Opinion
2021-CA-1455-ME 2021-CA-1456-ME 2021-CA-1457-ME
05-20-2022
S.E. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND A.G.W., AN INFANT APPELLEES and S.E. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND M.N.W., AN INFANT APPELLEES and S.E. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND B.A.W., AN INFANT APPELLEES
Brief for Appellant: Stacy Coontz Danville, Kentucky Brief for Appellee Cabinet for Health and Family Services: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYLE CIRCUIT COURT HONORABLE DOUGLAS BRUCE PETRIE, JUDGE ACTION NO. 21-AD-00014, 21-AD-00015, 21-AD-00016
Brief for Appellant: Stacy Coontz Danville, Kentucky
Brief for Appellee Cabinet for Health and Family Services: Dilissa G. Milburn Mayfield, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND K. THOMPSON, JUDGES.
OPINION
CLAYTON, CHIEF JUDGE
S.E. ("Mother") appeals from the Boyle Circuit Court's orders terminating her parental rights to her three children. After reviewing the record and applicable law, we affirm the circuit court's orders terminating Mother's parental rights. Further, we grant counsel's motion to withdraw from the representation of Mother.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is the biological mother of K.F.W., born on December 07, 2011 ("Child 1"); A.G.W., born on July 7, 2014 ("Child 2"); M.N.W., born on November 28, 2015 ("Child 3"); and B.A.W., born on November 10, 2017 ("Child 4") (collectively, the "Children"). R.D.W. ("Father") is the Children's biological father but is not appealing the termination of his parental rights in this action.
The Cabinet for Health and Family Services (the "Cabinet") filed a petition to terminate Mother's parental rights on May 21, 2021. The circuit court held a hearing on September 17, 2021. Mother failed to appear after being properly notified of the action, but her attorney was present and participated in the hearing.
Mother has a significant history with the Cabinet. In 2015, Mother and Father were involved in several domestic violence disputes the Children witnessed. In August 2016, the Cabinet removed the Children from Mother's care after receiving a report of her intoxication while driving with and caring for the Children. Mother stipulated to neglecting the Children in February 2017. In January 2018, the circuit court granted permanent custody of the Children to Mother's cousin due to Mother's failure to make any progress on her case plan with the Cabinet. Moreover, Child 4 was born with drugs in her system. The circuit court ordered that Mother could not have unsupervised visitation with the Children.
In July 2018, the Cabinet filed petitions alleging that the Children were at risk of dependency. The maternal cousin had developed cancer and could no longer care for the Children, and Mother was not ready for reunification. As a result, the court placed the Children in the Cabinet's emergency custody. Still, ultimately Mother was able to comply with the Cabinet's requirements to such an extent that the court returned the Children to Mother's custody in December 2018.
The Cabinet received a citation from law enforcement on April 28, 2020, detailing that two officers had smelled marijuana from Mother's vehicle and had requested consent to search the vehicle. Inside the vehicle, they found marijuana and methamphetamine. Two of the Children were in Mother's car at the time. The police ultimately arrested Mother for possession of a controlled substance in the first degree.
The Cabinet filed a petition on May 27, 2020. The circuit court entered a temporary custody order on June 8, 2020, jointly placing the Children in the custody of the paternal and maternal grandparents. The order stated that Mother's contact with the Children was to be supervised.
On August 18, 2020, Mother and her boyfriend picked up the Children from the maternal grandparents' home and left the property. Mother and her boyfriend took the Children through two (2) drive-through liquor stores, where they obtained alcohol and consumed it in the Children's presence. Mother and her boyfriend became increasingly intoxicated while driving the vehicle with the Children and wrecked the vehicle.
Child 1, who was only eight (8) years of age, was killed on impact from blunt trauma to the neck and chest. Child 4 - who was only two (2) years of age at that time - was not restrained at the time of the car wreck. Mother was ejected from the vehicle and sustained facial lacerations. Mother's boyfriend fled the scene but was eventually located and treated for facial and spinal injuries. Child 2, Child 3, and Child 4 were all transported to the hospital for minor injuries and discharged the following morning. When law enforcement notified Mother of Child 1's death, Mother reportedly stated, "Ugh, I don't even want to talk about that. How is [boyfriend]? Please find him and make sure that he is ok."
