Opinion
NO. 2020-CA-0079-ME NO. 2020-CA-0080-ME NO. 2020-CA-0106-ME NO. 2020-CA-0107-ME
01-08-2021
L.M.P. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.R.R.S.H., A CHILD; B.H.; AND G.M. APPELLEES AND L.M.P. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.H.H., A CHILD; B.H.; AND G.M. APPELLEES AND B.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.R.R.S.H., A CHILD; L.H.; AND G.M. APPELLEES AND B.H. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.H.H., A CHILD; L.H.; AND G.M. APPELLEES
BRIEF FOR APPELLANT L.M.P.: Carl A. Short, II Manchester, Kentucky BRIEF FOR APPELLANT B.H.: Kenneth S. Stepp Manchester, Kentucky BRIEFS FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JACKSON CIRCUIT COURT, FAMILY COURT DIVISION
HONORABLE CLINT J. HARRIS, JUDGE
ACTION NO. 17-AD-00017 APPEAL FROM JACKSON CIRCUIT COURT, FAMILY COURT DIVISION
HONORABLE CLINT J. HARRIS, JUDGE
ACTION NO. 17-AD-00018 OPINION
AFFIRMING
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BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES. CALDWELL, JUDGE: L.M.P. and B.H. appeal from findings of fact, conclusions of law, and judgments of the Jackson Circuit Court, Family Court Division, terminating their parental rights to two minor children, L.R.R.S.H. and G.H.H. We affirm.
L.M.P. and B.H. failed to name the children as appellees in the body of their notices of appeal, a potentially fatal error. See, e.g., A.M.W. v. Cabinet for Health and Family Services, 356 S.W.3d 134, 135 (Ky. App. 2011) ("If a parent appeals an order terminating parental rights, the child is a principal focus of the appeal. Therefore, the child must be made a party to the appeal to protect his interests. The child is a necessary and indispensable party to an appeal from the termination of parental rights and the failure to join the child to the appeal requires this Court to dismiss this appeal."). However, L.M.P. and B.H. listed each child in the caption of the notice of appeal pertaining to her and—unlike A.M.W.—mailed a copy of the notices to the children's guardian ad litem. Therefore, dismissal of the appeals is unnecessary. Morris v. Cabinet for Families and Children, 69 S.W.3d 73, 74 (Ky. 2002) ("Appellants' notice of appeal named the minor child, CJM, in the caption, and, although he was not included in the certificate of service, copies of the pleadings were provided to the child's guardian ad litem. These factors together substantially comply with the requirements of [Kentucky Rule of Civil Procedure] CR 73.03 and provided sufficient notice to all parties concerned that the minor child was also an Appellee.").
FACTS AND PROCEDURAL HISTORY
L.M.P. is the natural mother and B.H. is the putative father of two minor children, L.R.R.S.H. ("younger child") and G.H.H. ("older child"). L.M.P. was married to G.M. before the children were born, and there are no records of a divorce. But other records indicate that B.H. and L.M.P. were married after both children were born. G.M. was considered the children's legal father. Despite receiving notice of the trial court actions, G.M. did not participate in the trial court proceedings in which his parental rights were terminated. And despite being named as an appellee in these appeals, G.M. did not file any appellate briefs. We refer to L.M.P. as "Mother" and B.H. as "Father" for the remainder of this Opinion.
To protect the privacy of these minor children, we will not refer to the names of the children or their natural parents.
As G.M. has not participated in these appeals despite being named an appellee, we will omit any further reference to him.
Mother and Father have two children together: older child, born in January 2010, and younger child, born in April 2012. The Cabinet for Health and Family Services (the "Cabinet") has been involved with the family since 2010, and the children have been in foster care continuously since May 2014. As the trial court noted and the parties have not disputed, "[t]he involvement of the Cabinet and the courts typically arose from substance abuse, domestic violence and family instability."
The Cabinet filed dependency, neglect, and abuse ("DNA") petitions regarding older child and younger child. Following adjudication, the Jackson Family Court found both children to be neglected and committed them to the Cabinet in September 2014. The Cabinet prepared case plans and offered various services to the family.
Mother and Father visited the children on several occasions and participated in some recommended programs such as counseling and classes. However, they did not fully comply with case plan requirements for cooperating with random drug testing and for obtaining substance abuse and domestic violence counseling. They also missed some case planning conferences. Father was incarcerated at times, and both parents started but did not complete substance abuse treatment programs. Although they were allowed unsupervised visits with the children for a time, such unsupervised visits were later suspended due to the children acting out afterwards. In November 2017, the Cabinet filed a petition to terminate parental rights.
Over the next couple of years, the trial court heard various motions filed by the parties including motions in limine to exclude evidence of statements made by older child to a nurse identifying who had hurt her. Meanwhile, Mother and Father did not maintain consistent employment, moved frequently and did not always permit Cabinet staff to inspect their current housing, were each incarcerated briefly at least once, and failed to complete required classes about domestic violence and parenting skills. Also, Mother was observed to be under the influence during a home visit in July 2019. Mother and Father had been enrolled in substance abuse treatment and substance abuse counseling from May 2018 until the September 2019 trial, although they often failed to produce the medication prescribed for their treatment for their caseworker to inspect.
In September 2019, the termination cases were tried before the Jackson Family Court. Both Mother and Father testified following the Cabinet's presentation of its case. The trial court orally announced and explained its decision to terminate parental rights at the end of the trial. It entered its written findings of fact, conclusions of law, and judgments terminating Mother's and Father's parental rights to both children a few weeks later. After some post-trial motions were litigated, it entered amended findings of fact, conclusions of law, and judgments regarding each child and both parents timely appealed. Further facts will be developed as needed.
STANDARD OF REVIEW
Termination of parental rights is a grave action which the courts must conduct with "utmost caution." M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008). Thus, the evidence to support termination must be clear and convincing. Kentucky Revised Statutes ("KRS") 625.090; see also Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (holding due process requires proof by at least clear and convincing evidence for terminations).
Even so, a trial court's decision to involuntarily terminate parental rights is accorded great deference on appellate review, and its factual findings are reviewed under the "clearly erroneous" standard of Kentucky Rules of Civil Procedure ("CR") 52.01 meaning they shall not be disturbed unless they are not supported by substantial evidence. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998).
CR 52.01 governs "all actions tried upon the facts without a jury" and provides in pertinent part: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."
ANALYSIS
Trial Court Performed Statutorily Required Analysis
Before terminating parental rights, the trial court must find clear and convincing evidence to support each of three parts of the standard established by KRS 625.090. First, the child must have been found to be an "abused or neglected" child as defined by KRS 600.020(1). KRS 625.090(1)(a). Second, termination must be in the child's best interest. KRS 625.090(1)(c). Third, the trial court must find at least one ground of parental unfitness. KRS 625.090(2). In determining the child's best interests and whether there are ground(s) of parental unfitness, the trial court must consider the factors listed in KRS 625.090(3).
Clear and convincing evidence does not mean uncontradicted proof, but "proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010) (citation omitted).
The trial court performed this statutorily required analysis. It made findings that each child had been adjudicated to be neglected and that termination of both Mother's and Father's parental rights was in the best interests of each child after consideration of all factors listed in KRS 625.090(3). It also found that both children had been in foster care continuously since May 2014. Thus, it concluded that grounds of parental unfitness existed under KRS 625.090(2)(j) in its present and prior versions as both children had been in foster care under the responsibility of the Cabinet for more than fifteen of the last twenty-two months (and more than fifteen cumulative months of the last forty-eight months) preceding the filing of the termination petitions.
From July 14, 2018 until the present, KRS 625.090(2)(j) has stated as one ground of parental unfitness: "That the child has been in foster care under the responsibility of the cabinet for fifteen (15) cumulative months out of forty-eight (48) months preceding the filing of the petition to terminate parental rights[.]" The prior version of KRS 625.090(2)(j) stated this ground of parental unfitness as "(j) That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition to terminate parental rights."
The trial court issued detailed findings of fact concerning the family's history over the past several years addressing numerous factors beyond the length of time the children spent in foster care. And in determining each child's best interests and whether there were grounds of parental unfitness concerning both Mother and Father, the trial court made findings concerning the factors listed in KRS 625.090(3).
The trial court made express written findings that the parents had committed acts of neglect to other children in the family and that the Cabinet had made reasonable efforts to reunite older child and younger child with the family. See KRS 625.090(3)(b)-(c). It also issued detailed findings regarding the children's health (physical, emotional, and mental) and prospects for improvement if termination was ordered. See KRS 625.090(3)(e). It expressly concluded that neither parent had paid a reasonable portion of substitute physical care and maintenance for either child, noting that both parents were thousands of dollars behind on paying court-ordered child support. See KRS 625.090(3)(f). The trial court orally noted at the end of the trial that there was no evidence presented of either parent being mentally ill or intellectually disabled. See KRS 625.090(3)(a).
The trial court orally noted at the trial's conclusion that not much evidence was presented of acts of abuse or neglect by the parents over the last few years as the children were in foster care rather than under their natural parents' care, and that several case plans had been prepared to try to help the family to safely achieve reunification.
Although the trial court issued conclusions of law stating that the parents failed to pay a reasonable amount of child support based on these arrearages, the trial court had also orally noted at the hearing that the parents had paid some child support.
In addition to its consideration of these other factors listed in KRS 625.090(3), the trial court made express findings regarding "the efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child" as required by KRS 625.090(3)(d). Regarding each child, it found that neither Mother nor Father had made sufficient efforts or adjustments to make it in the child's best interest to return home in a reasonable time, given the age of the child.
Specifically, it found in both children's cases a lack of substantive and consistent efforts by the parents to address issues in order to provide the safe and stable home environment needed:
[Mother's] and [Father's] respective substance abuse, domestic violence and other issues existed prior to their daughter's entry into foster care and neither have taken substantive, consistent steps to address these issues in the four-plus years their daughter has been in foster care. Although they have enrolled in a substance abuse treatment program for about a year, that enrollment followed three years of inaction. They failed to take meaningful and simple steps on their court-approved case plans such as calling in daily for random drug screens or completing parenting skills or domestic violence counseling. When the child entered foster care, [Mother] and [Father] seemed to have a somewhat more stable home and income. Now, they lack both. The court must
weigh all these issues against this child's need for a safe, stable, and permanent home. Taken in balance, that need necessarily outweighs these parents' seeming inability to successfully grapple with the challenges of providing even themselves a stable home environment.
In addition to making all required findings to allow the court to consider termination under KRS 625.090(1)-(3), the trial court also considered whether either parent had proved by a preponderance of the evidence that either child would not continue to be a neglected child if returned to their care. See KRS 625.090(5). It determined that neither parent met this burden of proving that either child would not continue to be a neglected child as defined by KRS 600.020(1) if returned to their care.
Despite any assertions to the contrary, the trial court performed the analysis required by KRS 625.090 when considering the petitions for involuntary termination.
Trial Court's Factual Findings Are Supported by Substantial Evidence
Father generally contends that the trial court's termination of his parental rights is not supported by sufficient evidence. But from our review of the record, the trial court's factual findings are supported by substantial evidence and thus not clearly erroneous. And we note that neither Mother nor Father raises any significant issues concerning the accuracy of the trial court's factual findings.
Social workers testified to Mother's and Father's failure to make progress toward providing an appropriately safe and stable home despite numerous efforts to provide them with reunification services. Each child's respective therapist also testified concerning the child's emotional health and individual needs. Although Mother and Father generally claimed to have made improvements despite acknowledging problems in the past, the trial court was not convinced that they would be able to provide a safe and stable home within a reasonable time and concluded that termination was in the children's best interests. Having thoroughly reviewed the record and mindful of the trial court's unique opportunity to judge the credibility of the witnesses, we disagree with Father's argument that the trial court's decision is not supported by sufficient evidence.
See generally CR 52.01 ("Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").
No Relief Merited for Alleged Improper Retroactive Statutory Application
Father argues that unspecified recent statutory changes allegedly making it harder for parents to prevail in involuntary termination cases should not be applied retroactively. But he has not specifically identified what recent changes he is complaining of, nor specifically identified for us what provisions he believes the trial court improperly applied retroactively. Nor has he indicated if or when he raised to the trial court his contention that any statutory changes should not be applied retroactively. See CR 76.12(4)(c)(v). Nor has he notified the Kentucky Attorney General of any constitutional challenge to a statute he intends to make. See KRS 418.075.
After quoting the text and legislative history of KRS 625.090 (regarding involuntary termination of parental rights), Father argues, "Since the U.S. Constitution and the Kentucky Constitution both forbid ex posto facto laws and bills of attainder, the most recent changes of the law making things rougher on parents should not be available retroactively against B.H. the children's father."
To the extent that his argument relates to the application of KRS 625.090(2)(j) as a ground of parental unfitness, the trial court made the applicable finding under both the version applicable at the time the petition was filed (the version in effect from July 12, 2012, through July 13, 2018) and the version applicable at the time of the trial and entry of judgment. As noted previously, the trial court found that both children had been in foster care more than fifteen of the last twenty-two months (and more than fifteen cumulative months over the last forty-eight months) before the petition was filed. In fact, it found both children had been in foster care continuously since May 2014—over three years prior to the filing of the termination petitions and, as repeatedly noted at trial, over five years before the trial. Neither parent has disputed that both children were in foster care since May 2014.
KRS 625.090 was amended effective June 27, 2019. However, KRS 625.090(2)(j) was not changed in the 2019 amendment. The text of KRS 625.090(2)(j) was last amended effective July 14, 2018.
In short, we discern no improperly retroactive statutory application that would entitle Father to relief.
Mother's Counsel Is Unable to Assert Meritorious Grounds for Appeal
Mother's counsel states he is unable to state meritorious grounds for relief, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and he has filed a motion to withdraw. He also states that he has advised Mother of her right to file a supplementary brief if she desires, and we entered an order allowing her thirty days to file a supplementary brief. Mother did not file a supplementary brief within this deadline.
Despite being unable to state meritorious grounds for an appeal, Mother's counsel identified from the record possible issues Mother might wish to raise. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 371 (Ky. App. 2012).
Having previously passed the motion to withdraw to the merits, the motion to withdraw is granted by separate order.
No Reason to Reverse Based on Our Independent Examination of Record
Both parents request that this Court conduct an independent examination of the record for error to determine if the evidence supports the trial court's findings that termination of their parental rights was in the children's best interests.
Unlike Mother's counsel, Father's counsel has not filed a motion to withdraw, nor stated that he found no meritorious grounds for appeal nor invoked Anders.
Both parents cite their love for their children, their efforts to visit with their children and to obtain custody, and their participation in at least some programs to help the family move towards reunification. And the record is not completely devoid of any evidence of efforts to improve—such as the parents' remaining enrolled in substance abuse treatment for about a year prior to the trial court's judgments. Nonetheless, the trial court found that their efforts had not been consistent enough to make it in their children's best interests to return to their care. And from our review of the record, this finding is supported by substantial evidence and not clearly erroneous.
The trial court also found that neither parent had proven that the children would not continue to be neglected if returned to their care, and this finding is also supported by substantial evidence and not clearly erroneous. Both parents testified and as the trial court orally noted, neither testified about how any additional services would allow them to provide a safe and stable home. Instead, they simply claimed they were doing better than they had previously.
Despite their general assertions of improvement, however, substantial evidence supports the trial court's determination that these parents would not be able to provide a safe and stable home within a reasonable time—including evidence of their reluctance to permit a home inspection, their failure to obtain required domestic violence counseling, and their failure to comply with drug screening requirements.
Any Error in Admitting Evidence Relating to Unsubstantiated Abuse Allegations
Was Harmless as Basis for Termination Was Neglect
Mother and Father both assert that the decision to seek termination of their parental rights was based on the children exhibiting behavior which was thought to indicate sexual or physical abuse and that allegations of such abuse were found to be unsubstantiated after an adjudicatory hearing. (However, the petitions filed in the cases before us allege that the parents failed to provide essential care, protection and necessities, citing KRS 625.090(2)(e) &(g)—and do not directly allege physical or sexual abuse.)
Mother and Father assert that although the trial court's amended findings and judgments state that evidence relating to unsubstantiated abuse allegations was given no weight, the trial court improperly considered such evidence to their detriment:
The Appellant would state that the underlying decision to initiate a T.P.R. [termination of parental rights] in this matter was based on "children's behavior's", [sic] which
was also the basis for the last juvenile action. The Commonwealth's advocates stated that these "behaviors" may have been due to sexual or other physical abuse. In the underlying Juvenile action this allegation was completely unsubstantiated after a full adjudicatory hearing. The Commonwealth then decided their cases would be based on the previous DNA [Dependency, Neglect, and Abuse] Petition. The Commonwealth knew not to present this evidence in the T.P.R. Final Hearing, yet still chose to do so leading to Motions to Set Aside the First Findings and Conclusions. The Court, in later Orders and Amended Findings stated this evidence was given no weight. The Appellant would argue that allowing this evidence into the T.P.R. hearing corrupted the hearing which should have been thereby set aside.(Appellant's Brief for Mother in each case, page 10.)
Father made essentially the same argument, albeit in slightly less detail, on page 10 of his Appellant's Brief in each case.
Despite these assertions that evidence relating to unsubstantiated abuse allegations tainted the proceedings, the trial court issued detailed findings and appeared to thoughtfully consider relevant factors while rejecting allegations of abuse. Its amended findings discussed the children's behaviors and their statements to therapists in considering the children's health and well-being. Its findings also noted that unsupervised visits with their parents had to be suspended due to the children's behavior after such visits.
While the trial court did not make written findings of abuse and its oral statements at trial rejected abuse allegations (especially of sexual abuse), it concluded that the evidence showed a lack of strong bonds between each child and her parents. The trial court found that younger child's emotional health had improved since her contact with Mother and Father had been curtailed. And it found that older child's statements to a therapist about her memories of time with her parents were "fantastic to the point of disbelief" and not "credible evidence of additional abuse and neglect by either parent" but showed "the resulting significant barrier to reunification with either parent anytime soon and her acute need for additional care that these parents are unlikely to provide."
From our review of the record, a pretrial motion in limine was filed to exclude any testimony by a nurse about older child's statement identifying who had hurt her. This nurse did not testify at trial. However, each child's respective therapist testified about what happened in treatment, including the children's behavior and statements the children made in treatment. The trial court overruled the parents' objections (including those on hearsay grounds) and allowed the therapists to testify concerning the children's behavior and statements.
In response to questions about whether older child's statements or other signs of distress might be due to the actions of people other than Mother and Father, older child's therapist testified that older child had only mentioned Mother and Father to her. She explained that she focused on providing treatment and not necessarily on determining whether the child's statements were factually true. To the extent that her testimony might be interpreted as indicating that older child stated her parents had molested her, the trial court made clear that it did not believe any such statements and it did not find that either parent had molested the child.
Essentially the trial court did not rely on the therapists' testimony in determining the applicable ground of parental unfitness—for example, it did not find that the parents had caused or allowed sexual abuse or exploitation of either child, see KRS 625.090(2)(f), but instead found that each child had continuously remained in foster care for well over fifteen months. See KRS 625.090(2)(j). However, the trial court appropriately considered the therapists' testimony regarding each child's mental and emotional health and prospects for improvement in determining that termination was in each child's best interests. See KRS 625.090(3)(e).
Whether or not the trial court erred in admitting or construing any evidence relating to unsubstantiated abuse allegations, the trial court did not find that either Mother or Father had abused either child. Far from allowing unsubstantiated abuse allegations to taint the trial, the trial court rejected such allegations. Instead, the trial court found neglect and grounds of parental unfitness based on the length of time the children were in foster care. Neither parent has disputed the factual accuracy of the trial court's finding about how long the children remained in foster care. Thus, any error in admitting evidence related to unsubstantiated abuse allegations was harmless and does not merit relief under Kentucky Rules of Evidence ("KRE") 103 and CR 61.01.
Trial Court's Termination Under These Facts Is Not Inconsistent With Precedent
The Cabinet argued in its briefs that the trial court properly performed the analysis required by KRS 625.090, and its decision to terminate parental rights is not clearly erroneous but is supported by substantial evidence. We agree.
The Cabinet also argued that:
Unless this Court determines the trial court has applied its discretion so improperly as to rise to the level of a decision that is clearly erroneous, this Court must uphold the ruling of the lower court. R.C.R. v. Commonwealth of Kentucky, Cabinet for Human Resources, 988 S.W.2d 36, 38 (Ky.App., [sic] 1998).(Appellee's Brief for each case, p. 13.)
In response to the Cabinet's invocation of R.C.R. to uphold the trial court's ruling, Father argues in his reply brief that the trial court's decision should not be upheld in light of M.E.C., 254 S.W.3d 846. We disagree. Despite some limited factual similarities, we are not compelled to vacate the trial court's decision based on M.E.C. due to substantive distinctions between the two cases.
The decision to terminate in M.E.C. did not depend on the ground of unfitness which the trial court found here—i.e., a child having spent more than fifteen months in foster care over the relevant period since the petition was filed. Instead, the grounds of parental unfitness found in M.E.C. were failure to provide essential care and protection to the child and failure to provide necessities such as food and clothing. 254 S.W.3d at 854. As we noted in M.E.C., the trial court would have to find no reasonable expectation of improvement to terminate based on failure to provide parental care and protection. Id. at 854-55. See also KRS 625.090(2)(e).
Unlike termination based on other grounds like failure to provide parental care, termination based on a child spending more than fifteen months in foster care does not necessarily require a finding of no reasonable expectation of improvement. See KRS 625.090(2)(j). Even if the trial court should have considered whether there was some reasonable expectation of improvement, we believe that it did so implicitly in determining that neither parent proved that the children would not continue to be neglected if returned to their care. And we cannot say that it solely focused on past actions—instead, it considered present and future parenting capacity as it determined that both parents currently lacked a stable home and income and were not capable of providing stability for themselves, much less their children. Cf. M.E.C., 254 S.W.3d at 850, 853, 854-55 (reversing as the trial court had improperly focused solely on past conduct and not on evidence of recent improvement including mother's full-time employment and her taking parenting classes, which she paid for, on her own initiative).
We also noted in M.E.C. that the Cabinet sought termination less than a year after the children were removed from the mother's home, that the mother had suffered a traumatic brain injury requiring hospitalization, that there was evidence of the mother meeting the children's needs and no evidence that the children suffered harm directly due to the mother's actions, that the Cabinet failed to provide reasonable services accommodating the mother's needs, and that the mother was employed full-time by the close of trial. See id. at 849, 854-55.
We are certainly aware of the magnitude of termination proceedings, the need to make sure that all statutory requirements are met, and precedent recognizing that incarceration, standing alone, does not justify termination of parental rights. See id. at 849. But based on our independent review of the record here, we conclude that the trial court did not err in terminating parental rights.
Although the trial court noted in its detailed findings that Father had been incarcerated for a matter of months on several occasions and Mother for a brief period on one occasion, this was not the sole or even a primary basis for its decision. Rather, the trial court observed that the children had remained in foster care for years due to the parents' inability to provide a safe and stable environment. And it found that they failed to prove that the children would not continue to be neglected if returned to their care.
Given the substantive distinctions in the facts of this case (including duration of foster care and the parents' long-standing lack of stability), we cannot say that M.E.C. compels that we reverse or vacate the trial court's decision here.
In sum, the trial court performed the analysis required by KRS 625.090 and its factual findings are supported by substantial evidence and not clearly erroneous. We also discern no misapplication of the law or abuse of discretion in the trial court's decision to terminate parental rights based on our review of the record. Thus, we affirm.
CONCLUSION
For the foregoing reasons, the judgments of the Jackson Circuit Court, Family Court Division, are hereby AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT L.M.P.: Carl A. Short, II
Manchester, Kentucky BRIEF FOR APPELLANT B.H.: Kenneth S. Stepp
Manchester, Kentucky BRIEFS FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky