Opinion
2021-CA-0896-ME
03-18-2022
T.R.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES AND L.R.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Amy Rollins Craft BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn.
NOT TO BE PUBLISHED
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 21-AD-00010.
BRIEF FOR APPELLANT: Amy Rollins Craft
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn.
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
OPINION
COMBS, JUDGE:
Appellant, T.R.H., appeals from the order of the Greenup Family Court terminating her parental rights. After our review, we affirm.
Mother's counsel, Amy Rollins Craft, has filed a motion for leave to withdraw as counsel and to file a brief pursuant to A.C. v. Cabinet for Health & Family Services, 362 S.W.3d 361 (Ky. App. 2012), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). By order entered on December 2, 2021, this Court passed the motion to withdraw to this merits panel, ordered the tendered Anders brief filed, and permitted Mother to proceed pro se and to file a supplemental brief within 30 days thereof. No supplemental brief has been filed. We now proceed with our review.
The Appellant, T.R.H. (Mother), is the mother of a female child, L.R.H. (the child) who was born in 2011. On February 4, 2021, the Cabinet filed a petition for the involuntary termination of parental rights in the Greenup Family Court. The case was tried on May 26, 2021. On July 13, 2021, the family court entered findings of fact and conclusions of law and an order terminating parental rights and order of judgment, which we discuss further in our analysis below.
The child's biological father voluntarily terminated his parental rights to the child and he was dismissed as a party to this appeal by order of this Court entered on December 2, 2021.
Where, as here, counsel files an Anders brief and a motion to withdraw, "we are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372.
In Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014), our Supreme Court explained as follows:
KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.
Kentucky Revised Statutes.
The standard governing our review is whether the trial court's findings are clearly erroneous. CR 52.01.
Kentucky Rules of Civil Procedure.
The trial court has a great deal of discretion in an involuntary termination of parental rights action . . . . [F]indings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. 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.C.A.W. v. Cabinet For Health & Family Services, Commonwealth, 391 S.W.3d 400, 403 (Ky. App. 2013) (internal quotation marks and citations omitted).
In the case before us, the family court found that the child is an abused or neglected child as defined in KRS 600.020. In the underlying dependency, neglect, and abuse (DNA) proceeding, Case No. 19-J-00143-001, the court determined that the child was an abused or neglected child as defined in KRS 600.020 based upon the stipulation of Mother. The first prong of the tripartite test is satisfied. KRS 625.090(1)(a)1.
The second prong requires that the court find by clear and convincing evidence that termination would be in the best interest of the child. KRS 625.090(1)(c). In conducting its best interest analysis, KRS 625.090(3) requires that the court to 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.
At pages 3-4 of its findings of fact and conclusions of law, the family court found as follows with respect to the best interest of the child:
[Mother] for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for [the child] and there is no reasonable expectation of improvement in parental care and protection considering the age of the child. Prior to the child entering care, the Cabinet worked with the mother to address unsanitary home conditions and failure to provide appropriately for her special needs child. Despite this a [DNA] Petition was ultimately filed in November 2019 after the child came to school in clothing that smelled strongly of urine. The home had urine soaked floors and dog feces throughout. The mother had not been providing adequately for the child's needs. At the time of the hearing, the mother did not have a stable home environment and had not completed parenting classes. The mother had stopped attending therapy sessions to address her mental health needs.
[Mother] for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the well-being of [the child] and there is no reasonable expectation of significant improvement in the parent's conduct considering the age of the child. Although the Cabinet has attempted to put services in place, [Mother] has been unable to maintain a stable home environment for the child. [Mother] does not have appropriate support to assist her in the care of her child and suffers from limited cognitive functioning herself. She has failed to place herself in a position to provide
food, clothing and shelter and would have difficulty providing the appropriate medical and educational needs of her child. In light of the length of time the child has been in care and the fact that the mother has still not completed parenting classes and did not have stable housing at the time of the hearing, there is no reasonable expectation of improvement.
The testimony of the Cabinet workers, Stacia Moreland and Jeffrey Matteson, supports these findings.
The family court further found that Mother:
suffers from mental illness, retardation or other mental disabilities as certified by a qualified mental health professional, which renders [her] consistently unable to care for the immediate and ongoing physical or psychological needs of [the child] for extended periods of time.
The court explained that it considered the testimony and report of Dr. Ebben in making this finding. Dr. Ebben conducted a forensic mental health examination on December 11, 2020. His detailed report reflects that "[t]he child reportedly has 'autism, sensory and processing disorder' as diagnosed by Pathways." Dr. Ebben observed that Mother has a history of special education and a limited work history; that she does not have a residence of her own; and that she is dependent upon others for transportation. Testing revealed that Mother's reading comprehension was at a fourth-grade level. Dr. Ebben discussed the importance of reading comprehension capacity in the parenting of children. Dr. Ebben's diagnostic impression was: "Unspecified Anxiety Disorder; Unspecified Depressive disorder; Victim of abuse (child); suspected Borderline Intellectual Functioning (rule-out Mild Intellectual Deficiency)." He opined that Mother's parenting capacity "is guarded and [Mother] does not currently have the capacity to provide minimally acceptable care to her dependent special needs child." (Boldface omitted.)
We are satisfied from our review of the record that the family court duly considered the applicable best interest factors and that its finding that termination of parental rights would be in the child's best interest has a substantial evidentiary foundation.
The third and final prong, KRS 625.090(2), 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 [enumerated] grounds[.]" Only one is required. The family court's findings, which we have already addressed above, also satisfy KRS 625.090(2)(g):
That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]
Having independently reviewed the record, we conclude that there are no "nonfrivolous grounds" for reversal; i.e., that no meritorious grounds exist that would warrant reversal. A.C., supra. Accordingly, we affirm. By separate order, we grant counsel's motion to withdraw pursuant to Anders, supra.
ALL CONCUR.