CAPERTON, Judge.
Queen Deborah Ca'mel appeals from the Jefferson Circuit Court's affirmation of the Louisville Metro Police Merit Board's (the "Board") decision upholding the termination of Ca'Mel's employment with the Louisville Metro Police Department ("LMPD"). Ca'Mel also appeals the circuit court's denial of her summary judgment motion for her claim against the LMPD for a violation of the Open Records Act. After a thorough review of the parties' arguments, the record, and the applicable law, we agree that the Board erred in considering Ca'Mel's Academy performance; thus, we vacate and remand this matter for the Board to only consider Ca'Mel's time as an officer; i.e., her post-Academy conduct, which necessarily includes her performance during probation.
The facts of this appeal were presented to the Board at a four-day hearing. On or about June 29, 2009, Ca'Mel was hired as a police recruit and attended the LMPD Academy. Within the first few weeks of the Academy, Ca'Mel encountered difficulties. On August 14, 2009, she failed a test related to nighttime emergency response driving. On August 25, 2009, she failed a firearms test. On August 28, 2009, she failed the firearms handgun (low light) test and on September 9, 2009, she failed the baton/OC test.
Ca'Mel also did not perform well in training scenarios. On December 30, 2009, in a training scenario, Ca'Mel missed threats to herself during a domestic violence role playing scenario; in another training scenario that same day, Ca'Mel attempted to taser one subject and then to immediately taser the second, in contravention of what she had been taught. The taser could not be redeployed without removing the probes from the first individual. The Academy instructor noted that after 28 weeks in the Academy, Ca'Mel failed to show competence in the proper use of tactics or the use of her equipment.
During the scenario when her partner was being struck repeatedly by one of the role players, Ca'Mel attempted to get the "subject" off her partner by pointing her fake firearm at the subject, and telling him to stop. When he did not stop, she "fired" by saying "bang, bang." This caused one of the training officers to tell her that she murdered the subject as there was no need for the use of deadly force; that she needed to review and study all policy, procedure, law, and training materials related to the use of force and intermediate options.
Then on December 31, 2009, the training officers had to stop the training scenario due to safety violations. Ca'Mel was repeatedly told not to point the taser in the instructor's eyes. When she was reprimanded for not using the manual sites on the weapon, Ca'Mel responded that she was using the manual sites. Ca'Mel became defensive, argumentative, and did not respond to the criticism offered to help correct her deficiencies. The drill instructors felt that they could no longer get their point across, and Sgt. Kessinger had to step in and further counsel her. The trainers offered to bring in a county attorney to counsel her individually on the use of force issues, but Ca'Mel declined.
Ca'Mel also had a verbal altercation with another recruit while at the Academy. On November 18, 2009, one of the drill instructors, Officer Turner, observed Ca'Mel yelling at her squad leader. Recruits were told to treat their fake weapons as if they were a loaded, live weapon. During the training exercise, Ca'Mel pointed her fake weapon at another recruit and the recruit attempted to correct her. Ca'Mel then began yelling at the recruit. The squad leader separated the two and told them to stop arguing. About ten minutes later Ca'Mel was outside and still yelling about the incident to another recruit. The squad leader went over to her and told her she needed to drop it. Instead, she started screaming that she didn't care what anybody said; she was going to do what she wanted to do. Officer Turner observed Ca'Mel yelling at her squad leader in a public place in view of a parking lot used by University of Louisville students and local citizens. When Officer Turner asked her about it, she started yelling at him. Following this incident, Ca'Mel was required to write a memorandum of apology to her class coordinator.
Despite these issues, Ca'Mel graduated from the Academy and was sworn in as a probationary officer. An LMPD's officer probationary period lasts one year. Directly out of the Academy, a probationary officer enters LMPD's police training officer ("PTO") program which lasts twenty weeks and has four phases. The first week is where the probationary officer ("PO") goes to a division and receives orientation. The second week begins the phases.
First, there is a four-week phase in non-emergency response, followed by a four-week phase in emergency response. These phases occur in the PO's first assigned division with the PO's first assigned police training officer. At the end of the eight weeks is a one-week evaluation period known as the midterm evaluation where the PO is evaluated by a police training evaluator ("PTE") who is a different officer than the PTO.
After the midterm evaluation, the PO is transferred to a second division with a different PTO. The PO spends four weeks emphasizing patrol activities, followed by four weeks emphasizing criminal investigation, then a final evaluation and a one-week exit week. The goal of the PO program is not to teach the PO how to be a police officer but instead how to be lifelong, career-long learners.
Ca'Mel's PTO during her first eight weeks was Officer Schmuckie. The PTO testified that Ca'Mel did not accept criticism well, that she became defensive when she was critiqued, and she had difficulty with officer safety, self-awareness, and report writing in her first phase. Specifically, on February 25, 2010, Ca'Mel had a suspect against a van; the suspect pushed off the van and made his way behind her. Another officer had to subdue the suspect as Ca'Mel made no attempt to regain control of him. She then began searching him and found a large sum of money in his pocket. Instead of removing herself from close proximity to the subject, Ca'Mel elected to count the money crouched down next to the subject within easy reach of his elbow. The PTO attempted to counsel Ca'Mel about these issues; Ca'Mel repeatedly stated that the suspect never got behind her.
At the conclusion of the eight weeks, Sgt. Mason performed Ca'Mel's midterm evaluation in April 2010. She failed. Sgt. Mason did not find one specific instance that mandated that Ca'Mel failed but instead stated that the failure was the culmination of her issues. She did not pass four of the fifteen core competencies, specifically: radio communication, report writing, officer safety, and self-awareness.
In regard to radio communication, Ca'Mel had several missed radio transmissions, including one causing dispatch to hit the emergency alert, which Sgt. Chambers testified was a serious matter. In regard to report writing, Ca'Mel was unable to complete reports without assistance; for example, she could not determine the correct criminal charge. In regard to officer safety, there were several issues documented where Ca'Mel took poor positions, including one in which she allowed a civilian to hold her flashlight in a position that would have allowed them to use it as a weapon against her. She also stopped someone, was running his ID for warrants, stood very close to him, and did not shield her weapon from him. In regard to self-awareness, there were repeated citations of her not accepting constructive criticism and being argumentative when her deficiencies were drawn to her attention.
Following her failure of the midterm, Ca'Mel repeated the first two phases with a new PTO, Eddie Asbury. Thereafter, she passed her midterm and moved onto the last two phases in the Seventh Division with PTO Tim Stokes and her final evaluation was completed by Stuart Owen. Owen passed Ca'Mel. Ca'Mel began her solo assignment within the Seventh Division but then was transferred to the First Division shortly thereafter.
In late 2010, while riding solo in the First Division, Ca'Mel radioed for her backup to "step it up." All officers who were questioned indicated that this meant they should go "Code 3"-where they would try to drive safely but would travel with lights and sirens on, faster than the speed limit, and disobey traffic signals if possible. Once backup arrived, it became apparent that there was no need for them to "step it up."
On December 20, 2010, Ca'Mel was leaving the FOP parking lot following her shift when she struck a pole. Standard Operating Procedure ("SOP") 4.18.2 provides that a police officer should contact his or her immediate supervisor any time he or she is involved in an accident. Ca'Mel informed Sgt. Mann with the Professional Standards Unit that the accident occurred around 7:40 a.m. Instead of contacting her supervisor, Ca'Mel first contacted her partner in the First Division, who told her to contact the supervisor. Ca'Mel then went to the LMPD garage to see if they could fix the car but they told her they could not without the proper paperwork. She then contacted Sgt. Andrea Brown, who informed her to contact her supervisor. Around 10 a.m. Ca'Mel contacted her supervisor.
On December 28, 2010, there was a fire at 29th and Bank Street and traffic was shut down because of the firefighters and their hoses. Officer Johnson was blocking 29th Street south of Bank Street and there was a hose just north of him. Ca'Mel came around Officer Johnson and drove over the hose and up onto the curb to go back to the district. Officer Paul Humphrey saw the incident and testified that if a civilian had driven in such a manner, they would have at least gotten a ticket or possibly have gone to jail.
Ca'Mel's probation was set to end on January 29, 2011. On January 7, 2011, Major Jeffrey Wardrip, the commander of the Second Division, sent a memorandum to the Chief's office setting out that, at a minimum, Ca'Mel's probationary period should be extended. LMPD filed a motion with the Board requesting a three-month extension of Ca'Mel's probation and the motion was granted. While Major Wardrip communicated to Ca'Mel that her probation would be extended, she did not receive this notice in writing.
On February 11, 2011, Ca'Mel was still riding solo and LMPD command believed that she was still on probation. Ca'Mel came across some individuals in Riverfront Park having coitus in the back of a van. Two other officers, Officers Drury and Sanders, responded to the scene and backed Ca'Mel up. Ca'Mel placed the female, Melinda Daugherty, under arrest for operating under a suspended license and no insurance.
The two backup officers became concerned because they did not think Daugherty was operating the vehicle when Ca'Mel came along and, thus, Ca'Mel could not arrest her for a misdemeanor not committed in her presence. Ca'Mel told Professional Standards Unit that she realized the mistake once she got Daugherty down to Corrections. Sgt. Seabolt told her that criminal trespass in the third degree would be a proper charge. Ca'Mel then amended the citation to reflect that charge. However, at the time of the arrest, the charges were operating on a suspended license and no insurance; thus, Ca'Mel did not have a valid basis for taking Daugherty into custody.
On March 4, 2011, LMPD gave a letter to Ca'Mel informing her that her employment was terminated effective that date to promote the efficiency of the department. Ca'Mel's counsel filed an appeal to the Board, arguing that no written notice had been provided Ca'Mel to extend her probation and, thus, she was no longer a probationary employee and the decision to terminate her must comply with the rules of the Board. Chief White thereafter rescinded Ca'Mel's termination by letter on March 18, 2011, and informed her that her police powers were suspended pending the outcome of the Professional Standards Unit ("PSU") investigation of her past conduct.
On March 31, 2011, PSU Investigator Sgt. Chuck Mann issued his Summary/Findings and Conclusions, finding that Ca'Mel had violated LMPD SOP 4.18.2 for not properly reporting the accident she had in the FOP lot and SOP 10.1.3 when she arrested Daugherty on improper charges.
On May 16, 2011, Chief White sent a letter to Ca'Mel informing her that her employment with the LMPD was terminated based on his review of the PSU investigation and his own investigation into her conduct as an officer. In this letter, Chief White set forth the following violations of SOP. First, Ca'Mel violated SOP 4.18.2, Damage to LMPD equipment or vehicle for the December 20, 2010, accident in the FOP parking lot. Next, she violated SOP 10.1.3, Arrest without a warrant on February 11, 2011, for the arrest of Daugherty. Third, Ca'Mel violated SOP 5.1.3, Conduct Unbecoming for the following reasons: (1) failing six performance tests at the Academy; (2) for declining separate counseling or training session about the need for counseling on the use of deadly force and the decline of remedial training by a county attorney on such; (3) for safety violations during a training scenario and the lack of proficiency with a taser; (4) for failure to respond well to criticism; (5) failure to successfully complete midterm PTO evaluation due to poor performance in radio communication, report writing, officer safety, and self-awareness; (6) violated policy 5.1.3 during a traffic stop on February 25, 2010, where the subject moved behind Ca'Mel which Ca'Mel denied; (7) violated policy 5.1.3 again on December 28, 2010, when Ca'Mel interfered with the work of firefighters and police officers working a fire by driving over a hose and onto the sidewalk; and (8) violated policy 5.1.3 when during a traffic stop she asked for backup to step it up to Code 3. Ca'Mel violated SOP 5.1.11, Courtesy, by exhibiting rude, unprofessional conduct towards a drill instructor, as well as fellow recruits at the Academy. Last, Ca'Mel violated SOP 5.1.33, Punctuality/Reporting to Duty by arriving late on August 30, 2009, to the Ironman detail.
