RENDERED: JULY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-1013-ME
W.F.B. APPELLANT
APPEAL FROM PIKE FAMILY COURT v. HONORABLE W. KENT VARNEY, JUDGE ACTION NO. 22-AD-00052
CABINET FOR HEALTH AND FAMILY SERVICES; B.X.L., A MINOR CHILD; B.M.L.; B.N.L.; AND P.L. APPELLEES
AND
NO. 2023-CA-1014-ME
APPEAL FROM PIKE FAMILY COURT v. HONORABLE W. KENT VARNEY, JUDGE ACTION NO. 22-AD-00053 CABINET FOR HEALTH AND FAMILY SERVICES; J.K.L., A MINOR CHILD; B.M.L.; B.N.L.; AND P.L. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.
ECKERLE, JUDGE: Appellant, W.F.B. (“Mother”), appeals from orders of the
Pike Family Court terminating her parental rights and judgments allowing B.M.L.
and P.L. (“Grandparents”) to adopt Appellees, B.X.L. (born January 2017) and
J.K.L. (born May 2018) (collectively, “Children”). Mother raises an unpreserved
constitutional challenge to the involuntary termination and adoption provisions of
KRS1 199.502, which we decline to address based on controlling authority.
Mother further argues that the Family Court failed to comply strictly with the
provisions of KRS Chapter 199. We deem these alleged errors to be harmless.
Finally, we conclude that the Family Court’s statutory findings were not clearly
erroneous. Consequently, the Family Court did not abuse its discretion in
terminating Mother’s parental rights or granting the judgments of adoption.
Hence, we affirm in both appeals.
1 Kentucky Revised Statutes.
-2- I. Factual and Procedural History
Mother and Appellee, B.N.L. (“Father”), are the parents of Children.
Grandparents are the parents of Father and Grandparents of Children. In
November of 2019, Appellee, the Cabinet for Health and Family Services (“the
Cabinet”), removed Children from Mother and Father.
Both Mother and Father had long histories of substance abuse.
Mother had an emergency protective order (“EPO”) in place against Father, and
the Cabinet recorded a history of neglect at the home where Mother was living.
Following the Cabinet’s filing of a dependency/neglect/abuse (“DNA”) petition,
the Family Court placed Children in the temporary custody of Grandparents.
Mother attended inpatient rehabilitation in early 2020. Thereafter, on
February 20, 2020, Mother stipulated to a finding of dependency. The Family
Court then returned Children to Mother.
However, on August 25, 2020, the Cabinet filed a second DNA
petition against Mother, alleging that she was residing at the home of Anthony
Baker (“Baker”), who had convictions for drug activity and unlawful transaction
with a minor. The Cabinet also asserted that Mother had neglected Children by
being transient, failing to take required drug screens, and continued use of
controlled substances. In addition, the Cabinet complained that Mother allowed
Baker to create a video of her and Children naked in the bathtub. That video was
-3- later posted to social media. The Cabinet also substantiated neglect against Mother
by finding that she and Children were present at the scene of an overdose death.
Mother left that scene while intoxicated and without proper car restraints for
Children. Finally, the Cabinet claimed that Mother took Children to the
emergency room and reported that Baker had touched J.K.L. on her vagina and
buttocks. The Cabinet filed a third DNA petition against Mother based on the
bathtub incident and another incident of alleged child exploitation.
On October 6, 2020, the Cabinet removed Children from Mother and
placed them in the temporary custody of Grandparents. Children have remained in
their custody since that time. In October 2021, Grandparents filed a separate
custody action, in which they were awarded permanent custody of Children. At
the same time, the Family Court also entered an order prohibiting Mother from
contact with Children. Mother then ceased contact with the Cabinet. She also
overdosed three times.
In January of 2022, Mother was indicted for trafficking in narcotics
and subsequently convicted of possession of narcotics for the same crime. She
received a favorable, diverted sentence, in part for her willingness to testify against
a co-defendant. After benefiting from the diversion, Mother voluntarily checked
herself into two successive, inpatient treatment programs, followed by an
outpatient treatment program. Mother later resided at a sober living facility in
-4- Lexington. While Mother has bought some clothes and presents, she has not
provided any significant support for Children for quite some time.
On June 20, 2022, the Grandparents filed petitions for involuntary
adoption of Children pursuant to KRS 199.502. Father consented to the
termination of his parental rights and the adoption of Children. The matter
proceeded to an evidentiary hearing, which was held on July 5 and July 25, 2023.
The Family Court took judicial notice of the proceedings in the related DNA
petitions, as well as the custody action. However, the records of those actions were
not introduced. The last Cabinet worker for the family, Krystal Dean, testified
regarding these cases, as well as the Cabinet’s efforts toward reunification.
Children’s guardian ad litem (“GAL”) testified on her history with Children and
her recommendations regarding the adoption petition. However, GAL did not file
her report with the Family Court until after the hearing. Mother, Father, and
Grandparents also testified at the hearing.
Thereafter, on August 4, 2023, the Family Court entered separate
Findings of Fact, Conclusions of Law, and Orders terminating Mother’s parental
rights to Children. In pertinent part, the Family Court found that Mother:
abandoned Children for more than 90 days; continuously or repeatedly inflicted or
allowed to be inflicted upon Children, by other than accidental means, physical
injury or emotional harm; caused or allowed Children to be sexually abused or
-5- exploited by Baker; continuously or repeatedly failed or refused to provide or has
been substantially incapable of providing essential parental care and protection for
Children for a period of not less than six months, and there is no reasonable
expectation of improvement considering the age of the children; and continuously
or repeatedly failed to provide or is incapable of providing essential food, clothing,
shelter, medical care, or education reasonably necessary for Children’s well-being
for reasons other than poverty alone, and there is no reasonable expectation of
improvement in the immediately foreseeable future considering Children’s age.
Based upon these findings, the Family Court concluded that it would
be in the best interests of Children to terminate Mother’s parental rights. On the
same day, the Family Court entered separate Judgments allowing Grandparents to
adopt Children. On September 21, 2023, the Family Court entered Amended
Findings of Fact and Conclusions of Law to correct certain typographical errors.
Mother appeals from these judgments regarding both Children. Additional facts
will be set forth below as necessary.
II. Constitutional Issue
Mother first argues that KRS 199.502 unconstitutionally deprives her
of substantive due process by permitting private individuals to seek termination of
parental rights by adoption and by allowing termination of her parental rights
without a separate termination proceeding under KRS 625.090. Parties are
-6- required to notify the Attorney General of a challenge to the constitutionality of a
statute while the matter is pending in Circuit Court. KRS 418.075. Our Supreme
Court has held that strict compliance with the notification provisions of KRS
418.075 is mandatory, and Appellate Courts will generally refuse to address
arguments that a statute is unconstitutional unless the notice provisions of KRS
418.075 has been fully satisfied. Benet v. Commonwealth, 253 S.W.3d 528, 532
(Ky. 2008). See also Craft v. Commonwealth, 483 S.W.3d 837, 840 (Ky. 2016).
In this case, Mother did not raise the constitutionality of KRS 199.502 to the
Family Court, and she notified the Attorney General of her attempted challenge for
the first time while this matter was on appeal to this Court. As a result, the issue is
not preserved for our review.
Nevertheless, Mother argues that this Court should address the
constitutionality of KRS 199.502 based on the implications to her fundamental
rights as a parent. Mother relies heavily on Justice Lambert’s dissent in M.S.S. v.
J.E.B., 638 S.W.3d 354 (Ky. 2022) (Lambert, J., dissenting), in which she took the
position that KRS 199.502 impermissibly denies natural parents due process under
the Kentucky Constitution. Id. at 373-74. The dissent also posited, even though
the issue was not raised below, that “the substantive due process guaranteed by the
Kentucky Constitution requires a separate hearing on the termination of parental
rights before a court can enter an order effectuating a non-consensual adoption.”
-7- Id. at 377. Consequently, the dissent wanted a ruling that a proceeding to
terminate parental rights must take place and conclude before the adoption, and
only the Commonwealth, through the Cabinet, a County or Commonwealth
Attorney, or a parent, has standing to file such a petition to terminate a natural
parent’s rights. Id. The dissent further opined that KRS 199.502 fails to provide
the full panoply of due process rights afforded to parents under KRS Chapter 625.
Id. at 372-74.
However, the majority in M.S.S. expressly rejected the dissent’s
reasoning. First, the majority noted that the constitutional challenge was not
properly before the Court. Id. at 363. The majority also rejected the dissent’s
conclusion that KRS 199.502 deprives a natural parent of substantive due process
rights:
However, the dissent fails to identify why the protections afforded to parents whose rights are sought to be terminated by way of an adoption without consent are constitutionally deficient, even assuming those protections are “significantly lower” than those afforded to parents subject to involuntary termination under KRS 625.050. Similarly, the dissent does not identify why the fact that a private party may petition the court for an adoption without consent, which if granted, simultaneously terminates the rights of the biological living parents, renders that process constitutionally deficient.
638 S.W.3d at 364.
-8- This Court is bound to follow applicable precedents established in the
opinions of the Supreme Court and its predecessor court. SCR2 1.030(8)(a). See
also Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000). The dissent in
M.S.S. is not controlling precedent. At a minimum, the Supreme Court’s majority
opinion in M.S.S. expressly held that KRS 199.502 does not facially violate the
substantive due process rights of natural parents.3 In light of this binding holding,
and since the issue has not been otherwise preserved, we decline to address this
subject further.
III. Access to Sealed Portions of the Record
Mother next complains that her due process rights were violated when
she was denied access to the full and complete Trial Court record. She focuses on
the sealed portion of the records containing the Family Court Judge’s notes from
the evidentiary hearing. Prior to briefing on this case, Mother’s counsel filed a
motion, pursuant to RAP4 28(B), to unseal and view the sealed documents in the
Trial Court’s file. This Court’s motion panel denied the motion, but directed
Mother’s counsel to file the motion with the Family Court. Thereafter, the Family
Court granted the motion with respect to the sealed exhibits, but denied the motion
2 Kentucky Rules of the Supreme Court. 3 We must also note that the Cabinet was named as a party to the adoption petitions, and it remained as a party throughout the proceedings and on appeal. 4 Kentucky Rules of Appellate Procedure.
-9- with respect to the Trial Judge’s notes. Mother maintains that the continued
sealing of this portion of the record restricts her ability to brief the case adequately
on appeal.
We question whether such personal notes should have been included
in the record, under seal or otherwise. We recognize that some Trial Courts have
included such notes in the record in the past. And in certain cases, the Trial
Judge’s notes may be necessary to preserve the record fully. But here, the notes
have little significance to this Court’s review. It is well-established that any Court
speaks only through its “written orders entered upon the official record.” Oakley v.
Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (citing Kindred Nursing Centers
Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010)).
We would also point out that this Court is entitled to review sealed
portions of the record. The documents remaining under seal are simply the Family
Court Judge’s personal notes taken to aid in the preparation of the Findings of Fact
and Conclusions of Law. In its order denying the motion to unseal the records, the
Family Court stated that the notes “were fully incorporated into the Findings of
Fact and Conclusions of Law.” Given the limited relevance, if any, of these notes,
Mother was not prejudiced by the denial of her motion to unseal the records.
-10- IV. Strict Compliance with Adoption Statute and Procedures
Thus having dispensed with the arguments of constitutionality and
record sealing, we now turn to the substantive merits of this appeal. This matter
proceeded as a non-consensual adoption under KRS Chapter 199. “An adoption
without the consent of a living biological parent is, in effect, a proceeding to
terminate that parent’s parental rights.” M.S.S., 638 S.W.3d at 359 (citation
omitted). As such, we apply the same standard of review as in termination of
parental rights cases. “A family court’s termination of parental rights will be
reversed only if it was clearly erroneous and not based upon clear and convincing
evidence.” Id. at 359-60 (citation omitted). “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.” Id. at 360 (citation omitted).
Additionally, “[s]ince adoption is a statutory right which severs forever the
parental relationship, Kentucky courts have required strict compliance with the
procedures provided in order to protect the rights of the natural parents.” Id.
(citing Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997)).
Under KRS 199.502(1), “an adoption may be granted without the
consent of the biological living parents of a child if it is pleaded and proved as part
of the adoption proceeding that any of the following [nine] conditions exist with
-11- respect to the child[.]” In this case, the Family Court made findings under five of
those conditions:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
...
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited; [and]
(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[.]
-12- Mother first argues that Grandparents failed to plead specifically the
elements of KRS 199.502(c) or (f). Consequently, she contends that the Family
Court could not base its findings on those elements.
However, KRS 199.502(1) merely requires pleading and proof of any
one of the specified conditions. Therefore, Grandparent’s failure to plead the other
conditions does not render insufficient the Family Court’s findings under the
pleaded conditions.5
We are more concerned with the Family Court’s failure to comply
strictly with other requirements of KRS Chapter 199. Specifically, and as noted
above, GAL did not file her report until after the evidentiary hearing. KRS
199.515 provides, in pertinent part, that:
After the report of the guardian ad litem, if any, for the child and the report [of the Cabinet] required by KRS 199.510 have been filed, the court at any time on motion of its own or that of any interested party may set a time for a hearing on the petition to be conducted in chambers in privacy, except as hereinafter provided.
Mother argues that, under this section, the Family Court may only
schedule a hearing on the adoption petition after the filing of GAL’s report. Since
the Family Court held the hearing before the filing of the report, Mother maintains 5 Nonetheless, it is worth noting that some practitioners plead the grounds with specific reference to the subsections of the statute and even parrot the wording in the subsections. This practice removes any question of sufficient pleading. But Kentucky has a policy of notice pleading, and the statutory grounds may be adequately paraphrased. Even so, in this case, there was insufficient notice pled for subsections (c) and (f) of KRS 199.502(1) on some of the conditions.
-13- that the Family Court failed to comply strictly with all of the statutory
requirements for adoption, rendering the termination and adoption judgments
invalid. Grandparents and GAL argue that the late filing of the report was, at most,
harmless error.
As noted above, adoption is a creature of statute, generally requiring
strict compliance with the statutory requirements. Day, supra. But those statutory
requirements are not always subject to such a high standard. In E.L.T. v. Cabinet
for Health & Family Services, 647 S.W.3d 561 (Ky. App. 2022), a termination
case, this Court held that substantial compliance may be sufficient where the
purpose of the statute is accomplished and no harm results. Id. at 566 (citing
Webster County v. Vaughn, 365 S.W.2d 109, 111 (Ky. 1962)). “In other words, ‘if
the directions given by the statute to accomplish a given end are violated, but the
given end is in fact accomplished, without affecting the real merits of the case,
then the statute is to be regarded as directory merely.’” Id. (quoting Knox County
v. Hammons, 129 S.W.3d 839, 843 (Ky. 2004)).
In E.L.T., the issue concerned compliance with KRS 625.090(6),
which requires a circuit court to enter findings of fact, conclusions of law, and a
decision regarding a termination petition within 30 days of the hearing and
argument of counsel. Despite the apparently mandatory language of this section,
this Court concluded that a trial court’s untimely filing of termination findings and
-14- an order was subject to analysis under the harmless-error standard under CR6
61.01. Id. Because the parties suffered no prejudice due to the delay in entering
the orders, and the parent’s substantial rights were not violated, this Court found no
reversible error. Id. at 566-67.
Termination of parental rights under KRS Chapter 199 is no less
significant than termination of parental rights under KRS Chapter 625. Similarly,
the timing requirement of KRS 199.515, like the requirement in KRS 625.090(6),
is fundamentally procedural in nature and does not address the substantive
elements for termination of parental rights. Under the specific facts of this case,
we conclude that this matter is subject to harmless-error analysis.
We recognize that the purpose of KRS 199.515 is to ensure that a
parent has an adequate opportunity to review a GAL’s recommendations prior to
an evidentiary hearing. However, here, Mother concedes that this issue was not
preserved for review by an objection prior to or at the hearing. The Family Court
accomplished the purpose of KRS 199.515 by ensuring that GAL’s
recommendations were made on the record and that her report was introduced.
GAL testified at length regarding her conclusions as contained in the report.
Mother had a full opportunity to cross-examine GAL at the hearing. Moreover,
Mother does not allege that she was unfairly prejudiced by the filing of GAL’s
6 Kentucky Rules of Civil Procedure.
-15- report after the hearing. Had she raised this issue timely and properly before the
Family Court, it could have easily corrected any issues. While we do not condone
the failure to comply strictly with all of the statutory requirements, we can find no
reversible error in this case.
For similar reasons, we find no reversible error on Mother’s other
claims of procedural error. Those alleged errors do not arise from non-compliance
with the statutory requirements under KRS Chapter 199. Rather, Mother points to
several alleged violations of the Family Court Rules of Practice and Procedure
(FCRPP). In particular, she argues that Grandparents failed to file a witness and
exhibit list as required by FCRPP 7(1), and that Grandparents failed to admit a
certified copy of the DNA and custody court records as required by FCRPP 32(3).
