B.K.L. v. Cabinet for Health & Family Servs.

• Decision Date: 15 May 2020
• Docket Number: NO. 2019-CA-000767-ME,2019-CA-000767-ME
• Parties: B.K.L. APPELLANT v. CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND S.S.L., A MINOR CHILD APPELLEES
• Court: Kentucky Court of Appeals

B.K.L. APPELLANT v. CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY;AND S.S.L., A MINOR CHILD APPELLEES

NO. 2019-CA-000767-ME

Commonwealth of Kentucky Court of Appeals

MAY 15, 2020

NOT TO BE PUBLISHED

APPEAL FROM GARRARD FAMILY COURT

HONORABLE JEFF MOSS, JUDGE

ACTION NO. 18-AD-00022-001

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.

LAMBERT, JUDGE:

B.K.L. has appealed from the February 22, 2019, orders of the Garrard Family Court involuntarily terminating his parental rights to his daughter, S.S.L. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel has filed a motion to withdraw her representation along with an Anders¹ brief conceding that there is no merit to the appeal. We affirm.

B.K.L. (the father) and M.A.R. (the mother) are the parents of S.S.L. (the child), who was born in December 2011. The Cabinet for Health and Family Services became involved with the family when it filed a Juvenile Dependency/Neglect or Abuse (DNA) Petition in Fayette Family Court on February 8, 2016 (Case No. 16-J-00171-001). The Cabinet also sought an emergency custody order. The grounds for the petition were as follows:

[The child] is a neglected child. On February 4, 2016, SSW received a referral regarding [the child's] mother . . . using "intravenous drugs" in the presence of the child while in Harrodsburg. The referral stated [the child] was staying with her father in Lexington. Upon meeting [the father] and [the child], it was found that they were living with [the father's] mother for the time being. [The father] stated they have been here for 2 days. [The father] admitted that he stopped using Heroin 3 weeks previously. He stated he needed to stay clean for [the child]. He stated [the mother] has a substance abuse problem and is living with questionable people. When SSW explained he would have to drug screen, [the father] admitted to using Xanax that he bought off the streets. SSW asked for contact information for [the mother] so that we could start attempting to find a relative. [The father] stated that he had a confession and that [the mother] was actually hiding in another room. [The father's] mother who was in the house was aware that [the mother] was in the home as well. [The father] stated [the mother] did not want to get into trouble. SSWexplained to [the mother] what was going on and that relatives needed to be contacted. SSW observed [the mother] to be very disconnected and had no emotions. [The mother] immediately left to go to Burgin to get her phone because she did not have numbers in her phone. Both [the father] and [the mother] stated there were no relatives.

[The father] stated [the mother] has a history of heroin [use] and has not reported to her parole officer in 3 months. [The father] stated at the Parole Officer's appointment, she was given the choice of 6 months in jail or in-patient rehabilitation facility. SSW has not had an opportunity to speak with her parole officer at this time.

The Cabinet is requesting Custody of [the child] and a case to be opened for [the mother] and [the father].

The court granted emergency custody of the child to the Cabinet the same day.

At the temporary removal hearing, the father admitted to using Xanax without a prescription, and both parents admitted to having used heroin. The docket order from February 10, 2016, indicated that the mother had been arrested before court. The court found probable cause for neglect, and the father later stipulated to a risk of neglect in March 2016. A dispositional report from May 2016 indicated that the child was in foster care but continued to see her father during visitation and at other times by invitation of the foster parents. The father was compliant with his case plan, which included completing a substance abuse assessment, developing a relapse prevention plan, attending two NA/AA meetings per week, completing a cycle of destructive behavior program, submitting torandom drug tests, remaining free from the influence of drugs or alcohol, and cooperating and complying with all Cabinet recommendations. The court ordered a 30-day trial visitation with the father on May 11, 2016. The child was returned to the father's custody on June 29, 2016, and the case was later closed.

