T.N.D. v. Commonwealth of Kentucky, Cabinet for Health and Family Services

Opinion

RENDERED: JULY 24, 2026; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1225-ME

T.N.D. APPELLANT

APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE KATHERINE DEMPS, JUDGE ACTION NO. 24-J-00256-002

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; C.D.; AND C.D., A MINOR CHILD APPELLEES

OPINION AND ORDER DISMISSING

** ** ** ** **

BEFORE: EASTON, A. JONES, AND MOYNAHAN, JUDGES.

JONES, A., JUDGE: This appeal presents a question not previously addressed by

Kentucky’s appellate courts: whether the procedures set forth in Anders v.

California, 386 U.S. 738 (1967), and extended to termination of parental rights

appeals in A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), apply to appeals arising from dependency, neglect, and abuse

(“DNA”) proceedings under KRS1 Chapter 620.

After reviewing the origins and purpose of Anders, the rationale

underlying A.C., and the significant distinctions between termination proceedings

and DNA actions, we conclude that they do not. Accordingly, we hold that the

Anders procedures adopted in A.C. are limited to termination-of-parental-rights

appeals and do not apply to DNA appeals.

Because T.N.D. (“Mother”) has not identified any claim of error for

review after being afforded an opportunity to do so, and because Anders does not

require this Court to independently review the record in a DNA appeal, we grant

counsel’s motion to withdraw, strike the Anders brief, and dismiss the appeal.

I. BACKGROUND

This appeal arises from a DNA action filed pursuant to KRS 620.070

on behalf of C.D., a minor child. Following adjudication and disposition

proceedings, the Christian Circuit Court, Family Division (“family court”),

determined that C.D. was an abused or neglected child and ordered that C.D.

remain committed to the custody of the Cabinet for Health and Family Services

(“Cabinet”). The family court further directed Mother to cooperate with the

1 Kentucky Revised Statutes.

-2- Cabinet and participate in any treatment or social service programs recommended

by the Cabinet.

Mother, through her court-appointed counsel, Dianna Riddick, filed a

notice of appeal from the family court’s orders on September 26, 2025.2

Thereafter, Counsel Riddick filed a motion to withdraw stating that after reviewing

the entire record, she was unable to identify any nonfrivolous grounds upon which

to challenge the family court’s orders. She also filed an Anders brief pursuant to

A.C. Upon review, the Court ordered Counsel Riddick’s motion to withdraw be

passed to the merits panel and instructed Mother that she had thirty days to file a

brief of her own choosing, raising any issues that she deemed meritorious. Mother

did not file a brief or take any other action in the appeal. The Appellees likewise

elected not to file a responsive brief.

Accordingly, the matter now stands submitted for consideration of

counsel’s motion to withdraw and the threshold question of whether the Anders

procedures recognized in A.C. apply to appeals arising from DNA proceedings.

2 The family court appointed Counsel Riddick to represent Mother in the DNA proceedings

pursuant to KRS 620.100(1)(b). It provides: “The court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel pursuant to KRS Chapter 31.”

-3- II. ANALYSIS

A. Historical background of Anders and A.C.

In Anders, the United States Supreme Court addressed the obligations

of court-appointed counsel who concludes that a criminal defendant’s first appeal

as a matter of right presents no nonfrivolous grounds for relief. The Court held

that counsel may seek leave to withdraw only after conducting a conscientious

examination of the record and filing a brief identifying anything in the record that

might arguably support the appeal. The reviewing court must then independently

examine the record to determine whether the appeal is wholly frivolous before

permitting counsel to withdraw. Anders, 386 U.S. at 744.

The Supreme Court later clarified that the procedures established in

Anders are not constitutionally required in every proceeding in which counsel has

been appointed. Rather, Anders created a prophylactic framework designed to

protect a litigant’s preexisting constitutional right to counsel on a first appeal as a

matter of right. Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987) (“Anders

established a prophylactic framework that is relevant when, and only when, a

litigant has a previously established constitutional right to counsel.”).

