Opinion
2021-CA-0412-ME 2021-CA-0415-ME 2021-CA-0416-ME
04-08-2022
S.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND J.J., A MINOR CHILD APPELLEES AND S.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; AND T.J.L.J., A MINOR CHILD APPELLEES AND S.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND T.J., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Nancy Barnes BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE DEANNA WISE HENSCHEL, JUDGE ACTION NO. 20-AD-00076
BRIEF FOR APPELLANT: Nancy Barnes
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
OPINION AFFIRMING
ACREE, JUDGE:
S.J. (Mother) appeals the McCracken Circuit Court's March 29, 2021 findings of facts, conclusions of law, and judgment terminating parental rights. Finding no error, we affirm.
On May 5, 2017, the Cabinet for Heath and Family Services (the Cabinet) responded to a report that five children were alone in a hotel room. Three of the five children were Mother's children: J.J., T.J., and T.J.L.J. The Cabinet reached out to Mother about retrieving her children and learned she was in Missouri. Mother explained she could not leave Missouri because it would violate the conditions of her probation after convictions there, mostly "for relatively minor property crimes . . . ." S.J. v. Cabinet for Health and Family Services, 604 S.W.3d 294, 299 (Ky. App. 2020). The family court awarded emergency custody of Mother's children to the Cabinet. Mother testified that, upon learning of the emergency custody petition, she drove to Kentucky, but law enforcement pulled her over and arrested her. She remained incarcerated until March 25, 2020.
On February 15, 2019, the Cabinet initiated termination of parental rights (TPR) actions and, after a hearing, the family court entered orders terminating Mother's parental rights to her three children. This Court reversed because the circuit court failed to consider whether Mother could work towards reunification after law enforcement released her from their custody. Id. at 300.
Once again in family court, and after Mother's release from state custody, the Cabinet contacted her and established a case plan on April 7, 2020. Mother's plan included a mental health assessment, a substance abuse assessment, a parenting assessment, parenting classes, abstain from illegal drugs and further criminal activities, obtain stable housing and employment, and demonstrate positive life changes. Mother remained in Missouri and the children remained in the Cabinet's custody in Kentucky. Mother made little to no progress on her case plan. After the children were in its custody for 46 months, the Cabinet initiated new TPR actions.
Mother stated her belief she needed only to obtain housing and employment to regain custody of her children. Thus, Mother claimed to have worked four different jobs since being released from custody and moved from Columbia, Missouri, to Jefferson City, Missouri, where, according to her testimony, she currently resides with a gentleman from her church.
Mother's case manager testified to the contrary, stating Mother failed to provide the Cabinet with any proof of employment or housing. Instead, the Cabinet presented evidence Mother failed to pay court ordered child support, failed to contact the appropriate Missouri agency about regaining custody of her children, and failed to complete most of her case plan's requirements. The Cabinet had difficulty establishing and maintaining contact with Mother. As for Mother's obligation to remain drug free, she testified herself that she was unsure if she would test positive for marijuana if she took a drug screen the day of trial.
Based on this evidence, the McCracken Circuit Court entered an order terminating Mother's parental rights. This appeal follows.
In making this appeal, Mother's court appointed counsel filed an Anders brief in which Mother's counsel states there is no meritorious claim Mother may make on appeal. A.C. v. Cabinet for Health & Fam. Servs., 362 S.W.3d 361 (Ky. App. 2012); see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pursuant to A.C., this Court must conduct an independent review of the record to determine whether we agree with Mother's counsel's conclusion there are no nonfrivolous grounds for reversing the family court. Id. We do agree. We find no error by the family court.
