APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES COMMONWEALTH OF KENTUCKY AND MINOR CHILD APPELLEES AND NO 2011 CA 000728 ME (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

C.S.P. (“Mother”) appeals from the Kenton Circuit Court judgment terminating her parental rights to her three minor children, E.R.C., K.F.C., and A.V.C. Based on the Anders brief filed by counsel for Mother and our independent review of the record, we find no prejudicial error and affirm.

The record shows that a petition was filed by the Cabinet for Health and Family Services (“Cabinet”) in 2006 alleging that Mother admitted to using crack cocaine but refused to seek treatment.   An amended petition was filed the same year alleging that Mother left the children at home for extended periods of time while she went out to purchase drugs and solicit sex for money.   Mother was ordered to stay home at night, an order she followed for approximately two weeks.   Later, Mother was ordered to leave her home, while the children were ordered to remain, and she was to have no contact with the children until she completed an inpatient drug treatment program.   In 2008, a second petition was filed by the Cabinet and in 2009 an emergency custody order was entered placing the children in the custody of the Cabinet.   The allegations included that Mother had tested positive for cocaine in November 2008 and February 2009 and that domestic violence was occurring in the home, as well as environmental neglect, due to lack of supervision or structure.

In April 2009, the circuit court found that the children were neglected.   Mother was ordered in July 2009 to complete random drug screens, engage in counseling and follow all recommendations, take all medication as prescribed, gain independent housing, and pay child support in the amount of $60 a month.   Mother failed to pay child support as ordered and missed several drug screens.   The Cabinet filed a petition to involuntarily terminate her parental rights to her three minor children.

Following a trial, the circuit court entered findings of fact and conclusions of law terminating Mother's parental rights based on the evidence.   In particular, the court found that Mother is a drug addict who is currently sober;  her last use of drugs was in February 2009;  she has five felony and several misdemeanor convictions for crimes including possession of a controlled substance (cocaine), possession of drug paraphernalia, and solicitation for prostitution;  and she has several mental health diagnoses including bi-polar disorder, cocaine dependence, and panic disorder.

In addition, the court found that the children have been exposed to Mother's drug and criminal activities, as well as to domestic violence.   The court found that this violence has led to severe psychological problems for E.R.C. and she has been hospitalized eight times in a psychiatric facility.   E.R.C. was first hospitalized in 2001 for uncontrollable behavior and cruelty to animals and has since been diagnosed with numerous mental health disorders.

The court further found that K.F.C. has been hospitalized on at least three occasions and diagnosed with related mental health disorders.   A.V.C. has also been hospitalized for mental health disorders, some of which were related to his exposure to domestic violence.   Mother admitted during trial that she neglected her children by not providing them any consistency and by constantly arguing with their fathers.   The children's social worker testified that the home was continuously chaotic despite all of the services that had been offered and provided to Mother.

Based on the foregoing, the court determined by a preponderance of the evidence that E.R.C., K.F.C., and A.V.C. were neglected children and found by clear and convincing evidence that they were neglected children pursuant to KRS  Double 600.020(1) on the basis that their parents have engaged in a course of conduct that:  renders the parents incapable of caring for the immediate and ongoing needs of the children;  creates or allows to be created a risk of physical or emotional injury to the children by other than accidental means;  continuously or repeatedly fails or refuses to provide parental care and protection of the children considering their age;  fails to provide the children with adequate care, supervision, clothing, shelter, and education or medical care essential for their well-being;  and 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 children.

With respect to Mother, the court found by clear and convincing evidence that the following grounds for termination exist under KRS 625.090:

Mother has abandoned the children for a period of not less than ninety (90) days;

Mother, for a period of time not less than six (6) months, has continuously failed or refused to provide essential parental care and protection for the children and there is no reasonable expectation of improvement considering the age of E.R.C., K.F.C., and A.V.C.;

Mother, for reasons other than poverty alone, has continuously or repeatedly failed, and is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary for E.R.C., K.F.C., and A.V.C.'s well being with no reasonable expectation of significant improvement in the immediately foreseeable future considering the age of the children;

Through her history of drug abuse, mental health, and instability in housing, Mother creates or allows to be created a risk of physical or emotional injury to the child by other than accidental means.

In determining the best interests of E.R.C., K.F.C., and A.V.C., the court considered the factors delineated in KRS 625.090 and found that the Cabinet had, before the filing of this petition, made reasonable efforts as defined in KRS 620.020 to reunite the children with Mother.   The court further found that Mother has not made any effort to adjust or improve her conduct or the home's conditions to make it in the best interest of the children to return to her care within a reasonable period of time, considering the age of the children.   The court concluded that the children would be better off, physically, mentally, and emotionally, if Mother's parental rights were terminated, and that no hope exists for continued improvement of Mother's ability to provide for the safety and care of her children.   The court entered an order accordingly.   This appeal followed.

On appeal, counsel for Mother filed an Anders brief conceding that no meritorious issues exist to present to this court, along with a motion to withdraw.  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).  “An Anders brief supplements a motion to withdraw filed after counsel has conscientiously reviewed the record and found the appeal to be frivolous.”  C.R.G. v. Cabinet for Health & Family Serv., 297 S.W.3d 914, 915 (Ky.App.2009).   Thereafter, this court's duty is to review the record independently for prejudicial error.  Id.^Double

A circuit court “has broad discretion in determining whether a child fits within the abused or neglected category and whether the abuse or neglect warrants termination.”  Id. at 916 (citing Dep't for Human Res. v. Moore, 552 S.W.2d 672, 675 (Ky.App.1977)).   Our standard for reviewing “a termination of parental rights action is confined to the clearly erroneous standard in CR[  Double] 52.01, based on clear and convincing evidence.”  C.R.G., 297 S.W.3d at 916 (citing V.S. v. Commonwealth, Cabinet for Human Res., 706 S.W.2d 420, 424 (Ky.App.1986)).   Clear and convincing evidence requires “proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people.”  C.R.G., 297 S.W.3d at 916 (citing Rowland v. Holt, 70 S.W.2d 5, 9, 253 Ky. 718, 726 (Ky.1934)).

Upon review of the record, we conclude that clear and convincing evidence exists to support the circuit court's finding that the children were neglected and that termination of Mother's parental rights was in the children's best interests.

The Kenton Circuit Court judgment is affirmed.

ALL CONCUR.

VANMETER, JUDGE: