Cabinet for Health and Family Services, Commonwealth of Kentucky v. H. L. O. ( 2021 )

RENDERED: APRIL 29, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0276-DGE
CABINET FOR HEALTH AND FAMILY APPELLANTS
SERVICES, COMMONWEALTH OF
KENTUCKY; AND E.R.-L.O., A MINOR
CHILD
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0685
LETCHER CIRCUIT COURT NO. 18-AD-00019
H.L.O. APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REINSTATING
The Letcher Circuit Court found H.L.O. neglected her daughter E.R.-L.O.
and terminated H.L.O.'s parental rights.1 H.L.O. appealed, and a divided Court
of Appeals reversed, holding that the circuit court was clearly erroneous in
finding that termination was supported by clear and convincing evidence. The
Cabinet for Health and Family Services (Cabinet) petitioned this Court for
discretionary review, which we granted. After review, we reverse the Court of
Appeals and reinstate the judgment of the Letcher Circuit Court.
1 Due to the confidential nature of the proceedings, the mother, children, and
fathers will be identified by their initials.
BACKGROUND
H.L.O. is the mother of E.R.-L.O., T.J.C., and S.C.2 E.R.-L.O. was born
February 11, 2016, and tested positive for Buprenorphine. H.L.O. tested
positive for Methamphetamine and Buprenorphine. On February 26, 2016, the
Cabinet filed a Dependency, Neglect or Abuse (DNA) action against H.L.O. and
J.H., and the district court granted the Cabinet emergency custody of E.R.-
L.O., setting a temporary removal hearing for March 1, 2016.
At the temporary removal hearing, the district court ordered that E.R.-
L.O. be placed in the temporary custody of the Cabinet. The court found that
H.L.O. had stipulated to neglect, abuse, and dependency concerning E.R.-L.O.
The district court ordered that the Cabinet explore potential relative
placements and that H.L.O. enroll in the Advancing Solutions program.
Additionally, the court and Cabinet were operating on the assumption that J.H.
was E.R.-L.O.’s biological father. As such, J.H. was ordered to comply with
drug screenings and pill counts by the Cabinet.
At the April 26, 2016 adjudication hearing, H.L.O. again stipulated to
neglect and abuse of E.R.-L.O., and the district court ordered that E.R.-L.O.
remain in the custody of the Cabinet. The Letcher County Attorney filed a
motion for child support from H.L.O. and J.H. It was in response to this motion
for support that J.H. first denied being E.R.-L.O.’s biological father. The district
2 All three children have different fathers. The two older children, T.J.C. (born
2008) and S.C. (born 2011), were placed with family members rather than in foster
care. For this reason, E.R.-L.O. is the only child subject to this termination
proceeding.
2
court ordered DNA testing to establish paternity, but J.H. refused to comply,
and it was May 2018 before testing conclusively eliminated J.H. as the
biological father and identified T.J.R. as E.R.-L.O.’s father.
On August 29, 2016, the district court ordered that H.L.O. be permitted
unsupervised visitation with E.R.-L.O. after hearing testimony from the
Cabinet’s case worker, Jay King. The court ordered H.L.O. to pay child support
in the amount of $100 per month beginning September 1, 2016, and to provide
health insurance if she could afford to do so at a reasonable cost or through an
employer. At the subsequent custody review on November 15, 2016, Mr. King
stated that H.L.O. had been struggling with services, had tested positive for
Percocet use, was arrested for public intoxication during a visitation at the
Cabinet’s office, and was later arrested for shoplifting after another visitation
session. The December 8, 2016 order set a permanent custody hearing for early
2017.
Before that permanent custody hearing, the interested party review
board recommended that E.R.-L.O. remain with her current foster family and
that the goal for E.R.-L.O. be changed to adoption for the child's stability. The
district court held the permanency hearing on March 7, 2017, and Mr. King
testified that H.L.O. had experienced a setback in her program and had tested
positive for drugs. Specifically, H.L.O. tested positive on twenty (20) of her
twenty-eight (28) drug screens principally due to using Suboxone without a
prescription while participating in the Advancing Solutions program. In
addition, H.L.O. had to restart Phase I of the program due to a positive test for
3
Percocet. Mr. King testified that H.L.O.'s visits with E.R.-L.O. generally went
well. Still, H.L.O. attended one visit while under the influence of a substance
resulting in criminal charges and incarceration. On March 27, 2017, the court
entered an amended order changing E.R.-L.O.'s permanency plan to adoption
and directing all reunification efforts to cease.
On July 27, 2017, H.L.O., through counsel, filed a motion to redocket the
case. She had recently obtained temporary custody of T.J.C. and wanted to
regain custody of all of her children under the Cabinet's supervision. There is
no indication in the record that the district court ruled on this motion. At its
April 2018 annual permanency review, the Cabinet continued to recommend
that the goal for E.R.-L.O. be adoption. The district court accepted this
recommendation in an order dated April 9, 2018, and further ordered DNA
testing to definitively identify E.R.-L.O.’s father. Subsequent DNA tests filed
with the district court ruled out J.H. and established that T.J.R. was E.R.-
L.O.’s biological father.
On May 8, 2018, more than a year after E.R.-L.O.’s change in
permanency goal, the Cabinet filed a petition to terminate the parental rights
(TPR) of both H.L.O. and T.J.R. A warning order attorney was appointed for
T.J.R., and the court dismissed J.H. as a party. The warning order attorney
filed a report on November 17, 2018, stating that he had mailed T.J.R. a letter
regarding the action, but T.J.R. had not responded to the notice.
The court held an evidentiary hearing on the Cabinet’s TPR petition on
February 1, 2019. The Cabinet called Mr. King as its first witness. Mr. King
4
was H.L.O.'s case worker. He discussed the initial referral to the Cabinet in
February 2016 and the Cabinet's subsequent efforts at reunification. Mr. King
confirmed E.R.-L.O. had never been released into H.L.O.'s care. He then
summarized H.L.O.'s participation in the services offered by the Cabinet,
specifically the University of Kentucky Targeted Assessment Program (UK TAP)
and the Advancing Solutions program. The plan required H.L.O. take random
drug screens and maintain appropriate housing. He testified that H.L.O. took
ten months to complete Phase 1 of the Advancing Solutions program due to the
relapses she experienced. Mr. King also testified regarding H.L.O.’s boyfriend,
J.H. Because the Cabinet originally believed J.H. was E.R.-L.O.’s father, J.H.
was included in the order for drug screening. Mr. King stated that J.H. had
refused to take any drug screenings. He never engaged in any services offered
by the Cabinet.
Addressing the March 2017 goal change, Mr. King stated H.L.O. had not
completed the program by that date and was still in Phase 1. Other factors
preventing the return of E.R.-L.O. to her care included H.L.O.'s arrest for
public intoxication at the Cabinet’s office during one of her visitations, followed
by her arrest for shoplifting after she left another appointment. Mr. King noted
that H.L.O. had failed multiple drug screenings. She had almost always tested
positive for Suboxone, procuring it on the street when she did not have a
prescription. Mr. King also testified H.L.O. had issues with transportation,
having only recently obtained a driver's license. Mr. King did state that he had
no reservations regarding the cleanliness or order of her home.
5
When asked, Mr. King stated that, in his opinion, the Cabinet had made
reasonable efforts to reunify the family before the district court changed the
goal to adoption but acknowledged once the goal changed, those efforts had
ceased. After the change in goal, H.L.O. completed the Advancing Solutions
program, her UK TAP assessment, and the KVC Kentucky behavioral health
and parenting program, but at the time of this hearing, E.R.-L.O. had been in
the Cabinet’s care for 35 months. Mr. King stated he believed H.L.O. had been
incapable of providing for E.R.-L.O.'s essential care and protection. He detailed
H.L.O.'s criminal past, including her March 2015 conviction for second-degree
wanton endangerment when she and J.H. passed out in a car with S.C. also in
the car, as well as her theft charges. Mr. King stated he believed that her
pattern of drug abuse rendered her incapable of providing for E.R.-L.O., noting
that she had experienced several relapses.3 He also stated that it took her ten
months to complete Phase 1 of the Advancing Solutions program and between
sixteen (16) and seventeen (17) months to complete the entire program.
As to whether H.L.O. provided necessities for E.R.-L.O., Mr. King said
H.L.O. attended regular, weekly supervised visits at the Cabinet's office. She
generally brought food or clothing for E.R.-L.O. While she brought items to the
visits, H.L.O. was more than $1,300 in arrears on her support payments
3 We have made an effort throughout this opinion to accurately portray the
testimony as contained in the record. To be scientifically accurate, a substance-use
disorder, if it exists, is characterized by a pattern of symptoms resulting from the use
of a substance that the user continues to take, despite experiencing problems as a
result. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 5th Edition, DSM–5 (2013).
6
despite a relatively modest obligation of $100 per month. H.L.O. was currently
not working, and when asked about her source of income, Mr. King mentioned
her relationship with J.H. In the last six months, H.L.O. admitted to the
Cabinet she still had a relationship with him but had told Mr. King that J.H.
did not live with her. Mr. King stated J.H. was under a no-contact order with
regard to S.C. In August 2016, as a sign of her progress, H.L.O. had been
granted unsupervised visitation with E.R.-L.O. But the change was short lived
when Cabinet staff saw J.H. in a van with H.L.O.’s other children, despite a no-
contact order, and visitation reverted to supervised.
