A.C. v. Cabinet for Health & Family Servs., No. 2011–CA–000504–ME.

• Decision Date: 24 February 2012
• Docket Number: No. 2011–CA–000504–ME.
• Citation: 362 S.W.3d 361
• Parties: A.C., Appellant, v. CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and M.W.C., a child, Appellees.
• Court: Kentucky Court of Appeals

362 S.W.3d 361

A.C., Appellant,

v.CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and M.W.C., a child, Appellees.

No. 2011–CA–000504–ME.

Court of Appeals of Kentucky.

Feb. 24, 2012.

Marianne S. Chevalier, Ft. Mitchell, KY, for appellant.

Kelly S. Wiley, Covington, KY, for appellees.

Before ACREE, CAPERTON and VANMETER, Judges.

OPINION

ACREE, Judge:

This is an appeal from the Kenton Family Court's January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court's judgment.

I. Background

A.C. is the natural mother of M.W.C., a male child born in 1999. On or about January 8, 2009, the Cabinet for Health and Family Services (the “Cabinet”) filed a petition in the Kenton Family Court claiming A.C. abused M.W.C. through the use of excessive discipline and “tasing,” and sought to remove M.W.C. from A.C.'s care. On the same date, the family court committed M.W.C. to the Cabinet's custody. Soon thereafter the family court adjudicated M.W.C. a dependent child.

The Cabinet filed its petition for involuntary termination of A.C.'s parental rights on March 10, 2010. Following several delays, the Cabinet's petition came on for trial on December 10, 2010. At trial, Patricia Moore, a licensed clinical social worker, testified that M.W.C. claimed A.C. beat him with a belt; forced him to stand in a squatting position holding cans until his leg shook and buckled; and “tased” him on the arms, back, and legs with a stun gun, causing his body to jerk. M.W.C. explained the stun gun's electrical buzz disturbed his stepfather, so A.C. would lock M.W.C. and the other children residing in the home in the kitchen and “stun” each child until one admitted to the particular problem A.C. was concerned with at the time. Moore opined these discipline techniques occurred over a substantial period of time. Additionally, the evidence revealed that M.W.C. had witnessed high-intensity arguments between his stepfather and A.C., and that M.W.C. had been treated by several medical and mental health providers since 2006 for suicidal thoughts, depression, and aggressive behavior, yet A.C. failed to consistently provide him with needed therapy and medication. Moore testified that, since M.W.C.'s placement in the Diocesan Catholic Children's Home, where he remained as of the trial date,¹ his emotional distress and aggressive behavior noticeably subsided. Moore also conveyed M.W.C's expression that he loved and missed A.C. but he was concerned for his safety if returned to A.C.'s custody.

A.C. testified regarding her care of M.W.C. and her current status. A.C. explained that she was living in Ohio and taking classes at a local university. A.C. claimed she was employed at Kohl's District Center but had never held a job for an extended period of time. A.C. admitted she had no other source of income except for a student loan. A.C. categorically denied M.W.C.'s allegations of abuse. When asked about the facts giving rise to her guilty plea to harassment without physical injury, a Class B misdemeanor, relative to two other children living in her home, A.C. agreed only that she pleaded guilty to “criminal spanking.” A.C. admitted that she had not provided M.W.C. with any essential care items—food, clothing, socks, shoes—since his removal from her care in 2009, but claimed she provided a few things for him during their visits.

Lauren Evans, a social worker with the Cabinet, clarified the services offered by the Cabinet to A.C. Evans explained A.C. failed to cooperate with the Cabinet during its investigation, and described A.C. as resistant to services. Evans testified that A.C. refused to initially complete parenting classes, and failed both to complete a psychological evaluation and to attend Alcoholics Anonymous meetings. A.C. did engage in individual mental health counseling. In Evans's opinion, A.C. failed to recognize she needed to change her discipline techniques, and demonstrated an unwillingness to change her parental methods.

With respect to M.W.C., Evans testified that since his admission to the Diocesan Catholic Children's Home, his disruptive behavior during school decreased and he received grades of all As and Bs. Evans also observed that M.W.C. is now more friendly, affectionate, trusting, and open to conversation, is able to verbally communicate his feelings, and retains a sense of safety. Evans concluded that M.W.C. is happier and there is a high probability that M.W.C. will be adopted.

Following the hearing, on January 11, 2011, the family court entered findings of fact and conclusions of law, and an order terminating A.C.'s parental rights as to M.W.C. The order also committed M.W.C. to the continued custody of the Cabinet, and vested the Cabinet with the authority to place M.W.C. for adoption.² The family court determined: M.W.C. was an abused and neglected child pursuant to Kentucky Revised Statutes (KRS) 600.020(1); it was in M.W.C.'s best interest to terminate A.C.'s parental rights; A.C. continuously and repeatedly inflicted and allowed her husband to inflict physical and emotional injury upon M.W.C. by other than accidental means; A.C. abandoned M.W.C. for a period of no less than ninety days; A.C., for a period of not less than six months, continuously or repeatedly failed, refused to provide, or was incapable of providing essential parental care for M.W.C. and there was no reasonable expectation of improvement in parental care and protection; and A.C., for reasons other than poverty alone, had continuously and repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the children's well-being and there is no reasonable expectation of significant improvement in the parental conduct in the immediately foreseeable future, considering the age of the child.

II. Procedure before the Court of Appeals

A.C. timely appealed the family court's order. On May 19, 2011, A.C.'s court-appointed counsel filed an appellate brief in which she stated that she is unable to find any meritorious assignment of error to raise on A.C.'s behalf; she requested that this Court independently review the record in accordance with Anders, 386 U.S. at 744, 87 S.Ct. at 1400, to preserve A.C.'s right to fundamental fairness.³ Thereafter, on June 3, 2011, A.C.'s counsel filed a motion to withdraw pursuant to Anders; on June 28, 2011, that motion was granted.⁴ In the same order, this Court afforded A.C. fifteen days to notify this Court whether she intended to retain new counsel and, if A.C. chose not to retain new counsel, thirty days to file a supplemental brief raising any issues she believed to be meritorious. To this date, A.C. has not retained new counsel nor has she filed a supplemental pro se brief.

Once the time allotted in the June 28, 2011 order passed, the Cabinet filed a Motion to Dismiss and Motion to Advance, claiming A.C. failed to provide this Court with any claims of error and since no party has raised an issue necessitating merit review, no “case or controversy” exists, thereby justifying dismissal of A.C.'s appeal.⁵ On December 9, 2011, the Cabinet renewed its Motion to Dismiss. All these matters are now ripe for our review.

III. Applicability of Anders to Termination of Parental Rights Appeals

This case directly presents the question whether Kentucky will apply the principles and procedures of the landmark—and at times controversial ⁶—case of Anders v. California to appeals from orders terminating parental rights.

In Anders, the United States Supreme Court addressed “the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.” 386 U.S. at 739, 87 S.Ct. at 1397. In so doing, the Supreme Court established a “prophylactic framework”—now commonly known as “ Anders procedures” or an “ Anders brief”—to safeguard a criminal appellant's constitutional right to counsel when the appellant's court-appointed attorney wishes to withdraw from a claimed no-merit appeal. Pennsylvania v. Finley, 481 U.S. 551, 554–55, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987). The Supreme Court declared:

[i]f 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. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. 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.

Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In so ruling, the Court limited its decision to criminal cases in which the Sixth Amendment right to counsel applied and, as a result, declined to extend its decision, on constitutional grounds, to civil cases. See Finley, 481 U.S. at 555, 107 S.Ct. at 1993 (“ Anders established a...