Cabinet for Health & Family Servs. v. H.L.O., 2020-SC-0276-DGE

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtOPINION OF THE COURT BY JUSTICE KELLER
Citation621 S.W.3d 452
Decision Date29 April 2021
Docket Number2020-SC-0276-DGE
Parties CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and E.R.-L.O., a Minor Child, Appellants v. H.L.O., Appellee

621 S.W.3d 452

CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; and E.R.-L.O., a Minor Child, Appellants
v.
H.L.O., Appellee

2020-SC-0276-DGE

Supreme Court of Kentucky.

APRIL 29, 2021


COUNSEL FOR APPELLANT, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Zachary G. Ousley.

COUNSEL FOR APPELLANT, E.R.-L.O., A MINOR CHILD: Jameson Dean Combs.

COUNSEL FOR APPELLEE: Tammy C. Skeens, Herman W. Lester, PSC.

OPINION OF THE COURT BY JUSTICE KELLER

The Letcher Circuit Court found H.L.O. neglected her daughter E.R.-L.O. and terminated H.L.O.'s parental rights.1 H.L.O. appealed, and a divided Court of Appeals reversed, holding that the circuit court was clearly erroneous in finding that termination was supported by clear and convincing evidence. The Cabinet for Health and Family Services (Cabinet) petitioned this Court for discretionary review, which we granted. After review, we reverse the Court of Appeals and reinstate the judgment of the Letcher Circuit Court.

BACKGROUND

H.L.O. is the mother of E.R.-L.O., T.J.C., and S.C.2 E.R.-L.O. was born February 11, 2016, and tested positive for Buprenorphine. H.L.O. tested positive for

621 S.W.3d 455

Methamphetamine and Buprenorphine. On February 26, 2016, the Cabinet filed a Dependency, Neglect or Abuse (DNA) action against H.L.O. and J.H., and the district court granted the Cabinet emergency custody of E.R.-L.O., setting a temporary removal hearing for March 1, 2016.

At the temporary removal hearing, the district court ordered that E.R.-L.O. be placed in the temporary custody of the Cabinet. The court found that H.L.O. had stipulated to neglect, abuse, and dependency concerning E.R.-L.O. The district court ordered that the Cabinet explore potential relative placements and that H.L.O. enroll in the Advancing Solutions program. Additionally, the court and Cabinet were operating on the assumption that J.H. was E.R.-L.O.’s biological father. As such, J.H. was ordered to comply with drug screenings and pill counts by the Cabinet.

At the April 26, 2016 adjudication hearing, H.L.O. again stipulated to neglect and abuse of E.R.-L.O., and the district court ordered that E.R.-L.O. remain in the custody of the Cabinet. The Letcher County Attorney filed a motion for child support from H.L.O. and J.H. It was in response to this motion for support that J.H. first denied being E.R.-L.O.’s biological father. The district court ordered DNA testing to establish paternity, but J.H. refused to comply, and it was May 2018 before testing conclusively eliminated J.H. as the biological father and identified T.J.R. as E.R.-L.O.’s father.

On August 29, 2016, the district court ordered that H.L.O. be permitted unsupervised visitation with E.R.-L.O. after hearing testimony from the Cabinet's case worker, Jay King. The court ordered H.L.O. to pay child support in the amount of $100 per month beginning September 1, 2016, and to provide health insurance if she could afford to do so at a reasonable cost or through an employer. At the subsequent custody review on November 15, 2016, Mr. King stated that H.L.O. had been struggling with services, had tested positive for Percocet use, was arrested for public intoxication during a visitation at the Cabinet's office, and was later arrested for shoplifting after another visitation session. The December 8, 2016 order set a permanent custody hearing for early 2017.

Before that permanent custody hearing, the interested party review board recommended that E.R.-L.O. remain with her current foster family and that the goal for E.R.-L.O. be changed to adoption for the child's stability. The district court held the permanency hearing on March 7, 2017, and Mr. King testified that H.L.O. had experienced a setback in her program and had tested positive for drugs. Specifically, H.L.O. tested positive on twenty (20) of her twenty-eight (28) drug screens principally due to using Suboxone without a prescription while participating in the Advancing Solutions program. In addition, H.L.O. had to restart Phase I of the program due to a positive test for Percocet. Mr. King testified that H.L.O.'s visits with E.R.-L.O. generally went well. Still, H.L.O. attended one visit while under the influence of a substance resulting in criminal charges and incarceration. On March 27, 2017, the court entered an amended order changing E.R.-L.O.'s permanency plan to adoption and directing all reunification efforts to cease.

On July 27, 2017, H.L.O., through counsel, filed a motion to redocket the case. She had recently obtained temporary custody of T.J.C. and wanted to regain custody of all of her children under the Cabinet's supervision. There is no indication in the record that the district court ruled on this motion. At its April 2018 annual permanency review, the Cabinet continued to recommend that the goal for E.R.-L.O. be adoption. The district court accepted this

621 S.W.3d 456

recommendation in an order dated April 9, 2018, and further ordered DNA testing to definitively identify E.R.-L.O.’s father. Subsequent DNA tests filed with the district court ruled out J.H. and established that T.J.R. was E.R.-L.O.’s biological father.

On May 8, 2018, more than a year after E.R.-L.O.’s change in permanency goal, the Cabinet filed a petition to terminate the parental rights (TPR) of both H.L.O. and T.J.R. A warning order attorney was appointed for T.J.R., and the court dismissed J.H. as a party. The warning order attorney filed a report on November 17, 2018, stating that he had mailed T.J.R. a letter regarding the action, but T.J.R. had not responded to the notice.

The court held an evidentiary hearing on the Cabinet's TPR petition on February 1, 2019. The Cabinet called Mr. King as its first witness. Mr. King was H.L.O.'s case worker. He discussed the initial referral to the Cabinet in February 2016 and the Cabinet's subsequent efforts at reunification. Mr. King confirmed E.R.-L.O. had never been released into H.L.O.'s care. He then summarized H.L.O.'s participation in the services offered by the Cabinet, specifically the University of Kentucky Targeted Assessment Program (UK TAP) and the Advancing Solutions program. The plan required H.L.O. take random drug screens and maintain appropriate housing. He testified that H.L.O. took ten months to complete Phase 1 of the Advancing Solutions program due to the relapses she experienced. Mr. King also testified regarding H.L.O.’s boyfriend, J.H. Because the Cabinet originally believed J.H. was E.R.-L.O.’s father, J.H. was included in the order for drug screening. Mr. King stated that J.H. had refused to take any drug screenings. He never engaged in any services offered by the Cabinet.

Addressing the March 2017 goal change, Mr. King stated H.L.O. had not completed the program by that date and was still in Phase 1. Other factors preventing the return of E.R.-L.O. to her care included H.L.O.'s arrest for public intoxication at the Cabinet's office during one of her visitations, followed by her arrest for shoplifting after she left another appointment. Mr. King noted that H.L.O. had failed multiple drug screenings. She had almost always tested positive for Suboxone, procuring it on the street when she did not have a prescription. Mr. King also testified H.L.O. had issues with transportation, having only recently obtained a driver's license. Mr. King did state that he had no reservations regarding the cleanliness or order of her home.

When asked, Mr. King stated that, in his opinion, the Cabinet had made reasonable efforts to reunify the family before the district court changed the goal to adoption but acknowledged once the goal changed, those efforts had ceased. After the change in goal, H.L.O. completed the Advancing Solutions program, her UK TAP assessment, and the KVC Kentucky behavioral health and parenting program, but at the time of this hearing, E.R.-L.O. had been in the Cabinet's care for 35 months. Mr. King stated he believed H.L.O. had been incapable of providing for E.R.-L.O.'s essential care and protection. He detailed H.L.O.'s criminal past, including her March 2015 conviction for second-degree wanton endangerment when she and J.H. passed out in a car with S.C. also in the car, as well as her theft charges. Mr. King stated he believed that her pattern of drug abuse rendered her incapable of providing for E.R.-L.O., noting that she had experienced several relapses.3 He also stated that it took

621 S.W.3d 457

her ten months to complete Phase 1 of the Advancing Solutions program and between sixteen (16) and seventeen (17) months to complete the entire program.

