Opinion
NO. 2014-CA-000192-ME
03-11-2016
D.O.K. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.S.N.T., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Howe E. Baker Hager Hill, Kentucky BRIEF FOR APPELLEE: David T. Adams Cabinet for Health and Family Services Paintsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 13-AD-00018 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. DIXON, JUDGE: D.O.K. ("Mother") appeals from a judgment of the Johnson Circuit Court terminating her parental rights, as well as the parental rights of J.T.T. ("Father"), to M.S.N.T. ("Child"). Finding no error, we affirm.
Father has not appealed the circuit court's order.
Child was born April 13, 1996. Following an adjudication of neglect and abuse, Child was committed to the Cabinet in March 2012. The Cabinet alleged Father abandoned Child, and Mother failed to protect Child due to alleged sexual abuse perpetrated by Child's step-father. In December 2012, the court issued an order changing Child's permanency goal to adoption; thereafter, the Cabinet filed a petition to terminate the parental rights of Mother and Father.
Mother's parental rights to two other children were also terminated during the same proceedings.
At the termination hearing, Mother was represented by appointed counsel, and she testified telephonically on her own behalf. Mother acknowledged Child's allegations of sexual abuse, but she repeatedly denied that step-father abused Child. Mother indicated she believed Child was jealous and lied about the allegations of abuse. Mother also testified that she and Child's step-father moved to New Mexico in July 2013, although they were not living together at the time of the hearing. The Cabinet presented evidence of its investigation, showing that Mother had failed to comply with the Cabinet's recommendations.
The circuit court rendered detailed findings of fact and conclusions of law. The court emphasized that Child's condition had improved since being in foster care. The court found that the Cabinet had offered assistance to Mother in an effort to reunify the family; however, Mother failed to cooperate with the Cabinet and ultimately moved to New Mexico during the pendency of the termination proceedings. The court concluded that termination of parental rights was in Child's best interest.
The court recited several factors pursuant to KRS 625.090 to support its decision: Child was neglected as defined by KRS 600.020; Mother abandoned Child for at least ninety days; Mother continuously failed to provide essential parental care for Child; for reasons other than poverty alone, Mother continuously failed to provide for Child's essential food, clothing, shelter, medical care or education; there was no reasonable expectation that Mother's conduct would improve in the immediate future.
Mother's appointed counsel filed a timely notice of appeal. Counsel filed an Anders brief asserting that there were no non-frivolous issues to appeal, and counsel requested that this Court allow him to withdraw as Mother's attorney. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
In A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012), this Court concluded that appointed counsel may file an Anders brief and motion to withdraw in a termination of parental rights case after "counsel has conducted a thorough, good-faith review of the record and can ascertain absolutely no meritorious issue to raise on appeal." In light of counsel's assertion that the appeal is frivolous, we must conduct our own review of the record to determine whether the appeal is, in fact, without merit. Id.
Pursuant to the procedures set forth in A.C., this Court granted Mother thirty days to file a pro se brief, and counsel's motion to withdraw was deferred to this panel. Mother did not timely file a pro se brief. --------
Parental rights "can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so." Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky. 2006); KRS 625.090. The trial court's findings of fact are entitled to great deference; accordingly, this Court applies the clearly erroneous standard of review. CR 52.01; M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Where the record contains substantial evidence to support the trial court's findings, we will not disturb them on appeal. Id.
The court rendered specific findings that the statutory requirements for termination were met and that it was in Child's best interest for Mother's parental rights to be terminated. After carefully examining the record, we conclude substantial evidence supported the court's determination. We agree with counsel's assertion that there were no meritorious grounds for appeal.
ALL CONCUR. BRIEFS FOR APPELLANT: Howe E. Baker
Hager Hill, Kentucky BRIEF FOR APPELLEE: David T. Adams
Cabinet for Health and Family
Services
Paintsville, Kentucky