Opinion
NO. 2015-CA-001530-ME
02-24-2017
D.D.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.C.S., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Nanci M. House Winchester, Kentucky BRIEF FOR APPELLEES: Sheila F. Redmond Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLARK CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 15-AD-00001 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. TAYLOR, JUDGE: D.D.S. brings this appeal from a September 17, 2015, Order Terminating Parental Rights and Order of Judgment of the Clark Circuit Court, Family Court Division, (family court) terminating her parental rights to A.C.S., a minor child. We affirm.
In 2001, the Cabinet for Health and Family Services, Commonwealth of Kentucky, (Cabinet) investigated the circumstances surrounding the death of D.D.S.'s first child. It was ultimately determined that the child died as a result of a nonaccidental head trauma. Although it was unable to determine whether D.D.S. or the child's biological father inflicted the fatal injury, the Cabinet substantiated the allegation of physical abuse leading to the child's death against D.D.S. and the child's father.
The father of D.D.S.'s first child is not A.C.S.'s father and is not a party to this appeal.
On December 12, 2012, D.D.S. gave birth to a second child, A.C.S. On February 21, 2013, shortly after A.C.S. was born, the Cabinet received a referral alleging that A.C.S. was neglected. A.C.S. was considered to be at high risk for abuse due to the death of D.D.S.'s first child. A social worker for the Cabinet conducted a home visit and discovered that D.D.S. and A.C.S.'s home was heated with an open flame gas stove. During the visit, D.D.S. also admitted that if given a drug screen she would test positive for marijuana. An emergency custody order was entered on February 21, 2013, removing A.C.S. from D.D.S.'s custody.
D.D.S. identified Joseph Kennon as A.C.S.'s father. Kennon executed a disclaimer of paternity and was dismissed from the underlying termination of parental rights action.
A short time later, D.D.S. was drug tested, and she tested positive for both marijuana and cocaine.
The Cabinet subsequently filed a petition alleging that A.C.S. was a neglected child. On August 29, 2013, an adjudication hearing was conducted on the Cabinet's petition. The family court heard extensive testimony regarding the death of D.D.S.'s first child. This fatality placed A.C.S. at a high risk for abuse. The high risk concern combined with D.D.S.'s substance abuse and the safety concerns in the home (heating with an open gas flame) resulted in the family court finding that A.C.S. was a neglected child.
On January 12, 2015, the Cabinet filed a petition to terminate D.D.S.'s parental rights as to A.C.S. A hearing upon the Cabinet's petition was conducted on August 18, 2015. At the termination hearing, the family court heard testimony from several witnesses. The investigating social worker testified that A.C.S. was at a high risk of abuse based upon the death of D.D.S.'s first child. There was also testimony regarding D.D.S.'s substance abuse and the safety concerns in the home. A social worker from the Cabinet testified that following A.C.S.'s removal from D.D.S. in 2013, the Cabinet created a case plan for D.D.S., whereupon she failed to complete any of the tasks set out in the plan. Additionally, D.D.S. was incarcerated when the termination hearing was conducted due to a violation of the terms of her probation in an unrelated criminal case where she had pleaded guilty to trafficking in cocaine. At the conclusion of the termination hearing, the family court found that the Cabinet had met its burden of proving by clear and convincing evidence that A.C.S. was a neglected or abused child, that termination was in A.C.S.'s best interest, and at least one of the grounds in KRS 625.090(2) had been satisfied. D.D.S.'s parental rights were terminated by order entered September 17, 2015.
D.D.S. also gave birth to a third child in January 2015. The third child was born with high levels of cocaine in her system and, as a result, was also removed from D.D.S.'s custody.
D.D.S. was present in person at the termination hearing. --------
Appointed counsel for D.D.S. timely filed a notice of appeal from the September 17, 2015, order and judgment. Thereafter, appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and alleged that no meritorious issues existed to present on appeal. Appointed counsel also filed a motion to withdraw. By order entered January 21, 2016, the Court of Appeals passed counsel's motion to withdraw to the merit panel and gave D.D.S. thirty days to file a pro se brief. D.D.S. did not file a pro se brief.
When appealing an involuntary termination of parental rights, appointed counsel for a parent is permitted to file an Anders brief if counsel believes there are no meritorious grounds for the appeal after conducting a good faith review of the record. A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App. 2012). If counsel files an Anders brief, the Court of Appeals is bound to "independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." Id. at 372.
In Kentucky, parental rights "can be involuntarily terminated only if there is clear and convincing evidence that . . . it would be in the best interest of the child to do so." Cabinet for Health & Family Servs. v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006) (citing KRS 625.090; Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 1403, 71 L. Ed. 2d 599 (1982); N.S. v. C & M.S., 642 S.W.2d 589, 591 (Ky. 1982)). KRS 625.090(1) also requires that a child be adjudged neglected or abused and that at least one of the conditions set out in KRS 625.090(2) be established by clear and convincing evidence in order to terminate parental rights.
In this case, we have conducted a thorough and independent review of the record and conclude that more than sufficient evidence supports the family court's order terminating D.D.S.'s parental rights as to A.C.S. The family court rendered detailed findings of fact which we adopt herein by reference. The family court complied with all relevant statutory mandates for involuntarily terminating D.D.S.'s parental rights to A.C.S., and the court conducted an evidentiary hearing where D.D.S. was present and testified on her own behalf. We can find no legal basis or reason to set aside the family court's judgment terminating D.D.S.'s parental rights. We agree with counsel that no valid basis exists to warrant relief from the judgment. See A.C. v. Cabinet for Health and Family Servs., 362 S.W.3d 361 (Ky. App. 2012). Accordingly, we conclude that the family court did not err by terminating D.D.S.'s parental rights as to A.C.S.
For the foregoing reasons, the order terminating parental rights and judgment thereon entered by the Clark Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Nanci M. House
Winchester, Kentucky BRIEF FOR APPELLEES: Sheila F. Redmond
Lexington, Kentucky