As to whether H.L.O. provided necessities for E.R.-L.O., Mr. King said H.L.O. attended regular, weekly supervised visits at the Cabinet's office. She generally brought food or clothing for E.R.-L.O. While she brought items to the visits, H.L.O. was more than $1,300 in arrears on her support payments despite a relatively modest obligation of $100 per month. H.L.O. was currently not working, and when asked about her source of income, Mr. King mentioned her relationship with J.H. In the last six months, H.L.O. admitted to the Cabinet she still had a relationship with him but had told Mr. King that J.H. did not live with her. Mr. King stated J.H. was under a...

To continue reading

Request your trial
6 practice notes
  • Carson v. Commonwealth, 2019-SC-0585-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • April 29, 2021
    ...to remain silent. The second statement, while less ambiguous, still failed to clearly indicate that Carson intended to remain silent and 621 S.W.3d 452 end the interrogation. After Det. Bradbury's repeated assertions that Carson was not providing the entire story, the following exchange occ......
  • L.G. v. Commonwealth, Cabinet For Health & Family Servs., 2020-CA-0298-ME
    • United States
    • Court of Appeals of Kentucky
    • August 20, 2021
    ...this case is ultimately the first step in a termination of parental rights proceeding. See Cabinet for Health and Fam. Servs. v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). "While the state has a compelling interest to protect its youngest citizens, state intervention into the family with the r......
  • A.L.F. v. Cabinet For Health & Family Servs., 2021-CA-1390-ME
    • United States
    • Court of Appeals of Kentucky
    • September 16, 2022
    ...should be terminated, and our review is limited to a clearly erroneous standard." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). Factual findings which are supported by substantial evidence of record are not clearly erroneous. R. M. v. Cabinet for Health a......
  • S.P. v. Commonwealth, 2021-CA-1089-ME
    • United States
    • Court of Appeals of Kentucky
    • June 17, 2022
    ...should be terminated, and our review is limited to a clearly erroneous standard." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). Factual findings which are supported by substantial evidence of record are not clearly erroneous. R. M. v. Cabinet for Health a......
  • Request a trial to view additional results
6 cases
  • Carson v. Commonwealth, 2019-SC-0585-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • April 29, 2021
    ...to remain silent. The second statement, while less ambiguous, still failed to clearly indicate that Carson intended to remain silent and 621 S.W.3d 452 end the interrogation. After Det. Bradbury's repeated assertions that Carson was not providing the entire story, the following exchange occ......
  • L.G. v. Commonwealth, Cabinet For Health & Family Servs., 2020-CA-0298-ME
    • United States
    • Court of Appeals of Kentucky
    • August 20, 2021
    ...this case is ultimately the first step in a termination of parental rights proceeding. See Cabinet for Health and Fam. Servs. v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). "While the state has a compelling interest to protect its youngest citizens, state intervention into the family with the r......
  • A.L.F. v. Cabinet For Health & Family Servs., 2021-CA-1390-ME
    • United States
    • Court of Appeals of Kentucky
    • September 16, 2022
    ...should be terminated, and our review is limited to a clearly erroneous standard." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). Factual findings which are supported by substantial evidence of record are not clearly erroneous. R. M. v. Cabinet for Health a......
  • S.P. v. Commonwealth, 2021-CA-1089-ME
    • United States
    • Court of Appeals of Kentucky
    • June 17, 2022
    ...should be terminated, and our review is limited to a clearly erroneous standard." Cabinet for Health and Family Services v. H.L.O., 621 S.W.3d 452, 462 (Ky. 2021). Factual findings which are supported by substantial evidence of record are not clearly erroneous. R. M. v. Cabinet for Health a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT