RENDERED: DECEMBER 13, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0421-ME
M.Y.D. APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 23-AD-00029
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, AS NEXT FRIEND OF E.A.G.; E.A.G., A MINOR CHILD; AND J.E.G. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
JONES, A., JUDGE: M.Y.D. (“Mother”) appeals from an order of the Muhlenberg
Circuit Court terminating her parental rights over E.A.G. (“Child”). In accordance
with A.C. v. Cabinet for Health and Family Services, 326 S.W.3d 361 (Ky. App.
2012), Mother’s counsel filed an Anders1 brief, accompanied by a motion to
1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). withdraw as counsel, alleging that this appeal is wholly frivolous, and that there is
no meritorious argument to present to this Court on appeal. Thereafter, this Court
advised Mother of her right to continue this appeal pro se, and she was provided
with additional time to file a brief of her own choosing. Mother did not file a brief
or take any other action in relation to this appeal. The Cabinet filed an appellee
brief in support of the circuit court’s order of termination.
This matter is now ripe for our review. Following careful review of
the record, and all applicable law, we grant counsel’s motion to withdraw by
separate order and affirm the circuit court’s order terminating Mother’s parental
rights.2
I. BACKGROUND
In December 2019, Child was born in Hopkins County, Kentucky, at
home, at twenty-eight weeks of gestation.3 Thereafter, Mother and Child were
transported to a local hospital, where both tested positive for methamphetamines.
Due to Child’s serious medical condition, she was transferred to Vanderbilt
University Medical Center, where she remained until October 9, 2020. When it
was time for Child to be discharged, Mother could not be located. Consequently,
2 Appellee, J.E.G. (“Father”), is Child’s biological father. Father’s parental rights were also terminated as part of the order on appeal. However, Father has not appealed and has not entered an appearance in this appeal despite being named as an appellee. This Opinion considers only the propriety of the circuit court’s termination of Mother’s parental rights. 3A child born between thirty-nine and forty weeks of gestation is considered to be full term.
-2- the Cabinet filed a Dependency, Neglect, and Abuse (“DNA”) petition on Child’s
behalf and was granted custody.
Child was returned to Mother’s care on April 5, 2021, but custody was
transferred back to the Cabinet on April 14, 2022, after the Cabinet was alerted that
Child’s medical condition had become dire. On July 20, 2023, the Cabinet
petitioned to terminate Mother’s parental rights. The circuit court held a two-day
evidentiary hearing on January 3 and February 15, 2024. Several witnesses
testified at the hearing including: (1) Child’s pediatrician, Dr. Billie Galyen; (2)
the family’s case management nurse, Brittany Sheldon; (3) the family’s ongoing
social worker, Stephanie Littlepage; (4) Child’s foster mother; and (5) Mother. We
have carefully reviewed all the testimony. Below, we summarize only those facts
which are necessary to a proper understanding of this appeal.
Dr. Galyen explained that shortly after her birth Child was diagnosed
with necrotizing enterocolitis (“NEC”), a life-threatening condition common
among premature infants, like Child. NEC causes the tissue lining the intestines to
become inflamed, die, and slough off. Due to her NEC, Child has a gastrostomy
tube (“G-tube”) for feedings and receives additional nutrition through a parenteral
nutrition (“PN”) line.4 Child also has a peripherally inserted central catheter
4 A PN line is a catheter inserted into a vein to deliver nutrients directly into the bloodstream, bypassing the digestive system, while a G-tube is a feeding tube surgically placed through the abdominal wall directly into the stomach, allowing for liquid nutrition to be delivered through -3- (“PICC”) line. Dr. Galyen classified Child as “medically fragile” because her NEC
requires ongoing medical care, treatment, and support. Currently, she is seen by
multiple medical specialists, including pulmonologists, cardiologists, and
gastroenterologists. She also receives speech therapy, occupational therapy, and
physical therapy. Dr. Galyen testified that while in Mother’s care, Child’s PICC
line became infected, causing a life-threatening case of sepsis. Additionally, Child
was found to be underweight and behind in her developmental milestones after she
was removed from Mother’s care in 2022. Significant progress occurred after
Child reentered foster care.
