Opinion
NO. 2017-CA-001899-ME
03-22-2019
L.D.R. APPELLANT v. CABINET FOR HEALTH AND HUMAN SERVICES, COMMONWEALTH OF KENTUCKY; A.S.R.; AND G.P.R., A CHILD APPELLEES
BRIEF FOR APPELLANT: John Corey Morgan Franklin, Kentucky BRIEF FOR APPELLEE: Mary Gaines Locke Munfordville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 17-AD-00013 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. CLAYTON, CHIEF JUDGE: L.D.R. ("Father"), the father of G.P.R. ("Child"), appeals from the Logan Circuit Court's order terminating his parental rights to Child. After careful review, we affirm the trial court's order terminating Father's parental rights. Further, we grant appellant counsel's motion to withdraw by separate order.
BACKGROUND
Father and A.S.R. ("Mother") are the biological parents of Child, who was born in 2007. Child was first placed in the emergency custody of the Cabinet for Health and Family Services (the "Cabinet") in October 2013 due to domestic violence concerns, instability in the family home, and the parents' failure to cooperate with the Cabinet. Child was eventually returned to his parents in November of 2013, and the Cabinet implemented an ongoing case plan with Child's parents.
In January of 2014, the Cabinet received a referral regarding the parents' possible drug use impairing their ability to care for Child and concerns about the condition of the home, including no heat or food in the home. The Cabinet and law enforcement attempted to make contact with the family, but the family refused to allow the Cabinet or law enforcement into the home, resulting in Child once again being placed in the emergency custody of the Cabinet. Child was returned to his parents on January 31, 2014.
The Cabinet continued to receive referrals concerning the family and, in July of 2014, Mother was arrested for driving under the influence with Child in the car. Father was also arrested the same day for driving under the influence. Additionally, the Cabinet found that the family home had no electricity. At that time, the Cabinet executed another prevention plan with the parents, which included the parents abstaining from drinking and driving with Child in the car, completing substance abuse assessments, and resolving the environmental problems with the family home.
Child was removed from his parents' home for the third time in September of 2014 after the parents' numerous failures to comply with the prevention plan, including Mother being intoxicated around Child and Father allowing Child to be around Mother while she was intoxicated. Moreover, Child had a severe case of head lice at the time of his removal from the family home. The Logan District Court subsequently made a finding of neglect, and ordered that Child remain in the temporary custody of the Cabinet in an order dated September 4, 2014.
On April 19, 2017, the Cabinet filed a petition to involuntarily terminate the parental rights of Mother and Father. The trial court held a hearing on October 16, 2017 concerning the Cabinet's petition at which both parents were present. At the time of the hearing, Child had been in foster care for over three years. Additionally, Child was interviewed by the trial judge in chambers with Child's guardian ad litem present and indicated that he was happy with his current foster family and did not want to return home.
Following the hearing, the trial court entered a written order on October 25, 2017, finding that Child was an abused or neglected child pursuant to Kentucky Revised Statutes (KRS) 600.020(1) and that termination of parental rights would be in the best interests of the child. In addition, the trial court found by clear and convincing evidence that the parents had continuously or repeatedly refused to provide or had been substantially incapable of providing essential parental care and protection to Child for a period of not less than six months; for reasons other than poverty alone, the parents had continuously or repeatedly refused or were incapable of providing essential food, clothing, shelter, medical care and education for Child; no reasonable expectation of improvement in parental care or parental conduct was foreseeable, considering the age of Child; and that Child had been in foster care for at least fifteen of the most recent twenty-two months preceding the filing of the petition to terminate parental rights. The trial court further found that the Cabinet had provided all reasonable efforts and services to reunify the family and that Child had made significant improvements during his time in foster care and needed the stability that terminating parental rights would provide. Based on these findings, the trial court terminated the parental rights of Mother and Father and transferred custody to the Cabinet with authority to place Child for adoption.
Father, via court-appointed counsel, filed a timely notice of appeal. Mother did not 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 23, 2018, 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
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 the appeal is, in fact, frivolous. Id. at 371.
An appellate court will only reverse a trial court's decision to terminate a parent's rights if it is clearly erroneous, meaning there is no substantial, clear, and convincing evidence to support the decision. Kentucky Rules of Civil Procedure (CR) 52.01; Com., Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Therefore, the findings of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings. V.S. v. Com., Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986).
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 a circuit court finds, in pertinent part, that a child is abused or neglected as defined in KRS 600.020(1), that termination is in the child's best interests, and the existence of one or more of ten specific grounds set out in KRS 625.090(2). KRS 625.090(1)(a)-(b), (2); M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007). Further, KRS 625.090(3) lays out factors for the trial court to consider in determining the best interests of the child and the existence of grounds for termination.
In this case, the family court complied with all relevant statutory mandates to terminate Father's parental rights. Pursuant to KRS 625.090(1)(a) and (b), the trial court found that Child was an abused or neglected child and that it was in Child's best interests that Father's parental rights be terminated. Moreover, the trial court found by clear and convincing evidence the existence of multiple factors listed in KRS 625.090(2), including that Father, for a period of not less than six (6) months, had continuously or repeatedly failed or refused to provide, or had been substantially incapable of providing, essential parental care and protection for Child and that there was no reasonable expectation of improvement in parental care and protection, considering Child's age. Additionally, the trial court found that Father, for reasons other than poverty alone, had continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for Child's well- being and that there was no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering Child's age. Finally, the trial court stated that it had considered the factors included in KRS 625.090(3), including the fact that the Cabinet had offered all reasonable services to Father that would have permitted reunification with Child pursuant to KRS 625.090(3)(c).
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 more than sufficient to support the trial court's findings of fact, conclusions of law, and judgment. The trial court found that father was emotionally unstable, a chronic alcoholic, possibly addicted to drugs, and had perpetrated numerous incidents of domestic violence to which the child had been exposed. Further, the Cabinet gave Father multiple opportunities to reunify with Child by following the prevention plans, and he failed to do so each time. Accordingly, we do not believe the trial court's decision to grant termination of Father's parental rights and place Child in the permanent custody of the Cabinet was in error.
CONCLUSION
For the foregoing reasons, the order of the Logan Circuit Court is affirmed.
Furthermore, we grant the motion of John Corey Morgan to withdraw as counsel for Father by separate order.
ALL CONCUR. BRIEF FOR APPELLANT: John Corey Morgan
Franklin, Kentucky BRIEF FOR APPELLEE: Mary Gaines Locke
Munfordville, Kentucky