M.N.W. v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: January 31, 2025
• Docket: 2024-CA-0508
• Status: Unpublished

Opinion

RENDERED: JANUARY 31, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0508-ME

M.N.W. APPELLANT

APPEAL FROM CHRISTIAN FAMILY COURT v. HONORABLE KATHERINE DEMPS, JUDGE ACTION NO. 23-AD-00037

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.K.W., A CHILD; AND UNKNOWN FATHER APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

CALDWELL, JUDGE: M.N.W. (“Mother”) appeals from the involuntary

termination of her parental rights to M.K.W. (“Child”).1 We affirm.

1 To protect the minor child’s privacy and pursuant to court practice, we do not refer to the child or the natural parents by name. See also Kentucky Rules of Appellate Procedure (“RAP”) 5(B)(2). FACTS

Child was born in the fall of 2019. In October 2021, the Cabinet for

Health and Family Services (“the Cabinet”) filed a dependency, neglect, and abuse

(“DNA”) petition with a social worker’s affidavit. The social worker averred

Child was placed with relatives in a safety plan after Mother was arrested. She

also averred Mother had been threatening the social worker and caregivers.

The family court granted the Cabinet emergency custody of Child and

ordered Mother to pay child support. Child was placed with a foster family in late

October 2021 and has remained in the foster family’s home since then.

In January 2022, the family court adjudicated Child to be an abused or

neglected child and placed him in the temporary custody of the Cabinet. In May

2022, following a disposition hearing, Child was committed to the Cabinet.

The family court ordered Mother to undergo drug testing. It also

found her indigent and ordered the Cabinet to pay for services. Court review notes

and Cabinet reports in the DNA case record indicate Mother was required to

undergo substance abuse and mental health assessments, obtain mental health

treatment, and attend parenting classes.

In December 2022, the family court entered a permanency order

reflecting concurrent goals of both reunification and termination of parental

rights/adoption. Following review in June 2023, the family court’s notes state the

-2- Cabinet reported Mother had not fully complied with her case plan requirements

and the Cabinet planned to seek termination of parental rights (“TPR”), but Mother

could continue to work her case plan.

In early September 2023, the Cabinet filed the TPR petition. The case

proceeded to trial in February 2024. The family court entered an order terminating

Mother’s parental rights and supporting findings of fact and conclusions of law in

March 2024. Mother filed a timely appeal.

Mother’s counsel filed an Anders brief,2 indicating she perceived no

meritorious grounds for appeal, along with a motion to withdraw. Mother’s

counsel certified that she sent copies of the Anders brief and the motion to

withdraw to Mother at her last known address, along with a letter advising Mother

of her right to file a pro se brief.3 This Court entered an order passing Mother’s

counsel’s motion to the merits and giving Mother 30 days to file a supplemental

pro se brief if she so desired. Mother did not file a supplemental brief.

Upon review, we grant Mother’s counsel’s motion to withdraw by

separate order and affirm the family court’s termination of Mother’s parental

rights. Further facts will be provided as necessary in our analysis.

2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 3 Mother’s counsel noted Mother would not confirm via text message that the address was her current address, but that counsel would attempt to advise her over the phone.

-3- ANALYSIS

Anders Brief Considerations

We set forth the procedure for considering Anders briefs in Kentucky

involuntary termination of parental rights cases in A.C. v. Cabinet for Health and

Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012).

If counsel concludes there are no proper grounds for appellate relief

from an involuntary termination of parental rights, counsel must nonetheless

submit a brief “‘referring to anything in the record that might arguably support the

appeal.’” Id. (quoting Anders, 386 U.S. at 744, 87 S. Ct. at 1400). Other than

noting the family court’s finding that Mother did provide some snacks and gifts of

clothing to Child at visits, the Anders brief does not refer to anything in the record

that might arguably support the appeal. Nonetheless, 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 (citing Anders, 386

U.S. at 744, 87 S. Ct. at 1400).

Such review is analogous to a palpable error review, requiring only

that we ascertain whether any error affects the substantial rights of a party. A.C.,

362 S.W.3d at 370. If such a review results in the Court’s agreement with an

appellant’s counsel that there is no nonfrivolous ground for appealing the

termination of parental rights, it is appropriate to affirm the family court.

-4- Nonetheless, in considering the family court’s decision upon our independent

review of the record, we keep in mind statutory requirements for granting a

petition for involuntary termination of parental rights. See id. at 371-72 (noting

involuntary termination of parental rights “requires strict application of statutory

standards”).

