Opinion
NO. 2012-CA-001643-ME
01-31-2014
J.L.H. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.L.H., A CHILD APPELLEES
BRIEF FOR APPELLANT: Stephen C. Pace Owensboro, Kentucky BRIEF FOR APPELLEE: Kristy Abel Fulkerson Owensboro, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 12-AD-00014
OPINION
AFFIRMING
BEFORE: DIXON, MOORE AND THOMPSON, JUDGES. DIXON, JUDGE: J.L.H. ("Father") appeals from a judgment of the Daviess Circuit Court terminating his parental rights, as well as the parental rights of H.L.M.M. ("Mother"), to K.L.H. ("Child"). Finding no error, we affirm.
Mother has not appealed the circuit court's order.
In May 2010, the Cabinet initiated neglect proceedings against Mother and Father, when Child was approximately fifteen months old. The Cabinet alleged Child was exposed to illegal drug use and drugs were within Child's reach in the home. Both parents stipulated to a finding of neglect, and the district court ordered that Child would remain in the custody of the Cabinet. As a result of a contemporaneous criminal investigation, Father was arrested and ultimately pled guilty to manufacturing methamphetamine and tampering with physical evidence. In August 2011, the district court issued an order establishing Child's permanency goal as adoption; thereafter, the Cabinet filed a petition to terminate the parental rights of Mother and Father.
On January 20, 2012, Father was sentenced to ten-years' imprisonment.
During the course of the termination proceedings, Father was represented by appointed counsel. The court held a termination hearing and heard testimony from several witnesses, including Father. Father acknowledged his criminal history and conceded that he had been incarcerated for the majority of Child's life. Father admitted he had not supported Child and that he had not made any efforts to cooperate with the Cabinet.
The circuit court rendered detailed findings of fact and conclusions of law. The court emphasized that Child had been in foster care for twenty-seven months and deserved a permanent, stable home. The court noted that Father had refused to cooperate with the Cabinet's efforts to establish a case plan and that Father had failed to maintain any contact with or provide support to Child. The court also found that Father's incarceration indicated a criminal lifestyle inconsistent with providing parental care for Child. The court concluded that termination of parental rights was in Child's best interest.
The court recited several factors pursuant to KRS 625.090 to support its decision: Child had been committed to the Cabinet for at least fifteen months preceding the filing of the petition; Child was abused or neglected as defined by KRS 600.020(1); Father continuously failed to provide essential parental care for Child; for reasons other than poverty alone, Father continuously failed to provide for Child's essential food, clothing, shelter, medical care or education; there was no reasonable expectation that Father's conduct would improve in the immediate future; Father failed to make reasonable efforts to change his conduct so Child could return home.
Father's appointed counsel filed a timely notice of appeal; thereafter, counsel filed a motion to withdraw and an Anders brief asserting that there were no non-frivolous issues to appeal. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012), this Court concluded that appointed counsel may file an Anders brief and motion to withdraw in a termination of parental rights case after "counsel has conducted a thorough, good-faith review of the record and can ascertain absolutely no meritorious issue to raise on appeal." Pursuant to the procedures set forth in A.C., this Court granted Father thirty days to file a pro se brief, and counsel's motion to withdraw was deferred to this panel. Id. In light of counsel's assertion that the appeal is frivolous, we must conduct our own review of the record to determine whether the appeal is, in fact, without merit. Id.
Father did not file a pro se brief.
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We have fully reviewed the record in this case, and we conclude that substantial evidence supported the court's determination. The court rendered specific findings that the statutory requirements for termination were met and that it was in Child's best interest for Father's parental rights to be terminated. In light of our review, we agree with counsel's assertion that this appeal is frivolous.
For the reasons stated herein, counsel's motion to withdraw is GRANTED, and we affirm the judgment of the Daviess Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Stephen C. Pace
Owensboro, Kentucky
BRIEF FOR APPELLEE: Kristy Abel Fulkerson
Owensboro, Kentucky