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

• Court: Kentucky Supreme Court
• Decided: December 13, 2023
• Docket: 2022 SC 0521
• Status: Unknown

Opinion

RENDERED: DECEMBER 14, 2023 TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0521-DGE

CABINET FOR HEALTH AND FAMILY APPELLANT SERVICES, COMMONWEALTH OF KENTUCKY

ON REVIEW FROM COURT OF APPEALS NO. 2021-CA-1011 V. JEFFERSON FAMILY COURT NO. 20-AD-500234

D.W.; N.W.W., A CHILD; AND T.A., APPELLEES NATURAL MOTHER

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING

This case comes before the Court on review from the Court of Appeals’

decision reversing the termination of D.W.’s parental rights. Critically, the

Court of Appeals only reached that substantive issue after concluding that

statutory law regarding the sealing of termination of parental rights (TPR)

cases, the Civil Rules of Procedure (now Rules of Appellate Procedure), and

eFiling Rules contain ambiguities regarding the timing for electronically filing a

notice of appeal in a sealed case. Accordingly, the Court of Appeals held that

D.W. had complied with the applicable rules in filing his notice of appeal. After

review, we conclude the Court of Appeals erred. There is no ambiguity and

D.W. did not comply with the applicable rules. Consequently, the Court of Appeals was without jurisdiction to hear the case. The Court of Appeals is

reversed and the trial court’s termination of D.W.’s parental rights is

reinstated.

I. Procedural Posture Since our decision concerns only the procedural issues involving the

timely filing of a notice of appeal electronically, we omit any discussion of the

underlying facts of the case. It suffices to note that on July 20, 2021, the trial

court issued a written final order—including findings of fact, conclusions of

law, and judgment—terminating the parental rights of D.W. and T.A. That

order was subsequently entered by the circuit clerk on July 21, 2021. The

parties are in agreement that D.W. had thirty days to file his notice of appeal.

See CR1 73.02(1)(a).2

As the Court of Appeals noted, D.W.’s counsel filed an electronic notice of

appeal on August 20, 2021, at approximately 11:47 pm. But the TPR case that

counsel attempted to file the notice of appeal in was sealed by the circuit clerk

at some point after entry of the final order on June 21, 2021. Therefore,

counsel filed the notice of appeal for the TPR case in the related dependency,

neglect, and abuse (DNA) case against D.W. The DNA case was captioned No.

1 Kentucky Civil Rules of Procedure. This case was litigated in the lower courts

prior to the effective change to the Rules of Appellate Procedure and amendment of Administrative Order 2018-11. We will cite to the former Civil Rules of Procedure and Administrative Order 2018-11 in the body of the opinion but include footnote citations to the current and controlling Rules of Appellate Procedure and Administrative Order 2022-65 where applicable. 2 RAP 3(A)(1).

2 18-J-501741-003, while the TPR case was captioned 20-AD-500234. Counsel

included a notation in the filing of the notice of appeal stating the TPR case was

closed for electronic filing.

The circuit clerk docketed the notice of appeal for the TPR case in the

DNA case. There is no docket sheet in the record for the TPR case showing

when the notice of appeal was filed in that case. The Court of Appeals, on

September 17, 2021, issued a show cause order as a result of the improperly

filed notice of appeal. In its subsequent opinion, the Court of Appeals noted

that D.W. argued he had complied with the jurisdictional deadline and that his

erroneous filing was the fault of the circuit court clerk in “closing,” i.e., sealing,

the TPR case prior to the conclusion of the period for a notice of appeal. The

Court of Appeals accepted that explanation and kept the case on its active

docket.

In considering the eFiling Rules issued by this Court in Administrative

Order 2018-11, the Court of Appeals wrote,

Section 3(1) states, “these rules shall apply to supported case and filing types, in civil, criminal, domestic, juvenile, probate, and other matters in trial courts.” Additionally, Section 3(2) allows users to eFile into “a supported action.” It appears the only cases that are ineligible for eFiling are sealed cases. Section 9(3) provides that any document in a sealed case must be conventionally filed. Further, Section 15(4) states:

Access to confidential cases in CourtNet 2.0 is available to persons entitled by statute, except that non-government parties may be required to eFile into a confidential case in order to access the entire record. Sealed cases are not eligible for eFiling and are not viewable in CourtNet 2.0.

3 When read as a whole, these rules are not clear nor do they warn that a “supported action” can later become unsupported and ineligible for eFiling. Accordingly, reasoned the majority, TPR cases are eligible for eFiling as a

confidential case but then upon entry of the final order they become sealed and

are no longer eligible for eFiling. The lower court concluded, “with no warning

to the parties or practitioners, the TPR case becomes ineligible for eFiling at

what is, arguably, the most critical stage of the case.” As a result of this

“ambiguity” in the rules, the Court of Appeals held that eFiling rules are

intended “to allow greater and more convenient access to Kentucky’s trial

courts.” Thus, it concluded D.W. complied with the rules for timely filing a

notice of appeal.

Judge Goodwine dissented. Citing Administrative Order 2018-11 §

15(4)—stating “[s]ealed cases are not eligible for eFiling . . .”—and KRS

625.108(2)—directing the circuit clerk shall seal TPR cases “upon the entry of

the final order . . .”—she concluded there is no ambiguity in the law nor are

there exceptions in the eFiling Rules. As to the contention that the circuit clerk

had erred by sealing the case prior to the period for filing a notice of appeal

ended, Judge Goodwine held that argument was contrary to the clear language

of KRS 625.108(2). Accordingly, she would have held the court without

jurisdiction as the notice of appeal was improperly filed.

II. Standard of Review “Without the properly filed notice of appeal, the appellate court lacks

jurisdiction to consider the matter.” Cab. for Health and Fam. Servs. v. H.C.,

4 581 S.W.3d 580, 583 (Ky. 2020). There is no substantial compliance rule with

timely filing a notice of appeal, and the mandatory application of the rule

applies “even when the appealing party makes a good faith effort to file the

notice of appeal.” Id. Our review of a defect in a notice of appeal regarding its

timely filing is essentially de novo. But “if an appeal's alleged defect is anything

other than failure to file a timely notice of appeal, timely cross-appeal, or timely

notice for discretionary review, an appellate court should consider, on a case-

by-case basis, an adequate remedy to address the alleged defect.” M.A.B. v.

Cab. for Health and Fam. Servs., 635 S.W.3d 90, 97 (Ky. 2021).

Neither can the Court of Appeals obtain jurisdiction of one case through

the improper and intentional filing of a notice of appeal in a separate, albeit

related, case. CR 73.033 requires a notice of appeal to identify “the judgment,

order or part thereof appealed from.” This rule has always required strict

compliance. Rose Bowl Lanes, Inc. v. City of Louisville, 373 S.W.2d 157, 158-59

(Ky. 1963); Browning v. Preece, 392 S.W.3d 388, 392 (Ky. 2013). Implicit in this

requirement and, indeed, in the very nature of the notice of appeal is that the

notice be filed in the correct case. This issue is obviously jurisdictional—to

allow a party to intentionally misfile a notice of appeal is an invitation to chaos.

There is no substantial compliance or good faith exception to timely filing a

notice of appeal in the correct case. H.C., 581 S.W.3d at 583.

The interpretation of statutes, the rules of civil and appellate procedure,

and this Court’s own administrative orders are questions of law subject to de

3 RAP 2(B)(1).

5 novo review, and we give no deference to the Court of Appeals. Puckett v. Cab.

for Health and Fam. Servs., 621 S.W.3d 402, 407 (Ky. 2021).

III. Analysis KRS 625.108(2) states in full,

The files and records of the Circuit Court, excluding the name or other identifying information of a prospective adoptive parent, during proceedings for involuntary termination of parental rights shall not be open to inspection by persons other than parties to such proceedings, their attorneys, and representatives of the cabinet except under order of the court expressly permitting inspection. Upon the entry of the final order in the case, the clerk shall place all papers and records in the case in a suitable envelope which shall be sealed and shall not be open for inspection by any person other than representatives of the cabinet without a written order of the court or as authorized by the provisions of KRS Chapter 199.

The key words for purposes of this case, are that TPR cases shall be sealed by

the circuit clerk “[u]pon the entry of the final order in the case . . .” Id.

Administrative Order 2018-11 § 15(4)4 states in full

Access to confidential cases in CourtNet 2.0 is available to persons entitled by statute, except that non-government parties may be required to eFile into a confidential case in order to access the entire record. Sealed cases are not eligible for eFiling and are not viewable in CourtNet 2.0.

The key words in this regulation are that “[s]ealed cases are not eligible for

eFiling . . . .” Nonetheless, it must be noted that this section makes a

distinction between confidential cases and sealed cases; i.e., confidential cases,

such as a TPR action, are viewable in CourtNet 2.0 and can support eFiling,

while sealed cases are not viewable in CourtNet 2.0 and are not eligible for

4 Administrative Order 2022-65 § 16(4).

6 eFiling. KRS 625.108(2) supports this distinction as well, as it treats sealed

cases as otherwise closed, “and shall not be open for inspection by any person

other than representatives of the cabinet without a written order of the court or

as authorized by the provisions of KRS Chapter 199.” In short, confidential

cases are those that are not available to be viewed by the public-at-large but

remain on-going, while sealed cases are those that are effectively resolved by

the trial court’s final order and unavailable for viewing except by the Cabinet

for Health and Family Services, or other authorized persons, subject to a court

order.5

As Justice Joseph Story once said for the interpretation of legal texts,

“every word employed . . . is to be expounded in its plain, obvious, and

common sense, unless the context furnishes some ground to control, qualify, or

enlarge it.” Joseph Story, Commentaries on the Constitution of the United States

157-58 (1833) (emphasis added). Just as well “sentences are to be construed

according to the rules of grammar, and from this presumption it is not

permissible to depart,” unless it should lead to an absurd result. Gilbert, 216

S.W. 105, 108 (Ky. 1919). KRS 625.108(2) considers “sealed” as something to

be done upon a final order (a verb), and not as description of what a TPR case

always is (an adjective). Likewise, it treats TPR cases as always confidential (an

adjective) because the case is not “open to inspection by persons other than . .

.” the parties, their attorneys, or cabinet representatives. Id. Thus, TPR cases

5 See, e.g., KRS 199.570(1)(b) (forbidding access to adoption records to anyone

without prior authorization of trial court). 7 are always confidential but shall only be sealed upon entry of the trial court’s

final order; and upon being sealed they are no longer subject to mandatory

eFiling.

Given that the statutory law and administrative rule, read together,

effectively prohibit a notice of appeal to be electronically filed in a TPR case, it

is perhaps an ill-considered outcome as a matter of policy. But “[i]t is well

settled law that a court may not add language to the written law to achieve a

desired result.” Fox v. Grayson, 317 S.W.3d 1, 8 (Ky. 2010). There is nothing

ambiguous about these rules. Contrary to the Court of Appeals’ assertion that

litigants are “unwarned” that they cannot file a notice of appeal in sealed cases,

a plain reading of KRS 625.108(2) and Administrative Order 2018-11 § 15(4)

make it clear that outcome is obvious.

It is true that a case is not technically final and resolved until the time

for filing an appeal has passed or otherwise been affirmed on appeal. But “[i]t is

not allowable to interpret that which needs no interpretation.” Gilbert, 216 S.W.

at 108. To hold that the circuit clerk should have waited to seal the TPR case

until the conclusion of the period for filing an appeal or until after an appeal

has been adjudicated is nothing else than rewriting the statute. “Upon entry of

the final order in the case” does not and cannot mean “until the deadline for

the filing a notice of appeal has ended.” A “final order” is a legal term of art that

has had a consistent meaning since the time of Blackstone, if not earlier.

Kentucky Heating Co. v. City of Louisville, 198 S.W. 1150, 1152 (Ky. 1917). For

centuries it has been understood that it is a trial court’s determination that “at

8 once put[s] an end to the action, by declaring that the plaintiff has either

entitled himself, or has not, to recover the remedy he sues for[,]” which

constitutes a final order or judgment, and from which an appeal can be taken.

Id. There can be no doubt as to the General Assembly’s meaning and intention

by including the phrase “final order” in KRS 625.108(2).

Nor can we amend or ignore our own Administrative Order simply

because a case has arisen where a seemingly harsh result occurs via its

unambiguous application. We have issued our own rules regarding eFiling in

TPR cases pursuant to this Court’s constitutional rulemaking authority. Ky.

Const. § 116. Accordingly, we have declared that both voluntary and

involuntary TPR actions are mandatory eFiling cases. Administrative Order

2023-21. Likewise, we anticipated their sealing and the necessity for

conventional filing of appeals by stating, “If a document is not eligible for

eFiling, it may be conventionally filed.” Id.

Thus, TPR cases are always confidential but shall only be sealed upon

entry of the trial court’s final order; and upon being sealed they are no longer

subject to mandatory eFiling. Once the TPR case is sealed, the notice of appeal

is a document not eligible for eFiling.

One final consideration that is not at issue here but supports our holding

is that CR 73.02(1)(D)6 states, “[u]pon a showing of excusable neglect based on

a failure of a party to learn of the entry of the judgment or an order which

affects the running of the time for taking an appeal . . . .” there may be allowed

6 RAP 3(D).

9 an extension, not to exceed ten days, of the time to file a notice of appeal. But

there is no excusable neglect here, even if such a motion had been filed,

because D.W.’s counsel was clearly aware of the entry of the termination of

parental rights, nor was there an intervening order that affected the time period

to file an appeal. There is not any precedent that a notice of appeal can ever be

intentionally filed in a different case because of the excusable neglect of

counsel. Consequently, the Court of Appeals had no jurisdiction over the TPR

case because no notice of appeal was ever properly and timely filed in the TPR

case.

We are not entirely unsympathetic to D.W.’s plight in losing his appeal.

But the proposition that we should make an exception for D.W. because he will

lose out on his constitutional right to appeal by enforcing the rule that the

notice of appeal be timely filed in the correct case, would swallow the rule.

Every appellant who has missed the deadline for timely filing a notice of appeal

could subsequently contend that enforcing the rule will deprive him or her of

the right to appeal—it is an exception with no limiting principle. In that sense,

it is not an exception at all but an entirely new rule that timely filing a notice of

appeal in the correct case is not a necessary prerequisite to appellate

jurisdiction. We decline to so hold.

