RENDERED: APRIL 11, 2025; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1121-ME
S.S. APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE NORA J. SHEPHERD, JUDGE ACTION NO. 22-AD-00087
A.L.B., A CHILD; CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND J.F.C. APPELLEES
AND
NO. 2024-CA-1124-ME
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE NORA J. SHEPHERD, JUDGE ACTION NO. 22-AD-00088
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.F.C.; AND J.W.B., A CHILD APPELLEES OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
ECKERLE, JUDGE: S.S. (“Father”) appeals from findings of fact, conclusions of
law, and orders of the Madison Family Court terminating his parental rights to his
two children. We conclude that, contrary to Father’s arguments, there was clear
and convincing evidence supporting the Family Court’s statutory findings for
termination. We further conclude that, while the Family Court should not have
compelled Father’s testimony after he asserted his Fifth Amendment rights, the
Family Court’s stricture on that testimony neither implicated Father’s rights
against self-incrimination in fact nor was determinative of the outcome of this
proceeding. Hence, we affirm.
A.L.B. and J.W.B. (“Children”) are twin boys born to J.F.C.
(“Mother”) in August of 2017 while she was incarcerated in South Carolina.
Mother identified Father on the birth certificates as the biological father of
Children. His paternity of Children was later confirmed through genetic testing.
The South Carolina Department of Social Services removed the
Children from Mother’s custody at birth due to her imprisonment. After initially
placing them with foster parents, they later reunited them with their paternal
-2- grandmother with whom Father resided. A South Carolina court granted
supervised visitation to both Father and Mother.
In August of 2018, approximately one year after Children’s birth,
Father was arrested on drug-related charges. While released on bond, Father
moved out of his mother’s house but still retained contact with Children. Father
was thereafter convicted and incarcerated for several years. During that time,
Mother was released from her imprisonment. She moved with Children from
South Carolina to Kentucky.
In February of 2021, the Cabinet for Health and Family Services (“the
Cabinet”) removed Children from Mother’s custody and filed cases of
dependency/neglect/abuse (“DNA”) on their behalf. The Family Court found
Children to be abused or neglected and placed them in the custody of the Cabinet.
Father contacted the Cabinet, stipulated to dependency, and signed a case plan.
On August 2, 2022, the Cabinet filed petitions to terminate Father’s
and Mother’s parental rights to Children.1 The Family Court appointed a guardian
ad litem (“GAL”) for Children. Because both parents were incarcerated at that
time, the Family Court also appointed GALs for them. Although Father was
released from custody in October 2022, several months later, in March of 2023,
1 The Cabinet also sought termination of Mother’s parental rights to a third child. However, a different person is the father of that child, and that matter is not part of this appeal.
-3- Father was arrested again on Federal charges in South Carolina. At the time of the
hearing on June 13, 2024, both Father and Mother were still incarcerated. Mother
agreed to a voluntary termination of her parental rights.
At the hearing, the Family Court took judicial notice of the records
from the DNA actions and the criminal records relating to Mother’s conviction.
Notably, Mother was previously convicted for abusing and assaulting Children, for
which she was sentenced to 30-years’ imprisonment. The Family Court also
briefly recessed the hearing to review the DNA files. In addition, the Cabinet
introduced applicable records from the removal proceedings in South Carolina.
The Cabinet’s caseworker, Travis Hacker, testified about the
Cabinet’s history with the family from the time Children were removed from
Mother in 2021. Hacker testified that Father maintained only sporadic contact with
the Cabinet before being arrested. Father has provided no support for Children
during their lives and had no contact with them since his arrest in 2019. Hacker
testified that Father did not show any compliance with his case plan and failed to
maintain consistent contact with the Cabinet.
The Cabinet next called Father as a witness. Father appeared at the
hearing remotely from South Carolina. Father objected, invoking his privilege
against self-incrimination under the Fifth Amendment. The Family Court
overruled the objection, concluding that Father’s testimony regarding this matter
-4- would not implicate his self-incrimination rights on unrelated, collateral matters.
Nonetheless, it limited the inquiry and considered those rights on a question-by-
question basis, sustaining objections to many. During his testimony, Father
presented evidence of completion of several programs during his earlier
incarceration.
At the conclusion of the hearing, the Family Court found that the
Cabinet had sustained its burden of proof for termination of Father’s parental rights
to Children. The Family Court concluded that Father had abandoned Children, and
there is no reasonable expectation of improvement in the foreseeable future based
on the following: Father’s extended absences from Children’s lives; his failures to
provide support for Children and to make an effort on working his case plan even
when he was not incarcerated; and his ongoing criminal lifestyle. On July 9, 2024,
the Family Court entered written findings of fact, conclusions of law, and an order
terminating Father’s parental rights to Children.
Thereafter, Father filed a timely motion to modify the findings of fact
to correct certain clerical mistakes and misstatements of fact. Specifically, the
Family Court’s findings incorrectly stated that Father’s counsel had requested a
continuance based on Father’s pending charges and rights against self-
incrimination. Father pointed out that the objection was to the Cabinet’s calling of
him as a witness. Father also requested that the record include certificates showing
-5- the efforts he had made while incarcerated. The Family Court granted the
modifications without objection from the Cabinet. Father now appeals. Additional
facts will be set forth below as necessary.
Kentucky Revised Statute (“KRS”) 625.090 sets out a four-part test
for involuntary termination of parental rights: (1) was the child abused or
neglected as defined in KRS 600.020(1); (2) did the Cabinet file “a petition with
the court pursuant to KRS 620.180 or 625.050;” (3) was termination of the parental
rights in the child’s best interests; and (4) was at least one of the enumerated
termination grounds of KRS 625.090(2)(a)-(k) in existence? See also Cabinet for
Health and Family Services v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). Because
termination of parental rights involves a fundamental, liberty interest, the statutory
findings must be supported by clear and convincing evidence. Id. at 209. “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.” Cabinet for
Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (quoting M.P.S. v.
Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998)); see also
R.M. v. Cabinet for Health & Fam. Servs., 620 S.W.3d 32, 37 (Ky. 2021).
This Court reviews a Family Court’s factual findings pursuant to the
standard of clear error. Kentucky Rule of Civil Procedure (“CR”) 52.01; see also
-6- M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254 S.W.3d 846, 850
(Ky. App. 2008). Appellate review of the decision to terminate parental rights
under the clear error standard affords great deference to a family court’s findings
and permits a family court “wide discretion in terminating parental rights.” K.H.,
423 S.W.3d at 211. When the “facts are not seriously disputed[,]” the “appellate
courts are disinclined to disturb trial-court findings[.]” R.M., 620 S.W.3d at 38
(footnotes and citations omitted).
Here, Father does not challenge the Family Court’s finding that he
neglected Children. KRS 625.090(1)(a)2. Similarly, Father concedes that the
Cabinet filed a termination petition. KRS 625.090(1)(b). And Father does not
dispute the Family Court’s findings of the best interests of Children.
Rather, Father disputes the Family Court’s findings under KRS
625.090(2). Father first takes issue with the Family Court’s finding under KRS
625.090(2)(a) that he abandoned the Children. “Generally, abandonment is
demonstrated by facts or circumstances that evince a settled purpose to forego all
parental duties and relinquish all parental claims to the child.” J.H. v. Cabinet for
Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985) (quoting O.S. v. C.F.,
655 S.W.2d 32, 34 (Ky. App. 1983)). “Incarceration alone can never be construed
as abandonment as a matter of law.” Id.
-7- However, this Court in J.H. further noted that “absence, voluntary or
court-imposed, may be a factor to consider in determining whether the children
have been neglected[.]” Id. at 664. Indeed, this Court ultimately concluded in that
case that the parent’s “violence” and “criminal lifestyle” resulted in his children
being “substantially and continuously neglected.” Id. This Court recently
reiterated this holding in A.R.D. v. Cabinet for Health and Family Services, 606
S.W.3d 105, 110-11 (Ky. App. 2020). Similarly, in Cabinet for Human Resources
v. Rogeski, 909 S.W.2d 660 (Ky. 1995), the Kentucky Supreme Court held that
“[a]lthough incarceration for an isolated criminal offense may not constitute
abandonment justifying termination of parental rights, incarceration is a factor to
be considered[.]” Id. at 661.
As previously noted, Father was absent from Children’s lives for
extended periods while he was incarcerated. Even during the six-month period in
2022-2023 when he was not incarcerated, Father did not maintain contact with the
Cabinet or work on his case plan. He also incurred additional, new criminal
charges during that brief period. Although Father was involved with his Children
prior to his first incarceration in 2019, he never had custody of or supported
Children – financially or otherwise – at any point in their lives. Given this
abundance of evidence, the Family Court did not clearly err in finding
abandonment.
-8- Father next challenges the Family Court’s findings under KRS
625.090(2)(e) and (g), which provide as follows:
(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
...
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child’s well-being and that there is no reasonable expectation of significant improvement in the parent’s conduct in the immediately foreseeable future, considering the age of the child[.]
Father focuses on the Family Court’s findings under these sections
that there is no reason to expect improvement from him regarding his continued
conduct. Father points to the evidence showing that he completed several
programs during his prior incarceration, including his General Equivalency
Degree, two work-related programs, and a parenting class. Father also notes that
the Cabinet failed to renew his first case plan, and he contends that the Cabinet
disregarded his attempts to contact it during the period that he was released from
-9- This issue necessarily leads to Father’s other argument that the Family
Court improperly compelled his testimony after he had invoked his Fifth
Amendment rights. Father maintains that the Family Court improperly compelled
him to testify regarding matters that might potentially affect his sentencing on the
pending charges in another criminal case. He also asserts that he was prejudiced
by the Family Court’s ruling because his counsel was unable to cross-examine him
after he had invoked the privilege.
We are necessarily concerned about a Family Court’s compelling of
testimony from a person with substantial, documented criminal cases and repeated
incarceration who has raised the issue of his Fifth Amendment rights against self-
incrimination. Absent a privilege, no person may refuse to be called as a witness.
Kentucky Rule of Evidence (“KRE”) 501. However, the Fifth Amendment of the
United States Constitution and Section 11 of the Kentucky Constitution secure a
privilege against self-incrimination. Welch v. Commonwealth, 149 S.W.3d 407,
410 (Ky. 2004). Moreover, the privilege protects a person from being forced to put
forth evidence against himself and does not turn on the type of proceeding, but on
the nature of the statement or admission and the exposure which it invites. Id.
(citing In re Gault, 387 U.S. 1, 49, 87 S. Ct. 1428, 1455, 18 L. Ed. 2d 527 (1967)).
Thus, the privilege “‘can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory,’ in which the witness
-10- reasonably believes that the information sought, or discoverable as a result of his
testimony, could be used in a subsequent state or federal criminal proceeding.”
United States v. Balsys, 524 U.S. 666, 672, 118 S. Ct. 2218, 2222, 141 L. Ed. 2d
575 (1998) (citations omitted).
Generally, the Commonwealth may not call a witness knowing that
the witness will invoke a Fifth Amendment privilege. Clayton v. Commonwealth,
786 S.W.2d 866, 868 (Ky. 1990). Nevertheless, a witness who “will testify as to
some matters but not as to others should ordinarily be allowed to take the stand.”
Adkins v. Commonwealth, 96 S.W.3d 779, 789 (Ky. 2003) (citing Combs v.
Commonwealth, 74 S.W.3d 738, 742-43, 745 (Ky. 2002)). In this case, the Family
Court concluded that the Cabinet’s questions to Father did not involve any matters
that could be used in a subsequent state or federal proceeding or that could
realistically incriminate him in any manner.
In addition, the Family Court was also duly cautious and thus
considered each question individually to ensure none of them infringed on Father’s
constitutional privilege. And for the most part, the questions asked only concerned
Father’s relationship with Children and his contact with the Cabinet during the
relevant time period. The Cabinet asked narrow questions about the periods in
which he had been incarcerated and the nature of the charges against him. The
Cabinet was careful to refrain from asking any questions about the conduct leading
-11- to those charges. Furthermore, the Family Court sustained several objections to
questions that could have any potential for incriminating Father in criminal
conduct.
Moreover, if a witness refuses to answer questions on cross-
examination, the proper remedy is a motion to strike all or part of the witness’s
direct testimony.2 Adkins, 96 S.W.3d at 789; see also Combs, 74 S.W.3d at 744.
Father’s counsel moved to strike Father’s testimony at the close of proof, and the
Family Court denied the motion. We review the Family Court’s decision whether
to strike all or part of a witness’s testimony for abuse of discretion. Id.
Here, Father does not identify any specific prejudice from the Family
Court’s decision to compel him to testify as a witness. Thus, there is a hollowness
to his complaints here. The remedy for the error in this case would have been to
strike his testimony, which he clearly does not want. To the contrary, he
2 At the conclusion of the June 13, 2024, hearing, the Family Court directed the Cabinet’s counsel to draft the findings of fact, conclusions of law, and termination orders. The Family Court adopted the Cabinet’s tendered findings, which included the misstatement that Father’s counsel requested a continuance based on the assertion of his Fifth Amendment rights. The Family Court was within its discretion to adopt tendered findings unless doing so indicates that the decision-making process was not under the control of the judge. Keith v. Keith, 556 S.W.3d 10, 13-14 (Ky. App. 2018). At the August 5, 2024, hearing, the Cabinet’s counsel conceded that this was a misstatement. Thereafter, on August 14, 2024, the Family Court entered a calendar order noting the correction. The Cabinet’s appellate counsel does not acknowledge the correction and continues to assert, incorrectly, that Father’s counsel requested a continuance. However, on appeal, Father’s counsel argues that the Family Court should have postponed the hearing until his pending criminal matter was settled. Since the issue was not presented to the Family Court, we conclude that Father waived any request to continue the proceedings. And he will not be heard on this ground on appeal.
-12- specifically relies on his own testimony to counter the Family Court’s finding
concerning any reasonable expectation of improvement. Also, a remedy could
have involved the granting of a continuance – which Father’s counsel intentionally
declined to request.
We recognize that these circumstances presented a difficult situation
for both the Family Court and Father. The privilege against self-incrimination is of
paramount importance and not to be disregarded. Courts must always be vigilant
about safeguarding and protecting it. The decision to terminate one’s parental
rights is also an extremely important and heavy determination. It has been often
compared to a civil death penalty. Thus, Courts are and should be inclined to hear
as much relevant evidence as possible.
In this case, there could have been a struggle to safeguard
constitutional protections and family rights contemporaneously. But in reality, it
did not occur. The Family Court did not allow a competition of safeguards or
protections. Instead, the Family Court carefully considered his assertion of the
privilege as to each question, concluded that most of the questions did not require
Father to incriminate himself, and sustained objections to those that even had a
remote possibility of doing so. Thus, under the particular facts of this case,
Father’s Fifth Amendment protections were not infringed. Thus, this case does not
warrant reversal as an outcome.
-13- However, before leaving the issue of a parent’s exercise of his Fifth
Amendment rights in termination proceedings, we must emphasize the narrowness
of our holding in this case. Lest our ruling be misconstrued, we believe that it
would have been far better practice for the Family Court to sustain entirely
Father’s objection to testifying at the outset as a prophylactic measure to safeguard
a crucial constitutional right. We stress that it is the Cabinet’s burden to present
clear and convincing evidence of the statutory factors supporting termination. It
does not typically carry its burden by calling a parent as a witness to his own
termination proceeding.
Here, the Family Court allowed the Cabinet to call Father; he offered
only limited testimony in that his incarceration prevented him from contact with
his Children at times; his testimony was collateral to any privileged information,
which was not compelled; the Family Court sustained objections on privilege
grounds preventing Father from actually incriminating himself; and there was no
actual invasion of privileged matter. But we strongly warn against future attempts
to compel such testimony from parents in these circumstances. And we note that
the testimony obtained here was unnecessary to the final determination the Family
Court was called upon to make about termination.
Under other circumstances, such as if the Family Court had used the
compelled testimony as the sole grounds to grant termination, we would likely
-14- reverse the decision and order the testimony sealed. However, the information
gleaned here was entirely innocuous, unrelated, and extraneous to not only the
exercise of Fifth Amendment rights, but also the termination of parental rights. To
be clear, it is error for the Family Court to compel testimony of a parent under
these circumstances; but it is harmless error due to the specific information given
in this case – information Father himself considered important to his own
arguments.
Important to our holding, Father’s testimony alone is not
determinative of whether there is a reasonable expectation of improvement in his
conduct within the foreseeable future considering Children’s ages. The statute
does not require that a parent completely eradicate all problems immediately.
M.E.C., 254 S.W.3d at 855. But the statute “does require that the Cabinet prove by
clear and convincing evidence that there is no reasonable expectation of
improvement.” F.V. v. Commonwealth Cabinet for Health & Fam. Servs., 567
S.W.3d 597, 609 (Ky. App. 2018).
Much of Father’s testimony focused on explaining his absence from
Children’s lives and his failure to follow through on his case plan. Father made
some efforts to improve his situation during his first incarceration. The Cabinet
did not present extensive evidence, but Hacker testified about the reunification
services that the Cabinet offered to Father, as well as his failure to maintain contact
-15- with the Cabinet. KRS 625.090(4). Father failed to follow up with the Cabinet
after he was released, and instead engaged in alleged further criminality resulting
in new charges during that period. While the outcome of Father’s pending Federal
charges is not in the record, the evidence presented at the hearing shows that he is
facing a significant period of incarceration. And, at most, Father has only been
involved in Children’s lives for the 18-month period prior to his incarceration in
2019.
Finally, KRS 625.090(2) only required the Family Court to find “one
(1) or more” of the listed grounds. Since the Family Court properly found
abandonment, any reliance on Father’s testimony to support the findings under
KRS 625.090(2)(e) and (g) does not affect the outcome of this appeal. We would
have so found without his testimony. Under the circumstances, we conclude that
the Cabinet presented clear and convincing evidence that there is no reasonable
expectation of improvement in Father’s circumstances within the foreseeable
future. In the absence of any other objection to the Family Court’s findings, the
Family Court did not clearly err in its findings or abuse its discretion in terminating
Father’s parental rights to Children.
Accordingly, we affirm the orders of the Madison Family Court
-16- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY Emily M. Campbell SERVICES, COMMONWEALTH OF Winchester, Kentucky KENTUCKY:
Kevin Martz Covington, Kentucky
-17-