Opinion
NO. 2014-CA-001513-ME NO. 2014-CA-001540-ME NO. 2014-CA-001541-ME NO. 2014-CA-001542-ME
06-19-2015
WILLIAM DAVID BURKE APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, M.L.B., A MINOR CHILD, M.N.B., A MINOR CHILD, P.A.B., A MINOR CHILD, AND D.C.L.B., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Jamie Stephens Hawesville, Kentucky William David Burke, Pro Se Madisonville, Kentucky BRIEF FOR APPELLEES: Kristy Abel Fulkerson Owensboro, Kentucky
NOT TO BE PUBLISHED APPEALS FROM HANCOCK CIRCUIT COURT
HONORABLE MICHAEL L. MCKOWN, JUDGE
ACTION NOS. 14-AD-00004, 14-AD-0003, 14-AD-00005, AND 14-AD-00006
OPINION AFFIRMING AND ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL
BEFORE: CLAYTON, KRAMER, AND VANMETER, JUDGES. CLAYTON, JUDGE: This is an appeal from a decision of the Hancock Family Court involving the termination of parental rights of the Appellant, William David Burke. Based upon the following, we affirm the decisions of the trial court.
BACKGROUND INFORMATION
The Cabinet for Health and Family Services filed an action pursuant to Kentucky Revised Statutes (KRS) 625.050, et seq., seeking the termination of parental rights of William David Burke with respect to his four minor children, M.L.B., M.N.B., P.A.B., and D.C.L.B. The court held a bench trial on July 14, 2014. The Appellant was present during the final hearing and was represented by counsel.
The trial court issued Findings of Fact and Conclusions of Law regarding the involuntary termination. The trial court found that the children were neglected as defined in KRS 600.020. Specifically, the trial court held as follows:
Since at least 2006, both parents have engaged in a consistent pattern of conduct, specifically substance abuse, that has rendered them incapable of caring for the immediate and ongoing needs of the child. Both Respondents have at times participated in substance abuse treatment, but have not been able to successfully remain sober to be able to regain custody of the child[ren]. Mr. Burke has been incarcerated numerous times due to substance abuse charges. Both parents have failed or refused to provide the child with essential parental care or protection, food, clothing, shelter, medical care or education at least since December 2010 when the child[ren] [were] removed from their custody. Both parents have failed to make sufficient progress on their court approved case plan to allow for the safe return of the child to their care since at least July 2012 when [they] entered foster care.
After finding the children were neglected, the trial court found that it was in the best interest of the children to involuntarily terminate their parents' rights. After the termination, Appellant brought this appeal. Court appointed counsel for Appellant made a motion to withdraw as counsel and filed an Anders brief on behalf of the Appellant for each of the four children.
STANDARD OF REVIEW
In reviewing the findings and conclusions of the trial court, we must give deference to the trial court. V.S. v. Commonwealth of Kentucky, Cabinet for Human Resources, 706 S.W.2d 420 (Ky. App. 1986). We may not disturb the trial court's findings unless there is no substantial evidence to support them. R.C.R. v. Commonwealth of Kentucky, Cabinet for Human Resources, 988 S.W.2d 36 (Ky. App. 1998).
With this standard in mind, we review the findings of the trial court.
DISCUSSION
Pursuant to C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 915 (Ky. App. 2009), "[a]n Anders brief supplements a motion to withdraw filed after counsel has conscientiously reviewed the record and found the appeal to be frivolous." Anders v. California, 386 U.S. 738, 744 (1967) provides that if the court "...so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires." In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), a panel of our court held that the holding in Anders applied to involuntary termination cases as well.
Pursuant to KRS 625.090, a court may terminate parental rights if there is clear and convincing evidence of a judgment of abuse or neglect under KRS 625.090 (2). Once the court finds that there is such a judgment, the court must then determine whether it is in the best interest of the child to terminate the parent's rights.
The trial court found that all four children had been adjudicated as neglected by the Hancock Family Court. This finding is supported by substantial evidence in each of the four cases. Thus, the trial court did not err in this finding. Next, the trial court found that one or more of the exacerbating factors set forth in KRS 625.090(2) existed. Specifically, the trial court found grounds under KRS 625.090(2)(e) and (g) that both parents had failed to make sufficient efforts to regain custody of their children and that there was no plan to do so in the future. This finding was also based on substantial evidence in the record. Finally, the trial court determined that it was in the best interests of each of the four children to terminate their parents' rights.
KRS 625.090(3) provides a list of factors to be considered by a court when making a determination as to the best interests of a child. Here, the trial court found that the children had "...shown great improvement behaviorally and emotionally since entering foster care and the prospect of continued improvement if termination is granted is positive. Neither parent has maintained consistent contact with the child[ren] or supported the child[ren] financially since at least December 2010 when the child[ren] were removed from parental custody."
In further support of the trial court's finding, the children's guardian ad litem also recommended termination of parental rights. Thus, the trial court's findings and termination of Appellant's parental rights for his four children are supported by substantial evidence. We, therefore, affirm the decisions of the trial court.
Additionally, we grant the motion of Jamie Stephens to withdraw as counsel for Burke.
ALL CONCUR. ENTERED: JUNE 19, 2015
/s/ Denise Clayton
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Jamie Stephens
Hawesville, Kentucky
William David Burke, Pro Se
Madisonville, Kentucky
BRIEF FOR APPELLEES: Kristy Abel Fulkerson
Owensboro, Kentucky