Opinion
NO. 2019-CA-001036-ME
03-20-2020
T.S. APPELLANT v. J.P.C. APPELLEE
BRIEF FOR APPELLANT: Joe W. Hendricks, Jr. Russellville, Kentucky NO BRIEF FILED FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 18-AD-00003 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. CLAYTON, CHIEF JUDGE: T.S. ("Father"), the biological father of a minor child, B.S. ("Child"), appeals the Logan Circuit Court's order terminating Father's parental rights to Child and allowing Child's step-father, J.P.C. ("Step-Father"), to adopt Child.
Upon careful review, we affirm the trial court's order. Further, we grant appellant counsel's motion to withdraw from representation of Father.
BACKGROUND
Father and A.C. ("Mother") are the biological parents of Child, who was born in September of 2013. Mother and Father never married but remained together for approximately two years after the birth of Child. The parties' relationship subsequently ended, and Mother married Step-Father in December of 2017.
In January of 2018, Step-Father filed a petition requesting the termination of Father's parental rights and that Step-Father be allowed to adopt Child (the "Petition"), joining Father, Mother, Step-Father, Child, and the Cabinet for Health and Family Services ("Cabinet"). In the Petition, Step-Father alleged that Father had "substantially, repeatedly and continually neglected [Child]," had "refused to provide for [Child]," and that it was in Child's best interests for Father's parental rights to be terminated and for Step-Father to adopt Child under Kentucky Revised Statutes ("KRS") Chapter 199. Mother entered her appearance and consented to the adoption.
Father filed a response to the Petition in which he argued that, to the extent that he had not financially supported Child, it was due to either incarceration or poverty alone. He further asserted that any failure by Father to substantially comply with his parental obligations was due in part to the acts of Mother in refusing to communicate with Father.
The trial court held a hearing on March 18, 2019, at which Father testified that he was currently in prison for drug trafficking and possession convictions and had served approximately one year of his eight-year sentence. Although Father claimed a few perfunctory efforts at communicating with Child, at the time of the hearing he had not seen, nor had he formally requested visitation with, Child in approximately two years. Moreover, Father testified that he had paid no child support or otherwise financially assisted Child at any point during Child's life.
Step-Father testified that he and Mother had been the primary caregivers for Child for the previous two years. Step-Father further testified that Child called him "Dad," that Step-Father provided all necessities for Child, and that Step-Father took Child to extracurriculars and sports practices. Mother also testified that the adoption by Step-Father was in Child's best interests, as Child had significantly bonded with and loved Step-Father. Moreover, the Cabinet submitted a report stating that, upon investigation, it "highly recommended" that the trial court grant the Petition.
Thereafter, on June 12, 2019, the trial court entered findings of fact, conclusions of law, and a judgment terminating Father's parental rights as to Child and allowing Step-Father to adopt Child. Particularly, the trial court found the following:
[Father], a convicted felon having been found guilty of Trafficking and Possession of Controlled Substance prior to his April, 2016 incarceration . . . last saw [Child] in March, 2017 and has only been out of jail for a total of 10 months from [Child's] April, 2016 birth date unto [sic] the March, 2019 hearing. [Father] is presently incarcerated and further he has paid no child support nor made any contribution towards [Child's] care and nutriment since his initial incarceration approximately August, 2017[.]The trial court concluded that Father "had continuously and repeatedly failed and refused to provide or has been substantially incapable of providing essential parental care and protection for [Child] for a period of at least six months and that there is no reasonable expectation of improvement in the future." Further, the court determined, pursuant to KRS 199.520(1), that Step-Father was "of good moral character and reputable standing in the community, is of ability to properly maintain and educate [Child], and is financially able and morally fit to have the care, custody, and training of [Child]." The trial court stated it was in the best interest of Child to be adopted, and it found that "all legal requirements have been met" relating to the adoption. See KRS 199.520(1). Finally, the trial court entered its judgment of adoption, which granted the Petition.
Father, via court-appointed counsel, filed a timely notice of appeal. Father's counsel also filed a motion to withdraw as counsel in the appeal and a brief that comported with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), citing counsel's inability to identify any issue with sufficient merit to support a meaningful argument on appeal, and requesting that this Court conduct a full examination of the record for prejudicial error and to determine if any non-frivolous issues had been overlooked. By order of this Court entered October 7, 2019, counsel's motion to withdraw was passed to this panel. The Court also gave Father thirty days to file a pro se brief in the appeal, which he did not file.
ANALYSIS
a. Anders and A.C.
In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), 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[.]" Id. at 367. 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. 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 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, in this case Father'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 establish whether this appeal is, in fact, frivolous. A.C., 362 S.W.3d. at 371.
b. Standard of Review
When a party files an Anders brief in a termination of parental rights case, this Court is not obligated to address "every conceivable argument" that an appellant could have raised on appeal. Id. at 370. This Court's review is similar to a palpable error review, which requires us "only to ascertain error which 'affects the substantial rights of a party.'" Id. (quoting Kentucky Rules of Civil Procedure ("CR") 61.02).
Appellate review of findings of fact in adoption actions concerning the termination of parental rights is limited to the "clearly erroneous" standard discussed in CR 52.01. S.B.B. v. J.W.B., 304 S.W.3d 712, 715 (Ky. App. 2010). Such review reflects the notion that the trial court was in the best position to judge the witnesses' credibility. R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998).
However, as stated in R.P., Jr. v. T.A.C., "to pass constitutional muster, the evidence supporting termination must be clear and convincing." 469 S.W.3d 425, 427 (Ky. App. 2015). Clear and convincing evidence does not equate to "uncontradicted" evidence. W.A. v. Cabinet for Health and Family Services, Commonwealth, 275 S.W.3d 214, 220 (Ky. App. 2008). Rather, clear and convincing evidence is "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
c. Discussion
As stated by a panel of this Court, "a petition seeking adoption of a child against the child's biological parent's wishes is a discrete subset of involuntary termination of parental rights cases[.]" C.M.C. v. A.L.W., 180 S.W.3d 485, 490 (Ky. App. 2005). Such an action "is governed in its entirety by KRS Chapter 199." R.M. v. R.B., 281 S.W.3d 293, 297 (Ky. App. 2009). Particularly, KRS 199.502(1) sets forth in relevant part that "an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as part of the adoption proceeding that any of [ten] following conditions exist with respect to the child[.]" (Emphasis added.) In this case, the trial court relied on the condition provided for in subsection (e), which states:
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child, and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child[.]
Having reviewed the record in detail pursuant to Anders and A.C., we agree with counsel's belief that the evidence shows that Father does not have grounds warranting relief, and find that the evidence is sufficient to support the trial court's findings of fact, conclusions of law, and judgment. Father admitted that he had not been involved in Child's life, nor had Father made any legitimate efforts to be involved. At the time of the hearing, Child was five years of age and had not seen Father in two years. The only father known to Child was Step-Father. Moreover, Father admitted that he had never paid child support or in any other way financially assisted Child. Father did not communicate with his son's caregivers or demonstrate any interest in the boy's life during critically important formative years.
We are unable to conclude, therefore, that the trial court was clearly erroneous when it found, by clear and convincing evidence, the existence of the condition enumerated in KRS 199.502(1)(e) as to Father with respect to Child. Accordingly, we do not believe the trial court's decision to grant termination of Father's parental rights to Child and to allow Step-Father to adopt Child was in error.
CONCLUSION
For the foregoing reasons, the order of the Logan Circuit Court is affirmed.
Furthermore, we grant the motion of Joe W. Hendricks, Jr. to withdraw as counsel for Father via separate order.
ALL CONCUR. BRIEF FOR APPELLANT: Joe W. Hendricks, Jr.
Russellville, Kentucky NO BRIEF FILED FOR APPELLEE