Summary
calculating time in Cabinet custody from first Emergency Custody Order
Summary of this case from Cabinet for Health & Family Servs. v. H.L.O.Opinion
NO. 2019-CA-000382-ME
03-06-2020
B.E.H.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; P.M.H.; AND D.F.-G.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Janelle R. Farley Owensboro, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS FAMILY COURT
HONORABLE JOHN M. MCCARTY, JUDGE
ACTION NO. 18-AD-00038 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: The Appellant, B.E.H.H. ("Mother"), appeals the Daviess Family Court's February 22, 2019, order terminating her parental rights to her biological child, D.F.-G.H. ("Child"). After timely filing a notice of appeal, Mother's court-appointed counsel submitted an Anders brief. See A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361, 363 (Ky. App. 2012). In the Anders brief, counsel asserted that no meritorious issues exist on which to base an appeal. Nonetheless, counsel pointed out that it is incumbent upon this Court to independently review the record to decide whether the appeal is frivolous. Following this Court's receipt of the Anders brief, Mother was advised of her right to continue this appeal pro se and was provided with additional time to file a brief of her own choosing. Mother did not respond.
The family court's order also terminated the parental rights of Child's biological father, P.M.H. ("Father"). Father did not appeal. This opinion relates only to the termination of Mother's rights. Father is mentioned only insomuch as is necessary to place this matter in the proper context.
Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Along with the Anders brief, Mother's counsel filed a motion seeking permission to withdraw as counsel on appeal. The Court referred counsel's motion to this panel to be decided in conjunction with the underlying appeal. By separate order, we have granted counsel leave to withdraw.
Accordingly, we have independently reviewed the record for the purpose of ascertaining whether the appeal is, in fact, devoid of nonfrivolous grounds for reversal. Id. at 372. After having done so, we agree with counsel's assessment. On the face of the record, we can perceive no basis warranting relief on appeal. Therefore, we affirm the order of the Daviess Family court terminating Mother's parental rights to the minor child, D.F.-G.H.
I. BACKGROUND
Mother gave birth to Child on March 21, 2017. The next day, March 22, 2017, the Cabinet for Health and Family Services (the "Cabinet") filed a dependency, neglect, or abuse ("DNA") petition on behalf of Child with the Daviess Family Court. In support of its petition, the Cabinet alleged that Mother had been working a case plan since December 2015. This case plan was in regard to Child's older biological sibling ("Sibling"). The Cabinet stated that at the time of Child's birth, Mother had made little progress to allow for the return of Sibling. Because the same safety concerns pertaining to the removal of Sibling were still a concern at the birth of Child, the Cabinet moved for emergency custody of Child. The Daviess Family Court granted emergency custody to the Cabinet based on the allegations in the emergency custody petition.
Sibling is not a party to this appeal or the underlying action.
On July 31, 2017, the Daviess Family Court made a finding that Child was a dependent child; and, on October 23, 2017, Child was committed to the Cabinet's custody by way of a dispositional order. Included in the dispositional order was Mother's court-approved case plan. In accordance with this case plan, Mother was to cooperate with the Cabinet, remain clean and sober, attend inpatient and outpatient substance abuse programs, submit to random drug screenings, comply with the Sobriety Treatment and Recovery Team ("START"), attend weekly meetings with either Narcotics Anonymous ("NA") or Alcoholics Anonymous ("AA"), attend therapy, take all medication as prescribed, and refrain from the use of drugs, alcohol, and/or synthetic substances.
Mother had supervised visits with Child for two hours every week, which she consistently exercised. Eventually, Mother was granted unsupervised weekly visitation. However, Mother was unable to maintain her sobriety causing her to lose the privilege of unsupervised visits after only two months. While Mother did maintain stable housing and employment for most of the period at issue, she was unsuccessful in fulfilling the other requirements of her case plan.
The two most problematic areas were failure to address her mental health and failure to maintain and demonstrate her sobriety. Mother did not submit to random drug screenings, never completed any outpatient program, and was inconsistent with her therapy, medication, and attendance at self-help groups, such as AA or NA. Mother did complete inpatient treatment on two (2) separate occasions but did not follow through with her after-care services. She began using methamphetamine again around October 2018. She was also using marijuana and CBD oil as recently as a few weeks before the termination hearing. Additionally, Mother inconsistently sought medical attention for her ongoing mental health diagnoses, including: depression, anxiety, and bipolar disorder.
On September 17, 2018, the Cabinet filed a petition for involuntary termination of Mother's parental rights to Child. The Cabinet's petition alleged that Child had been in its custody since March 22, 2017, more than fifteen months, and that during that time neither Mother nor Father had made sufficient progress toward completion of their case plans to allow for Child to be returned to them. To this end, the Cabinet cited Mother's substance abuse and inconsistent mental health treatment. The Cabinet further alleged that Mother had failed to take advantage of the numerous services it had offered to her and that it did not believe any additional services were available that would allow Child to be returned to Mother in the foreseeable future. It also alleged that Child has been in the same foster family since coming into the Cabinet's custody, and that she was thriving in her current placement.