IV. Conclusion KRS 625.108(2) unambiguously directs the clerk to seal TPR cases upon

entry of the final order of the trial court, and we may not rewrite that statute to

effectively read “until the period to file an appeal ends.” Administrative Order

10 2018-11 § 15(4)7 unambiguously precludes eFiling in sealed cases. Therefore, it

was unambiguously incumbent upon D.W. to file his notice of appeal

conventionally in the TPR case at any time between June 20, 2021, and August

20, 2021. He failed to do so. The Court of Appeals had no jurisdiction to hear

the case. It is reversed.

All sitting. VanMeter, C.J.; Bisig and Nickell, JJ., concur. Keller, J.,

concurs in part and dissents in part by separate opinion. Thompson, J.,

dissents by separate opinion in which Lambert, J., joins.

KELLER, J., CONCURRING IN PART AND DISSENTING IN PART:

I fully concur with the Majority’s well-written analysis interpreting the

plain language of KRS 625.108(2). As a practical matter, however, it is

important to note that this Court has promulgated numerous administrative

orders related to eFiling in an attempt to address the ever-changing

technological landscape that exists in our current world. I openly, yet

reluctantly, admit that sometimes these administrative orders are difficult to

find, comb through, and interpret. Further, this Court has not provided any

guidance on how these administrative orders interact with current statutes.

Because of our failure to provide much needed clarity until today, I dissent in

part in that I would allow D.W. to pursue his appeal in the very limited

circumstances of this case. However, hereafter, all appeals must strictly comply

with today’s Majority’s analysis. Therefore, I am also unwilling to join in the

Dissent’s extension of our substantial compliance doctrine.

7 Administrative Order 2022-65 § 16(4).

11 THOMPSON, J., DISSENTING: I dissent from the majority opinion. I write

separately to clarify that the notice of appeal was sufficient; any filing errors do

not affect timeliness, and so, do not affect the validity of the appeal.

Additionally, the clerk misinterpreted when the case was final and, rather than

awaiting finality, sealed the case prematurely, denying access to defense

counsel. Furthermore, special considerations should apply to any case in

which problems in filing a notice of appeal will finalize termination of parental

rights (TPR). On the merits, I would affirm the family court because clear and

convincing evidence supported its finding that termination was in the best

interest of the child.

We have before us a TPR case where the parties were electronically filing

(eFiling) all their pleadings and motions throughout the pendency of the case.

However, when it came time for D.W. (father) to file what was arguably the

most critical filing, the notice of appeal, the eFiling system would not let

father’s counsel file this notice under the TPR case number. The clerk,

erroneously interpreting Kentucky Revised Statutes (KRS) 625.108(2),

determined that upon the entry of the termination of parental rights order, the

parties would no longer be allowed to make any eFilings because the case was

now sealed to all but the Cabinet.

This absurd and unprecedented action left counsel in a quandary when

she sought to file father’s notice of appeal before the filing deadline but after

the clerk’s office was physically closed. She acted reasonably in, rather than

letting the deadline pass without filing his notice of appeal, filing the notice of

12 appeal into the same parties’ dependency, neglect, and abuse (DNA) case.

Although the eFiling was to another case number, the notice of appeal itself

was absolutely clear about who was appealing, in what action, and from what

order.

There was nothing confusing or ambiguous about counsel’s actions. The

necessary parties all received appropriate and timely notice, and no one was

thereby prejudiced. However, the majority opinion terms this error

“jurisdictional” and declares that the Court of Appeals erred in reviewing this

termination of parental rights and reversing it. A greater injustice in depriving

a parent of appellate review is difficult to imagine.

I. The Notice of Appeal Properly Invoked the Jurisdiction of the Court of Appeals.

The majority opinion states a properly filed notice of appeal is

jurisdictional, there is no substantial compliance rule which would excuse the

untimely filing of a notice of appeal, and “[n]either can the Court of Appeals

obtain jurisdiction of one case through the improper and intentional filing of a

notice of appeal in a separate, albeit related, case.” For support of this third

proposition, the majority opinion cites to Kentucky Rules of Civil Procedure

(CR) 73.03/Kentucky Rules of Appellate Procedure (RAP) 2(B)(1) as requiring

that a notice of appeal identify “the judgment, order or part thereof appealed

from.”

I agree that a timely filed notice of appeal is jurisdictional, and I agree

that CR 73.03/RAP 2(B)(1) requires that a notice of appeal identify “the

judgment, order or part thereof appealed from.” The majority opinion conflates 13 the eFiling “envelope” which contains a notice of appeal, with being the notice

of appeal itself. I believe the term “notice of appeal” relates to the court

document labeled “notice of appeal,” not to the route by which it is filed. While

the eFiling envelope may have incorrectly identified the case being appealed,

the substantive eFilings contained therein did not. Instead, an entirely suitable

notice of appeal (which contained an appropriate and correct caption to the

TPR case naming the correct parties, case number and judge, and which

identified the correct judgment being appealed) and motion to proceed in forma

pauperis were filed therein. I disagree that this misfiling of an appropriate

notice of appeal under the wrong case number “is obviously jurisdictional.”

I also disagree that Cabinet for Health & Fam. Servs. v. H.C., 581 S.W.3d

580, 583 (Ky. 2020), provides any support for this notion. H.C. involved a late

filing of a notice of appeal accompanied by a motion pursuant to CR 73.02 to

excuse the late filing due to excusable neglect. H.C., 581 S.W.3d at 582.

Previously, the attorney filed a timely notice of appeal which was rejected by

the clerk because it failed to either include a filing fee or a motion to proceed in

forma pauperis. Id. The Court opined that failing to file the notice of appeal with

an appropriate motion to waive the fee could not justify a late filing because the

prior incorrect filing was not the result of excusable neglect. Id. at 583-84.

Here, father does not argue that he should be permitted a late filing due

to excusable neglect. Instead, he argues that his filing was timely and

appropriate.

14 In prior cases we have discussed that if a proper filing fee or motion to

proceed in forma pauperis is not filed with the notice of appeal, the clerk can

reject the filing but is not required to do so; this is because the failure to timely

submit the filing fee or motion to proceed in forma pauperis is not

jurisdictional. See Foxworthy v. Norstam Veneers, Inc. 816 S.W.2d 907, 910

(Ky. 1991) (concluding that the era of strict compliance was over, and it would

treat the “failure to pay the filing fee as neither fatal nor jurisdictional”);

Norwest Bank Minnesota, N.A. v. Hurley, 103 S.W.3d 21, 23 (Ky. 2003)

(emphasizing that when the notice of appeal is timely filed, dismissal is not

mandated, but when the notice of appeal is not timely filed, dismissal is

mandated).

The clerk did not reject father’s notice of appeal. Nor would the clerk

have had any basis for doing so because the notice of appeal was timely and

accompanied by an appropriate motion to waive the filing fee. Instead, the clerk

accepted the notice of appeal; it was originally in the DNA case and later in the

TPR case.

I vehemently disagree that a fatal error has been committed by father

filing his notice of appeal for the TPR case in the DNA case’s eFiling envelope.

This is NOT a fatal error because the notice of appeal itself was timely filed and

complied with all jurisdictional requirements.

A. Relevant Facts

Throughout the family court TPR case, the parties eFiled relevant

documents into the record. On August 20, 2021, on the last day in which the

15 appeal could timely be filed, and after the clerk’s office was closed, father’s

attorney eFiled four documents. Although counsel planned to, and attempted

to, eFile these documents into the TPR case, counsel was unable to do so

because a clerk had closed the TPR case to eFiling. Seeking an appropriate

alternative to timely file the notice of appeal, counsel eFiled these documents

into the third DNA action envelope. By being eFiled, the eFiling system

generated a Notice of Electronic Filing (notice) with a hyperlink to the

electronically filed documents, eFiling Rules § 8(3)(c), and these documents

became part of the CourtNet DNA record.

The documents consisted of: (1) a Notice of Appeal for the TPR case

(notice of appeal); (2) a Motion-Order: Motion to Waive Filing Fees to proceed in

forma pauperis in the TPR case (motion); (3) an exhibit which was a screenshot

print-out of the Kentucky Courts eFiling website’s “case search” page indicating

the result that eFiling could not be made into the TPR case (screenshot); and

(4) a proposed Order: Waive Filing Fees to proceed in forma pauperis in the TPR

case (order). The notice of appeal, motion-order and screen shot all bore the

eFiling line “Filed 18-J-501741-003 08/20/2021 David L. Nicholson, Jefferson

Circuit Clerk” which showed they were filed within the deadline. The notice of

appeal and the motion-order each contained a certificate of service that they

were mailed to the appropriate parties on August 20, 2021. The order

contained an eFiling line that indicated it was “tendered” on August 20, 2021,

into the DNA case. The notice of appeal and the order were both stamped filed

as of August 25, 2021, the date when the order was granted.

16 In eFiling these documents (as noted on the notice that counsel received

afterwards), the document titles were:

NOTICE - OTHER: NOTICE OF APPEAL 20-AD-500234 MOTION - OTHER: MOTION TO WAIVE FEES 20-AD-500234 EXHIBIT: 20-AD-500234 CLOSED FOR ELECTRONIC FILING TENDERED DOCUMENT: ORDER WAIVING FEES

Any clerk viewing either the titles or the contents of these documents

would have immediately been aware they pertained to the TPR action and not

the DNA action. Additionally, the screenshot informed the clerk of the problem.

The screenshot case search fields, which were filled out through drop-down

options, showed that counsel had selected to file in the envelope for “Jefferson

Family/District Civil” in case number “20-AD-500234.” Below this, the “result”

field stated “This case is closed and cannot be filed into: (CONFIDENTIAL) IN

RE: W, N.W.” Finally, counsel called the clerk and explained that these

documents had been filed into the DNA action because the TPR eFiling was

closed. While corrective action was taken by the clerk to place these documents

into the correct case file, the timing of when this action was taken is unclear.

The notice of appeal and related documents submitted to the Court of

Appeals from the family court and docketed on September1, 2021, were

accompanied by a case history for the DNA case, reflecting that these

documents were contained within the physical file of the DNA case. The case

history indicated that these documents were all filed on August 20, 2021.

Due to confusion about where the notice of appeal was docketed and a

lack of a corresponding judgment to the notice of appeal in the DNA case, on

September 17, 2021, the Court of Appeals issued an order directing father to 17 show cause why the appeal should not be dismissed for proceeding improperly,

as it appeared the notice of appeal was filed in the DNA case 18-J-501741-003.

D.W. v. Cabinet for Health and Family Services, 2021-CA-1011-ME, 2022 WL

15527880, at *1 (Ky. App. Oct. 28, 2022) (non-final).

Father responded that the notice of appeal was timely because it was

filed within the jurisdictional deadline and his inability to file it into the TPR

case was due to the clerk erroneously closing access to eFiling prior to the

expiration of the appeal period. Father also filed a motion asking the Court of

Appeals to correct the underlying trial record to reflect that the notice of appeal

was filed in the TPR action. Id. On October 12, 2021, the Cabinet filed a motion

to dismiss, arguing the notice of appeal was untimely because it was filed into

the TPR case after the filing deadline. Id. at *2. On February 22, 2022, the

Court of Appeals denied the Cabinet’s motion to dismiss, granted the motion to

correct the record, and ordered the family court to certify the record. The

physical case file of the TPR before us on appeal contains the documents

originally filed in the DNA action, but it is unclear to me if the clerk filed them

into the TPR case a few days later, as the Cabinet indicated took place as

evinced by the later file stamp, or did not file the documents into the TPR case

until directed to correct and certify the record. The clerk taking a corrective

action to place the notice of appeal in the correct TPR case file, is much like a

clerk allowing a party to submit a check later.

Ultimately, in a divided opinion, the Court of Appeals determined that

the parties had previously been permitted to eFile in this TPR case, but this

18 ability was then curtailed without any notice based upon the case becoming

sealed upon entry of the final order in accordance with KRS 625.108(2), with

this “trap” resulting in “unsuspecting practitioners and parties” being “lured

into a false sense of security that they may eFile a notice of appeal in their TPR

actions up until the clock strikes midnight—when in reality they cannot.” D.W.,

2022 WL 15527880, at *2. The Court of Appeals determined there was an

ambiguity in the eFiling rules and concluded because the purpose of the rules

was to provide access to the trial courts and designed to accept filings twenty-

four hours a day, that it would allow the case to be decided on the merits. Id. at

*3.

The Cabinet argues that the Court of Appeals incorrectly interpreted

Kentucky’s eFiling rules. The Cabinet argues that father’s failure to

conventionally file the notice of appeal as required for a sealed case (with the

TPR case becoming sealed upon entry of the final order) on August 20, 2021,

resulted in the notice of appeal being filed five days late as it was not placed

into the correct file until August 25, 2021, and thus, was untimely. The

Cabinet argues father had no excusable neglect in failing to conform to the

filing rules and that just as the eFiling rules prohibit emailing a notice of

appeal to the clerk or judge (eFiling Rules § 8(3)(c)), father “[f]iling his notice of

appeal purposely in the wrong file is not substantially different than if he had

just emailed the document to the clerk.”

Father argues that the stamped filing date of August 25, 2021, on the

notice of appeal does not indicate that it was first filed into the TPR case as of

19 that date, but instead indicates that the notice of appeal was effective as of that

date because the family court first had to approve the motion, so that the

appeal could proceed with the filing fee waived, and upon approving this

motion, both the motion and the notice of appeal were then added to the

certified record. He cites Appendix 1 of the Kentucky Court Clerk’s Manual

Rule 4.1.1(3), which indicates that the “filed” stamp is only to be affixed to a

notice of appeal after either the receipt of a filing fee “or an order granting IFP

[in forma pauperis] status to the appellant[.]”

Father argues that the purpose of a timely notice of appeal was satisfied

because there is no dispute that all parties received appropriate and timely

notice and asks that we uphold the Court of Appeals’ decision that, as a matter

of law, the notice of appeal was timely filed.

B. The Notice of Appeal Properly Invoked the Jurisdiction of the Court of Appeals because Non-Substantive Errors Do Not Affect the Validity of the Notice of Appeal.

Kentucky Rules of Appellate Procedure (RAP)8 2(A)(1) states: “All appeals

shall be taken by filing a notice of appeal in the court from which the appeal is

taken within the time allowed by RAP 3.” RAP 2(A)(2), specifies: “The timely

filing of a notice of appeal is jurisdictional. The failure to comply with any other

rules of appellate procedure . . . does not affect the validity of the appeal, but is

ground for such action as the appellate court deems appropriate as set forth in

8 I cite to the RAP even though the parties were subject to our prior analogous

Kentucky Rules of Civil Procedure (CR), as the substance of these rules has not changed with the adoption of the RAP.

20 RAP 10.”9 RAP 2(A)(3) states: “The failure of a party to file a timely notice of

appeal . . . shall result in a dismissal or denial.”

In Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986), our Court interpreted

the analogous and then new provisions in CR 73.02(2), which RAP 2 and 10

replace, in determining whether timely notices of appeal which failed to

properly designate a final judgment required dismissal of the appeals. The

Court noted that the changed rule had altered “the policy of strict compliance

with rules of procedure regarding appeals to a new policy of substantial

compliance[,]” Ready, 705 S.W.2d at 481 (internal quotation marks and

citation omitted), and held:

With reference to the defects in the contents of the Notice of Appeal filed in the three cases presently under consideration, automatic dismissal is not an appropriate remedy. Dismissal is not an appropriate remedy for this type of defect so long as the judgment appealed from can be ascertained within reasonable certainty from a complete review of the record on appeal and no substantial harm or prejudice has resulted to the opponent.

Id. at 481-82 (emphasis added). The Court further commented “[w]ith this new

policy [of substantial compliance] we seek to recognize, to reconcile and to

further three significant objectives of appellate practice: achieving an orderly

appellate process, deciding cases on the merits, and seeing to it that litigants

9 This rule is similar to the Federal Rules of Appellate Procedure (Fed. R. App.

P.) 3(a)(2), which provides in relevant part as follows: “An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.” (Emphasis added).

21 do not needlessly suffer the loss of their constitutional right to appeal.” Id. at

482.

Since Ready, our Court has repeatedly limited what errors require

dismissal. See M.A.B. v. Cabinet for Health & Fam. Servs., 635 S.W.3d 90, 93

(Ky. 2021); Flick v. Estate of Wittich, 396 S.W.3d 816, 820-21 (Ky. 2013);

Foxworthy, 816 S.W.2d at 910. While under both our prior CR and current RAP

the “filing of the Notice of Appeal within the prescribed time frame is still

considered mandatory, and failure to do so is fatal to the action[,]” Workers’

Comp. Bd. v. Siler, 840 S.W.2d 812, 813 (Ky. 1992) (internal citations omitted),

“our policy of substantial compliance ensures the survival of an appeal despite

clerical errors when no prejudice results from those errors and notice is

sufficiently conveyed to the necessary parties[,]” Flick, 396 S.W.3d at 824. This

is in accord with what the United States Supreme Court has opined about the

federal standard: “imperfections in noticing an appeal should not be fatal

where no genuine doubt exists about who is appealing, from what judgment, to

which appellate court.” Becker v. Montgomery, 532 U.S. 757, 767-68 (2001).

Although there is limited authority in Kentucky regarding the full

parameters of how our policy of substantial compliance is to be applied, similar

substantial compliance rules in other jurisdictions confirm that even multiple

errors in a timely notice of appeal do not deprive an appellate court of

jurisdiction, so long as it can be determined what is being appealed. See Gov’t

of Virgin Islands v. Mills, 634 F.3d 746, 752-54 (3d Cir. 2011). Our sister courts

22 have almost universally ruled that appellate jurisdiction still attaches to a

timely filed notice of appeal under the following circumstances:

• The notice of appeal is filed in the wrong court. See Nicholas v. Nat’l

Union Fire Ins. Co., 74 A.3d 634, 635 (Del. 2013) (holding when an

electronic notice of appeal, which was filed through the system which

served two courts, was filed to the wrong court, this was sufficient to

invoke jurisdiction where all parties received timely notice); Perry v.

Baskey, 106 N.E.2d 790, 791-92 (Ohio App. 1951), aff’d, 107 N.E.2d

328, 340-41 (Ohio 1952) (holding notice of appeal filed with the clerk

who served both courts was effective as no one could be seriously misled

where the notice was “filed in the right church but in the wrong pew”).10

• The notice of appeal is filed under the wrong case number. See City

of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (holding

notice of appeal with wrong case number was effective where the rest of

the notice of appeal was sufficient to identify what was being appealed);

Jackson v. State, 385 S.W.3d 394, 395 n.1 (Ark. App. 2011) (concluding

notice of appeal which designated the incorrect circuit court case

number, where the Court was easily able to determine which order was

being appealed, was “a mere scrivener’s error”).11

10 See also Alfonso v. Dep’t of Env’t Reg., 616 So. 2d 44, 47 (Fla. 1993); People v.

Greathouse, 742 P.2d 334, 336-37 (Colo. 1987); Russell v. Lamoreaux Homes, Inc., 424 P.2d 561, 563-64 (Kan. 1967). 11 See also First Merit Credit Servs. v. Fairway Aviation, LLC, 860 S.E.2d 126,

129-30 (Ga. App. 2021); Hearst-Argyle Props., Inc. v. Entrex Commc’n Servs., Inc., 778 N.W.2d 465, 468-69 (Neb. 2010); D’Avola v. Anderson, 54 Cal. Rptr. 2d 689, 691-92 (Cal. App. 1996); Simmons v. Chicago Hous. Auth., 641 N.E.2d 915, 919 (Ill. App. 23 • The notice of appeal is filed via the wrong filing method. See Contino

v. United States, 535 F.3d 124, 127 (2d Cir. 2008) (accepting notice of

appeal that was rejected for being eFiled rather than arriving by mail,

contrary to local rules); VC & M, Ltd. v. Andrews, 991 N.E.2d 323, 330

(Ill. 2013) (holding eFiled notice of appeal, although improperly filed,

sufficient to confer jurisdiction although it should have been filed as a

hard copy).12

This persuasive authority comports with my own understanding of Kentucky’s

rule of substantial compliance.

Assuming that father’s counsel erred by eFiling this notice of appeal into

the DNA envelope (rather than she was forced to do so due to an error of the

clerk in prematurely closing the termination case for eFiling as I discuss

below), the question thus becomes whether a timely and otherwise appropriate

notice of appeal filed with the clerk’s office through eFiling, can somehow

become untimely by being filed in the wrong case. It cannot. I would hold

father’s eFiled notice of appeal sufficient to invoke appellate jurisdiction as the

notice was (1) timely; (2) the judgment being appealed could be ascertained

1994); Fleet v. Fleet, 137 A.3d 983, 991 (D.C. 2016). Similarly, timely but erroneous eFiling at the trial level is sufficient to save actions from dismissal. See Shuler v. Garrett, 715 F.3d 185, 186-87 (6th Cir. 2013); Farzana K. v. Indiana Dep’t of Educ., 473 F.3d 703, 707 (7th Cir. 2007); Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994). 12 See also Pierce v. Ocwen Loan Servicing, LLC, 987 F.3d 579-80 (6th Cir.

