B.A.D. v. Commonwealth

• Decision Date: 11 June 2021
• Docket Number: NO. 2020-CA-1447-ME,NO. 2020-CA-1449-ME,NO. 2020-CA-1448-ME,NO. 2020-CA-1450-ME,2020-CA-1447-ME,2020-CA-1448-ME,2020-CA-1449-ME,2020-CA-1450-ME
• Parties: B.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.K.D., A CHILD APPELLEES AND B.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND M.D.D., JR., A CHILD APPELLEES AND B.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.R.D., A CHILD APPELLEES AND B.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND C.M.D., A CHILD APPELLEES
• Court: Kentucky Court of Appeals

B.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; AND M.K.D., A CHILD APPELLEESANDB.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; AND M.D.D., JR., A CHILD APPELLEESANDB.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; AND L.R.D., A CHILD APPELLEESANDB.A.D. AND M.D.D. APPELLANTS v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH ANDFAMILY SERVICES; AND C.M.D., A CHILD APPELLEES

NO. 2020-CA-1447-ME

NO. 2020-CA-1448-ME

NO. 2020-CA-1449-ME

NO. 2020-CA-1450-ME

Commonwealth of Kentucky Court of Appeals

JUNE 11, 2021

NOT TO BE PUBLISHED

APPEAL FROM OLDHAM FAMILY COURT

HONORABLE DOREEN S. GOODWIN, JUDGE

ACTION NO. 20-AD-00001

APPEAL FROM OLDHAM FAMILY COURT

HONORABLE DOREEN S. GOODWIN, JUDGE

ACTION NO. 20-AD-00002

APPEAL FROM OLDHAM FAMILY COURT

HONORABLE DOREEN S. GOODWIN, JUDGE

ACTION NO. 2020-AD-00003

APPEAL FROM OLDHAM FAMILY COURT

HONORABLE DOREEN S. GOODWIN, JUDGE

ACTION NO. 20-AD-00004

OPINION

AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: B.A.D. and M.D.D. have appealed from the orders of the Oldham Family Court involuntarily terminating their parental rights to four of their children and placing the children in the custody of the Cabinet for Health and Family Services with authority to place them for adoption. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for each appellant has filed a motion to withdraw their representation along with an Anders¹ brief conceding that there is no merit to the appeal.² We affirm.

B.A.D. (the Mother) and M.D.D. (the Father) are married and are the parents of the children involved in these actions: M.K.D., a daughter born in February 2011 (Child 1); C.M.C., a son born in September 2012 (Child 2); L.R.D., a daughter born in February 2014 (Child 3); and M.D.D., a son born in May 2017(Child 4) (collectively, "the children"). They are also the parents of a son born in January 2019 (Child 5), who is in the permanent custody of other people and is not involved in this litigation. Juvenile dependency, neglect, and abuse (DNA) petitions were filed with the family court in June 2018 for the children following allegations of domestic violence and illegal drugs in the home, and they were subsequently removed from the parents' care in September 2018 and placed into the Cabinet's custody based upon a finding of neglect. The children have remained in foster care since that time. The Cabinet worked to reunite the family by developing case plans for the parents to complete. When these plans were unsuccessful, the court changed the permanency goal to adoption in October 2019. The children were committed to the Cabinet pursuant to orders entered November 1, 2019.

On January 2, 2020, the Cabinet filed petitions seeking the involuntary termination of parental rights as to both parents, alleging that they failed to protect and preserve the children's fundamental rights to a safe and nurturing home, that the children were abused or neglected pursuant to Kentucky Revised Statutes (KRS) 600.020, and that it was in the children's best interests for parental rights to be terminated. The Cabinet went on to allege that, for not less than six months, the parents failed to provide or were substantially incapable of providing essential parental care and protection for the children and there was noreasonable expectation of improvement, considering the age of the children; that they failed to provide or were incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary for the children's well-being and there was no expectation of significant improvement in their conduct in the immediately foreseeable future, considering the age of the children; and that the children had been in foster care under the Cabinet's custody for 15 cumulative months out of the 48 months preceding the filing of the petitions due to the parents' failure to make sufficient progress toward their identified goals. Attorneys were appointed for the parents, and a guardian ad litem (GAL) was appointed to represent the children's interests. The court held a termination hearing on July 28 and 29, 2020, after which it concluded that termination of parental rights was appropriate. These appeals by the parents now follow.

The attorneys for the parents have moved to withdraw and filed an Anders brief, stating that there were no grounds upon which relief could be granted. Considering the motions 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 neither parent has filed a supplemental brief, although they were given time to do so. After review of the record and the parties'briefs, we affirm, and grant counsels' motions to withdraw by separate order entered this date.

In Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204 (Ky. 2014), the Supreme Court of Kentucky addressed the involuntary termination of parental rights, recognizing the concern such cases raise and stating:

The involuntary termination of parental rights is a scrupulous undertaking that is of the utmost constitutional concern. See M.L.B. v. S.L.J., 519 U.S. 102, 119-20, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The U.S. Supreme Court has unequivocally held that a parent has a "fundamental liberty interest" in the care and custody of his or her child. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). This fundamental interest "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. . . ." Id. at 754-55, 102 S. Ct. 1388. Therefore, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id.

The Commonwealth's TPR statute, found in KRS 625.090, attempts to ensure that parents receive the appropriate amount of due process protections. KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.

K.H., 423 S.W.3d at 209.

As to the applicable standard of review, in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998), this Court recognized that:

The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, Ky. App., 552 S.W.2d 672, 675 (1977). This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human Resources, Ky.App., 706 S.W.2d 420, 424 (1986).

"Clear and convincing proof 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." Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934).

And more recently, the Supreme Court has stated:

"Pursuant to this standard, an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." [Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).] Due to the fact that "termination decisions are so factually sensitive, appellate courts are generally loathe to reverse them, regardless of the outcome." [D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012).]

K.H., 423 S.W.3d at 211.

We have conducted an independent review of the record and conclude there is sufficient evidence to support the family court's order. There was substantial compliance with the "clear and convincing" evidence standard enunciated in Santosky v. Kramer, 455 U.S. at 769, 102 S. Ct. at 1403; accord J.E.H. v. Dep't for Human Resources, 642 S.W.2d 600, 603 (Ky. App. 1982).

The family court's findings of fact and conclusions of law contain extensive findings. Of note, the family court specifically found that the parents lacked credibility.

The Court finds [the parents] do the bare minimum needed shortly before critical court hearings and present themselves in an overly positive light. As alluded to by Ms. Clark, the parents go through the motions without demonstrating meaningful change. The Court agrees with Dr. Hammon, [the Mother] is a poor historian and takes little accountability for her actions. Similarly, [the Father] takes little responsibility for his actions, and tends to shift blame[] to others. Both parents testified that the children's behaviors were the result of them being removed from their care and placed in foster care. This demonstrates to the Court the parents' lack of insight into their children's behaviors and needs. The parents' failure to recognize that they are a source of the children's trauma places the children at risk of future harm and neglect. The parents adamantly believe that they did nothing wrong beyond arguing in front of the children. They fail to take responsibility for the

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