Opinion
NO. 2012-CA-001713-ME NO. 2012-CA-001714-ME NO. 2012-CA-001715-ME
06-28-2013
M. J. B. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL. APPELLEE
Kimberly J. Olds Richmond, Kentucky M. J. B., Pro Se Richmond, Kentucky BRIEFS FOR APPELLEE COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES: Sheila R. Redmond Lexington, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM MADISON FAMILY COURT
HONORABLE JEFFREY M. WALSON, JUDGE
ACTION NOS. 12-AD-00013, 12-AD-00014, AND 12-AD-00015
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. MOORE, JUDGE: M. J. B. (Mother) appeals the Madison Family Court's September 13, 2012 order terminating her parental rights to her three minor children. Because substantial evidence supports termination of Mother's rights, we affirm.
The fathers of these children have not participated in these appeals.
Mother has three minor boys: Q. L. W., date of birth July 23, 2005; K. L. W., date of birth December 22, 2007; and D. R. W., date of birth November 10, 2008. A case was initially opened regarding these children in May of 2009, wherein Mother stipulated that the children were neglected. Specifically Mother stipulated to medical neglect after failing to provide medical care of D. R. W. in regard to a heart murmur, and she stipulated to environmental neglect for all three children. Thereafter in April 2010, the children were committed to the Cabinet and placed in foster care after D. R. W. suffered from a severe untreated ear infection which resulted in his needing surgery and spending a week in the hospital. D. R. W. suffered from a high fever as a result of the ear infection, and at that time he also suffered seizures. Mother stipulated to medical neglect of D. R. W. and environmental neglect to all three children.
The Cabinet thereafter petitioned the family court for involuntary termination of Mother's parental rights to the boys. A hearing was held regarding this on August 27, 2012. Mother was present and represented by court appointed counsel. Evidence was presented regarding Mother's stipulations to neglect. Additionally, there was testimony that numerous services had been provided to Mother and that the Cabinet had let the children remain with the Mother after her first stipulation to neglect in an effort to keep the family intact. Nonetheless, Mother's parenting skills had not improved. Indeed, Mother had stipulated to neglect a second time despite the services offered to her. Further, the testimony at the hearing included that the children had remained in foster care since their removal in April 2010. The children had been with the same foster family in the year prior to the hearing, and the children have done well in that placement. There was testimony that the foster parents wanted to adopt the three boys and were very open to allowing Mother to have continued contact and visitation with the children.
The family court found that the children had been in the care of the Cabinet for fifteen of the most recent twenty-two months preceding the filing of the petition to terminate Mother's parental rights; that the children had been adjudged to be abused or neglected as defined in KRS 600.020(1); that the Mother, for reasons other than poverty alone, continually failed or refused to provide or was incapable of providing essential food, clothing, shelter, medical care or education that is reasonable for the children's well being; and that there was no reasonable expectation of significant improvement in the Mother's conduct in the immediately foreseeable future. Finally, the family court found that termination was in the children's best interest.
Mother, via court appointed counsel, filed a timely notice of appeal. Mother's counsel also filed a motion to withdraw and a brief that comports with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
In A. C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2011), this Court decided that Anders established a framework addressing "'the extent of the duty of a court-appointed appellate counsel to prosecute an appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.'" Id. at 364 (quoting Anders, 386 U.S. at 739, 87 S.Ct. at 1397).
In A. C., we concluded "an indigent parent enjoys a statutory right to counsel during the appeal from an order terminating the person's parental rights[.]" Id. at 367. Consequently, we decided that 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. Upon a good faith review of the record,
[i]f 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 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.Id. at 365 (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400).
Herein, Mother's counsel submitted an Anders brief in compliance with A. C. and Anders Following A. C., we are obligated to independently review the record and ascertain whether the appeal is, in fact, frivolous. A. C., 362 S.W.3d 361. Having done so, we agree with counsel's belief that Mother does not have grounds warranting relief.
In accordance with the procedures outlined in A. C., 362 S.W.3d 361, this Court sua sponte granted Mother thirty days to file a pro se brief and deferred the motion to withdraw to this panel. In counsel's motion to withdraw, she indicated that she had provided a copy of the Anders brief to Mother. By separate order, we will grant counsel's motion to withdraw. Mother did file a pro se brief, which we considered in deciding the merits of these cases.
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The family court's decision to terminate Mother's parental rights will only be reversed if it is clearly erroneous, meaning there is no substantial, clear, and convincing evidence to support the decision. KRS 625.090(1); Cabinet for Health & Family Servs. v. T. N. H, 302 S.W.3d 658, 663 (Ky. 2010) "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 ordinary prudent-minded people." M. P. S. v. Cabinet for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citation omitted).
The grounds for the involuntary termination of parental rights are set forth in KRS 625.090. This statute provides that parental rights may be involuntarily terminated only if, based on clear and convincing evidence, a circuit court finds: (1) that the child is abused or neglected as defined in KRS 600.020(1); (2) that termination is in the child's best interests; and (3) the existence of one or more of ten specific grounds set out in KRS 625.090(2). M. B. v. D. W., 236 S.W.3d 31, 34 (Ky. App. 2007); KRS 625.090(1)(a)-(b), (2).
The family court found that the requirements of KRS 625.090 were met in these cases and that it was in the children's best interest that Mother's parental rights be terminated. We have reviewed the record in detail and watched the August 27, 2012 video recording of the hearing. The evidence in the record is in accord with the family court's findings of fact and conclusions of law. Accordingly, substantial evidence exists to support the family court's decision in this case. Consequently, we affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Kimberly J. Olds
Richmond, Kentucky
M. J. B., Pro Se
Richmond, Kentucky
BRIEFS FOR APPELLEE
COMMONWEALTH OF
KENTUCKY CABINET FOR
HEALTH AND FAMILY
SERVICES:
Sheila R. Redmond
Lexington, Kentucky