Opinion
NO. 2016-CA-001229-ME NO. 2016-CA-001230-ME
10-27-2017
S.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; R.S., PATERNAL GRANDMOTHER; T.H., FATHER OF CHILD; L.G.H., A MINOR CHILD APPELLEES AND S.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CALLOWAY COUNTY, KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; R.S., PATERNAL GRANDMOTHER; T.H., FATHER OF CHILD; J.H., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Amy R. Roos Murray, Kentucky NO BRIEF FOR APPELLEES.
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT FAMILY COURT DIVISION
HON. ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 11-J-00145-004 APPEAL FROM CALLOWAY CIRCUIT COURT FAMILY COURT DIVISION
HON. ROBERT DAN MATTINGLY, JR., JUDGE ACTION NO. 12-J-00185-003 OPINION
AFFIRMING
APPEAL NOS. 2016-CA-001229-ME AND 2016-CA-001230-ME
** ** ** ** **
BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES. TAYLOR, JUDGE: S.H. brings Appeal No. 2016-CA-001229-ME and Appeal No. 2016-CA-001230-ME from orders of the Calloway Circuit Court, Family Court Division, entered July 15, 2016, awarding permanent custody of her biological children to their paternal grandmother, R.S. We affirm Appeal No. 2016-CA-001229-ME and Appeal No. 2016-CA-001230-ME.
S.H. is the biological mother of L.G.H., who was born on November 9, 2010, and J.H., who was born on November 8, 2011. T.H. is the biological father of L.G.H. and J.H. On January 28, 2016, R.S., paternal grandmother of L.G.H. and J.H., filed petitions in the Calloway Circuit Court, Family Court Division, alleging that both children were dependent, neglected, or abused. R.S. claimed that L.G.H. and J.H. had been in her care since 2014. R.S. stated that her adult son, T.H., had been granted custody of L.G.H. and J.H. in a Tennessee dissolution of marriage proceeding between T.H. and S.H. According to R.S. the childrens' biological mother, S.H., was granted only supervised visitation by the Tennessee court. S.H. allegedly had substance abuse issues and was facing criminal charges related to physical abuse of other biological children. R.S. stated that T.H. originally resided in her home with L.G.H. and J.H. but eventually abandoned the children to her care and resided elsewhere.
S.H. also has other biological children, but only L.G.H. and J.H. are named in this appeal.
The Tennessee dissolution of marriage proceeding is not part of the record on appeal in this case.
At a hearing on R.S.'s petitions, T.H. stipulated to neglect of LG.H. and J.H. based upon abandoning the children due to his own substance abuse issues. However, a finding of neglect as to L.G.H. and J.H. was not made against S.H. as she was not custodian of the children. Following a hearing, the family court ordered that L.G.H. and J.H. remain in the temporary custody of their paternal grandmother, R.S.
A hearing on permanent custody was scheduled for May 2, 2016, but S.H. failed to appear. S.H.'s counsel requested a continuance, and the family court granted same. The hearing was then rescheduled for May 9, 2016. On that date, S.H. did not appear once again. However, due to illness of the family court judge, the hearing was rescheduled to June 6, 2016. S.H. again failed to appear for the June 6, 2016, hearing. The hearing was rescheduled to July 11, 2016. On July 11, 2016, S.H. again failed to appear, but her appointed counsel was present on her behalf. The family court then conducted an evidentiary hearing. By separate orders entered July 15, 2016, the family court adjudicated the paternal grandmother, R.S., to be the de facto custodian of both L.G.H. and J.H. and awarded her permanent custody of the children. These appeals follow.
APPEAL NO. 2016-CA-001229-ME
AND
APPEAL NO. 2016-CA-001230-ME
Appointed counsel for S.H. filed separate notices of appeal from the July 15, 2016, orders declaring R.S. the de facto custodian of L.G.H. and J.H. and awarding her permanent custody of both children. Thereafter, S.H.'s appointed counsel filed briefs pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and alleged that no meritorious issues in either appeal existed to present to the Court of Appeals. Appointed counsel for S.H. also filed motions to withdraw as counsel in appeal both appeals. By Orders entered November 10, 2016, the Court of Appeals passed counsel's motions to withdraw to the panel assigned for merits review. The Court also gave S.H. thirty days to file a pro se brief in each appeal; S.H. did not file any briefs in either appeal.
In Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) the United States "Supreme Court established a 'prophylactic framework' - now commonly known as 'Anders procedures' or an 'Anders brief' - to safeguard a criminal appellant's constitutional right to counsel when the appellant's court-appointed attorney wishes to withdraw from a claim no-merit appeal." A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 364 (Ky. App. 2012) (citations omitted). --------
In Kentucky, the method set forth in Anders, 386 U.S. 738, was applied to termination of parental rights cases in A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012). In A.C., 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 Finley, 481 U.S. at 555, 107 S. Ct. at 1993, 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., 668 So.2d at 816. 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, 528 U.S. at 273, 120 S. Ct. at 757, 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 of Appeals also construed KRS 625.080(3) as providing an indigent parent with the right to have representation during every critical stage of termination proceedings including the "stages leading up to termination, such as the underlying dependency matter." A.C., 362 S.W.3d at 366 (citing Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky. App. 2008)). The Court went on to state that it logically followed that an indigent parent's right to representation also applies "to all critical stages of proceedings following termination, including the appeals process." A.C., 362 S.W.3d at 366 (citing Z.T., 258 S.W.3d at 36)). It was also recognized that 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.
KRS 620.100 similarly provides an indigent parent with appointed counsel in a dependency, neglect, and abuse action. And, this right to counsel naturally continues throughout the entire course of the appeal. See A.C., 362 S.W.3d 361. As with a termination case, there exists a potential for conflict between counsel's duty to the Court and counsel's obligation to protect the right of appeal of an indigent parent. Accordingly, we believe counsel appointed on appeal in a dependency, neglect, or abuse action may fulfill his obligation to both the Court and to his client by submitting a brief pursuant to Anders. See id. And, we further find it appropriate to conduct an Anders type review to this case.
In the case sub judice, we have made a complete and independent examination of the record on appeal in both cases and have determined that more than sufficient evidence exists to support the family court's conclusion that L.G.H. and J.H. are neglected children. The family court conducted an evidentiary hearing and thereafter rendered findings of fact and conclusions of law, to which we find no error. The family court also complied with all relevant statutory mandates for adjudicating that the children were neglected. Accordingly, we do not believe the family court's decision to place the children in the permanent custody of their paternal grandmother, R.S., was in error as a matter of law. We, likewise, agree with the counsel's contention that there is no basis for relief and that the appeal is wholly frivolous.
For the foregoing reasons, the orders of the Calloway Circuit Court, Family Court Division in Appeal No. 2016-CA-001229-ME and Appeal No. 2016-CA-001230-ME are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Amy R. Roos
Murray, Kentucky NO BRIEF FOR APPELLEES.