Opinion
2021-CA-0748-ME 2021-CA-0747-ME 2021-CA-0748-ME
01-28-2022
W.B., APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND D.W.B., A MINOR CHILD, APPELLEES and W.B., APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND B.M.B., A MINOR CHILD, APPELLEES and W.B., APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES AND A.C.B., A MINOR CHILD, APPELLEES
BRIEF FOR APPELLANT: Richard Null BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE BRANDI H. ROGERS, SPECIAL JUDGE ACTION NOS. 20-AD-00093, 20-AD-00094, 20-AD-00095
BRIEF FOR APPELLANT:
Richard Null
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES:
Leslie M. Laupp
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
OPINION
THOMPSON, L., JUDGE:
In this consolidated appeal, W.B. appeals from three orders of the McCracken Circuit Court, Family Court Division, involuntarily terminating his parental rights as to his children D.W.B., B.M.B., and A.C.B. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), appointed counsel for Appellant filed notices of appeal and Anders briefs arguing that no meritorious claims of error exist justifying reversing the orders on appeal. Counsel accompanied the briefs with motions to withdraw, which were passed to this panel. After careful review, we grant counsel's motions to withdraw (see separate order) and affirm the circuit court's orders terminating W.B.'s parental rights.
We will use the parties' initials because minor children are involved.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
FACTS AND PROCEDURAL HISTORY
W.B. (hereinafter "Father") is the biological father of children D.W.B., B.M.B., and A.C.B. Based on the Cabinet's long involvement with the children, the McCracken Family Court's adjudication of the children being abused and neglected, and Father's inability to complete a court-approved case plan, the Cabinet filed petitions on October 16, 2020, pursuant to Kentucky Revised Statutes ("KRS") 625.050 et. seq., to involuntarily terminate Father's parental rights as to each of the children.
The Cabinet also sought to terminate the rights of the children's biological mother. She is not a party to this appeal.
The petitions were tried without a jury on May 4, 2021. After taking proof, the court determined that the children were abused and neglected as defined in KRS 600.020(1)(a) and KRS 625.090(1)(a). The court found that Father continuously and repeatedly failed or refused to provide essential parental care and protection for the children, KRS 600.020(1)(a)4.; had not provided the children with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for their well-being, KRS 625.090(2)(g); and had failed to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the children to the parents that resulted in the children remaining committed to the Cabinet for the statutory period. KRS 600.020(1)(a)9. The court also determined that the termination of parental rights was in the children's best interests pursuant to KRS 625.090(1)(c). Finally, the court found that four grounds of parental unfitness were present. KRS 625.090(2)(a), (e), (g), and (j). In sum, the court determined that the three prongs for involuntary termination set forth in KRS 625.090 were satisfied, and it sustained the Cabinet's petitions for involuntary termination. This appeal followed.
Father prosecuted separate appeals for each child, which were consolidated by order of this Court on August 13, 2021.
ARGUMENTS AND ANALYSIS
Father's appointed counsel, Hon. Richard Null, now argues that he has an ethical duty to withdraw from representation because Father's appeal is frivolous. After directing our attention to A.C. v. Cabinet, supra, Mr. Null asserts that the elements of the involuntary termination statute, KRS 625.090, were satisfied and the record contains no reasonable basis for prosecuting an appeal. The Cabinet agrees that the appeal is frivolous.
A circuit court may involuntarily terminate a party's parental rights if it finds by clear and convincing evidence that 1) the child is abused or neglected as defined by statute; 2) that the termination of parental rights is in the child's best interests; and 3) that at least one of statutorily enumerated factors exists which demonstrates parental unfitness. KRS 625.090. A trial court has broad latitude in determining whether children fit within the abused or neglected category and whether the abuse or neglect warrants termination. Department for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977).
Our standard of review in a termination of parental rights action is confined to the clearly erroneous standard based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support them. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934). When an appellant's counsel has filed an Anders brief and asserts that the appeal has no merit, we must "examine the record and decide whether the appeal is wholly frivolous pursuant to Anders[.]" A.C., 362 S.W.3d at 371.
The record contains substantial evidence to support the findings of the trial court. The first prong of the termination statute was satisfied when the children were adjudged neglected by the McCracken Family Court. A finding of neglect in an underlying juvenile case is sufficient to satisfy this requirement. M.A.B. v. Commonwealth, Cabinet for Health and Family Services, 456 S.W.3d 407, 412-13 (Ky. App. 2015). Further, in the proceeding sub judice, the McCracken Family Court again found the children to be neglected.
The second prong is that termination of parental rights must be in the child's best interests. KRS 625.090(1)(c). The record demonstrates that Father has a long criminal history with more than 30 convictions including violent crime, terroristic threatening, drug possession, and violation of domestic violence orders. Evidence was adduced that he has been uncooperative in efforts to reestablish his parental involvement and has not provided the children with essential parental care or protection, food, clothing, shelter, medical care, or education. Father has failed to make sufficient progress on his court-approved case plan to allow for the safe return of the children to his care, and at the time of the circuit court proceeding was facing a criminal charge for threatening to kill a Cabinet employee. The circuit court has broad discretion in determining the best interests of the children. W.A. v Cabinet for Health and Family Services, 275 S.W.3d 214 (Ky. App. 2008). The McCracken Circuit Court did not abuse its discretion in ruling that the children's best interests were served by termination of Father's parental rights.
Under the third prong, the court must find that at least one of the specified grounds under KRS 625.090(2) exist. The court found that four of the specified grounds exist, including that the children have been in foster care under the responsibility of the Cabinet for at least 15 of the preceding 48 months prior to the filing of the petition seeking termination. KRS 625.090(2)(j). This finding is supported by the record.
CONCLUSION
Pursuant to A.C., 362 S.W.3d at 371, the question for our consideration is whether the instant appeal is "wholly frivolous." Having closely examined the record and the law, and with full acknowledgement of "the serious nature of depriving a parent of all rights to his child," J.E.H. v. Department for Human Resources, 642 S.W.2d 600, 603 (Ky. App. 1982), we must answer this question in the affirmative. The record supports the McCracken Circuit Court's determination that the three elements required for involuntary termination have been satisfied, and we found no reasonable basis for prosecuting an appeal from the circuit court's judgments. Accordingly, we grant Mr. Null's motion to withdraw pursuant to A.C. and Anders, and affirm the findings of fact, conclusions of law, and judgments of the McCracken Circuit Court.