J.W., Appellant v. CABINET FOR HEALTH AND FAMILY SERVICES (2025)

OPINION

Appellant, J.W. (“Father”), seeks review of findings of fact, conclusions of law, and a judgment of the Hardin Family Court terminating his parental rights to Appellee, A.L.W., a Minor Child (“Child”). We conclude that Appellee, the Cabinet for Health and Family Services (“the Cabinet”), failed to present clear and convincing evidence supporting the required statutory findings for termination. Consequently, the Family Court's factual findings to the contrary are clearly erroneous. Hence, we reverse the judgment terminating Father's parental rights, and we remand with directions to dismiss the petition and for additional factual findings as required.

Except as noted, the relevant facts of this matter are not in dispute. Child was born in April 2013 to Appellee, S.T.W. (“Mother”). Father has never disputed paternity.

In July of 2022, the Cabinet received a report that Child was being abused or neglected. Mother advised the Cabinet that she had sent Child to live with Father in April of 2022 due to death threats that she had received while working with the Drug Task Force. However, she also stated that Child was not with Father but was visiting a family friend in Indiana. Mother admitted to the Cabinet that she would likely test positive for use of marijuana and fentanyl. Mother stated she was aware that Father's older daughter had made allegations of sexual abuse against him. The Cabinet's petition stated that Father had not completed his case plan in that matter.

The Cabinet filed a petition for an emergency custody order (“ECO”) for Child, which the Family Court granted on July 20, 2022. The Cabinet also filed a separate Dependency/Neglect/Abuse (“DNA”) action, alleging that Child was abused or neglected due to Mother's substance-abuse disorder and by Mother's and Father's failures to provide essential parental care and support for Child. The petition further alleged that Mother and Father created a risk that an act of sexual abuse, sexual exploitation, or prostitution would be committed upon Child.

On August 17, 2022, at the removal hearing on the DNA petition, Father stipulated to the risk of neglect of Child due to his failure to comply with his case plan in the case involving his older daughter. Mother also stipulated to neglect.

One week later, on August 24, 2022, the Family Court committed Child to the custody of the Cabinet, where she has remained. Based on the Cabinet's case plans and recommendation, the Family Court granted supervised visitation to Mother and visitation to Father at the Cabinet's discretion. In pertinent part, the Cabinet's case plan directed Father to accomplish a parenting class successfully, which the parties agree he has done. In addition, the Cabinet's case plan directed Father to “complete an open and honest mental health assessment and follow all recommendations,” “to complete a psychosexual assessment with Dr. Ida Dickie,” and “to follow all recommendations.” Cabinet's Exhibit # 2. Record on Appeal (“ROA”) at 111, 113, and 123.

On March 5, 2023, Father completed his mental health evaluation at CenterPoint Hospital in St. Charles, Missouri, which is near his residence. The discharge paperwork from CenterPointe includes the following language: “Psychiatrist Recommendation: Psychological Evaluation.” Cabinet's Exhibit # 4. ROA at 155. The paperwork also provided the names and phone numbers of service providers in his area.

On June 27, 2023, the Cabinet filed its petition for involuntary termination of Mother's and Father's parental rights. Father completed the psychosexual evaluation with Dr. Dickie in July 2023. Dr. Dickie issued her report and recommendations on September 28, 2023, but she did not sign it until December 3, 2023.

On March 30, 2024, Father's counsel filed a motion requesting a copy of Dr. Dickie's report. In the affidavit supporting the motion, counsel stated that neither he nor Father had been provided copies of the psychosexual assessment or the mental health evaluation, and consequently, Father was unable to comply with any recommendations in those reports. In response to the motion, the Cabinet provided the report, and the Family Court passed the final hearing.

In her report, Dr. Dickie noted the sexual-abuse allegations that had been made against Father by his older daughter. However, Dr. Dickie also observed that the older daughter made those allegations during a period of conflict with Father and while she was possibly exposed to or using controlled substances. In addition, Dr. Dickie's report states that the older daughter has since recanted those allegations. Based on her testing, Dr. Dickie concluded that Father was at minimal risk for sexually abusing his children. Nonetheless, Dr. Dickie diagnosed Father with “unspecified personality disorder with anti-social features” and with “alcohol use disorder – severe.” Consequently, Dr. Dickie stated in her recommendations that:

It appears that [Father's] pattern of alcohol use does not lend itself to abstinence. He seems to have a supportive environment that is conducive to reduced drinking. However, he should seek a supportive mentor group that encourages healthy drinking levels and provides emotional support.

