G. (C. R.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: OCTOBER 30, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000276-ME
C.R.G., A/K/A C.R.M.
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 07-AD-00087
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY; S.M.L.M., A CHILD;
AND K.A.S.G., A CHILD
APPELLEES
AND
NO. 2009-CA-000294-ME
M.M., FATHER
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 07-AD-00087
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY; S.M.L.M., A CHILD;
K.S.G., A CHILD AND
C.R.G., A/K/A C.R.M., MOTHER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: STUMBO, THOMPSON AND WINE, JUDGES.
THOMPSON, JUDGE: C.R.G. a/k/a C.R.M. (mother) and M.M. (father) appeal
an order of the Kenton Family Court terminating their parental rights to their minor
children. The parents’ counsel filed briefs in which they state they were unable to
find error which would entitle the parents to relief and requested this Court to
review the record for prejudicial error pursuant to Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.E.2d 493, reh’g denied, 388 U.S. 924, 87 S.Ct. 2094, 18
L.E.2d. 1377 (1967).
An Anders brief supplements a motion to withdraw filed after counsel
has conscientiously reviewed the record and found the appeal to be frivolous. In
Anders, the court outlined the proper procedure to be followed as follows:
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. If it so finds it may grant
counsel's request to withdraw and dismiss the appeal
insofar as federal requirements are concerned, or proceed
to a decision on the merits, if state law so requires. On
the other hand, if it finds any of the legal points arguable
on their merits (and therefore not frivolous) it must, prior
to decision, afford the indigent the assistance of counsel
to argue the appeal.
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Id. at 744, 87 S.Ct. at 1400. The Supreme Court referred only to criminal cases to
which the Sixth Amendment right to counsel applies and did not extend its
decision to civil cases. A review of the case law reveals that the states have not
reached a uniform decision as to whether Anders is applicable to termination of
parental rights cases. However, the majority of states that have addressed the
scope of Anders have held it applicable to termination of parental rights appeals on
the basis of the right to counsel under their own state laws. See In re N.B., 183
N.C.App. 114, 644 S.E.2d 22 (2007) (discussing the view that an Anders brief may
be filed in termination of parental rights appeals).
The issue of the applicability of Anders has not been brought to the
attention of this Court by the parties and, because the briefs filed are not
accompanied by motions to withdraw, we decline to consider them as Anders
briefs and to address whether Anders may be invoked in a termination of parental
rights case. Instead, we have thoroughly reviewed the record and conclude that the
family court’s findings are supported by clear and convincing evidence. Therefore,
we affirm the order terminating the parents’ parental rights.
In 2001, the father was charged with domestic violence for physically
assaulting the mother. He eventually pled guilty to fourth-degree assault. At that
time, the mother was engaging in “drug seeking” behavior by attempting to obtain
prescription drugs from various emergency rooms. In early 2004, she began
psychological treatment and was diagnosed with bipolar disorder and seizure
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disorder and later was hospitalized for probable schizophrenia. Drug testing
revealed that her system contained analgesics, tranquilizers, and marijuana.
Because of continued domestic violence, a dependency, neglect, and
abuse petition was filed in February 2005, and the children were removed in March
2005. Court-ordered drug testing of the father revealed the presence of marijuana
and cocaine. The mother was again hospitalized for depression, marijuana
dependency, post-traumatic stress disorder, alcohol abuse, and physical injuries
caused by domestic violence.
Family placement was made for the children; however, S.M. had to be
removed because she was uncontrollable. Subsequently, S.M. reported that her
father, mother, and uncles had sexually abused her and, during therapy, revealed
that she had witnessed her mother ingest drugs. Because of her post-traumatic
stress disorder, S.M. was prescribed various medications. She has shown a strong
reluctance to contact with the father and hides when he visits. Experts agreed that
under no circumstances should she be returned to the mother’s or father’s custody.
K.G. was determined to be a high suicide risk. She was diagnosed
with an adjustment disorder with mixed disturbance of conduct and emotions.
The record reveals that the parents did little to resolve their drug
dependency and domestic violence issues. Although plans for reunification were
offered by the Cabinet, neither parent completed the program.
Following a hearing, the mother’s and father’s parental rights were
terminated. The family court found that there was clear and convincing evidence
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that the children were abused and neglected as defined by KRS 600.020(1) and
pursuant to KRS 625.090, that termination was appropriate for the following
reasons: (a) for a period of not less than six months the parents have continuously
or have been substantially incapable of providing essential care and protection for
the children and there is no reasonable expectation of improvement in parental care
and protection, considering the age of the children; (b) the parents had repeatedly
inflicted or allowed to be inflicted upon the children emotional and physical injury;
(c) for reasons other than poverty alone, the parents have continuously or
repeatedly failed to provide or are incapable of providing essential food, clothing,
shelter, medical care or education reasonably necessary and available for the
children’s well-being and that there is no reasonable expectation of significant
improvement in the parents’ conduct in the immediately foreseeable future,
considering the age of the children; and (d) the parents failed to protect and
preserve the children’s fundamental right to a safe and nurturing home. The family
court further found that the parents failed to make sufficient progress toward
indentified goals as set forth in the court-approved case plan which would have
allowed for the children’s safe return. Finally, it found that the children’s physical
and mental conditions had improved since entering foster care and that termination
of parental rights was in the children’s best interests. KRS 625.090(3).
The trial court has broad discretion in determining whether a child fits
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
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(Ky.App. 1977). This Court's standard of review in a termination of parental rights
action is confined to the clearly erroneous standard in CR 52.01, based on clear
and convincing evidence. V.S. v. Commonwealth, Cabinet for Human Resources,
706 S.W.2d 420, 424 (Ky.App. 1986). However, the clear and convincing proof
does not necessarily mean uncontradicted proof. It requires that there be proof of a
probative and substantial nature carrying the weight of evidence sufficient to
convince ordinary prudent-minded people. Rowland v. Holt, 253 Ky. 718, 70
S.W.2d 5, 9 (1934).
After reviewing the record, we conclude that clear and convincing
evidence existed to support the trial court's finding that the children were abused
and neglected and that termination of the mother’s and father’s parental rights was
in the children’s best interests. The order of the Kenton Family Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT, C.R.G.,
A/K/A C.R.M:
Rene Heinrich
Newport, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Cynthia Kloeker
Covington, Kentucky
BRIEF FOR APPELLANT, M.M.,
FATHER:
Karen Hoskins Ginn
Ft. Mitchell, Kentucky
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