B.L. v. Cabinet for Health & Family Servs., 092421 KYCA, 2021-CA-0427-ME

CourtCourt of Appeals of Kentucky
JudgeBEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
Writing for the CourtLAMBERT, JUDGE.
PartiesB.L. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.S., A CHILD APPELLEES
Docket Number2021-CA-0427-ME

B.L. APPELLANT

v.

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.S., A CHILD APPELLEES

No. 2021-CA-0427-ME

Court of Appeals of Kentucky

September 24, 2021

NOT TO BE PUBLISHED

APPEAL FROM SCOTT CIRCUIT COURT HONORABLE LISA H. MORGAN, JUDGE ACTION NO. 20-AD-00039

BRIEF FOR APPELLANT:

Ashley Larmour

Georgetown, Kentucky

BRIEF FOR APPELLEE CABINET

FOR HEALTH AND FAMILY

SERVICES, COMMONWEALTH OF KENTUCKY:

Leslie M. Laupp

Covington, Kentucky

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

OPINION

LAMBERT, JUDGE.

B.L. (the Mother) appeals from the Scott Circuit Court's order granting termination of her parental rights to K.S. (the Child), born in 2006. Having reviewed the record and the law, we affirm the circuit court.1

The Child had been placed in emergency custody with a relative in April 2017 after the Mother physically assaulted the Child. The Mother entered a guilty plea to one of the three criminal charges resulting from the incident. Reunification services were offered, which the Mother completed to the Cabinet's and circuit court's satisfaction, and the Child was returned to the Mother's custody in June 2018.2 However, in December of that year, the Mother again physically assaulted the Child. And the Child was placed with fictive kin. 3 In March 2019, when the non-family placement did not work out, the Child was moved to foster care, where she has remained since. The Mother stipulated to neglect after each of these incidents.

The Mother's case plan was updated in September 2019 and May 2020. Her contact with the Child, which had been limited to supervised visits, was suspended entirely in July 2020 after it was determined that the Child, because her relationship with the Mother was so strained, required individual therapy after each session. Continued efforts to reunite the family were largely unsuccessful. Termination of parental rights proceedings were undertaken versus the Parents in August 2020. Separate counsel was appointed for each of the Parents, and a guardian ad litem was appointed to represent the Child's interests. The final hearing was held in February 2021. The Parents' rights to the Child were terminated by order entered on March 11, 2021.

The Mother filed a timely notice of appeal. She argues (1) that the Cabinet failed to meet its burden of proving that termination of the Mother's parental rights was in the Child's best interests; (2) that the Cabinet failed to make reasonable efforts at reunification; and (3) that the Cabinet failed to prove that the Child will continue to be abused or neglected.

We begin our analysis by stating our standard of review. In M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky. App. 1998), we 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 CR4 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).

Furthermore, "[t]he findings of the trial judge may not be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses." Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995) (citing CR 52.01; Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986)). "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." [Commonwealth, 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)].

Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014).

Furthermore, there are statutory guidelines to which the courts of this Commonwealth must adhere, namely: Pursuant to KRS 625.090, to involuntarily terminate parental rights, the trial court must find by clear and convincing evidence: (1) that the child is an abused or neglected child as defined by KRS 600.020(1); (2) that termination would be in the best interest of the child;...

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