Cabinet's Exhibit # 3. ROA at 154.

Almost two years to the day that the Family Court had committed the Child to the custody of the Cabinet and over one year after the Cabinet had sought involuntary termination, the Family Court conducted a hearing on August 22, 2024. Mother executed a voluntary termination of her parental rights, which the Family Court accepted at the outset of the hearing. The Cabinet then presented the testimony of Supervisor Courtney Hibbert (“Hibbert”), who discussed the Cabinet's involvement with the Family. As part of Hibbert's testimony, the Cabinet introduced the records from the emergency custody and DNA proceedings, as well as Dr. Dickie's report and the evaluation from CenterPointe.

Hibbert further testified that Father has weekly phone calls with Child, but only had two in-person visits in 2024 and one in 2023. In addition, Hibbert averred that Father had not completed a substance-abuse assessment or submitted to any drug screens. She stated that the Cabinet had provided Father with the names of service providers for a substance abuse assessment and drug screen, but he had not followed through with any of those services. On cross-examination, however, Hibbert admitted that Father's written case plans did not include those requirements.

Hibbert further said that, while Father completed his mental-health assessment and psychosexual evaluation, he failed to follow through with the recommendations on those reports. Hibbert also claimed that Father had not provided any type of child support. However, she conceded that the Cabinet had never sought support from him. Hibbert opined that Child is doing well in her current placement and has a strong attachment to her foster parents. Hibbert concluded that she did not believe the Cabinet could provide any other services for reunification.

After the Cabinet closed its case, Father testified on his own behalf. Father recounted that, after the older daughter's allegations, he had moved to St. Louis, Missouri to avoid further conflict. Father claimed that he completed his mental health evaluation at CenterPointe, and that facility advised him that he did not need to take any further action. Regarding Dr. Dickie's recommendation that he seek supportive group therapy, he interpreted her note as merely a suggestion and not a formal requirement. However, Father testified that he would have complied if specifically ordered and would also do so in the future. Nevertheless, Father took the position that he did not have a problem with alcohol usage, and he did not need treatment or a support group.

On cross-examination, Father admitted that his driver's license had been suspended because of his convictions for driving under the influence of an intoxicant (“DUI”), but he could not remember how many times he had been convicted. Father also acknowledged that he has a conviction for driving on a DUI-suspended license. He testified that his girlfriend had been driving him to and from work and appointments. When pressed as to whether he had five DUI convictions, he did not dispute that number. On questioning by the Family Court, Father stated that he had attended alcohol education classes following his DUI convictions, but he conceded that he continues to drink alcohol several times a week.

Father testified that he works full-time earning $25/hour. He has not sent any money to Child. However, during his phone calls, he asks Child what she needs, and he brings her clothes and other requested items when he visits. On cross-examination, Father recognized that he was told to mail any such gifts to the Cabinet but has not done so.

On questioning by Child's guardian ad litem (“GAL”), Father testified that he has five children, two of which are still minors (including Child). Father stated that four of those children have lived with him full-time. He testified that his minor son went to live with an aunt in Florida in 2022. That son has remained in Florida, citing better educational opportunities. Father admitted that he has not seen that son in the year 2024. Father said that he provides support for that son as requested, but not on a consistent basis.

Father next called Shanda Huckabee (“Huckabee”), who works for Father's counsel. Huckabee had contacted CenterPointe to inquire whether it required Father to pursue a psychological evaluation. Huckabee testified that she was told that the recommendation language is included on all discharge paperwork and did not constitute a requirement or even a formal recommendation.

In response, the Cabinet called social worker Brittany Boling (“Boling”), who testified that she contacted CenterPointe as well about the language in the report. Boling testified that CenterPoint advised her that the language about Father's completion of psychological evaluation was a “recommendation” but not a “requirement.” On cross-examination, Boling testified that she was also told that the language is included on all of CenterPointe's discharge paperwork for everyone.

Thereafter, all sides rested their cases and gave closing statements. The Family Court then offered oral findings granting the Cabinet's petition for termination of Father's parental rights. Thereafter, the Family Court set forth these findings in written findings of fact, conclusions of law, and separate judgment entered on October 10, 2024. This appeal followed. Additional facts will be set forth below as necessary.

Kentucky Revised Statute (“KRS”) 625.090 mandates a four-part test for involuntary termination of parental rights: (1) was the child abused or neglected as defined in KRS 600.020(1); (2) did the Cabinet file “a petition with the court pursuant to KRS 620.180 or 625.050”; (3) was termination of the parental rights in the child's best interests; and (4) was at least one of the enumerated termination grounds of KRS 625.090(2)(a)-(k) in existence? See also Cabinet for Health & Fam. Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014). Because termination of parental rights involves a fundamental, liberty interest, the statutory findings must be supported by clear and convincing evidence. Id. at 209. “Clear 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.” Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (quoting M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 117 (Ky. App. 1998)); see also R.M. v. Cabinet for Health & Fam. Servs., 620 S.W.3d 32, 37 (Ky. 2021).

This Court reviews a Family Court's factual findings pursuant to the standard of clear error. Kentucky Rule of Civil Procedure (“CR”) 52.01; see also M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254 S.W.3d 846, 850 (Ky. App. 2008). Appellate review of the decision to terminate parental rights under the clear error standard affords great deference to a family court's findings and permits a family court “wide discretion in terminating parental rights.” K.H., 423 S.W.3d at 211. When the “facts are not seriously disputed[,]” the “appellate courts are disinclined to disturb trial-court findings[.]” R.M., 620 S.W.3d at 38 (footnotes and citations omitted).

As previously noted, Father stipulated at the removal hearing to a risk of neglect of Child. Considering the then-pending allegations of sexual abuse involving Father's older daughter, as well as the Cabinet's concerns about Father's compliance with his case plan in that matter, we conclude that the Cabinet would have established the risk of neglect even absent his stipulation. In addition, there is no dispute that the Cabinet filed a petition to terminate Father's parental rights on June 27, 2023. But since Child had only been in the Cabinet's custody for less than 12 months when the petition was filed, the Cabinet could not rely on KRS 625.090(2)(j) as a basis to terminate Father's parental rights, as that section requires a showing that Child has been in the Cabinet's custody for at least 15 of the 48 months preceding the filing of the petition.

Instead, the Family Court relied on KRS 625.090(2)(e) and (g), which provide as follows:

(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[.]

In its findings, the Family Court noted that Father has not paid any support for Child while she has been in the Cabinet's custody. The Family Court relied upon the rule that a parent has an obligation to support his children even in the absence of a specific support order. Barnes v. Turner, 280 S.W.2d 185, 187 (Ky. 1955). See also KRS 205.710(5) (defining “duty of support” to include “the duty to pay spousal support that applies to spouses with a child even if child support is not part of the order”).

However, Barnes was neither a termination nor a support case. Rather, Barnes involved an appeal from a denial of aid for needy children on the ground that the children did not meet the statutory conditions of eligibility for aid. Barnes, 280 S.W.2d at 186. One of those conditions concerned the parent's incapacity or inability to engage in any type of employment, without regard to previous training or past work experience. Id. at 187. Similarly, the language in KRS 205.710(5) is part of a definition in a section concerning eligibility for state public assistance.

We agree with the general, inherent proposition that a parent always has a duty to support his or her child even without a court order in effect. But in the context of a termination proceeding, the Kentucky Supreme Court has specifically held that, when the Cabinet failed to offer proof that it sought support from a parent, a family court could not rely on that parent's failure to pay support as a basis for finding neglect under KRS 625.090(3)(b) and 600.020(1)(a)4. A.G. v. Cabinet for Health & Fam. Servs., 621 S.W.3d 424, 431 (Ky. 2021). Similarly, this Court has held that the Cabinet cannot establish the elements of KRS 625.090(2)(e) and (g) by clear and convincing evidence where the parent was not under any court order to pay child support. F.V. v. Commonwealth Cabinet for Health & Fam. Servs., 567 S.W.3d 597, 609 (Ky. App. 2018).

Furthermore, the focus of our analysis under KRS 625.090(2)(e) and (g) concerns not only whether Father has provided essential care, protection, and support for Child, but also whether there is a reasonable expectation of improvement. The statute does not require that a parent completely eradicate all problems immediately. M.E.C., 254 S.W.3d at 855. But the statute “does require that the Cabinet prove by clear and convincing evidence that there is no reasonable expectation of improvement.” F.V., 567 S.W.3d at 609.

The Cabinet primarily argued that Father failed to comply with the requirements of his case plan in a manner that would allow him to regain custody of Child in the immediately foreseeable future. But where, as here, the Cabinet has never sought support, the Family Court cannot assess whether there is a reasonable expectation of improvement in the parent's ability or willingness to provide such support.

The Family Court placed much more emphasis on Father's failures to comply with the other requirements of his case plan. While the Cabinet has subsequently maintained that Father was required to submit to a substance abuse assessment and regular drug screens, the Cabinet itself never included that requirement on any written case plan for Father. More significantly, the Family Court noted that it required Father to complete a mental health assessment and to complete a psychosexual assessment with Dr. Ida Dickie, and “follow all recommendations” in both assessments. The parties disputed the extent of Father's compliance with those recommendations.

As noted, the mental health assessment from CenterPointe Hospital included a “Referral” listing a “Psychiatrist Recommendation” for an additional “Psychological Evaluation.” But neither Father nor the Cabinet could explain what that language meant. Father testified he was told that this language was included on all discharge paperwork and did not require him to take any further action. The inquiries to CenterPointe by Huckabee and Boling elicited the same response. Father cannot be blamed for failing to follow such unclear, boilerplate language that is so vague and subject to different interpretations that it cannot constitute direction.

We also find problems with the Family Court's conclusion that Father failed to comply with Dr. Dickie's recommendations. First, Father was not provided a copy of that report and the recommendations until about four months before the termination hearing. Moreover, it is not clear what Dr. Dickie meant when she stated that Father should seek a support mentor group that encourages healthy social drinking levels.

Dr. Dickie made this recommendation based upon her assessment of Father's patterns of alcohol use. Although Dr. Dickie diagnosed Father with severe alcohol use disorder, Dr. Dickie also stated that Father's current environment is supportive and conducive to reduced drinking. The Cabinet and the Family Court maintain that this required Father to attend meetings with Alcoholics Anonymous or a similar organization. But Dr. Dickie's recommendation was much less specific on the type of support Father requires. Dr. Dickie also diagnosed Father with “[u]nspecified personality disorder with antisocial features,” but she did not recommend that Father receive any treatment or therapy based on this diagnosis. ROA at 154. And she never recommended that Father stop drinking. And no one appears to have noticed that prior DUIs would have resulted in requirements for significant alcohol treatment.

On the other hand, Father's own testimony displayed an uncooperative attitude and “lackadaisical” approach to visitation with his children. Findings of Fact and Conclusions of Law, p. 7. ROA at 196. Even though Father appears to have at least five DUI convictions and a conviction for driving on a DUI-suspended license, he consistently denied any problem with his alcohol usage. Father insisted that he does not need to attend any type of supportive group but would attend one only if specifically ordered. He was also argumentative during cross-examination by the Cabinet. In addition, as the Family Court noted, Father does not prioritize maintaining contact with any of his children. While he maintains regular phone contact with Child, he visits her infrequently and only when he is already in Kentucky for scheduled court appearances. Father brings Child clothes and other gifts but has made little effort to provide for her otherwise.

Nevertheless, KRS 625.090 “reflects a default preference against termination, which is why it states that no termination of parental rights shall be ordered unless the court makes the statutory findings based on the higher standard of proof of clear and convincing evidence.” D.G.R. v. Commonwealth, Cabinet for Health & Fam. Servs., 364 S.W.3d 106, 112 (Ky. 2012). The Family Court did not hold that Cabinet to this standard. Indeed, at the start of the evidentiary hearing, before the Family Court had heard any evidence, the Family Court Judge advised Father to agree to a voluntary termination of his parental rights to avoid any adverse consequences from an involuntary termination. Such an approach is inconsistent with the Cabinet's high burden of proof for termination of parental rights under the statute.

Moreover, the Cabinet's evidence at the hearing was lacking substance. The Cabinet presented minimal evidence of the services it provided Father to assist in reunification. Most of its case plan was directed toward Mother. The Cabinet provided little guidance or direction to Father on the manner in which he was to comply with the plan. The Cabinet failed to include highly significant matters in Father's case plan, such as the substance abuse assessment and drug screenings. In fact, Father's case plan was never updated during the pendency of the DNA case. And until the hearing, the Cabinet never raised any issue about the sufficiency of Father's contact with Child or the support that he was providing.

While the Cabinet emphasized the allegations of sexual abuse by Father's older daughter, it presented no evidence concerning the outcome of that investigation or Father's case plan in that matter. And that daughter has recanted those allegations. The only other reference to that matter was that the older daughter was re-committed to the Cabinet's custody after reaching age 18. Similarly, the Cabinet emphasized Father's prior DUI convictions but did not present any evidence of when they occurred, the circumstances surrounding those charges, the treatment or abstinence required, or any follow through or lack thereof by Father. Because of this failure, the record does not show whether any of these DUIs were felonies, whether they remained misdemeanors, whether they were amended down, dismissed, expunged, or otherwise. Because the Cabinet did not offer the requisite proof about Father's alleged lack of treatment, we do not know – and it does not appear that the Family Court knew – whether Father attended and successfully completed the rigorous, required treatment for a DUI 1st, 2nd, 3rd, 4th, or greater charges. We do not even know whether he faced increasing charges because the record is bare. The first DUI may require 30 days of treatment, with increasing levels up to one year. What were Father's convictions? Did Father receive probation as a sentence for his convictions? Was he revoked for failure to comply? The record is silent on these important issues. The Family Court should have considered them, and the required treatment that they require, when making its determinations.

We acknowledge that this Court is obligated to afford substantial deference to the Family Court's factual findings. D.G.R., 364 S.W.3d at 113. But under the circumstances, we must conclude that the Cabinet failed to establish any of the elements of KRS 625.090(2) by clear and convincing evidence. Terminations of parental rights are extremely serious and require specific proof. Consequently, we must find that the Family Court clearly erred in finding otherwise and abused its discretion by granting the Cabinet's petition to terminate Father's parental rights under these circumstances.

Having reached this conclusion, we need not address the sufficiency of the Family Court's factual findings concerning the best-interests factors under KRS 625.090(3). We also note that, unlike the other requirements of KRS 625.090, the Family Court's consideration of these factors is not to be treated as a “checklist.” Id. at 115. The factors do not necessarily dictate a result and are always subordinate to the overall best interests of the child. Id. However, many of the Family Court's findings on these factors are also based on the same vague and incomplete evidence offered by the Cabinet.

In conclusion, a termination of parental rights has been characterized as the civil equivalent of the death penalty of family law – resulting in a permanent severance of the legal parent-child relationship. Commonwealth v. S.H., 476 S.W.3d 254, 259 (Ky. 2015) (citation omitted). Thus, the magnitude of such proceeding requires the Cabinet to prove the statutory elements by clear and convincing evidence, our highest civil standard. Id. Although our review of the Family Court's factual findings is deferential, this Court is not required to and cannot accept wholesale factual findings where the Cabinet's proof is so lacking.

We are compelled to note that Father's attitude in this matter is far less than exemplary, and he does not seem suited to have custody of Child at this time. At some point, the Cabinet may be able to show that the termination of Father's parental rights is warranted under the standards set forth in KRS 625.090, but it has failed to do so thus far in this proceeding.

Under KRS 625.090(6)(b), if the Cabinet has not met its burden for termination of parental rights, then the Family Court must dismiss the petition and state whether the child shall be returned to the parent or remain in the custody of the state. Such a dismissal may require the Cabinet to resume its services and case plan with Father. This does not mean that Father should be given unlimited opportunities to comply with the Cabinet's reunification plans, but he must be given meaningful opportunities to do so. Until such time, and if the evidence supports it, the Cabinet cannot rush forward with terminating Father's parental rights. Termination is an extreme and rare result, and the facts to support that drastic measure must be clear and well-documented. That is not the case here.

Father did not financially support Child. But he was not ordered to do so. If he were so ordered and failed, then we could anticipate a finding that there is no reasonable expectation of improvement. But that has not yet happened here.

Father did not seek additional treatment. Yet again, he was not required by anyone to complete more treatment successfully. He must have had some treatment based upon his criminal history. However, the Cabinet has offered no details about it.

Father stipulated to neglect because he was alleged to have abused his older daughter. Dr. Dickie's report states that she recanted. The Cabinet did not offer any evidence on this issue.

Father was required to complete a mental health assessment. He did so successfully. Although the Centerpointe assessment is merely a summary and lacks specificity, the Cabinet acknowledged that it satisfied the requirement of Father's case plan.

Dr. Dickie encouraged Father to maintain healthy drinking levels. For reasons that are not apparent from the record, neither she nor the Cabinet sought abstinence. And, inexplicably, neither required more treatment. Likewise, the Family Court did not require any change in Father's behavior with regard to alcohol or treatment for what appears to be a clear problem for him. Thus, terminating his rights to custody of his Child because he did not do what was not required of him is unsupported.

The Cabinet's case plan here is vague and dearth of any evidence or recommendations for Father regarding his relationship with Child. It offers no real reunification strategy or details as to why reunification would be futile, harmful, or otherwise unwarranted.

Accordingly, we reverse the findings of fact, conclusions of law, and judgment of the Hardin Family Court terminating Father's parental rights. We remand this matter to the Family Court with directions to dismiss the petition and to make appropriate statutory findings concerning custody of Child. Any further proceedings should be addressed in the underlying DNA case.

ECKERLE, JUDGE:

ALL CONCUR.