Nurse Sheldon began working with Mother in March of 2021 shortly
before Child was returned to Mother’s custody in April 2021, and she elaborated
on Mother’s care of Child between April 2021 and April 2022. Nurse Sheldon
described instances of substandard care, including unhooked oxygen lines,
improper handling of medical equipment, and a lack of refrigeration for vital
medications and nutritional supplements. Child missed several medical
appointments and showed signs of malnutrition under Mother’s care. Nurse
Sheldon also observed Mother’s lack of engagement during visits and
the digestive tract. Essentially, a PN line delivers nutrition intravenously, while a G-tube delivers nutrition through the stomach.
-4- unresponsiveness to guidance, eventually prompting her to contact the Cabinet for
intervention.
Social Worker Stephanie Littlepage testified about the Cabinet’s
involvement, beginning in April 2022, when it was reported that Child was in a
life-threatening condition. During a home visit, Littlepage discovered that Child’s
central line had been out for over 24 hours, and Mother refused to transport her to
the hospital despite the urgency. After significant persuasion, Mother relented, and
Child was hospitalized in critical condition and later transferred to Vanderbilt
University Medical Center. Tests revealed that Child had not been receiving her
medications, was malnourished, and had a blood clot, requiring a month-long
hospitalization.
Littlepage described the Cabinet’s repeated efforts to engage Mother
in case planning, including tasks like maintaining stable housing, attending
parenting classes, following medical advice, and submitting to drug testing.
Despite eight attempts at case planning, Mother refused to cooperate, often
dismissing the need for such steps. She missed most of Child’s medical
appointments, did not have stable housing or reliable transportation, and frequently
fell asleep during supervised visits. Mother also refused random drug testing and
failed to provide consistent financial or medical support for Child. Littlepage
concluded that Mother’s lack of engagement and failure to meet Child’s needs left
-5- no viable alternatives for the Cabinet to pursue, and she recommended terminating
Mother’s parental rights as being in Child’s best interest.
Child’s foster mother testified about the demanding nature of Child’s
care and described her remarkable progress in the foster home.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: DECEMBER 13, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0421-ME
M.Y.D. APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 23-AD-00029
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, AS NEXT FRIEND OF E.A.G.; E.A.G., A MINOR CHILD; AND J.E.G. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND A. JONES, JUDGES.
JONES, A., JUDGE: M.Y.D. (“Mother”) appeals from an order of the Muhlenberg
Circuit Court terminating her parental rights over E.A.G. (“Child”). In accordance
with A.C. v. Cabinet for Health and Family Services, 326 S.W.3d 361 (Ky. App.
2012), Mother’s counsel filed an Anders1 brief, accompanied by a motion to
1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). withdraw as counsel, alleging that this appeal is wholly frivolous, and that there is
no meritorious argument to present to this Court on appeal. Thereafter, this Court
advised Mother of her right to continue this appeal pro se, and she was provided
with additional time to file a brief of her own choosing. Mother did not file a brief
or take any other action in relation to this appeal. The Cabinet filed an appellee
brief in support of the circuit court’s order of termination.
This matter is now ripe for our review. Following careful review of
the record, and all applicable law, we grant counsel’s motion to withdraw by
separate order and affirm the circuit court’s order terminating Mother’s parental
rights.2
I. BACKGROUND
In December 2019, Child was born in Hopkins County, Kentucky, at
home, at twenty-eight weeks of gestation.3 Thereafter, Mother and Child were
transported to a local hospital, where both tested positive for methamphetamines.
