04 Aug July 24 Round Up
Two Round Up posts back to back?? To be fair, the Round Up editors are running a little behind but are working hard to catch up. This week: two family law cases, the criminal tally, and a special section on an election appeal close to home for the H+A team.
T.N.D. v. Commonwealth of Kentucky, CHFS, C.D., and C.D., 2025-CA-1225
This case will change the landscape of dependency, neglect, and abuse appeals in Kentucky.
After the Christian County Family Court found that the minor child C.D. was abused or neglected and committed the child to the Cabinet, Mother’s appointed attorney filed an appeal. Counsel then reviewed the record, found no nonfrivolous issue, and submitted an Anders brief under A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012). Mother was given thirty days to file her own brief. She filed nothing.
That presented a question Kentucky’s appellate courts had not previously answered: Do the Anders protections which apply in criminal and termination-of-parental-rights appeals also apply in DNA appeals?
The Court of Appeals answered, “No.”
Under Anders, appointed counsel who finds no meritorious appellate issue cannot simply abandon the client. Counsel must identify anything in the record that might arguably support the appeal. Then, the appellate court must independently review the entire record before permitting withdrawal. Kentucky extended that protection to termination cases in A.C. because termination permanently and irrevocably destroys the parent-child relationship.
The Court of Appeals declined to extend A.C. to DNA proceedings. It emphasized that a DNA adjudication does not permanently terminate parental rights, remains subject to continuing review and modification, and often contemplates reunification. The Court also noted that DNA allegations require proof only by a preponderance of the evidence, while termination requires clear and convincing evidence.
Accordingly, appointed counsel in a DNA case who finds no nonfrivolous appellate issue should assist the parent in filing the notice of appeal and then seek permission to withdraw. Counsel need only certify that the record was reviewed and no nonfrivolous issue was found. If withdrawal is allowed, the indigent parent must prepare a pro se brief identifying an alleged error—or face dismissal.
That is what happened here. The Court granted counsel’s motion to withdraw, struck the Anders brief, declined to review the record independently, and dismissed Mother’s appeal because no appellant’s brief remained.
The Opinion assures us that this does not deprive parents of meaningful appellate review because parents remain “free to pursue an appeal pro se.” That statement will raise an eyebrow—or two—among lawyers who have watched represented litigants struggle to navigate DNA proceedings, much less the Kentucky Rules of Appellate Procedure (RAP).
The Editorial Staff at the Round Up has suspected for some time that the appellate courts were growing weary of the increasing number of abuse-and-neglect appeals. This Opinion may confirm that suspicion. The Court expressly described independent Anders review as imposing “substantial” obligations on appellate counsel and the Court. Its solution is to reserve that work for termination cases. (This case seems like a different approach than the Court took on GAL practice in Domestic Violence cases earlier in the year.)
But DNA adjudications are hardly inconsequential. They can remove a child from a parent, place the family under continuing state supervision, create findings later used in custody or termination proceedings, and begin the chain of events that ultimately ends the parental relationship. For an indigent parent whose appointed lawyer withdraws, the supposed availability of a pro se appeal may be more theoretical than real.
Practice Pointer: Counsel handling DNA appeals should no longer file an Anders brief. If no nonfrivolous issue can be identified, counsel should perfect the appeal, move to withdraw, certify a review of the record, and serve the parent. Parents’ attorneys should also explain—plainly and preferably in writing—that failure to file a pro se brief will likely result in dismissal without any independent review of the underlying record.
Landscape-changing. And a must-read for every court-appointed lawyer in Chapter 620 cases.
Reported. http://opinions.kycourts.net/COA/2025-CA-001225.PDF
C.B.J.H. v. Commonwealth of Kentucky, CHFS, K.M.H., and S.N.C., 2025-CA-1514
In an unreported case on a TPR matter, the Kentucky Court of Appeals affirmed Shelby County Family Court. Another instance of “too little, too late.” Always a sad fact pattern.
Unreported. http://opinions.kycourts.net/COA/2025-CA-001514.PDF
Criminal Tally
On the criminal side, it was another tough week for the criminal defense crew. Final tally: Cops 6, Robbers 1.
Elections
Finally, the voters got a big win in an unreported decision in Miller v. Hettiaratchi. Jerry T. Miller sought to keep his opponent, Melina Hettiaratchi, off the ballot for the Metro Council seat in District 11. The Court of Appeals rejected this effort. (Disclaimer: Melina is a member of the Helmers+Associates team, so we are admittedly biased.) Nonetheless, the real winners on this are the citizens that will have a choice in November.
http://opinions.kycourts.net/COA/2026-CA-000769.PDF
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