T.C. v. the Commonwealth of Kentucky and the Cabinet for Health and Family Services

• Court: Court of Appeals of Kentucky
• Decided: March 28, 2025
• Docket: 2024-CA-0575
• Status: Unpublished

Opinion

RENDERED: MARCH 28, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0575-ME

T.C. APPELLANT

APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 23-AD-00022

THE COMMONWEALTH OF KENTUCKY AND THE CABINET FOR HEALTH & FAMILY SERVICES; A.T., MINOR CHILD; AND D.T. APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, L. JONES, AND MCNEILL, JUDGES.

ACREE, JUDGE: Appellant, T.C. (Mother), appeals the Perry Circuit Court’s

May 8, 2024 order terminating her parental rights to A.T. (Child). We affirm. BACKGROUND

As acknowledged in her brief, Mother has “a long-term addiction to

illegal controlled substances.” Appellant’s Br. at 1. Child was born in 2020, and

“was born positive for controlled substances,” leading to the involvement of

Appellee Cabinet for Health & Family Services (Cabinet). Id. Child was removed

from the custody of Mother and the putative father.1 Id. The Perry District Court

found Child was a neglected or abused child. Id. The Cabinet provided Mother

“services to complete in order to regain custody.” Id. at 2. Specifically, Mother

“was asked to complete parenting classes, a mental health assessment, [intensive

outpatient program (IOP) for drug addiction], random drug screens, have

consistent visits with the child, and do a UK [targeted assessment program (TAP)]

assessment.” Id.

The circuit court concluded it was in Child’s best interest Mother’s

parental rights be terminated, based in part on Mother’s insufficient progress in

working her case plan. At the termination hearing, Cabinet worker Brittany Love

testified regarding Mother’s progress. In the course of her testimony, Love related

Mother had enrolled in an IOP at Primary Care Centers of Eastern Kentucky

(Primary Care) in February of 2024, but was discharged shortly thereafter due to

1 Child’s putative father has not appealed the circuit court’s order, which also terminated his parental rights to Child.

-2- noncompliance, as Mother missed five days in a row. Mother objected to Love’s

statement on grounds of failure to establish a proper foundation, contending that

unless there was some record, Love’s statement was “just hearsay.” V.R.2 4/5/24

9:57:10.

The Cabinet countered that Love was merely relying on the Cabinet’s

“business records” with respect to her statement Mother had been discharged from

her IOP at Primary Care due to noncompliance. Love explained she would have

received that information in a phone call or Zoom meeting and would have

documented it. Mother renewed her objection, contending the Cabinet could not

rely on the business records exception to hearsay as no “physical document” had

been admitted, and further contending that even if there was a business record,

there was “still a second layer of hearsay there,” as Love received the information

from a party not present to testify. V.R. 4/5/24 10:10:00. Mother moved to strike

Love’s statement Mother had been discharged due to noncompliance. V.R. 4/5/24

10:01:30. The Cabinet moved to admit its records. When the circuit court

queried Mother’s counsel as to whether Mother objected, counsel started, “I’ll

renew my . . . ” but then stated “no objection.” V.R. 4/5/24 10:02:00. Love

continued her testimony regarding Mother’s discharge from the IOP at Primary

2 Video Record.

-3- Care and went on to testify that Mother subsequently enrolled in an IOP at

Mountain Comprehensive Care Center (Mountain Comp).

The Cabinet’s records admitted as an exhibit include “Service

Recordings.” An entry from February 19, 2024, reflects Love documented being

“informed that [Mother] still has not started IOP and at this time will be discharged

due to noncompliance – due to missing 5 days in a row.” Petitioner’s Ex. 7,

“Service Recordings” at 21.

In concluding Mother had shown insufficient progress in working her

case plan, the circuit court described Mother repeatedly failing drug screens and

Mother’s inconsistent visitation with Child. The circuit court reached this

conclusion even accepting Mother’s contention “she had enrolled in an IOP with

Mountain Comp . . . after the initial assessment for Primary Care’s program

showed that she would have been required to pay out of pocket for that program.”

R.3 at 170. The circuit court reasoned:

While [Mother] has shown some progress on her case plan, most of it has only come within the last few months, despite the child being in care for over three and a half years, which represent almost all her life. Even after this length of time, [Mother] has not shown a significant likelihood that she will be able to care and provide for the child in the foreseeable future.

3 Record.

-4- Id. Mother contends her progress was sufficient to preclude termination of her

parental rights to Child.

STANDARD OF REVIEW

A circuit court may terminate parental rights pursuant to KRS4

625.090. Of particular relevance to the matter sub judice, a circuit court may only

terminate parental rights if “[t]ermination would be in the best interest of the

child.” KRS 625.090(1)(c). In making the best interest determination, a circuit

court is required to consider those factors listed in KRS 625.090(3), including KRS

625.090(3)(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.”

A circuit court “has wide discretion in terminating parental rights.”

Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014).

We undertake review pursuant to a “clearly erroneous standard which focuses on

whether the [circuit] court’s order of termination was based on clear and

convincing evidence.” Id. Reviewing for clear error, we are “obligated to give a

great deal of deference to the [circuit] court’s findings and should not interfere

with those findings unless the record is devoid of substantial evidence to support

4 Kentucky Revised Statutes.

-5- them.” Id. As is well-established, “[c]lear 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.” M.P.S. v. Cabinet for Human

Resources, 979 S.W.2d 114, 117 (Ky. App. 1998). A circuit court’s assessment of

evidence as clear and convincing is tested for an abuse of discretion. A.F. v. L.B.,

572 S.W.3d 64, 75 (Ky. App. 2019).

ANALYSIS

Mother alleges two errors on appeal. First, Mother contends the

circuit court erred in admitting Cabinet records allegedly containing “double

hearsay.” Second, Mother contends the circuit court erred in concluding

termination is in Child’s best interest, alleging the circuit court failed to give due

consideration to Mother’s “substantial improvement” and Child’s age. We reject

both arguments.

I. The circuit court’s admission of Cabinet records.

Mother concedes “records of a regularly recorded business activity

may be admissible as an exception to the hearsay rule” pursuant to KRE5 803(6).

Appellant’s Br. at 5. Mother nonetheless contends, “The [C]abinet records

admitted into evidence in this case were plainly double hearsay and should not

5 Kentucky Rules of Evidence.

-6- have been admitted or referenced to.” Id. at 6. Mother directs us to KRE 805 and

Prater v. Cabinet for Human Resources, Commonwealth of Ky., 954 S.W.2d 954,

956 (Ky. 1997), to support her contention.

To begin, we question whether Mother has properly preserved this

issue. Mother objected to Love’s testimony on grounds of failure to establish a

proper foundation and hearsay. She subsequently renewed her objection and

moved to strike Love’s statement Mother had been discharged from her IOP at

Primary Care due to noncompliance. However, after the Cabinet moved to admit

its records as an exhibit, the circuit court queried Mother’s counsel as to whether

Mother objected, and the record reflects Mother’s counsel started to renew

Mother’s objection, but then relented and stated “no objection.”

For its part, the Cabinet does not contest Mother’s preservation, but

does point out that before the circuit court, Mother objected only to Love’s

statement Mother had been discharged from her IOP at Primary Care due to

noncompliance. The Cabinet faults Mother’s brief for furnishing “a much more

general, blanket objection than her argument to the [circuit] court.” Appellee’s Br.

at 7. Of course, “Our jurisprudence will not permit an appellant to feed one kettle

of fish to the trial judge and another to the appellate court.” Owens v.

Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017). As the Cabinet does not

contest Mother’s preservation of this issue, we undertake review, but we limit our

-7- review to consideration of the specific statement Mother objected to at the

termination hearing.6

Mother objected to Love’s statement Mother had been discharged

from her IOP at Primary Care due to noncompliance, which Love derived from the

Cabinet’s records. As the Cabinet points out, the circuit court did not actually rely

on that statement in making its best interest determination, but rather accepted

Mother’s contention regarding the circumstances of her discharge, that Mother

“had enrolled in an IOP with Mountain Comp . . . after the initial assessment for

Primary Care’s program showed that she would have been required to pay out of

pocket for that program.” R. at 170. Mother’s reliance on Prater is therefore

misplaced, as that case makes clear: “Admission of incompetent evidence in a

bench trial can be viewed as harmless error . . . if the trial judge did not base his

decision on that evidence[.]” Prater, 954 S.W.2d at 959 (emphasis deleted). As

Love’s statement appears to have played no role in the circuit court’s best interest

determination, any error pertaining to admission of the Cabinet’s records, from

which Love’s statement was derived, is harmless.

6 Even were we inclined to undertake a more far-reaching review of the circuit court’s admission of the Cabinet’s records, as the Cabinet observes, Mother’s brief fails to identify specific instances of “double hearsay” in those records or explain how the circuit court’s findings reflect reliance on any such “double hearsay.” As discussed herein, error which does not impact the outcome is harmless error.

-8- II. The circuit court’s best interest determination.

Mother argues the circuit court erred in making its best interest

determination, in particular in its consideration of KRS 625.090(3)(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.” Mother contends she

made “significant adjustments and efforts,” that evidence of such was

“overwhelming,” and she faults the circuit court for reducing “her progress to

barely a paragraph of boilerplate language from the statute.” Appellant’s Br. at 8.

Mother also contends the circuit court failed to consider Child’s age.

Mother does not allege errant factual findings, but instead takes issue

with the circuit court’s weighing of facts, arguing the circuit court gave short shrift

to her progress and Child’s age. Had the circuit court simply ignored all evidence

of Mother’s progress and declined any consideration of Child’s age, we might well

be confronted with an abuse of discretion. But the circuit court specifically

explained why it placed little weight on Mother’s progress, detailing a lengthy

history of failed drug screens and inconsistent visitation with Child against merely

“some progress” that had “only come within the last few months,” despite Child

being removed from Mother’s care “for over three and a half years . . . almost all

-9- of [Child’s] life.” Mother does not contest the circuit court’s finding that her

progress had “only come within the last few months.”

The circuit court discounted but did not ignore Mother’s progress.

And contrary to Mother’s assertion the circuit court failed to consider Child’s age,

the circuit court specifically cited Child’s age in discounting her progress. The

circuit court essentially found Mother’s progress belated given Child’s age.

Mother acknowledges she “took years to get on the right track.” Appellant’s Br. at

9 (emphasis added). The circuit court did not abuse its discretion in its weighing

of months against years. Mother’s recent progress is commendable, and Mother

may well feel the circuit court erred in discounting that progress, but the circuit

court’s task was to determine the best interest of Child, whose best interest Mother

discounted for the bulk of those years.

CONCLUSION

Based on the foregoing, the Perry Circuit Court’s May 8, 2024 order

terminating Mother’s parental rights to Child are affirmed.

ALL CONCUR.

-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE THE COMMONWEALTH OF Ryan Mosley KENTUCKY AND THE CABINET Hindman, Kentucky FOR HEALTH & FAMILY SERVICES:

Kevin Martz Covington, Kentucky

-11-