Cabinet for Health & Family Servs. v. K.H., No. 2013–SC–000127–DGE.

CourtUnited States State Supreme Court (Kentucky)
Citation423 S.W.3d 204
Decision Date20 February 2014
PartiesCABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky, Appellant v. K.H., Sr., Appellee.
Docket NumberNo. 2013–SC–000127–DGE.

423 S.W.3d 204

CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky, Appellant
v.
K.H., Sr., Appellee.

No. 2013–SC–000127–DGE.

Supreme Court of Kentucky.

Feb. 20, 2014.


[423 S.W.3d 207]


G. Thomas Mercer, Frankfort, Erika Saylor, Sarah Mahan Steele, Counsel for Appellant.

Bethanni E. Forbush–Moss, Louisville, Counsel for Appellee.


Opinion of the Court by Justice CUNNINGHAM.

Appellee, K.H., Sr., a resident of Cincinnati, Ohio, is the natural parent of Kenny,1 a thirteen-year-old boy as of the date of this opinion. Kenny, along with his three half siblings, lived in Louisville, Kentucky with their biological mother. On June 24, 2009, the Cabinet for Health and Family Services (“Cabinet”) conducted a “routine home visit” after discovering that the children's mother had been arrested for public intoxication and disorderly conduct. The home visit disclosed that the four children had been unsupervised for an extended length of time. Consequently, the Cabinet obtained an Emergency Custody Order removing Kenny and his siblings from their mother's care.2 On June 26, 2009, the Cabinet brought forth a Dependency, Neglect and Abuse action (“DNA”) in the Jefferson Family Court. A temporary removal hearing was held three days later. Despite being notified, Appellee did not attend the hearing. After determining that there were no relatives who could care for Kenny, the family court awarded custody to the Cabinet.

Several pretrial hearings in the DNA action were held in 2009, only one of which Appellee attended. On August 19, 2009, Appellee was appointed counsel. On October 7, 2009, Kenny's mother stipulated that she abused or neglected her children, including Kenny. A dispositional hearing was held on November 4, 2009, during which time the family court committed Kenny to the Cabinet. The family court specifically found that there were no less restrictive alternatives to returning Kenny to his mother because the “child has extensive emotional, mental/psychological needs which mother cannot meet.” In addition, visitation with Kenny was limited to “supervised/therapeutic visits.”

On April 19, 2010, the family court reconsidered its previous visitation order and denied a modification. In formulating its conclusion, the family court discussed at length Kenny's severe emotional trauma and significant developmental delays. Shortly after being placed in a foster home, for example, Kenny's foster parents reported that he displayed aggression and

[423 S.W.3d 208]

inappropriate sexual behavior towards others. Of particular concern, Kenny threatened to commit suicide. As a result, Kenny endured a five-week, inpatient hospitalization for psychiatric treatment at Wellstone Psychiatric Hospital. As the family court summarized, Kenny was “diagnosed with attachment disorder, RAD (Reactive Attachment Disorder), sexual abuse, post-traumatic stress disorder (PTSD), ADHD (Attention Deficit Hyperactivity Disorder), and neglect[.]” After being released from Wellstone, Kenny was placed in a therapeutic foster home as an only child.

On June 23, 2010, the Cabinet held a facilitated staff meeting to discuss Kenny's progress and goals. Appellee appeared at the meeting. The staffing report stated that Appellee “was at present unable and unwilling to take custody of child, resides in Cincinnati and has no contact with the child.” The Cabinet also noted that, since his placement in the therapeutic foster home, Kenny had benefited from counseling and a school formulated Individualized Education Plan (“IEP”). Kenny's mental health had improved, along with his grades and general disposition. In addition, Kenny's foster parents expressed interest in adopting him. For these reasons, the Cabinet determined that the goal of permanency would be changed from reunification to adoption.

Due to the Cabinet's changed permanency goal, Appellee and Kenny's mother filed separate motions to obtain custody of Kenny. On June 29, 2010, a hearing was held to discuss the motions. The family court denied both motions, stating the following as it specifically pertained to Appellee:

[Appellee] acknowledged he did not come to court for pretrial hearing or at least 7 other dates. He had car problems, etc. Last saw [Kenny] in December ' 09. Tried to call attorney 6 times with no call backs. Motion for return is denied. Father has no understanding of [Kenny's] behavioral issues or need for treatment.

On April 12, 2011, the Cabinet filed a petition to involuntarily terminate the parental rights (“TPR”) of Appellee and Kenny's mother. The TPR action was tried before the family court on February 10, 2012. Sara Morrison, Kenny's case worker, was the Cabinet's sole witness. Ms. Morrison inherited the case from her predecessor, Cassandra Taylor, in November of 2010. Ms. Morrison's testimony indicated that a case plan was formulated every six months for a total of six case plans. Appellee was not present at any of the case plan meetings. However, Ms. Morrison testified that she corresponded with Appellee through numerous letters and telephone conversations to ensure that he was aware of the case plan goals and tasks. As of January 2011, Appellee's case plan required him to pay child support and provide proof of such payments, attend counseling with the child, and contact the Cabinet in order for it to assess what services Appellee would benefit from, if any.

In July of 2011, the Cabinet modified Kenny's case plan due to Appellee's interest in obtaining custody. Ms. Morrison testified that, in addition to the previous requirements of the January 2011 case plan, Appellee was also required to obtain a substance abuse evaluation, maintain contact with the Cabinet twice per month, and initiate supervised phone conversations with Kenny twice per week. Appellee was also to provide Ms. Morrison with proof of a safe and stable home environment. Ms. Morrison informed Appellee of specific documentation that would satisfy the Cabinet's request, including a certified copy of Appellee's criminal background check, a letter from his employer stating

[423 S.W.3d 209]

his wages and the length of his continued employment, proof of home ownership or lease, and proof of payment of utilities. Ms. Morrison testified that, with the exception of the occasional phone call to Kenny, Appellee failed to comply with the case plan in all other respects.

Appellee also testified during the trial. Appellee claimed that he was unaware of the case plans. Appellee also claimed that child support payments were deducted from his paychecks. In regards to his living arrangements, Appellee stated that he was “in between homes” and temporarily living with his grandparents. Finally, Appellee testified that he had no knowledge of Kenny's emotional, psychological, and educational needs.

On February 23, 2012, the family court terminated the parental rights of Appellee and Kenny's biological mother. Considerable findings of fact and conclusions of law were formulated in the family court's opinion. Appellee subsequently appealed the judgment on the following two grounds: (1) there was not substantial evidence to support the family court's finding of abuse and neglect; and (2) termination was not in Kenny's best interest. Kenny's mother did not appeal the termination order.

The Court of Appeals agreed with Appellee and reversed the family court's judgment. K.H., Sr. v. Cabinet for Health and Family Services, No. 2012–CA–000582–ME, 2013 WL 275684 (Ky.App. Jan. 25, 2013). The Court of Appeals explained that Appellee was entitled to have an independent determination that Kenny was an abused or neglected child as specific to Appellee's conduct and not based on the mother's abuse or neglect. Id. at *10. Moreover, the Court of Appeals stated that “[i]t appears that the mother's stipulation of abuse and neglect has impermissibly spilled over to the father, whose behavior must be adjudged separately and apart from that of the mother.” Id. Finally, the Court of Appeals determined that the family court lacked substantial evidence to support its finding that terminating Appellee's rights was in Kenny's best interest. The case was remanded to the family court for further proceedings. This Court granted discretionary review.

Involuntary Termination of Parental Rights

The involuntary termination of parental rights is a scrupulous undertaking that is of the utmost constitutional concern. See M.L.B. v. S.L.J., 519 U.S. 102, 119–20, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The U.S. Supreme Court has unequivocally held that a parent has a “fundamental liberty interest” in the care and custody of his or her child. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This fundamental interest “does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State....” Id. at 754–55, 102 S.Ct. 1388. Therefore, “[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Id.

The Commonwealth's TPR statute, found in KRS 625.090, attempts to ensure that parents receive the appropriate amount of due process protections. KRS 625.090 provides for a tripartite test which allows for parental rights to be involuntarily terminated only upon a finding, based on clear and convincing evidence, that the following three prongs are satisfied: (1) the child is found or has been adjudged to be an abused or neglected child as defined in KRS 600.020(1); (2) termination of the parent's rights is in the child's best interests; and (3) at least one of the termination grounds enumerated in KRS 625.090(2)(a)-(j) exists.

[423 S.W.3d 210]

Individualized Finding of Abuse or Neglect

The first issue before the Court is whether the family court was required to make an independent...

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158 practice notes
  • Cabinet for Health & Family Servs. v. K.S., 2019-SC-0692-DGE
    • United States
    • Kentucky Supreme Court
    • October 29, 2020
    ...recognized by this Court."); Morgan v. Getter , 441 S.W.3d 94, 111-12 (Ky. 2014).21 Cabinet for Health and Family Serv. v. K.H. , 423 S.W.3d 204, 209 (Ky. 2014) (quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ).22 Id.23 405 U.S. 645, 92 S.Ct. 1208......
  • Cabinet for Health & Family Servs. v. H.L.O., 2020-SC-0276-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • April 29, 2021
    ...rights should be terminated, and our review is limited to a clearly erroneous standard. Cabinet for Health & Family Servs. v. K.H. , 423 S.W.3d 204, 211 (Ky. 2014). A trial court's findings are not clearly erroneous if there is substantial evidence in the record to support them. L.D. v.......
  • Cabinet for Health and Family Services v. K.S., 2018-SC-000523-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • September 26, 2019
    ...them, regardless of the outcome." D.G.R. [v. Com., Cabinet for Health and Family Services ], 364 S.W.3d [106] at 113 [ (Ky. 2012) ]. 423 S.W.3d 204, 211 (Ky. 2014)."Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a p......
  • J.L.P. v. Cabinet for Health & Family Servs., NO. 2018-CA-1604-ME
    • United States
    • Court of Appeals of Kentucky
    • September 25, 2020
    ...efforts as defined in KRS 620.020 to reunite the child with the parents[.]'" Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 212 (Ky. 2014). "Reasonable efforts are defined by KRS 620.020(11) as 'the exercise of ordinary diligence and care by the department to util......
  • Request a trial to view additional results
158 cases
  • Cabinet for Health & Family Servs. v. K.S., 2019-SC-0692-DGE
    • United States
    • Kentucky Supreme Court
    • October 29, 2020
    ...recognized by this Court."); Morgan v. Getter , 441 S.W.3d 94, 111-12 (Ky. 2014).21 Cabinet for Health and Family Serv. v. K.H. , 423 S.W.3d 204, 209 (Ky. 2014) (quoting Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ).22 Id.23 405 U.S. 645, 92 S.Ct. 1208......
  • Cabinet for Health & Family Servs. v. H.L.O., 2020-SC-0276-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • April 29, 2021
    ...rights should be terminated, and our review is limited to a clearly erroneous standard. Cabinet for Health & Family Servs. v. K.H. , 423 S.W.3d 204, 211 (Ky. 2014). A trial court's findings are not clearly erroneous if there is substantial evidence in the record to support them. L.D. v.......
  • Cabinet for Health and Family Services v. K.S., 2018-SC-000523-DGE
    • United States
    • United States State Supreme Court (Kentucky)
    • September 26, 2019
    ...them, regardless of the outcome." D.G.R. [v. Com., Cabinet for Health and Family Services ], 364 S.W.3d [106] at 113 [ (Ky. 2012) ]. 423 S.W.3d 204, 211 (Ky. 2014)."Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a p......
  • J.L.P. v. Cabinet for Health & Family Servs., NO. 2018-CA-1604-ME
    • United States
    • Court of Appeals of Kentucky
    • September 25, 2020
    ...efforts as defined in KRS 620.020 to reunite the child with the parents[.]'" Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 212 (Ky. 2014). "Reasonable efforts are defined by KRS 620.020(11) as 'the exercise of ordinary diligence and care by the department to util......
  • Request a trial to view additional results

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