Kentucky adopted the Anders procedures in criminal appeals through

Fite v. Commonwealth, 469 S.W.2d 357 (Ky. 1971). For many years, however,

Kentucky appellate courts did not address whether Anders should be extended

-4- beyond the criminal context. That question was answered in A.C., wherein this

Court considered whether Anders should apply to appeals involving the

involuntary termination of parental rights. In concluding that it should, the Court

emphasized both the parent’s statutory right to counsel under KRS 625.080(3) and

the extraordinary nature of termination proceedings. The Court observed that

termination proceedings permanently sever the parent-child relationship, implicate

one of the most fundamental liberty interests recognized by law, require strict

compliance with statutory requirements, and must be supported by clear and

convincing evidence. A.C., 362 S.W.3d at 365-71.

Balancing those considerations against the burdens imposed by

Anders review, the Court concluded that the procedures established in Anders

should be extended to termination-of-parental-rights appeals. Accordingly, A.C.

held that when appointed counsel in a termination case determines that an appeal

presents no meritorious grounds for relief, counsel may file an Anders brief and

seek leave to withdraw, thereby triggering an independent review of the record by

the appellate court. 362 S.W.3d at 370-72.

The question now before us is whether the reasoning of A.C. should

be extended further to encompass appeals arising from DNA proceedings under

KRS Chapter 620.

-5- B. DNA proceedings differ fundamentally from termination proceedings.

There is no question that DNA proceedings implicate important

parental interests. Parents possess a fundamental liberty interest in the care,

custody, and control of their children. Cabinet for Health and Fam. Servs. v. K.S.,

610 S.W.3d 205, 214 (Ky. 2020). Consistent with that principle, KRS

620.100(1)(b) requires the appointment of counsel for indigent parents in DNA

proceedings.

In several respects, DNA proceedings resemble termination

proceedings. Both arise from allegations concerning the welfare of a child. Both

may result in court-ordered limitations upon a parent’s custodial rights. Both

implicate a parent’s liberty interest in the care and custody of his or her child. And

in both proceedings, the General Assembly has provided for the appointment of

counsel to indigent parents. The similarities, however, end there.

Most significantly, a DNA proceeding cannot permanently sever the

parent-child relationship. While a family court may impose a variety of

dispositional remedies designed to protect a child, including temporary removal

from parental custody, the purpose of a DNA action is not to permanently

terminate parental rights. Rather, such proceedings remain subject to continuing

review and modification by the family court and, in many cases, are structured

toward reunification of the family when doing so can be accomplished safely.

-6- Termination proceedings are fundamentally different. A judgment

terminating parental rights permanently and irrevocably extinguishes the legal

relationship between parent and child. Once terminated, the parent-child

relationship cannot be restored through subsequent compliance with a case plan,

participation in services, or improvement in circumstances. In large part, the

permanent severance of the parent-child relationship and the magnitude of the

liberty interest at stake, drove our decision in A.C.

An additional distinction reinforces this conclusion. DNA allegations

must be proven by a preponderance of the evidence. KRS 620.100(3). By

contrast, termination of parental rights requires proof by clear and convincing

evidence. KRS 625.090(1). The proof required for court action in DNA cases is

significantly less than that required for termination of parental rights.

C. We decline to extend Anders to DNA appeals.

Having examined the significant distinctions between DNA

proceedings and termination proceedings, we now turn to whether the Anders

procedures adopted in A.C. should be extended to appeals arising under KRS

Chapter 620. We conclude they should not.

As an initial matter, we do not read A.C. as establishing a categorical

rule that Anders applies whenever a litigant has a statutory right to appointed

counsel. To the contrary, A.C. repeatedly emphasized the unique nature of

-7- termination proceedings, the permanent severance of the parent-child relationship,

the heightened burden of proof, and the extraordinary liberty interests at stake.

Those considerations justified extending Anders beyond its traditional criminal-law

origins and imposing upon both appointed counsel and the appellate courts the

substantial obligations attendant to Anders review.

The existence of appointed counsel, standing alone, however, cannot

be dispositive. Kentucky law provides for the appointment of counsel in other

proceedings, yet Anders review is not required in every appeal arising from those

proceedings. Indeed, while counsel may be appointed in post-conviction

proceedings brought pursuant to RCr3 11.42, Kentucky courts do not employ

Anders procedures in appeals from those proceedings. Thus, the mere existence of

a statutory right to counsel does not automatically trigger Anders review.

Nor does the rationale underlying A.C. support such an extension.

The procedures established in Anders require appointed counsel to conduct a

comprehensive review of the record, identify any potentially arguable issues, and

explain why those issues lack merit. They further require the appellate court to

independently review the entire record regardless of whether the appellant

identifies any claim of error. As this Court is well aware, these obligations are

substantial. Nevertheless, in A.C. we concluded that such burdens were justified

3 Kentucky Rules of Criminal Procedure.

-8- because termination proceedings involve the permanent and irrevocable

destruction of the parent-child relationship.

DNA proceedings do not present the same concerns. While such

proceedings may temporarily disrupt the parent-child relationship and may result

in restrictions upon parental custody, they do not permanently terminate parental

rights. In many cases, parents may regain custody through compliance with court

orders, participation in treatment programs, and successful completion of case

plans. And, in many other cases, parents retain physical custody of their children

so long as they cooperate with the Cabinet and with any related court orders. The

family court retains continuing authority to review and modify its orders as

circumstances change. Consequently, the balance struck in A.C. does not support

extending Anders review to DNA appeals.

Nor does our holding deprive parents of meaningful appellate review.

If appointed counsel identifies a nonfrivolous basis for appeal, counsel remains

ethically obligated to pursue that appeal on the parent’s behalf should the parent so

desire. If counsel concludes that no such basis exists and is permitted to withdraw,

the parent remains free to pursue an appeal pro se. Kentucky appellate courts

routinely review pro se appeals and grant relief when warranted. Our holding

merely recognizes that, unlike termination proceedings, DNA appeals do not

-9- require the extraordinary safeguard of an independent Anders review by the

appellate court absent any claim of error advanced by either counsel or the parent.

Accordingly, we hold that the Anders procedures adopted in A.C. do

not apply to appeals arising from DNA proceedings under KRS Chapter 620.

D. Procedure in DNA Appeals.

Because Anders does not apply to DNA appeals, it is appropriate to

clarify the procedure to follow when appointed counsel concludes that an appeal

presents no nonfrivolous grounds for relief. If counsel concludes that no

nonfrivolous issues exist and the client still desires to appeal, counsel should assist

the client in filing a notice of appeal and then seek leave to withdraw. The motion

should certify that counsel has reviewed the record but has been unable to identify

any nonfrivolous grounds for appeal. Counsel should include the client in the

certificate of service. If the Court allows counsel to withdraw, the appealing party

may file a brief pro se. Absent a properly filed brief identifying some alleged

error, the appeal shall proceed in the same manner as any other appeal in which the

appellant has failed to file a brief.

E. Application to this case.

In the present case, Counsel Riddick moved to withdraw after

concluding that no nonfrivolous grounds existed upon which to challenge the

family court’s orders. Consistent with the procedure described above, Mother was

-10- provided notice of counsel’s motion and afforded thirty days to file a brief

identifying any issues she wished this Court to review. Mother did not file a brief

or take any other action in the appeal.

Because Anders does not apply to DNA appeals, we decline to

conduct an independent review of the record. We therefore grant Counsel

Riddick’s motion to withdraw and strike the Anders brief filed in this matter.

With the Anders brief stricken, there is no appellant brief before this Court. It is

well-established that “an appeal may be dismissed when the appellant fails to file a

brief in support of his [or her] position.” Milby v. Mears, 580 S.W.2d 724, 727

(Ky. App. 1979) (citations omitted); Callihan v. Callihan, 528 S.W.3d 353, 356

(Ky. App. 2017) (citing Milby, 580 S.W.2d at 727). Accordingly, dismissal of this

appeal is appropriate.

III. ORDER

IT IS HEREBY ORDERED as follows:

1. Counsel Riddick’s motion to withdraw is GRANTED;

2. The Clerk of the Kentucky Court of Appeals is hereby ordered to STRIKE

the Anders brief filed on Mother’s behalf from the record; and

3. This appeal is DISMISSED for Mother’s failure to file an appellant brief.

-11- ALL CONCUR.

ENTERED: ____07/24/2026____ HON. ALLISON E. JONES JUDGE, COURT OF APPEALS

-12-