RENDERED: DECEMBER 6, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0415-ME
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT v. HONORABLE BRYAN D. GATEWOOD, JUDGE ACTION NO. 22-AD-500334
D.R.; C.D.Y.; AND D.B.R., A MINOR APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: The Cabinet for Health and Family Services,
Commonwealth of Kentucky (“Cabinet”) appeals from the Jefferson Circuit
Court’s summary judgment order dismissing the Cabinet’s petition for involuntary
termination of parental rights. After careful review, we reverse and remand. D.B.R. (“Child”) was born on November 13, 2020, to C.D.Y.
(“Mother”) and putative father, D.R. (“Father”). Mother died during the pendency
of the action.
On November 15, 2022, the Cabinet filed a petition for involuntary
termination of parental rights against the Child’s parents. The Cabinet alleged
Father abandoned Child for not less than 90 days; both parents failed to provide
essential parental care and protection for Child; and both parents, for reasons other
than poverty alone, failed to provide essential food, clothing, shelter, medical care,
or education for Child with no reasonable expectation of significant improvement.
The Cabinet alleged Child had been in foster care for fifteen of the most recent
forty-eight months prior to filing the petition due to parents’ failure to make
significant progress to goals in their case plan. The Cabinet alleged Child had been
removed from parents more than two times in a 24-month period.
At the close of the discovery period, on January 30, 2024, Father filed
a motion for summary judgment. He argued the child had not been adjudged
abused or neglected in the underlying DNA1 case that based allegations of neglect
and abuse on domestic violence that occurred before Child was born. That case
was dismissed, and there were no other petitions filed against him. Father also
1 Dependency, neglect, or abuse.
-2- argued the Cabinet could not meet the statutory elements required for his parental
rights to be terminated.
The Cabinet and guardian ad litem (“GAL”)2 opposed the motion.
The Cabinet’s response was solely based on its misinterpretation of Father’s
argument. The Cabinet argued that Father’s motion was based on an incorrect
interpretation of KRS3 625.090, and a child being adjudged abused or neglected
was not required to grant a TPR.4 Instead, the child could be found abused or
neglected in the current proceeding. The Cabinet made no argument regarding the
facts of the case.
On April 1, 2024, the family court entered an order granting summary
judgment and dismissing the Cabinet’s petition. The family court found “[t]here is
no evidence in the record upon which a finding of abuse or neglect would be
founded, including no sufficient allegations of such, particularly in light of
[Father’s] lack of contact with the child.” Record (“R.”) at 106. This appeal
followed.
On appeal, the Cabinet argues the family court erred in granting
summary judgment because there was a genuine issue of material fact. It further
2 A GAL “is a person appointed by a court to appear on behalf of . . . a [child] in a lawsuit.” Morgan v. Getter, 441 S.W.3d 94, 106 (Ky. 2014). 3 Kentucky Revised Statutes. 4 Termination of parental rights.
-3- argues the family court misinterpreted KRS 625.090(1)(a) in basing its denial of
the TPR petition on the fact that Child had not been adjudged abused or neglected
in a prior proceeding. The Cabinet argues the family court can make independent
findings of abuse or neglect in this case, and Father’s incarceration creates a
genuine issue of material fact. The Cabinet further argues in its reply brief that the
Cabinet worker on its witness list would have testified regarding Father’s progress
and cooperation with the Cabinet.
Generally, the standard of review in TPR cases is as follows:
Trial courts are afforded a great deal of discretion in determining whether termination of parental rights is warranted. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Accordingly, appellate courts will not set aside the trial court’s findings of fact unless they are clearly erroneous. CR[5] 52.01. Findings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them. Yates v. Wilson, 339 S.W.2d 458 (Ky. 1960). “The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence.” V.S. v. Commonwealth of Kentucky, Cabinet for Human Res., 706 S.W.2d 420, 423 (Ky. App. 1986). “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, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
5 Kentucky Rules of Civil Procedure.
-4- M.P.R. v. Cabinet for Health and Family Services, 520 S.W.3d 409, 412 (Ky. App.
2017). “However, it is only when a court does decide to terminate that clear and
convincing evidence is required. Otherwise, there need be only substantial
evidence to support a trial court’s finding in order to avoid reversal.” D.G.R. v.
Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 114
(Ky. 2012).
In this case, the family court granted summary judgment and
dismissed the petition without an evidentiary hearing. “Summary judgment is only
appropriate where there is ‘no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.’” Powers v. Kentucky Farm Bureau
Mutual Insurance Company, 694 S.W.3d 361, 372 (Ky. 2024) (quoting Wymer v.
JH Props., Inc., 50 S.W.3d 195, 199 (Ky. 2001)). We review matters of law de
novo “to determine whether the record reflects a genuine issue of material fact, a
reviewing court must also consider whether the trial court gave the party opposing
the motion an ample opportunity to respond and complete discovery before the
court entered its ruling.” Id.
Upon review of the record and applicable law, we must reverse the
family court’s judgment for a matter not raised by either party or addressed by the
family court. This Court has the power to correct errors of lower courts no matter
the procedural posture of the case:
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: DECEMBER 6, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0415-ME
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT v. HONORABLE BRYAN D. GATEWOOD, JUDGE ACTION NO. 22-AD-500334
D.R.; C.D.Y.; AND D.B.R., A MINOR APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: The Cabinet for Health and Family Services,
Commonwealth of Kentucky (“Cabinet”) appeals from the Jefferson Circuit
Court’s summary judgment order dismissing the Cabinet’s petition for involuntary
termination of parental rights. After careful review, we reverse and remand. D.B.R. (“Child”) was born on November 13, 2020, to C.D.Y.
(“Mother”) and putative father, D.R. (“Father”). Mother died during the pendency
of the action.
On November 15, 2022, the Cabinet filed a petition for involuntary
termination of parental rights against the Child’s parents. The Cabinet alleged
Father abandoned Child for not less than 90 days; both parents failed to provide
essential parental care and protection for Child; and both parents, for reasons other
than poverty alone, failed to provide essential food, clothing, shelter, medical care,
or education for Child with no reasonable expectation of significant improvement.
The Cabinet alleged Child had been in foster care for fifteen of the most recent
forty-eight months prior to filing the petition due to parents’ failure to make
significant progress to goals in their case plan. The Cabinet alleged Child had been
removed from parents more than two times in a 24-month period.
At the close of the discovery period, on January 30, 2024, Father filed
a motion for summary judgment. He argued the child had not been adjudged
abused or neglected in the underlying DNA1 case that based allegations of neglect
and abuse on domestic violence that occurred before Child was born. That case
was dismissed, and there were no other petitions filed against him. Father also
1 Dependency, neglect, or abuse.
-2- argued the Cabinet could not meet the statutory elements required for his parental
rights to be terminated.
The Cabinet and guardian ad litem (“GAL”)2 opposed the motion.
The Cabinet’s response was solely based on its misinterpretation of Father’s
argument. The Cabinet argued that Father’s motion was based on an incorrect
interpretation of KRS3 625.090, and a child being adjudged abused or neglected
was not required to grant a TPR.4 Instead, the child could be found abused or
neglected in the current proceeding. The Cabinet made no argument regarding the
facts of the case.
On April 1, 2024, the family court entered an order granting summary
judgment and dismissing the Cabinet’s petition. The family court found “[t]here is
no evidence in the record upon which a finding of abuse or neglect would be
founded, including no sufficient allegations of such, particularly in light of
[Father’s] lack of contact with the child.” Record (“R.”) at 106. This appeal
followed.
On appeal, the Cabinet argues the family court erred in granting
summary judgment because there was a genuine issue of material fact. It further
2 A GAL “is a person appointed by a court to appear on behalf of . . . a [child] in a lawsuit.” Morgan v. Getter, 441 S.W.3d 94, 106 (Ky. 2014). 3 Kentucky Revised Statutes. 4 Termination of parental rights.
-3- argues the family court misinterpreted KRS 625.090(1)(a) in basing its denial of
the TPR petition on the fact that Child had not been adjudged abused or neglected
in a prior proceeding. The Cabinet argues the family court can make independent
findings of abuse or neglect in this case, and Father’s incarceration creates a
genuine issue of material fact. The Cabinet further argues in its reply brief that the
Cabinet worker on its witness list would have testified regarding Father’s progress
and cooperation with the Cabinet.
Generally, the standard of review in TPR cases is as follows:
Trial courts are afforded a great deal of discretion in determining whether termination of parental rights is warranted. M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998). Accordingly, appellate courts will not set aside the trial court’s findings of fact unless they are clearly erroneous. CR[5] 52.01. Findings of fact are clearly erroneous only if there exists no substantial evidence in the record to support them. Yates v. Wilson, 339 S.W.2d 458 (Ky. 1960). “The standard of proof before the trial court necessary for the termination of parental rights is clear and convincing evidence.” V.S. v. Commonwealth of Kentucky, Cabinet for Human Res., 706 S.W.2d 420, 423 (Ky. App. 1986). “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, 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
5 Kentucky Rules of Civil Procedure.
-4- M.P.R. v. Cabinet for Health and Family Services, 520 S.W.3d 409, 412 (Ky. App.
2017). “However, it is only when a court does decide to terminate that clear and
convincing evidence is required. Otherwise, there need be only substantial
evidence to support a trial court’s finding in order to avoid reversal.” D.G.R. v.
Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 114
(Ky. 2012).
In this case, the family court granted summary judgment and
dismissed the petition without an evidentiary hearing. “Summary judgment is only
appropriate where there is ‘no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.’” Powers v. Kentucky Farm Bureau
Mutual Insurance Company, 694 S.W.3d 361, 372 (Ky. 2024) (quoting Wymer v.
JH Props., Inc., 50 S.W.3d 195, 199 (Ky. 2001)). We review matters of law de
novo “to determine whether the record reflects a genuine issue of material fact, a
reviewing court must also consider whether the trial court gave the party opposing
the motion an ample opportunity to respond and complete discovery before the
court entered its ruling.” Id.
Upon review of the record and applicable law, we must reverse the
family court’s judgment for a matter not raised by either party or addressed by the
family court. This Court has the power to correct errors of lower courts no matter
the procedural posture of the case:
-5- In the exercise of its inherent power, an appellate court may decide an issue that was not presented by the parties so long as the appellate court confines itself to the record. Priestley v. Priestley, 949 S.W.2d 594, 59[6] (Ky. 1997). This power derives from an appellate court’s supervisory authority over lower courts. KY. CONST. § 110(2)(a); and KY. CONST. § 111(2). Appellate jurisdiction “is the power and authority to review, revise, correct or affirm the decisions of an inferior court, and, more particularly, to exercise the same judicial power which has been executed in the court of original jurisdiction.” Copley v. Craft, 341 S.W.2d 70, 72 (Ky. 1960).
Gasaway v. Commonwealth, 671 S.W.3d 298, 311-12 (Ky. 2023) (footnotes
omitted).
Upon review of KRS Chapter 625, an evidentiary hearing is a
statutory requirement in TPR proceedings. The Kentucky Rules of Civil Procedure
apply “in all actions of a civil nature in the Court of Justice except for special
statutory proceedings, in which the procedural requirements of the statute shall
prevail over any inconsistent procedures set forth in the Rules[.]” CR 1(2). KRS
625.080 requires “[i]n any involuntary action for termination of parental rights: (1)
The Circuit Court shall conduct a private hearing.” (Emphasis added.) KRS
625.050(7) requires: “Any petition filed pursuant to this section shall be fully
adjudicated” before a judgment is entered.
Furthermore, we have found no Kentucky case law authorizing
summary judgment in TPR proceedings, and we decline to authorize it here given
-6- the hearing requirement in KRS 625.080. Thus, we hold the family court erred in
granting summary judgment. On remand, the family court must hold an
evidentiary hearing before entering a final judgment in this case.
For the foregoing reasons, we reverse the judgment of the Jefferson
Family Court and remand for an evidentiary hearing.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Leslie M. Laupp Patrick C.M. Hoerter Covington, Kentucky Louisville, Kentucky
-7-