On May 26, 2011, Ca'Mel filed a request for a Board hearing, arguing that the charges did not justify termination, that LMPD failed to provide necessary notice of the acts or omissions alleged to have occurred, unjustifiably conflated separate discreet events, that charges should have been timely brought, and that LMPD unjustifiably considered events that occurred during her Academy training and probationary status.
The hearing took four days: September 12, 13, October 4, and October 24, 2011. At the conclusion of the hearing, the Board issued a forty-page findings and order wherein the Board upheld Ca'Mel's termination, concluding that Chief White was justified in dismissing her from the LMPD. Ca'Mel then appealed to the circuit court.
Ca'Mel argued to the circuit court that the Board's ruling was erroneous, that the termination was not justified, and brought a claim for violation of the Open Records Act alleging that the LMPD failed to make timely disclosure of all the records requested and that said failure was willful. After hearing the parties' arguments, the court entered an order affirming the Board and finding that the Board's decision was not arbitrary, nor in violation of Ca'Mel's due process rights. The court also granted summary judgment to the LMPD on the Open Records Act claim holding that as a matter of fact and law Ca'Mel could not prevail on the claim that the failure to produce certain records was willful. It is from this opinion and order that Ca'Mel now appeals.
On appeal, Ca'Mel first argues that substantive errors require reversal. In support thereof, she argues the Board's standard is whether discipline is justified, not whether it, "promotes efficiency of the service"; LMPD improperly treated Ca'Mel as if she were still on probation; reliance on Academy and PTO requirements was in error; post-PTO events do not justify termination; termination for long-past training performance is inherently arbitrary; resurrection of events for which the LMPD chose not to impose formal discipline is arbitrary; and a decision not to discipline is also binding. She next argues that procedural and due process errors require reversal. In support thereof, Ca'Mel argues that she received inadequate notice of charges which required the dismissal of certain charges; admission of evidence on events not charged was prejudicial; and use of transcribed statements for purposes other than impeachment violated confrontation of witness rights. Last, Ca'Mel argues the circuit court's summary dismissal of the Open Records claim was in error.
In contrast, LMPD first argues that the court correctly upheld the Board's decision as it was supported by substantial evidence. In support thereof, LMPD argues the court applied the proper standard in upholding the Board's decision; consideration of Ca'Mel's Academy and probationary performance was not arbitrary; and there was substantial evidence supporting the Board's determination to uphold Ca'Mel's termination. Next, LMPD argues there were no procedural or due process violations requiring reversal. In support thereof, the LMPD argues they provided sufficient notice of the charges; the admission of evidence of events not charged does not render the Board's decision arbitrary; the right to confront witnesses was not impeded. Third, LMPD argues the court correctly granted summary judgment to LMPD on the Open Records Act claim.
Last, the Board argues the court correctly determined that the Board's decision to uphold Ca'Mel's termination was neither arbitrary nor in violation of her due process rights. In support thereof, the Board argues that it applied the correct standard of review in Ca'Mel's termination; the Board correctly determined that Ca'Mel was not treated as "probationary"; the Board properly considered Ca'Mel's issues while at the Academy; the court correctly determined that the Board properly received evidence of Ca'Mel's conduct that occurred during her probationary period; and the LMPD and the Board properly considered events for which the LMPD did not previously impose discipline. Next, the Board argues the court correctly determined that Ca'Mel received a full and fair hearing. In support thereof, the Board argues that Ca'Mel was provided with adequate notice of the charges against her; the Board did not receive evidence that was prejudicial to Ca'Mel; and the witness statements contained in the PSU investigation file did not violate Ca'Mel's right to confront witnesses.
With these arguments in mind, we turn to the first issue presented, whether the Board's decision in upholding Ca'Mel's termination was arbitrary.
In Crouch v. Jefferson County, Kentucky Police Merit Board, 773 S.W.2d 461 (Ky. 1988), the Supreme Court of Kentucky held that the standard of review to be applied by the circuit court in this type of case is a modified de novo. As explained in Brady v. Pettit, 586 S.W.2d 29 (Ky. 1979), this standard allows the reviewing court to invade the mental processes of the Merit Board to determine whether its action was arbitrary. To determine arbitrariness, the circuit court may review the record, the briefs, and any other evidence or testimony which would be relevant to that specific, limited issue. A decision is arbitrary if it is clearly erroneous. Crouch at 464, citing Thurman v. Meridian Mutual Insurance Company, Ky., 345 S.W.2d 635, 639 (1961). The appeal to circuit court is not the proper forum to retry the merits. It is limited only to the question of whether the Merit Board's action was clearly unreasonable. Crouch, 773 S.W.2d at 461.
On appeal from the circuit court, however, this Court is guided by the clearly erroneous standard set out in Kentucky Rules of Civil Procedure (CR) 52.01. We are not to disturb the determinations of the trial court unless they are not supported by substantial evidence. Stallins v. City of Madisonville, 707 S.W.2d 349, 350 (Ky. App. 1986). Of course, as with any appeal from a decision of an administrative agency, we review the trial court's application of the law to the facts de novo. See Reis v. Campbell County Board of Education, 938 S.W.2d 880, 885-86 (Ky. 1996).
Sub judice, Chief White utilized Kentucky Revised Statutes (KRS) 67C.321(1) to terminate Ca'Mel's employment, wherein, "Any officer may be removed, suspended for a period not to exceed thirty (30) days, laid-off, or reduced in grade by the chief for any cause which promotes the efficiency of the services ..." As Ca'Mel appealed this to the Board, the Board was vested with the authority to review Chief White's decision to terminate Ca'Mel's employment via KRS 67C.323(1):
Thus, per statute, the Board reviewed the dismissal of Ca'Mel to see whether the decision was unjustified or unsupported by proper evidence. After four days of the hearing, the Board concluded that the Chief's action was justified.
Ca'Mel then appealed the matter to the circuit court, where the court concluded that the record substantially supported the Board's decision to uphold Ca'Mel's dismissal. We agree in part. While Ca'Mel has presented this Court with case law from our sister states, we have found no binding precedent which required the Chief and the Board to only view Ca'Mel's employment record beginning with the start of her non-probationary employment.
Next, Ca'Mel argues that procedural and due process errors require reversal. In support thereof she claims that inadequate notice of charges required dismissal of certain charges, that admission of evidence on events and not charges was prejudicial, and that the use of transcribed statements for purposes other than impeachment violated confrontation of witness rights.
In response, the LMPD and the Board argue that Ca'Mel received adequate notice of the charges as she was put on notice what she would be called upon to defend against, the admission of evidence on events not charged was not prejudicial as the Board did not rely upon said evidence in reaching its decision, and the use of transcribed statements did not violate Ca'Mel's rights as she was free to subpoena the witnesses. We shall address each claimed violation in turn.
First, Ca'Mel argues that she did not receive adequate notice of the charges brought against her. In the letter terminating her employment, Chief White set out each separate violation of SOP. Ca'Mel argues that she did not receive adequate notice as not every noted violation included a specific date attached to it; instead some of the violations set forth that this occurred at the Academy or that she failed the PTO midterm evaluation.
We note that due process has two meanings:
Miller v. Johnson Controls, Inc., 296 S.W.3d 392, 397 (Ky.2009).
Regarding procedural due process, it has oft been said, "[o]rdinarily, notice and an opportunity to be heard are the basic requirements of due process." Storm v. Mullins, 199 S.W.3d 156, 162 (Ky. 2006). Thus, the hallmarks of procedural due process are notice and an opportunity to be heard. See Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464 (Ky. 2005) ("The fundamental requirement of procedural due process is simply that all affected parties be given "the opportunity to be heard at a meaningful time and in a meaningful manner."). Due process includes, at a minimum, reasonable notice of the Board's intended action and a meaningful opportunity to be heard. Abul-Ela v. Kentucky Bd. of Medical Licensure, 217 S.W.3d 246, 251 (Ky. App. 2006), citing Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970).
The Goldberg Court went on to state, "In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." Id., 397 U.S. at 267-68, 90 S.Ct. at 1020.
We believe that Ca'Mel received adequate notice to defend herself from the alleged violations of SOP. The Chief set forth with sufficient specificity exactly what Ca'Mel would be called upon to defend and the timeframe upon which the charges arose. We decline to reverse on this ground.
Ca'Mel next argues that admission of evidence on events not charges was prejudicial, specifically, testimony offered by PTO officer Jessica Schmuckie. LMPD and the Board argue that the Board's decision was not based on the evidence Ca'Mel takes issue with. We agree.
The Board in its detailed order summarized Schmuckie's testimony but it did not adopt said testimony as a finding of fact. As the Board did not rely upon Schmuckie's testimony, we cannot say that Ca'Mel was prejudiced by said testimony. Thus, we decline to reverse on this ground.
Ca'Mel then argues that the use of transcribed statements for purposes other than impeachment violated her right to confront witnesses. Ca'Mel objected to the introduction of PSU statements taken of witnesses during the course of the investigation. LMPD argues that the Board permitted the statements to be introduced for the purpose of allowing the Board to have as part of its record what the Chief considered in making his decision. LMPD further argues that the Board explicitly held that the statements did not come in as fully recognized fact and there is no indication that it so relied upon the statements for its determination.
The Board argues that the introduction of the statements did not deprive Ca'Mel of any right to confront witnesses against her as she was free to subpoena the witnesses and question them before the Board. We agree. Given that Ca'Mel received copies of the witness statements during discovery she was free to subpoena the witnesses if she believed that further questioning was warranted. Thus, we decline to reverse on this ground.
Last, we address whether the court erred in granting summary judgment to LMPD on the Open Records Act claim. We note that the applicable standard of review on appeal of a summary judgment is, "Whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03. The trial court must view the record, "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id. However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992), citing Steelvest, supra. See also O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). Since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001).
Sub judice, the court was presented evidence that Ca'Mel sent an open records request to LMPD on May 26, 2011. The LMPD provided the records on June 7, 2011. It was later discovered that some of the requested training records were not included in that response. Thus, a second request was made on October 7, 2011. LMPD provided the records on October 24, 2011, on a CD, the last day of the Board hearing. Ca'Mel's counsel was unable to play said CD that day. The court concluded that Ca'Mel had not been prejudiced, i.e., damaged, even assuming arguendo that LMPD's failure to include all the documents in its original response was a violation of the Open Records Act. Moreover, the court found as a matter of law and fact that the records were not willfully withheld by the LMPD and, thus, Ca'Mel could not prevail at trial, and granted summary judgment.
At issue, KRS 61.882(5) gives the circuit court discretion to award fees and other costs if it determines that a violation of the act is "willful." Willfulness is a factual determination to be made by the circuit court and will only be disturbed if it is clearly erroneous. Sinha v. Univ. of Ky., 284 S.W.3d 159, 162 (Ky. App. 2009). To establish willfulness, the party seeking costs must show bad faith with intent to violate the Act, and there must be no plausible explanation for the alleged errors. Id.
Sub judice the court was presented the affidavits of Maj. Greenwood, Sgt. Chambers, and Sgt. Knoop that the complete training records of Ca'Mel were kept separately by different records custodians and that because Maj. Greenwood was not aware of that fact, he inadvertently only requested the training records from the Academy from Sgt. Chambers and not the post-Academy training records from Sgt. Knoop. Based on the record, we cannot say that the court was clearly erroneous in its finding that the records were not withheld willfully. Thus, we decline to reverse on this ground.
In light of the aforementioned, we vacate and remand for the Board to only consider Ca'Mel's performance as an officer in their assessment of whether the decision to terminate her was unjustified or unsupported by proper evidence.
COMBS, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION ON GROUNDS THAT SUFFICIENT EVIDENCE TO TERMINATE HER WAS PRESENTED.
