Opinion
2022-CA-1050-ME
04-28-2023
T.A.A. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, AS NEXT FRIEND OF S.A.J.-A., A CHILD; AND S.A.J.-A. APPELLEES
BRIEF FOR APPELLANT: Steven B. Hargrove Hopkinsville, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN FAMILY COURT HONORABLE JASON S. FLEMING, JUDGE ACTION NO. 21-AD-00011
BRIEF FOR APPELLANT: Steven B. Hargrove Hopkinsville, Kentucky
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: CETRULO, JONES, AND TAYLOR, JUDGES.
OPINION
CETRULO, JUDGE:
Appellant T.A.A. ("Mother"), the biological mother of S.A.J.-A. ("Child"), appeals the order of the Christian Family Court terminating her parental rights.
FACTUAL AND PROCEDURAL HISTORY
Appellee Commonwealth of Kentucky, Cabinet for Health and Family Services ("Cabinet") initiated two dependency, neglect, or abuse ("DNA") actions involving Mother and Child. The Cabinet filed the first DNA petition in August 2017, after Mother was arrested for possession of synthetic drugs, giving an officer false information, and endangering the welfare of a minor. At that time, the Cabinet filed a petition for temporary custody, which the family court granted. The Cabinet has since retained custody. In November 2017, the family court adjudicated that DNA petition, and Mother entered an Alford plea to neglect.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea allows for "conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004) (citation omitted). However, "[t]he entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty." Id. at 102 (internal quotation marks and citation omitted).
Mother then enrolled in substance abuse treatment upon her release from incarceration and participated in case plan services. Thereafter, in July 2019, the Cabinet negotiated a plan to transition Child back into Mother's care. The family court adopted the Cabinet's transition plan, which included a provision that Child would remain in the Cabinet's custody until Mother completed family reunification services during Child's trial home visit. Child moved back in with Mother for a couple of months; however, the trial run was unsuccessful.
Two or so months into the trial home visit, Mother was arrested for alcohol intoxication and disorderly conduct. The Cabinet then filed the second DNA petition in October 2019, and the family court again granted temporary removal of the Child from Mother's home. In December 2019, the family court found Mother had neglected Child. The next month, the Cabinet changed the permanency goal to a concurrent plan of reunification and termination of parental rights/adoption. While Mother was incarcerated, she wrote letters to Child, had occasional phone calls with Child, and attempted family therapy, as discussed in more detail below.
Then, in March 2021, the Cabinet filed a petition to terminate Mother's parental rights, citing little progress on her case plan and the extended period of time Child had been without permanency. The family court held a trial on the termination petition in July 2022 via zoom. Mother, Child, and Kayleigh Graves, the Cabinet supervisor ("Supervisor Graves") testified. Supervisor Graves testified that while she served as supervisor of the case at the time of the hearing, she had previously served as the social worker for the case from October 2019 to September 2021. She explained that the Cabinet had attempted to work with Mother on a case plan and that Mother had most recently been incarcerated for at least a year, but had been in and out of jail since at least 2017. Supervisor Graves further testified that Mother did not consistently maintain contact with the Cabinet during the spans of time she was not incarcerated. At least once, Supervisor Graves was not able to find Mother after a release from jail until she had been arrested again.
The current social worker also testified; however, she had been assigned to the case for only two months at the time of the hearing and testified only that she had sent two emails to Mother's correctional facility but had yet to make contact.
Supervisor Graves testified that once she found Mother, they updated her case plan. Mother's case plan included that she would not use any illegal substances, pills, or medications that were not prescribed to her; she would follow all court orders; she would not consume alcohol and would submit to random drug and alcohol screens at the request of the Cabinet; she would complete parenting classes; have a substance abuse assessment and follow all recommendations; complete a mental health assessment and follow all recommendations; find and maintain stable housing that had working utilities; find and maintain employment for at least six months; participate in individual therapy and follow all recommendations; cooperate with the Cabinet and its partners; and cooperate with her probation and parole officers.
Additionally, as part of the family case plan, Mother was to participate in family therapy. Supervisor Graves testified that the family therapist reported that Mother would call and cancel appointments and hang up in the middle of sessions, then fail to answer follow-up calls. The therapist then recommended termination of the family sessions.
Supervisor Graves emphasized that Mother had been in and out of incarceration throughout the course of the case, and she had not completed any tasks on her case plan until her most recent incarceration. Although Mother had been released from incarceration for periods of time, she never secured stable housing or employment. During her most recent incarceration, however, she did complete a parenting class and reported that she had enrolled in substance abuse classes. Supervisor Graves explained that Child was doing well in her foster placement and that the foster family was open to adoption. There were no concerns.
At the hearing, Mother, who was incarcerated, testified that she had been working her case plan and was up for parole in February 2023, to potentially be released in April 2023. At that point, she hoped she could reunite with Child. However, Mother did acknowledge that she had not seen Child since the end of 2019 and although she attempted to call and write Child, she never received a response. Mother further acknowledged that during the family therapy sessions, Child told her she did not want to speak with her. Mother recalled, however, that "before this" they had a "really great" relationship and Mother believed they could have that again. She stated that she did not want to give up hope or stop trying.
Finally, Child addressed the family court. She testified that things had been good with her foster parents and that she wanted to continue to live with them. Child confirmed that she still did not want to see or speak with Mother. Child explained, through tears, that Mother was "never around" when she lived with her, and Child blamed herself for the neglect. Child testified that Mother had told her she was the reason Mother started doing drugs, and she did not want to be the reason that Mother "does stuff like that." Child expressed that she did not think she should have to go through that. Further, Child recalled that in one instance, she watched Mother, who was under the influence, as she tried to stab her other daughter. Relieved, Child noted that someone was there to stop Mother, but if they had not been, Child believed her sister would be dead.
In closing, Child's guardian ad litem noted that Child had been in the Cabinet's custody for five years and Mother's presence - although irregular -created more instability and chaos due to the relapses and violence. He agreed with the Cabinet that it was in Child's best interest for Mother's parental rights to be terminated.
The day after the hearing, the family court incorporated its findings of fact and conclusions of law in a calendar order. The order found that although Mother clearly loves Child, she had continually relapsed and been arrested numerous times. The family court noted that there had been two DNA actions and it had found Mother to have neglected Child in both. The family court specifically noted that its decision was "not based on [M]other's incarceration alone. [Mother] has shown a pattern of not being able to complete her plan and this has been a long ongoing process and there is no reasonable expectation of improvement[.]" Specifically, the family court noted that Mother had never completed anything on her task plan when she was not incarcerated.
The family court further noted that while Mother's earliest release could be April 2023, Child would be 14 years old by then and would have spent five years out of Mother's care. Further, Mother still had not successfully completed family therapy with Child. The family court acknowledged that the last time Mother was released from incarceration, she absconded treatment for a year before being rearrested and that she went 90 days without contacting Child. The family court observed that the Cabinet had provided reasonable efforts. Finally, the family court stated that it was in Child's best interests to terminate Mother's parental rights.
The family court then issued a final judgment terminating Mother's parental rights in August 2022. In the August 2022 order, the family court explained that after reviewing the recommendation of the guardian ad litem, the report of the warning order attorney, and the evidence presented, it found by clear and convincing evidence that Child was an abused and neglected child under Kentucky Revised Statute ("KRS") 600.020. The family court found that Mother had, for a period of not less than six months, continuously failed to provide or had been substantially incapable of providing essential parental care and protection, with no reasonable expectation of improvement.
The order refers to both of Child's parents; however, Mother is the only parent appealing the order so we will focus on the order as it pertains to her.
The order further stated that Mother, for reasons other than poverty alone, had continuously failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being, with no reasonable expectation of significant improvement in the foreseeable future. Finally, the order noted that Child had been in foster care for 15 of the last 48 months and that termination was in the Child's best interest. Therefore, the family court concluded that the parental rights of "the Respondent parents of [Child], are hereby terminated[.]"
