Opinion
NO. 2015-CA-001732-ME
10-07-2016
D.A.C. APPELLANT v. L.W., D.W., F.N.K., a minor child; AND D.K. APPELLEES
BRIEF FOR APPELLANT: Amy Rollins Craft Greenup, Kentucky BRIEF FOR APPELLEES: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 15-AD-00001 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON AND TAYLOR, JUDGES. ACREE, JUDGE: D.A.C. (Mother) appeals the Greenup Circuit Court's October 14, 2015 order terminating her parental rights and order of adoption of F.N.K. (Child). In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for Mother filed an Anders brief conceding that no meritorious assignment of error exists to present to this Court, accompanied by a motion to withdraw which was passed to this merits panel. After careful review, we grant counsel's motion to withdraw by separate order, and affirm the circuit court's order terminating Mother's parental rights and order of adoption.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
Mother is the biological parent of Child, a female born on August 24, 1999. Child has been in the continual custody and care of Mother's aunt and uncle, appellees D.W. and L.W., since she was approximately ten weeks old. On January 15, 2015, the appellees filed a petition to terminate Mother's and Father's parental rights and to adopt Child. The guardian ad litem (GAL) subsequently filed a report on behalf of Child for the court to consider as a part of the termination proceedings. A termination hearing was held on September 23, 2015.
The circumstances under which Child came into appellees' care were not thoroughly discussed at the hearing, but Child's aunt testified that she and her husband have had Child in their care since she was an infant; they obtained a permanent custody order in July 2002 when Child was two years old. At the time of the hearing, Child was sixteen years old. Child's aunt could not recall the last time Mother had come to visit with Child. She also testified that Child had seen Mother a few times, in passing, over the past year, but it had been years since a scheduled visit or overnight stay occurred. Child's aunt stated that Father stopped participating in visits years ago. She said she and her husband never received any child support from Mother. All of Child's clothing, shelter, medical care, education, and other life essentials have been provided by appellees. Child refers to the aunt and uncle as "Mom" and "Dad," respectively. Child's aunt testified that Child is doing well in their home and may even graduate high school early.
Child's uncle also testified; his testimony was consistent with Aunt's.
Mother testified in opposition to appellees' petition. Mother testified she was currently incarcerated, but she was due to be released in April 2016. She stated she had been incarcerated seven or eight times throughout Child's life, and she had a lengthy criminal history. Mother acknowledged that Child had not resided with her since Child's infancy. She stated she did not like to visit with Child at appellees' house because they made her feel uncomfortable. Mother also admitted she had not paid any child support on behalf of Child or provided for any of her needs.
The GAL report noted that the termination and adoption petition was filed at Child's request. Child reported that she views appellees as her parents. Child also stated she has never had any significant relationship with either Mother or Father. Child asserted that she had not had any visits with Mother in five years, but only sees her in passing at the homes of other family members. Child maintained that she had not visited with Father in over one year. Child spoke of her loving and supportive relationship with the appellees. The report provided that Child appeared to understand the legal significance of the proceedings and expressed a desire that it move forward quickly.
The court took the matter under advisement. On October 14, 2015, the court entered an order terminating Mother's and Father's parental rights. The court found that Mother and Father had abandoned Child and continuously and repeatedly failed to provide essential parental care and protection for Child. KRS 625.090(1)(a)(2). These findings are consistent with an "abused or neglected child" within the meaning of KRS 600.020.
The court determined based on the testimony at the hearing that termination was in Child's best interest, KRS 625.090(1)(b), and Mother and Father were unfit to parent Child because they failed to provide for Child for her entire life making it readily apparent they have a settled purpose to forego their parental responsibilities with no reasonable expectation of improvement. KRS 625.090(2)(a), (e), and (g).
Additionally, the court entered an order of adoption adjudging Child to be appellees' child for all legal purposes. Mother now appeals.
After reviewing the record, counsel for Mother filed an Anders brief in compliance with A.C., supra. In A.C., this Court adopted and applied the procedures identified in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) to appeals from orders terminating parental rights wherein counsel is unable to identify any non-frivolous grounds to appeal. A.C., 362 S.W.3d at 364. Those procedures require counsel to first engage in a thorough and good faith review of the record. Id. "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." Id. (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400).
In this case, counsel for Mother fully complied with the mandates of A.C. and Anders.
As required by A.C., counsel certified that she furnished Mother with a copy of the brief and informed Mother of her right to file a pro se brief raising any issues Mother deemed meritorious. 362 S.W.3d at 371. Mother chose not to avail herself of the opportunity to file a pro se brief. --------
Following A.C., we are to "fully examine the record and decide whether the appeal is wholly frivolous[.]" 362 S.W.3d at 371. We have done so, and agree with counsel that no grounds exist which may provide Mother's sought-after relief.
A family court may terminate a person's parental rights upon satisfaction, by clear and convincing evidence, of a three-part test. First, the child must have been found to be an "abused or neglected" child, as defined by KRS 600.020. KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness exists. KRS 625.090(2). The family court's termination decision will only be reversed if it is clearly erroneous. Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Such a decision is clearly erroneous only if there is no substantial, clear, and convincing evidence to support the decision. Id.
Like the family court, we are fully convinced Mother has neglected and abandoned Child, has demonstrated that she is unfit to parent Child, and it is in Child's best interest to terminate Mother's parental rights. By Mother's own admission, she has not cared or provided food, clothing or other essentials for virtually Child's entire life. There is no evidence of any meaningful contact or committed relationship between Child and Mother. Additionally, Mother's criminal activities have resulted in numerous incarcerations rendering her incapable of caring for Child's needs throughout Child's life. Certainly, sixteen years is more than sufficient time for Mother to assert and demonstrate improvement and dedication to her role as Child's parent. The record contains substantial evidence to support the family court's decision to terminate Mother's parental rights. Therefore, we affirm the Greenup Circuit Court's October 14, 2015 orders.
ALL CONCUR. BRIEF FOR APPELLANT: Amy Rollins Craft
Greenup, Kentucky BRIEF FOR APPELLEES: Tracy D. Frye
Russell, Kentucky