J.L.P. v. Cabinet for Health & Family Servs., NO. 2018-CA-1604-ME

CourtCourt of Appeals of Kentucky
Writing for the CourtLAMBERT, JUDGE
PartiesJ.L.P., FATHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND N.L.P., A CHILD APPELLEES J.L.P., FATHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.L.P., A CHILD APPELLEES J.L.P., FATHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND S.E.P., A CHILD APPELLEES J.L.P., FATHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.L.P., JR., A CHILD APPELLEES L.D., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND N.L.P., A CHILD APPELLEES L.D., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND J.L.P., A CHILD APPELLEES L.D., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND S.E.P., A CHILD APPELLEES L.D., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND J.L.P., JR., A CHILD APPELLEES I.N.T., MOTHER APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND J.L.P., A CHILD APPELLEES
Decision Date25 September 2020
Docket NumberNO. 2018-CA-1615-ME,NO. 2018-CA-001619-ME,NO. 2018-CA-1604-ME,NO. 2018-CA-001623-ME,NO. 2018-CA-001621-ME,NO. 2018-CA-1608-ME,NO. 2018-CA-001624-ME,NO. 2018-CA-1612-ME,NO. 2018-CA-001626-ME,NO. 2018-CA-001618-ME,NO. 2018-CA-1610-ME,NO. 2018-CA-1611-ME,NO. 2018-CA-1607-ME,NO. 2018-CA-001625-ME,NO. 2018-CA-1613-ME,NO. 2018-CA-001622-ME,NO. 2018-CA-001616-ME,NO. 2018-CA-1609-ME

J.L.P., FATHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; AND N.L.P., A CHILD APPELLEES

J.L.P., FATHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; AND J.L.P., A CHILD APPELLEES

J.L.P., FATHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; AND S.E.P., A CHILD APPELLEES

J.L.P., FATHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; AND J.L.P., JR., A CHILD APPELLEES

L.D., MOTHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND N.L.P., A CHILD APPELLEES

L.D., MOTHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND J.L.P., A CHILD APPELLEES

L.D., MOTHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND S.E.P., A CHILD APPELLEES

L.D., MOTHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND J.L.P., JR., A CHILD APPELLEES

I.N.T., MOTHER APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; J.L.P., FATHER; AND J.L.P., A CHILD APPELLEES

NO. 2018-CA-1604-ME
NO. 2018-CA-1607-ME
NO. 2018-CA-1608-ME
NO. 2018-CA-1609-ME
NO. 2018-CA-1610-ME
NO. 2018-CA-1611-ME
NO. 2018-CA-1612-ME
NO. 2018-CA-1613-ME
NO. 2018-CA-1615-ME
NO. 2018-CA-001616-ME
NO. 2018-CA-001618-ME
NO. 2018-CA-001619-ME
NO. 2018-CA-001621-ME
NO. 2018-CA-001622-ME
NO. 2018-CA-001623-ME
NO. 2018-CA-001624-ME
NO. 2018-CA-001625-ME
NO. 2018-CA-001626-ME

Commonwealth of Kentucky Court of Appeals

SEPTEMBER 25, 2020


NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500417

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500418

Page 2

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500419

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500422

Page 3

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500423

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500634

Page 4

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500335

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500336

Page 5

APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 17-AD-500337

Page 6

OPINION
AFFIRMING

** ** ** ** **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

LAMBERT, JUDGE: These consolidated appeals from Jefferson Circuit Court concern the termination of parental rights (TPR) of three individuals, J.L.P. (the Father), L.D. (Mother A), and I.N.T. (Mother B), to nine children (the Father's six children with Mother A and his three children with Mother B; collectively, the Children).1 We affirm.

The Cabinet for Health and Family Services (the Cabinet, or CHFS) became involved with the family in late 2015, when Child G was born with marijuana and cocaine in his system. Children H and I were later born with illegal substances in their systems in November 2015 and May 2016, respectively. Initially, the Cabinet worked with the family to attempt to resolve the ongoing issues affecting the Children, but the Parents were for the most part uncooperative in following the case plans. Also, further investigation revealed the communal

Page 7

lifestyle; this led to multiple concerns regarding the family's situation. In the ensuing dependency, neglect, or abuse (DNA) petitions (of which there were several), the allegations against the Parents included medical neglect, educational neglect, failure to comply with ongoing orders, sexual abuse, domestic violence, drug use, exposure to pornography, human trafficking, and untreated mental health issues. Multiple hearings were held over the course of the next year or so.

The cases were consolidated in May 2017, all in a single division of the family court. Later that month, the goal was changed to adoption. New counsel and guardians ad litem were appointed for the Parents and the Children. TPR actions were filed in August 2017. A trial was held on August 21 and 22, 2018. On September 27, 2018, the family court entered its consolidated findings of fact and conclusions of law and nine separate orders terminating the parental rights of each child. The Parents filed notices of appeal; the matters were ordered consolidated by this Court upon motion of the Cabinet.

We note at the outset that the Cabinet has not filed an appellee brief. These are the options ordinarily afforded us:

If an appellee brief has not been filed within the time allowed, the court may:

(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error

Page 8

and reverse the judgment without considering the merits of the case.

Kentucky Rules of Civil Procedure (CR) 76.12 (8)(c). "The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). Because the issues and facts are straightforward, we choose not to penalize [the Cabinet] for its failure to file a brief.

Cabinet for Health and Family Services v. Loving Care, Inc., 590 S.W.3d 824, 826 (Ky. App. 2019). However, we are mindful that "[w]hile a party's failure to file a brief may be taken as a confession of error, CR 76.12(8)(c), such a sanction is inappropriate in appeals involving child custody or support." Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App. 2014) (citing Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky. 1971)). Because these matters involve termination of parental rights for three parents (concerning nine children), we shall not impose any of the three penalties but rather shall consider the merits of the appeals. But we feel compelled to comment on the Cabinet's lack of participation at the appellate level,2 especially when so much is at stake for these parties. We accept the Parents' statements of the facts as correct, insofar as they do not conflict with the record, and proceed to

Page 9

the merits of these appeals. Furthermore, we conclude that neither the Parents' briefs nor the circuit court's findings justify reversal.

We first address the Father's appeals. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for the Father has included a request to withdraw representation at the conclusion of the Anders3 brief wherein he concedes that there is no merit to his appeals. Considering the motion to withdraw, "we are obligated to...

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