Due to Child’s serious medical condition, she was transferred to Vanderbilt
University Medical Center, where she remained until October 9, 2020. When it
was time for Child to be discharged, Mother could not be located. Consequently,
2 Appellee, J.E.G. (“Father”), is Child’s biological father. Father’s parental rights were also terminated as part of the order on appeal. However, Father has not appealed and has not entered an appearance in this appeal despite being named as an appellee. This Opinion considers only the propriety of the circuit court’s termination of Mother’s parental rights. 3A child born between thirty-nine and forty weeks of gestation is considered to be full term.
-2- the Cabinet filed a Dependency, Neglect, and Abuse (“DNA”) petition on Child’s
behalf and was granted custody.
Child was returned to Mother’s care on April 5, 2021, but custody was
transferred back to the Cabinet on April 14, 2022, after the Cabinet was alerted that
Child’s medical condition had become dire. On July 20, 2023, the Cabinet
petitioned to terminate Mother’s parental rights. The circuit court held a two-day
evidentiary hearing on January 3 and February 15, 2024. Several witnesses
testified at the hearing including: (1) Child’s pediatrician, Dr. Billie Galyen; (2)
the family’s case management nurse, Brittany Sheldon; (3) the family’s ongoing
social worker, Stephanie Littlepage; (4) Child’s foster mother; and (5) Mother. We
have carefully reviewed all the testimony. Below, we summarize only those facts
which are necessary to a proper understanding of this appeal.
Dr. Galyen explained that shortly after her birth Child was diagnosed
with necrotizing enterocolitis (“NEC”), a life-threatening condition common
among premature infants, like Child. NEC causes the tissue lining the intestines to
become inflamed, die, and slough off. Due to her NEC, Child has a gastrostomy
tube (“G-tube”) for feedings and receives additional nutrition through a parenteral
nutrition (“PN”) line.4 Child also has a peripherally inserted central catheter
4 A PN line is a catheter inserted into a vein to deliver nutrients directly into the bloodstream, bypassing the digestive system, while a G-tube is a feeding tube surgically placed through the abdominal wall directly into the stomach, allowing for liquid nutrition to be delivered through -3- (“PICC”) line. Dr. Galyen classified Child as “medically fragile” because her NEC
requires ongoing medical care, treatment, and support. Currently, she is seen by
multiple medical specialists, including pulmonologists, cardiologists, and
gastroenterologists. She also receives speech therapy, occupational therapy, and
physical therapy. Dr. Galyen testified that while in Mother’s care, Child’s PICC
line became infected, causing a life-threatening case of sepsis. Additionally, Child
was found to be underweight and behind in her developmental milestones after she
was removed from Mother’s care in 2022. Significant progress occurred after
Child reentered foster care.
Nurse Sheldon began working with Mother in March of 2021 shortly
before Child was returned to Mother’s custody in April 2021, and she elaborated
on Mother’s care of Child between April 2021 and April 2022. Nurse Sheldon
described instances of substandard care, including unhooked oxygen lines,
improper handling of medical equipment, and a lack of refrigeration for vital
medications and nutritional supplements. Child missed several medical
appointments and showed signs of malnutrition under Mother’s care. Nurse
Sheldon also observed Mother’s lack of engagement during visits and
the digestive tract. Essentially, a PN line delivers nutrition intravenously, while a G-tube delivers nutrition through the stomach.
-4- unresponsiveness to guidance, eventually prompting her to contact the Cabinet for
intervention.
Social Worker Stephanie Littlepage testified about the Cabinet’s
involvement, beginning in April 2022, when it was reported that Child was in a
life-threatening condition. During a home visit, Littlepage discovered that Child’s
central line had been out for over 24 hours, and Mother refused to transport her to
the hospital despite the urgency. After significant persuasion, Mother relented, and
Child was hospitalized in critical condition and later transferred to Vanderbilt
University Medical Center. Tests revealed that Child had not been receiving her
medications, was malnourished, and had a blood clot, requiring a month-long
hospitalization.
Littlepage described the Cabinet’s repeated efforts to engage Mother
in case planning, including tasks like maintaining stable housing, attending
parenting classes, following medical advice, and submitting to drug testing.
