Opinion
NO. 2012-CA-001904-ME
07-12-2013
S.B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; and S.B., a Child APPELLEES
BRIEF FOR APPELLANT: M. Stanley Goeing Winchester, Kentucky BRIEF FOR APPELLEE: John M. Hendricks Assistant Clark County Attorney
NOT TO BE PUBLISHED
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NOS. 12-J-00103 AND 12-J-00103-001
OPINION
AFFIRMING
BEFORE: COMBS, MAZE, AND NICKELL, JUDGES. COMBS, JUDGE: S.B. (the mother) appeals from orders of the Clark Family Court determining that she had neglected her infant daughter, S.L., a/k/a S.B. (the child), and continuing the child's placement with a relative outside the home. After our review, we affirm.
On March 22, 2012, the Cabinet for Health and Family Services received a neglect referral pertaining to the mother's interaction with the child. The Cabinet immediately undertook an investigation at the mother's home. Following the investigation, the child was removed from the mother's care. The child's father, A.L., agreed to exercise care and control of the child, and he understood that the mother was to receive no unsupervised visitation. A few days later, the Cabinet filed a dependency, neglect, and abuse petition in Clark Family Court. The Cabinet alleged that the mother could not care for the child because of her serious mental health issues that included intermittent psychotic episodes. Eventually, the child's maternal aunt agreed to take physical custody of the child.
An adjudication hearing was conducted by the family court on August 9, 2012. During the hearing, two officers of the Winchester Police Department testified concerning their interaction with the mother. They said that she had been unable to control her behavior and had become aggressive toward social workers when they arrived at her home to investigate the neglect referral. They indicated that the mother had put the child at risk for physical harm.
Debra McCord, a therapist with Comprehensive Care, also testified at the hearing. McCord said that she had been treating the mother for more than a year. She explained that the mother had been diagnosed with psychotic disorder and post-traumatic stress disorder and that she functioned at a borderline intellectual level. McCord testified that the mother's condition remains unstable in part because she fails to take medication as prescribed. She indicated that the mother's condition may render her incapable of caring for the immediate and ongoing needs of the child.
Georganna Gaunce, a social service clinician for the Cabinet, also testified at the hearing. Gaunce produced the mother's medical records and testified that her behavior endangered the child's well-being.
Finally, and against the advice of her court-appointed counsel, the mother testified. In her testimony, S.B. told the court that she was periodically unable to tend to her own needs and admitted that she had repeatedly put the child in danger. She stated that she knew that she needed to take her medicine so that she would not hit the child. In an outburst, she indicated that she would kill the child.
After considering the evidence presented, the court concluded that the allegations in the petition had been proven by a preponderance of the evidence. The court found that the mother has significant mental health issues that continue to impair her ability to care for her child and that the child was clearly at risk of harm while in her care.
On September 13, 2012, the family court conducted a disposition hearing. It considered the Cabinet's pre-dispositional investigation report of recommendations and concluded that reasonable efforts had been made to prevent the child's removal from the mother's home. The court also determined that returning the child to the mother's home would be harmful to the child's welfare. The court adopted the Cabinet's recommendations and awarded temporary custody of the child to her maternal aunt.
On October 29, 2012, the child's guardian ad litem filed a motion to suspend the mother's visitation with the child. Following a hearing, the family court suspended the mother's visitation with the child pending a mental health evaluation and production of the mother's current mental health records and prescription information. The mother timely appealed the family court's orders.
On December 19, 2012, the mother's court-appointed counsel filed an appellate brief in which he stated that he is unable to find any meritorious assignment of error to raise on his client's behalf and requested that this court independently review the record to preserve the mother's right to fundamental fairness. Counsel requested that he be permitted to withdraw from the representation and that his client be afforded the opportunity to raise any points that she may choose. Counsel's request to withdraw is now pending before this panel.
In the recently decided matter of A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), we expressly approved of this method of observing counsel's dual obligations to his client and to the court in cases involving termination of parental rights. We construed the provisions of Kentucky Revised Statute[s] (KRS) 25.080(3) to mean that an indigent parent is entitled to representation by appointed counsel "during the entire course of the termination proceedings, including any appeal...." Nonetheless, we acknowledged the possibility that counsel's obligation to the court might conflict with his obligation to his client where counsel viewed the appeal as frivolous. Id. at 367. (Emphasis added).
Since KRS 620.100 similarly provides for the appointment of counsel to an indigent parent facing a dependency, neglect, and abuse petition, we conclude that this right to counsel extends throughout the course of a matter-of-right appeal. We also recognize the potential for conflict between counsel's obligation to deal forthrightly with this court and his obligation to protect the indigent parent's statutory right to counsel on appeal.
We commend counsel in this matter for the good-faith attempt to balance his competing obligations to this court and to his client in his submission of an Anders-style brief. We treat counsel's submission and request to withdraw as a motion to withdraw from the representation.
So named for the landmark case of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the United States Supreme Court addressed "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." 386 U.S. at 739, 87 S.Ct. at 1397.
We have afforded the mother an opportunity, pro se, to file a brief. And we have undertaken our own complete and independent examination of the record. We have reviewed the family court's determination that S.L. is a neglected child; its orders adopting the Cabinet's recommendations; and its continued placement of the child with the child's maternal aunt. We concur with counsel's assertion that there is no basis for relief and that this appeal is wholly frivolous. Therefore, counsel's motion to withdraw is hereby GRANTED.
We affirm the the orders of the Clark Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: M. Stanley Goeing
Winchester, Kentucky
BRIEF FOR APPELLEE: John M. Hendricks
Assistant Clark County Attorney