Statutory Requirements for Involuntary Termination of Parental Rights

Before terminating parental rights, the family court must find clear

and convincing evidence4 to support each of the three parts of the standard

established by KRS5 625.090. First, the child must have been found to be an

“abused or neglected” child as defined by KRS 600.020(1). KRS 625.090(1)(a).

Second, the family court must find at least one ground of parental unfitness as set

forth in KRS 625.090(2). Third, termination must be in the child’s best interest.

KRS 625.090(1)(c). In determining the child’s best interest and whether there are

ground(s) of parental unfitness, the family court must consider the factors listed in

KRS 625.090(3).

4 Clear and convincing evidence “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.” Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (internal quotation marks and citations omitted). 5 Kentucky Revised Statutes.

-5- Requirements for Reviewing Involuntary Termination of Parental Rights

“[T]ermination of parental rights is a grave action which the courts

must conduct with utmost caution.” M.S.S. v. J.E.B., 638 S.W.3d 354, 359 (Ky.

2022) (internal quotation marks and footnote omitted). Thus, the evidence to

support termination must be clear and convincing. KRS 625.090; see also

Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 1403, 71 L. Ed. 2d

599 (1982) (holding due process requires proof by at least clear and convincing

evidence for termination of parental rights).

Even so, the decision of a family court to involuntarily terminate

parental rights is accorded great deference on appellate review. The family court’s

factual findings are reviewed under the “clearly erroneous” standard of CR6 52.01,7

meaning they shall not be disturbed unless they are not supported by substantial

evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky.

App. 1998). We review the family court’s determination that termination of

parental rights is in a child’s best interest for abuse of discretion. D.J.D. v. Cabinet

for Health and Family Services, 350 S.W.3d 833, 837 (Ky. App. 2011).

6 Kentucky Rules of Civil Procedure. 7 CR 52.01 states in pertinent part: “Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

-6- Family Court Made Statutorily Required Findings

The family court made the findings required in KRS 625.090 by clear

and convincing evidence – specifically including 1) Child being an abused or

neglected child, 2) at least one ground of parental unfitness, and 3) termination

being in Child’s best interest. And based upon our review of the record,

substantial evidence supports the family court’s factual findings on these matters.

The family court also appropriately considered factors listed in KRS 625.090(3)

for assessing whether termination was in Child’s best interest.

No Reversible Error in Family Court’s Finding That Child Was Abused or Neglected

The family court noted the prior adjudication that Child was abused or

neglected entered in the DNA case in January 2022. The family court also made

an independent finding, based on clear and convincing evidence presented at trial,

that Child is an abused or neglected child since Mother failed to make enough

progress on her case plan to allow for Child’s safe return. Specifically, the family

court found Mother failed to fully comply with case plan requirements for

substance abuse and mental health treatment, was often sleepy or inattentive at

visits with Child, and had been arrested eleven times since the DNA case was filed.

-7- Moreover, the family court did not accept Mother’s explanation that difficulties

posed by her typical third shift working hours caused all these problems.8

Based on our review of the record, the family court’s findings that

Child had previously been adjudicated abused or neglected and remained so based

on Mother’s lack of full compliance with case plan requirements for permitting

Child’s safe return are supported by substantial evidence and are not clearly

erroneous. Next, we address its findings of grounds of parental unfitness.

No Error in Finding at Least One Ground of Parental Unfitness as Set Forth in KRS 625.090(2)

The record adequately supports the family court’s determination that

the Cabinet proved the existence of at least one ground of parental unfitness by

clear and convincing evidence. Specifically, the record clearly – even indisputably

– supports the family court’s finding of the ground set forth in KRS 625.090(2)(j):

“That 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[.]”

8 Though not raised on appeal, Mother’s attorney argued at trial that factors such as Mother’s working third shift and her lack of transportation hampered her ability to meet case plan requirements. Nonetheless, we must defer to the family court’s assessments of witness credibility and the weight of the evidence. See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (“[J]udging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.”).

-8- Ample evidence in the record shows Child was in Cabinet custody

and foster care since late October 2021, about 22 months before the TPR petition

was filed in early September 2023. In short, there is no error in the family court’s

finding of at least one ground of parental unfitness.9 Lastly, we address the family

court’s best interest determination.

