed to provide for the Children's needs, were unable to provide for the Children's needs for reasons other than poverty alone and there was no expectation of significant improvement in the foreseeable future, and that the Children had been in the Cabinet's continuous custody for more than four years. The family court also concluded that termination was in the Children's best interests.
After the termination hearing and corresponding judgments, Mother's appointed counsel again attempted to reach Mother for the purpose of ascertaining whether she wished to appeal. Mother's attorney sent an email to Father informing him of the family court's order terminating parental rights. Despite the numerous failed attempts to communicate with Mother previously, this time Mother reached out to counsel and requested him to appeal the judgments. Ultimately, Mother's counsel determined that no meritorious grounds for appeal exist. As such, counsel filed an Anders brief along with a motion to withdraw. Attempts were made to notify Mother of her right to file a brief of her own choosing. Mother has not filed a brief or otherwise contacted this Court.
Where counsel is unable to identify any meritorious grounds for appeal, he must follow the "prophylactic framework" explained in Anders and adopted by this court in A.C. to protect a parent's right to counsel in termination of parental rights proceedings. This framework requires counsel to first engage in a good faith review of the record. A.C., 362 S.W.3d at 371. After conscientious review of the record, if counsel cannot identify any non-frivolous claims, "he should so advise the court and request permission to withdraw." Id. at 364 (citation omitted). "That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Id. at 371 (citation omitted). --------
II. STANDARD OF REVIEW
Parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution, requiring courts to conduct themselves with the "utmost caution" when considering termination. F.V. v. Commonwealth Cabinet for Health & Family Servs., 567 S.W.3d 597, 606 (Ky. App. 2018) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982) and M.E.C. v. Commonwealth, Cabinet for Health & Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008)). Accordingly, a family court's termination of parental rights will be reversed only if it was clearly erroneous and not based upon clear and convincing evidence. Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). "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." Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934). Because of the family court's wide discretion regarding termination of rights, we are "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." T.N.H., 302 S.W.3d at 663.
Where a proper Anders brief has been filed, this Court's duty is to review the record independently for prejudicial error. C.R.G. v. Cabinet for Health & Family Servs., 297 S.W.3d 914, 915 (Ky. App. 2009). We do so now.
III. ANALYSIS
A family court may involuntarily terminate an individual's parental rights only "upon satisfaction of a three-pronged test" provided by Kentucky Revised Statute ("KRS") 625.090. M.P.R. v. Cabinet for Health & Family Servs., 520 S.W.3d 409, 412 (Ky. App. 2017). In Cabinet for Health & Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014), our Supreme Court explained:
The Commonwealth's TPR [termination of parental rights] statute, found in KRS 625.090, attempts to ensure that parents receive the appropriate amount of due process protections. KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been
adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.
After careful consideration of the record, we hold that the record contains sufficient evidence to support the family court's termination of Mother's parental rights because all three prongs were satisfied under KRS 625.090.
Mother and Father stipulated to neglect or abuse by affidavit, admitting to leaving the Children unattended in a vehicle in the Cabinet's parking lot. As a result of that stipulation, the family court entered its May 27, 2015 order finding Mother to have neglected and abused the Children. In addition, as part of the termination proceeding, the family court made an independent abuse and neglect finding based on the evidence presented at the hearing. The evidence of record supports that finding. The Children were malnourished when they were taken into the Cabinet's custody. The various providers who assessed the Children opined that they had been emotionally and physically abused by Mother and Father. They also opined that Mother and Father used the Children in human trafficking.
Next, the family court considered whether any of the grounds for termination pursuant to KRS 625.090(2) exists in this case. While the statute lists several possible grounds for termination, the family court need only find the presence of one ground by clear and convincing evidence. See KRS 625.090(2) (emphasis added) ("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[.]").
We have reviewed the record to ascertain whether clear and convincing evidence supports the presence of at least one of the grounds relied on by the family court. It does. There is no dispute that the Children were placed in the Cabinet's custody on July 15, 2014, pursuant to an emergency custody order, and remained there until the petition was filed on March 26, 2018, a period of almost four years. Consequently, the minor children were in foster care under the Cabinet's care for approximately forty-four months. Accordingly, the family court appropriately found that the grounds set forth in KRS 625.090(2)(j) were present at the time of the termination hearing.
Finally, we conclude that there is ample evidence to support the family court's finding that termination of Mother's parental rights is in the Children's best interests. KRS 625.090(3). Under the third and final prong of KRS 625.090's tripartite test, the family court was required to consider, among other factors, "[t]he 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" and "[t]he physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered[.]" KRS 625.090(3)(d) & (e).
The family court stated that it considered the factors provided in KRS 625.090(3), including testimony offered by witnesses. The testimony indicated that the Children were suffering from neglect and abuse when they were first placed with their foster family. They are now enrolled in school and doing well. They have bonded with their foster family and both expressed a desire to be adopted. The Children do not wish to see their biological parents again. Additionally, the evidence showed that the Cabinet attempted to work with Mother, but she left the country shortly after giving birth to another child. She has refused to cooperate with the Cabinet and has failed to support the Children. This evidence supports the family court's conclusion that termination is in the Children's best interests.
IV. CONCLUSION
As counsel for Mother argued in the Anders brief and the Cabinet agreed, no meritorious grounds exist upon which to grant relief. The orders terminating Mother's parental rights are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Noland Weddle
Harrodsburg, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY: Leslie Laupp
Covington, Kentucky