As to her older children, Mr. King stated they had been adjudicated
neglected and removed from H.L.O.’s home but had since been returned to
H.L.O.'s custody. In October 2017, H.L.O. regained custody of her oldest child,
T.J.C., and in November 2018, H.L.O. regained custody of S.C. after the relative
who had custody of him passed away. On cross-examination, H.L.O.'s counsel
took issue with the October date for T.J.C.’s return, arguing records indicated
T.J.C. was returned to H.L.O.'s home as early as July 2017 under a temporary
order. The trial court never made a specific finding of fact on this issue.
Mr. King then testified to E.R.-L.O.'s current physical, mental, and
emotional health. Mr. King stated that she was physically healthy though she
had issues at birth with stiffness in her leg muscles, trembling episodes, and
other physical symptoms. E.R.-L.O. remained in the hospital more than a week
after her birth to wean her off medications. He said E.R.-L.O.'s condition had
improved in foster care. She had her own room at her foster parents' house,
7
and they planned to adopt her. H.L.O. lived in a one-bedroom home, and she
slept in the living room. The older children had bunk beds in the bedroom
along with a crib. If E.R.-L.O. were to return to H.L.O., she would have to sleep
in the bedroom with her brothers or in the living room with H.L.O., though
H.L.O. had told Mr. King she was looking for a bigger place to live.
Mr. King based his recommendation that H.L.O.'s parental rights be
terminated on the length of time it took her to make progress on her case plan.
It took her much longer than usual to complete the Advancing Solutions
program. E.R.-L.O.'s significant bond with the foster parents was also a key
factor. While acknowledging E.R.-L.O. recognized H.L.O. and her siblings, in
Mr. King’s opinion, removing her from the only home she had ever known
represented a substantial risk to her emotional health. When asked if there
was a reasonable expectation of improvement in H.L.O.'s ability to provide for
E.R.-L.O.'s care in the immediately foreseeable future, Mr. King stated H.L.O.
had no income outside of cleaning homes for people. However, she did have her
driver’s license back, as well as a car. As far as being able to provide for E.R.-
L.O., he said he believed she would be able to manage food and clothing.
On cross-examination, Mr. King said his primary concern was the
emotional effect another relapse by H.L.O. would have on E.R.-L.O. He noted
that due to her repeated relapses it took H.L.O. ten months to complete the
Advancing Solutions program, which was unusually long. However, he
acknowledged that she completed Phases 2 and 3 in two to three months each,
which was more typical progression in the program. He also acknowledged that
8
after she graduated from the program in July 2017, she participated in the
aftercare program for three or four months. She completed the KVC program in
her home and the UK TAP program, and her driver’s license had been
reinstated. Ultimately, she had completed what the Cabinet asked her to do,
even if it was untimely.
When asked why E.R.-L.O. was placed in foster care while the Cabinet
placed her siblings with family members, Mr. King testified that E.R.-L.O.
lacked a suitable relative for placement. When the Cabinet removed E.R.-L.O.,
H.L.O. provided the Cabinet names of relatives for possible placement. The
Cabinet's investigation found none to be appropriate for placement, and this
fact resulted in E.R.-L.O.'s case taking a different path than that of her
siblings. When asked about H.L.O.'s July 2017 motion to change the goal back
to reunification, Mr. King stated he did not have such a motion in his files and
had no recollection of the motion or any subsequent hearing. When asked why
it took the Cabinet more than a year from the goal change order to file a
termination proceeding, Mr. King stated he did not know why it took so long for
the Cabinet to file the actual TPR. He agreed that E.R.-L.O.’s extended time in
foster care negatively affected her bond with H.L.O. while causing her to bond
more strongly with her foster parents. He agreed that H.L.O. celebrated
holidays and birthdays with E.R.-L.O. every year. When asked whether H.L.O.
had improved, he acknowledged that she had improved since beginning the
Cabinet’s plan.
9
On redirect examination, Mr. King again stated that it was appropriate,
and in E.R.-L.O.'s best interests, to terminate H.L.O.'s rights, even though the
Cabinet had returned her two older siblings. He cited the length of time E.R.-
L.O. had been in foster care and the fact it was the only home she had known.
There was no promise that integration into H.L.O.'s home would succeed. He
also stated that he had not agreed with the Cabinet's return of the other two
children. Further, he pointed out that H.L.O. had not done anything to bring
her motion to change the permanency goal before the district court again.
