Opinion
NO. 2016-CA-000230-ME NO. 2016-CA-000231-ME
02-03-2017
M.K.A. (A/K/A P.) APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND E.P.A., A MINOR CHILD APPELLEES AND M.K.A. (A/K/A P.) APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND N.D.A., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: William R. Adkins Williamstown, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRANT CIRCUIT COURT
HONORABLE REBECCA LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00036 APPEAL FROM GRANT CIRCUIT COURT
HONORABLE REBECCA LESLIE KNIGHT, JUDGE
ACTION NO. 15-AD-00037 OPINION AND ORDER
AFFIRMING AND GRANTING MOTION TO WITHDRAW
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. COMBS, JUDGE: Appellant, M.K.A. (A/K/A P) (Mother), appeals from Judgments of the Grant Circuit Court terminating her parental rights in these two appeals. Mother's counsel has filed a Motion to Withdraw and an Anders brief. Having carefully reviewed the record, we grant the Motion to Withdraw and affirm.
On June 15, 2015, the Appellee, Cabinet for Health and Family Services (Cabinet) filed Petitions for Involuntary Termination of Parental Rights against Respondents, Mother, and H.E.A., the natural father, in the interest of E.P.A., a boy born in 2004, and N.D.A., a boy born in 1999.
On January 7, 2016, the actions were tried before the court without a jury. Father's counsel was present and advised the court that Father was now deceased. He died on October 12, 2015. Diana Marty, a social worker/ongoing caseworker for the Cabinet, and Mother testified.
On January 28, 2016, the trial court entered Findings of Fact and Conclusions of Law. With respect to each child, the court found that:
6. The child ... has resided in foster care since August 2, 2013. [The child] was committed to the Cabinet... by order of the Grant District Court on December 23, 2014 ... and has remained
committed during the entirety of these proceedings.
7. Respondent parents have failed to protect and preserve the child's fundamental right to a safe and nurturing home and this is a neglected child. The child was removed due to concerns of Respondent parents' heroin use and failing to send the child to school. Respondent mother engaged in a pattern of conduct due to drug abuse that rendered her incapable of caring [sic] the child's immediate and ongoing needs. Further, Respondent mother has failed to provide the child with adequate education necessary for the child's well-being.
8. Respondent mother has abandoned the child for a period or periods of not less than ninety (90) days.... Respondent mother has not had contact with the child since he was removed on July 30, 2013.
9. Respondent 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. Since July 30, 2013, Respondent mother has absented herself from the life of this child and has failed to provide any parental care or protection while the child has been in foster care. Respondent mother was ordered to provide three (3) clean drug screens before she could have contact with the child and this was never accomplished.
10. Respondent mother, for reasons other than poverty alone, has continuously or repeatedly failed or refused to provide or is incapable of providing essential food, clothing, shelter, medical care or education necessary and available for the child's well-being and there is no reasonable expectation of significant improvement ... in the immediately foreseeable future, considering the age of the child. Respondent mother has not had
contact with the child since July 30, 2013 and has failed to provide any life essentials to this child or financially support the child in any way.The court concluded that the Cabinet was entitled to a judgment terminating Mother's parental rights and that it was in the best interests of the children that parental rights be terminated. Custody of both children was transferred to the Cabinet as wards of the state with authority to place them for adoption.
11. The child ... has been in foster care under the responsibility of the Cabinet for fifteen (15) of the most recent twenty-two months preceding the filing of the Petition to terminate parental rights. The child has remained in foster care for twenty-nine (29) months.
12. The Respondent mother has a criminal and substance abuse history that poses a risk to any child in her care. Respondent mother pled guilty to Possession of a Controlled Substance, First Degree on September 25, 2015. Respondent mother failed to provide three (3) clean drug screens during the entirety of this case. Respondent Mother testified that she was [sic] received substance abuse treatment at Recovery Works, however that agency has no medical records for Respondent mother.
13. The Cabinet... has attempted to render services either directly or by referral in an effort to keep the family together including working with the family while the child was placed in foster care. [Mother] has failed to engaged in services or demonstrate any lasting parental improvements.
14. The child has made improvements since coming into foster care and these improvements are expected to continue. There is a high likelihood that the child will be adopted and he has formed an attachment to his prospective adoptive family.
15. Termination of parental rights is in the best interest of the child... and the Cabinet ... has facilities available to accept the care, custody and control of him and is the agency qualified to receive custody.
On January 29, 2016, the trial court entered Judgments Terminating Parental Rights as to each child. Mother filed timely Notices of Appeal to this Court on February 15, 2016.
Mother's counsel has filed an Anders Brief and a Motion to Withdraw. Anders v. State of Cal., 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967) explains that:
By Order of this Court entered June 20, 2016, the Motion to Withdraw was passed to the merits panel.
[Counsel's] role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his 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.After the filing of an Anders brief, we must conduct an independent review to ascertain whether the appeal is, in fact, wholly lacking in merit. A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 372 (Ky. App. 2012).
In reviewing a decision to terminate parental rights, we apply a clearly erroneous standard. "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." Com., Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citations omitted).
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.Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014).
Kentucky Revised Statutes. --------
In the case before us, the trial court meticulously followed statutory criteria and found that each child is a neglected child as defined in KRS 600.020(1) -- both in its Findings of Fact and Conclusions of Law and in the Judgment Terminating Parental Rights.
The trial court determined that termination of parental rights was in the best interest of each child. In conducting a best-interest analysis, the trial court must consider the factors in KRS 625.090(3):
(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 ...;The trial court considered the appropriate statutory factors in its detailed Findings of Fact and Conclusions of Law, as set forth above.
(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.
Several of the grounds for termination in KRS 625.090(2)(a)-(j) exists. The trial court determined that Mother had abandoned the children for a period of not less than ninety (90) days. KRS 625.090(2)(a). It also found that the children had been in foster care under the responsibility of the Cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights. KRS 625.090(2)(j).
Having carefully reviewed the record, we conclude that three prongs of KRS 625.090 have been satisfied. Therefore, we affirm the Judgments of the Grant Circuit Court Terminating Parental Rights. We also grant the motion of Appellant's counsel to withdraw.
ORDER
WHEREFORE, counsel for Appellant, M.K.A. (A/K/A P), having moved to withdraw from the above-styled appeals; having tendered an Anders Brief; having certified that copies of the motion to withdraw and the Anders brief were mailed to Appellant with instruction that she may file her own brief if she chooses; and Appellant having filed no response thereto, nor a supplemental brief, we hereby GRANT the motion to withdraw.
ALL CONCUR. ENTERED: February 3, 2017
/s/ Sara W. Combs
Judge, Court of Appeals BRIEF FOR APPELLANT: William R. Adkins
Williamstown, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp
Covington, Kentucky