APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES AND CHILD APPELLEES

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Court of Appeals of Kentucky.

S.B. APPELLANT v. COMMONWEALTH OF KENTUCKY , CABINET FOR HEALTH AND FAMILY SERVICES;  AND C.B, A CHILD APPELLEES

NO. 2010–CA–001977–ME

Decided: June 17, 2011

BEFORE:  DIXON, KELLER AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Matthew S. Goeing Winchester, Kentucky BRIEF FOR APPELLEE:  Christopher M. Davis Assistant Clark County Attorney Winchester, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

S.B. (Mother) appeals an order of the Clark Circuit Court, Family Division, finding her child, C.B. (Child), dependent.   After careful review, we affirm.

In July 2010, a dependency, neglect, and abuse petition was filed in Clark Circuit Court against Mother alleging she was incapable of rendering proper care to Child, who was five months old.   On September 30, 2010, an adjudication hearing was held where the Commonwealth presented the testimony of several witnesses.   An investigator for the Cabinet testified that Mother had developmental delays that prevented her from caring for Child without assistance and supervision.   The testimony of J.R., a friend of Mother, indicated that Mother and Child had lived in J.R.'s home for seven weeks after Child was born.   J.R. testified that Mother was not able to care for Child alone.   J.R. explained that Mother had to be reminded repeatedly of caregiving instructions and that J.R. ultimately cared for Child the majority of the time.   Mother's friend, T.B., had temporary custody of Child and testified for the Commonwealth.   T.B. acknowledged that Mother provided some financial support and supplies for Child while in T.B.'s custody.   T.B. testified that she did not believe Mother was capable of caring for Child on her own.   T.B. emphasized that Mother required verbal correction and instruction when interacting with Child.   M.C., Mother's grandmother, testified as a defense witness.   M.C. testified that Mother could not care for Child alone.

The trial court found that Child was dependent and decided to follow the recommendations outlined in the Cabinet's disposition report.   The report recommended that Mother would have frequent supervised visits with Child and that Mother would attend parenting classes and counseling.   Mother now appeals the court's finding of dependency;  accordingly, we must determine whether substantial evidence supported the court's decision.

Pursuant to Kentucky Revised Statutes (KRS) 620.100(3), the Commonwealth, as the complaining party, bears the burden of proof, “and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence.”   Here, the trial court based its finding on KRS 600.020(19), which provides that a child is dependent if the child “is under improper care, custody, control, or guardianship that is not due to an intentional act of the parent, guardian, or person exercising custodial control or supervision of the child[.]”

The trial court noted on the record the testimony established that Child was dependent.   The court found that Mother required the assistance of other people to care for Child, but acknowledged the court's hope that Mother could learn the skills necessary to parent independently.

We are mindful that the trial court sitting as the fact-finder has broad discretion when weighing the evidence and assessing the credibility of the witnesses.   Kentucky Rules of Civil Procedure (CR) 52.01.   On appellate review, we may not set aside the lower court's findings unless its decision was clearly erroneous.  Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986).

Mother argues the evidence established that Child was not under “improper care” because she had taken steps to ensure that Child was being cared for, first by J.R. and then by T.B. Mother also points out that she provided T.B. monetary payments and material items, such as diapers, to assist in Child's care.

Despite Mother's argument to the contrary, the testimony clearly established that Mother did not and could not properly care for Child.   Further, the evidence showed that Mother's inability to properly care for Child was not intentional;  rather, Mother's developmental delays impaired her ability to competently care for Child.   After careful review, we conclude the trial court's finding of dependency was supported by substantial evidence;  accordingly, we affirm.

For the reasons stated herein, the order of the Clark Circuit Court is affirmed.

ALL CONCUR.

DIXON, JUDGE: