COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, IN THE INTEREST OF R.M.B., A MINOR CHILD v. W.L.M.B.; R.B.; AND R.M.B., A MINOR CHILD
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RENDERED: FEBRUARY 23, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000475-ME
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES,
IN THE INTEREST OF R.M.B., A MINOR CHILD
v.
APPELLANT
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JULIE PAXTON, JUDGE
ACTION NO. 05-AD-00008
W.L.M.B.; R.B.; AND R.M.B., A MINOR CHILD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON AND VANMETER, JUDGES.
DIXON, JUDGE: The Cabinet for Health and Family Services appeals from a judgment
of the Magoffin Family Court dismissing the Cabinet's petition for an involuntary
termination of parental rights. Finding no error, we affirm.
W.L.M.B. and R.B. were married on December 17, 2003. On August 25,
2004, the minor at issue herein, R.M.B., was born. The parents and child lived together
for approximately one month following R.M.B.'s birth before the couple separated.
In November 2004, W.L.M.B. asked her cousin, Wilma Gibson, to watch
the then-four-month-old R.M.B., while W.L.M.B. went to the emergency room.
Although she was supposed to pick up the infant later that day, W.L.M.B. did not return
for several days. And shortly thereafter, W.L.M.B. brought R.M.B. back to Gibson and
said that she would sign papers so that Gibson could keep R.M.B.
In January 2005, Gibson contacted social services because she was unable
to care for R.M.B. in addition to her own children. On January 10, 2005, social worker
Sandy Reynolds sought and was granted an emergency custody order from the Magoffin
District Court placing R.M.B. in the Cabinet's temporary custody. Apparently, R.B., who
was living with his parents, declined to take custody of R.M.B. and she was thereafter
placed in foster care. R.B. did participate in monthly supervised visitation with R.M.B.
and, in July 2005, began making child support payments through a deduction from his
social security benefits.
Meanwhile, social services unsuccessfully attempted to assist W.L.M.B.
with enrolling in a drug treatment program. In December 2005, W.L.M.B. pled guilty in
the Magoffin Circuit Court to trafficking in a controlled substance within a 1000 yards of
a school. She was sentenced to five years imprisonment, with two to serve.
On July 5, 2005, the Cabinet filed a petition for involuntary termination of
parental rights against W.L.M.B. and R.B. Following a trial on February 7, 2006, the
Magoffin Family Court entered an order denying the Cabinet's petition on the grounds
that it had failed to meet the requirements set forth in KRS 625.090 and KRS 600.020(1)
by clear and convincing evidence to warrant an involuntary termination of parental rights.
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This appeal ensued.1
The Cabinet argues that the trial court's judgment is not supported by
substantial evidence. The Cabinet recites the history of the parents and their lack of
interaction and support of R.M.B. as evidence that they abandoned and neglected her. To
be sure, we agree with the Cabinet that R.B. and W.L.M.B. have not demonstrated
capable parenting skills thus far. Nevertheless, we cannot conclude that the Cabinet has
proved by clear and convincing evidence that termination of R.B.'s and W.L.M.B.'s rights
is warranted at this point in time.
KRS 625.090(1) provides that a circuit court may involuntarily terminate
parental rights if it finds by clear and convincing evidence that the child is abused and
neglected as defined in KRS 600.020(1), and that termination would be in the child's best
interests. Further, KRS 625.090(2) provides in relevant part:
1
Although not acknowledged by the Cabinet, we would point out that at the time this appeal
was filed, KRS 625.110 prohibited an appeal from the denial of a petition for the termination of
parental rights. However, in K.R.L. v. P.A.C., 2006-CA-000364-ME (December 1, 2006), this
Court declared KRS 625.110 unconstitutional:
[§ 115 of the Kentucky Constitution] unequivocally
mandates that all parties in all civil and criminal cases have a
constitutional right to one appeal. In addition, Section 115
provides for only two exceptions: 1) the Commonwealth may not
appeal from a judgment of acquittal and 2) the General Assembly
has the power to prohibit a party from appealing the dissolution
portion of a decree dissolving a marriage. These exceptions are
very specific, and neither applies to the denial of a petition to
terminate parental rights. Therefore, we must conclude that KRS
625.110, as currently written, is unconstitutional to the extent that
it prohibits the right of appeal from the denial of a petition to
terminate parental rights.
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(2) No termination of parental rights shall be ordered unless
the Circuit Court also finds by clear and convincing evidence
the existence of one (1) or more of the following grounds:
(a) That the parent has abandoned the child for
a period of not less than ninety (90) days;
....
(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;
....
(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[.]
The trial court has broad discretion in determining whether a child fits
within the abused or neglected category and whether the abuse or neglect warrants
termination. Department for Human Resources v. Moore, 552 S.W.2d 672 (Ky. App.
1977). This Court's review in a termination of parental rights action is governed by CR
52.01, which provides that findings of fact shall not be set aside unless clearly erroneous
with due regard given to the opportunity of the trial judge to view the credibility of the
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witnesses. Such findings will not be disturbed unless there exists no substantial evidence
in the record to support its findings. V.S. v. Commonwealth, Cabinet for Human
Resources, 706 S.W.2d 420 (Ky. App. 1986). Further, “[c]lear 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.” Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (Ky.
1934).
At trial, Cabinet representatives testified that because R.B. told them on
several occasions that he was unable to care for R.M.B., the Cabinet interpreted such to
mean that R.B. wished to terminate his rights to R.M.B. Kathy Prater, the social worker
assigned to R.M.B., stated that no services were offered to R.B. nor were any efforts
made to reunite him with R.M.B. because of his insistence that he could not care for her.
R.B., however, testified that he never intended to terminate his parental rights to R.M.B.
R.B. explained that he lived with his parents and that his mother helped him take care of
his other child. But because R.B.'s father had been seriously ill, R.B. did not feel like he
or his mother would have been capable of caring for another child. R.B. stated that he
wanted his children to be raised together but that, during the period of his father's illness,
he thought R.M.B. was better off in foster care. R.B.'s mother also testified and
confirmed that she helps R.B. take care of his other child and would be willing to assist
him with R.M.B. as well.
W.L.M.B. testified at the hearing and admitted that she was incarcerated on
a felony drug conviction. At the time of trial, she had served seven and one half months
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of a two year sentence and was scheduled to appear before the parole board in March
2006. W.L.M.B. testified that she was drug free and had been attending Narcotics
Anonymous classes in jail. W.L.M.B. admitted that when she left R.M.B. with her
cousin she was having a rough time, but contended that she had no intention of
abandoning her.
At the conclusion of the trial, the court determined that although W.L.M.B.
had previously been found by the court under KRS 600.020(1) to have neglected R.M.B.,
she had not had her rights to any other children terminated; had not abandoned R.M.B.
for more than 90 days; and had not been convicted of any crimes relative to child abuse
or sexual abuse. With respect to R.B., the trial court noted that he had not been
previously found to have neglected either of his children; had no mental illnesses; had not
been convicted of any felonies; had not had his parental rights to his other child
terminated; had not abandoned R.M.B. for more than 90 days; and had not been
convicted of any crimes relative to child abuse or sexual abuse.
In Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003), the Supreme Court of
Kentucky addressed an appellate court's standard of review, noting
[T]he dispositive question that we must answer, therefore, is
whether the trial court's findings of fact are clearly erroneous,
i.e., whether or not those findings are supported by substantial
evidence. “[S]ubstantial evidence” is “[e]vidence that a
reasonable mind would accept as adequate to support a
conclusion” and evidence that, when “taken alone or in the
light of all the evidence · · · has sufficient probative value to
induce conviction in the minds of reasonable men.”
Regardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
reached a contrary finding, “due regard shall be given to the
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opportunity of the trial court to judge the credibility of the
witnesses” because judging the credibility of witnesses and
weighing evidence are tasks within the exclusive province of
the trial court. Thus, “[m]ere doubt as to the correctness of
[a] finding [will] not justify [its] reversal,” and appellate
courts should not disturb trial court findings that are
supported by substantial evidence. (Citations omitted.)
With this standard in mind, we are compelled to conclude that the trial court's findings
herein are supported by substantial evidence. Given the testimony presented at trial, we
are persuaded that the Cabinet failed to prove by clear and convincing evidence that
“there is no reasonable expectation of improvement in parental care and protection.”
KRS 625.020(2)(e). As such, we cannot find that the trial court's judgment and order
were clearly erroneous.
The judgment and order of the Magoffin Circuit Court denying the
Cabinet's petition for an involuntary termination of parental rights are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David T. Adams
Paintsville, Kentucky
Jimmy C. Webb
Paintsville, Kentucky
Lance A. Daniels
Paintsville, Kentucky
David J. Porter
Paintsville, Kentucky
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