Opinion
NO. 2013-CA-000827-ME NO. 2013-CA-000828-ME
02-07-2014
S.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND L.W.M., AN INFANT APPELLEES AND S.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND F .M., AN INFANT APPELLEES
BRIEF FOR APPELLANT: Joseph T. Ireland Covington, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Kelly Sensel Wiley Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 12-AD-00078
APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 12-AD-00079
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE: S.C. (mother) appeals the termination of her parental rights to L.W.M. and F.M. (the children).
In 2006, mother and L.W.M., Sr. (father) lived in Texas with their children. In June 2006, mother left father and left the children with father. For the next two years she only saw the children on one occasion.
Father is not appealing the termination of his parental rights. Therefore, we will only recount history relevant to his behavior as necessary to set the context for mother's termination.
In 2008, mother was awarded custody of the children after Texas child welfare authorities removed them from father's care. She took custody of the children in Kentucky.
In 2011, the Cabinet for Health and Family Services received reports the children were hit by mother's paramour, S.B., with a belt, shoe and coat hanger. L.W.M. reported being "belted" and had a visible bruise to his stomach in the shape of a belt buckle. Other children in the home confirmed S.B. physically abused them each week. On September 19, 2011, the children were removed from the home through an Emergency Custody Order. The social worker attempted to persuade mother to separate from S.B. for the protection of the children. Mother refused.
At a contested hearing held on October 27, 2011, the children recounted S.B. hitting them with a belt, flyswatter and paddle. The court found L.W.M. to be an abused child and F.M. to be a neglected child.
Mother was ordered to cooperate with the Cabinet, complete a psychological evaluation based on the UK Tap recommendations and submit to random drug screens as well as pay child support. Cabinet personnel met with mother and developed a plan that called for counseling, parenting classes, a UK Tap Assessment and supervised visitation. Mother refused to sign off on the plan. Mother began but did not complete the UK Tap Assessment. She advised the social worker she did not believe she needed counseling. Mother did engage in visitation.
In August 2012, mother announced she was moving to Texas, had a last visit with the children and has not seen them since. As of the date of the termination hearing, she was employed and living in an apartment, had begun to pay child support, but failed to complete a psychological evaluation or attend counseling.
At the termination hearing held on February 21, 2013, the family court heard testimony from mother, father and social worker Dan Trentman. Mother stated she moved away from father and the children in June 2006 because father hit her. Father denied hitting mother and claimed she moved out following an argument. Mother testified father had a conviction for abusing another child, but denied she should not have left the children in his care, claiming he never hit the children.
Mother stated she would have kept in contact with the children during this time, but did not know where father was living. Father recounted begging mother to see the children, arranging a Christmas visit, keeping her informed as to their location and never receiving any money from her towards their support.
Mother testified she had completed her Texas case plan before she was granted custody of her children in 2008.
Mother testified she did not believe S.B. was abusive to the children and never allowed anyone to harm her children. She believed the mark on L.W.M.'s stomach was not caused by a beating with a belt, but by another child punching him in the stomach.
Mother testified she was unable to find employment in Kentucky because she did not have a high school diploma and had not completed the GED. She moved to Texas in order to obtain employment. At first she lived with her sister, but after she began working at Wal-Mart, rented a two bedroom apartment that was appropriate for the children and was living there by herself. She testified that after she began working, a portion of her check was deducted for child support.
She testified before she moved to Texas that she told the Cabinet about her plans and was told she could continue to work her case plan in Texas. However, after moving to Texas, she was unable to access free services to complete her case plan from the Texas Cabinet and unable to access services in Kentucky because she was no longer a resident. Therefore, she argued she should be excused for failing to complete a psychological evaluation and counseling because she could not afford them. She also claimed to have completed a portion of her psychological evaluation with Dr. Ryan in Texas shortly before the date of the termination hearing, but was unable to complete the entire evaluation because Dr. Ryan had an appointment to attend that day.
Trentman testified L.M.W.'s injury was discovered at school when a teacher was changing his clothes because they smelled strongly of urine. The mark, which was documented with pictures, matched the shape of a belt buckle and L.M.W. stated S.B. beat him with a belt.
Trentman testified mother refused to sign the reunification plan and refused counseling, stating she did not need it. While mother did engage in visitation while in Kentucky, she was driven to her last visitation by S.B. After mother moved to Texas she did not return to visit her children.
Trentman also testified the children were doing well in foster care and no longer afraid. While L.W.M. was temporarily separated from F.M. for aggressive behavior, L.W.M.'s behavior improved and, after two months, the children were reunited. An IEP plan was developed to address L.W.M.'s special needs in school. The children were both doing well in their current foster home.
On March 27, 2013, the family court terminated mother's parental rights to the children after finding they were abused or neglected children, termination was in their best interests and they should be placed with the Cabinet:
[T]his Court finds by clear and convincing evidence that these are abused or neglected children, per K.R.S. 600.020(1)(a)(b)(g)(h) in that the mother allowed a physical injury to be inflected upon [L.W.M.], by other than accidental means; created a risk of physical injury to [the children] by other than accidental means by continuing her relationship with [S.B.] and allowing him to live in the same household with her children; continually failing or refused to provide essential parental care and protection for the children; abandoning the children by leaving in August of 2012, and having no contact with them thereafter; has not provided the children with adequate care, supervision, food, clothing, shelter, education or medical care necessary for their well being and failed to make sufficient progress towards goals that are set forth in a Court approved case plan to allow for the safe return of the children.The court explained termination and placement with the Cabinet was in the children's best interests because the children's physical and emotional needs were met while in the custody of the Cabinet. F.M. thrived in foster care. L.W.M. had improved behavior and was having his educational needs met. Additionally, both children no longer live in daily fear of being disciplined in a harsh and cruel manner.
Mother appealed. However, her attorney was unable to find any meritorious issue to address on appeal. Consequentially, he followed the process established in Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), and adopted by our Court as applicable in termination cases in A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361, 367-372 (Ky.App. 2012), by asking to be dismissed from representing mother, sending mother a copy of his brief, requesting mother to be allowed to raise any points she chose in her appeal and requesting independent review of the record by this Court. By order, mother was given twenty days to file a supplemental pleading. Mother has not filed any pleadings.
Having fully reviewed the record, we determine the family court properly made factual findings that supported its determination by clear and convincing evidence the children were abused or neglected and termination was in their best interests. The court was entitled to believe the children were abused and neglected as a result of S.B.'s physical abuse and termination was appropriate because mother permitted this abuse and risk of abuse and abandoned them by moving away and not maintaining visitation. While mother may have presented evidence the Cabinet's reunification efforts were lacking once she moved to Texas, mother failed to comply with the court's orders while in Kentucky and made the choice to move to Texas and not return. Termination was justified on a number of grounds based upon the evidence presented before the court.
Accordingly, we affirm the Kenton Family Court's termination of mother's parental rights to L.W.M. and F.M.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph T. Ireland
Covington, Kentucky
BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES:
Kelly Sensel Wiley
Covington, Kentucky