author: COURTNEY HUDSON HENRY, Judge. GLADWIN, J.,

text:
    2009 Ark. App. 180
    Carmal Renee DOWDY and Walter Dowdy, Appellants, v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. CA 08-1112.
    Court of Appeals of Arkansas.
    March 11, 2009.

      Deborah R. Sailings, Ark. Pub. Defender Comm’n, Little Rock, for appellants.
    Tabitha Baertels McNulty, Office of Chief Counsel, Little Rock, for appellee.
    Chrestman Group, PLLC, by: Keith L. Chrestman, Jonesboro, attorney ad litem for appellee minor child.
   COURTNEY HUDSON HENRY, Judge.

| Appellants Carmal Renee Dowdy and Walter Dowdy appeal from the order of the Craighead County Circuit Court terminating their parental rights to their daughter, S.D., whose date of birth is December 15, 2006. For reversal, the Dowdys contend that the trial court’s decision is not supported by the evidence, both as to the grounds for the termination and the court’s findings regarding the best interest of the child. Based on the standard of review and the applicable law, we must affirm.

This case began on February 5, 2007, when appellee, the Department of Human Services (DHS), took emergency custody of S.D., who was almost two months old. DHS acted in response to a telephone call placed by Mr. Dowdy to the Child Abuse Hotline. The affidavit in support of the emergency petition indicated that S.D. was not being fed properly. |2Mrs. Dowdy would mix eight ounces of formula, feed the child half, and then properly discard the remainder. However, mixing too much formula ultimately caused the Dow-dys to run out of formula, which prompted Mr. Dowdy to call the Child Abuse Hotline for assistance in the middle of the night. Mr. Dowdy was not able to understand Mrs. Dowdy’s explanation that they had a voucher for formula that could have been used to resolve this problem. The affidavit also reported that the Dowdys disclosed that they had also run out of formula in January. As a result, they fed the child non-dairy coffee creamer mixed with water for a week. When DHS took S.D. for a physical examination, her stool was solid white, which the doctor attributed to her being fed coffee creamer. The court granted the petition for emergency custody and later found probable cause for the child’s removal. On March 29, 2007, the trial court adjudicated S.D. dependent-neglected based on nutritional neglect. The court set reunification as the goal of the case plan.

In the months that followed, DHS provided the Dowdys an array of services, including parenting classes, referrals, drug screens, transportation, home visits, homemaker services, and visitation that occurred in their home. Specifically, Mr. Dowdy received training provided by the Center for Fathers and Families, and Mrs. Dowdy engaged in intensive parenting classes offered by PACES.

| ¡¡The Dowdys also received psychological evaluations. The results of the evaluations showed that Mr. Dowdy and Mrs. Dowdy functioned with diminished mental capacity and that Mr. Dowdy’s limitations were more pronounced than those of Mrs. Dowdy. For this reason, both received social-security disability benefits, which were their only source of income. Mr. Dowdy’s evaluation reported a history of brain damage since birth. His test scores indicated significantly low intellectual development and serious deficits in social comprehension and verbal skills. Mr. Dowdy’s profile reflected an individual who has difficulty with reasoning and who is prone to exploitation, confusion, and lapses in judgment. The evaluation report stated that Mr. Dowdy may have difficulty understanding spoken language and difficulty processing verbally-mediated information. With respect to Mrs. Dowdy, the evaluator wrote that she was notably simplistic with a tendency toward social naivety and that Mrs. Dowdy deferred to Mr. Dowdy on a number of issues. The report stated that indications of social and cultural deprivation, coupled with her low intellectual level, yielded substantial difficulties in safe parenting. The evaluator felt that, with favorable supports in place, Mrs. Dowdy might be able to effectively care for S.D.

The trial court held a permanency-planning hearing on January 15, 2008. The trial court found that DHS had made reasonable efforts to assist in reunification and that the Dowdys had complied with the case plan. Nevertheless, the court changed the goal of the case plan from reunification to the termination of parental rights. DHS filed a petition to terminate the Dowdys’ parental rights on February 20, 2008.

| ⅜At the termination hearing held on May 13, 2008, the trial court reviewed letters written by social-service professionals who had provided direct assistance to the Dowdys. The Executive Director of the Center for Fathers and Families informed the court that he recommended the termination of parental rights in light of “the tremendous safety issues and significant mental capacity challenges that I have observed.” The director stated that Mr. Dowdy was eager to learn but that he had to repeat classes on the same subject and that it was as if Mr. Dowdy “didn’t hear what we said the last time.” The caseworker at PACES also advised against reunification at that time. For a year, the caseworker visited the Dowdys three or four times a month, and in her letter, she wrote that the Dowdys at times lacked the mental capacity to fully provide for the child. She reported that Mr. Dowdy sought help with Arkansas Rehabilitation Services in the hope of finding employment, but this organization deemed him mentally unable to obtain a job or to benefit from their services. The caseworker had discussed with the Dowdys ways to save money, but she had not seen any positive results from that effort.

The trial court also admitted into evidence an evaluation status note from Mid-South Health Systems, Inc., concerning treatment Mr. Dowdy received there. The report noted that it was Mr. Dowdy’s seventh admission since 1989, and it listed diagnoses of post-traumatic stress disorder, mood disorder with obsessive traits due to brain injury, and mild mental retardation.

The trial court also listened to the testimony of witnesses, including Sylvia Richards, | Rwho was the court appointed special advocate volunteer assigned to instruct the case. Ms. Richards identified the Dowdys’ problems in feeding and dressing S.D. She alluded to the Dowdys’ feeding the child coffee creamer. She also described how they changed S.D.’s clothes at the beginning and end of every visitation, which caused them difficulty because they would not unfasten the snaps on the child’s clothing. Ms. Richards said that the Dow-dys were polite and receptive to suggestions but that it was a constant struggle to instruct them because it was necessary to repeat the same suggestions every week. She testified that, over the course of time, the instructions that the Dowdys received one week might not apply the next, and she had concerns about their ability to adapt to changing circumstances. She also expressed concern about their ability to supervise a toddler in terms of being aware of potential dangers. She spoke of a time when the child crawled too closely to a television set that sat low and on an unstable base, and she said that Mr. Dowdy did not appreciate the potential for danger and did nothing to stop the child.

Ms. Richards testified that, as the child grew older, she perceived that the Dowdys would need immediate, substantial, and ongoing assistance if the child were to live in the home. She said that the ideal situation would be for the Dowdys to live in a duplex with someone next door and available to them twenty-four hours a day. She explored the possibility of having a relative or a member of the Dowdys’ church provide twenty-four-hour-a-day assistance, but to no avail. Ms. Richards testified that DHS did everything in its power to help the Dowdys achieve reunification, and she knew of no additional services | fithat could be offered to achieve that goal. She said that DHS had even suggested an assisted-living facility but that the Dowdys flatly rejected that recommendation.

Ms. Richards further testified that, with assistance, Mrs. Dowdy was better equipped to parent the child. She said, however, that Mr. Dowdy was so domineering and that Mrs. Dowdy was so subservient to him that she would go along with his decisions, even when she knew that he was wrong. Ms. Richards believed that Mr. Dowdy’s dominance would prevent Mrs. Dowdy from being a suitable mother.

Ms. Richards also testified that Mr. Dowdy admitted to her that he was recently hospitalized because he accidentally took an overdose of his medication. She did not believe that the child would be safe in the Dowdys’ care.

Brandi Lace, the DHS supervisor in the case from the beginning, testified that S.D. was in a serious situation at the time of removal because of the Dowdys’ inability to feed her properly. Ms. Lace said that it was clear to her from the outset that the Dowdys displayed developmental deficiencies but that she awaited the results of the psychological evaluations to learn the depth of the problems. Ms. Lace stated that the Dowdys had completed every aspect of the case plan but that the services provided to them did not improve their ability to care for the child. She felt that the Dowdys’ inadequacies were a product of their psychological diagnoses and not due to a lack of education. Ms. Lace did not believe that the Dowdys possessed the mental capacity to care for a child and that the child would be at risk due to their limitations. She opined that, considering the problems the Dowdys had 17with meeting the basic needs of a small child, they would not be able to address her needs as she grows older.

Ms. Lace testified that her observations coincided with the traits noted in the psychological evaluations. She noted that Mr. Dowdy became frustrated easily and that he had difficulties communicating and understanding information relayed to him. She stated that Mr. Dowdy often felt it necessary to act as a liaison to convey information from others to Mrs. Dowdy and that the information he relayed would be incorrect. Ms. Lace also referred to Mr. Dowdy’s hospitalization after he took an overdose of medication. She said that he mistakenly understood that the medication was to be taken one way, when in reality it was to be taken another way.

Ms. Lace had also observed obsessive behavior displayed by Mr. Dowdy. He made continual and repeated complaints over such things as a mark on the child’s finger and his belief that the child’s clothes were too tight. He also complained that S.D. smelled like smoke when no one else was able to detect that odor. Ms. Lace also described a “bizarre” situation when Mr. Dowdy insisted that the child’s seat-belt was unfastened, although Ms. Lace knew that it was buckled. As a result, she stopped the car to make sure that he had not unfastened the belt just to prove his point.

Ms. Lace testified that Mr. Dowdy had a very dominant and outspoken personality, while Mrs. Dowdy was quiet and passive. She said that Mrs. Dowdy’s capabilities were greater than Mr. Dowdy’s but that his dominance in the relationship overshadowed her | ^ability to parent the child. She had concerns about the Dowdys dispensing medication to S.D. if she became ill. Ms. Lace questioned whether Mrs. Dowdy would read the medication instructions correctly or, if she did, whether Mr. Dowdy might advise her differently and incorrectly. She based this concern on the fact that Mr. Dowdy had overdosed on his medication, although Mrs. Dowdy knew that he was not taking the correct dosage. Yet, Mrs. Dowdy acted as though she was the one who was confused about the proper dosage.

Ms. Lace also testified that the Dowdys would need assistance if S.D. lived with them and that it would not be sufficient for someone to simply check on them every two or three days. She noted that two members of the Dowdys’ church had offered to be on call twenty-four hours a day. However, Ms. Lace did not trust the Dowdys to identify situations where they needed assistance and to request help from the church membership by placing a phone call. Ms. Lace also discussed the possibility of an assisted-living facility, but she said that appellants were inalterably opposed to the idea. Finally, Ms. Lace testified that S.D. was adoptable. She said that S.D. had been with the same foster parents since February 12, 2007, and that the foster parents wished to adopt her.

Mrs. Dowdy, age twenty-three, testified that she completed high school by taking resource classes and that she received disability for anxiety and depression. She said that she was adequately taking care of S.D. when the child was removed from the home. Mrs. Dowdy stated that, although she had wasted formula, S.D. never went without food. She understood that things did not come as easily to her as to others, but she said that she knew 19how to take care of her child. She stated that there was never a real problem about their feeding of the child and that she had learned a lot from the classes she had taken. Mrs. Dowdy denied that Mr. Dowdy was domineering, but she said that he had his opinions and could be strong-willed.

Mrs. Dowdy stated that they lived in a two-bedroom apartment and that she cleaned the house and cooked. She said that their disability checks covered their expenses and that they had sufficient means to provide for S.D. Mrs. Dowdy testified that she did not want to live in an assisted-living facility because they were able to parent in their home and to provide for themselves. She felt that S.D. could return home without supervision.

Mr. Dowdy testified that he was thirty-four years old and that he graduated from high school in Jonesboro by taking resource classes. He recognized that he did not understand things easily but said that he worked hard to offset that shortcoming. Mr. Dowdy stated that he learned a lot in the classes he had taken and that his church family was willing to help them. He said that he was a “little bit” domineering but that he did not tell Mrs. Dowdy what to do. Mr. Dowdy said that he did not want to move into an assisted-living facility because he was the father and felt that it was his responsibility to protect the family.

The trial court ruled from the bench and granted the petition to terminate appellants’ parental rights, after commenting that this was one of the most difficult cases the court had ever confronted. The court found that S.D. had been out of the home for more than twelve months and that the conditions which caused her removal had not been remedied by the |10Dowdys, despite the offer of appropriate services. The court also found that other factors had arisen since the filing of the petition that demonstrated that returning the child was not in her best interest. Specifically, the court found that the services DHS provided the family were extraordinary. Although the court was impressed by the Dowdys’ love for their child and their willingness to comply with the case plan, the court determined that the Dowdys did not have the ability to fully digest and implement the skills that are necessary to care for a child. In this regard, the court found that the overriding concern in the case was incapacity rather than indifference. The court also found that termination was in S.D.’s best interest in that she was adoptable and that returning her to the Dowdys’ care would expose her to a great risk of potential harm. The court entered its written order on July 10, 2008. This appeal followed, and the Dowdys contend that the trial court’s findings regarding the best interest of S.D. and the grounds for termination are clearly erroneous.

Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Sowell v. Arkansas Dep’t of Human Servs., 96 Ark.App. 325, 241 S.W.3d 767 (2006). Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) and (ii) (Repl.2008), an order terminating parental rights must be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parents. In addition, the proof must establish at least one of | n several statutory grounds. Ark.Code Ann. § 9-27-341(b)(3)(B). One of those grounds is that the juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parents for twelve months and, despite a meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents. Ark.Code Ann. § 9-27-341(b)(3)(B)(ii)(a). Another ground is that other factors arose subsequent to the filing of the original petition for dependency-neglect which demonstrate that returning custody to the parents is contrary to the juvenile’s health, safety, and welfare and that, despite an offer of appropriate services, the parents have manifested the incapacity or indifference to remedy the subsequent factors. Ark.Code Ann. § 9-27-341 (b)(3)(B)(vii)(<x). The facts warranting termination of parental rights must be proven by clear and convincing evidence. Ark.Code Ann. § 9 — 27—341(b)(3).

When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court’s finding is clearly erroneous. Lewis v. Arkansas Dep’t of Human Sens., 364 Ark. 243, 217 S.W.3d 788 (2005). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Arkansas Dep’t of Human Sens., 96 Ark.App. 247, 240 S.W.3d 626 (2006). We give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Lewis, supra.

In contesting the trial court’s finding that termination was in S.D.’s best interest, the Dowdys concede that the evidence supports a finding that S.D. is likely to be adopted, but they argue that the evidence is not sufficient to support a finding of potential harm should S.D. be returned to their custody. In making this argument, they acknowledge Mr. Dowdy’s difficulties, but they point out that the witnesses did not share the same concern as to Mrs. Dowdy. The Dowdys also contend that the evidence concerning potential harm is speculative because there is no way of knowing whether they will learn to properly care for the child.

According to Arkansas Code Annotated section 9-27-341(b)(3)(A), the trial court was only required to consider the potential harm to the health and safety of a child that might result from continued contact with the parents. See McFarland v. Arkansas Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). The court was not required to find that actual harm would result or to affirmatively identify a potential harm. Id. Furthermore, the supreme court has directed that the potential-harm analysis be conducted in broad terms. Bearden v. Arkansas Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001). Finally, the court’s potential-harm inquiry is but one of the many factors that a court may consider in a best-interest analysis. Id.

The trial court in this case was required to assess the Dowdys’ abilities as a parental unit, which included the influence of Mr. Dowdy. The testimony revealed that Mr. Dowdy 113was the decision-maker in the family and that Mrs. Dowdy yielded to Mr. Dowdy’s judgment, which was shown to be seriously flawed. Mr. Dowdy’s lapses in judgment included an overdose of his medication, which occurred even though Mrs. Dowdy knew the proper dosage. Together, they also fed the child coffee creamer instead of formula for an entire week. The evidence also showed that the Dowdys were not able to grasp or implement the lessons they had been taught, as it was continually necessary for those lessons to be repeated. The determination of potential harm is forward-looking by its very nature, and in this instance the trial court correctly looked to past behavior as a predictor of potential harm that may likely result if the child were returned to the Dowdys’ care and custody. We are not able to say that the trial court’s best-interest determination is clearly erroneous.

In challenging the grounds for termination, the Dowdys do not dispute the trial court’s finding that DHS provided meaningful and abundant services to them. They also recognize that they will always need assistance in caring for S.D. The Dowdys assert, however, that they fully cooperated with DHS and complied with every aspect of the case plan, and they argue that, given more time and additional services, they can continue to improve as parents.

In Wright v. Arkansas Dep’t of Human Servs., 83 Ark.App. 1, 115 S.W.3d 332 (2003), we observed that completion of the case plan is not determinative; rather, what matters is whether completing the requirements of the case plan achieved the intended result of | Mmaking a parent capable of caring for the child. In the case of Meriweather v. Arkansas Dep’t of Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007), we recognized that parental inability or incapacity flowing from mental deficiency is among the statutory grounds for termination. We also rejected the mother’s argument requesting additional time and services on the basis of the legislature’s overriding intent to provide permanency in the life of a child. Our supreme court has also spoken on this issue in J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997), where the court affirmed a termination decision when the mother was not capable of learning how to be a parent because of mental deficiencies and mental illness.

Here, the court adjudicated S.D. dependent-neglected based on nutritional neglect. However, this was but one aspect of a broader condition arising out of the Dowdys’ mental deficiencies. From our review, the record supports the trial court’s finding that the Dowdys lack the capacity to adapt to the ever-changing demands and challenges of raising a child. Ample evidence also exists to support a finding that the provision of further services will not alter this immutable fact. No witness doubted the Dowdys’ love and devotion to their child. However, the Dowdys chose to reject the proposal for residing in an assisted-living facility, in spite of the fact that this was the only avenue by which they could achieve reunification. Based on the record and the applicable law, we are not left with a definite and firm conviction that the trial court mistakenly found that the Dowdys had failed in over one year to remedy the circumstances that caused the removal of the child, despite the offer of | ^meaningful services.

Only one ground is necessary to terminate parental rights. Fields v. Arkansas Dep’t of Human Servs., 104 Ark.App. 37, 289 S.W.3d 134 (2008). Therefore, we need not discuss the alternative ground found by the trial court as supporting termination.

Affirmed.

VAUGHT, C.J., ROBBINS, and GRUBER, JJ., agree.

GLADWIN and BAKER, JJ., dissent.

GLADWIN, J.,

dissenting.

The evidence in this case is insufficient to support the trial court’s order terminating appellants’ parental rights; therefore, I dissent.

Appellants’ two-month-old child S.D. was taken into custody after Mr. Dowdy placed a call to the Child Abuse Hotline. Appellants ran out of formula and did not have money to purchase more. The affidavit stated that S.D. appeared to be healthy, was clean and appropriately dressed. The case worker stated that neither parent appeared to understand how to care for the baby. The affidavit stated that Dr. Matthews attributed S.D.’s white stool to being fed coffee creamer, but that she would have a normal stool within fifteen hours. The only thing Dr. Matthews said needed to be watched was a heart murmur. The affidavit alleged inadequate food, rather than inappropriate food, despite a complete lack of evidence that the child was ill or underweight. Based on this affidavit the trial court entered an order of emergency custody.

ImOn March 29, 2007, the trial court entered an adjudication order finding that the Department exercised a 72-hour hold removing the child from immediate danger of severe maltreatment. The trial court specifically found the juvenile dependent-neglected due to nutritional neglect. The case goal was reunification with a concurrent plan of relative placement or adoption. Neither of the first two orders were appealed.

The Dowdys were provided with a number of services. The review order filed July 25, 2007, found that appellants had complied with the case plan, including completing psychological evaluations and following recommendations, completing parenting classes, working independently with other service providers, participating in visitation, and maintaining appropriate housing. Walter had continued working with the Center for Fathers and Families, and Mrs. Dowdy continued working with PACES. The trial court made no finding that appellants had failed in their obligation in any way. Despite appellants’ compliance with the trial court’s orders, a permanency planning order was filed on January 18, 2008, changing the goal to termination of parental rights.

The trial court reviewed the psychological evaluations for each of the appellants. The evaluations stated that Mrs. Dowdy was in the mild-intellectual-deficient range. Under impressions, the report states that Mrs. Dowdy “presents as free from psychopathological indicators, which would interfere with the care of her child.” Despite evidence of social/cultural deprivation, along with a mental-retardation level of functioning on the full intellectual assessment, which indicates difficulties with safe parenting, the examiner felt |17that “with favorable supports in place Ms. [Dowdy] may be able to care effectively for her child.”

Mr. Dowdy also was found to be in the mild-intellectual-deficient range. Further findings indicated he “may be construed as having significant difficulty in understanding basic needs of newborn infants.” It further found “of significance is the fact that he may have difficulty ‘understanding1 spoken language and processing verbally mediated information.” The recommendation was parenting skills with an emphasis on basics of child care.

At the termination hearing, the trial court reviewed a letter from Dr. Matthew Crain, Executive Director of the Center for Fathers and Families. He stated that he found the Dowdys to be very caring, loving parents who were devastated by their separation from their infant daughter. He stated that, like many new parents today, they are not prepared with all the skills they need but are eager to learn. Further Dr. Crain explained that appellants surrounded themselves with support from extended family, CASA, PACES, their church family, and Centers for Fathers and Families. He pointed out that they have endeavored to do whatever was asked of them and appeared to make great strides. Dr. Crain makes the perplexing observation that Mr. Dowdy appears to be an excellent student; however in the same discussion, states that he has been required to repeat classes on the same subject. He further stated that, in light of significant mental capacity challenges he observed, his recommendation has changed to termination.

| isQubelah Harden, case worker for PACES wrote in her report dated April 9, 2008, that she visited with appellants periodically. She further wrote that she outlined the basic services provided by PACES and discussed family finances with appellants. She wrote, “as for permanent placement of the child, I do not feel that right now she should be returned to the permanent custody of her parents. This is based solely on the financial status of the parents and how it affects their ability to care for her.” (Emphasis added.) She added “please note that the parents truly love and adore their child and would move heaven and earth to care for her. Who is to truly say yes or no on whether they can or cannot care for their child adequately?”

Sylvia Richards, a court appointed special advocate (CASA) volunteer, testified at the termination hearing. She testified that she observed the following things that contributed to her recommendation that appellants’ parental rights be terminated: a) S.D. was fed coffee creamer mixed with water; b) Renee changed S.D.’s diaper on her lap; c) Walter held S.D. too much; d) Walter allowed S.D. to crawl toward a television set that sat on a low and unstable stand; e) Renee suffered from sleep apnea; f) Walter accidentally took an overdose of his prescription medication; and g) Walter was the dominant person in the marriage. She testified, “Walter is a good person. It’s just his thinking is impeded.”

Brandi Lace, Craighead County Department of Human Services supervisor, testified that the department was recommending termination because S.D. is very young. She stated that Mr. Dowdy had issues with the department that he deemed major “that most people |13involved in the case don’t see as major issues.” Those issues included complaints about S.D.’s clothes, her smelling of smoke, and a concern as to whether S.D. was properly belted while riding in a car. Ms. Lace did not believe the Dowdys possessed the mental capacity to care for the child and that the child could be at risk due to appellants’ mental deficiencies. She repeated the concern over Mr. Dowdy’s dominate personality and appellants’ resistance to move into an assisted-care-residential situation. She further found fault with appellants’ inability to come up with an alternate plan to assisted living.

The majority opinion adequately sets out the Dowdys’ testimony.

The trial court’s order of termination found that S.D. had been out of the home for more than twelve months and that the parents lack the capacity to care for the child due to their mental deficiencies. The trial court noted that Mr. Dowdy had previously overdosed on his own medication due to a lack of understanding in how to take his medication, and this caused concern as to how he would give medication to the child.

Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Causer v. Arkansas Dep’t of Human Servs., 93 Ark.App. 483, 220 S.W.3d 270 (2005). It is not a challenge to find a case stating that “a parent’s interests in the nurture, upbringing, companionship, care and custody of children is generally protected by the Due Process Clause of the Fourteenth Amendment.” Troxel v. Granville, 530 U.S. 57, 77, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (Souter, J., concurring) (citing Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)).

However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Causer, supra. A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the allegation sought to be established. Id. This court recently stated in Strickland v. Arkansas Department of Human Services, 103 Ark.App. 193, 287 S.W.3d 633 (2008), that this standard of proof reduces the possibility that a parent’s rights are terminated based solely on a few isolated instances of unusual conduct or idiosyncratic behavior and impresses the fact-finder with the importance of the decision, thereby perhaps reducing the chances that inappropriate terminations will be ordered.

The trial court clearly erred in finding that S.D. was dependent neglected and in terminating appellants’ parental rights. Initially, the trial court erred in finding that S.D. suffered from nutritional neglect. There is no evidence in the record that S.D. was ill, underweight, or in anyway neglected. The sole evidence relating to nutrition of the child was the color of her stool, and the affidavit stated that this would resolve in fifteen hours. At most, feeding S.D. coffee creamer was inappropriate but not neglectful. I submit that the 121 appellants’ feeding of S.D. was no worse than parents who allow an overweight child to eat fast food. There is simply no evidence that this child was harmed in any manner whatsoever.

The trial court focused on appellants’ mental deficiencies in finding a lack of capacity to care for the child. However, the evidence shows that appellants knew they needed to care for S.D. The great irony in this finding is that had Mr. Dowdy not been concerned about S.D.’s feeding and had never called the hotline, this case would likely not be before us. Furthermore, Brandi Lace testified that Mr. Dowdy’s concern for S.D. was more than what she considered normal. It cannot be said that appellants do not have the capacity to understand S.D.’s needs on one hand, yet are overly protective on the other.

The trial court found that Mr. Dowdy’s one-time-accidental overdose was caused by a lack of understanding of taking his medications; however, there is no testimony as to the circumstances surrounding this episode. The trial court’s concern that this might result in harm to S.D. is logically flawed. The syllogism that Walter had an accident, therefore S.D. will have an accident does not follow. If it does follow logically, then all parents who have accidents may cause their children harm, thus their parental rights would be at risk.

The majority cites Meriweather v. Arkansas Department of Human Services, 98 Ark.App. 328, 255 S.W.3d 505 (2007), and J.T. v. Arkansas Department of Human Services, 329 Ark. 243, 947 S.W.2d 761 (1997), to support the position that a parent’s mental deficiency is among the statutory grounds for termination. These cases are easily distinguished from the present case. In Meriweather, supra, the child suffered broken bones, and the mother did not even acknowledge the injury. Further, the appellant showed her lack of interest by sleeping during visitation and failing to completely comply with the case plan. In J.T., supra, the child was also physically abused, and the parent suffered from mental illness. In the present case, the Dowdys were fully involved with S.D. and complied with the case plan.

The witnesses focused on appellants’ refusing to consider assisted living. It is apparent that although low functioning, the Dowdys worked hard to maintain their independence. There is simply no basis other than speculation that would require them to enter assisted living.

Today the law is clear that in Arkansas some people are just not smart enough to be parents. As there was no actual harm to S.D., the majority focuses on potential harm. I suggest one other scenario of potential harm. In her early teens, S.D. asks her adoptive parents:

S.D. Did my parents hurt or neglect me?
Parent: No, you were healthy, clean, and appropriately dressed when you were taken.
S.D. Did they not love me?
PARENT: No, they loved you very much, they would have moved heaven and earth for you.
S.D. Did they not understand that they needed to take care of me?
Parent: Yes, that is why your father called the hotline in the first place.
S.D. Then why did the State of Arkansas take me away?

Iasi will not speculate about the potential harm to S.D. for the answer to the last question.

I dissent.

BAKER, J., joins.

      . The dissent states that there was no evidence to support the finding of dependency-neglect made in the adjudication order. Appellants sought no appeal from that order, thus this finding is no longer open to chal-Ienge. Lewis v. Arkansas Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).

      . See Center for Science and Public Interest, Fast Food Study, Aug. 4, 2008.


source: Caselaw Access Project

author: D.P. MARSHALL JR., Judge.

license: Public Domain

text:
    2009 Ark. App. 177
    Michael GRIFFIN, Appellant, v. ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.
    No. CA 08-674.
    Court of Appeals of Arkansas.
    March 11, 2009.

      Kinard, Crane <& Butler, P.A., by: Steve R. Crane, Magnolia, for appellant.
    Gray Allen Turner, Office of Chief Counsel, Little Rock, for appellee.
   D.P. MARSHALL JR., Judge.

11Arkansas put Michael Griffin’s name on the Child Maltreatment Central Registry after the State Police concluded that abuse allegations against him were true. Griffin, a National Guard member, appealed the findings almost three years later. He claimed that the Soldiers’ and Sailors’ Civil Relief Act applied, thereby tolling his deadline to appeal while he was in active service. The DHS hearing officer — essentially an administrative law judge — concluded that the Act applied, but that Griffin’s appeal was still untimely. She ordered that his name remain on the Registry. The circuit court affirmed the hearing officer’s decision.

Griffin challenges the circuit court’s order, raising several points on appeal. Our review is directed not to the circuit court’s decision, but to the decision of the administrative Ragency. Dep’t of Health & Human Servs. v. R.C., 368 Ark. 660, 667, 249 S.W.3d 797, 803 (2007). Our review is thus limited to the two issues addressed by the hearing officer — the timeliness of Griffin’s appeal and the application of the Act. We cannot reach all the other points that Griffin urges on appeal.

The Administrative Procedure Act establishes different standards of judicial review depending on the kind of issue presented. Ark.Code Ann. § 25-15-212(h) (Repl.2002). Here, the material facts are undisputed matters of the calendar. The question, then, is one of law: did the Department’s decision barring Griffin’s appeal as untimely violate the Soldiers’ and Sailors’ Civil Relief Act? Ark.Code Ann. § 25 — 15—212(h)(1). Because the Department is not charged with administering the Soldiers’ and Sailors’ Civil Relief Act, we give no deference to the Department’s reading of the Act. Cf. Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 23-24, 89 S.W.3d 884, 890 (2002).

Griffin was a member of the Army National Guard. He testified that he received orders in March 2000 and began training then in various states. The March orders are not in the record. On 6 November 2000, while Griffin was home for a visit from military training in Colorado, he received a Determination Notification by certified mail. It stated that, after an investigation, the State Police had determined that sexual abuse allegations made by Griffin’s foster daughter were true. The Determination also stated that Griffin could appeal by requesting an administrative hearing within thirty days. Ark.Code Ann. § 12-12-512(c)(l)(C) (Supp.2007). Sixteen days later, Griffin received orders instructing him to report for active duty. He reported on 1 December 2000 and was deployed to Bosnia |^shortly thereafter. Griffin was released from active duty and came home from October 2001 through April or May 2002. Then he apparently returned to duty. Griffin did not file his appeal requesting an administrative hearing until September 2003.

After a hearing, the hearing officer concluded that the Soldiers’ and Sailors’ Civil Relief Act applied to Griffin’s circumstances. The Act tolls the statute of limitations applicable to service members during military service. It provides that the period of military service “may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding ... by or against the servicemember or [his or her] heirs, executors, administrators, or assigns.” 50 U.S.C. app. § 526 (Supp.2005). As to members of the Army National Guard such as Griffin, the Act applies when the member is “under a call to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days.” 50 U.S.C. app. § 511(2)(A)(ii) (Supp.2005). The Act also applies to Guard members (and other reserve-force members) during the period between receiving orders to report and reporting for military service. 50 U.S.C. app. § 516(a) (Supp.2005).

The words of this Act are plain and unambiguous. Rylwell, L.L.C. v. Arkansas Development Finance Authority, 372 Ark. 32, 36, 269 S.W.3d 797, 800 (2007). And we agree with the hearing officer that the Act applies to Griffin. Small v. Kulesa, 90 Ark.App. 108, 111-13, 204 S.W.3d 99, 101-03 (2005).

As the hearing officer also concluded, however, the Act’s tolling provisions do not help Griffin. She reasoned that Griffin got an additional thirty days to appeal the ^Determination when he returned from active duty in October 2001. The record is not completely clear about when Griffin first received orders. If, as he testified, Griffin received orders to report for training in March 2000, and was on active duty through October 2001, then the hearing officer correctly held that Griffin had thirty days starting in October 2001 to appeal the Determination. But if he did not receive his orders until 22 November 2000, as the hearing officer found, then we are not convinced that the Department applied the tolling statute correctly. Under this scenario, sixteen days elapsed between Griffin receiving the Determination and getting his orders to report for duty. The Act would thus entitle Griffin to only fourteen additional days to appeal after he returned from active duty in October 2001.

But the specific application of the tolling provision is moot here. Quinn v. Webb Wheel Products, 334 Ark. 573, 576, 976 S.W.2d 386, 387-88 (1998). Even giving Griffin the benefit of a full thirty days starting in October 2001, his 2003 appeal was still untimely as a matter of law. Griffin’s name should therefore remain on the Child Maltreatment Central Registry.

Affirmed.

ROBBINS and BROWN, JJ., agree.


author: RITA W. GRUBER, Judge.

text:
    2009 Ark. App. 174
    L.F. BRANDS MARKETING, INC., Appellant, v. DILLARD’S, INC., Appellee.
    No. CA 07-1210.
    Court of Appeals of Arkansas.
    March 11, 2009.
    Rehearing Denied April 22, 2009.
    Rodney T. Harmon; Ezra/Brutz-kus/Gubner LLP, by: Mark D. Brutzkus; and Wilson, Engstrom, Corum & Coulter, by: Nate Coulter, Little Rock, for appellant.
    Friday, Eldredge & Clark, LLP, by: David D. Wilson, Little Rock, for appellee.
   RITA W. GRUBER, Judge.

| [This case involves breach-of-contract claims between appellee Dillard’s, Inc., and appellant L.F. Brands Marketing, Inc. (L.F. Brands), one of Dillard’s suppliers. A Pulaski County jury awarded Dillard’s $1,265,938.98. On appeal, L.F. Brands argues that the written purchase orders between the parties control over prior oral agreements between the parties concerning allowances Dillard’s deducted from the account balance between the parties. We affirm.

L.F. Brands sold clothing to Dillard’s for many years. Dillard’s would submit purchase orders to L.F. Brands, describing the merchandise and price of the goods, among other |2things. A document entitled “Dillard’s, Inc. Purchase Order Terms, Conditions & Instructions” (“purchase order document”), applied to all transactions involving Dillard’s purchase orders. Included in that document was the following provision, hereinafter referred to as “paragraph A2”:

[L.F. Brands] acknowledges by acceptance and shipment against any Dillard Purchase Order that the terms, conditions and instructions stated herein, in the Purchase Order, [and in two other Dillard’s documents](collectively, the “Agreement”) shall bind [L.F. Brands] and shall constitute the entire agreement between Dillard and [L.F. Brands], which cannot be modified by either party except in a writing executed by both parties, or [another method]; provided, however, that this provision shall not apply to markdown allowance and other credits authorized by [L.F. Brands]....

In another provision, Dillard’s was allowed to offset all merchandise allowances, chargebacks, and other credits from any invoices or other amounts due L.F. Brands (“paragraph BU”). The purchase order document also contained a second merger/integration clause (“paragraph F6”), as well as a provision requiring any amendments, modifications, or cancellations to be in writing (“paragraph F7”).

L.F. Brands went out of business in December 2008. In February 2004, at the end of its fiscal year, Dillard’s deducted markdown allowances and chargebacks from its account balance with L.F. Brands. These allowances and charge-backs are the subject of this appeal. L.F. Brands filed suit for breach of contract on September 15, 2005, alleging that Dillard’s owed $2,367,601.19. Dillard’s denied the allegations of the complaint and asserted that the amount sought was subject to setoffs for claims, allowances, discounts, and chargebacks in Rexcess of the amount Dillard’s owed L.F. Brands. Dillard’s also filed a counterclaim seeking to recover the debit balance L.F. Brands owed.

The record before us contains undisputed testimony from several employees of both L.F. Brands and Dillard’s that the parties would agree on a gross margin for Dillard’s at the beginning of each fashion season. In 2003, the agreement would be that Dillard’s would have a 40% margin for L.F. Brands’ dresses and a 38% margin for sportswear. The parties would monitor the sales of the clothing throughout the course of the season, and allowances would be processed at various times during the year to make adjustments to the margins. At the end of the year, the parties would determine whether the gross-margin goal had been met. If it had not, the parties would negotiate on further allowances to achieve an acceptable margin less than the goal. In 2002, the parties had agreed on similar margins that were not met. After negotiations between the parties, Dillard’s processed allowances that allowed it to achieve margins greater than 30%.

Prior to trial, the circuit court denied motions for summary judgment by both parties, finding that the entirety of the parties’ agreement must be determined by looking to both the written documents, as supplemented by their oral agreements. The court further found that there was some ambiguity in paragraph A2 when read with the rest of the document,, particularly paragraph Bll. The court noted that parol evidence could be admitted to explain the ambiguity.

The case was submitted to the jury on instructions that included a definition of |/‘course of dealing” and that course-of-dealing evidence may be used to give particular meaning to and supplement the terms of the agreement. The jury found for Dillard’s on L.F. Brands’s complaint. The jury also found for Dillard’s on its counterclaim and awarded $1,265,938.98. Judgment was entered on the jury’s ver-diet on May 9, 2007. L.F. Brands filed a motion for judgment notwithstanding the verdict, asserting that the merger clause of the purchase order document superced-ed the prior oral agreements concerning merchandise allowances. The circuit court did not rule upon the motion and it was deemed denied. L.F. Brands timely filed its notice of appeal.

L.F. Brands does not challenge the sufficiency of the evidence. Instead it argues that the merger/integration clause in the purchase order document as a matter of law superceded any prior oral agreements between itself and Dillard’s. L.F. Brands asserts that the purchase order document was the parties’ complete agreement and that, because the document also discussed the merchandise allowances, the circuit court should not have allowed Dillard’s to introduce the course-of-dealing and course-of-performance evidence. We disagree. This argument sweeps too broadly in this case for the sale of goods governed by Article 2 of the Uniform Commercial Code (UCC), which has a specific provision allowing parol evidence to be introduced even in situations involving fully integrated written agreements.

Under the UCC’s parol evidence rule, a writing intended to be the parties’ final 1fiexpression of their agreement may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement, but it may be explained or supplemented by evidence of the parties’ course of dealing or course of performance. Ark. Code Ann. § 4-2-202(a) (Supp.2007); Bank of Am. v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425 (2003). Arkansas Code Annotated section 4-1-303 (Supp. 2007), referred to in section 4-2-202(a), provides in relevant part as follows:

(a) A “course of performance” is a sequence of conduct between the parties to a particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.
(b) A “course of dealing” is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
(d) A course of performance or course of dealing between the parties... is relevant in ascertaining the meaning of the parties’ agreement, may give particular meaning to specific terms of the agreement, and may supplement or qualify the terms of the agreement.

We need not decide whether the evidence in this case is properly called “course of dealing” evidence or “course of performance” evidence because both terms would apply under the circumstances of this case.

L.F. Brands relies upon the supreme court’s decisions in Farmers Cooperative Association v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970), and Ultracuts, Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000), in support of its argument that the purchase order was a complete agreement with a merger/integration clause and, therefore, the parol evidence rule barred introduction of the testimony concerning the merchandise allowances. However, Farmers Cooperative and Ultra-cuts were not UCC sales cases and did not involve or discuss parol and course-of-dealing/course-of-performance evidence.

In Bank of America, the Arkansas Supreme Court held that the use of course-of-performance and course-of-dealing evidence is allowed even when the written instrument is a final, written expression as to terms and that the writing is a “complete and exclusive statement” because such evidence can be admitted to “explain” the meaning of terms in the writing. 353 Ark. at 244, 106 S.W.3d at 434 (quoting 1 White & Summers, Uniform Commercial Code, § 2-12, at 104 (4th ed.1995)). In such instances, the evidence of a course of dealing that explains or supplements a contract is competent evidence of the parties’ intent and can become a part of a contract. Bank of America, supra; Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993).

In the present case, we conclude that the circuit court did not err in finding that the purchase order document and its merger clauses did not preclude course-of-dealing or course-of-performance evidence because that evidence supplemented, not contradicted, the parties’ agreement. Although the purchase order document references merchandise allowances, it does not set forth any agreement as to what Dillard’s gross margin would be. That was the subject of a separate oral agreement between the parties, negotiated on a yearly basis as to |7each line of clothing. The testimony about what Dillard’s gross margin would be is consistent with the purchase order document that allows Dillard’s to deduct such allowances. Moreover, even if we accept L.F. Brands’s argument that the purchase order document was the final and complete integration of the parties’ agreement, the course-of-performance/eourse-of-dealing evidence would still be admissible because merger clauses do not apply to modifications made after the merged agreement is signed. See In re Estate of Upchurch, 62 Tenn.App. 634, 466 S.W.2d 886 (1970). Here, the parties modified the agreements as to Dillard’s gross margins at the end of each season. It is also important to note that L.F. Brands failed to object to any of the course-of-dealing and course-of-performance evidence, either at the time Dillard’s processed the allowances or at trial. Thus, there was no error. Lake Village Implement Co. v. Cox, 252 Ark. 224, 478 S.W.2d 36 (1972). Finally, according to comment 1 to section 4-2-202, there is no requirement that the writing be declared ambiguous before evidence of the parties’ course of dealing and course of performance is admissible.

We cannot say that the circuit court abused its discretion in admitting such course-of-dealing evidence. Accordingly, we affirm the judgment.

Affirmed.

PITTMAN and BAKER, JJ., agree.

      . L.F. Brands raises a second point concerning prejudgment interest. However, that point depends upon this court reversing the judgment in Dillard’s favor and entering judgment in L.F. Brands’s favor. Because we affirm the circuit court on the first point, we do not discuss this second point.

      . The parties use the terms "markdown allowances,” “merchandise allowances," and "margin allowances” interchangeably.

      . After judgment was entered, Dillard’s moved for attorney’s fees under Arkansas Code Annotated section 16-22-308. The circuit court granted the motion and awarded Dillard's $264,654.50 in fees. L.F. Brands filed a timely notice of appeal from the fee award. However, no issue concerning the fees is raised in this appeal.

      . We deny as moot Dillard's motions to strike.


author: ROBERT J. GLADWIN, Judge.

text:
    2009 Ark. App. 169
    T-1 CONSTRUCTION, INC., Appellant, v. TANNENBAUM DEVELOPMENT COMPANY, LLC, Appellee.
    No. CA 08-889.
    Court of Appeals of Arkansas.
    March 11, 2009.
    Ed Daniel IV, P.A., by: Ed Daniel IV, Little Rock, for appellant.
    Belew & Bell, by: Steve Bell, Batesville, for appellee.
   ROBERT J. GLADWIN, Judge.

| [Appellant T-l Construction, Inc., appeals the April 7, 2008 order of the Cle-burne County Circuit Court, which denied its claim for specific performance against appellee Tannenbaum Development Co., LLC, and granted appellee’s claim for rescission on the contract between the parties. On appeal, appellant argues that there was not substantial evidence to support the circuit court’s finding of unconscionable unilateral mistake by appellee’s owner/manager, Gray Turney. We affirm.

Facts & Procedural History

Appellee, through its owner/manager, Gray Turney, signed an exclusive right-to-sell agreement with Lake Real Estate in Heber Springs, Arkansas. The agreement was for the sale of five lakefront lots in Tannenbaum, Cleburne County, Arkansas. The agreement |2stated the legal description and address of the property as “Lots 13-17, East Shores at Tannenbaum, Cle-burne County, Arkansas,” and listed a total offering price of $75,000. A real estate contract was subsequently negotiated and signed on or about February 2, 2007, for “Lots 13-17, East Shore Subdivision, Cle-burne County, Arkansas,” for a total purchase price of $70,000. That form was prepared by appellant’s broker with appellant. On March 14, 2007, the day before the closing was to occur, Mr. Turney learned that the sales price was to be for all five lots as a group, as opposed to $70,000 per lot, for a total of $350,000. He refused to consummate the sale, claiming that the sales price was a mistake.

Appellant did not contest that appellee was operating under a unilateral mistake, and appellee did not contend that any fraud was perpetrated by appellant. Appellant maintained that the four elements of unconscionability necessary to void the contract for unilateral mistake had not been met. Appellant filed a complaint for specific performance on March 30, 2007. Appellee filed a timely answer to the complaint on April 13, 2007, and later an amended answer and counterclaim for rescission of the contract on January 2, 2008. The matter was heard on January 3, 2008, and the circuit court entered an order on April 7, 2008, denying appellant’s claim for specific performance against appellee and granting appellee’s claim for rescission of the contract. Appellant filed a timely notice of appeal on May 2, 2008.

Standard of Review

Our standard of review for an appeal from a bench trial is not whether there was ^substantial evidence to support the findings of the circuit judge, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Duke v. Shinpaugh, 375 Ark. 358, 290 S.W.3d 591 (2009). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id.

Discussion

Appellant asserts that the sole issue to be determined is whether the mistaken belief of appellee’s owner/manager, Gray Turney, that the sales contract was $70,000 per lot for each of the five lots, instead of $70,000 total for all five lots, was unconscionable. The circuit court found that it would be inequitable and unconscionable to enforce the contract because of the damages that would be incurred by appellee if the contract were enforced. Appellant states, however, that there was no proof of damages offered at trial, only the loss of bargain by appellee if it was required to honor its obligations under the sales contract.

Citing Mountain Home School District v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993), appellant sets out the elements necessary to support the circuit court’s finding of rescission due to unilateral mistake as follows: (1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable; (2) the matter as to which the mistake was made must relate to a material feature of the contract; (3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake; (4) it must be able to get relief by way of rescission |4without serious prejudice to the other party, except for loss of his bargain. It is appellant’s contention that appellee did not meet its burden of proof with regard to the first and third requirements. Specifically, the evidence presented at trial indicated that Mr. Turney had a real estate broker, as well as a real estate agent, and further indicated that he read the sales contract but did not learn of his own mistake until the day before closing.

Appellant initially analyzes the facts of the instant case with respect to the first requirement for rescission, that the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable. Appellant refers to case law in which a mistake costing 3.9% of a bid contract was found to be not unconscionable under the standard, see T.M.J. Builders, supra; acknowledging, however, that a mistake costing 22.7% of a bid contract could be unconscionable. See State ex rel. Arkansas State Highway Commission v. Ottinger, 232 Ark. 35, 334 S.W.2d 694 (1960). Here, appellant maintains, there is no “cost” to appellee at all, only a loss of bargain in the purchase price due to the unilateral mistake. Appellant asserts that appellee’s loss should be disregarded as a factor of unconscionability just as appellant’s speculative gain would be under the fourth factor of this test.

Regarding the third requirement— whether appellee’s manager’s unilateral mistake occurred notwithstanding the exercise of reasonable care by him — appellant claims it did not. Appellant states that the record shows that appellee had signed an exclusive right-to-sell agreement, with the broker of appellee’s choosing, Lake Real Estate in Heber Springs, | ¡Arkansas. That agreement was for the sale of five lots in Tannenbaum, Cleburne County, Arkansas. The agreement stated the legal description and address of the property as “Lots 13-17, East Shores at Tannenbaum, Cleburne County, Arkansas,” and listed a total offering price of $75,000. A real estate contract was subsequently negotiated and signed on or about February 2, 2007, for “Lots 13-17, East Shore Subdivision, Cleburne County, Arkansas,” for a total purchase price of $70,000. That form was prepared by appellant’s broker, with appellant.

Appellant urges that the standard of review for unconscionability tried by a circuit court sitting without a jury is whether the circuit court’s findings are clearly erroneous given the totality of the circumstances. Associated Press v. Southern Arkansas Radio Co., 34 Ark.App. 211, 214, 809 S.W.2d 695, 697 (1991) (holding that two important considerations are (1) whether there is a gross inequality of bargaining power, and (2) whether the aggrieved party was made aware of and comprehended the provision in question). Here, appellant argues there was clearly no inequality of bargaining power and there was no proof or indication that appellant was aware of appellee’s manager’s mistake until the sales contract had been executed and the parties were at the closing table ready to consummate the sale. Under the standard of review and based upon an analysis of the facts in the instant case, appellant maintains that appellee is not entitled to rescission of the sales contract based upon the unconscionability of a unilateral mistake.

|ñWe disagree. Evidence presented as to the value of the lakefront lots in question included (1) testimony from John Simmons, appellee’s expert appraiser, that the value of all five lots was $400,000; (2) testimony from Larry Poff, appellee’s second expert appraiser regarding the individual lots: lot 13-$70,000, lot 14-$70,000, lot 15-$65,000, lot 16-$62,500, lot 17-$57,500; (3) evidence from the Cleburne County Tax Assessor that the lots were valued at $100,000 per lot; (4) sales of lots 8, 10, 12, 21, 27, 28, 29 in East Shores Subdivision in Tannenbaum, each for $75,000; (5) Gray Turney’s testimony that there was no way that he would sell the lakefront lots for $14,000 because it would be “ridiculous.”

