Opinion
NO. 2017-CA-000691-ME NO. 2017-CA-000692-ME
01-26-2018
M.L.S. (AKA M.L.H.) APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES COMMONWEALTH OF KENTUCKY AND S.E.H., JR., A MINOR CHILD APPELLEES AND M.L.S. (AKA M.L.H.) APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES COMMONWEALTH OF KENTUCKY AND T.J.H., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Amy L. Eversole Carrollton, Kentucky BRIEF FOR APPELLEE: Sheila F. Redmon Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 16-AD-00007 APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE R. LESLIE KNIGHT, JUDGE
ACTION NO. 16-AD-00008 OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND NICKELL, JUDGES. NICKELL, JUDGE: M.L.S. (aka M.L.H.) ("Mother") appeals from TPR orders regarding her two minor children, S.E.H., Jr. and T.J.H., entered by the Carroll Circuit Court. Custody of the children was awarded to the Cabinet for Health and Family Services ("CHFS"). In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for Mother filed an Anders brief conceding no meritorious assignment of error exists to present to this Court, accompanied by a motion to withdraw which was passed to this merits panel. After careful review, we grant counsel's motion to withdraw by separate order, and affirm the trial court's order terminating Mother's parental rights.
The parental rights of S.E.H., Sr. ("Father") were also terminated in the proceedings below. Father has not filed an appeal and any reference to him in this appeal is intended solely for purposes of clarity and completeness.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In October 2014, CHFS received a referral of domestic violence regarding this family. The referral included allegations of substance abuse and transiency. On November 26, 2014, the Carroll District Court issued an Emergency Custody Order removing the children from the parents and placing them in the emergency custody of CHFS. The children entered the foster care system where they would remain throughout the pendency of the instant actions. On the day of removal, CHFS filed petitions alleging the children were neglected pursuant to KRS 600.020(1). In subsequent proceedings, Mother stipulated the children were dependent.
Kentucky Revised Statutes.
Several case plans were created, and Mother initially made legitimate efforts to work toward reunification with her children. Unfortunately, she did not complete many aspects of the plans due to continued drug abuse and several stints in jail. CHFS workers attempted to assist Mother with her plan while she was clean and sober, but Mother could not stay away from illicit drugs. While not taking drugs, Mother would work steadfastly at completing her required tasks. However, each relapse reduced Mother's commitment to working toward reunification. Mother was unable to obtain her own housing, maintain stable employment, remain substance free or attend required counseling sessions. She was incarcerated numerous times during the pendency of the matter below, including at the time of the TPR hearing.
Mother admitted that prior to the children's removal she was abusing pain medications and graduated to harder street drugs such as methamphetamine and cocaine after they were removed. --------
Mother's visitation with the children was sporadic and uncertain, resulting in substantial behavioral issues in the children. Based on requests by the children's therapists, visitation was terminated in October of 2016. At that time Mother had not seen the children for more than six months. An updated case plan was implemented after visitation was ended, but Mother failed to complete many of the required tasks.
Following a lengthy evidentiary hearing, the trial court concluded the children were abused or neglected pursuant to KRS 600.020(1)(a)(9) and had previously been adjudicated as dependent pursuant to KRS 600.020(2). In addition, the trial court found the children had been in foster care for fifteen of the prior twenty-two months; Mother had failed to provide essential parental care and protection to the children for a period of more than six months; for reasons other than poverty alone, Mother had failed to provide essential food, clothing, shelter, medical care and education for the children; no reasonable expectation of improvement in parental care was foreseeable; and CHFS had provided all reasonable efforts and services to reunify the family. Based on these findings, the trial court concluded TPR was in the children's best interests and transferred custody to CHFS with authority to place the children for adoption. Written orders comporting with these rulings were entered on April 19, 2017.
Appointed counsel for Mother filed separate notices of appeal from the orders terminating Mother's parental rights. Thereafter, Mother's appointed counsel filed Anders briefs and alleged no meritorious issues existed to present to this Court in either appeal. Appointed counsel also filed motions to withdraw as counsel in both appeals. By Orders entered July 13, 2017, a panel of this Court passed counsel's motions to withdraw to the panel assigned for merits review. The Court also gave Mother thirty days to file a pro se brief; no additional briefs were filed. The separate appeals were subsequently consolidated for treatment in a single Opinion of this Court.
In Kentucky, the method set forth in Anders was applied to termination of parental rights cases in A.C. where another panel of this Court specifically stated:
While we recognize Anders-type proceedings are only required in the criminal context where the indigent defendant enjoys a constitutional right to counsel, see [Pennsylvania v.] Finley, [481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987)], we are not prohibited from extending Anders-like proceedings to termination of parental rights cases. We do so today because we find the source of the right to counsel irrelevant; as long as there is a right to counsel—wheresoever that right is found—the conflict between an attorney's duty to his client and his duty to the court remains. That conflict warrants the utilization of Anders-type briefs and procedures. Moreover, if Anders procedures are sufficient to protect an appellant's constitutional right to counsel—an arena in which the courts tend to erect stringent safeguards—the same procedures should certainly be adequate in termination of parental rights cases as well. J.K. [v. Lee County Dept. of Human Resources, 668 So.2d 813, 816 (Ala. Civ. App. 1995)]. Just as the United States Supreme Court erected safeguards in Anders to vindicate a defendant's constitutional right to appellate counsel in the criminal
context, see Smith [v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 757, 145 L.Ed.2d 756 (2000)], we believe the safeguards set forth in this opinion satisfactorily vindicate an indigent parent's statutory right to appellate counsel in termination of parental rights cases.A.C., 362 S.W.3d at 370-71. The Court also construed KRS 625.080(3) to provide an indigent parent the right to be represented during every critical stage of termination proceedings including the "stages leading up to termination, such as the underlying dependency matter." Id. at 366 (citing Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008)). The Court went on to conclude an indigent parent's right to representation also applies "to all critical stages of proceedings following termination, including the appeals process." Id. Further, counsel's obligations to the Court may conflict with counsel's obligations to his client if counsel believes the appeal is frivolous. A.C., 362 S.W.3d 361.
In the case sub judice, we have made a complete and independent examination of the record on appeal in both cases and have determined more than sufficient evidence exists to support the trial court's conclusion S.E.H., Jr., and T.J.H. are abused or neglected children. The trial court conducted an evidentiary hearing and thereafter rendered findings of fact and conclusions of law with which we find no error. The trial court also complied with all relevant statutory mandates for adjudicating the children as abused or neglected and concluding TPR was in their best interests. Accordingly, we do not believe the trial court's decision to grant TPR and place the children in the permanent custody of CHFS was in error as a matter of law. We, likewise, agree with counsel's contention there is no basis for relief and the appeal is wholly frivolous.
For the foregoing reasons, the judgments of the Carroll Circuit Court are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Amy L. Eversole
Carrollton, Kentucky BRIEF FOR APPELLEE: Sheila F. Redmon
Lexington, Kentucky