However, FCRPP 1(5) expressly provides that the Civil Rules and the
Rules of Evidence “shall apply to family law cases to the extent that they are not
inconsistent with these rules.” Thus, the harmless-error standard of CR 61.01
remains applicable to these matters. Again, Mother did not preserve her objections
to these alleged errors. None of the parties filed a witness list. Moreover, Mother
does not claim that she was unfairly prejudiced by the failure to require the parties
to do so.
-16- Similarly, Mother did not object to the failure to admit the related
DNA and custody records. Yet, KRE7 201 permitted the Family Court to take
judicial notice of other court records, provided that the facts established by the
records are not subject to reasonable dispute. Lage v. Esterle, 591 S.W.3d 416,
421 (Ky. App. 2019) (citing Rogers v. Commonwealth, 366 S.W.3d 446, 451 (Ky.
2012)). We recognize that the best evidence rule, set out in KRE 1002, usually
requires parties to introduce the most authentic evidence that is within their power
to present. See Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 114 (Ky.
2012). Furthermore, both FCRPP 32(3) and KRE 1005 usually require
introduction of certified copies of court records. But in the absence of any
showing of prejudice, any error must be deemed harmless.
V. Sufficiency of the Evidence
Finally, Mother argues that the Family Court’s findings on the
statutory factors supporting termination of her parental rights are not supported by
substantial evidence. In M.S.S., supra, our Supreme Court set forth the applicable
standard of review as follows:
[T]rial courts are afforded a great deal of discretion in determining whether termination of parental rights is appropriate. A family court’s termination of parental rights will be reversed only if it was clearly erroneous and not based upon clear and convincing evidence. Clear
7 Kentucky Rules of Evidence.
-17- 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. Under this standard, we are obligated to give a great deal of deference to the family court’s findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them.
Id. at 359-60 (internal quotation marks and citations omitted).
“The test for abuse of discretion is whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). More
specifically, a court abuses the discretion afforded it when “(1) its decision rests on
an error of law . . . or a clearly erroneous factual finding, or (2) its decision . . .
cannot be located within the range of permissible decisions.” Miller v. Eldridge,
146 S.W.3d 909, 915 n.11 (Ky. 2004) (emphasis omitted). The clearly erroneous
standard applies to the Family Court’s factual findings. Miller, 146 S.W.3d at 916.
A finding of fact is clearly erroneous if it is not supported by substantial evidence.
Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003). “Substantial evidence is
evidence, when taken alone or in light of all the evidence, which has sufficient
probative value to induce conviction in the mind of a reasonable person.” Id.
(citing Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.
1998)).
-18- As discussed above, Mother argues that Grandparents failed to plead
the statutory grounds for termination under KRS 199.502(1)(c) or (f). Thus, she
focuses on the Family Court’s findings under KRS 199.502(1)(a), (e), and (g).
Mother first challenges the Family Court’s finding that she abandoned the children
for more than 90 days. The Family Court found that Mother had no contact with
the children since October 2021. The Family Court also found that Mother made
no significant effort to seek contact during this time.
Mother concedes that she has not seen the children since October
2021. She argues that the Family Court failed to consider that the no-contact order
prevented her from having direct contact. She further contends that the Family
Court misconstrued her prior request to release pandemic stimulus funds held by
the clerk’s office. Mother asserts that she sought these funds to hire and pay an
attorney to file a motion for visitation and custody. Mother argues that these
efforts are inconsistent with the Family Court’s finding that her actions
demonstrated a “settled purpose to forego all parental duties and relinquish all
parental claims to the child.” S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App.
2010) (citing O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983)).
The Family Court recognized the effect of the no-contact order but
noted that Mother had opportunities to file motions in the underlying actions to try
to lift the restrictions on her contact with Children. Apart from a single effort to
-19- release the stimulus funds, Mother never followed through to renew contact with
Children. We agree with the Family Court that this conduct was relevant to
support a finding of abandonment.
Mother also contends that the Family Court found abandonment even
though she was incarcerated for six months preceding the filing of the adoption
petition. In J.H. v. Cabinet for Human Resources, 704 S.W. 2d 661, 663 (Ky. App.
1985), this Court recognized that “[i]ncarceration alone can never be construed as
abandonment as a matter of law.” However, this Court 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. Similarly, in
Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660 (Ky. 1995), the
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.
And recently, in A.R.D. v. Cabinet for Health and Family Services,
606 S.W.3d 105, 110-11 (Ky. App. 2020), this Court once again recognized that “a
parent’s incarceration does not, by itself, always establish that parental rights
should be terminated.” However, the Court also noted that absence and the choice
-20- of a “criminal lifestyle” remain factors for consideration by the trial courts. Id. at
111. Considering the extended period of time during which Mother was absent
from Children’s lives, the Family Court did not clearly err in finding abandonment.
Mother also takes issue with the Family Court’s findings under KRS
199.502(1)(e) and (g). Mother does not contest the Family Court’s findings that
she failed to provide essential parental care and protection for Children, or that she
failed to provide essential food, clothing, shelter, medical care, or education
reasonably necessary and available for Children’s well-being. As previously
discussed, Mother provided no support or care for Children since October 2021
apart from a few clothes and gifts. Rather, Mother focuses on the sufficiency of
the Family Court’s findings that there is no reasonable expectation of improvement
in her circumstances in the immediately foreseeable future considering the age of
Children.
Mother points to her recent completion of residential treatment and
therapy for her substance-abuse issues. Mother is living in a sober-living facility.
She attends group therapy several times a week and is enrolled in college to
become a trauma therapist. Based on her significant and documented
improvement, Mother argues that the Family Court clearly erred in finding that
there was no reasonable expectation of improvement in the immediately
foreseeable future.
-21- In M.E.C. v. Commonwealth, Cabinet for Health & Family Services,
254 S.W.3d 846 (Ky. App. 2008), this Court reversed a termination order where
the trial court had based its assessment solely on the parent’s past conduct without
any significant evaluation of future parenting capacity. Id. at 854-55. This Court
noted that the statute does not require that the parent completely and immediately
eradicate all problems. Id. at 855. See also F.V. v. Commonwealth Cabinet for
Health & Fam. Servs., 567 S.W.3d 597, 608-09 (Ky. App. 2018). But in M.E.C.,
there was no evidence that the parent ever emotionally or physically abused her
Here, however, there were substantiated claims of emotional abuse
and possible sexual exploitation. Even if Children’s naked photos do not amount
to exploitation, Mother demonstrated a profound lack of judgment in a serious
matter by allowing them to be taken and posted to social media. There is also
Mother’s deeply concerning conduct surrounding the overdose death, as well as
Mother’s dangerous actions involving Children following that death. And she still
fails to address the seriousness of her actions in allowing Children to be exposed to
domestic violence and criminal activity. Furthermore, Mother had a long history
of neglecting Children and criminal conduct well after Children’s most-recent
removal, resulting in the felony charges against her. Mother did not begin to make
any progress until after her incarceration.
-22- Moreover, the Family Court addressed Mother’s recent progress as it
related to her future parenting capacity, stating:
The Court does appreciate her sobriety, but currently and for the immediately foreseeable future the Court does not see the expectations of her improvement. [Mother] presented no plan of what to do if the children were returned to her. She has no place to live with the children and does not know what school system the children would be attending. Given her brief period of sobriety combined with the lack of a plan for independent living, it is not immediately foreseeable to this Court that [Mother’s] situation has improved enough to see when she would be able to be the parent these children deserve considering their age.
The Family Court’s findings on this matter are consistent with and
supported by the evidence presented. Although Mother’s recent efforts are
commendable, they neither demonstrate that the Family Court failed to base its
decision on sufficient evidence nor that it clearly erred in its finding that there is no
reasonable expectation of improvement in her circumstances that would warrant
reunification in the foreseeable future. While all hope that Mother has finally
made the determination to stay on the right path for herself and everyone else, hope
alone is not evidence. We also note the uncontested evidence that Children are
well adjusted in Grandparents’ care. Because the Family Court’s findings on the
pleaded grounds were supported by substantial evidence, we need not address the
sufficiency of the evidence on the other grounds found by the Family Court.
-23- VI. Conclusion
Accordingly, we affirm the findings of fact, conclusions of law,
orders, and judgments of the Pike Family Court terminating Mother’s parental
rights and allowing Grandparents to adopt Children.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES B.M.L. AND P.L.: Kelly Kirby Ridings London, Kentucky Tammy C. Skeens Pikeville, Kentucky
BRIEF FOR GUARDIAN AD LITEM:
Amber Hunt Sisco Pikeville, Kentucky
-24-