L. D. VS. COMMONWEALTH OF KENTUCKY , ET AL.
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RENDERED: JUNE 20, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2007-CA-000782-ME
L.D.
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 06-AD-00063
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; AND E.D., AN INFANT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, STUMBO, JUDGES. BUCKINGHAM,1 SENIOR
JUDGE.
CAPERTON, JUDGE: This matter involves an appeal by L.D. from the Kenton
Family Court’s termination of parental rights to her infant child E.D., and
Senior Judge David C. Buckingham, sitting as Special Judge by Assignment of the Chief
Justice pursuant to Section 110 (5) (b) of the Kentucky Revised Statutes (KRS) 21.580.
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judgment ordering placement of the infant child E.D. in the full care, custody, and
control of the Cabinet for Health and Family Services. For the reasons set forth
herein below, we affirm.
On August 18, 2006, the Cabinet for Families and Children petitioned
the court pursuant to KRS 625.050 for an involuntary termination of the parental
rights of L.D. to her child, E.D., who was born on December 20, 2005. The minor
child in question was initially committed to the Cabinet for Families and Children
on February 21, 2006.
A review of the record indicates that at the time of the birth of E.D.,
L.D.’s competency was called into question. L.D. was subsequently assessed by
Dr. Rosenthal, a licensed clinical psychologist, who made a determination of
incompetency. Recommendations for treatment, medications, and services were
made, but apparently not followed by L.D. at the time of the petition for
termination.
The Honorable Christopher J. Mehling of the Kenton Family Court
heard this matter on February 15, 2007. On March 2, 2007, findings of fact and
conclusions of law were issued, and on March 6, 2007, an order of judgment was
entered. The judgment terminated the parental rights of L.D. to E.D. and placed
the child in the custody of the Kentucky Cabinet for Health and Family Services
with authority to place E.D. for adoption.
In so ruling, the court found by clear and convincing evidence that
E.D. was an abused and neglected child as defined by KRS 600.020(1), that for not
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less than six (6) months, L.D. had continuously or repeatedly failed, refused, or
was incapable of providing essential parental care and protection for the child, and
that there was no reasonable expectation of her doing so in the future. Likewise,
the Court held that for reasons, other than poverty alone, L.D. continuously or
repeatedly failed to provide or was incapable of providing essential food, clothing,
shelter, medical care, or education reasonably necessary for the child’s well-being,
and that there was no reasonable expectation of improvement in her conduct in the
immediately foreseeable future.
Thereafter, on April 13, 2007, L.D. filed this appeal. In reviewing this
matter, we note that counsel who represents L.D. in this appeal was also appointed
as guardian ad litem for L.D. at trial. Counsel was appointed as such due to
concerns about L.D.’s mental deficiencies. Further, counsel for L.D. has filed an
Anders brief in this matter. In so doing, counsel concedes that no meritorious
issues were found to present on appeal to this court. Anders v. California, 386
U.S. 738 (1967).
Accordingly, it is our duty to review the record independently for
reversible error, and to preserve L.D.’s right to fundamental fairness. Having done
so, we find no preserved allegation of error, nor any issue apparent on the face of
the record to indicate any merit to this appeal. We therefore affirm the ruling of
the trial court.
Our standard of review in termination of parental rights cases is set
forth in M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-17 (Ky.
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App. 1998). It is clear that the trial court has a great deal of discretion in
determining whether the 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 Ct. 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 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 its findings. 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 ordinary prudent-minded people.
Rowland v. Holt, 70 S.W.2d 5, 9 (Ky. 1934).
After reviewing the record in detail, we find that the record contains
sufficient evidence to support the judgment. Based upon our review of the record,
we find that substantial evidence exists to support the trial court’s decision in
finding that E.D. was an abused and/or neglected child, and in finding that said
neglect warranted termination. Finding no reversible error, we affirm the judgment
of the Kenton Family Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
J. Richard Scott
Fox & Scott
Covington, Kentucky
Kelly S. Wiley
Covington, Kentucky
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