Opinion
NO. 2018-CA-000498-ME
07-05-2019
D.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.S., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Nancy Barnes Paducah, Kentucky No Brief for Appellees Cabinet for Health and Family Services, Commonwealth of Kentucky; and A.S., a minor child
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN FAMILY COURT
HONORABLE DEANNA WISE HENSCHEL, JUDGE
ACTION NOS. 17-J-00383-001 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. MAZE, JUDGE: D.S. appeals from a dispositional order of the McCracken Family Court ordering that his child, A.S., remain committed to the custody of the Cabinet for Health and Family Services (the Cabinet). We find that the family court's order was supported by substantial evidence and did not amount to an abuse of its discretion. Hence, we affirm.
D.S. is the father of A.S., born December 2017. Immediately following the child's birth, the Cabinet filed a dependency/neglect/abuse petition to remove the child from his mother. The petition noted that mother had been arrested for possession of methamphetamine and she admitted to using marijuana while pregnant with A.S. The petition also cited numerous reports of domestic violence by D.S. during the mother's pregnancy. Based upon the petition, the family court granted emergency custody of A.S. to the Cabinet. Following a dispositional hearing, the family court ordered that A.S. remain in the Cabinet's custody. D.S. now appeals.
As a preliminary matter, D.S. requested and was granted the appointment of counsel on this appeal. However, his appointed counsel filed a brief stating that she was unable to find any ground of error by the trial court which would entitle D.S. to relief. Anders v. State of California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In accordance with the procedures set forth in A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), the motion to withdraw by D.S's appointed counsel is granted and this appeal shall proceed pro se.
A parent aggrieved by a proceeding in a dependency, neglect, or abuse case may appeal as a matter of right. KRS 620.155. A dispositional order is a final order subject to appeal under the statute. J.E. v. Cabinet for Health & Family Servs., 553 S.W.3d 850, 851-52 (Ky. App. 2018). The standard of review on appeal includes a determination of whether the factual findings of the family court are clearly erroneous. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Id.
Kentucky Revised Statutes. --------
In the current case, there was clearly sufficient evidence to establish that A.S. was abused or neglected. The Cabinet presented records showing D.S.'s history of drug use and domestic violence. D.S. admitted to prior methamphetamine use but stated that he has been clean for three years. However, when he was asked to take a hair follicle test, D.S. indicated that it would be positive for methamphetamine. D.S. denied any domestic violence. But on cross-examination, D.S. admitted to pleading guilty to charges arising from domestic violence allegations. Under the circumstances, the family court did not abuse its discretion by ordering that A.S. remain committed to the Cabinet.
Accordingly, we affirm the order of the McCracken Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Nancy Barnes
Paducah, Kentucky No Brief for Appellees
Cabinet for Health and Family
Services, Commonwealth of
Kentucky; and A.S., a minor child