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

• Court: Court of Appeals of Kentucky
• Decided: July 2, 2026
• Docket: 2024-CA-1477
• Status: Unpublished

Opinion

RENDERED: JULY 2, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1477-ME

D.M.S. APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE TRACI BRISLIN, JUDGE ACTION NO. 24-AD-00014

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.R.R., A MINOR; AND R.J.R. APPELLEES

OPINION AND ORDER AFFIRMING

** ** ** ** **

BEFORE: COMBS, ECKERLE, AND L. JONES, JUDGES.

JONES, L., JUDGE: Appellant, D.M.S. (Mother), appeals the Fayette Circuit

Court’s October 4, 2024, Findings of Fact, Conclusions of Law, and Judgment

terminating her parental rights (TPR) to her minor child, Appellee, M.R.R. (Child).1 We have carefully reviewed the briefs filed, the entirety of the record on

appeal, and the relevant law. In doing so, we affirm the decision of the Fayette

Circuit Court for the following reasons.

BACKGROUND

In early 2022, Appellee, the Cabinet for Health and Family Services

(Cabinet) filed a dependency, neglect, and abuse (DNA) petition regarding Child,

who was a little over one year old at the time, after Mother took Child to the

hospital and medical professionals discovered that he had sustained multiple

fractures to his legs, which were determined to be the result of neglect or abuse.

The exact nature of how Child sustained the injuries was contested during the

DNA case and TPR case; however, Mother ultimately disclosed that she had lied

about who was watching Child at the time he would have sustained the injuries, at

one point saying it was a babysitter before claiming that it was Father.

Mother stipulated to neglect in the DNA case and admitted to not

noticing Child’s injuries for several days while being under the influence of

marijuana at the time. Mother was also arrested and pled guilty to driving under

the influence shortly after the DNA case commenced. The circuit court initially

placed Child with a relative of Mother’s, but Child eventually came into the

1 Appellee, R.J.R. (Father), has not appealed this decision nor has he been involved in any capacity in this appeal or the underlying cases.

-2- Cabinet’s custody in June 2022. The Cabinet provided Mother with a case plan,

which included completing a substance abuse assessment and following its

recommendations, obtaining and maintaining stable housing, consistently

screening negative for drugs, and completing a parenting assessment through

Feinberg and Associates and following its recommendations.

Mother engaged with Feinberg and Associates and a report (the

Feinberg Report) was completed in June 2023. The Feinberg Report

recommended that Mother establish independent and appropriate housing;

participate in dialectical behavior therapy (DBT); participate with Child in parent-

child interaction therapy (PCIT); and continue to randomly drug screen. It also

stated if Mother could comply with the recommendations within six months, that

reunification should occur. Mother relapsed shortly after the Feinberg Report was

issued. In October 2023, Mother voluntarily enrolled in an intensive outpatient

program (IOP) and sober living program. The circuit court changed the Child’s

permanency goal to adoption in the DNA case in November 2023 and the Cabinet

filed a TPR petition in January 2024. Mother completed her IOP in March 2024

and immediately moved into another sober living facility. She began DBT in June

2024. The TPR hearing occurred in September 2024.

During the TPR hearing, Dr. Cravero, a psychologist employed with

Feinberg and Associates, testified about the Feinberg Report. While she

-3- acknowledged Mother’s subsequent success in achieving and maintaining sobriety

since October 2023, she explained that sobriety was not the only issue with

Mother’s capacity to parent, and expressed concern that Mother did not make

significant progress towards the rest of the recommendations within six months

from June 2023. Additionally, Dr. Cravero testified that she had continuing

concerns with Mother’s not having maintained stable housing, noting her opinion

that sober living was not indicative of an individual’s ability to live independently

and maintain sobriety outside of a structured environment. She also voiced

apprehension with Mother’s beginning a romantic relationship with a man she met

while they were both in recovery, especially considering how she previously

explained to Mother that beginning a relationship during the process may hinder

her recovery.

The family’s ongoing Cabinet worker testified next. She commended

Mother for the progress she made on her sobriety but reiterated the same

continuing concerns as Dr. Cravero. She also stated that the Cabinet still had its

doubts considering the origin of Child’s injuries. The Cabinet worker further

testified that Child had significant developmental delays at the beginning of the

DNA case, but that he had made great strides in speech therapy and physical

therapy while in the care of his current foster family. The foster family, which was

a preadoptive placement, had bonded significantly with Child.

-4- Mother testified about the progress she had made on achieving and

maintaining sobriety and her success with employment. Regarding her paramour,

Mother admitted that she did not inquire into his background or history and was

unaware of some pending assault charges he accrued. She maintained that she did

not abuse Child or know how he had sustained his injuries, just that she had erred

in entrusting Child to Father’s care for a time and neglecting to take Child to

receive treatment for the injuries for several days. She also testified that she

waited a year to begin DBT because of scheduling concerns with her first IOP and

that she was unable to begin PCIT because of the delay in starting DBT and the

Cabinet’s decision to change Child’s goal to adoption.

The circuit court issued written orders terminating Mother’s parental

rights on October 4, 2024. Mother filed a motion to vacate under Kentucky Civil

Rules of Procedure (CR) 52.02 and CR 59.2 The circuit court denied that motion

and this appealed followed.

STANDARD OF REVIEW

A judgment involuntarily terminating a parent’s rights to a minor

child shall only be reversed if it is clearly erroneous, or, in other words, if there is

no substantial, clear, and convincing evidence to support the decision. Cabinet for

Health & Fam. Servs. v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010). Substantial

2 We will elaborate on the basis of this motion in our analysis below.

-5- evidence is “evidence of substance and relevant consequence having the fitness to

induce conviction in the mind” of a reasonable person. Owens-Corning Fiberglas

Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted).

Furthermore, “[a]s to what constitutes the best interest of the child, any factual

findings are reviewed under the clearly erroneous standard; any decisions based

upon said facts are reviewed under an abuse of discretion standard.” Young v.

Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009) (citations omitted). Unlike “[c]lear

error [which] applies to a review of a trial court’s findings of fact; abuse of

discretion applies in other situations where, for example, a ‘court is empowered to

make a decision—of its choosing—that falls within a range of permissible

decisions.’” Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004).

ANALYSIS

As a preliminary matter, we note that Mother filed a motion to strike

the brief filed by Child’s Guardian ad litem (GAL) for failing to conform to the

requirements of Kentucky Rules of Appellate Procedure (RAP) 32(B).3 In this

instance, we shall not impose any of the penalties afforded by RAP 31(H);

however, we remind all counsel involved in this appeal of the importance of

complying with the RAPs, especially in cases involving issues affecting the

3 On April 8, 2025, the Court issued an Order passing this motion to the panel assigned to determine the merits of the appeal.

-6- welfare of children.4 See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

Accordingly, the Court ORDERS that Mother’s motion to strike the brief filed by

Child’s GAL be, and hereby is, DENIED. We now turn to the merits.

There are three necessary determinations a circuit court must make

before a parent’s rights may be involuntarily terminated: (1) the child is found to

be “[a]bused or neglected[,]” as defined by Kentucky Revised Statutes (KRS)

600.020(1); (2) the termination must be in the child’s best interest; and, (3) at least

one ground of parental unfitness as set out in KRS 625.090(2) exists. KRS

625.090; see also Cabinet for Health and Fam. Servs. v. K.H., 423 S.W.3d 204,

209 (Ky. 2014).

It is uncontroverted that Child was abused or neglected; Mother

stipulated to such during the underlying DNA action and at the final TPR hearing.

Mother also does not contest the Court’s findings regarding KRS 625.090(2).5

4 Specifically, we note that both Mother and the GAL failed to adhere to RAP 31(B) and included the full names of the parties involved in their briefs instead of using initials or descriptive terms. 5 Specifically, the circuit court found that Child had been in the Cabinet’s custody since June 2022. KRS 625.090(2) provides:

No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:

...

(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months

-7- Instead, Mother takes issue with the findings surrounding Child’s best interests.

Her primary argument is that the circuit court erred in relying too heavily on the

Feinberg Report, which she claims was outdated, rather than focusing on the

progress she had made since the report in the year preceding the TPR hearing. We

are unpersuaded for the following reasons.

Firstly, Mother raises the argument that the Feinberg Report was

outdated for the first time on appeal. “Almost all issues are subject to waiver,

whether from inaction or consent, . . . and [a] new theory of error cannot be raised

for the first time on appeal.” Commonwealth v. Steadman, 411 S.W.3d 717, 724

(Ky. 2013) (internal quotation marks omitted). During the hearing, Mother did not

object to the introduction of the Feinberg Report as an exhibit or to Dr. Cravero’s

testimony about the report. To the extent Mother did challenge Dr. Cravero’s

testimony in her motion to vacate, she argued that Dr. Cravero’s statements about

Mother’s current situation were merely speculative; there is no mention of the

Feinberg Report.

Furthermore, even if we were to accept Mother’s argument that the

Feinberg Report was outdated, Mother does not acknowledge other factors, beyond

her noncompliance with the Feinberg Report, that the circuit court took into

out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]

-8- consideration in making its decision. Additionally, the circuit court considered

Mother’s failure to obtain stable and independent housing; her long history of

substance abuse; her history of being in toxic relationships and the issues

concerning her current paramour; and her failure to provide care and support to

Child. See KRS 625.090(3). The circuit court also found that Child was doing

well in his current foster placement, and that his physical, emotional, and mental

health was improving, and that child’s progress was expected to continue. Id. In

addition to the findings which weigh against Mother, the circuit court also

acknowledged the tremendous progress Mother had made in achieving and

maintaining her sobriety.

It is apparent from the record that the circuit court thoroughly

weighed the evidence presented in making its decision. While Mother presented

several pieces of evidence in her favor, “we must bear in mind that in reviewing

the decision of a trial court the test is not whether we would have decided it

differently, but whether the findings of the trial judge were clearly erroneous or

that he abused his discretion.” Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)

(citations omitted). Thus, we determine that there was substantially clear and

convincing evidence to support the circuit court’s findings, and that the circuit

court did not abuse its discretion in determining termination of Mother’s parental

rights would serve Child’s best interests based on those findings.

-9- CONCLUSION

Accordingly, we affirm the October 4, 2024, Findings of Fact and

Conclusions of Law, and Judgment of Fayette Circuit Court which terminated

Mother’s parental rights.

ALL CONCUR.

ENTERED: ____07/02/2026____ HON. LISA P. JONES JUDGE, COURT OF APPEALS

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE CHILD:

William D. Tingley Richard F. Dawahare Covington, Kentucky Lexington, Kentucky

BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES:

Dilissa G. Milburn Mayfield, Kentucky

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