A second DNA petition was filed in Garrard Family Court on August 2, 2017 (Case No. 17-J-00141-001). The Cabinet, through social worker Heather Lewis, alleged that the child had been neglected by her parents and described the circumstances as follows:

The above child was neglected by her biological parents, [the father] (custodian) and [the mother]. On this date [August 1, 2017], the above child witnessed a severe incident of domestic violence with her father . . . as the perpetrator against her mother. . . . The above child intervened in the incident by attempting to grab the large knife her father was attempting to cut her mother with. The mother . . . has extensive facial bruising and cuts to her face, neck, and arms. Law Enforcement was not called during the incident. [The mother] did not seek medical treatment for several hours and refused to cooperate with law enforcement when they were called to the hospital. [The mother] refused to file charges of assault against [the father], citing that he has custody of the child, and she did not want to lose the child. The child reported that she has witnessed many instances of domestic violence with her father assaulting her mother. The child recounted seeing the mother have bruising on numerous occasions. At this time, [the father] is unreachable. The mother and only caregiver for the child does not have any form of custody of this child and is unable to make any placement decisions.

The home environment that this child was found in was hazardous as well. There were cigarette butts in the floor and in the bed that the child sleeps in. There was a "potty" chair in a storage room adjacent to the bedroom, with approximately 6 inches of urine and feces inside. In the bedroom was a small refrigerator and inside was pill bottles full of clean urine.

The family has a history with the Cabinet including the prior removal of this child in 2016 through Fayette County DCBS and Fayette County Family Court. This child was previously removed due to severe substance abuse on behalf of both [the mother] and [the father]. The child was returned to [the father's] custody in September 2016 after he completed substance abuse treatment. [The mother] did not have custody restored to her as she did not complete her DCBS case plan. Cabinet documentation states that an aftercare plan was completed by [the father] when he received custody that stated that [the mother] was only to have supervised contact with the child.

The court placed the child in the emergency custody of the Cabinet that day. In the temporary removal order entered two days later, the court found there was "sufficient evidence to suggest Domestic violence between the parents presents a danger to the child if the child is returned. Mother previously had the child removed and did not complete the CHFS case plan designed to reunify."

The Cabinet filed an addendum to the original petition on August 14, 2017:

On Saturday August 12, 2017 around 5:30pm, [the father] critically assaulted [the mother] by stabbing her in the left side of her body. [The mother] reported that she was with [the father], in his vehicle, when he told her thathe had ropes and duct tape. [The mother] reported that [the father] informed her "It's your day to die" and then he stabbed her in the side with a large knife. [The mother] reported that it was at this time that she opened the door to the vehicle, as they were driving down Lebanon Road in Boyle County, and attempted to jump out of the moving vehicle in order to spare her life. [The mother] reported that she was able to jump out of the car and sustained further injuries by jumping out of the car. [The mother] reported that she had emergency surgery and a chest tube [was] placed due to the stab wound. [The mother] remains hospitalized at this time. [The father] was subsequently arrested and charged with Assault 1st degree - domestic violence, Unlawful imprisonment 1st degree, Kidnapping (with serious physical injury), Leaving the scene of an accident/failure to render aid with death or serious injury, Fleeing or evading police 1st degree, Assault 3rd degree - Police Officer, Resisting Arrest, Wanton Endangerment 1st degree - Police Officer, Operating a motor vehicle under the influence of drugs or alcohol (aggravated circumstance) 1st offense, and failure to maintain require[d] insurance. [The father] remains incarcerated in the Boyle County Detention Center on a $100,000 cash bond at this time.

At the adjudication hearing on August 18, 2017, the mother stipulated to neglect as originally alleged, and the court made a finding that the child was neglected pursuant to Kentucky Revised Statute (KRS) 600.020(1). The court went on to find that the child's parents created a risk of physical or emotional injury, engaged in a pattern of conduct that made them incapable of caring for the immediate and ongoing needs of the child, and continuously failed or refused toprovide essential parental care and protection for the child. The child was ordered to remain in the temporary custody of the Cabinet.

At a conference on November 17, 2017, the father also stipulated to neglecting the child pursuant to the amended charge: "On Aug 1, the parents engaged in acts of domestic violence in the presence of the child wherein the father wielded a deadly weapon. The family has a history w/DCBS." The court again ordered the child to remain in the temporary custody of the Cabinet based upon the stipulation of neglect and because the "[r]isk of harm has not been reduced by the parents due to lack of follow through with CHFS case planning."

The Cabinet filed a DNA dispositional report on ...