Appellee points out that appellant appears to ask this court to require appellee to fulfill its obligation to sell the real property to appellant on the terms and conditions of the sales contract between them. However, we note that the denial of the specific performance has not been raised in this appeal, with the only issue before us being the rescission granted to appellee.

There is no dispute that the contract signed by Mr. Turney stated that the five lakefront lots in the East Shores Subdivision in Tannenbaum, Cleburne County, Arkansas, were to be sold for $70,000. There is no dispute that Mr. Turney so signed under a unilateral mistake that the sales price was per lot, rather than for the entire five lots. We hold that there is an abundance of proof that the five lots that are the subject of this case were worth, in total, at least $325,000 to $400,000, or four to five times the contract price. The parties acknowledge that Ottinger, supra, correctly sets out the elements necessary to support the |7circuit court’s finding of un-eonscionability and rescission. Where the parties differ is their individual perspectives as to whether the evidence supports the circuit court’s decision regarding requirements one and three.

Appellee contends that appellant failed to seriously address the argument that to force appellee to sell real property valued at $325,000 to $400,000 for a mere $70,000 would be unconscionable. Instead, appel-lee maintains that appellant attempted to bootstrap itself up by citing T.M.J. Builders, and Ottinger, supra, as somehow being on point as to the issue in the instant case. Because each of these cases dealt with a percentage of a bid contract, they are factually distinguishable from this case other than to correctly state the applicable rule of law.

While appellant argues that because there would have been no cost to appellee, appellee’s loss of bargain should be disregarded as a factor of unconscionability. In Arkansas National Life Insurance Company v. Durbin, 3 Ark.App. 170, 623 S.W.2d 548 (1981), this court held that, in assessing whether a particular contract or provision is unconscionable, the court should review the totality of the circumstances surrounding the negotiation and execution of the contract. Likewise, under Hume v. United States, 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889), the Supreme Court stated that an unconscionable contract is “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Id. at 415, 10 S.Ct. 134. Appellee urges that no one would knowingly sell lakefront property valued at $325,000 to $400,000 for a mere $70,000. We agree. Additionally, there |scan be little doubt that to enforce such an agreement would be unconscionable to ap-pellee and a tremendous windfall to appellant.

As to the failure to exercise reasonable care, we note that both Mr. Turney and Sandra Dunkerson, the real estate agent who prepared the contract, testified that Ms. Dunkerson prepared the contract, went over it with Mr. Turney, and implemented the changes he requested regarding both her commission percentage and the retention of the mineral rights to the property. Mr. Turney explicitly testified that Ms. Dunkerson told him that the sales price was $70,000 per lot, while Ms. Dunk-erson testified that she told him that it was $70,000 for all five lots. Appellee acknowledges that Mr. Turney’s belief that Ms. Dunkerson stated that it was $70,000 per lot is the unilateral mistake that led to this litigation; however, appellee maintains that there is substantial proof that Mr. Turney exercised reasonable care in going over the contract with Ms. Dunkerson at her office and making necessary changes prior to signing it.

Under our standard of review, appellant bears the burden of proof to show that the circuit court’s findings were clearly erroneous. Appellant failed to do so in this case. Based upon our review of the entirety of the evidence, we cannot say that we are left with a firm conviction that an error has been committed. The totality of the evidence supports the circuit court’s finding that it would be inequitable and unconscionable to enforce the contract because of the damages that would be incurred by appellee if the contract were enforced. Accordingly, we affirm.

| ^Affirmed.

VAUGHT, C.J., and KINARD, J., agree.


author: COMBS, Chief Judge.

text:
    Paul RODGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-002287-MR.
    Court of Appeals of Kentucky.
    April 9, 2010.
    Rehearing Denied June 21, 2010.

      Roy A. Durham, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, W. Bryan Jones, Assistant Attorney General, Frankfort, KY, for appellee.
    Before COMBS, Chief Judge; KELLER and VANMETER, Judges.
   OPINION

COMBS, Chief Judge.

Paul Rodgers appeals from his conviction of first-degree sexual abuse in Graves Circuit Court. After careful review of the record and the law, we are compelled to vacate and remand for a new trial.

Rodgers and Tammy Sawisch conceived a child, M.D., in 1996. Although she was born in 1997, Rodgers did not meet M.D. until the summer of 2005 when she was seven and one-half years of age. At that time, Rodgers and Sawisch rekindled their relationship, and Rodgers began spending time with his daughter. For a while, Rodgers lived in a tent in Sawisch’s back yard. On weekends, he and M.D. would stay at the home of his mother.

Rodgers and Sawisch broke up in October 2005, and Rodgers moved to Memphis. He did not have any more contact with M.D. In January 2006, M.D. told her mother that Rodgers had touched her inappropriately during one of their visits at his mother’s house. Sawisch contacted local authorities, and after interviewing M.D., they obtained a warrant for Rodgers’s arrest. However, they could not locate him until June 2007 when authorities in King County, Washington, found him in a homeless shelter in Seattle.

Rodgers stood trial on July 31, 2008, and a jury convicted him of sexual abuse in the first degree. This appeal follows.

Rodgers argues that his rights to due process and to a fair trial were violated because the prosecution inappropriately discussed and defined “reasonable doubt ” in its closing argument. In its closing argument, the Commonwealth expressly commented to the jury as follows:

I’ll ask you guys to remember that the standard is beyond a reasonable doubt, it’s not beyond all doubt. Only God knows what happens beyond all doubt. If any of you find yourself in the jury room saying to yourself or thinking that “yeah, I know the defendant did it, but I just don’t think the Commonwealth proved their case,” well, I submit to you that if you know he did it, then this case was proven.

Rodgers immediately objected and made a motion for a mistrial or dismissal, charging that the Commonwealth had altered its requisite standard of proof by implying that a lower degree of proof should apply. The court declined to grant the mistrial but admonished the jury by the following brief commentary: “There’s a comment made on the burden of proof. It is beyond a reasonable doubt. Follow the instructions on that.”

Prosecutors enjoy considerable latitude as to the content of closing arguments. Berry v. Commonwealth, 84 S.W.3d 82, 90 (Ky.App.2001). In general, they may comment liberally and extensively on the evidence that was presented. Maxie v. Commonwealth, 82 S.W.3d 860, 866 (Ky.2002). We may reverse only if the “alleged prosecutorial misconduct is so egregious as to render the trial fundamentally unfair.” Berry, supra. (quoting Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky.1996)).

Our Supreme Court has provided a three-prong test to determine if prosecuto-rial conduct during closing arguments renders an unfair trial. Those factors are:

1) proof of defendant’s guilt is not overwhelming;
2) defense counsel objected; and
3) the trial court failed to cure the error with a sufficient admonition to the jury.

All three conditions must be satisfied. Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky.2002). (citing U.S. v. Carroll, 26 F.3d 1380, 1390 (6th Cir.1994) and U.S. v. Bess, 593 F.2d 749, 757 (6th Cir.1979)).

In the case before us, the proof of defendant’s guilt was not overwhelming. It wholly involved testimony from the accused and the victim that was mutually contradictory. The Commonwealth possessed no physical evidence to prove that the touching occurred. Its strongest evidence was M.D.’s testimony, which was indeed compelling. The only other possible witness to the alleged abuse was Rodgers himself, and he testified that the misconduct had not happened. Additionally, his mother testified that he never had the opportunity. She said that she would have known if Rodgers and M.D. had been in the same room due to the locations of where the family members slept. Rodgers also presented evidence that Sawisch had threatened to take him to court to prevent him from ever seeing M.D. again. This was exclusively a situation for the jury to act as fact-finder based on the credibility of the witnesses. Therefore, the first prong of the Barnes test was met. The second prong was satisfied by Rodgers’s prompt and spirited objection.

The third prong requires us to determine whether the trial court’s admonition to the jury was sufficient to cure the error. Initially, we must determine whether the Commonwealth’s statement was erroneous or legally misleading — and if so, to what degree. The Commonwealth argues that it committed at most harmless error — if any — in its commentary on the reasonable-doubt standard. We vigorously disagree.

The Kentucky Rule[s] of Criminal Procedure (RCr) 9.56 plainly instructs that jury instructions should not include any definition of reasonable doubt. Our Supreme Court has expanded the rule to prohibit counsel from defining it at any point in a trial. Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky.1984). Over time, our courts have narrowly refined the rule to construe as harmless error a statement that reasonable doubt does not mean “beyond all doubt.” Johnson v. Commonwealth, 184 S.W.3d 544, 550-51 (Ky.2005).

In this case, the Commonwealth boda-ciously exceeded the Johnson limit that reasonable doubt does not mean beyond all doubt. It declared, “if you find yourself ... thinking that ‘yeah I know the defendant did it, but I just don’t think the Commonwealth proved their case,’ well I submit to you that if you know he did it, then this case was proven.” (Emphases added.)

It is axiomatic that the Commonwealth bears the burden of proving guilt. Kentucky Revised Statute[s] (KRS) 500.070. The Supreme Court of the United States has emphasized that “[d]ue process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).

The Commonwealth’s wholly inappropriate invitation to the jury to speculate is similar to the jury instructions addressed by our nation’s highest court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). (overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). In Cage, the trial court had included the phrase “moral certainty’ in its definition of reasonable doubt. Reversing Cage’s conviction, the Court held that because of that phrase, “a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id. at 330. (Emphasis added.) The Commonwealth clearly erred in urging the jury to employ a subjective, personal standard far below the requisite objective, legal level of reasonable doubt. The error is unmistakable.

Next, in order to satisfy the analysis of the Barnes test, we must examine whether the court’s admonition was sufficient to cure the error. Under Kentucky law, there is a presumption that “an admonition to the jury to disregard an improper argument cures the error unless it appears the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky.2001). (emphasis added), (citations omitted).

In this case, the court overlooked and failed to address the Commonwealth’s statement that it did not have to prove its case according to the evidence. It merely recited that “the standard is beyond a reasonable doubt” — without the further elaboration that the circumstances of this case required. The court neglected to explain to the jury that the Commonwealth bore the burden to prove reasonable doubt solely using the evidence — not by appealing to intuition, common sense, common life experience, or subjective belief of the jury as the Commonwealth’s argument clearly implied to be permissible. Although the written instructions stated that, “the burden of proof is on the Commonwealth,” we conclude that the jury was undoubtedly tainted by the Commonwealth’s commentary and that the court failed to offer a sufficient admonition to cure the error — if indeed under the egregious circumstances any admonition could have sufficed. Accordingly, we must vacate and remand for a new trial.

The tragedy of the decision that we are required to make is the probability that M.D. will have to testify again, further victimizing her. Her testimony could have been construed as compelling and credible, and the jury was given sufficient evidence by which it may have found Rodgers guilty without the objectionable prosecutorial commentary at issue. The jury worked hard and deliberated for more than four hours. However, there is no way to ascertain the import of the highly inappropriate argument other than to recognize the obvious — that the jury was clearly invited to utilize a lesser standard of proof.

Our former court of appeals aptly addressed the duties incumbent upon a prosecutor and the lamentable price levied upon the cause of justice when those duties are not fulfilled. In Bowling v. Commonwealth, 279 S.W.2d 23 (Ky.1955), the court observed:

It is regrettable that a case must be reversed because of the zeal of a prosecuting attorney. However, it is the obligation of the prosecuting attorney to conduct himself with due regard to the properties of his office and to see that the legal rights of the accused, as well as those of the Commonwealth, are protected. It is his duty to prosecute but not persecute. He should endeavor to see that justice is meted out and that the accused is dealt with fairly. Above all, there is an obligation that truth and right shall prevail.

Also apropos of this case are the words of Justice Story penned some two hundred sixty-five years ago:

I deny, that, in any case, civil or criminal, [juries] have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. ... Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it.

U.S. v. Battiste, 2 Sumn. 240, 24 F.Cas. 1042, 1043 (Cir.Ct.Mass.1835) (No. 14,545). (Emphasis added.) We have long adhered to the concept underlying the reasonable doubt standard of proof as the “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring).

Though we are remanding this case for a new trial, we will address Rodgers’s other allegations of error because they are likely to arise again. He first argues that he was denied a fair trial when the trial court excluded exculpatory evidence. We disagree.

Rodgers contends that the court improperly excluded testimony that Sawisch had been convicted of misdemeanor child abuse for slapping M.D. in January 2005 as well as excluding approximately eighty letters that Sawisch had written to Rodgers during their romantic relationship. He argues that the letters were inculpatory and therefore admissible as “reverse 404(b)” evidence (evidence that tends to negate the defendant’s guilt). Blair v. Commonwealth, 144 S.W.3d 801, 810 (Ky.2004). Rodgers’s reasoning is that Sawisch’s abuse conviction would have shown that M.D. lived in fear of her mother and that she was controlled by her. The letters allegedly would have revealed Sawisch’s motivation to falsely accuse Rodgers of abuse in order to deprive him of contact with M.D.

Kentucky Rule[s] of Evidence (KRE) 103(a) provides that exclusion of evidence is erroneous if it affects a substantial right of the party seeking admission. Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.2008)). Our Supreme Court has defined abuse of discretion as a court’s acting arbitrarily, unreasonably, unfairly, or in a manner “unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

In order to be admitted, evidence must be relevant. KRE 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. However, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” KRE 403.

In a recent discussion about reverse 404(b) evidence, this Court recognized the well established right for defendants to present evidence of other crimes of third parties “if in reason it tends ... to negate [their] guilt of the crime charged[.]” Ferry v. Commonwealth, 234 S.W.3d 358, 361 (Ky.App.2007) (quoting U.S. v. Stevens, 935 F.2d 1380, 1404 (3rd Cir.1991)). We held that the exclusion of such evidence without weighing the factors of KRE 403 constituted an abuse of discretion. Id.

In the case before us, the trial court excluded testimony of Sawisch’s previous conviction because it found the conviction was irrelevant. The conviction occurred several months before the alleged abuse. The court supplemented its finding by explaining that even if the conviction were relevant, its probative value was outweighed by the likelihood of prejudice and confusion that it would cause. The issue at trial was whether Rodgers — not Saw-isch — had abused M.D. Because the trial court properly conducted the balancing of factors as required by KRE 403, we cannot conclude that it abused its discretion in excluding the evidence of Sawisch’s misdemeanor child abuse conviction.

Nor do we conclude that the trial court abused its discretion in excluding the letters that Sawisch wrote Rodgers. Rodgers sought admission of the letters in order to demonstrate her acrimonious and recriminatory feelings toward him. There were approximately eighty letters in all. The trial court excluded them, reasoning that they contained information that would be prejudicial and irrelevant. Though Rodgers argues that the exclusion prevented him from presenting a defense, the trial court allowed Rodgers to use one of the letters to impeach Sawisch’s testimony. In that letter, Sawisch wrote that if Rodgers hurt her, she would take him to court so that he would never be able to see M.D. again. Rodgers was able to utilize this evidence to present his defense theory to the jury. It did not require admission of all eighty letters, which would have been merely cumulative in nature.

Rodgers next argues that the trial court improperly allowed the Commonwealth to characterize his move from Kentucky as evidence of guilt. We disagree.

[IB] It is well established that proof of flight is admissible as evidence of a sense of guilt. Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky.2003); Noah v. Commonwealth, 273 Ky. 272, 116 S.W.2d 315 (1938). Flight is admissible as evidence to be considered along with other evidence in the case. Hamblin v. Commonwealth, 500 S.W.2d 73, 74 (Ky.1973).

The Commonwealth argued to the jury that Rodgers fled Kentucky and lived in homeless shelters in Memphis and Seattle in order to maintain his anonymity, thereby evading prosecution. However, Rodgers testified in rebuttal that he had lived in many different places throughout his life; that he had wanted to leave Kentucky for some time; that a planned job and housing opportunity fell through in Memphis; and that he went to Seattle to connect with his brother. The jury was presented with evidence that it could weigh to decide whether Rodgers had fled to escape prosecution or for a variety of other possible, plausible reasons. Rodgers received — and utilized — the opportunity to rebut the Commonwealth’s evidence. Therefore, the trial court did not err in allowing the Commonwealth to characterize his actions as flight. Id.

Rodgers’s final argument is that he was denied due process because of inadequate notice concerning one of the Commonwealth’s witnesses. Since we are remanding for a new trial, this issue is moot. That witness has testified, giving Rodgers more than adequate notice of what her testimony is likely to be at a second trial.

We vacate and remand for proceedings consistent with this opinion.

ALL CONCUR.

      . Not all states prohibit defining reasonable doubt as acknowledged by the U.S. Supreme Court in Cage and other cases. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).


author: KELLER, Judge:

text:
    TRILLIUM INDUSTRIES, INC., Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; Kentucky Division of Unemployment Insurance, Appellees.
    No. 2009-CA-000535-MR.
    Court of Appeals of Kentucky.
    April 30, 2010.
    Ordered Published June 25, 2010.

      Norbert J. Arrington, Richard L. Masters (argued), Louisville, KY, for appellant.
    James C. Maxson (argued), Frankfort, KY, for appellees.
    Before COMBS, Chief Judge; KELLER and AVINE, Judges.
   OPINION

KELLER, Judge:

Trillium Industries, Inc., (Trillium) appeals from the Opinion and Order of the Franklin Circuit Court affirming the decision of the Kentucky Unemployment Insurance Commission (the Commission) finding Trillium to be the successor to R.S. Communications, Inc. (R.S.). Having concluded that the Commission’s factual findings were supported by substantial evidence and that it correctly applied the law to the facts, we affirm.

FACTS

R.S. became subject to Kentucky unemployment insurance laws in 1997. Its sole business involved refurbishing used mobile phones. In May 2005, the Kentucky Division of Unemployment Insurance (the Division) issued a delinquent report assignment because R.S. had not filed quarterly reports since the last quarter of 2002. In investigating the matter, Division auditors attempted to make contact with R.S. at its last known address and telephone number, but were unable to do so. Stephanie Potter (Auditor Potter), a Division auditor, then contacted the founders of R.S., Richard and Stephanie Wilson (the Wilsons) at their home address. The Wilsons informed Auditor Potter that R.S. had been sold to Trillium in October 2001. Prior to the sale, the Wilsons owned fifty percent of R.S., while Nick Knoth and Brent Thurman owned the remaining fifty percent. At the request of the Division, the Wilsons completed form UI-21, Report of Change in Ownership, reflecting the transfer of R.S. to Trillium.

After speaking with the Wilsons, Division auditors made several attempts via mail and/or telephone to meet or speak with representatives of Trillium regarding the sale. The only response the auditors received was a telephone call from Doug Gott, Trillium’s Chief Financial Officer, who stated that the sale of R.S. to Trillium had been “contingent” and that the sale never occurred. The auditors were unable to locate a representative from Trillium to sign the UI-21 form.

Auditor Potter then requested that the Wilsons provide the Division with proof that the sale occurred. The Wilsons provided Auditor Potter with a Stock Purchase Agreement between the R.S. shareholders and Trillium and several letters of correspondence in reference to the sale. The Division subsequently made an administrative determination that Trillium was the successor to R.S. and that it was liable for approximately $495,000 in unpaid unemployment taxes.

Following the Division’s findings, Trillium brought an appeal before the Commission. The Commission conducted a hearing, which was held over the course of four days: May 16, 2007, May 29, 2007, June 28, 2007, and July 16, 2007. On January 22, 2008, the Commission issued an order affirming the Division’s determination that Trillium was the successor to R.S. Trillium appealed to the Franklin Circuit Court, which affirmed the Commission. Trillium filed a motion to alter, amend or vacate the circuit court’s opinion and order, and on February 25, 2009, the circuit court entered an order denying Trillium’s motion. This appeal followed.

STANDARD OF REVIEW

As stated in Competitive Auto Ramp Services, Inc. v. Kentucky Unemployment Insurance Commission, 222 S.W.3d 249, 252 (Ky.App.2007):

The scope of review of an administrative action requires that the decision be affirmed if there is substantial evidence of probative value to support the agency’s factual findings and if it correctly applied the law to the facts. Substantial evidence means evidence of substance and relevance sufficient to induce conviction in the minds of reasonable people.

(Citations omitted). Further, as noted in Thompson v. Kentucky Unemployment Insurance Commission, 85 S.W.3d 621, 624 (Ky.App.2002):

If there is substantial evidence to support the agency’s findings, a court must defer to that finding even though there is evidence to the contrary. A court may not substitute its opinion as to the credibility of the witnesses, the weight given the evidence, or the inferences to be drawn from the evidence. A court’s function in administrative matters is one of review, not reinterpretation.

(Citations omitted).

ANALYSIS

The issue in this case is whether there is substantial evidence to support the Commission’s finding that Trillium is the successor employer to R.S. There are two statutes relevant to determining who is responsible for unemployment insurance debts. Kentucky Revised Statute (KRS) 341.070(7) provides that a successor employer is an employer subject to the provisions of the unemployment insurance statute. Specifically, it states that:

Any employing unit that succeeds to or acquires the organization, trade, or business, or substantially all of the assets of another employing unit which at the time of such succession or acquisition is a subject employer....

Id. At the time Trillium’s liability was determined, KRS 341.540(1) provided that:

Any employing unit which succeeds to or acquires the organization, trade, or business of a subject employer shall assume the resources and liabilities of the predecessor’s reserve account, including interest, and shall continue the payment of all contributions and interest due under this chapter....

The successorship regulation, 787 KAR 1:300 § 1, which was in effect at the time Trillium’s liability was determined, provided the following:

Successorship ... shall be deemed to have occurred between two (2) employing units when the following conditions exist:
(1) Negotiation occurs to bring about the transfer, either directly between the parties to the transfer, or indirectly through a third party intermediary.
(2) At least two (2) of the following conditions are met, provided that this condition shall not be satisfied if only paragraphs (c) and (d) of this subsection are met:
(a)The employing unit was a going concern when acquired. For the purpose of this administrative regulation, a going concern shall also include an employing unit which has temporarily ceased subsequent to the date on which negotiations to transfer the employing unit were begun.
(b) The subsequent owner or operator continued or resumed basically the same type of employing unit in the same location.
(c) The subsequent owner employed fifty (50) percent or more of the previous owner’s workers in covered employment.
(d) The previous owner employed fifty (50) percent or more of the subsequent owner’s workers in covered employment.
(e) The subsequent owner acquired work contracts or commitments from the previous owner.

As noted in Competitive Auto Ramp Services, Inc., “the plain language of KRS 341.540 and 787 KAR 1:300 requires that there be some ‘connection, negotiation, or transaction between the parties.’ ” 222 S.W.3d at 253 (quoting Wildot, Inc. v. Kentucky Unemployment Ins. Comm’n, 762 S.W.2d 17, 19 (Ky.1988)).

In this case, it is undisputed that negotiations took place between R.S. and Trillium. However, Trillium contends that there was never a transfer of R.S. to Trillium. Instead, Trillium argues that although the Stock Purchase Agreement was entered into, the agreement was assigned to its affiliate, Aydia Electronics, Inc. (Ay-dia).

As correctly noted by the circuit court in its Opinion and Order:

Review of the record reveals a confusing set of circumstances. Many documents were apparently faxed back and forth between the parties, and as a result not all have been signed by all required parties. Also, because the alleged deal was purportedly executed in 2001, records retained by law firms and accountants are largely unavailable. The state of the record has led to two possible conclusions. On one hand, representatives from Aydia and Trillium produced signed documents and affidavits supporting the conclusion that Trillium assigned its rights under the Stock Purchase Agreement to Aydia, who executed said agreement. These documents include:
• The Stock Purchase Agreement
• Affidavits of John McCloud, former senior-level management employee of Trillium stating Trillium did not purchase stock in [R.S.], but that Aydia did
• Affidavit from Robert Futrell, attorney for Trillium, stating that, to the best of his knowledge, the stock purchase did not take place because Trillium’s senior lender did not approve it, that Aydia purchased the shares of [R.S.], and that Trillium did not assume any material debts of [R.S.]
• An October 9, 2001 letter providing notice to the Wilsons and all others with ownership interest in [R.S.] that Trillium assigned its rights and interests to Aydia
• A non-competition agreement signed by an agent of Aydia and Richard Wilson and another signed by Aydia and Stephanie Wilson
• Two releases and waivers of all claims, one signed by an Aydia representative and Richard Wilson, the other signed by an Aydia representative and Stephanie Wilson
• A receipt for $25,000 each to Richard and Stephanie Wilson, indicating that Trillium had assigned its rights to Aydia. This document is signed by both Richard and Stephanie Wilson, but not by Aydia.
• A buyer’s closing certificate signed by the President of Aydia
• Various documents reporting the sale occurring between Trillium and [R.S.] at different times: April 2001, August 2001, and October 2001
On the other hand, documents and testimony support the conclusion that Trillium did in fact purchase and operate [R.S.], closing it and absorbing some of its employees some time after the stock transfer. Supporting evidence includes:
• Testimony from Richard & Stephanie Wilson that Trillium and its agents took physical possession of equipment, bookkeeping materials, and even keys to the building and that Trillium assumed all [of] [R.S.]’s debts and contracts
• Testimony from the Wilsons that they believed they were dealing with Trillium and its representatives at all times
• Testimony that [R.S.] continued to operate as a mobile phone refurbish-er for approximately one year after the sale was finalized
• Testimony from Stephanie Potter, auditor with the Division, that approximately sixteen [R.S.] employees were apparently absorbed by Trillium and that the Division has no records regarding Aydia
• An employment application of a former [R.S.] employee which indicated [R.S.] had been a Trillium subsidiary
• Form UI-21, completed by the Wil-sons and indicating a transfer of the entire business occurred in October 2001 to Trillium
• Correspondence dating from October to November 2002 between Richard Wilson and Trillium representatives about the non-competition agreement and a statement that Trillium and [R.S.] are still engaged in mobile phone operations in the territory described in the agreement

Having reviewed the documents and testimony set forth above, we conclude that there was substantial evidence to support the Commission’s finding that Trillium purchased R.S. Although Trillium presented evidence to the contrary, a court must defer to an agency’s findings if there is substantial evidence to support such a finding even when there is conflicting evidence. Thompson, 85 S.W.3d at 624. Accordingly, there was sufficient evidence presented to support the Commission’s finding that negotiations occurred which brought about a transfer of R.S. to Trillium.

In addition to determining that there were negotiations that brought about a transfer, we must also determine if at least two of the five requirements of 787 EAR 1:300 § 1(2) were met. Having reviewed the record, we believe that there is substantial evidence to support the Commission’s finding that at least two of the requirements were met.

First, there was substantial evidence that, pursuant to 787 KAR 1:300 § l(2)(a), R.S. was a going concern when acquired. Specifically, the Wilsons testified that R.S. was operational up to and after the time of the sale. The Wilsons further testified that R.S. continued to provide mobile phone refurbishing services and maintained approximately 100 employees for at least a year after the transfer. This testimony is supported by documentary evidence and testimony provided by Auditor Potter, which indicates that R.S. continued to operate in the same location with approximately the same number of employees for approximately one year. This constitutes substantial evidence.

Second, there was substantial evidence to support the Commission’s finding that Trillium continued to operate R.S. as the same type of business at the same location. Testimony was presented that Trillium representatives acquired all of the physical assets of the business, including the leases of equipment and premises, checkbooks, and keys to the facility. There was also testimony that R.S. continued operating after the transfer for approximately one year. Moreover, in his letter to Mr. Wilson dated October 29, 2002, Robert Be-shirs, Director of Trillium, stated that “Trillium Industries, Inc., and R.S. Communications remain viable entities in the cellular/wireless telephone industry.” This also constitutes substantial evidence. Accordingly, the Commission’s conclusion that Trillium is a successor of R.S. was supported by substantial evidence.

For the foregoing reasons, the Opinion and Order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . Although Trillium moved to alter, amend or vacate the circuit court’s opinion and order, it requested relief pursuant to Kentucky Rule of Civil Procedure (CR) 59.01, which is a motion for a new trial. It appears from the record that the parties treated Trillium’s motion as a motion to alter, amend or vacate pursuant to CR 59.05. The circuit court denied Trillium's motion for CR 59.01 and/or other post-judgment relief. Therefore, any discrepancy regarding the rule number is inconsequential.