Opinion
2021-CA-0945-ME
04-01-2022
M.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.M., MOTHER; AND M.M., A MPNOR CHILD APPELLEES
BRIEF FOR APPELLANT: Kristen S. Simpson Paducah, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE DEANNA WISE HENSCHEL, JUDGE ACTION NO. 21-J-00107-001
BRIEF FOR APPELLANT:
Kristen S. Simpson
Paducah, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY:
Leslie M. Laupp
Covington, Kentucky
BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE.
M.M. (the Father) has appealed from the order of the McCracken Circuit Court finding that he had neglected M.M. (the Child). We affirm.
This appeal arose from the filings of juvenile dependency, neglect, or abuse (DNA) petitions against the Father and J.M. (the Mother) (collectively, the Parents) related to the Child, born in 2012. Cabinet for Health and Family Services (the Cabinet) social worker Cassandra Steele filed the petitions on May 6, 2021, making neglect allegations as to the Parents following an incident which occurred at the Child's school that day. As grounds, Ms. Steele, in the petition against the Father, stated as follows as to the Child:
The Mother has an older child from a previous relationship. This appeal does not concern the older child. Furthermore, the Mother is not subject to this appeal. It strictly deals with the Father's appeal from the DNA finding pertaining to the Child born in 2012.
There ha[ve] been ongoing issues with domestic violence between [the Father] and [the Mother] in front of the children. [The Father] was arrested during the last incident in Jan 2021 for assaulting [the Mother] at Walmart, and there are bond conditions of no contact. [The Mother] has been referred to UK-TAP services and was able to get housing, which she has since left. She has gone to the Merryman House short term, but has violated their terms and exited. [The Cabinet] has competed several plans with [the Mother] regarding her keeping the children safe and being protective by not allowing them around [the Father], but she has continued to violate. [The Child] has confirmed that they are all staying in [the Father's] home currently, which violates the bond conditions. There are also concerns of substance abuse by the parents and neither will submit to a drug screen for the Cabinet. [The Father] showed up to the school today to sign [the Child] out of school. He presented with signs consistent with being under the influence. Law enforcement was called, but he was only arrested for an active bench warrant he had out. [The Cabinet] is requesting court ordered cooperation from the family to assess the safety of the children and the potential substance abuse for the parents.
A remote hearing was held on May 13, 2021. By written order entered four days later, the family court memorialized its findings and held that the Parents had neglected the Child. The court did not remove the Child, but ordered the Parents to cooperate with the Cabinet, follow bond conditions, and submit to drug screening. The adjudication hearing was scheduled for the following month. Counsel was appointed for the Mother, and a guardian ad litem was appointed for the Child. The Father, who had retained private counsel, was later given leave to request appointed counsel after private counsel withdrew.
The Father did not attend the adjudication hearing on June 10, 2021. The family court ordered, pending disposition of the matter, that the Cabinet receive temporary custody. The Child was placed in foster care.
The disposition hearing was scheduled to be held on June 17, 2021. Both Parents appeared remotely. The matter was continued to July 1, 2021, in order to give the parties and respective counsel time to review the Cabinet's report and because the Parents had requested the court to consider the maternal great-grandmother for the Child's temporary placement. The Father was ordered to submit to drug testing in order to begin supervised visitation with the Child. Counsel was appointed for the Father.
The Father's subsequent test results indicated the presence of several controlled substances (amphetamines, methamphetamines, cocaine, opiates, and marijuana). The Mother also tested positive for similar substances.
At the disposition hearing, the court was made aware of a further domestic incident between the Parents. There were many witnesses to the confrontation (it took place at the Child's birthday party in a public venue), and it was videotaped for the court to see. Witnesses at the hearing were two social workers for the Cabinet, the maternal great-grandmother, the Father, and the foster mother.
The court made the following findings about the Father, including his testimony and his behavior during the hearing:
[The Father] questioned each witness and was difficult to control during the hearing. His behavior is wild and his disrespect for the Court and all involved increased throughout the proceedings. He denied beating [the Mother] and stated that all he does is go to work and be at home to be with his family. He admitted they scream and have 'misunderstandings[, ]' but those are because of [the Mother] and her drug use and choices. He was in jail for ten months in 2018 and she turned while he was in jail. The police have been to their home 15 times [because] of a neighbor that constantly called, not because [the Mother] called them. He was arrested in the parking lot at Walmart [because] he talked too much, which he does. He talked his way into the handcuffs that day. He's not [a] thug, he's a working man. He pays his rent. He doesn't bother people. He's at home. He doesn't go to anyone's home without calling first. He knows where the foster mother lives too. He and [the
Mother] are going to be getting into a program. He and [the Mother] are together.
Finally, after being questioned by the Court and then warned multiple times to be quiet and control himself[, he] left and said, "[F***] this Court." The Judge held him in contempt and sentenced him to 48 hours in the McCracken County Jail.
The family court concluded that the Child suffered from neglect because of the Parents' ongoing drug abuse and domestic violence incidents, and that there were no less restrictive alternatives than to place the Child in the maternal great-grandparents' home (with the Cabinet to conduct an evaluation of that home within the next two days). The Mother would be allowed supervised visitation if she passed a drug screen. The Father was to be restrained from going within 500 feet of the home until further order of the court, but he could petition the court after a negative drug test and completion of a Domestic Batterer's Assessment (and follow the recommended treatment). The court appointed a special advocate (CASA) pursuant to Kentucky Revised Statutes (KRS) 620.050. The matter was scheduled for review on September 9, 2021.
The Father appeals from the finding of neglect. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for the Father filed an Anders brief conceding there were no meritorious issues for appeal. Said brief was accompanied by counsel's motion to withdraw. Considering the motion to withdraw, "we are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal. Anders, 386 U.S. at 744, 87 S.Ct. at 1400." A.C., 362 S.W.3d at 372. We note that the Father has not filed a supplemental brief, although he was given time to do so. After review of the record and the parties' briefs, we affirm, and grant counsel's motion to withdraw by separate order.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Our standard of review is set forth in B.B. v. Cabinet for Health and Family Services, 635 S.W.3d 802, 807-08 (Ky. 2021) (footnote omitted):
In a DNA action, the trial court has a great deal of discretion in determining whether the child is dependent, neglected, or abused. Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (See also M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998)). Under CR [Kentucky Rule of Civil Procedure] 52.01, a trial court's finding of fact "shall not be set aside unless clearly erroneous[.]" However, before considering whether the trial court's order met the clearly erroneous standard required in DNA petitions, we must consider the evidentiary issues which form the basis of this appeal. On evidentiary matters, the proper appellate standard of review is abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 576 (Ky. 2000). "The test for abuse of discretion is whether the court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018) (internal citation omitted).
Additionally, "the trial court, as the finder of fact, has the responsibility to judge the credibility of all testimony, and may choose to believe or disbelieve any part of the evidence presented to it." Cabinet for Health & Fam. Servs. v. P.W., 582 S.W.3d 887, 896 (Ky. 2019) (citing Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977)). If a trial court's findings of fact are supported by substantial evidence and the correct law is applied, the appellate court will not disturb the decision unless an abuse of discretion has occurred. Cabinet for Health & Fam. Servs. v. R.S., 570 S.W.3d 538, 546 (Ky. 2018) (internal citation omitted).KRS Chapter 620 of the Unified Juvenile Code sets forth the procedures in DNA cases. KRS 600.020(1) defines an abused or neglected child, in relevant part, as follows:
(1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:
. . . .
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental
incapacity due to a substance use disorder as defined in KRS 222.005[.]
We have independently reviewed the record and are satisfied that "the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372. The Cabinet's petition was properly brought, the family court considered all testimony and evidence of record, the Father was appointed counsel and afforded the opportunity to question witnesses and testify in his own behalf, and the statutory guidelines were followed. The Father's behavior, failure to cooperate, and continued substance abuse provided ample grounds for the family court to base its decision that the Child's "health or welfare [wa]s harmed or threatened with harm[.]" KRS 600.020(1). Accordingly, we conclude that the trial court's finding of neglect was supported by substantial evidence and did not constitute an abuse of discretion. B.B., 635 S.W.3d at 807-08.
The order of the McCracken Circuit Court is affirmed. Counsel's motion to withdraw shall be granted in a separate order entered simultaneously with this Opinion.
ALL CONCUR.