Opinion
2022-CA-1325-ME 2022-CA-1326-ME 2022-CA-1328-ME 2022-CA-1329-ME 2022-CA-1331-ME 2022-CA-1332-ME
10-13-2023
J.A.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.M.K., A MINOR CHILD; AND L.J.K. APPELLEES and J.A.J. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.J.K.; AND L.J.K. JR., A MINOR CHILD APPELLEES and J.A.J. APPELLANT v. A.X.K., A MINOR CHILD; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND L.J.K. APPELLEES and L.J.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.A.J.; AND J.M.K., A MINOR CHILD APPELLEES and L.J.K. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.A.J.; AND L.J.K. JR., A MINOR CHILD APPELLEES and L.J.K. APPELLANT v. A.X.K., A MINOR CHILD; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND J.A.J. APPELLEES
BRIEF FOR APPELLEE L.J.K.: CHASE WARD HARTFORD, KENTUCKY BRIEF FOR APPELEE J.A.J.: AMANDA BRAGG BOWLING GREEN, KENTUCKY BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: KEVIN MARTZ COVINGTON, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM BUTLER CIRCUIT COURT HONORABLE MICHAEL L. MCKOWN, JUDGE ACTION NOS. 22-AD-00001, 22-AD-00002, 22-AD-00003
BRIEF FOR APPELLEE L.J.K.: CHASE WARD HARTFORD, KENTUCKY
BRIEF FOR APPELEE J.A.J.: AMANDA BRAGG BOWLING GREEN, KENTUCKY
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: KEVIN MARTZ COVINGTON, KENTUCKY
OPINION
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
KAREM, JUDGE
J.A.J. ("Mother") and L.J.K. ("Father") (collectively, the "Parents") filed separate appeals from the Butler Circuit Court's orders terminating their parental rights to their three children. By Order entered July 13, 2023, this Court consolidated Father's and Mother's appeals, and we address all six terminations in this Opinion. We affirm the Butler Circuit Court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is the biological mother of J.M.K., born in December 2013 ("Child 1"), L.J.K., Jr., born in December 2014 ("Child 2"), and A.X.K., born in November 2016 ("Child 3") (collectively, the "Children"). Father was named as the Children's father on each of their birth certificates.
The Cabinet for Health and Family Services (the "Cabinet") filed petitions to involuntarily terminate Mother's and Father's parental rights to the Children on January 14, 2022. The circuit court held a hearing on July 22, 2022, and September 2, 2022. Mother was not present at the July 22, 2022, hearing but attended the September 2, 2022, hearing and was represented by counsel at both hearings. Father was present and represented by counsel at both hearings.
On September 15, 2022, the circuit court entered Findings of Fact, Conclusions of Law, and Orders Terminating the Parents' parental rights to the Children. These appeals followed.
Both Mother's counsel and Father's counsel have filed motions for leave to withdraw as counsel of their respective client and to file briefs pursuant to A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). By Orders entered on April 18, 2023, and May 18, 2023, this Court passed the attorneys' motions to withdraw to this merits panel, ordered that the Clerk file the tendered Anders briefs, and permitted Mother and Father to proceed pro se and to file supplemental briefs within thirty (30) days thereof. Neither Mother nor Father filed a supplemental brief.
ANALYSIS
a. Anders and A.C.
In A.C., a panel of this Court adopted the principles and procedures laid out in Anders in the criminal setting to appeals from orders terminating parental rights, concluding that "an indigent parent defending a termination of parental rights action enjoys a statutory right to counsel during the appeal[.]" 362 S.W.3d at 367. However, as in Anders, "that right to counsel 'does not include the right [of an indigent parent] to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.'" Id. (quoting Smith v. Robbins, 528 U.S. 259, 278, 120 S.Ct. 746, 760, 145 L.Ed.2d 756 (2000)).
Consequently, under Kentucky law, it is necessary to utilize Anders-type briefs and procedures in termination of parental rights cases wherein appointed counsel does not believe there are any non-frivolous claims to appeal. Id. at 369. Therefore, upon a good faith review of the record:
if counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished [to] the indigent and time allowed him to raise any points that he chooses; the court - not counsel - then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
As previously discussed, Mother's and Father's counsel submitted Anders briefs in compliance with A.C. and Anders in this case. Thus, A.C. obligates us to independently review the record and establish whether this appeal is, in fact, frivolous. A.C., 362 S.W.3d at 371.
b. Discussion
In Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204 (Ky. 2014), our Supreme Court explained as follows:
[Kentucky Revised Statute ("KRS")] 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.
An appellate court will only reverse a trial court's decision to terminate a parent's rights if such decision is clearly erroneous. Kentucky Rules of Civil Procedure ("CR") 52.01; Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010).
The trial court has a great deal of discretion in an involuntary termination of parental rights action .... [F]indings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people.C.A.W. v. Cabinet For Health &Family Services, Commonwealth, 391 S.W.3d 400, 403 (Ky. App. 2013) (internal quotation marks and citations omitted).
In the case before us, the circuit court determined that the Butler Circuit Court had adjudicated the Children to be abused or neglected in the previous juvenile actions. Moreover, the court found by clear and convincing evidence presented at the hearing that the Children were neglected as defined in KRS 600.020(1)(a) 3., 4., 8., and 9. due to the actions and inactions of the Parents, thus satisfying the first prong of the tripartite test.
The second prong requires that the court find by clear and convincing evidence that termination would be in the best interest of the Children. KRS 625.090(1)(c). In conducting its best interest analysis, KRS 625.090(3) requires the court to consider the following factors:
(a) Mental illness as defined by KRS 202A.011(9), or an intellectual disability as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
(e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
Here, the circuit court properly considered each of these factors as outlined in detail on pages 15-16 of its Findings of Fact and Conclusions of Law and concluded that it was in the Children's best interest to terminate the Parents' parental rights. We are satisfied from our independent review of the record that substantial evidence supports the circuit court's findings - namely, the testimony of Bellwood therapist and treatment director Amy Lynne McCracken, foster mother Jordan Shemwell, and Cabinet social workers Christine Clark and Karli Rutherford. The second prong of the tripartite test has been met.
The third and final prong, KRS 625.090(2), provides that "[n]o termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of [several enumerated] grounds[.]" Only one ground is required. Among them, KRS 625.090(2)(j) provides that "the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]"
In its Findings of Fact and Conclusions of Law, the circuit court found that the Children were removed from the Parents' custody on February 8, 2019, and had remained in the Cabinet's custody continuously since that time. The trial court concluded that the Children had been in foster care under the responsibility of the Cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the Petition under KRS 625.090(2)(j). We are satisfied from our independent review of the record that substantial evidence supports the trial court's determination, thus satisfying the third prong of the tripartite test.
We conclude that no meritorious grounds exist for reversal in the case before us. Anders, supra. Accordingly, we affirm. By separate Orders, we grant the motions to withdraw filed by Parents' counsel.
ALL CONCUR.