Family Court’s Factual Findings Regarding Child’s Best Interest are Supported by Substantial Evidence and the Family Court Did Not Abuse its Discretion in Finding Termination in Child’s Best Interest

The family court quoted KRS 625.090(3) and made findings regarding

each best interest factor listed in KRS 625.090(3), namely: 1) mental illness or

intellectual disability which would consistently render the parent unable to meet

the child’s needs for extended time periods, 2) acts of abuse or neglect toward any

child in the family, 3) whether the Cabinet made reasonable reunification efforts

prior to filing the petition for termination if the child was placed with the Cabinet,

4) the parent’s efforts and adjustments in his/her conduct and circumstances to

make a return to the parent’s home in the child’s best interest within a reasonable

time considering the child’s age, 5) the child’s physical, emotional, and mental

health and prospects for improvement if termination were ordered, and 6) the

parent’s payment or failure to pay for a reasonable portion of the child’s care if

9 The family court also found other grounds of parental unfitness set forth in KRS 625.090(2), but we need not address whether these other grounds are supported by the evidence since only one KRS 625.090(2) ground is required to support termination.

-9- financially able to do so. Other than the first factor, the family court found all

factors favored termination.

Regarding the first factor, the family court found no evidence that

Mother was properly diagnosed with mental illness or an intellectual disability.

Regarding the second factor, the family court found the evidence presented at trial

was sufficient to convince it Child was abused or neglected while in Mother’s care.

It also found Child further neglected because of Mother’s failure to fully comply

with case plan requirements so Child could be safely returned to her custody.

Regarding the third factor, the family court found the Cabinet

rendered reasonable reunification efforts by providing appropriate referrals to

services including mental health and substance abuse assessments, parenting

classes, counseling, and supervised visitation. The family court also found that the

Cabinet proved it offered Mother all reasonable reunification services available in

the community and that it was unlikely further services would bring about a lasting

adjustment permitting Child’s safe return. Moreover, it rejected Mother’s assertion

that she could not always take advantage of offered mental health services due to

her employment, since the court found Mother’s usual third shift schedule would

not conflict with mental health appointments.

Regarding the fourth factor (about parental efforts and adjustments),

the family court found Mother completed parenting classes and obtained

-10- employment but failed to fully comply with substance abuse or mental health

treatment requirements, failed to maintain a suitable home, and to refrain from

activities which led to incarceration. The family court also found Mother quit at

least one job during the proceedings, was arrested several times, and was on

probation. The court also noted the social worker’s testimony that Mother failed to

take personal responsibility and found that Mother’s third shift employment should

not interfere with scheduled visits other than Mother having to adjust her sleep

schedule. It found Mother failed to improve her position so that Child could safely

be returned to her care.

Regarding the fifth factor (Child’s health and prospects for

improvement), the family court noted a lack of testimony about Mother’s bond

with Child in contrast to the foster mother’s testimony that Child was adjusting

well and bonded to the foster family. The family court also found indications that

Child’s health (especially his mental and emotional health) had improved since he

came to live with his foster family. It also found Child became upset and suffered

night terrors after having visits with Mother based on the foster mother’s

testimony, and it noted that the social worker described Child as much less fearful

since entering foster care. The court further noted the foster mother testified she

and her family sought to adopt Child.

-11- Regarding the sixth factor, the family court noted Mother was ordered

to pay child support and had made payments for part of her monthly obligation

during the last two months of 2023. However, it found she otherwise had failed to

pay child support and was in arrears. The family court noted Mother testified to

sending letters seeking a child support reduction. But it found that even if Mother

were entitled to a reduction, she would still have a child support obligation; yet,

other than the two payments made in late 2023, had failed to make any payments.

Based on our review of the record, the family court’s factual findings

regarding best interest considerations are supported by substantial evidence.

Furthermore, we discern no abuse of discretion in the family court’s determination

that termination of Mother’s parental rights was in Child’s best interest.

In short, following our independent examination of the record and

review of the family court’s KRS 625.090 findings, “we agree with counsel’s

estimation and perceive no basis warranting relief on appeal.” A.C., 362 S.W.3d at

372. We grant counsel’s motion to withdraw by separate order.

CONCLUSION

For the foregoing reasons, we AFFIRM.

ALL CONCUR.

-12- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY Brandi L. Jones SERVICES: Oak Grove, Kentucky Leslie M. Laupp Covington, Kentucky

-13-