A.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; and M.W.C., a child, Ky. COA, Termination of Parental Rights and Anders Procedures

A.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; and M.W.C., a child

No. 2011-CA-00504-ME

Published: Opinion Affirming

County: Kenton

 A.C. appeals from an order of the Kenton Family Court terminating her parental rights with regard to her minor son, M.W.C. The Court of Appeals is called upon to determine if 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 herein is frivolous.

In January, 2009, the Cabinet filed a petition in Kenton Family Court claiming A.C. abused M.W.C. through excessive discipline. The Family Court committed M.W.C. to the Cabinet’s custody and adjudicated M.W.C. a dependent child. In March, 2010, the Cabinet filed its petition for involuntary termination of A.C.’s parental rights, which was tried in December, 2010.

A licensed clinical social worker testified about the abusive discipline, including the use of a stun gun. A.C. also failed to provide needed therapy and mediation. A social worker for the Cabinet testified that A.C. was resistant to services, refused to complete parenting classes, failed to complete a psychological examination and did not attend Alcoholics Anonymous meetings. The social worker reported that since admission to the Diocesian Catholic Children’s Home, M.W.C.’s disruptive behavior decreased and his grades improved, and concluded M.W.C. is happier and is likely to be adopted.

 In January 2011, the family court entered comprehensive findings of fact and conclusions of law, and an order terminating A.C.’s parental rights as to M.W.C. M.W.C. was committed to the Cabinet’s custody and the Cabinet was vested with authority to place M.W.C. for adoption.

A.C. filed a timely appeal and her court-appointed counsel filed an appellate brief stating she was unable to find any meritorious assignment of error to raise on A.C.’s behalf and requested this court to independently review the record in accordance with Anders to preserve A.C.’s right to fundamental fairness. Thereafter, A.C.’s counsel filed a motion to withdraw, pursuant to Anders, which was granted. A.C. was given additional time to retain new counsel and/or file a supplemental brief, but she has not done so.

After expiration of the allotted time, the Cabinet filed a Motion to Dismiss and a Motion to Advance, claiming A.C. failed to provide any claims of error and no party raised an issue necessitating merit review.  No “case or controversy” exists, justifying dismissal of A.C.’s appeal. On December 9, 2011, the Cabinet renewed its Motion to Dismiss. All matters are now ripe for review.

The question presented is whether Kentucky will apply the principles and procedures of Anders to appeals from orders terminating parental rights. In Anders, The United States Supreme Court addressed the duty of the court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after he has determined that there is no merit to the indigent’s appeal. The Supreme Court established Anders procedures or an Anders brief to safeguard a criminal appellant’s constitutional right to counsel when his court-appointed attorney wants to withdraw from a claimed no-merit appeal.

The Supreme Court said if the court-appointed counsel believes the indigent’s case is entirely frivolous, he should advise the court and ask to withdraw. The request should be accompanied by a brief referring to anything in the record that might support the appeal. After the indigent has the opportunity to review the brief and raise any points he chooses, the court will decide whether the case is wholly frivolous. If it so finds, the court may allow counsel to withdraw and dismiss insofar as federal requirements are concerned or decide on the merits, if state law requires. If, however, it finds any legal points arguable on their merits, the indigent must be offered assistance of counsel to argue the appeal.

When the attorney believes there are no non-frivolous grounds for appealing a termination of parental rights, the Anders procedures may be applied, providing balancing of the rights of the indigent parents and the obligations of their appointed attorneys. Just as the US Supreme Court provided Anders safeguards in the criminal context, our Court of Appeals provides indigent parents the right to appellate counsel in termination of rights cases.

The Court of Appeals provides a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. The Anders brief is not a substitution for an advocate’s brief on the merits, nor is it an escape provision to end undercompensated legal services the lawyer agreed to provide.

Having articulated the standard to be applied, the Court of Appeals reviewed the records and agreed with counsel’s assessment and saw no basis warranting relief on appeal. The Cabinet’s Motion to Dismiss and to Advance is moot and the Kenton Family Court’s order terminating A.C.’s parental rights to M.W.C. is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.