565 S.W.3d 648
Ky. Ct. App.2018Background
- Father (putative) had two children removed from his custody after he stipulated to using inappropriate corporal punishment (whipping daughter with paint sticks wrapped in duct tape); children entered CHFS custody in June 2016.
- CHFS developed a reunification plan: abusive-parenting class (requiring an accountability statement), supervised visitation, random drug screens, substance assessment after positives. Father attended two abusive-parenting classes but refused to sign an accountability statement and was discharged; he later moved to Michigan and completed non-substitutable "nurturing" parenting classes.
- CHFS filed TPR petitions (May 4, 2017) alleging abandonment and KRS 625.090(2)(e) and (g) grounds (failure/inability to provide essential care and essentials for well-being with no reasonable expectation of improvement).
- ICPC evaluation denied placement in Michigan: inadequate bedrooms, insufficient income, household concerns about caring for the children, and Father’s stated reliance on corporal punishment.
- Trial court found CHFS proved grounds by clear and convincing evidence, found termination in children’s best interests, and ordered TPR and custody to CHFS. Father appealed; appellate court reviewed for clear error and affirmed.
Issues
| Issue | Father’s Argument | CHFS’s Argument | Held |
|---|---|---|---|
| Whether CHFS proved statutory grounds for involuntary TPR (abandonment; KRS 625.090(2)(e), (g)) | Father argued he did not abandon the children because he maintained phone contact, worked, and sought classes in Michigan; housing/employment in Michigan showed ability to provide | CHFS argued Father failed to provide support or in-person parenting (no child support, only two supervised visits in a year), refused court-ordered services, and lacked suitable housing/finances in Michigan | Held: Court affirmed TPR — clear and convincing evidence supported abandonment and (e) and (g) grounds |
| Whether CHFS made reasonable efforts to reunify the family | Father argued CHFS should have offered alternative programs when he was discharged from abusive-parenting class and after he relocated | CHFS argued it made reasonable referrals (abusive-parenting, substance services, supervised visits); Father refused to accept responsibility and thus could not complete the required program; alternatives would not satisfy court’s goal | Held: Court held CHFS made reasonable efforts; it was not required to find substitute programs that lacked the accountability component |
| Whether Father was given sufficient time/opportunity to change | Father argued he had taken steps (work, drug tests, classes) and needed more time | CHFS contended steps were limited and did not address the central issue: refusal to accept responsibility for abuse and no tangible benefit to children | Held: Court rejected claim; Father offered no evidence that more time would produce required change |
| Procedural/appellate preservation and record completeness | Father challenged procedural matters and sought reconsideration of fee precedent (A.C.) | CHFS and court noted issues were not properly preserved and the record on appeal was incomplete; fee challenge not raised below | Held: Court declined to consider the fee/precedential challenge and admonished counsel for inadequate preservation; reviewed the preserved issues and affirmed |
Key Cases Cited
- Cabinet for Health & Family Servs. v. K.H., 423 S.W.3d 204 (Ky. 2014) (standard of review and deference in TPR appeals)
- Cabinet for Health & Family Servs. v. T.N.H., 302 S.W.3d 658 (Ky. 2010) (trial court discretion in termination decisions; clear-and-convincing standard)
- D.G.R. v. Commonwealth, Cabinet for Health & Family Servs., 364 S.W.3d 106 (Ky. 2012) (reluctance of appellate courts to reverse fact-intensive TPR decisions)
- Bowling v. Natural Resources & Environmental Protection Cabinet, 891 S.W.2d 406 (Ky. App. 1994) (definition of substantial evidence)
- Rowland v. Holt, 70 S.W.2d 5 (Ky. 1934) (formulation of clear and convincing proof standard)