CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, AS PETITIONER AND NEXT FRIEND OF K.E.F., A CHILD v. A.F; G.F.; AND K.E.F., A MINOR CHILD
Annotate this Case
Download PDF
RENDERED:
MARCH 31, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000925-ME
CABINET FOR HEALTH & FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY, AS PETITIONER
AND NEXT FRIEND OF K.E.F., A CHILD
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 04-AD-00032
A.F; G.F.; AND K.E.F.,
A MINOR CHILD
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
The Cabinet for Health and Family Services
(the Cabinet) appeals the Findings of Fact, Conclusions of Law,
and amended Order, entered on April 19, 2005, and a subsequent
final Order, entered on April 28, 2005, of the Perry Circuit
Court.
The Cabinet had sought to terminate the parental rights
of A.F. and her husband, G.F., as to their daughter, K.E.F.
After conducting a hearing, the circuit court dismissed the
petition of the Cabinet and ordered that K.E.F. remain in the
custody of the state.
In a subsequent order, the court
overruled the Cabinet’s motion to alter, amend, or vacate the
judgment as well as its motion for more specific findings of
fact.
We remand the case to the circuit court for specific
findings of fact.
K.E.F, the child who is the subject of this appeal,
was born on February 1, 1999.1
“medically fragile.”
She is described in the record as
She suffers from cerebral palsy and
hydrocephalus, a condition of fluid on the brain that required
the implantation of a shunt in the back of her head to divert
and drain excess fluid from her brain into her stomach.
also suffers from seizures.
She
K.E.F. requires frequent medical
attention and regular physical and speech therapy.
On June 21, 2001, the Cabinet opened a case with the
family to insure that K.E.F.’s needs were being met by her
parents.
This decision was based on evidence that K.E.F. was
not being taken to all of her scheduled medical appointments and
that she was receiving only fifty-percent of her therapy.
On
July 19, 2001, the Cabinet filed a petition in Perry District
Juvenile Court, alleging that K.E.F. was being left unattended
and unsupervised in her crib for hours at a time.
Following an
adjudication hearing, the district court ruled that K.E.F. was
1
Another child, S.F., died at the U.K. Medical Center on April 16, 1997, at
the age of 5½ months. The Perry District Court had also removed her from the
care of A.F. and G.F. because of her special medical needs and their failure
to provide essential care.
-2-
to remain with her parents, who were ordered to cooperate with
the Cabinet and the Department for Community Based Services.
Three months later, on October 29, 2003, the Perry
District Juvenile Court placed K.E.F. in the temporary custody
of the Cabinet.
The decision to remove K.E.F. from her parents’
custody was based on reports from neighbors and social workers
that K.E.F. had been left alone at home crying loudly enough to
attract the attention of neighbors while A.F. sat outside or
walked up and down the street; that A.F. and G.F. were using
illegal drugs; that K.E.F. was found with a plastic bag over her
head; that K.E.F. was found in a urine-soaked crib; and that
K.E.F. was not being taken to her medical appointments,
including consultations with specialists in neurology and
orthopedics.
The Cabinet placed K.E.F. with foster parents who
are specially trained to care for children with serious medical
needs.
On November 5, 2003, A.F. and G.F. attended the
Cabinet’s Case Conference and signed the family case plan that
was developed at that conference.
The plan outlined their
tasks, which included participating in counseling, complying
with a Targeted Assessment Program, and cooperating with an
evaluation by the University of Kentucky Comprehensive
Assessment and Training Services (CATS) Clinic.
-3-
The CATS clinic reviewed K.E.F.’s case and issued its
findings and recommendations in a sixty-two page report on
February 4, 2004.
The report concluded in relevant part as
follows:
After careful consideration of both
protective and risk factors, the CATS team
determined that [K.E.F.] would be at high
risk for further neglect if returned to [her
parents’] care.
There appeared to be a poor fit between
[A.F. and G.F.’s] capacities as parents and
[K.E.F.’s] extensive special needs. Their
prognosis for change appeared poor as
evidenced by their lack of insight and their
inability to respond to interventions in the
past or services included in their current
case plan. The risks for further
maltreatment and severe threats to K.E.F.’s
well-being are so pervasive that the CATS
team could not conceive of a case plan that
would sufficiently mitigate these risks in a
reasonable amount of time. It is therefore
recommended that reunification should not be
pursued.
The Cabinet determined that A.F. and G.F.’s efforts to follow
the family case plan were unsatisfactory.
On February 18, 2004, a review of the CATS evaluation
report was held in Perry District Juvenile Court.
The District
Court found that “reasonable efforts to preserve or reunify
child with her family are not required under KRS 610.127(6).”
On March 31, 2004, the court issued an order recommending a
change of the permanency goal for K.E.F. to adoption.
-4-
The Cabinet filed a petition for involuntary
termination of parental rights on August 20, 2004.
was tried on January 19, 2005.
The action
The only witness to testify was
Amy Ritchie, a social worker employed by the Cabinet, who had
started working with the family on July 27, 2001.
evidence fell into three general categories:
The Cabinet’s
(1) that K.E.F.
was often left unattended in dirty and unsafe conditions; (2)
that A.F. and G.F. were using illegal drugs; and (3) that K.E.F.
was not receiving necessary medical services and therapy even
though they were provided free of charge.
The Cabinet also
offered evidence showing that K.E.F.’s condition had improved
significantly while in the care of her foster parents.
Additionally, the foster parents had stated that they would
seriously consider adopting K.E.F. if the parental rights were
terminated.
The circuit court denied the Cabinet’s petition.
This
appeal followed.
KRS2 625.090(1) provides that a circuit court may
involuntarily terminate parental rights only if it finds by
clear and convincing evidence that the child is abused or
neglected and that termination would be in the best interest of
the child.
The statute provides three different grounds for
finding that a child is abused or neglected:
2
Kentucky Revised Statutes.
-5-
1. The child has been adjudged to be an
abused or neglected child, as defined in KRS
600.020(1), by a court of competent
jurisdiction;
2. The child is found to be an abused or
neglected child, as defined in KRS
600.020(1), by the Circuit Court in this
proceeding; or
3. The parent has been convicted of a
criminal charge relating to the physical or
sexual abuse or neglect of any child and
that physical or sexual abuse, neglect, or
emotional injury to the child named in the
present termination action is likely to
occur if the parental rights are not
terminated[.]
In addition, under KRS 625.090(2), the court must also
find by clear and convincing evidence the existence of one or
more of the following grounds:
(a) That the parent has abandoned the child
for a period of not less than ninety (90)
days;
(b) That the parent has inflicted or allowed
to be inflicted upon the child, by other
than accidental means, serious physical
injury;
(c) That the parent has continuously or
repeatedly inflicted or allowed to be
inflicted upon the child, by other than
accidental means, physical injury or
emotional harm;
(d) That the parent has been convicted of a
felony that involved the infliction of
serious physical injury to any child;
(e) That the parent, for a period of not
less than six (6) months, has continuously
or repeatedly failed or refused to provide
-6-
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;
(f) That the parent has caused or allowed
the child to be sexually abused or
exploited;
(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;
(h) That:
1. The parent's parental rights to
another child have been involuntarily
terminated;
2. The child named in the present
termination action was born subsequent
to or during the pendency of the
previous termination; and
3. The conditions or factors which were
the basis for the previous termination
finding have not been corrected;
(i) That the parent has been convicted in a
criminal proceeding of having caused or
contributed to the death of another child as
a result of physical or sexual abuse or
neglect; or
(j) That the child has been in foster care
under the responsibility of the cabinet for
fifteen (15) of the most recent twenty-two
-7-
(22) months preceding the filing of the
petition to terminate parental rights.
The Cabinet argues that the evidence it presented at
the hearing fulfilled these statutory requirements for
termination.
Furthermore, the Cabinet contends that it was
entitled to prevail in this action because the evidence was
uncontroverted.
Neither parent testified, nor was any evidence
presented on their behalf.
The trial court for its findings of fact stated as
follows:
The Cabinet has not proven, by clear and
convincing evidence, that [K.E.F.] is an
abused or neglected child as defined by KRS
600.020(1).
The Cabinet has not proven, by clear and
convincing evidence, that termination would
be in the best interest of the child,
[K.E.F.].
The Cabinet has not proven, by clear and
convincing evidence, the grounds for
termination as required by KRS 625.090.
While more specific and detailed findings are necessary in order
to provide an adequate record for this Court to review on
appeal, we note that the Cabinet has already complied with
several of the statutory criteria critical to establishing its
prima facie case.
We appreciate the fact that the judge was most
assuredly sympathetic and sensitive throughout the hearing.
-8-
However, 625.090 requires more analysis over the numerous
factors to be considered.
found specifically.
CR3 52.01 requires that the facts be
“In all actions tried upon the facts
without a jury . . . the court shall find the facts specifically
and state separately its conclusions of law thereon and render
an appropriate judgment[.]”
CR 52.01.
We, as an appellate court, are not unmindful
that the most burdensome and frustrating
work of the trial court is its task in
decision making associated with nonjury
trials under CR 52.01 and that the bulk of
this burden is in family law cases.
However, our Supreme Court, in its rule
making and supervisory capacity, has placed
the utmost trust and responsibility in the
trial courts by adopting CR 52.01. The rule
states that the facts shall be found
“specifically.” The rule is mandatory on
the trial courts. We cite Fleming v. Rife,
Ky., 328 S.W.2d 151 (1959) and Standard Farm
Stores v. Dixon, Ky., 339 S.W.2d 440 (1960).
The cornerstone of CR 52.01 is the
trial court’s findings of fact. It aids the
reviewing court by giving it a clear
understanding of the grounds and basis of
the trial court’s judgment, and its judgment
will usually not be disturbed on appeal if
there is evidence in the record to support
the findings. The Supreme Court of the
United States, emphasizing the importance of
the trial court fact-finding function, said
that judges, “ . . . will give more careful
consideration to the problem if they are
required to state not only the end result of
their inquiry, but the process by which they
reached it.” U.S. v. Merz, 376 U.S. 192, 84
S.Ct. 639, 11 L.Ed.2d 629 (1964).
3
Kentucky Rules of Civil Procedure.
-9-
Stafford v. Stafford, 618 S.W.2d 578, 580 (Ky.App.
1981)(overruled on other grounds by Largent v. Largent, 643
S.W.2d 261 (Ky. 1982)).
The Cabinet argues that it was entitled to prevail
because the evidence it presented constituted an unchallenged
prima facie case, and as we have observed, we tend to agree with
that contention.
However, we note that KRS 625.090 requires the
trial court to make findings under the “clear and convincing”
standard.
In order for a party to prevail under that standard,
it is not sufficient merely to present unrefuted evidence to the
court.
The evidence also must satisfy the requirement that it
be clear and convincing both in quantity and quality to the
satisfaction of the trial court.
We cannot usurp this necessary
function of the trial court.
Therefore, we vacate the orders of the Perry Circuit
Court and remand this case for more specific findings of fact
pursuant to KRS 625.090 and CR 52.01.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE A.F.:
Janice F. Porter
Campton, Kentucky
Rebecca S. Williams
Hazard, Kentucky
BRIEF FOR APPELLEE G.F.:
C. Darlene Johnson
Hazard, Kentucky
-10-
BRIEF FOR APPELLEE K.E.F.:
Thomas I. Eckert
Hazard, Kentucky
-11-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