2021); Han Tak Lee Houtzdale SCI, 798 F.3d 159, 163-65 (3d Cir. 2015); Klemm v. Astrue, 543 F.3d 1139, 1143 (9th Cir. 2008); United States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008); Tex. G & S Invs., Inc. v. Constellation Newenergy, Inc., 459 S.W.3d 252, 257 (Tex. App. 2015). 24 within reasonable certainty; and (3) no substantial harm or prejudice resulted

to the necessary parties because they received appropriate notice. See RAP 2;

Ready, 705 S.W.2d at 481-82 (providing appropriate standard).

Had the attorney filed this same notice of appeal in paper form with the

clerk, and the clerk then made the mistake of filing it into the DNA case rather

than the TPR case, there would be no question that this would be a clerical

error. The fact that the eFiling system, which is controlled by the clerk,

required that the notice of appeal be misfiled in order to even be filed, does not

mean that father should therefore be deprived of his right to an appeal.

Our eFiling Rules empower clerks to correct non-jurisdictional errors in

accordance with our substantial compliance policy. Section 8(4)(b) authorizes

the clerk to “return the envelope to the eFiler indicating what further action, if

any, is required to address the error” without imperiling the timeliness of a

filing. Section 8(4)(b) indicates “[t]imely correction [within two business days of

receiving the returned envelope] shall preserve the original date and time found

on the Notice of Electronic Filing.” The clerk upon noting the filing error, could

have returned the envelope to counsel, and requested that counsel refile the

documents manually into the correct case by presenting the documents at the

counter. Alternatively, the clerk could have disregarded the error of the

documents being filed under the DNA envelope pursuant to § 8(4)(c) by

manually filing the documents into the TPR case. Either action would be

appropriate and authorized under these circumstances. However, a lack of

action by the clerk’s office does not deprive the appellate courts of jurisdiction;

25 appropriate action demands we remedy this non-substantive error. Therefore, I

would affirm the portion of the Court of Appeals decision which held that there

was appellate jurisdiction, albeit with different reasoning.

C. The Phrase “Upon Entry of the Final Order in the Case” in KRS 625.108(2) Properly Refers to Whichever Opinion, Order or Judgment Finally Resolves a TPR Case and Does Not Foreclose eFiling of the Notice of Appeal in such a Case.

The premature closing of eFiling in the TPR case, which denied father the

opportunity to eFile his notice of appeal into the correct file was a clerical error

because such an action was based on a misinterpretation of what KRS 625.108

requires.

The operative portion of KRS 625.108(2) states as follows:

Upon the entry of the final order in the case, the clerk shall place all papers and records in the case in a suitable envelope which shall be sealed and shall not be open for inspection by any person other than representatives of the cabinet without a written order of the court or as authorized by the provisions of KRS Chapter 199.

We must interpret what “final order” means in this context. The analysis

in Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App. 1999), supports the

conclusion that the final order being referred to herein actually refers to the

final order, opinion or judgment which finally concludes the case after the time

has expired for further review. In Palmer the Court was tasked with interpreting

the phrase “when the judgment becomes final” in Kentucky Rules of Criminal

Procedure (RCr) 11.42(10); this was needed for calculating when the three-year

period for filing a timely RCr 11.42 motion expired and further review was

precluded. In determining that this phrase referred to the period after the

judgment was finalized because no further appellate review was possible (either 26 because the time for taking an appeal had elapsed or because the last appellate

judgment had become final), the Court analyzed the relevant language as

follows:

As a general rule of statutory construction, expressio unius est exclusio alterius provides that an enumeration of a particular thing demonstrates that the omission of another thing is an intentional exclusion. Louisville Water Co. v. Wells, Ky.App., 664 S.W.2d 525 (1984); Wade v. Commonwealth, Ky., 303 S.W.2d 905 (1957). Hence, we must view the omission of “of the trial court” when referring to the judgment in RCr 11.42(10) as intentional. Likewise, it has been held that where the legislation includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that the legislature acted intentionally and purposefully in the disparate inclusion or exclusion. Keene Corp. v. United States, 508 U.S. 200, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Thus, we must construe the judgment referred to in section (10) of RCr 11.42 to not be the judgment of the trial court, since the Supreme Court could have used the specific language “final order or judgment of the trial court” that they used in sections (7) and (8) if that was what they intended. Rather, instead of referring to a judgment of a specific court in RCr 11.42(10), the Supreme Court referred to the date when “the judgment becomes final” as when the time begins to run. This also leads us to believe that the Supreme Court meant the conclusive judgment in the case, whether it be the final judgment of the appellate court on direct appeal or the judgment of the trial court in the event no direct appeal was taken.

Palmer, 3 S.W.3d at 764–65.

When the methods of analysis set out in Palmer are applied to KRS

625.108(2), with the operative phrase “upon entry of the final order in this

case” being considered in the context of KRS 625.108 as a whole—and its

function within the entire chapter relating to termination of parental rights—I

would interpret that “final order” means the final order of the final reviewing

27 appellate court or the order or opinion which finally concludes the case after

the right to appeal has expired.

The general assembly enacted KRS 625.108 for the purpose of

addressing the confidentiality and sealing of termination records. We have a

unified Court of Justice and a piecemeal approach to confidentiality is neither

warranted nor supported textually by the wording of this statute. While certain

portions of the statute refer to a specific court’s role, the absence of a reference

to a particular court, as is the case with KRS 625.108(2), should not be

interpreted to mean that the circuit court is intended. Instead, general

language should be interpreted to relate to our whole court system. The files

and records of the circuit court relating to termination cases are not open to

the public whether they are currently housed with the circuit court clerk, in

trial court chambers or before the Court of Appeals or the Supreme Court.

Confidentially attaches to such records at all stages of the process. If a case

has been appealed, upon the final resolution of the matter, the circuit court

records are returned to the clerk along with the appellate court’s judgment, to

be made a part of that record. It is only then that the case is final.

A careful examination of the statute as a whole does not lend itself to the

conclusion that the “final order” being referenced in (2) is specific to a circuit

court judgment. The General Assembly demonstrated it could provide further

clarity when desired, so the open-ended, passive language used in (2) should

be interpreted broadly.

28 This interpretation is also bolstered by an examination of surrounding

statutes in the chapter on termination of parental rights. KRS 625.108 was

adopted in 1988 and has not been amended since. However, the 2018

amendments of the surrounding statutes in the section of Chapter 625 which

govern involuntary termination and discuss final rulings and judgments, are

notable in that they use other phrases than “final order” when referring to their

requirements for the prompt resolution of termination cases before circuit

court (“final judgment”) and prompt appellate decisions (“final ruling”).13 If

“final order” was intended to refer solely to circuit court decisions, why would

the General assembly not re-use this term when it imposed time limits on when

circuit courts should render rulings in termination cases? The obvious answer

is that the term “final order” in KRS 625.108 can properly encompass both the

trial court’s “final judgment” and the appellate court’s “final ruling” depending

upon how the termination case is finally resolved.

I believe we should interpret the statute consistent with our general

understanding of finality. Finality of a court judgment occurs when the time for

bringing the last appeal has expired. Only then is sealing to all but the Cabinet

13 KRS 625.050(7), which is specifically directed at circuit courts, states: “Any

petition filed pursuant to this section shall be fully adjudicated and a final judgment shall be entered by the court within six (6) months of the service of the petition on the parents.” (Emphasis added). The final sentence of KRS 625.110, which is specifically directed at appellate courts, provides that “[t]he court shall make its final ruling within ninety (90) days after the appeal case is submitted to the appellate bench for decision.” (Emphasis added). These provisions were added by 2018 Kentucky Laws Ch. 159 (HB 1) § 41 (amending KRS 625.050) and § 27 (amending KRS 625.110).

29 Practical considerations in how the appellate process works also support

this interpretation, as if sealing must be done upon entry of the trial court’s

final order, this would prevent an appealing party from being allowed to access

the trial court record to prepare an appellate brief. This would severely

prejudice the defense and could violate parents’ rights to competent counsel.14

Accordingly, I interpret KRS 625.108(2) as referring to whatever final

order concludes the termination case, whether it be one from the trial court if

no appeal is filed, or one from the final reviewing appellate court once finality is

achieved. Under such an interpretation of KRS 625.108(2), a TPR action

remains a “supported case” for which eFiling is appropriate pursuant to eFiling

Rules Section 3 and need not be filed conventionally pursuant to Section 9(3)

because a TPR case is only confidential rather than sealed to the parties until

after finality. Therefore, I would also hold that father not being allowed to eFile

his notice of appeal into the correct case number is a clerical error; this is an

14 A review father’s appellate brief before the Court of Appeals indicates that he

did not withdraw the record, while the Cabinet’s appellee brief indicates that it did withdraw the record and returned it. If father was indeed prevented from accessing the record, rather than chose not to access it in preparing his brief, while the Cabinet had unfettered access, this is a serious matter which could have constitutional implications. RAP 28(B) provides that as to items sealed by court order: “Counsel for parties to the appeal or original action may access the record, including items sealed by order of court[.]” If parties are not permitted to access a sealed record, they will not be able to ensure that the record to be submitted to the appellate court is complete. See RAP 25 (allowing for narrative statements and corrections of the record, something that would be impossible if the parties cannot review the record after the filing of the final judgment terminating parental rights); RAP 26(D)(2)(a) (permitting counsel for the parties, beginning with the appellant, to withdraw the record on appeal from the trial court or circuit court clerk).

30 additional reason why father’s appeal should be allowed to proceed and review

be had on the merits.

II. Extreme Caution should be Used in Determining that a Termination of Parental Rights Case is Final Due to a Defective Notice of Appeal.

As noted in Commonwealth, Cabinet for Health and Fam. Servs. v. S.H.,

476 S.W.3d 254, 259 (Ky. 2015) (quoting In re Smith, 601 N.E. 45 (Ohio App.

1991)), “the termination of parental rights has been called ‘the family law

equivalent of the death penalty in a criminal case.” Considering the seriousness

and the finality of such an outcome, such proceedings “require[] complete

deference to providing for all the parent’s due process rights.” A.P. v.

Commonwealth, 270 S.W.3d 418, 422 (Ky. App. 2018).

While in another civil case, an action by counsel that results in a filing

deadline being missed and a cause of action being extinguished may be

remedied by a suit against the attorney for malpractice damages, there is no

real remedy when this same thing occurs in appealing from the termination of

parental rights. There is no remedy to restore the parental relationship after a

termination has become final.

Recognizing the seriousness of cutting off the right to an appeal in the

criminal context, there is the possibility of a belated appeal if counsel acts

ineffectively by failing to file a timely notice of appeal as requested by the

defendant. See e.g. Moore v. Commonwealth, 199 S.W.3d 132, 140 (Ky. 2006). If

counsel’s ineffectiveness costs a criminal defendant a victory, a Kentucky Rules

of Criminal Procedure (RCr) 11.42 motion may provide relief such as a new

31 trial. Our Courts have never determined that there is an equivalent remedy for

a parent whose parental rights have been terminated, has requested that an

appeal be filed, and whose counsel has failed to timely file or perfect an appeal.

See T.S. v. Commonwealth, 602 S.W.3d 795, 797 (Ky. App. 2020) (explaining

that in a DNA case, there is no right to a belated appeal where counsel failed to

name a necessary party in the notice of appeal).

Therefore, we should be especially cognizant in providing for a generous

application of our substantial compliance rules when it comes to determining

whether a notice of appeal invoked our Courts’ appellate jurisdiction. I would

determine that the notice of appeal here was sufficient in essentials and allow

the appeal to proceed to a consideration of the merits. Father deserves to know

whether he has finally lost his parental rights to child because the family

court’s judgment was correct or whether he would have ultimately retained his

parental rights to child had the appeal been filed conventionally.

III. The Evidence Appropriately Supported the Family Court’s Ruling that the Best Interest of Child would be Served by the Termination of Father’s Parental Rights.

As father does not contest that child was properly found to be an abused

or neglected child, or that there is at least one ground of parental unfitness, I

focus my discussion on his argument that there was a lack of substantial

evidence to support a finding by clear and convincing evidence that termination

was in the best interest of the child pursuant to the KRS 625.090(3) factors.

Father specifically takes issue with the fact that: (1) there was no one to testify

concerning the mental health of the child, the status of child’s schooling, the

32 status of child’s therapy, or to support the fact that there would be

improvement by the child if the parental rights of father were terminated; (2)

there was no testimony or report from the guardian ad litem that the

termination was in the child’s best interest; (3) the social worker never saw the

natural father or set up services for him; (4) the child was not doing well in the

Cabinet’s care; and (5) the family court ruled that father did not abandon his

child.

“In conducting a best interest analysis, a trial court must consider the

six factors enumerated in KRS 625.090(3)(a)-(f)[,]” but need not provide

analysis of inapplicable factors for which there is no evidence presented.

Cabinet for Health & Fam. Servs. v. K.H., 423 S.W.3d 204, 212 (Ky. 2014).

KRS 625.090(3) specifies in relevant part:

In determining the best interest of the child and the existence of a ground for termination, the Circuit Court shall consider the following factors:

...

(b) Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;

(c) If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents . . . ;

(d) The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child’s best interest to return him to his home within a reasonable period of time, considering the age of the child;

33 (e) The physical, emotional, and mental health of the child and the prospects for the improvement of the child’s welfare if termination is ordered; and

(f) The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.

The Court of Appeals faulted the way this case was put forth by the

Cabinet regarding child’s prospects for improvement if father’s parental rights

were to be terminated, and noted that father presented contrary evidence

regarding the Cabinet’s efforts and his efforts in caring for child. Although the

Court of Appeals did not specifically identify which factors it was discussing, I

believe it referenced KRS 625.090(3)(d), (e) and (f) and ignored (b) and (c), which

the family court extensively discussed.

At most, the Court of Appeals has identified reasons why a different

family court judge may have reached a different conclusion, rather than shown

that this family court judge’s decision to terminate father’s parental rights was

clearly erroneous.

The record contains clear and convincing evidence from which the family

court could properly find that termination was in child’s best interests under

all the relevant factors. The family court specifically found that pursuant to

KRS 625.090(3)(b), child was abused or neglected and would continue to be

abused or neglected if father’s parental rights were not terminated.

Testimony from ongoing worker Phillip Cross and the contents of the

admitted exhibits established that father was not compliant with court orders

from the DNA case and was not compliant with the Cabinet case plan which

34 included referring father to Seven Counties for a substance abuse evaluation

and referring father to Accurate Drug and DNA Testing for random drug

screens. Cross testified that father did not submit to a requested hair follicle

test and did not take any steps to comply with the case plan. While father

testified that he was never told where to go for a substance abuse evaluation or

for random drug testing and testified he had begun participating in a

substance abuse program at the jail that would include random drug testing,

the family court was entitled to conclude that father had a poor record of

compliance when he was not incarcerated.

The evidence also established that father was serving a fourteen-year

sentence as a result of multiple convictions and had an extensive prior criminal

history during child’s life.15 Father acknowledged being incarcerated for the

previous twenty-eight months, since January 14, 2019. He also acknowledged

that prior to his current incarceration, he had only been out of custody for a

year and a half. While father hoped to be paroled soon, and stated he had a

plan for stable employment and housing when he was released which would

enable him to care for child, he had no guarantee he would be released prior to

completing his prison sentence.

15 On February 24, 2020, in Nelson County, father pled guilty to two counts of

Escape in the Second Degree, three counts of Criminal Possession of a Forged Instrument in the First Degree, Possession of a Handgun by a Convicted Felon, Receiving Stolen Property (Firearm), and Possession of a Controlled Substance in the First Degree (Methamphetamine); he was sentenced on March 25, 2020. Previously on December 4, 2019, father pled guilty in Jefferson County to two counts of criminal possession of a forged instrument; on June 15, 2020, he was sentenced to two years and one day, probated for five years. 35 The family court also had ample evidence that the Cabinet had made

reasonable efforts, but that father had failed to make any effort whatsoever

when he was out of custody, thus satisfying KRS 625.090(3)(c) and (d). Cross

testified about what the Cabinet had provided to father and about father’s lack

of compliance, and Cross also testified about his own efforts to maintain

contact with father and keep him informed about his case plan. While father

testified that a previous worker failed to contact him while he was incarcerated,

father’s lack of progress while not incarcerated could properly be attributed to

his unwillingness to follow the case plan.

Cross’s testimony provided an appropriate basis for the family court to

conclude that the Cabinet had provided appropriate services and additional

services were unlikely to result in reunification. Cross specifically testified that

for reunification to occur, father would need to obtain sobriety, maintain

housing, and demonstrate that he could live a healthy lifestyle free of drugs

and criminal activity. He opined that after father’s release from incarceration, it

would take over a year for father (if he complied with the case plan) to

demonstrate he could do those things to make reunification possible.

While additional evidence could have been introduced to establish KRS

625.090(3)(e), that “[t]he physical, emotional, and mental health of the child

and the prospects for the improvement of the child’s welfare if termination is

ordered[,]” militated in favor of termination, the lack of adequate evidence on

this subpart (had that been the case), would not preclude termination being in

child’s best interest. All the KRS 625.090(3) factors must be considered in

36 conjunction with one another, and evidence that one factor strongly supports

termination may counterbalance that a different factor may only weakly

support or even be contrary to termination. It is the overall consideration of all

of the KRS 625.090(3) factors that is important, and the family court is granted

the discretion to weigh these factors both individually and collectively.

The Cabinet’s difficulty in finding child a stable placement that is likely to lead

to adoption, does not mean that a child will be better served by retaining father

as his legal parent, when father cannot appropriately parent child. All children

have the “right to a safe and stable home” and a “finding that adoption of the

children is unlikely is not a relevant consideration” to whether the prospects

for improvement of children will be met by termination given that termination

provides children the possibility of permanence that is simply not achievable by

lingering in foster care with no reasonable prospects for returning to stable

parental care. Cabinet for Fams. and Children v. G.C.W., 139 S.W.3d 172, 177-

78 (Ky. App. 2004). See M.L.C. v. Cabinet for Health & Fam. Servs., 411 S.W.3d

761, 764 (Ky. App. 2013) (explaining “children having a safe and stable home

and not lingering in the foster care system is of utmost importance”).

Termination can be appropriate even if parents love their child and desire to

parent, but simply are not able to do so for reasons beyond their control. See

Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 214 (Ky. 2019)

(discussing that developmentally disabled parent’s inability to parent could

constitute abuse or neglect sufficient for termination because it puts the child

at risk of harm).

37 Cross testified that since child was placed with the Cabinet in May 2019,

father had not had any contact with child, and failed to provide any care or

support for child. Cross testified that although it had been difficult to find child

an appropriate and stable placement, he had reason to hope the current

placement for child and sibling was a good one as child had felt comfortable

disclosing to foster mom that his uncle had molested him, and child appeared

bonded to the foster mother. The foster mother testified that she had a good

relationship with child, she wanted to be a permanent placement for him, and

that she was willing to put in the time and effort required by children.

The family court was authorized to consider the conflicting evidence

about whether father cared for child financially while child was in

grandmother’s temporary custody, and to make a credibility finding against

him. It was undisputed that father failed to pay any child support since 2016

and did not support child in any manner while incarcerated. Father’s hopes for

his future ability to care for child upon release from incarceration were just

that, hopes, rather than rooted in his past proof of substantive action in taking

the steps needed for a successful reunification. While father expressed

frustration that he could not prove himself while incarcerated, father’s ongoing

and prolonged incarceration is an appropriate factor to be considered, in

determining the best interest of child. Cabinet for Human Res. v. Rogeski, 909

S.W.2d 660, 661 (Ky. 1995). It was father’s dedication to a criminal lifestyle

which at least in part rendered him unable to care for child. Although it is

certainly laudable that father sought out substance abuse treatment while

38 incarcerated, this did not counteract that he had failed to take any steps to

follow any aspect of his case plan while he was not in custody or show that he

could maintain sobriety and would follow a case plan while out of custody.

As the family court found, there was no reason to believe that child

would not continue to be abused or neglected if returned to father’s care,

because there were simply no prospects for father to improve to the extent

needed to appropriately parent child. See K.S., 585 S.W.3d at 213-14

(explaining a child can be considered neglected due to a parent’s failure to

complete case goal plans and termination can be appropriate where there is

“clear and convincing proof of a potential threat of abuse or neglect if the child

is returned to the parent.”). Here, father failed to start to work on his case goal

plans in the months before his incarceration and there was simply a lack of

data as to whether father could be successful in completing a case plan and

addressing his substance abuse issues while out of custody.

There was clear and convincing evidence to support the family court’s

finding that termination of father’s parental rights was in child’s best interest.

Therefore, while I would affirm that we have the jurisdiction to review this

appeal, I would reverse the Court of Appeals on the merits and reinstate the

termination of father’s parental rights.

Lambert, J., joins.

39 COUNSEL FOR APPELLANT:

Adam Sanders Assistant Counsel Cabinet for Health and Family Services

COUNSEL FOR APPELLEE, D.W.:

Bethanni E. Forbush-Moss Law Offices of Forbush-Moss, PSC

COUNSEL FOR APPELLEE, T.A.:

Zackary E. McKee McKee Law Law Office, P.L.L.C.

COUNSEL FOR APPELLEE, N.W.W.:

Rebecca Ann Smither Hodge & Smither PLLC