Opinion
NO. 2019-CA-001173-ME
03-20-2020
V.R.M.I. AND D.W.I. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND G.A.I., A CHILD APPELLEES
BRIEF FOR APPELLANTS: Dale L. Horner, Jr. Attorney for V.R.M.I. Maysville, Kentucky Louise M. Brown Attorney for D.W.I. Foster, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn Attorney for Cabinet for Health and Family Services Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 19-AD-00005 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES. MAZE, JUDGE: Appellants, V.R.M.I. and D.W.I. (Mother and Father), appeal the Mason Circuit Court, Family Division's order terminating parental rights to their daughter, G.A.I. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for Mother and counsel for Father filed a joint Anders brief conceding that no meritorious error exists for an appeal to this Court. Counsel accompanied the brief with a joint motion to withdraw, which was passed to this merits panel. After careful consideration, we grant counsels' motion to withdraw by separate order and affirm the family court's order terminating Mother and Father's parental rights.
BACKGROUND
V.R.M.I. is the biological mother and D.W.I. is the biological father of G.A.I., born February 17, 2012. The Cabinet for Health and Family Services has been involved with this family off and on since G.A.I.'s birth when, as a newborn, G.A.I. tested positive for substances not prescribed to her Mother. Then, in 2016, the Cabinet became involved again when the parents were investigated for substance abuse issues. At that time, the Cabinet placed the child with her maternal grandmother, but the grandmother returned the child to her parents without informing the Cabinet. The Cabinet then placed the child with C.I., the child's half-sister and Father's adult daughter. After one month, however, C.I. contacted the Cabinet to return the child because she could not deal with the child's parents, who are also her father and stepmother. Consequently, the Cabinet took the child back into care and placed her in foster care.
Afterward, Mother worked her case plan and the child was able to return home in August 2017. However, Mother allowed Father to have contact with the child, which was contrary to a court order. In addition, Mother tested positive for methamphetamines in October 2017, so the child had to re-enter foster care.
Then, Father made progress on his case plan and the child was able to return home. Yet, despite having custody, Father signed a power of attorney over to the maternal grandmother and sent the child to be with her out-of-state. Although the child was allegedly "visiting" the grandmother in Florida for the summer, the grandmother enrolled the child in school in August 2018. Subsequently, the district court judge ordered the child be returned to Kentucky.
On September 14, 2018, the family court entered an order committing the child to foster care under the responsibility of the Cabinet. Because Mother and Father could not comply with their case plan for reunification with their child, in March 2019, the Cabinet filed a petition to terminate parental rights.
On June 10, 2019, the family court held the termination of rights trial. The Cabinet presented two witnesses, Amber Neely, a certified alcohol and drug counselor with New Hope Community Services, and Donna Hurst, the family's social worker from the Cabinet.
Ms. Neely testified that both parents underwent assessments at New Hope. Yet, the parents failed to follow through with her recommendations for treatment.
Ms. Hurst testified regarding the Cabinet's involvement with the family and how both parents failed to comply with the case plan and the requirements for random drug screens. When court-ordered in December 2018, the parents submitted to hair follicle screens, which were positive for methamphetamines and amphetamines. Also, Ms. Hurst testified the parents consistently failed to cooperate with the Cabinet on their case plans. The parents wanted one parent to have custody if the other was on drugs, but Ms. Hurst testified the Cabinet tried that, and it did not work. She further testified that the parents exposed G.A.I. to two registered child sex offenders. In addition, both parents were behind on their child support payments. Finally, Ms. Hurst testified that G.A.I. is a sweet child with some mental issues from entering and re-entering foster care. Both her current foster family, as well as her previous foster family who cared for her in 2017, are willing to adopt G.A.I.
Although ten minutes late, both Mother and Father did appear at trial. Neither parent testified. The parents' respective counsel did not offer any exhibits into evidence, although they each cross-examined Ms. Neely and Ms. Hurst at trial.
At the end of trial, the family court asked G.A.I.'s guardian ad litem (GAL) for her recommendation. She recommended termination because the parents knew the drug screens would be deemed positive if they did not take them, yet they failed to comply with the drug screens. Also, the parents allowed the child to be exposed to sex offenders. Moreover, the GAL explained that, if Father wanted custody of his child so badly, she did not understand why he sent her on "vacation" with the grandmother and allowed the grandmother to enroll the child in school in Florida.
