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S.B. v. Commonwealth

Court of Appeals of Kentucky
Apr 22, 2022
No. 2021-CA-0827-ME (Ky. Ct. App. Apr. 22, 2022)

Opinion

2021-CA-0827-ME 2021-CA-0829-ME 2021-CA-0830-ME 2021-CA-0831-ME

04-22-2022

S.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; T.B., THE MINOR CHILD; D.H.; AND T.S., THE FATHER APPELLEES AND S.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; T.B., THE MINOR CHILD; D.H.; AND T.S., THE FATHER APPELLEES AND S.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; T.B., THE MINOR CHILD; D.H.; AND T.S., THE FATHER APPELLEES AND S.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; T.B., THE MINOR CHILD; D.H.; AND T.S., THE FATHER APPELLEES

BRIEF FOR APPELLANT: Richard D. Null Paducah, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Megan D. Randolph Morganfield, Kentucky


NOT TO BE PUBLISHED

APPEAL FROM UNION CIRCUIT COURT FAMILY COURT DIVISION HONORABLE BRANDI H. ROGERS, JUDGE ACTION NOS. 20-J-00013-001, 20-J-00013-002

20-J-00014-001, 20-J-00014-002

BRIEF FOR APPELLANT: Richard D. Null Paducah, Kentucky

BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Megan D. Randolph Morganfield, Kentucky

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

OPINION AFFIRMING

THOMPSON, L., JUDGE

In this consolidated appeal, S.B. appeals from adjudication and disposition orders of Union Circuit Court, Family Court Division finding that her two minor children were abused and neglected, and continuing the removal of the children from the home. S.B. ("Appellant") argues that the evidence was insufficient to establish by a preponderance of the evidence that she created or allowed to be created a risk of physical or emotional injury. She also contends that the evidence did not demonstrate that she was incapable of caring for the children's immediate and ongoing needs, and argues that the family court improperly failed to consider less restrictive alternatives to removal. She seeks an opinion reversing the orders on appeal. After careful review, we find no error and affirm the orders on appeal.

Because a minor child is involved, we will use the parties' initials.

FACTS AND PROCEDURAL HISTORY

On February 14, 2020, the Commonwealth of Kentucky, Cabinet for Health and Family Services ("Appellee") filed juvenile dependency, abuse, or neglect petitions in Union Circuit Court, Family Court Division, alleging that Appellant's children, "T.S." and "T.C.S.," were abused or neglected per Kentucky Revised Statutes ("KRS") 620.070. The petitions were based on a myriad of allegations that the children did not receive proper housing, food, medical care, or hygiene, and that they were exposed to and/or experienced violence resulting in their abuse or neglect. The children were removed from Appellant's care after a temporary removal hearing and placed with Appellee.

The children, "T.S." and "T.C.S.," are each referred to in the appellate record as "T.S." The children's father is also referred to as "T.S." The notices of appeal refer to each child as "the minor child, TB." [sic] This is an apparent typographical error.

The court conducted an adjudication hearing on April 21, 2020, resulting in an adjudication order rendered on May 7, 2021. In support of the order, the family court cited extensive testimony from Appellant, the children, a Union County Public Schools psychologist, and others. The children, then ages 13 and 15, testified as to Appellant's ongoing mental health issues, her almost daily intoxication, paranoid behavior, physical and emotional abuse, and the lack of care she provided to them. Appellant and the children lived with or were otherwise involved with three different men, each of whom had extensive criminal histories. The children lived in a trailer with no running water, little or no food, and no toilet paper. They wore the same clothes for months and did not know how to use a toothbrush. Testimony was given that the children were physically abused to the point that one of the children was suicidal. Appellant would punch and slap the children, shove them, scream at them from a close distance, and blow an airhorn in their ears. One child testified that Appellant would drag her around by her hair and bloody her nose. A social worker testified as to Appellant's mental health issues and paranoid behavior.

About a week after the adjudication hearing, a disposition hearing was conducted resulting in the court continuing the children's removal from the home upon finding that it was in their best interest. Appellant now appeals from the adjudication and disposition orders.

STANDARD OF REVIEW
[The] standard of review . . . in a dependency, abuse and neglect action is limited to whether the factual findings of the lower court are clearly erroneous. Whether or not the findings are clearly erroneous depends on whether there is substantial evidence in the record to support them. If the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions made by the finder of fact. The legal conclusions are reviewed de novo. If the factual findings are not clearly erroneous and the legal conclusions are correct, the only remaining question on appeal is whether the trial court abused its discretion in applying the law to the facts. Finally, [s]ince the family court is in the best position to evaluate
the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision . . . will not be disturbed absent an abuse of discretion.
The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Cabinet for Health and Family Services v. R.S., 570 S.W.3d 538, 546 (Ky. 2018) (quotations, footnotes, citations, and emphasis omitted).

ARGUMENTS AND ANALYSIS

Appellant now argues that Appellee presented insufficient evidence at the April 21, 2020 adjudication hearing to support a finding by the Union Circuit Court, Family Court Division that abuse and neglect per KRS 600.020(1) were proven by a preponderance of the evidence. Appellant contends that she did not create nor allow to be created a risk of physical or emotional abuse; that she did not engage in a pattern of conduct that makes her incapable of caring for the immediate and ongoing needs of the children, including but not limited to parental incapacity due to a substance abuse disorder; and that the family court improperly failed to utilize lesser restrictive alternatives than removal at adjudication and disposition. Appellant argues there was a lack of evidence sufficient to meet the standard of a preponderance of the evidence; therefore, she seeks an opinion reversing the orders on appeal.

KRS 600.020(1) states,
"Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
5. Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child;
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
7. Abandons or exploits the child;
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education
or medical care necessary for the child's well-being. A parent or other person exercising custodial control or supervision of the child legitimately practicing the person's religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child;
9. Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months; or
10. Commits or allows female genital mutilation as defined in KRS 508.125 to be committed; or
(b) A person twenty-one (21) years of age or older commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon a child less than sixteen (16) years of age[.]

A trial court has broad discretion in its determination of whether a child is neglected or abused. Dep't for Human Res. v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977). "The adjudication shall determine the truth or falsity of the allegations in the complaint. The burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 620.100(3). In the context of an abuse and neglect proceeding, preponderance of the evidence means that it is more likely than not that the parent neglected and/or abused the children. Ashley v Ashley, 520 S.W.3d 400, 404 (Ky. App. 2017).

In the matter before us, ample evidence was adduced that Appellant neglected and abused the children. The evidence supported a finding that Appellant inflicts or allows to be inflicted upon the children physical or emotional injury as defined in this section by other than accidental means (KRS 600.020(1)(a)1.); that she creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means (KRS 600.020(1)(a)2.); that she engages in a pattern of conduct that renders her incapable of caring for the immediate and ongoing needs of the children, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005 (KRS 600.020(1)(a)3.); that she continuously or repeatedly fails or refuses to provide essential parental care and protection for the children, considering their age (KRS 600.020(1)(a)4.); and, that she does not provide the children with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for their well-being (KRS 600.020(1)(a)8.). The General Assembly determined that only one of the enumerated factors must be demonstrated to prove abuse and neglect. KRS 600.020(1). The family court found that five of the factors were proven. The record supports this finding.

Lastly, Appellant argues that the family court improperly failed to utilize less restrictive alternatives to removal. She directs our attention to KRS 600.010(2)(c), which requires the court to show that other less restrictive alternatives have been attempted or are not feasible, and argues that the court's failure to consider less restrictive alternatives requires reversal.

The Union Circuit Court, Family Court Division expressly found in each child's adjudication order that reasonable efforts were made to prevent the children's removal from the home. Further, the record amply demonstrates that given the severity and ongoing nature of the abuse and neglect, alternatives to removal were not feasible. We find no error on this issue.

Form AOC-DNA-4 Findings of Fact #7 at p. 3.

CONCLUSION

The Union Circuit Court, Family Court Division's findings of facts are supported by substantial evidence and therefore are not clearly erroneous. R.S., supra. The facts support the court's legal conclusions, and the court did not abuse its discretion. Id. Accordingly, we find no error and affirm the adjudication and disposition orders of the Union Circuit Court, Family Court Division.

ALL CONCUR.


Summaries of

S.B. v. Commonwealth

Court of Appeals of Kentucky
Apr 22, 2022
No. 2021-CA-0827-ME (Ky. Ct. App. Apr. 22, 2022)
Case details for

S.B. v. Commonwealth

Case Details

Full title:S.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY…

Court:Court of Appeals of Kentucky

Date published: Apr 22, 2022

Citations

No. 2021-CA-0827-ME (Ky. Ct. App. Apr. 22, 2022)