A.F. AND M.F. APPELLANTS
L.B. AND B.B. APPELLEESAND M.F. APPELLANT
L.B. AND B.B. APPELLEES
FROM GREENUP CIRCUIT COURT HONORABLE JEFFREY L. PRESTON,
JUDGE ACTION NO. 17-AD-00003
FOR APPELLANTS: Alice (Ali) Dansker Doyle Vanceburg, Kentucky
Charles L. Douglas, Jr. Greenup, Kentucky
FOR APPELLEES: W. Jeffrey Scott Brandon M. Music Grayson,
BEFORE: ACREE, NICKELL, AND L. THOMPSON, JUDGES.
(Mother) and M.F. (Father) appeal the Greenup Circuit
Court's interlocutory judgment entered pursuant to
199.502(1) terminating their parental rights regarding their
biological child, K.F. (Child). They seek reversal arguing
the family court erred procedurally and substantively. We
lived with Mother and Father from her birth in April 2014
until September 2014 when Mother was incarcerated. For the
next month, Child remained in Father's care. During that
month, Mother's aunt and uncle, L.B. and B.B., assisted
Father with childcare to accommodate his work schedule. The
controversy among the parties began when L.B. and B.B.
refused to return Child to Father and contacted the Kentucky
Cabinet for Health and Family Services.
Cabinet filed a dependency, neglect, or abuse petition,
offering Mother's and Father's continued drug use and
Mother's incarceration as grounds for the petition. By
agreement, the family court placed Child with L.B. and B.B.
pursuant to an order of temporary custody. Child was three to
four months old. The biological parents stipulated to the
petition and negotiated a case plan with the Cabinet.
According to the case plan, Father would have weekly
visitation with Child and was ordered to cooperate with the
Cabinet. The Cabinet recommended that "the permanency
goal be return to parent and allow [Mother and Father] time
to complete their case plan and work on sobriety."
Mother was released from incarceration, she immediately
checked into long-term substance rehabilitation at The
Healing Place in Louisville. Two months later, L.B. and B.B.
filed for custody of Child. Following a hearing in the
custody case, the family court awarded Father and L.B. and
B.B. joint custody with substantial parenting time for
Father. The effect of this petition was to remove the case
from the juvenile docket. The family court noted that Father
obtained a job and housing, cooperated with the Cabinet, and
"[was] doing a remarkable job in working toward trying
to regain custody of his daughter."
successfully completed her rehabilitation in 2015 and began
living with Father. At that time, Child saw both parents for
six hours every other weekend and holidays. Eventually,
however, L.B. and B.B. began deviating from the visitation
schedule. This prompted Father to file a motion to enforce
it. The family court compelled compliance by a separate
order, violation of which would constitute contempt.
thereafter, Mother and Father were reincarcerated. The family
court suspended Father's visitation and awarded L.B. and
B.B. sole custody. Both biological parents were paroled in
2016. Father's Day, June 19, 2016, was the last day
either Father or Mother visited with Child. Both were
reincarcerated in 2017, when Mother violated the terms of her
parole and the Commonwealth charged Father with robbery.
after Mother's release from prison in September 2016, she
secured employment, but suffered a relapse, engaging again in
the use of illegal drugs. From January to March 2017, her
whereabouts were unknown even to her mother who filed a
missing person report.
and B.B. filed the petition in this case on February 5, 2017,
to adopt Child without Mother's and Father's consent.
On March 30, 2017, the confidential report required of the
Cabinet by KRS 199.510 was filed with the court clerk. On
June 13, 2017, Mother began sending monthly twenty-dollar
money orders to B.B. for Child's support. As of the date
of the interlocutory judgment, the total amount of support
Mother paid was $280. Mother also enrolled in therapy,
parenting classes, and outpatient treatment.
family court conducted a hearing on September 6, 2017, to
consider only whether L.B. and B.B. could establish, by
necessary proof, the elements required by KRS 199.502(1) to
terminate Mother's and Father's parental rights. The
family court deferred ruling on the adoption
the hearing, counsel for Mother called to the witness stand
the Cabinet's Social Service Clinician who prepared the
confidential report. There was an objection when counsel
expressed knowledge of the report's content by asking the
clinician questions challenging its completeness. After the
family court stated its belief that the confidential report
was for the court's eyes only,  it reminded counsel that the
proceeding was bifurcated. The court eventually ruled that
questions should be limited to the witness's knowledge of
facts relating to termination of parental rights, not the
adoption. The parents took issue with that ruling. As
discussed below, that ruling is at the center of one issue
family court found the proof to have satisfied the
requirements of KRS 199.502(1)(a), (e), and (g) as to both
Mother and Father, and issued its findings of facts,
conclusions of law, and judgment, terminating Mother's
and Father's parental rights. It entered this
interlocutory judgment thirty-five (35) days after the close
and Father sought dismissal of the case on the procedural
ground that KRS 625.090(6) requires the family court to
"enter findings of fact, conclusions of law, and a
decision as to each parent-respondent within thirty (30) days
. . . ." The motion was denied. This appeal followed.
AND STANDARDS OF REVIEW
and Father argue the thirty-day restriction of KRS 625.090(6)
for rendering judgments is not limited to involuntary
termination of parental rights actions brought under KRS
625.050, et seq., but applies as well to adoptions
without the consent of parents brought under KRS 199.502.
Therefore, they argue, the adoption petition should have been
dismissed. This presents a question of statutory
interpretation. "The interpretation of statutes is a
matter of law which we review de novo." Commonwealth
v. Moore, 545 S.W.3d 848, 850 (Ky. 2018) (citation
second ground for reversal is that the family court
improperly refused to allow them to question the Social
Service Clinician regarding the report the Cabinet filed
pursuant to KRS 199.510. That questioning, argue Mother and
Father, would reveal the report fails to strictly comply with
the applicable statute. This is an evidentiary ruling.
"[T]he standard of review of a trial court's
evidentiary rulings is an abuse of discretion." Ten
Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky.
2009) (citation omitted).
Mother and Father argue the family court's findings of
fact supporting statutory grounds for terminating their
parental rights are not based on substantial evidence. Our
review of findings of fact in adoption actions involving
terminations of parental rights is confined to the clearly
erroneous standard set forth in CR 52.01. S.B.B. v.
J.W.B., 304 S.W.3d 712, 715 (Ky. App. 2010). However,
"to pass constitutional muster, the evidence supporting
termination must be clear and convincing." R.P., Jr.
v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (citation
omitted); Santosky v. Kramer, 455 U.S. 745, 747-48,
102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982) ("Before
a State may sever completely and irrevocably the rights of
parents in their natural child, due process requires that the
State support its allegations by at least clear and
convincing evidence."). As this Court has previously
stated, clear and convincing proof does not mean
uncontradicted proof. S.B.B., 304 S.W.3d at 715.
entered 35 days after hearing does not fail to comply with
biological parents argue the family court violated their
procedural and due process rights by failing to comply with
the statutory requirements of KRS 625.090(6) which says
"the Circuit Court shall enter findings of fact,
conclusions of law, and a decision as to each
parent-respondent within thirty (30) days[.]" ...