On July 2, 2019, the family court entered findings of fact and conclusions of law, as well as a judgment terminating parental rights to G.A.I. This appeal followed.
ANALYSIS
Counsel for Mother and Father filed an Anders brief in compliance with A.C., supra. In A.C., this Court adopted and applied the procedures identified in Anders, supra, regarding appeals from orders terminating parental rights where counsel cannot identify any non-frivolous grounds to appeal. A.C., 362 S.W.3d at 364. Those procedures require counsel to engage in a thorough and good faith review of the record. Id. "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." Id. (quoting Anders, 386 U.S. at 744, 87 S. Ct. at 1400).
Counsel complied with the requirements of A.C. and Anders by providing Mother and Father with a copy of the brief and informing them of their right to file a pro se brief raising any issues they found meritorious. A.C., 362 S.W.3d at 371. Neither Mother nor Father filed a pro se brief. Under A.C., we analyzed the record and now agree with counsel that no grounds exist to disturb the family court's order terminating parental rights.
In a termination of parental rights case, an appellate court uses the clearly erroneous standard of review as a trial court has broad discretion to determine whether a child has been either abused or neglected and whether the best interests of the child warrant a termination of parental rights. C.J.M. v. Cabinet for Health and Family Services, 389 S.W.3d 155, 160 (Ky. App. 2012) (citing R.C.R. v. Commonwealth Cabinet for Human Res., 988 S.W.2d 36, 38 (Ky. App. 1998)). Thus, a trial court's findings of fact will not be set aside unless unsupported by substantial evidence. Id.; see also Kentucky Rules of Civil Procedure (CR) 52.01.
Termination of a party's parental rights is proper upon satisfying a three-part test by clear and convincing evidence. Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). First, the child must be deemed abused or neglected, as defined in Kentucky Revised Statute (KRS) 600.020(1). See KRS 625.090(1)(a). Second, termination must be in the child's best interest, which the family court determines based on a series of factors, as defined in KRS 625.090(3)(a)-(f). KRS 625.090(1)(c). Third, the family court must find at least one ground of parental unfitness, as enumerated in KRS 625.090(2)(a)-(k). KRS 625.090(2).
Here, the record contains sufficient evidence to support the family court's decision to terminate parental rights. The family court held, by clear and convincing evidence, that the three-pronged test was met because the child was abused or neglected as defined in KRS 600.020 and it was in the child's best interest to terminate parental rights. KRS 625.090(1)(c). The family court also found Mother and Father were unfit to parent the child because: (a) they failed to provide essential parental care and protection to the child; (b) they failed to provide basic needs for the child; and (c) the child was in foster care for fifteen of the most recent forty-eight months preceding the filing of the termination petition.
As stated, Mother and Father did not submit a pro se brief supporting their position. According to the Anders brief, however, they believe the family court erred by failing to account for their poverty, which is part of their difficulty in taking drug screens and paying child support. Also, their child was not harmed, as she was given food, clothing, medical treatment if needed, and an education. Moreover, they argue the Cabinet never saw them under the influence of drugs, so their child was not at "risk of harm." As to the exposure of their child to two sex offenders, they claim one was a family member and the other's offense was "in the far past." Finally, they argue other family members could take custody of G.A.I., but the Cabinet is "on a power trip" and is seeking to put her in foster care and an adoptive home. We find their arguments without merit.
We fully reviewed the record in this case and conclude that substantial evidence supports the family court's decision to terminate. G.A.I. was an abused or neglected child, her parents had not provided care and protection to her, and they failed to meet the Cabinet's requirements for the child's return. For these reasons, the family court's findings of fact, conclusions of law, and order terminating Mother and Father's parental rights are affirmed. Further, we agree with counsels' assertion that this appeal is frivolous and grant Dale L. Horner, Jr. and Louise M. Brown's joint motion to withdraw.
CONCLUSION
For the foregoing reasons, we affirm.
ALL CONCUR. BRIEF FOR APPELLANTS: Dale L. Horner, Jr.
Attorney for V.R.M.I.
Maysville, Kentucky Louise M. Brown
Attorney for D.W.I.
Foster, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn
Attorney for Cabinet for Health and
Family Services
Mayfield, Kentucky
Anders v. State of Cal., 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).