Opinion
NO. 2017-CA-000906-ME 2017-CA-000967-ME
06-07-2019
S.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; E.F.W., A MINOR CHILD; AND C.S., MOTHER APPELLEES AND C.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND E.F.W., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT S.W.: Alice Dansker Doyle Vanceburg, Kentucky BRIEF FOR APPELLANT C.S.: James W. Lyon, Jr. Greenup, Kentucky BRIEFS FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Natasha L. Kinnan Ashland, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 16-AD-00018 OPINION
AFFIRMING
** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. TAYLOR, JUDGE: S.W. and C.S. separately appeal from an order issued by the Greenup Circuit Court on May 3, 2017, terminating each of their parental rights to E.F.W. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012) and Anders v. California, 386 U.S. 738 (1967), counsel for S.W. and C.S. separately filed an Anders brief stating that no meritorious issue exists on appeal. The briefs were accompanied by motions to withdraw, which were passed to this merits panel. After careful review, we agree with both counsels' assessments, grant their motions to withdraw by separate orders and affirm the circuit court's order terminating both S.W. and C.S.'s parental rights.
Though the appeals have not been formally consolidated, we will resolve both in this opinion since each involves the same child.
Relevant Facts
The relevant facts are not in dispute. C.S. is the biological mother and S.W. is the biological father of E.F.W. The Cabinet sought to terminate the parental rights of both C.S. and S.W., and the circuit court eventually conducted a termination hearing in April 2017. At the hearing, the Cabinet for Health and Family Services (Cabinet) first presented the testimony of Mari Ann Caudill, a social worker. She testified that E.F.W. has been in foster care since birth due to C.S. and S.W.'s prior history, including having their parental rights terminated as to two other children. Caudill also stated that S.W. was convicted of third-degree rape of a thirteen-year old child and had a history of domestic violence accusations. In relevant sum, Caudill testified that C.S. and S.W.: had abandoned E.F.W.; had provided no food or support for E.F.W., who had been in foster care for more than fifteen of the last twenty-two months; had failed to comply with or finish the Cabinet's treatment plan(s), which led the Cabinet to change its goal to adoption/termination in 2016; are incapable of caring for E.F.W., due in part to C.S. having mental difficulties; and that both had a history of neglect or abuse of their other children. Caudill also testified that E.F.W. had previously been adjudged a neglected child in juvenile proceedings.
The Cabinet then presented the testimony of Stacia Moreland, a social worker for Greenup Social Services. Moreland testified that when she was assigned to E.F.W.'s case, S.W. was uncooperative and had failed to come in to work on a case plan. Moreland further testified that S.W. had once threatened her life and had admitted at one time that his home was a fire hazard unfit for children. According to Moreland, C.S. was cooperative and did partially complete the case plan. However, C.S. did not know how to properly and timely feed a baby nor had any ability to protect her child. Moreland stated that E.F.W. was not actually harmed but instead had been removed due to the risk of harm.
The Cabinet's final witness was Gary Prater, a psychologist who had evaluated C.S. in 2013. Dr. Prater testified that C.S. was generally pleasant but did not know the alphabet, could not tell time, believed babies began to walk at three to four months of age, did not understand what a feeding schedule is and had an IQ of 59.
Neither C.S. nor S.W. testified at the hearing. The trial court terminated their parental rights by order issued May 3, 2017. These appeals followed. Their counsel filed appeals on behalf of C.S. and S.W. but submitted Anders briefs in each asserting that no meritorious issues exist on which to base both appeals.
Analysis
When a party files an Anders brief in a termination of parental rights case, it does not require appellate courts to address every conceivable argument that an appellant could have raised. A.C., 362 S.W.3d at 370. This Court's review is analogous to a palpable error review requiring only that we ascertain error which affects the substantial rights of a party. Id. Our standard of review of a trial court's judgment terminating parental rights is the clearly erroneous standard, upon determining that the judgment was based on clear and convincing evidence. Kentucky Rules of Civil Procedure (CR) 52.01; Commonwealth, Cabinet for Health and Family Services. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
Under Kentucky Revised Statutes (KRS) 625.090(1)(a)(1)-(2), a "Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence" that "[t]he child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1)" or "[t]he child is found to be an abused or neglected child, as defined in KRS 600.020(1) by the Circuit Court in this proceeding[.]" E.F.W. had previously been found to be abused/neglected in juvenile proceedings in the Greenup Family Court. The circuit court, family division, again found E.F.W. to be abused or neglected following the termination hearing.
KRS 625.090 and KRS 600.020 have both been amended multiple times since the April 2017 termination hearing sub judice. We will utilize, and quote from, the statutes as they existed at the time of the hearing, though the result would not change if we utilized the amended statutes.
Pursuant to KRS 600.020:
1) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent . . . .
. . . .
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
. . . .
6. Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child;
. . . .
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. . . .
9. 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 that results in the child remaining committed to the cabinet and remaining in foster care for fifteen (15) of the most recent twenty-two (22) months. . . .
The circuit court found that E.F.W. was abused or neglected. Based upon Caudill's testimony that C.S. and S.W. had not provided essential support for E.F.W. and that S.W. was convicted of third-degree rape involving a thirteen-year old, as well as the testimony of Caudill, Moreland and Prater generally detailing C.S.'s mental difficulties and S.W.'s unwillingness to work with the Cabinet (including, inter alia, his having threatened a social worker and admitting his home was not a fit place for a child to reside), we find no error in the circuit court's conclusion that there was ample evidence to satisfy subsections (4), (6), (8) and (9). In short, having reviewed the record, the circuit court's finding of abuse and neglect was supported by clear and convincing evidence and thus was not clearly erroneous.
KRS 625.090 provides in relevant part as follows:
(2) 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:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
. . . .
(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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
. . . .
(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights.
The circuit court found the ground in subsection (a) was satisfied because neither C.S. nor S.W. "participate[d] meaningfully in child's medical care, have failed to financially support the child and have not provided any food, clothing or appropriate and safe housing for the child." As we have held, "[a]bandonment is not actually defined in our jurisprudence in the context of termination proceedings." S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky.App. 2010). Black's Law Dictionary (10th ed. 2014) defines "abandonment" in the family law context as "[t]he act of leaving a spouse or child willfully and without an intent to return." We similarly have held that "abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983).
E.F.W. was involuntarily taken from her parents at birth. Thereafter, neither parent completed the Cabinet's case plan, which could have reunited them with E.F.W. In fact, it appears as if S.W. made little to no effort to complete the plan. Moreover, neither parent provided food, clothing or medical care for E.F.W. Given the parents' lack of voluntary involvement in E.F.W.'s life, we conclude the circuit court did not clearly err by concluding that C.S. and S.W. abandoned E.F.W., despite their never having had full custody and control of the child. See, e.g., K.M.E. v. Commonwealth, 565 S.W.3d 648, 656 (Ky. App. 2018) (affirming trial court's conclusion that father who talked to children on the phone nonetheless abandoned the children due to father's "total failure to provide child support, a birthday card, a Christmas toy, a meal, or even stroll with them around a park"); T.N.H., 302 S.W.3d at 662 ("Just because the child, and the parent for that matter, are committed to the Cabinet does not mean that the parent has no further responsibilities to the child.").
We reject any argument that termination was improper because the Cabinet did not allow C.S. and S.W. to try to parent E.F.W. before removing her. Given both parents' extensive history, the Cabinet acted permissibly by protectively removing E.F.W. since, as S.W.'s counsel's cogently observed in her Anders brief, "the risk of harm was too great to allow the child to live with [C.S. and S.W.] even for a short time." S.W.'s Brief at 7.
Additionally, there is overwhelming evidence supporting the circuit court's conclusion that the Cabinet established several other grounds to support termination under KRS 625.090(2). For example, the Cabinet presented unrebutted evidence that neither C.S. nor S.W. provided food, clothing and medical care for E.F.W., nor did they complete the case plan for reunification. Thus, we find no clear error in the trial court's conclusion that the Cabinet had satisfied the grounds set out in subsections (e) and (g) of KRS 625.090(2). Likewise, it is uncontested in the record on appeal that E.F.W. was in foster care for more than fifteen of the twenty-two months preceding the filing of the termination petition. Similarly, there is no dispute that E.F.W. was born during the pendency of the involuntary termination proceedings for C.S. and S.W.'s other children, and the conditions leading to those terminations had not been corrected. Therefore, we find no error in the trial court's conclusion that the Cabinet had satisfied those grounds set forth in subsections (h) and (j) of KRS 625.090(2). In sum, based on our review of the record, we hold that the circuit court's findings were not clearly erroneous, and that it was in the best interest of E.F.W. to terminate C.S. and S.W.'s parental rights.
Conclusion
Accordingly, for the reasons and grounds set forth herein, including that no meritorious issue has been raised on appeal, the circuit court's order rendered May 3, 2017, terminating C.S. and S.W.'s parental rights is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT S.W.: Alice Dansker Doyle
Vanceburg, Kentucky BRIEF FOR APPELLANT C.S.: James W. Lyon, Jr.
Greenup, Kentucky BRIEFS FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY: Natasha L. Kinnan
Ashland, Kentucky