Mother appealed. Her attorney, finding the appeal to be meritless and "frivolous" under the Kentucky Rules of Appellate Procedure ("RAP") 11, filed a brief pursuant to A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012) ("Anders brief") and moved to withdraw as Mother's counsel. This Court granted counsel's motion, and counsel informed Mother of her right to submit an additional brief, pro se. Mother declined to do so. By separate order, this Court granted counsel's motion to withdraw.
In pertinent part, Kentucky Rule of Civil Procedure ("CR") 11 states that an attorney shall file a document only if "to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law . . . and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." If an attorney violates CR 11, he or she could be sanctioned.
Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), "established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel." Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). This Court extended Anders to involuntary parental rights termination proceedings in A.C., 362 S.W.3d at 370.
STANDARD OF REVIEW
When counsel files an Anders brief, pursuant to A.C., this Court independently reviews the record to ensure "the appeal is, in fact, void of nonfrivolous grounds for reversal." C.J. v. M.S., 572 S.W.3d 492, 494 (Ky. App. 2019) (citing A.C., 362 S.W.3d at 372).
Additionally, for involuntary termination of parental rights cases, this Court reviews the trial court's determinations using the "clearly erroneous" standard. C.J.M. v. Cabinet for Health and Family Servs., 389 S.W.3d 155, 160 (Ky. App. 2012). "Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (citation omitted); see also CR 52.01. Substantial evidence is evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Blankenship v. Lloyd Blankenship Coal Co., Inc., 463 S.W.2d 62, 64 (Ky. 1970) (internal quotation marks and citation omitted).
ARGUMENT
Mother's counsel was unable to assert that there were meritorious issues of error for this Court to address. We agree. This Court has instructed that to make such determination, counsel must review, at a minimum, the family court's "(1) neglect and/or abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best-interests determination." A.C., 362 S.W.3d at 371. Further, the Anders brief must refer to "anything in the record that might arguably support the appeal." Id. (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400). Mother's counsel complied with his obligation, but we conclude that the only arguable issues here lack merit.
First, no objections were made during the proceedings below. In general, "[a]n issue cannot be raised for the first time on appeal; the trial court must be given an opportunity to rule on a claim before it can be addressed by an appellate court." Brooks v. Byrd, 487 S.W.3d 913, 919 (Ky. App. 2016). Upon our review of the record, there is only one potential issue before this Court; namely, whether the family court properly terminated Mother's parental rights. As required under A.C., we have reviewed the family court's (1) neglect and abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best interest determination, and agree with Mother's counsel that there is no basis for relief on appeal.
As noted, KRS 625.090 governs involuntary termination of parental rights and provides that a family court "may involuntarily terminate parental rights if it finds, by clear and convincing evidence, that the child is an abused or neglected child as defined in KRS 600.020(1) and that termination serves the best interest of the child." C.J.M., 389 S.W.3d at 160 (citing KRS 625.090(1)(a)-(c)). Further, under KRS 625.090(2), the family court must show the existence of one or more of the several factors listed. C.J.M., 389 S.W.3d at 160.
First, the family court properly found that Child had been abused or neglected under KRS 600.020(1). KRS 600.020(1)(a) provides, in pertinent part, that a child is abused or neglected when their
health or welfare is harmed or threatened with harm when: (a) His or her parent . . . 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[.]
Here, in the first DNA action, Mother entered an Alford plea to neglect, and in the second DNA action, the family court found Mother had neglected Child after failing to provide appropriate care for Child and consistently returning to incarceration. Importantly, the family court noted its decision was "not based on [M]other's incarceration alone[,]" but instead showed a pattern of not being able to complete her plan, which had been in process for nearly five years. There is no dispute that the family court had properly found Mother had neglected Child.
