Opinion
NO. 2020-CA-0386-ME NO. 2020-CA-0387-ME NO. 2020-CA-0388-ME
03-19-2021
B.E.R.F. APPELLANT v. DEPARTMENT FOR COMMUNITY BASED SERVICES, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.M.H.F. APPELLEES AND B.E.R.F. APPELLANT v. DEPARTMENT FOR COMMUNITY BASED SERVICES, CABINET FOR HEALTH AND FAMILY SERVICES; AND S.R.J.F. APPELLEES AND B.E.R.F. APPELLANT v. DEPARTMENT FOR COMMUNITY BASED SERVICES, CABINET FOR HEALTH AND FAMILY SERVICES; AND A.R.D.F. APPELLEES
BRIEF FOR APPELLANT: Steve Lamb Calhoun, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 19-AD-00008 APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 19-AD-0009 APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 19-AD-00010 OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES. LAMBERT, JUDGE: B.E.R.F. (the Father) appeals the February 26, 2020, orders of judgment from the McLean Circuit Court, terminating his parental rights to the minor children, L.M.H.F., born in 2016; S.R.J.F., born in 2014; and A.R.D.F., born in 2018 (collectively, "the Children"). 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. Said brief was accompanied by counsel's motion to withdraw. We affirm.
The family court also terminated the parental rights of the Children's natural mother. She does not seek to appeal the family court's decision. In fact, the termination of the Mother's parental rights to the Children was voluntarily made by her. Therefore, this Opinion only pertains to the Father and the involuntary termination of his parental rights.
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
The Cabinet for Health and Family Services (the Cabinet, or CHFS) became involved with the family in May 2017, when it was reported that the Children and the Father's elderly grandmother were living in unsanitary conditions in an 18-foot tow-behind trailer: there was no electricity, no running water, no food, and the entire floor was covered in human and canine feces and urine. The Cabinet filed a petition for emergency custody, but the Mother and Father could not be found.
The parents were arrested the following year, and they were charged with endangering the welfare of a minor (four counts); wanton abuse or neglect of an adult; and animal cruelty (three counts). The Children were taken into the custody of the Cabinet, and they have remained there ever since. Although they were initially placed with their maternal grandmother, they were soon placed in foster care. A domestic violence order was entered against the Father.
The Father met with a social worker for the Cabinet for a case planning session. The Father agreed to prevention plans, with tasks to complete, and a promise to remain in contact with the social worker. The Father failed to maintain contact, and he did not complete the tasks in his prevention plans.
On July 23, 2018, the Mother and the Father entered pleas of guilty to the criminal charges and received sentences totaling three years' incarceration. Upon his release in November 2019, the Father visited the Cabinet office to re-establish visitation with his Children. However, the Cabinet had by that time changed the goal for the Children to adoption and sought involuntary termination of parental rights. Nevertheless, a new case plan was drawn up for the Father; he agreed to undergo substance abuse and mental health counseling, attend parenting classes, find employment, and obtain suitable housing. The Father accomplished some but not all those goals.
The termination hearing was held on February 6, 2020. Findings of fact, conclusions of law, and orders terminating the Father's rights to the Children were entered two weeks later. The Father timely filed his notice of appeal.
Considering first counsel's 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.
On April 20, 2020, this Court entered a show cause order directing the Father to demonstrate why the appeals should not be dismissed for failure to name the foster parents as parties to the actions. Counsel did not respond other than to file a motion to amend the notice of appeal to include the foster parents. The motion was denied on September 10, 2020, and counsel was sanctioned $250.00. Neither party argued this issue in the briefs. Ruling on the show case issue was passed to the merits panel for our consideration. In the interest of permanency for the Children, we decline to deliberate further on this issue. --------
In this instance, counsel's possible Anders issues are: that termination of the Father's rights was not in the best interests of the Children (Kentucky Revised Statute (KRS) 625.090(1)(a)); that there was insufficient evidence that the Father's actions of neglect and abuse were likely to reoccur; that there was insufficient evidence to support the finding that there was no reasonable expectation of improvement in the Father's parental care and protection (KRS 625.090(2)(e)); that there was insufficient evidence to support the family court's finding that, for reasons other than poverty alone, the Father was incapable of providing for the Children (KRS 625.090(2)(g)); and that there was insufficient evidence to support the family court's finding that the Father failed to make reasonable efforts to improve his situation so that the Children could be returned to him in a reasonable period of time.
When an Anders brief is filed, we must "independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372. Kentucky allows parental rights to be involuntarily terminated when there is clear and convincing evidence 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). Additionally, it must be determined that the child is neglected or abused and that at least one of the conditions set forth in KRS 625.090(2) is established through clear and convincing evidence. KRS 625.090(1).
We have conducted an independent review of the record and conclude there is sufficient evidence contained therein to support the family court's order terminating the Father's parental rights to the Children. The Children were subjected to deplorable living conditions prior to their removal from the Father's care. The Father entered guilty pleas to charges admitting that such was the case. While incarcerated, the Father engaged in numerous fights after which he was ordered to serve in solitary confinement. Although the Father made some improvements after his release from prison, the Father failed to complete the tasks on his case plans.
There was substantial compliance with the "clear and convincing" evidence standard enunciated in Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); accord J.E.H. v. Department for Human Resources, 642 S.W.2d 600, 603 (Ky. App. 1982). We have "reviewed the circuit court's (1) neglect and abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best-interests determination. In light of our review, we agree with counsel's estimation and perceive no basis warranting relief on appeal." A.C., 362 S.W.3d at 372.
The orders of the McLean Circuit Court terminating the Father's parental rights to the Children are affirmed. Counsel's motion to withdraw shall be granted in a separate Order entered simultaneously with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Steve Lamb
Calhoun, Kentucky BRIEF FOR APPELLEE: Dilissa G. Milburn
Mayfield, Kentucky