In reviewing a circuit court's TPR order, we note the trial court has broad discretion. M.P.S. v. Cabinet for Hum. Res., 979 S.W.2d 114, 116 (Ky. App. 1998). "Because termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them . . . ." D.G.R. v. Cabinet for Health & Fam. Servs., 364 S.W.3d 106, 113 (Ky. 2012). The standard of review in a termination case is confined to the clearly erroneous standard in CR 52.01, based upon clear and convincing evidence. M.P.S., 979 S.W.2d at 116; V.S. v. Cabinet for Hum. Res., 706 S.W.2d 420, 423 (Ky. App. 1986). "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, 70 S.W.2d 5, 9 (Ky. 1934). "Under this standard, an appellate court is obligated to give a great deal of deference to the trial court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." D.G.R., 364 S.W.3d at 113.
Kentucky Rules of Civil Procedure.
Ultimately, KRS 625.090 governs when circuit courts may involuntarily terminate parental rights. To terminate parental rights, a circuit court must determine each of the following: (1) whether the child is an abused or neglected child, KRS 625.090(1)(a), as defined by KRS 600.020(1); (2) whether termination of parental rights is in the best interest of the child, KRS 625.090(1)(c); and whether (3) one of the grounds enumerated in KRS 625.090(2)(a)-(k) exists.
Kentucky Revised Statutes.
Based on this Court's review of the record, the court relied on sufficient evidence to justify its conclusion the children were neglected or abused, as measured by KRS 600.020(1)(a)9., which says:
"Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when: (a) His or her parent . . . 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[.]
During the forty-six (46) months the children were in the Cabinet's custody, Mother fell far short of the necessary progress with her case plan to continue pursuing a permanency goal of reunification. Thus, the circuit court properly adjudged the children abused or neglected.
A family court must assess whether termination of parental rights is in a child's best interest by applying six factors codified in KRS 625.090(3)(a)-(f). In this case, the evidence regarding each of the factors relevant here weighs in favor of a finding that termination of Mother's parental rights is in her children's best interests. There is no evidence to contradict proof that Mother engaged in "[a]cts of abuse or neglect as defined in KRS 600.020(1) toward" all three children. KRS 625.090(3)(b). There is no evidence to contradict proof that the Cabinet "made reasonable efforts as defined in KRS 620.020 to reunite the child with" Mother. KRS 625.090(3)(c).
When it comes to Mother's "efforts and adjustments [to her] circumstances, conduct, or conditions to make it in the child[ren]'s best interest" not to terminate parental rights, KRS 625.090(3)(d), we quote the family court's order: "She has not completed one single thing on her case plan. She hasn't even attempted to complete an item on her case plan" and provided no evidence "that demonstrates any change she has made to work towards reunification."
KRS 625.090(3)(e) requires assessment of "[t]he physical, emotional, and mental health of the child[ren] and the prospects for the improvement of the child[ren]'s welfare if termination is ordered . . . ." T.J. was one year old when placed in foster care and "struggl[ing] significantly" at the time, but now "is thriving in this [foster] home . . . ." When T.J.L.J. entered foster care, he "struggled from fear, aggression, nightmares, and food insecurity. . . . He has been in therapy for four years [and is] now at a point where [he] is excelling educationally, mentally, and emotionally." J.J., too, struggled with food insecurity and, in Mother's absence, bore the burden of caring for his siblings "as a parent would." In foster care, his insecurities and burdens have been eased.
Mother did not refute the evidence that she "has never paid child support for or contributed toward [the children's] care and maintenance" as expected by KRS 625.090(3)(f). Given the evidence regarding these factors, there is no reason to contradict the family court's conclusion that termination of Mother's parental rights is in the best interests of her children.
Finally, KRS 625.090 requires the family court to find sufficient evidence to conclude one or more of the grounds enumerated in KRS 625.090(2) existed. The circuit court concluded grounds enumerated in KRS 625.090(2)(a), (e), and (j). We need only agree as to any one of the findings under those factors to affirm the TPR order. We focus attention on KRS 625.090(2)(j), which requires "[t]hat the 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 . . . ." The record supports this finding.
For the aforementioned reasons, we affirm the McCracken Family Court's March 29, 2021 findings of facts, conclusions of law, and judgment terminating parental rights.
ALL CONCUR.