RENDERED: AUGUST 16, 2024; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2024

- CA

- 0273

- ME

T.T. APPELLANT

v. APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NO. 23

- J

- 00111

- 001

CABINET FOR HEALTH AND FAMILY SERVICES, DIVISION OF PROTECTION AND PERMANENCY, COMMONWEALTH OF KENTUCKY; B.T., A MINOR CHILD; AND L.T. APPELLEES

OPINION AFFIRMING

**   **  **

BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
COMBS, JUDGE: This appeal arises from a Dependency, Neglect , or Abuse
(DNA) action.

Appellant’s counsel, Hon orable Rebecca A. Smither, has filed a

motion to withdraw and has tendered a brief pursuant to Anders v. California , 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and A.C. v. Cabinet for Health- 2

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and Family Services , 362 S.W.3d 361 (Ky. App. 2012). By Order of this Court

entered on May 3, 2024, the motion to withdraw was passed to this merits panel
and Appellant was permitted to proceed pro se and file a supplemental brief within
30 days if he so desired

-- as well as a reply brief. Appellant has not filed either a supplemental or a reply brief. We proceed with our review.

Where, as here, counsel files an Anders brief and a motion to
withdraw, “we are obligated to independently review the record and ascertain
whether the appeal is, in fact, void of nonfrivolous grounds for reversal.” A.C. ,
362 S.W.3d at 372 . In other words, we must determine if the appeal is lacking in
any meritorious grounds

.

In a DNA case, a trial court has considerable discretion which an
appellate court may not disturb absent an abuse of that discretion

. B.B. v. Cabinet
for Health and Family Services , 635 S.W.3d 802, 807

- 08 (Ky. 2021), sets forth the
test governing our appellate analysis as follows :

In a DNA action , the trial court has a great deal of discretion in determining whether the child is dependent, neglected, or abused. Under [Kentucky Rule of Civil Procedure] CR 52.01, a trial court ’ s finding of fact shall not be set aside unless clearly erroneous

. . . . Additionally, the trial court, as the finder of fact, has the responsibility to judge the credibility of all testimony, a nd may choose to believe or disbelieve any part of the evidence presented to it. If a trial court ’ s findings of fact are supported by substantial evidence and the correct law is applied, the appellate court will not- 3

- disturb the decision unless an abuse of discretion has occurred.
(I nternal quotation marks, citations , and footnote omitted

. )

On November 28, 2023, the Cabinet filed a DNA Petition in the
interest of B.T. (the child), a male born in 2014. The child’s father is the
Appellant, T.T. (Father); the child’s mother is L.T. The Cabinet alleged that “the
family has a history with [the C abinet] dating back to 2010, due to ongoing
domestic violence. The Cabinet received a report on 11/16/2023, regarding [the
child] being exposed to ongoing domestic violence between his parents.” The

Petition reflects that the Cabinet worker had confirmed t he allegation with the

child and that the parents had been “minimally compliant

. . . prohibiting [the

Cabinet ’ s] ability to engage them in services to reduce the threat to [the child].”

On November 30, 2023, the family court conducted a temporary

remova l hearing. The court ordered that the child remain in the mother’s
temporary custody, that Father not live in the family residence, and that Father’s
parenting time be supervised by the parental grandparents.

On January 17, 2024, the family court conduc ted an adjudication
hearing. We have reviewed the recorded proceeding. At the close of the hearing,
the court adjudicated the child neglected or abused by a preponderance of the
evidence based upon the child’s testimony of his exposure to domestic violen ce in

the home. The court noted that the child’s statements were consistent with what he- 4

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had told the school guidance counselor. The child’s testimony (in chambers) and
the testimony of the guidance counselor are fairly summarized at page 4 of the

Anders brief , which we will not repeat here.

In its adjudication Order entered January 18, 2024, the family court

found that the child ha d been exposed to domestic violence in the home and that
neglect or abuse ha d been proven by a preponderance of the evidence. The court

determined that the child was neglected or abused as defined in KRS 1
600.020(1)(a), 2 repeating in its finding s the statu tory elements defining an abused
or neglected child:

1 Kentucky Revised Statutes.

2 KRS 600.020 provides in relevant part that:

(1) “Abused or neglected child” means a child whose health or welfare is harmed or threatened with harm when:
(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child:

1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;

2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;

. . .
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child[.]- 5

- The child’s parent(s)

. . .  Inflicted or allowed to be inflicted upon the child physical or emotional injury by other than accidental means;
 Created or allowed to be created a risk of physical or emotional injury by other than accidental means;

. . .  Continuously or repeatedly failed or refused to provide essential parental care and protection for the child, considering the age of the child.
The adjudication Order further reflects that the family court adopted
the Cabinet’s recommendations in its January 12, 2024
, report. Those

recommendations include d th at the child remain in his mother’s custody; that
Father enroll, participate in , and complete BIP (Batterer Intervention Program);
that Father complete a mental health assessment and follow all recommendations;
and that the family cooperate with the Cabinet . The court ordered that Father’s
parenting time/ visitation be supervised by paternal grandmother or grandfather “so
long as they are appropriate supervisors.”

On January 31, 2024, the Cabinet filed a dispositional report reflect ing
that Father had not compl eted his BIP and had not responded to the Cabinet worker
regarding home visits or case planning. Recommendations were that the case

remain a non

- removal; and that Father cooperate with the Cabinet, complete a- 6

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mental health assessment , follow all recommend ations, and complete the BIP with
New Beginnings.

On February 1, 2024, the family court conducted a disposition hearing
and entered a disposition Order accepting and adopting the Cabinet’s January 31,

2024 , recommendations. On February 29, 2024, Father filed notice of appeal to

this Court.
Having independently reviewed the record, we conclude that the
family court ’ s findings of fact are supported by substantial evidence and that the

court correctly applied the law in determining that the child is an abus ed or
neglected child as defined in KRS 600.020(1)(a). No abuse of discretion occurred.
We agree that there are no meritorious grounds for appeal.

Accordingly, we affirm. By separate Order we grant Father’s

counsel’s motion to withdraw.

ALL CONCUR.

BRIEF FOR APPELLANT:

Rebecca A. Smither Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, DIVISION OF PROTECTION AND PERMANENCY, COMMONWEALTH OF KENTUCKY :

Jon R. Fee LaGrange, Kentucky