The Cabinet also called Adam Maggard, a clinician/therapist from
Advancing Solutions, as a witness. He described Advancing Solutions as a
structured program for women with substance abuse problems consisting of
three phases and an aftercare program. Phase 1 consisted of 36 group
meetings and required at least three months to complete. H.L.O. took ten
months to complete this phase. Phase 2 consisted of 16 group meetings held
two times per week and required at least two months to complete. Phase 3
required attendance at eight group meetings and at least two months to
complete. The aftercare program is less structured and does not require group
meetings but consists of two individual meetings per month, for six months
with a counselor. Mr. Maggard stated he began working with H.L.O. in March
2016. He did individual and group therapy with her, and their last meeting was
approximately a year earlier on February 1, 2018.
After the Cabinet closed its case, H.L.O. testified. H.L.O. testified that she
felt she had no problems bonding with E.R.-L.O. E.R.-L.O. knew who H.L.O.
10
was and referred to her as "Mommy." E.R.-L.O. also knew her brothers, calling
them "bubby." She emphasized she had asked Mr. King for additional visitation
but did not get any and was told such a decision was up to the court. She filed
the motion to redocket in the district court after the goal change but saw
nothing change and never received an order with a decision.4 She testified that
she regularly attended hearings and reviews. She asked about increased
visitation and/or custody each time and felt the Cabinet had failed to take
adequate steps to reunify the family.
H.L.O. admitted she had substance abuse issues when E.R.-L.O. was
removed, but she was currently living a clean and sober lifestyle. She had a
prescription for Suboxone and was working with her counselors to taper off.
She had maintained this lifestyle for the last year and a half to two years. She
admitted that she had taken Suboxone without a prescription in the past and
had a relapse involving Percocet.
Addressing her ability to care for E.R.-L.O., H.L.O. indicated she had
income from KTAP benefits, a gas check, and S.C.'s Social Security (SSI)
benefits. She stated J.H. helped financially. She said J.H. lived with them and
that they were moving the following week to a larger home. She indicated J.H.’s
criminal matters had all been resolved. Although she was currently
unemployed, she had worked briefly at McDonald's and had previously earned
4 As previously noted, there was no indication in the record that the district
court ever ruled on the motion to redocket. The video record included no file of an
August 1, 2017 hearing avowed to by H.L.O.’s counsel.
11
about $150 every other week by cleaning a friend’s house. She quit her job
when S.C. returned to her home because he had autism and needed her
attention. Additionally, her sporadic work history after E.R.-L.O.'s birth was
partially attributable to her pregnancies during portions of that time and not
wanting to work because her pregnancies were high-risk.5 H.L.O. did not
believe it would be hard to provide care for E.R.-L.O. if E.R.-L.O. was
transitioned to H.L.O.’s home and believed she had sufficient resources to
provide for E.R.-L.O.
At the time of the hearing, H.L.O. lived in a one-bedroom home with the
older children in the bedroom, and she and J.H. slept in the living room. She
said that while J.H. lived there, he was never home due to his work schedule.
When asked by the Cabinet, H.L.O. stated that she would feel comfortable
leaving E.R.-L.O. with J.H. if she needed to run an errand.
At the conclusion of all testimony, the Cabinet argued that it had met the
statutory burden for TPR. The Cabinet argued H.L.O.’s continued relationship
with J.H. was problematic. While subsequent DNA testing had eliminated J.H.
as the biological father, at the case initiation while he was still presumptively
the father, the Cabinet had offered J.H. services. He refused and had not
completed any services offered by the Cabinet at the time of the hearing. Mr.
King testified that as part of S.C.’s case plan there was an order that J.H. was
not to be alone with the children, yet H.L.O. admitted he was living in the home
5During the period between E.R.-L.O.'s birth and the hearing, H.L.O. was
pregnant twice and miscarried each time.
12
and she would be comfortable leaving E.R.-L.O. with him as needed. The
Cabinet further argued H.L.O. had not been supporting E.R.-L.O. as directed
by the court, as evidenced by her child support arrearage, and there was no
reasonable expectation that she would be capable of providing sufficient
support in the future. E.R.-L.O. had been in the Cabinet’s custody all three
years of her life, and the Cabinet stated it was in E.R.-L.O.'s best interests to
terminate H.L.O.’s parental rights and permit E.R.-L.O. to stay in her foster
home, which was safe and nurturing and the only one she had known.
