Opinion
2022-CA-0148-ME
01-06-2023
R.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; A.M.J., A CHILD; AND A.M.J., NATURAL MOTHER APPELLEES
BRIEF FOR APPELLANT: John H. Schmidt Shepherdsville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Jennifer Clay Leslie M. Laupp Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT HONORABLE PAMELA K. ADDINGTON, JUDGE ACTION NO. 20-AD-00106
BRIEF FOR APPELLANT: John H. Schmidt Shepherdsville, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Jennifer Clay Leslie M. Laupp Louisville, Kentucky
BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.
OPINION
CALDWELL, JUDGE
R.C. ("Father") appeals from the termination of his parental rights to A.M.J. ("Child"). We affirm.
Pursuant to court policy and to protect the privacy of the minor child, we do not refer to the child or her natural parents by name.
FACTUAL AND PROCEDURAL HISTORY
In July 2020, the Cabinet for Health and Family Services ("the Cabinet") filed a petition to involuntarily terminate Father's parental rights to Child. The Hardin Family Court held a final termination hearing in November 2020, at which two Cabinet workers, Father, and Child's foster mother testified.
The petition also sought to terminate the parental rights of Child's Mother, but she is not a party to this appeal so we shall not further discuss her.
First, a social services clinician employed by the Cabinet who was assigned to the matter from May 2019 to July 2020 testified that Father had not maintained stable housing or employment, participated in the required drug screening protocol, or visited with Child. The clinician bluntly testified that Father had completed none of his case plan requirements and had abandoned Child for more than ninety days. According to the clinician, Father was over $2,000 in arrears on his child support obligation and had not provided any food, clothing, shelter, or care for Child since Child had entered foster care. The clinician also testified that Father had a history of criminal convictions, primarily related to drugs or alcohol, and was then in jail. Finally, the clinician testified that Child had bonded well with her foster parents. Next, the Cabinet employee then assigned to the matter offered similar testimony.
Father then testified from jail via telephone. Father stated that he could not afford to participate in the drug screening program. He also denied having a substance abuse problem and could not recall the last time he had provided any financial support for Child. Father admitted the only time he had met Child was soon after her birth.
Finally, Child's foster mother testified. She described her strong bond with Child and Child's strong bond with her foster siblings. The foster mother also testified that she had been Child's foster mother continuously since May 2019, during which time Father had not visited with Child.
The family court stated at the conclusion of the hearing that the
Cabinet had met its burden of proof and so it would terminate Father's parental rights. However, the court did not issue its written decision until March 2021.The court found that Child was neglected, Father had abandoned Child for at least ninety days, and had failed to provide Child with essentials of life (such as supervision, food, clothing, and shelter) for reasons not due to poverty alone. The court also found that Child had been in foster care for fifteen out of the forty-eight months preceding the filing of the termination petition.
For reasons not apparent from the face of the record, the termination orders were signed on March 15, 2021, but were not entered by the circuit court clerk's office until April 9, 2021. Thus, the court's written decision was not signed, much less entered, within thirty days after the hearing concluded. See Kentucky Revised Statute ("KRS") 625.090(6). Father's Anders brief does not discuss the court's failure to meet that statutory deadline. Regardless, standing alone and with no showing of prejudice stemming from the regrettable delay, the failure to meet the statutory deadline does not entitle Father to relief. E.L.T. v. Cabinet for Health and Family Services, 647 S.W.3d 561, 566 (Ky. App. 2022).
In September 2021 the family court denied Father's motion to alter, amend, or vacate and a few months later issued an amended order again denying Father's motion to alter, amend, or vacate. The amended order merely added language stating the decision was final and appealable. Father then filed this appeal.
In relevant part, a final and appealable judgment is one which resolves "all the rights of all the parties in an action ...." Recbar, LLC v. Drake, 579 S.W.3d 198, 199 (Ky. App. 2019) (internal quotation marks and citation omitted). Once the family court denied Father's motion to alter, amend, or vacate, all of the parties' rights had been resolved as there was nothing remaining to do to resolve fully the Cabinet's termination petition. Thus, the initial order denying Father's motion to vacate inherently made the order granting the Cabinet's termination petition final and appealable, even without the inclusion of finality language. A strong argument thus could be made that this appeal is untimely as it was filed more than thirty days after the issuance of the first order denying Father's motion to vacate. However, even if we leniently assume (solely for the sake of argument) that the appeal is timely, Father is not entitled to relief on the merits.
Father's attorney filed an Anders brief and a motion to withdraw as counsel, stating there were no meritorious grounds for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d. 493 (1967); A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012). Father's attorney certified that he provided Father with a copy of his Anders brief and told Father he had a right to file a supplemental brief. However, Father did not do so.
ANALYSIS
If counsel concludes there are not proper grounds for appellate relief, counsel must nonetheless submit a brief "referring to anything in the record that might arguably support the appeal." A.C., 362 S.W.3d at 371 (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400). Here, Father's Anders brief does not assert the existence of any colorable grounds for relief. Nonetheless, we "are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372.
Remarkably, Father's brief contains no citations to the record, despite Kentucky Rules of Appellate Procedure ("RAP") 32(A)(3) and (4) each requiring "ample" citations to the record. The Cabinet's brief cites to some documents in the record but contains no pinpoint citations to any relevant testimony. The requirement to provide "ample" citations to the record does not disappear when the case involves an Anders brief. A.C., 362 S.W.3d at 371. We will not impose sanctions but remind all counsel they must comply with all applicable appellate rules in the future to avoid the imposition of sanctions.
Before terminating parental rights, the trial court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, the trial court must find at least one ground of parental unfitness. KRS 625.090(2). Third, termination must be in the child's best interest. KRS 625.090(1)(c). In determining the child's best interests and whether there are ground(s) of parental unfitness, the trial court must consider the factors listed in KRS 625.090(3).
Clear and convincing evidence "does not . . . 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." Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citations omitted).
Termination of parental rights is a grave action which the courts must conduct with "utmost caution." M.S.S. v. J.E.B., 638 S.W.3d 354, 359 (Ky. 2022) (quotation marks and citations omitted). Thus, the evidence to support termination must be clear and convincing. KRS 625.090; see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (holding due process requires proof by at least clear and convincing evidence for termination of parental rights). Even so, the decision of a trial court to involuntarily terminate parental rights is accorded great deference on appellate review, and its factual findings are reviewed under the "clearly erroneous" standard of CR 52.01meaning they shall not be disturbed unless they are not supported by substantial evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
CR 52.01 governs "all actions tried upon the facts without a jury" and provides in pertinent part: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." It is undisputed that Child was born on May 9, 2019 and entered foster care soon thereafter. The Cabinet filed this petition on July 2, 2020. Since Child was not quite fourteen months old when the Cabinet filed this petition, she could not possibly have been in foster care for fifteen of the then-preceding forty-eight months. Nonetheless, Father is not entitled to relief because only one ground of parental unfitness listed in KRS 625.090(2) must be satisfied and there is ample evidence to support the court's conclusion that Father abandoned Child.
We first note that the family court made the findings required in KRS 625.090 by clear and convincing evidence - specifically including 1) Child being an abused or neglected child, 2) at least one ground of parental unfitness, and 3) termination being in Child's best interest. And based upon our review of the record, substantial evidence supports those findings, with one exception which we shall discuss. The family court also appropriately considered factors listed in KRS 625.090(3) for assessing whether termination was in Child's best interest.
First, the record amply supports the conclusion that Child was neglected. A child is neglected under KRS 600.020(1)(a)4. if his or her parent "[c]ontinuously or repeatedly fails or refuses to provide essential parental care and protection for the child ...." It appears uncontested that Father has provided no parental care for Child. Thus, we need not discuss any other factors as the family court's neglect conclusion is supported by the record.
Second, the record also adequately supports the family court's conclusion that the Cabinet adequately proved the existence of at least one ground of parental unfitness. Among other factors, the court concluded that Father had abandoned Child for at least ninety days. See KRS 625.090(2)(a). Here, the undisputed evidence was that Father had seen Child only once, immediately after her birth. Father had been incarcerated for at least some of Childs's life, but there is nothing to show that he attempted to stay in contact by telephone or in writing. In fact, it appears uncontested that Father failed to appear for scheduled visitations when he was not incarcerated. Father also was substantially in arrears on his child support obligations and provided none of the necessities of life to Child (such as food, clothing, or shelter). In short, Father played no active role whatsoever in Child's life.
The family court concluded that Child had been in foster care for at least fifteen of the fortyeight months preceding the filing of the termination petition. See KRS 625.090(2)(j) (providing that one ground of parental unfitness exists if a 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 ...."). Though Father did not dispute this finding in his Anders brief, it is plainly incorrect.
"Abandonment is not actually defined" in the relevant statutes, but precedent generally deems it to be shown "by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010) (citations omitted). Here, Father's near-total lack of involvement in Child's life shows - for reasons beyond his incarceration - an intent to forego his parental duties and responsibilities. See, e.g., M.P.R. v. Cabinet for Health and Family Services, 520 S.W.3d 409, 414 (Ky. App. 2017).
Finally, the family court's conclusion that termination of Father's parental rights would be in Child's best interest is amply supported by the record. The family court considered the applicable factors in KRS 625.090(3), such as Father's neglect of Child, the Cabinet's reasonable efforts at reunification and Father's persistent failure to adjust his conduct sufficiently to show that reunification would be in Child's best interest. Father was wholly uninvolved in Child's life, made no tangible progress in completing his case plan and chose to commit acts which led to his incarceration. Moreover, the uncontested testimony showed that Child and her foster family had developed a strong bond and that the foster parents had cared well for Child. In sum, the record amply supports the court's conclusion that terminating Father's rights is in Child's best interest.
In short, following our independent examination of the record and review of the family court's KRS 625.090 findings, "we agree with counsel's estimation and perceive no basis warranting relief on appeal." A.C., 362 S.W.3d at 372. We grant counsel's motion to withdraw by separate order.
CONCLUSION
For the foregoing reasons, the Hardin Family Court is affirmed.
ALL CONCUR.