Law enforcement spoke with the Children at the collision scene, who reported that the boyfriend was driving and that he and Mother were using drugs and alcohol. Additionally, Child 2 stated that she had tried to pull Child 1 from the vehicle to help her.
The Boyle Circuit Court granted the Cabinet emergency custody of the Children on August 20, 2020, and the Cabinet placed the Children in foster care. Mother stipulated to neglecting the Children at an adjudication hearing on November 16, 2020.
Although Mother began grief counseling at the end of December 2020, Mother ultimately discontinued her appointments, and the therapist was unsuccessful in contacting Mother. Moreover, Megan Couch, a Cabinet caseworker, testified at the parental termination hearing that Mother had a positive drug screen for amphetamines in January 2021 and had failed to attend continued drug testing screenings since February 2021. Moreover, since approximately March 2021, Couch had attempted to contact Mother through phone calls, texts, and home visits but had received no response. Finally, Couch testified that the Cabinet changed its goals for the Children to adoption on April 18, 2021.
The circuit court ultimately entered findings of fact, conclusions of law, and judgments terminating Mother's parental rights to the children on October 11, 2021. These appeals followed.
ANALYSIS
a. Anders and A.C.
In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), a panel of this Court adopted the principles and procedures laid out in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in the criminal setting to appeals from orders terminating parental rights, concluding that "an indigent parent defending a termination of parental rights action enjoys a statutory right to counsel during the appeal[.]" 362 S.W.3d at 367. However, as in Anders, "that right to counsel 'does not include the right [of an indigent parent] to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.'" Id. (quoting Smith v. Robbins, 528 U.S. 259, 278, 120 S.Ct. 746, 760, 145 L.Ed.2d 756 (2000)).
Consequently, under Kentucky law, it is necessary to utilize Anders- type briefs and procedures in termination of parental rights cases wherein appointed counsel does not believe there are any non-frivolous claims to appeal. Therefore, upon a good faith review of the record:
if counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished [to] the indigent and time allowed him to raise any points that he chooses; the court - not counsel - then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
As previously discussed, in this case, Mother's counsel submitted an Anders brief in compliance with A.C. and Anders. Thus, A.C. obligates us to independently review the record and establish whether this appeal is, in fact, frivolous. A.C., 362 S.W.3d at 371.
b. Standard of Review
An appellate court will only reverse a circuit court's decision to terminate a parent's rights if such decision is clearly erroneous, meaning there is no substantial, clear, and convincing evidence to support the decision. Kentucky Rules of Civil Procedure ("CR") 52.01; Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Therefore, the circuit court's findings will not be disturbed unless no substantial evidence exists in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
c. Discussion
The grounds for the involuntary termination of parental rights are outlined in Kentucky Revised Statutes ("KRS") 625.090, which provides that a circuit court may involuntarily terminate a parent's rights only if that court finds, by clear and convincing evidence, that a child is abused or neglected as defined in KRS 600.020(1), that termination is in the child's best interests, and the existence of one or more of eleven specific grounds set out in KRS 625.090(2). KRS 625.090(1)(a)-(b), (2); M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007). Further, KRS 625.090(3) lays out factors for the circuit court to consider in determining the child's best interests and the existence of grounds for termination.
In this case, the circuit court complied with all relevant statutory mandates to terminate Mother's parental rights to the Children. First, the record reflects that Mother stipulated to neglecting the Children on November 16, 2020. Moreover, the circuit court made an independent finding of neglect under KRS 625.090(1)(a)1. and (1)(a)2.
We find overwhelming support in the record for the court's findings in this regard. Mother clearly inflicted or allowed to be inflicted upon the Children physical or emotional injury as defined in KRS 600.020(49) by other than accidental means; or Mother created or allowed to be created a risk of physical or emotional injury upon the Children as defined in KRS 600.020(49). As evidenced by her actions surrounding the fatal car wreck resulting in the death of Child 1 and the injury of her other children, we find more than sufficient evidence for the circuit court's finding that "Mother not only placed the [Children] in grave danger by her own choices but afterwards was so depraved that she showed no remorse or concern for the fatality or condition [of the Children] that day, showing concern only for the condition of her boyfriend."
Next, the circuit court correctly found that multiple grounds of KRS 625.090(2) had been met in this case. The statute only requires the existence of one of the grounds to be proven by clear and convincing evidence. The Cabinet presented clear and convincing evidence to support the circuit court's conclusion under KRS 625.090(2)(e) that Mother, "for a period of not less than six (6) months," had "continuously or repeatedly failed or refused to provide or ha[d] been substantially incapable of providing" the Children with "essential parental care and protection" and that there was "no reasonable expectation of improvement" in Mother's care and protection, considering the Children's ages. Likewise, the Cabinet presented clear and convincing evidence to support the circuit court's conclusion under KRS 625.090(2)(g) that Mother, "for reasons other than poverty alone," had "continuously or repeatedly failed to provide or [wa]s incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available" for the Children's well-being and that there was "no reasonable expectation of significant improvement in Mother's conduct in the immediately foreseeable future," considering the Children's ages.
The circuit court supported its conclusions with findings that Mother had not meaningfully participated in the Cabinet's case plans and that there was no reasonable expectation of improvement in parental care and protection considering the Children's ages. Moreover, the record reflected that Mother had failed to: maintain consistent contact with the Cabinet, consistently attend court dates after the disposition, or consistently call in for random drug screens following the death of Child 1. As a result, the Children had remained in foster care since August 2020. Moreover, Mother failed to attend the termination of parental rights hearing.
Thus, Mother failed to remedy any of the concerns that caused the removal of her children and failed to put herself in a position to provide parental care and protection or the necessities of life for a period of more than six (6) months. Moreover, there was no evidence that Mother could achieve stability to care for the children suitably in the foreseeable future. Accordingly, the circuit court appropriately determined no reasonable expectation of significant improvement in Mother's conduct. We affirm the circuit court's findings under KRS 625.090(2).
Finally, we agree that the circuit court adequately considered each of the best interest factors and correctly found that the Cabinet proved by clear and convincing evidence that it is in the Children's best interest to terminate Mother's parental rights. When reviewing a circuit court's determination of the best interest prong of the parental termination test, we review for an abuse of discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). "Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court's determination on the issue will not be an abuse of discretion and will be sustained." D.J.D. v. Cabinet for Health and Family Services, 350 S.W.3d 833, 837 (Ky. App. 2011).
The record also supported the court's findings in this regard, including the evidence that acts of neglect had occurred against the children under KRS 625.090(3)(b). Moreover, the circuit court considered that the Cabinet had made reasonable efforts to reunite the children with Mother. See KRS 625.090(3)(c). Couch testified that the Cabinet offered Mother substance abuse and mental health assessments, drug screens, case planning, ongoing communication with the caseworker, supervised visitation with the children, and had referred Mother to grief counseling. We find the foregoing to be more than sufficient to conclude that the Cabinet made reasonable efforts in this case. See C.A.W. v. Cabinet for Health & Family Services, Commonwealth, 391 S.W.3d 400, 405 (Ky. App. 2013).
A circuit court must also consider "[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[.]" KRS 625.090(3)(d). In this case, Couch's testimony regarding Mother's insufficient case plan progress indicated that the circuit court appropriately determined that termination was in the Children's best interest. As stated in C.A.W., "[w]hile [Mother] [may] have taken some positive steps, the record indicates that they are just the first steps on the long road toward reunification and were not sufficient adjustments to [her] circumstances to warrant reunification with [her] children[.]" 391 S.W.3d at 405-06.
Finally, the record reflects that the Children were doing well in their current foster placement, had improved while in foster care, and were expected to continue improving if the circuit court ordered the termination of Mother's parental rights. See KRS 625.090(3)(e). Therefore, the circuit court correctly concluded that it was in the Children's best interest to terminate Mother's parental rights.
CONCLUSION
Having reviewed the record in detail pursuant to Anders and A.C., we agree with counsel's belief that the evidence shows that Mother does not have grounds warranting relief and find that the evidence is more than sufficient to support the circuit court's findings of fact, conclusions of law, and judgment. Accordingly, we do not believe the circuit court's decision to grant termination of Mother's parental rights to the Children was in error.
For the foregoing reasons, we affirm the order of the Boyle Circuit Court. Furthermore, we grant the motion of Stacy Coontz to withdraw as counsel for Mother.
ALL CONCUR.