Despite eight attempts at case planning, Mother refused to cooperate, often
dismissing the need for such steps. She missed most of Child’s medical
appointments, did not have stable housing or reliable transportation, and frequently
fell asleep during supervised visits. Mother also refused random drug testing and
failed to provide consistent financial or medical support for Child. Littlepage
concluded that Mother’s lack of engagement and failure to meet Child’s needs left
-5- no viable alternatives for the Cabinet to pursue, and she recommended terminating
Mother’s parental rights as being in Child’s best interest.
Child’s foster mother testified about the demanding nature of Child’s
care and described her remarkable progress in the foster home. Under consistent
medical oversight and therapy, Child has thrived, achieving age-appropriate
developmental milestones, and forming meaningful bonds. The foster family
expressed a desire to adopt Child, believing it was in her best interest.
Mother’s testimony largely contradicted the other evidence presented,
as she minimized her shortcomings and attributed difficulties to external factors.
She admitted to past substance use but claimed to be sober, although her recent
hospital records indicated otherwise.5 Despite claiming she could meet Child’s
needs, Mother provided little documentation to support her assertions.
Ultimately, the family court terminated Mother’s parental rights on
March 6, 2024, citing her inability to provide a safe and stable environment for
Child. This appeal followed.
II. ANALYSIS
In A.C., this Court adopted the procedures identified in Anders to
appeal from orders terminating parental rights when counsel has concluded that the
5 Mother had an additional child in July of 2023. Mother and her second child both tested positive for methamphetamines at birth. The second child is also in Cabinet’s custody but parental rights as to the second Child are not at issue in the present appeal. -6- appeal is frivolous. A.C., 362 S.W.3d at 371. Counsel is required to “conduct[] a
thorough, good-faith review of the record.” Id. “[O]nce counsel has reached the
conclusion that the appeal is wholly frivolous, counsel ‘should so advise the court
and request permission to withdraw.’” Id. (quoting Anders, 386 U.S. at 744, 87 S.
Ct. at 1400). “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. This review “is akin to palpable error
review requiring us only to ascertain error which ‘affects the substantial rights of a
party.’” A.C., 362 S.W.3d at 370.
KRS6 625.090 sets forth the requirements which must be met before a
court in Kentucky can involuntarily terminate a parent’s rights to her child. First,
as it concerns this appeal, the lower court must determine that the child is an
abused or neglected child or that the child was previously determined to be an
abused or neglected child by a court of competent jurisdiction. KRS
625.090(1)(a)1.-2. Second, a petition seeking the termination of parental rights
must have been filed by the Cabinet pursuant to KRS 620.180 or 625.050. KRS
625.090(1)(b)1. Third, the lower court must find that termination is in the best
6 Kentucky Revised Statutes. -7- interest of the child. KRS 625.090(1)(c). Finally, the lower court must find by
clear and convincing evidence the existence of one or more of the eleven grounds
(a) through (k) listed in KRS 625.090(2). Even if all these requirements are met,
the court may choose in its discretion not to terminate a parent’s rights if the parent
has established by a preponderance of the evidence that the child will not continue
to be an abused or neglected child if returned to the parent. KRS 625.090(5).
After the termination hearing, the lower court is required to make
findings of fact and conclusions of law supporting its decision on the termination
petition. Id. “Broad discretion is afforded to trial courts to determine whether
parental rights should be terminated, and our review is limited to a clearly
erroneous standard.” Cabinet for Health and Family Services v. H.L.O., 621
S.W.3d 452, 462 (Ky. 2021). Factual findings which are supported by substantial
evidence of record are not clearly erroneous. R. M. v. Cabinet for Health and
Family Services, 620 S.W.3d 32, 37 (Ky. 2021). “Substantial evidence is that
which is sufficient to induce conviction in the mind of a reasonable person.” Id.
“When the findings are supported by substantial evidence, then appellate review is
limited to whether the facts support the legal conclusions which we review de
novo. If the [lower] court’s factual findings are not clearly erroneous and the legal
conclusions are correct, we are limited to determining whether the [lower] court
-8- abused its discretion in applying the law to the facts.” H.L.O., 621 S.W.3d at 462
(citing CR7 61.02).
The family court properly found Child was a neglected Child. An
abused or neglected child includes a child whose health or welfare is harmed or
threatened with harm when her parent inflicts physical or emotional injury on the
child, creates a risk of physical injury other than by accidental means, engages in a
pattern of conduct that renders the parent incapable of caring for the immediate and
ongoing needs of the child, continuously or repeatedly fails or refuses to provide
essential parental care and protection for the child, does not provide the child with
adequate care, supervision, food, clothing, shelter, and education or medical care
necessary for the child’s well-being, or fails 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. KRS 600.020(1)(a).
In paragraph 10 of its findings of fact, the circuit court thoroughly
explained its determination that Child was neglected. The circuit court relied
significantly on Social Worker Littlepage’s testimony, which highlighted Mother’s
refusal to cooperate with the Cabinet or participate in essential services such as in-
person parenting classes, drug testing, and treatment. Additionally, the circuit
court emphasized that Mother’s neglect of Child’s critical medical needs while in
7 Kentucky Rules of Civil Procedure. -9- her custody led to a prolonged hospitalization. This conclusion was further
supported by testimony from Nurse Sheldon and Dr. Galyen. In sum, substantial
evidence was presented to uphold the circuit court’s finding of neglect.
The next requirement is that termination must be in Child’s best
interest considering the factors set forth in KRS 625.090(3)(a)-(f). After
considering the required factors, circuit court concluded termination was in Child’s
best interest. The evidence supports this conclusion. Dr. Galyen and Nurse
Sheldon explained Child’s medical needs, and foster mother testified about the
time and attention required to meet those needs day-to-day. In the past, Mother
was either unable or unwilling to devote the time and attention necessary to keep
Child healthy. She missed numerous medical appointments, failed to follow
medical directives, and delayed in seeking medical care when Child became
seriously ill. Additionally, at the time of her removal Child was underweight and
showed delayed development. After re-entering foster care, Child has been able to
catch back up and is doing very well. She is thriving in her current placement and
her foster parents are willing to adopt her. For her part, Mother has remained
largely noncompliant and has been unwilling to take part in any case planning.
Overall, the best interest factors overwhelmingly support the circuit court’s
conclusion that termination of Mother’s parental rights was in Child’s best interest.
-10- Finally, there is clear and convincing evidence that one or more of the
enumerated termination grounds in KRS 625.090(2) are present. Specifically, the
family court found the existence of:
(e) That the parent, 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 that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
...
(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; ...
(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[.]
Child has been in foster care for some time. She spent over five
months in Cabinet custody from October 9, 2020, until April 14, 2021. She was
then removed again on April 14, 2022, and has remained in the Cabinet’s custody
since that time. Mother has missed repeated medical visits and has demonstrated
an inability to properly meet Child’s medical needs. While Mother did provide -11- Child with some essentials, the family court doubted her credibility, and overall
found more credible the testimony of the Social Worker Littlepage, the foster
mother, and Child’s healthcare providers. The credibility of the witnesses is a
matter squarely within the province of the trial court. Moore v. Asente, 110 S.W.3d
336, 354 (Ky. 2003). Mother does not have stable housing or transportation.
Mother has admittedly recently used illegal substances. Given Mother’s repeated
obstinance to case plan or drug screen with the Cabinet, we agree there is no
reasonable expectation of improvement.
III. CONCLUSION The Court in the case now before it has undertaken the appropriate
review and agrees with counsel for Mother that there is no nonfrivolous ground
that would justify reversal of the family court. Accordingly, we affirm the order of
the Muhlenberg Circuit Court, terminating Mother’s parental rights.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jonathan S. King Dilissa G. Milburn Central City, Kentucky Mayfield, Kentucky
-12-