H.L.O. argued that the Cabinet had not met its burden. This case was
about parental rights, not custody. The issue before the court was not whether
E.R.-L.O. would be better in one home rather than another. H.L.O. argued the
return of her older children to her custody indicated that she had satisfied any
concerns the district court had at the time of the goal change and should have
satisfied the trial court that TPR was unwarranted. She had taken proactive
steps to get the goal changed back to reunification. She attended the weekly
visitations and completed all services recommended by the Cabinet. She was
currently living a sober lifestyle.
When asked by the court, E.R.-L.O.’s guardian ad litem (GAL) stated he
believed the Cabinet had failed to meet its burden, particularly in light of the
fact that H.L.O. now had custody of both of the older children, and therefore
13
termination was not appropriate in this case. He thought this was true even
after hearing about J.H.’s presence in the home.6
On February 12, 2019, the circuit court entered its findings of fact and
conclusions of law that E.R.-L.O. had been neglected and abused. KRS7
625.090(1). The court made further findings that H.L.O. had abandoned her
child for more than ninety days, KRS 625.090(2)(a), and had failed or refused
to provide essential parental care and protection and there was no reasonable
expectation of improvement. KRS 625.090(2)(e). The trial court also found that
for reasons other than poverty alone, H.L.O. failed to provide essential food,
clothing, medical care, or education necessary for the child's well-being and
there was no reasonable expectation of improvement in the immediately
foreseeable future, considering the age of the child. KRS 625.090(2)(g). The
court said that despite her completion of the Cabinet’s services, those services
failed to remediate H.L.O.'s lack of protective capacity as demonstrated by her
willingness to expose her minor child to J.H. The trial court also found that
E.R.-L.O. had been in the custody of the Cabinet for more than fifteen (15) of
the last forty-eight (48) months. KRS 625.090(2)(j). A separate judgment was
entered terminating H.L.O.'s parental rights and placing custody of E.R.-L.O.
with the Cabinet with authority to place her for adoption.
6 At the conclusion of arguments, the court asked the GAL for his "thoughts.”
The GAL offered his opinion that the state had failed to meet its burden to justify
termination. The GAL never explicitly offered, nor was he specifically asked, his
opinion as to what would be in E.R.-L.O.’s best interests.
7 Kentucky Revised Statutes.
14
H.L.O. moved the court to alter, amend, or vacate its order pursuant to
Kentucky Rules of Civil Procedure (CR) 52.02, 52.04, and 59.05, and for CR
60.02 relief. She argued that there was no evidence that she had abandoned
E.R.-L.O., and that there was no evidence to support the other findings under
KRS 625.090(2). She argued the trial court’s focus on J.H.’s criminal record
was inappropriate. The Cabinet conceded H.L.O. had not abandoned E.R.-L.O.
but disputed H.L.O.’s remaining arguments. The Cabinet maintained that
despite completing her services, H.L.O. showed a failure to internalize their
lessons by continuing to permit J.H. to remain around her children, which
would include E.R.-L.O. if she were returned. This fact indicated she could not
apply what she learned in the services. At the hearing, the court stated that the
case hinged on whether H.L.O. had complied with services and on her
continued relationship with J.H. The court renewed its findings regarding
H.L.O.’s insufficient progress on her case plan and her willingness to permit
J.H. to be around E.R.-L.O., both of which justified the termination of her
parental rights. The court ultimately granted in part and denied in part
H.L.O.'s motion. It entered amended findings of fact and conclusions of law on
April 4, 2019, removing the finding that H.L.O. had abandoned E.R.-L.O., but
reiterated its other findings and conclusions and terminated H.L.O.’s parental
rights.
H.L.O. appealed, and a divided Court of Appeals reversed the trial court,
holding the Cabinet failed to meet its burden. The Court of Appeals focused on
Mr. King's statements that H.L.O. had made progress since starting her
15
services. The Court of Appeals’ review of Mr. King's testimony led it to the
conclusion that Mr. King's recommendation to terminate H.L.O.'s parental
rights was principally due to the time E.R.-L.O. had lived with the foster
parents and the emotional difficulty of transitioning her to H.L.O.'s custody
rather than the factors in KRS 625.090(2). The Court of Appeals also took issue
with the trial court's focus on J.H. because he was not E.R.-L.O.’s biological
father and was not married to H.L.O., despite living in the home. Therefore, the
Court of Appeals disagreed with the trial court’s finding that H.L.O.'s continued
association with J.H. demonstrated an inability to adequately protect E.R.-L.O.
They agreed with H.L.O. that the record did not show by clear and convincing
evidence that there was no reasonable expectation of improvement in H.L.O.'s
conduct and that the trial court’s findings under KRS 625.090(2)(e) and (g)
were incorrect.
The Court of Appeals then turned to the remaining factor under KRS
625.090(2), E.R.-L.O.'s lengthy time in foster care. It acknowledged that E.R.-
L.O.’s time in the custody of the Cabinet, i.e. more than fifteen (15) of the prior
forty-eight (48) months in foster care, satisfied the requirement of KRS
625.090(2)(j).8 However, the Court of Appeals identified two mitigating factors
that made this application unjust. First, the Cabinet never adequately
explained the lengthy delay between the March 2017 goal change to adoption
and the filing of the petition for termination in May 2018. Second, H.L.O. filed a
8At the time of the termination hearing, E.R.-L.O. was almost three years old
and had lived her entire life with the foster parents.
16
motion in July 2017 to change the goal back to reunification that was never
ruled upon by the district court. The Court of Appeals then stated that despite
meeting the statutory definition, “we do not believe this circumstance should
be held against the Mother in this case.” The Court of Appeals reversed the
circuit court, finding none of the factors in KRS 625.090(2) were established by
clear and convincing evidence. Therefore, the circuit court’s decision to
terminate was clearly erroneous.
The Cabinet appealed to this Court, arguing the Court of Appeals
misinterpreted the custody provision of KRS 625.090(2)(j) and failed to give
sufficient deference to the trial court's findings under KRS 625.090(2)(e) and
(g).
STANDARD OF REVIEW
Broad discretion is afforded to trial courts to determine whether parental
rights should be terminated, and our review is limited to a clearly erroneous
standard. Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204, 211 (Ky.
2014). A trial court’s findings are not clearly erroneous if there is substantial
evidence in the record to support them. L.D. v. J.H., 350 S.W.3d 828, 829-30
(Ky. App. 2011) (citing Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986)).
When the findings are supported by substantial evidence, then appellate review
is limited to whether the facts support the legal conclusions which we review de
novo. Id. at 830. If the trial court’s factual findings are not clearly erroneous
and the legal conclusions are correct, we are limited to determining whether
the trial court abused its discretion in applying the law to the facts. Id. Finally,
17
[s]ince the family court is in the best position to evaluate the
testimony and to weigh the evidence, an appellate court should not
substitute its own opinion for that of the family court. If the
findings of fact are supported by substantial evidence and if the
correct law is applied, a family court's ultimate decision ... will not
be disturbed absent an abuse of discretion.
B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005) (internal citations
omitted).
The termination of parental rights is a particularly fact-sensitive inquiry,
so appellate courts are disinclined to disturb a trial court’s findings. K.H., 423
S.W.3d at 211. Where the trial court's findings are not clearly erroneous, and
they substantially support the TPR, we will affirm the order. Id. "Clear and
convincing proof does not necessarily mean uncontradicted proof. It is
sufficient if there is proof of a probative and substantial nature carrying the
weight of evidence sufficient to convince ordinarily prudent minded people."
Rowland v. Holt, 70 S.W.2d 5, 9 (Ky. 1934).
ANALYSIS
It is a fundamental right of every parent to raise his or her own child.
K.H., 423 S.W.3d at 209.9 KRS 625.090 sets forth all the requirements which
must be met before a court in Kentucky can involuntarily terminate a parent’s
rights to his or her child. Because of the heightened value of the right to parent
a child, such proof must be clear and convincing in nature. Santosky v.
9 See also Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972) (protecting a
parent's right to control the rearing, education, and religion of his or her child);
Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding the right to raise a child is a
“basic civil right” of a parent).
18
Kramer, 455 U.S. 745, 747-48 (1982). The statute requires the court to find
three critical elements. First, the court must find that the child has been found
to have been abused or neglected by a court of competent jurisdiction. KRS
625.090(1). Second, the court must find at least one of the eleven enumerated
grounds for termination exists. KRS 625.090(2). Lastly, even if the Cabinet
establishes both of these elements, the court must still determine that
termination is in the child's best interest. KRS 625.090(1)(c).
A. Substantial evidence supported the trial court’s finding the child
was in the custody of the Cabinet for fifteen of the preceding
forty-eight months.
KRS 625.090(2) enumerates eleven factors that justify a termination of
parental rights. One such factor, KRS 625.090(2)(j), states, "[t]hat the child has
been in foster care under the responsibility of the cabinet for fifteen (15)
cumulative months out of forty-eight (48) months preceding the filing of the
petition to terminate parental rights.”10 It is uncontroverted that E.R.-L.O. was
approximately twenty-seven (27) months old at the time the Cabinet filed the
petition for termination in May 2018 and had been in foster care her entire life.
By the plain reading of the statute, E.R.-L.O. had been in the Cabinet's custody
for twenty-seven (27) months at the time of the petition’s filing.
10 At the time of the Cabinet's filing of the termination proceeding, KRS
625.090(2)(j) required that the child had been in foster care for fifteen (15) of the most
recent twenty-two (22) months. The 2018 Ky. Acts (effective July 14, 2018) revised the
requirement to a cumulative fifteen (15) of the preceding forty-eight (48) months. The
issue in this case is whether E.R.-L.O. was in the Cabinet’s custody for fifteen (15)
months, so the change to the relevant timeframe does not affect our consideration.
19
The Court of Appeals held that the circumstances of this case made it
inappropriate to apply this statutory ground for termination. Without
explanation, the Court of Appeals used the June 6, 2016 disposition hearing as
the start of the Cabinet's custody for the statute's purposes instead of using
the date the Cabinet was first granted emergency custody of E.R.-L.O. It also
gave consideration to the fact that H.L.O.'s July 27, 2017 motion to redocket
the case was filed within fifteen months of that disposition date. Because the
district court did not rule on the motion and the Cabinet delayed filing the TPR
without any explanation, the Court of Appeals stated, “[w]hile technically [the
trial court’s finding under KRS 625.090(2)(j)] is supported by clear and
convincing evidence, we do not believe this circumstance should be held
against the Mother in this case.” For this reason, it disagreed with the trial
court’s finding under KRS 625.090(2)(j).
The Cabinet argues the Court of Appeals erred in its understanding of
custody for purposes of the statute, and we agree. “Our goal in construing each
statute is to give effect to its plain meaning and unambiguous intent without
rendering any part meaningless.” A.H. v. Louisville Metro Gov’t, 612 S.W.3d
902, 908 (Ky. 2020) (citing Commonwealth v. Tapp, 497 S.W.3d 239, 241 (Ky.
2016); Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983
S.W.2d 488, 490-92 (Ky. 1998)). When previously faced with the question of
when a child is in the Cabinet's custody for purposes of KRS 625.090, courts
have used a simple test of determining when the first order granting the
20
Cabinet custody was entered.11 The language of KRS 625.090(2)(j) is that the
child is "in foster care under the responsibility of the cabinet[.]” Nothing in its
language indicates that the timeframe in question only commences once the
child is “committed” to the custody of the Cabinet at a disposition hearing as
the Court of Appeals implicitly required. We hold the Letcher District Court’s
grant of emergency custody on February 26, 2016, represents the beginning of
E.R.-L.O.’s custody with the Cabinet for purposes of KRS 625.090(2)(j).
Likewise, we can find no language in the statute or prior precedent that
constructively tolls the “clock” when a parent files a motion to review a goal
change. The statute simply requires that the child be in foster care for "fifteen
(15) cumulative months out of forty-eight (48) months preceding the filing of
the petition to terminate parental rights.” KRS 625.090(2)(j). The goal of the
statute is to prevent children from lingering in foster care. Commonwealth,
Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658, 664 (Ky. 2010)
(citing Cabinet for Families & Children v. G.C.W., 139 S.W.3d 172, 177 (Ky.
App. 2004)). When the correct date of February 26, 2016 is applied to the
statute, it is clear E.R.-L.O. had been in the custody of the Cabinet for twenty-
seven (27) months at the time of the Cabinet’s petition to terminate parental
rights. Therefore, for purposes of KRS 625.090(2)(j), the trial court correctly
11See, e.g., Cabinet for Health & Family Servs. v. K.S., 585 S.W.3d 202 (Ky.
2019) (affirming trial court’s finding that child was in foster care from initial placement
with the Cabinet); K.H., 423 S.W.3d 204 (Ky. 2014) (calculating time in Cabinet
custody from initial removal hearing); B.E.H.H. v. Cabinet for Health & Family Servs.,
No. 2019-CA-000382, 2020 WL 1074783 (Ky. App. March 6, 2020) (calculating time in
Cabinet custody from first Emergency Custody Order).
21
found that she had been in the custody of the Cabinet for fifteen (15) of the
prior forty-eight (48) months.
Like the Court of Appeals, we are concerned that the Cabinet took
fourteen (14) months to file the TPR action after the district court changed
E.R.-L.O.’s permanency goal. Such a substantial delay runs directly counter to
the statute’s purpose of establishing permanence for children and is
particularly problematic when services cease for the parent before final
adjudication of their parental rights. While such a delay does not change the
statutory calculation of the time the child is in foster care, we strongly suggest
the trial court should consider it when determining whether the Cabinet has
made reasonable efforts to reunite the family and in its balance of the child’s
best interests.
B. The trial court’s findings under KRS 625.090(2)(e) and (g) were
not clearly erroneous.
The trial court is the finder of fact, and unless clearly erroneous, we will
affirm a TPR order. M.A.B. v. Commonwealth, Cabinet for Health & Family
Servs., 456 S.W.3d 407, 411 (Ky. 2015). The Letcher Circuit Court heard
testimony from the Cabinet and H.L.O. herself and found justification for
terminating H.L.O.'s parental rights under KRS 625.090(e) and (g), and that
such termination was in E.R.-L.O.’s best interests. KRS 625.090 (e) and (g)
state in their entirety:
(e) That the parent, for a period of not less than six (6) months, has
continuously or repeatedly failed or refused to provide or has been
substantially incapable of providing essential parental care and
protection for the child and that there is no reasonable expectation
22
of improvement in parental care and protection, considering the
age of the child;
(g) That the parent, for reasons other than poverty alone, has
continuously or repeatedly failed to provide or is incapable of
providing essential food, clothing, shelter, medical care, or
education reasonably necessary and available for the child's well-
being and that there is no reasonable expectation of significant
improvement in the parent's conduct in the immediately
foreseeable future, considering the age of the child[.]
The Court of Appeals reversed the circuit court based principally on the
statement by Mr. King that H.L.O. had improved since the start of her plan. It
extrapolated from this statement of past improvement that the trial court must
accept that there was a reasonable expectation of improvement into the future.
In doing so, the Court of Appeals ignored the vast preponderance of Mr. King’s
testimony, H.L.O.’s testimony, and the trial court's recitation of its findings
from that testimony.
Specifically, Mr. King testified to H.L.O.’s arrearage in child support and
the fact that despite her improvement, he did not believe she would be able to
care for E.R.-L.O. He stated that while the court returned T.J.C. and S.C. to
H.L.O., in his professional opinion, that decision was incorrect in light of
H.L.O.'s conduct and J.H.'s involvement in her life. He stated the Cabinet's
decision to support the return of the older children was likely because they
were placed with relatives rather than in foster care.
In H.L.O.’s testimony, she acknowledged she had limited resources, was
not working, and relied on S.C.’s SSI and J.H.’s help to provide for housing and
other needs. She said if E.R.-L.O. came home with her, E.R.-L.O. would likely
sleep in the room with H.L.O. and J.H., though she did state they were in the
23
process of getting a larger home. Perhaps most importantly, she testified she
would have no issue leaving E.R.-L.O. with J.H. should the need arise.
The Court of Appeals noted J.H. is not the child's biological father and
summarily discounted the trial court’s concerns regarding J.H. A review of the
record indicates the trial court’s concern regarding J.H. appropriately impacted
its findings in three ways. First, H.L.O.’s willingness to bring E.R.-L.O. back
into a home with J.H. demonstrated a lack of protective capacity and directly
countered her argument she had improved. It also called into question her
ability to make decisions in the best interest of E.R.-L.O. where J.H. was
concerned and whether there was a "reasonable expectation of improvement"
under KRS 625.090(2)(e).
Second, H.L.O.’s financial dependence on J.H. was sufficient for a person
of ordinary prudence to question whether H.L.O. was in a position to support
E.R.-L.O. or would be in the immediately foreseeable future. H.L.O. cannot
argue on the one hand that because J.H. is not the father, he should not be a
factor in the court’s evaluation of her fitness under KRS 625.090(2)(e) and (g)
and then depend upon him for his financial support to care for E.R.-L.O. The
trial court was also aware that despite J.H.’s financial support and a relatively
modest child support requirement of $100 per month, H.L.O. had an arrearage
of more than $1,300 at the time of the hearing. All these factors were available
to the court in determining whether there was “no reasonable expectation of
significant improvement in the parent's conduct in the immediately foreseeable
future.”
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Lastly, even when the court finds a factor under KRS 625.090(2), that is
only the first step. The court must also find it is in the child's best interest to
terminate the parental rights. J.H.’s presence in the home and future
involvement in H.L.O.’s life was a valid consideration under KRS 625.090(3)(d)
as part of H.L.O.’s conduct and circumstances. Therefore, we hold the Letcher
Circuit Court’s termination of H.L.O.’s parental rights was supported by
substantial evidence in the record.
CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals’ opinion and
reinstate the Letcher Circuit Court’s termination order.
All sitting. All concur.
COUNSEL FOR APPELLANT, COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILY SERVICES:
Zachary G. Ousley
COUNSEL FOR APPELLANT, E.R.-L.O., A MINOR CHILD:
Jameson Dean Combs
COUNSEL FOR APPELLEE:
Tammy C. Skeens
Herman W. Lester, PSC
25