Next, the family court found that termination of Mother's parental rights was in the best interest of Child. To make such a determination, the family court considered the six factors outlined in KRS 625.090(3) as required by K.H., 423 S.W.3d at 212. Specifically, KRS 625.090(3)(a)-(f) states that
[i]n determining the best interest of the child and the existence of a ground for termination, the circuit court shall consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The 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;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
Subsection (a), referring to mental health, does not apply here so we begin our analysis with the family court's discussion of subsection (b), regarding abuse or neglect. As discussed, the family court found neglect in both DNA actions concerning Mother and Child. Further, at trial, Child testified that Mother was rarely present when Child was in her care and Mother regularly abused substances, sometimes resorting to violence. Additionally, there was ample evidence that Mother had been in and out of jail over the course of Child's life and, for her most recent incarceration, was facing up to 30 years. While the family court noted that the parole board could grant Mother parole in April 2023, Child would be 14 years old by that time and would have spent five years out of Mother's care. Further, Mother acknowledged that she had not seen Child since 2019.
The family court then analyzed subsection (c), which requires the Cabinet to provide reasonable efforts to reunify Mother and Child. Supervisor Graves testified that the Cabinet offered services to Mother, including substance abuse and mental health assessments, parenting classes, drug screens, supervised visitation, regularly met with Mother in her various places of incarceration, and made efforts to connect throughout the virtual years of COVID-19. As such, the family court found that the Cabinet had met its burden. At every stage, as Supervisor Graves testified, the Cabinet worked with Mother to develop case plans and provide supervision and guidance as necessary to return Child to Mother.
Next, the family court considered Mother's progress, under subsection (d). The family court acknowledged that in the five or so years since the case had begun, Mother had completed only the parenting class and had enrolled in substance abuse classes. She had not completed any other task on her case plan. Importantly, the family court emphasized that Mother did so only while incarcerated, failing to show progress during any of the times she was released from jail. The court explained that the last time Mother had been released from incarceration, she absconded treatment for a year before being rearrested. Therefore, the family court found that Mother had shown a pattern of not being able to complete her plan, and there was no reasonable expectation of improvement.
The family court then considered subsection (e), relating to Child's physical, emotional, and mental health. Child was adamant that she did not want contact with Mother in any capacity, and certainly did not want to return to Mother's care. Child admitted that she did not have a connection with Mother and had spent very little time with her in recent years. Even so, Child attends regular therapy sessions to navigate the emotional and mental turmoil she clearly still endures. Alternatively, both Child and Supervisor Graves testified that the foster placement was going well. Child was doing well academically and socially, and the foster parents wanted to adopt her, which would provide the stability that Child deserves.
Lastly, the family court analyzed subsection (f), regarding Mother's ability to provide physical care and maintenance, and determined Mother was not able to provide such care. Since removal, Mother had failed to provide a reasonable portion of Child's substitute physical care. Instead, the Cabinet took on that burden and ensured Child had adequate care. Therefore, the family court appropriately considered Child's need for permanency in contrast with Mother's instability and determined that Child's welfare would continue to improve if it terminated Mother's parental rights.
As such, the family court found it was in Child's best interest to terminate Mother's parental rights. The family court thoroughly reviewed the facts of the case and supported its determination with clear and convincing evidence. The court did not err in making that determination.
Finally, the family court found Mother to be unfit under KRS 625.090(2), which provides that "[n]o termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds[.]" Although the family court found grounds (a), (e), (g), and (j) existed, the statute requires only one ground. As such, finding subsection (j) was easily met, we will address only that ground in detail.
The evidence at trial established that Child had been in foster care for at least 45 of the previous 48 months. That duration easily surpassed the 15-month requirement in KRS 625.090(2)(j). As such, the family court appropriately determined that the Cabinet had shown, by clear and convincing evidence, one of the enumerated conditions in KRS 625.090(2).
The family court appropriately found Child had been neglected; that termination was in Child's best interest; and that a ground for termination existed. Therefore, the family court did not err when it terminated Mother's parental rights.
CONCLUSION
Based upon the foregoing, we find there were no meritorious claims for this appeal and AFFIRM the order of the Christian Family Court terminating the parental rights of Mother.
ALL CONCUR.