Opinion
2022-CA-1450-ME
06-30-2023
K.D.J., JR. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; K.D.J., A MINOR CHILD; AND K.D.P. APPELLEES
BRIEF FOR APPELLANT: Justin D. Crocker BRIEF FOR APPELLEE: Dilissa G. Milburn
NOT TO BE PUBLISHED
APPEAL FROM LOGAN CIRCUIT COURT HONORABLE JOE W. HENDRICKS, JR., JUDGE ACTION NO. 22-AD-00019
BRIEF FOR APPELLANT: Justin D. Crocker
BRIEF FOR APPELLEE: Dilissa G. Milburn
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE:
K.D.J., Jr., (the Father) has appealed from the order of the Logan Circuit Court terminating his parental rights to K.D.J. (the Child). We affirm. By separate order, we also grant the motion to withdraw filed by Father's counsel.
The Mother (K.D.P.) has older children from a previous relationship. This appeal does not concern the Child's half-siblings. Furthermore, the Mother is not subject to this appeal. It strictly deals with the Father's appeal from the termination proceeding pertaining to the Child born in 2018.
In 2016, the Cabinet for Health and Family Services (the Cabinet) initiated an investigation on the Mother for allegations that her alcoholism rendered her incapable of caring for her children. The children were ultimately placed in the care of their maternal grandfather, and the family's case remained open. In 2018, when the Child was born with complications related to Suboxone withdrawal, the Cabinet immediately filed a petition to remove the infant from the Mother's care. Allegations against the Father (who at the time was being held in the Warren County Jail) came to light at the time of the temporary removal hearing. The Cabinet's petition was granted, and the parents agreed to case plans for eventual reunification of the family.
The Father and Mother were married in 2021. In March 2022, the Cabinet filed a petition for termination of parental rights (TPR) to the Child (as well as TPR petitions against the Mother for her older minor children). Separate counsel was appointed for the parents, and a guardian ad litem (GAL) was appointed for the children.
The final hearing was held on July 18, 2022. The parents, their attorneys, and the GAL appeared for the family. The Cabinet presented evidence through the testimony (as well as the various exhibits introduced) of the social worker assigned to the family's cases. The Mother testified on her own behalf, but the Father declined to testify or call witnesses. All parties made closing statements, and the family court issued its ruling from the bench. The findings of fact, conclusions of law, and orders of TPR were entered on September 29, 2022, and the Father appealed.
On December 27, 2022, the Father's counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On the same date, and in accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for the Father filed an Anders brief conceding there were no meritorious issues for appeal. This Court passed the motion to the merits panel and ordered the tendered brief filed on January 12, 2023. Considering the motion to withdraw, "we are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal. Anders, 386 U.S. at 744, 87 S.Ct. at 1400." A.C., 362 S.W.3d at 372. We note that the Father has not filed a supplemental brief, although he was given time to do so.
The Anders brief, while conceding that there are no meritorious issues on appeal, proposes that a plausible argument could be made that the family court erred in granting TPR because there was insufficient evidence to support the holding that "there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]" Kentucky Revised Statute (KRS) 625.090(2)(g).
We begin by enunciating our standard of review, initially noting that "[b]road discretion is afforded to trial courts to determine whether parental rights should be terminated, and our review is limited to a clearly erroneous standard." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). Factual findings which are supported by substantial evidence of record are not clearly erroneous. R. M. v. Cabinet for Health and Family Services, 620 S.W.3d 32, 37-38 (Ky. 2021). "Substantial evidence is that which is sufficient to induce conviction in the mind of a reasonable person." Id. at 37. "When the findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions which we review de novo. If the [lower] court's factual findings are not clearly erroneous and the legal conclusions are correct, we are limited to determining whether the [lower] court abused its discretion in applying the law to the facts." H.L.O., 621 S.W.3d at 462 (citations omitted). The evidence to support termination must be clear and convincing. KRS 625.090; see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (holding due process requires proof by at least clear and convincing evidence for termination of parental rights).
Furthermore, in terms of an analysis of an Anders brief argument, we are required to independently review the record and be satisfied that "the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372. And "[i]nvoluntary TPR is permitted on the finding of a single factor listed in KRS 625.090(2)." K.M.E. v. Commonwealth, 565 S.W.3d 648, 656 (Ky. App. 2018).
The family court, at the hearing's conclusion, emphasized that there was no real dispute that the Cabinet had met its burden of proof, stating that, while the future could not be predicted, the parents' pattern of repeated criminal conduct gave an indication that no significant improvement would occur. Additionally, the Cabinet's proof (emphasized by the family court in its findings) included the prior conviction of the Father for the murder of a child in 2000. KRS 625.090(2)(i).
The Father was sentenced to a twenty-year prison term; he was paroled in 2017. As stated previously, the Father was again incarcerated at the time of the final hearing. This ground alone is sufficient to support the family court's decision to grant involuntary TPR of the Father. K.M.E., supra. The family court also made the requisite findings concerning the best interests of the Child pursuant to KRS 625.090(3). We find no error in the family court's decision to terminate the Father's parental rights.
After review of the record (including the video of the final hearing), applicable statutory and case law, and the parties' briefs, we affirm the Logan Circuit Court, and we grant counsel's motion to withdraw by separate order.
ALL CONCUR.