The family court conducted a formal hearing on January 16, 2019. Several witnesses testified including Mother; Child's foster mother; Danielle Medley, a social worker for the Cabinet; and the START service coordinator, Christy Probus. The testimony indicated that Child has been in her current placement since she was two days old. She is bonded to her foster family and is thriving in their care. Child's foster mother recently adopted Child's biological brother after Mother and Father voluntarily agreed to terminate their parental rights. Child knows Mother only through her weekly two-hour visitations. There has never been a trial home visit and Mother's visits have not increased in duration or frequency. Mother has generally conducted herself appropriately during her visitations with Child. However, the social worker testified that recently Mother has seemed "manic" during her visitations and is unable to complete simple tasks.
Mother has substantial mental health and substance abuse issues. She has five biological children, including Child. She does not have custody of any of her children. Mother admitted she has a history of mental health problems and substance abuse issues. She struggles with maintaining stability in her life as it relates to meeting her own needs. Her struggles date back to at least 2014. Mother admitted these issues currently prevent her from being in a position to care for Child. The social worker and the START service coordinator agreed. At the conclusion of the hearing, the family court took the matter under advisement and requested the parties to submit briefs. Mother, Father, and the Cabinet filed briefs. Additionally, Child's guardian ad litem ("GAL") filed a sixteen-page "report."
Prior to a final order being rendered, the Cabinet filed a motion for a new trial or, in the alternative, leave to take additional evidence. In support of its motion, the Cabinet explained that "approximately six days after the hearing in this matter, the Cabinet became aware of evidence of continuing serious substance abuse and further inability to provide essential parental care for the child by [Mother]." The family court ultimately denied the motion limiting the record to the evidence already presented by the parties.
The GAL's report reviewed the procedural history of the case and summarized the evidence of record. The GAL advocated for termination on behalf of Child.
On February 22, 2019, the family court entered an order terminating Mother's parental rights. Mother's counsel filed a notice of appeal and submitted an Anders brief, stating that no meritorious grounds for appeal exist. Counsel also filed a motion to withdraw. This Court provided Mother with an opportunity to continue this appeal pro se by filing her own appellant's brief. Mother did not respond to this Court's notice.
II. STANDARD OF REVIEW
"An Anders brief supplements a motion to withdraw filed after counsel has conscientiously reviewed the record and found the appeal to be frivolous." C.R.G. v. Cabinet for Health & Family Servs., 297 S.W.3d 914, 915 (Ky. App. 2009). Thereafter, this Court's duty is to review the record independently for prejudicial error. Id.
III. ANALYSIS
Pursuant to Kentucky Revised Statute ("KRS") 625.090, "termination of parental rights is proper upon satisfaction of a three-pronged test." M.P.R. v. Cabinet for Health & Family Servs., 520 S.W.3d 409, 412 (Ky. App. 2017).
First, the child must be found to be abused or neglected, as defined in KRS 600.020(1). KRS 625.090(1). Second, the court must find that at least one of the enumerated factors in KRS 625.090(2) is present. Finally, the court must find that it is in the best interest of the child that parental rights be terminated. KRS 625.090(3).Id.
Because Child had not previously been adjudged to be an abused or neglected child, the family court made independent findings pursuant to KRS 600.020(1) based on the testimony presented in this proceeding. KRS 625.090(1)(a)2. As related to Mother, the family court found as follows:
The DNA proceeding resulted in a dependency finding. Dependency alone is not sufficient to support the first prong of termination.
26. A child is abused or neglected if her parents fail 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. KRS 600.020(1)(a)(9). [Mother] has made some progress toward identified goals as set forth in her court-approved case plan. However, that progress has not been sufficient to allow for the safe return of [Child] to her, and as a result [Child] has been committed to the Cabinet and remaining in foster care for fifteen (15) cumulative months out of forty-eight (48) months. [Mother] has continuously relapsed and used illegal substances, including marijuana, CBD oil, and methamphetamine. She has not been consistent in completing therapy. She has not been consistent in attending groups. She has not been consistent in following the recommendations of her therapist. She has
failed to drug test on multiple occasions. In short, [Mother] has not made sufficient progress in her case plan, and the Court finds that [Child] is an abused or neglected child as it pertains to [Mother] under this subsection.(R. at 97-98).
Child was committed to the custody of the Cabinet on March 22, 2017. The Cabinet filed its petition to terminate parental rights on September 17, 2018. Child had been in the custody of the Cabinet for eighteen months at the time that the Cabinet filed its petition, exceeding the fifteen-month threshold. Mother admitted not completing her case plan. She also admitted that she still had unaddressed substance abuse and mental health issues. The Cabinet social worker explained the various efforts the Cabinet had made to work with Mother. Despite those efforts, Mother still remained unable to care for herself or Child. In sum, having reviewed the record, we are confident that clear and convincing evidence supported the family court's conclusion that Mother's actions/inactions resulted in Child being abused or neglected. See Cabinet for Health & Family Servs. v. P.W., 582 S.W.3d 887, 898 (Ky. 2019).
Next, the family court addressed the best interest prong. To this end, it found as follows:
28. The Court having found [Child] is an abused or neglected child and that the Cabinet has filed a petition with the court pursuant to KRS 620.180 [the court] must find that termination would be in [Child's] best interest.
In determining the best interest of the child and the existence of a ground for termination, the Circuit Court must consider those factors stated in KRS 625.090(3).
29. The first factor is 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. [Mother] has a number of mental illnesses, as stated above, that she has consistently not been able to get under control. Indeed, [Social Worker Medley] testified that [Mother] often seems manic and unable to complete simple tasks. It is true that she has been attempting to see a physician for some of these illnesses but has not done so consistently. The Court finds that this factor weighs in favor of termination as it relates to Mother. . . .
30. The second factor is acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family. The Court has found above that [Child] is a neglected or abused child as defined in KRS 600.020(1), and finds that this factor weighs in favor of termination as it relates to both [Mother and Father].
31. The third factor is 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 has been substantiated in a written finding by the District Court. The Cabinet has given both parents opportunities to work their case plans to be able to make progress toward them, and they have consistently not been able to make any progress. Indeed, the Cabinet even gave the parties gas cards and bus passes to assist them. Furthermore, [Social Worker Medley] testified, there was not much else the
Cabinet could offer to help [Mother] . . . The Court finds that this factor weighs in favor of termination as it relates to both [Mother and Father].(R. 98-100).
32. The fourth factor is the efforts and adjustments the parent has made in his/her circumstances, conduct, or conditions to make it in the child's best interest to return him/her to his/her home within a reasonable period of time, considering the age of the child. [Mother] has made some progress on her case plan and has made some adjustments. She has been seeing a therapist, though not on a consistent basis. She has completed inpatient therapy. However, she relapsed and began using illegal substances again. Furthermore, by her own admission, she is not ready for [Child's] return, stating that she [is] unable to currently care for herself or [Child]. The Court finds that this factor weighs in favor of termination as it relates to [Mother]. . . .
33. The fifth factor is the physical, emotional, and mental health of the child and the prospects for improvement of the child's welfare if termination is ordered. The Court has not been made aware of the health of [Child] and finds that this factor is inconsequential in determining her best interests.
34. The sixth factor is the payment or failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so. The Court has not been made aware of any payments by either [Mother or Father] toward the care of [Child]. The Court finds that this factor weighs in favor of termination for both [Mother and Father].
35. Weighing the above factors, the Court finds that termination is in [Child's] best interests.
In this case, there was substantial evidence presented with respect to the best interest factors. The foster mother testified that Child was doing well in her care, and that Child had been with her since she was two days old. The foster mother had already adopted one of Child's older siblings. Mother has serious substance abuse and mental health issues that have rendered her incapable of caring for herself or Child. Mother is not in a position to parent Child. While Mother believes with time she will be able to do so, Child has been in the Cabinet's custody her entire life. Based on Mother's inconsistent behaviors and her inability to complete her case plan with substantial assistance by the Cabinet, this seems less than certain. As a result, we do not believe the family court erred by determining that it was in Child's best interest to terminate Mother's parental rights. See J.L.C. v. Cabinet for Health & Family Servs., 539 S.W.3d 692, 697 (Ky. App. 2018).
Lastly, the family court considered whether any of the grounds for termination pursuant to KRS 625.090(2) exist in this case. While the current statute lists eleven possible grounds for termination, the family court need only find the presence of one ground by clear and convincing evidence. See KRS 625.090(2) (emphasis added) ("No 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[.]"). With respect to Mother, the family court relied, in part, on KRS 625.090(2)(j). This subsection provides one ground for termination where: "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[.]" At the time of the court's order, Child had been in the Cabinet's custody just shy of two years. Therefore, the record supports this final requirement.
The family court also found that termination was proper under KRS 625.090(2)(h), which requires that termination is proper if: "(1) [t]he parent's parental rights to another child have been involuntarily terminated; (2) [t]he child named in the present termination action was born subsequent to or during the pendency of the previous termination; and (3) [t]he conditions or factors which were the basis for the previous termination finding have not been corrected[.]" While the record does mention Mother having lost custody of her other children, it is unclear whether it was through an involuntary termination proceeding. However, because only one condition under KRS 625.090(2) must be met in order for termination to be proper, and because there is substantial evidence to support the family court's findings under KRS 625.090(2)(j), the family court's reliance on KRS 625.090(2)(h) is harmless to the extent it was in error. --------
IV. CONCLUSION
As counsel for Mother argued in the Anders brief and the Cabinet agreed, no meritorious grounds exist upon which to grant relief. The order terminating Mother's parental rights is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Janelle R. Farley
Owensboro, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky