Divorce Law Journal

J.G. v. J.C., Ky COA, Defacto Custodian

J.G. v. J. C. , _ S.W.3d _ (Ky. App. 2009), 2008-CA-1023

Parents appeal the judgment holding that the grandparents are the de facto custodians of S.G. The parents have three other children, all of whom had been previously removed. Due to previous issues, social services placed S.G. with the grandparents three days after she was born. A couple of weeks later the parents filed a motion to terminate the temporary custody order and have S.G. returned to their care. The trial court denied the motion. The parents then participated with social services to try to regain custody of S.G. After about eleven months, the grandparents filed a petition for declaration of de facto custodian and permanent custody. After numerous hearings, the DRC recommended that the grandparents be deemed the de facto custodians of the child and be awarded permanent custody. The trial court adopted the DRC recommendations. The parents filed exceptions to the findings, a motion to alter the court’s decision, and a motion for further findings of fact. The trial court denied the motions and this appeal followed.

COA found that the grandparents did not meet the statutory requirements for being declared the child’s de facto custodians. COA reversed and remanded, ordering the trial court to make further findings of fact. First, the trial court must determine whether the grandparents met the one year time requirement pursuant to KRS 403.270, especially in light of the tolling requirement of KRS 403.270(1)(a). The time between when the parents filed their motion to terminate the temporary custody order and when the court ruled on that motion does not count toward the de facto custodian time requirement. Next, the trial court must make the findings requested by the parents in a previous motion. Finally, the COA noted that a married couple is considered a single unit for the purpose of de facto custodianship, and therefore a couple may be deemed de facto custodians as opposed to a single individual.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

A.P. v. Commonwealth, Ky COA, Termination Of Parental Rights, Due Process Right To Counsel

A.P. V. COMMONWEALTH OF KENTUCKY, CABINET OF HEALTH & FAMILY SERVICES, B.M.P.
2008 WL 4601312
2008-CA-000730,
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; ACREE AND KELLER CONCUR
COUNTY: TRIMBLE
DATE RENDERED: 10/24/2008
ISSUE:
Mother appealed TC’s judgment involuntarily terminating her parental rights to Child, contending that her due process rights were violated, that her counsel’s assistance was ineffective, and that the findings of fact were not supported by clear and convincing evidence. CA agreed as to the due process issue, and therefore, vacated and remanded.

FACTS:
Cabinet filed DNA petition which alleged that Mother’s Stepfather had abused the child while Mother and Child were living with him and Maternal Grandmother. Mother subsequently permitted contact between Child and Mother’s Stepfather in violation of safety plan. After hearings, Child was placed with Father and then at the Home of the Innocents and Father’s parental rights were terminated. At a permanency hearing, TC ordered that the goal be changed to adoption. Cabinet filed an involuntary termination of parental rights against Mother and a GAL was appointed and Mother was appointed an attorney. A bench trial occurred over two days. On the first day, all the parties including Mother appeared, but her counsel was not present due to inclement weather in Northern Kentucky. TC tried unsuccessfully to reach him. TC then allowed clinical psychologist to testify, though Mother did not have attorney present, because the psychologist traveled from Frankfort to be there. TC provided that Mother’s attorney would not be limited in his cross-examination of the psychologist. Mother was never questioned about whether or not she wished to proceed with the hearing without her counsel present.
At the conclusion of psychologist’s testimony and cross-examination by GAL, TC again attempted to contact Mother’s attorney to ascertain whether the trial could be resumed later in the day. When TC could not reach Mother’s attorney, it allowed Child’s therapist to testify because she would not be able to testify at second trial date. During therapist’s testimony, Mother’s attorney called TC and advised that he would be unable to make the hearing that day due to the road conditions but that it was fine for the court to continue without him.
On the second day of trial, Mr. Adams had no questions for either psychologist or therapist both witnesses were released. CA record did not demonstrate whether or not Mother’s attorney had reviewed the tapes from first day of trial. The Cabinet called five more witnesses. The only witness called by Mother’s attorney was Mother. At the conclusion of the trial, TC called upon CASA volunteer. Although she was not sworn in, she was asked by TC to give a 90-second synopsis of her involvement and recommendation for the child to the court. In fact, CASA volunteer was present during the entire trial, having not been asked to leave during the testimony of the other witnesses.

ANALYSIS:
On appeal, Mother contended that as her counsel was not present during the first day of the termination hearing, her due process right to a fair hearing was violated. CA agreed.
Kentucky’s statutory scheme to protect children and to adjudicate parental rights provides for the appointment of counsel throughout all the proceedings. CA found that the failure of Mother’s counsel to be present on the scheduled day of the trial during the testimony of the first two witnesses could have made a difference in the family court termination proceeding. CA found that the judge, the Cabinet’s counsel, and GAL all indicated uneasiness with the proceeding since Mother’s counsel was not present. Unfortunately, the focus seemed to be on the witnesses’ convenience rather than the mother’s fundamental right to be properly represented during the trial.
Upon remand, TC was to conduct another termination hearing under KRS 625.080, and Mother shall be represented by counsel during the entire proceeding. CA held that such a serious matter, possible loss of this elemental societal relationship between parent and child, requires complete deference to providing for all the parent’s due process rights.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Z.T. v. M.T. et. al., Ky, Dependency,Abuse And Neglect, Court Interview Of Child

Z.T. v. M.T. et. al., --S.W.3d—(Ky. App. 2008); 2007-CA-001444-ME

Father appealed findings in a dependency, abuse, and neglect case, in which it was alleged that the father sexually abused his eldest child, M.T. Prior to August 2005, the maternal grandparents took M.T. to the hospital where she was examined for sexual abuse, which was not substantiated. In August 2005, the mother and the maternal grandparents took M.T. and her sibling, K.T., to the hospital to be examined for sexual abuse. M.T. admitted to the examiner that she had been abused by her father, the younger child denied any abuse, and no physical evidence was found that either child had been abused. A dependency, abuse, and neglect petition was filed in November 2005 and the court issued a temporary order prohibiting the father from having contact with any of his four children.
In January 2006, K.T. told an examiner at the hospital that she had been sexually abused and had witnessed her father sexually abusing her siblings. The father was then charged with four counts of sexual abuse in the first degree.
The first adjudication of the abuse petition was overturned due to the district court finding the children were abused based solely on the mother’s admission. At the second adjudication, held after the father was found not guilty of the criminal charges, the court found that M.T. had been sexually abused. The allegations concerning the remaining children were dismissed. The court then ordered that the four children be placed with the mother and that the father to have no contact. The father appealed.
The COA reversed and remanded based on the following errors: 1) The presence of the mother and maternal grandparents during the questioning of M.T. constituted reversible error, since the court made no finding pursuant to KRS 421.350 that their presence during M.T.’s testimony would benefit her welfare and well-being; 2) the trial court’s failure to conduct a hearing to determine whether there was a compelling need to interview the child in the absence of the father’s presence constituted reversible error; and 3) the trial court abused its discretion when it refused to permit the father to question the mother concerning her affair with a pastor who had been previously removed from a church because of allegations of sexual abuse.
The father raised other errors that the COA found unconvincing. Of note is the father’s allegation that he received ineffective assistance of counsel. While the COA ultimately rejected his claim, it set out the standard of review for such claims in dependency proceedings. “We hold that if counsel’s errors were so serious that it is apparent from the record that the parent was denied a fair and meaningful opportunity to be heard so that due process was denied, this Court will consider a claim that counsel was ineffective.” (p. 10). The Court warned that the burden is very high and advised that such claims are properly raised on direct appeal, not in a collateral proceeding.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

M.E.C. v. Com., Termination Of Parental Rights (Ky)

M.E.C. v. Com. , --S.W.3d—(Ky. App. 2008), 2007-CA-001904-ME
Mother appealed judgment terminating her parental rights to two children. KRS 625.090 provides that parental rights may be involuntarily terminated if the court finds from the pleadings and clear and convincing evidence that the child has been adjudged to be an abused and neglected child, as defined under KRS 600.020(1), and that the termination would be in the best interests of the child. The court must also find by clear and convincing evidence one of the grounds under KRS 625.090(2). COA found that the Cabinet did not meet its burden. First, the Cabinet did not present substantial evidence under KRS 625.090(1). There was no evidence that the children suffered any direct, emotional or physical injury with the mother. Second, the Cabinet failed to provide reasonable services to reunite the family. Third, there was no substantial evidence to support a finding of no reasonable expectation of improvement in the mother’s condition. Finally, the Cabinet failed to prove that the mother is incapable of rendering care in the future. Due to the lack of substantial evidence to support the trial court’s termination judgment, the COA REVERSED AND REMANDED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Com. v. C.M., Ky, Educational Commitment To Cabinet

Com. v. C.M., __ S.W.3d __ (Ky. App. 2008), 2007-CA-001468-ME

The Cabinet acquired custody of C.M. as a dependent minor. Upon reaching the age of majority, C.M. requested continued commitment to the Cabinet until age 21, for the purpose of facilitating her education at Northern Kentucky University. The Cabinet consented and the Court approved the extension. C.M. then dropped out of her classes and the Cabinet asked her to rescind her commitment. C.M., after speaking with her GAL, then changed her mind about dropping out of school and moved for reinstatement of her commitment. At a hearing on the motion, the TC found that the continued commitment was in C.M.’s best interests. COA held that the TC’s order of education controls until it is modified or vacated and recommended that the Cabinet file such motion if it desired to change the Court’s order. COA found no error in the TC reinstating C.M.’s commitment to the Cabinet, which was merely suspended, not vacated, by the Cabinet’s procedure of issuing a letter of intent to release C.M. from commitment. Affirmed.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Hoppe v. Tallent, KY, Child Visitation, Allegations of Child Sexual Abuse

Hoppe v. Tallent, __ S.W.3d __ (Ky. App. 2008), 2007-CA-000104-MR

Father appealed the TC’s denial of his motion for immediate reinstatement of visitation with his daughter, K.H.
During the parties’ divorce settlement negotiations in 1997, the mother alleged that the father sexually abused K.H. The record is silent as to the nature of the allegations and whether the allegations were substantiated. The separation agreement granted joint custody to the parties, with the mother being appointed primary residential custodian. The father then had visitation with K.H. every other weekend and two hours on every other Wednesday until 2004.
Without the father’s knowledge, the mother had K.H. see therapists, the Sensings, in 1998. The Sensings noted that K.H. may have been traumatized by a male. They did not observe any obvious signs of sexual abuse, but could not rule out the possibility. Their recommendation was for K.H. to continue visitation with her father, but suggested that a female relative be present and that the visits increase as K.H. grew more comfortable with her father.
In 2003 the mother alleged that K.H. became anxious before visits with her father. Her pediatrician found no physical explanation for the anxiety. In 2004, Sally Sensing met with K.H. again. K.H., eight years old at this time, told the therapist that her father made her uncomfortable and she became physically ill before each visit. K.H. also alleged that her father embarrassed her, slept in bed with her, and took pictures of her naked in the shower (court noted that child was standing in the shower behind the curtain, modeling a shower cap, with a wide smile on her face), washed her inappropriately during baths, would drink and drive with her in the car, and left her in the car alone for 25 minutes while he shopped for a television. Sensing recommended that the visitation continue, but with professional supervision until the causes of K.H.’s anxiety could be fully assessed. Sensing did not report any abuse to authorities.
That same month, the mother motioned for the court to suspend or alter the father’s visitation. The father objected, and the mother stopped the visitation on her own. As a result, the father asked that the mother he held in contempt of court.
The DRC held a hearing in February 2004. After hearing testimony from the Sensings, Dr. Fane, a clinical psychologist who evaluated the father, both parties, maternal and paternal grandmothers, K.H.’s teacher, and the father’s ex-wife, the DRC recommended that visitation be suspended until the mother, father, and K.H. could be evaluated by one professional.
The evaluation by Feinberg & Associates revealed assets and deficits in the parenting of both parties. No allegations of sexual abuse were revealed, and Feinberg recommended that the visitation resume. As a result the TC ordered both parents and K.H. to begin counseling with Ruth Sutton, another therapist. When K.H. learned that she was to see Sutton to facilitate visitation with her father she became upset and claimed that her father had sexually abused her. Sutton reported the allegations of abuse to authorities.
K.H. told the CPS worker, Guffy, of the incidents of sexual abuse. The mother confirmed to Guffy that K.H. had told her of the incidents. The maternal grandparents also confirmed that K.H. had told them of incidents of abuse by her father. Since the father was living in Tennessee and that is where the abuse allegedly took place, Guffy filed a report with the police in TN.
In December of 2004, K.H. underwent a medical exam, however during the exam neither K.H. or her mother alleged that any inappropriate physical contact had occurred. The results of the exam revealed no abnormalities, but could not rule out the possibility of abuse.
Sutton continued to see K.H. until January 2006. The father had not heard from Sutton by December 2004, so he moved the court to reinstate visitation. The court set a hearing for January 2005, and planned on interviewing the child. In January 2005, the TN authorities wrote the TC a letter informing the judge of their open investigation and stated that if the father was granted access to the child, the authorities would take the child into state custody. The TC cancelled the interview of the child as to not become a witness in the TN criminal investigation. The record is silent as to whether criminal charges were ever filed or pursued against the father in KY or TN.
In December 2006, a hearing was held at which the father testified and denied the abuse allegations. Sutton also testified. She stated that she believed K.H. and adamantly opposed any contact between K.H. and her father. The TC concluded that it was not in K.H.’s best interests to see her father, since it would endanger her physical, mental, and emotional health.
COA affirmed. TC’s findings were supported by substantial evidence and did not abuse its discretion. However, COA noted that six mental health professionals reviewed the case, and only one of them, Sutton, testified at the hearing. Sutton, who stumbled on cross-examination regarding her own qualifications, was the only one of the six that thought visitation should be stopped. COA also noted that its opinion does not prohibit the father from pursuing future visitation with his daughter.

Graves, Senior Judge, Concurring Opinion: Judge Graves would have preferred if the TC had interviewed the child.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Adoptions Changes Sought, Panel Wants Safeguards For Removing Kids From Parents

Adoptions Changes Sought, Panel Wants Safeguards For Removing Kids From Parents is the title of a Lexington Herald-Leader article by Valarie Honeycutt Spears. Some quotes:

A task force studying the improper removal of children from their parents in Kentucky is for the second time asking the General Assembly to pass a reform bill.

State Rep. Darryl Owens, D-Louisville, is introducing legislation designed to put more safeguards into the process of removals by state social workers, into cases involving the termination of parental rights and into state adoptions from foster care in Kentucky.

If enacted, the bill would further protect the due process rights of parents, slightly increase accountability for the Kentucky Cabinet for Health and Family Services staff and provide increases in the fee scale for court-appointed attorneys for children and their parents.

The Cabinet's Blue Ribbon Panel on Adoption presented similar, though weaker, legislation, during the 2007 General Assembly, but it failed to become law. The task force had been led by former Secretary Mark D. Birdwhistell.

The story continues,

In Kentucky, there was no definitive word yesterday on whether there will be additional legislation filed in the 2008 General Assembly to open child protection courts, an issue that was a main focus of the Blue Ribbon panel.

Cabinet Undersecretary Tom Emberton Jr. told members of the Interim Joint Committee on Health and Welfare yesterday that regional meetings were being held across the state at the direction of Chief Justice Joseph E. Lambert to determine whether a bill should be filed.

Last week, Lambert stopped short of saying that legislation would be filed in the upcoming legislative session. But he said, "I support the concept of allowing greater public access to juvenile court proceedings."

One new provision in the legislation presented yesterday gives Kentucky's chief justice the ability to establish rules to manage juvenile and child protection cases. The legislation also calls for parents -- and children if they are old enough -- to meet with their court-appointed attorney before they go to court for the first time. That does not happen now.

And the bill says that as of July 1, 2010, attorneys would have to prove that they had received specialized training before they could be placed on a new list that would allow them to be appointed by the court to represent children and parents.

Under the proposed legislation, fees for court-appointed attorneys would be increased from $500 to as much as $1,500, but they would have to justify those fees to the state.

Thanks to Kentucky Law Review for catching this story.

London v. Collins (KY) Modification Of Child Custody

London v. Collins, ___S.W.3d___(Ky. App. 2007)

Child resided primarily with Mom until she was removed in a dependency action. At the temporary removal hearing Dad agreed that it would be best that the child temporarily reside with a member of Mom’s family. Shortly thereafter Mom died. At what was supposed to be a pre-trial conference a social worker incorrectly informed the TC that Dad had agreed that permanent custody should be awarded to the temporary custodian (custodian). Dad was not represented by counsel, his custodial rights were not explained to him, and the TC did not question him about his wishes regarding custody. Approximately a year later dad filed a petition for custody. The TC held that the custodian was a de facto custodian, that she had equal standing with Dad, and that Dad had failed to meet the statutory requirements to modify custody. The trial court also held that because Dad did not object when the permanency order was entered he waived his custody.

CA held that while Dad was present when custody was awarded to the custodian it was likely he did not understand what was occurring. The CA opined that while a parent can waive his parental rights that waiver should not occur by accident because a party does not understand the proceedings. Dad’s silence at the pre-trial conference did not constitute a waiver of his parental rights. Additionally, the CA held that since no evidence was taken at the hearing on Dad’s petition for custody there could be no finding that the custodian was a de facto custodian. Regarding the permanency order, the CA held that a permanency order in a dependency action may qualify as a custody decree. However, to be considered a valid custody decree it must be based on the standards set forth in KRS 403.279(2). The TC took no evidence upon which it could have found that the custody placement was in the child’s best interest and therefore did not meet the elements of KRS 403.279(2). Because the order in the dependency action was not a custody decree, as envisioned by KRS Chapter 403, it was not necessary that the requirements of KRS 403.340(2) be met in order to modify custody.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

State Can Be Granted Custody Of Out Of Control Child When Parents Are Fit

Court holds that parents do not have to be found unfit for state to be granted custody of out of control mentally ill child, an interesting post from LawReader re a Washington decision.

T.N.H. v. J.L.H., Termination of Parental Rights When Parent Is A Minor

UPDATED 11/08: The Kentucky Supreme Court has accepted discretionary review of this case. T.N.H. V. J.L.H., ___S.W.2d___ (Ky. App. 2007)

Mom appealed TC’s judgment terminating her parental rights to child, and Cabinet appealed TC’s order for Cabinet to pay mother’s appellate attorney fees and her filing fees.

FACTS:
At the age of fourteen, Mom gave birth to Son, and, shortly after the birth, Cabinet filed Petition for dependency and neglect alleging that Mom was neglecting Son. Mom and Son were initially placed in custody of maternal aunt, but one month later, both Mom and Son were voluntarily committed to Cabinet’s custody. Mom and Son were placed in a foster home. However, after Mom was disruptive at the home, ran away, did not participate in care of Son, and was dismissed from school, she was placed in the first of a series of homes for troubled teens. At each of these homes, Mom had periods of positive behavior, such as participation in counseling and parenting classes, high school classes, and part-time employment; and negative behavior, such as instigating fights and prolonged absences from the homes, during which she would have contact with an abusive boyfriend. One and a half years after the initial Petition was filed, the Cabinet filed a Petition to terminate Mom’s rights to Son, and foster parents were prepared to adopt Son. GALs were appointed for both Mom and Son. The Cabinet called only one witness, the social worker responsible for the family’s case. He testified that Mom was detached from Son and had not been fully cooperative in parenting programs. He admitted that Mom had made progress in developing parenting skills since the initial petition was filed, but that that progress was insufficient for her to act as Son’s parent. The Cabinet presented no psychological assessments, no evidence concerning Mom’s mental capacity, and no evidence regarding the likelihood that Mom might develop necessary parenting skills. Mom’s aunt testified on her behalf that Mom had made progress and was capable of caring for Son. TC terminated Mom’s parental rights. After TC denied Mom’s motion to alter, amend, or vacate, Mom requested TC to order Cabinet to pay her appellate filing fees and attorney fees. After several cross-motions, TC ultimately held Cabinet in contempt for failing to pay appellate filing fee, appointed appellate counsel for Mom and ordered Cabinet to pay Mom’s appellate counsel’s fee.

ANALYSIS:
Standard of review in termination of parental rights cases is the clearly erroneous standard based upon clear and convincing evidence. In addition to several claims of error based on procedural flaws, rejected by CA, Mom also claimed that because the filing of the Petition was not in Mom’s best interests, the Cabinet breached its duty to her. CA found that where both parent and child are in Cabinet’s custody and the Cabinet seeks termination of the parent’s rights, there should be a statutory procedure for appointment of an independent person to protect the parent’s best interests, and that it would be appropriate for the legislature to take up the matter. However, CA held that the more problematic issue in this case was the Cabinet’s failure to meet its burden of proof, which was Mom’s last contention of error. CA held that, “It is well established in our law and recognized in society in general that juveniles are often plagued by their inexperience, poor decision-making skills, and lack of appreciation for the consequences of their actions. As a result, a juvenile is not held to the same standards of conduct as an adult or to the same punishments. Yet, in this case, we are convinced that mother's rights were terminated based solely on her past conduct as a juvenile with no consideration as to her future parenting abilities. Just as incarceration alone cannot serve as the basis for termination, nor can the young age of the parent, by itself, be sufficient. In cases such as this, where the parent's age and emotional immaturity undeniably contribute to her lack of parenting skills, we believe that termination must not be based solely on the parent's prior behavior without some objective assessment of her psychological and mental capacity to develop the required abilities to effectively parent a child.” In response to the Cabinet’s argument that termination was founded on Mom’s abandonment of Son, CA found that because Mom had relinquished custody of Son to the Cabinet when he was three months old and since that time had never had custody of the child, there was no clear and convincing evidence of abandonment. Cabinet’s remaining ground for termination was that Son had been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months. CA held that although this fact was not in dispute, it was attributable to mother's age rather than any action on her part. CA expressed concern that if the time of commitment can serve as a basis for termination in cases such as this, young parents would be discouraged from committing their children to the Cabinet, though this may be in his or her child’s best interests for the short term. CA suggested that patience with the parent/child was required in such instances so that the state does not prematurely terminate the parent's rights. CA recommended that, in the future, in similar cases, the Cabinet should present TC with expert testimony as to the likelihood that when the teen reaches adulthood, the parent would not be able to effectively parent the child. Termination judgment vacated.

CA agreed with the Cabinet that the award of appellate filing and attorney fees to Mom constituted error and reversed this Order. By statute, the maximum award of $500 serves as the cap on attorney fees, whether the services are rendered at trial, or on appeal, or both. KRS 610.060(4) specifically states that the “fact that a child is committed to a state agency shall not be cause for the court to order that agency to pay for counsel.” There is no contrary provision for wards in termination proceedings. CA held that since $500 is the maximum that could be awarded to appointed counsel and, since that was exhausted at the trial level, TC erred when it ordered the Cabinet to pay mother's appellate attorney fees. TC also ordered the Cabinet pay her appellate filing fee. CA found no statutory provision which permits the court to require that the Cabinet pay the fee. CA held that as an indigent, mother should have filed a motion to proceed in forma pauperis in the circuit court, and could have thus avoided the fee. Order awarding attorney fees and appellant filing fee vacated.

DISSENT:
“Where the statutory factors under KRS 625.090 are otherwise met, unlike the majority, I am not of the opinion that if a parent's negative behavior is attributable to her immaturity, that termination is premature where the parent is reasonably likely to develop necessary parenting skills with a reasonable time after entering adulthood. I appreciate the majority's qualifier of “reasonableness” in reference to time limitations for a young parent to develop parenting skills. However, my view is that age does not excuse the mother from any of her parenting duties whatsoever for any time period, and especially does not excuse her for her overall failure to be a responsible parent for almost all of her son's entire life.”

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Kentucky Summit On Children; Regional Dates Announced

The Kentucky Law Review has been covering the Kentucky Summit on Children:

Here are the dates for upcoming Regional Kentucky Summits on Children

Ky Youth Summit: "Real Protection for Kids" (CJ Ed.)

Kentucky's Summit on Children Held Aug. 27-29 with Regional Summits in the future

T.G. V. COMMONWEALTH

T.G. V. COMMONWEALTH, ___S.W.3d___(Ky.App. 2007)

Mom appealed family court’s order terminating her parental rights to her infant daughter, A.J.M., and transferring her custody to the Cabinet for Health and Family Services with the authority to place her for adoption.

First, Mom attacked the constitutionality of KRS 625.090(1)(a)1., in that a court is permitted to adopt the findings from a dependency adjudication, which is afforded a lower standard of proof than required in a termination proceeding. Second, Mom argued that the family court's finding of abuse or neglect was not supported by substantial evidence. Third, she asserted that the family court's findings under KRS 625.090(2) that several grounds existed were not supported by substantial evidence.

The General Assembly provided the mechanism for the involuntary termination of parental rights in KRS 625.090. The statute creates a three-pronged test, whereby the Cabinet must prove, and the circuit court must determine, that
1) the child is abused or neglected, as previously adjudged by a court of competent jurisdiction or found to be abused or neglected in the present proceeding;
2) termination would be in the child's best interest; and
3) one of several listed grounds exists.

In deciding the second and third prongs, the circuit court is required to consider several enumerated factors, as listed in KRS 625.090(3).

The first determination a circuit court must make is whether the child is, or has been adjudged to be, abused or neglected as defined in KRS 600.020(1). Specifically, the statute reads:

(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:

(a)1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;

2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or

3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated[.]

Mom contended that the first option violates due process, in that it allows a circuit court to accept information and a finding of neglect or abuse that was based upon the lower preponderance of the evidence standard, as opposed to the higher clear and convincing standard mandated in involuntary termination proceedings. Kentucky's courts and the legislature have adopted this standard of proof for involuntary termination proceedings. KRS 625.090. However, the dependency, neglect, and abuse statute still requires that a determination, in part, be based only upon the lower preponderance of the evidence standard. KRS 620.100(3). In this case, the way Mom suggested the family court applied this particular subsection (and the way it appears that it was actually applied) clearly did not pass constitutional muster, as it permits the court in a termination proceeding mandating a higher standard of proof to adopt a finding from a dependency action that is based upon a lower standard of proof. However, because CA must draw all fair and reasonable inferences in favor of a statute’s constitutionality, CA held that KRS 625.090(1)(a)1. is constitutional, so long as it is correctly applied. CA held that a circuit court may perform an independent review of the evidence submitted in the dependency action and make its own determination of abuse or neglect based upon the elevated standard of proof and that either party should be permitted to offer proof to establish facts that led to the lower court's finding of abuse, neglect or dependency.

In the present case, there was no indication that the family court made any type of independent review of the evidence submitted in the dependency proceeding. It merely adopted the result of the prior adjudication when it determined that A.J.M. had been adjudged to be abused or neglected. CA found that there was not substantial evidence that A.J.M. was at risk to be abused or neglected. Family court’s finding was based on Mom's mental health problems and her history of resultant neglect or abuse to her two older children. However, CA found that scant evidence of abuse to the two older children existed in the current record, and that Mom’s treating counselor indicated that she was learning to be a better parent and that she should eventually have supervised visitation. Because there was no substantial evidence to support a finding under either subsection 1. or 2. of KRS 625.090(1)(a), and there was no allegation of criminal charges under subsection 3., the family court erred in finding that A.J.M. was abused or neglected. Thus, the first prong of the three-part test was not met.

Regarding the third prong, in which the family court was required to find one or more of several grounds, family court held that two grounds existed, under KRS 625.090 (2) (e) (failure to provide essential parental care over the last six months, with no expectation of improvement) and (g) (failure to provide adequate food, clothing, shelter, medical care, or education, with no expectation of improvement.) In its determination of whether one of these grounds existed, the family court was to consider six other factors, including whether a parent’s mental illness rendered her consistently incapable of care for child’s psychological needs for extended periods of time, and whether the Cabinet made reasonable efforts to reunify parent and child. CA found that though Mom had been diagnosed with a mental illness, no evidence was submitted that her mental illness brought her within the scope of the statute, and that furthermore, Mom did what Cabinet asked of her for reunification, but Cabinet did not do all it could to further the goal of reunification. Thus, CA held that, in consideration of the six factors, there was not substantial evidence to support the existence of KRS 625.090 (2) (e) or (g).

Because CA determined that no substantial evidence existed to support the family court's finding that A.J.M. was abused or neglected, or that a ground supporting termination existed, CA held that the family court clearly abused its discretion in terminating Mom's parental rights to A.J.M.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

T.G. v. Com. –S.W.3d—(Ky. App. 2007)

T.G. v. Com. –S.W.3d—(Ky. App. 2007), Termination of parental rights.

Issues and Holdings:
1. Whether KRS 625.090(1)(a)1 is constitutional. The Court held yes, if the statute is correctly applied. However, the family court did not correctly apply the statute.
2. Whether the family court’s findings under KRS 625.090 were supported by substantial evidence. The Court held no.

Facts:
T.G. is the biological mother of A.J.M, born in January 2004. At her birth, the Cabinet filed an Emergency Custody Order to obtain custody based on T.G.’s diagnosis of obsessive compulsive disorder and the prior removal of her two older children due to her noncompliance with treatment and her stipulation of abuse and neglect. The ECO was dismissed.
In August 2004 the Cabinet filed a second ECO, which was granted. The Cabinet then filed a Juvenile Dependency, Neglect and Abuse Petition, alleging the child was abused and neglected. At an adjudicative hearing in October 2004, the court found that the child was neglected and should stay in the custody of the Cabinet. After a disposition hearing, the court found that reasonable efforts were made to prevent the child’s removal from the home and that it was in her best interests for the court to take custody of her. The court then committed the child to the custody of the Cabinet, ordered mom to cooperate with the Cabinet in treatment, and ordered mom to pay child support.
The Cabinet eventually changed its goal from reunification to adoption, and filed a Petition for Involuntary Termination of Parental Rights in April 2005. After a bench trial, the family court made findings of fact and terminated mom’s parental rights. The court denied T.G.’s motion to alter, amend, or vacate, or for a new trial. T.G. appealed.

Analysis:
KRS 625.090 requires a three part test for the involuntary termination of parental rights. The court must determine that: 1) the child is abused or neglected, as previously adjudged by a court of competent jurisdiction or found to be abused or neglected in the present proceeding, 2) termination would be in the child’s best interests [not at issue in the instant case], and 3) one of several listed grounds exists. The court must also consider factors set out in KRS 625.090(3) in deciding the second and third prongs of the test.

Constitutionality of KRS 625.090(1)(a)1:
Kentucky has adopted the clear and convincing standard of proof in involuntary termination proceedings. Yet, KRS 625.090(1)(a)1 still requires that a determination, in part, be based only upon a lower preponderance of the evidence standard as set out in KRS 620.100(3). The way the family court applied the statute was unconstitutional, as it allowed the court, in a termination proceeding requiring a higher standard of proof, to adopt a finding from a dependency action that is based on a lower standard of proof. The family court merely adopted the findings from prior adjudication when it determined that the child had been adjudged abused and neglected. Therefore, there is no substantial evidence to support the family court’s findings under KRS 625.090(1)(a)1.
The Court noted, however, that the statute may be applied in such manner to be constitutional. That manner being that the court performs an independent review of the evidence submitted in the dependency action and makes its own determination of abuse or neglect based upon the elevated standard of proof. In addition, either party should be permitted to offer proof to establish facts that led to the lower court’s findings.

Finding of abuse and neglect under the present action under KRS 625.090(1)(a)2:
The family court’s finding that the child is at risk of being abused or neglected was based on the mother’s mental health issues and her history of neglect or abuse to her two other children. However, at the hearing evidence was presented that the mother had returned to a previous counselor, that the mother had shown improvement in treatment, that the child should eventually be returned to the mother, that the child had never been injured, and that the child was in good health at the time of removal. Therefore, no substantial evidence supported the court’s finding, and the court erred in finding that the child was abused or neglected.

Findings under KRS 625.090(2):
The family court determined that grounds existed under KRS 625.090(2)(e) and (g). The court also found that the Cabinet made reasonable efforts to reunify the family, that the prospects for improvement of the child’s welfare increased if parental rights were terminated, and that the Cabinet examined the mother’s mental health under KRS 625.090(3).
However, the mother’s mental illnesses did not bring her within the scope of KRS 625.090(3)(a), because the family court did not conclude that the illnesses rendered her unable to consistently care for her child. Evidence had been presented that her illnesses were treatable. Moreover, the mother completed the treatment recommended by the Cabinet for reunification purposes. The Cabinet failed to offer the mother in-home services as recommended by her counselor. Finally, there was no substantial evidence to support the court’s finding that the mother could not provide food, clothing, shelter, or medical care for the child. The child was in good health at the time of her removal. Therefore, the family court erred in finding to the contrary.

Since no substantial evidence exists to support the court’s finding that the child was abused or neglected, or that a ground supporting termination exists, the Court held that the lower court abused its discretion in terminating the mother’s parental rights. REVERSED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Opening Court Proceedings Involving Minors

Lexington Herald Leader, February 6, 2006: Open hearings an issue in parental rights
LEGISLATURE TO CONSIDER ADOPTION LAW CHANGES
By Beth Musgrave And Valarie Honeycutt Spears
HERALD-LEADER STAFF WRITERS

Same day. Same argument.

Two different judges, two different answers.

The legal argument Louisville lawyer John Helmers was pushing yesterday in Louisville Family Court was a prickly one. The courts, he argued, should open hearings concerning the termination of the parental rights of three of his clients to the public.

Those hearings and all hearings involving children in Kentucky -- from juvenile delinquency cases to abuse and neglect cases -- have always been closed.

Jefferson Family Court Judge Jerry Bowles ruled against Helmers yesterday, saying the issue on whether the courts should be open is one for the legislature to decide.

Just an hour and a half later, Family Court Judge Stephen George said he would take the issue under advisement and issue a ruling later, adding that the courts should err on the side of openness.

The difference in opinion could be a bellwether of what the legislature may face as it tackles reform of key areas of the state's adoption rules. The legislature, which begins its session today, is expected to receive a series of recommendations on changing the state's adoption laws after investigations and panels showed that in some cases biological parents' parental rights are terminated too quickly.

The Inspector General, in a stinging January report about problems with foster care adoptions and termination of parental rights, recommended that termination proceedings against parents be open. The report found that social workers in the Elizabethtown office lied in court, falsified documents, acted spitefully toward parents and focused on adoptions rather than unifying children with their parents. At a meeting of the Cabinet for Health and Family Services Blue Ribbon Panel on Adoption, tasked with investigating adoption procedures in Kentucky, some family court judges suggested opening abuse and neglect hearings.

It is too early to tell whether legislators will recommend opening the courts as part of a possible reform package.

Editor's note: Divorce proceedings involving custody of children are open to the public, even when those cases involve allegations of abuse or neglect.

In a related matter, the Courier-Journal published today a letter to the editor from DAVID W. RICHART ,Executive director, National Institute on Children, Youth & Families, Inc.

Opening juvenile court

In a Jan. 31 editorial, The C-J continued its editorial goal of opening juvenile courts in child neglect and abuse proceedings….

We [child and family advocates] agree that the road to systemic reform of child protection in Kentucky, which was the subject of 1978, 1985, 1995, 2001, 2006 and 2007 exposés, is impeded by the principle of confidentiality.

Putting it bluntly: More often than not, confidentiality protects the actions of the state agency as much as it protects the identity of children and their families….

We also agree that judges should be given the ultimate responsibility for deciding whether hearings should be open. But we would qualify that recommendation by allowing the attorney for the child, the attorney for the parent, as well as the county attorney, to request a special hearing on whether a particular court proceeding should be open to the public.

Such a special hearing might allow judges to hear all of the facts, which is especially important in child sexual abuse matters.

But we have more modifications in mind. Since no attorney is appointed to represent the parent or child at the first, 72-hour hearing on accusations of child neglect or abuse, the most wildly speculative hearsay evidence reported by the state agency could be subject to full media scrutiny….

That "evidence" – while telling only one side of the story -- could be subject of sensational reporting even though it might not be true….

The second modification is to prohibit the media from having access to court and agency records. At present, these records contain information of the most speculative kind, including the name of the person who reported the incident, an action that would have a stifling effect on the public's willingness to report real abuse and neglect. So, we think records should be out-of-bounds for reporters.

Third … the media must be held accountable as well. We have suggested that the Kentucky Press Association establish voluntary guidelines providing ethical guidance for journalists so that their peers could hold reporters accountable….

For some of us, our worst nightmare is turning on our television to watch a 23-year-old cub reporter tell his audience of a "breaking news" story full of identifying information about a family -- which later turns out to be false…. It is our contention that once the media has let the wrong cat out of the bag, reversing this incorrect stereotype of children and families may be next to impossible.

The Courier-Journal has done a commendable job of raising the consciousness of the public -- and even child advocates -- about the importance of opening child abuse and neglect proceedings.

We would suggest that all of us put a bit more effort into amending the current confidentiality statute in child abuse and neglect proceedings before we change this nearly century-old provision of juvenile law.

Should Children in Foster Care Receive Help After Turning 18?

Ben Stevens in South Carolina posts the latest on Should Children in Foster Care Receive Help After Turning 18? at South Carolina Family Law Blog.

Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents

We have been reading the news (New York Times, USA Today) of the Memphis child who will be returned in days to her biological parents, after being raised by another family for seven years. I have been waiting to see the Tennessee opinion, which is now online. I am glad I waited for the opinion before posting the news, because I was glad to learn there will be a reunification plan rather than a disastrous delivery of the child. The Family Law Prof Blog digests the case:

The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, ...the trial court erred in finding a willful failure to visit..... we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody." The Court remanded for determination of a reunification plan.

GAL and CAC Fees (KY)

Andrew Wolfson reports in today's Courier-Journal, Family Court Attoney Fees Stand. I loved the quote from Jefferson Circuit Court Chief Judge, Family Division, Stephen M. George:

The importance of work done by GALs and CACs cannot be overstated...There are very few judicial acts that have as profound effects as the actions made involving the parent-child relationship.

John H. Helmers, Jr., one of the moving parties, advises that while the article is balanced, it does not mention that the Finance Cabinet was held in contempt of court for failure to pay fees ordered where it did not take proper steps to obtain relief from the order. Further:

It also fails to state that the Finance Cabinet has implemented a new policy (without a corresponding legislative change) last summer. The net result of the change from the former policy (ten years
plus) is a dramatic reduction in fees -- putting some of our most vulnerable citizens, including abused children and the poor, at risk of having lesser or no representation

.

Here is a copy of the Order: Download order011107.pdf

.

Report of Kentucky Inspector General Released

The Kentucky Office of Inspector General has issued its report, available online, on quick trigger adoptions, inter alia. While the investigation is beyond the scope of this blog, many readers will want to read the entire report, parts of which will no doubt be in the headlines in the coming days and weeks.
We are pleased to hear that one of its recommendations is to make these proceedings less secretive:

Based on our findings, we believe it would be imprudent to ignore the serious nature of the issues identified herein by only addressing individual misconduct while failing to fully address the conditions that ripened the environment for individual misconduct. It is the opinion of the OIG that such issues flourished, in large part, from the shroud of secrecy that so fully envelops the TPR process as to leave it highly susceptible to individuals or groups of individuals desirous of corrupting the process. For example, we believe strongly, the cloak of secrecy that currently dominates this process is not in the best interest of Kentucky’s children and must be removed as part of any material reform. Simply stated, these are not matters of national security, wherein effectiveness often requires secrecy. Rather, they are social service issues that demand the full light of day in order to better ensure the integrity of the process. The fact that children are involved in the process should no longer be used as an excuse to protect these proceedings from meaningful public oversight.

The Kentucky Law Blog posted this morning the news that three key officials are leaving for private practice. Sadly, Inspector General Robert Benvenuti, author of the report, is among them.
UPDATE: Read Deborah Yetter's front page story at the Courier-Journal and Valarie Honeycutt Spear's story at the Lexington Hearld-Leader.

Public Forum To Improve Kentucky Child Protection Services

Persons with suggestions to improve Kentucky's system of child protection services will have the opportunity to voice their ideas at a public forum next week in Frankfort. The Kentucky Cabinet for Health and Family Services is hosting the forum from 1:30 to 3:30 p.m. on Wednesday, Jan. 17, in room 169 of the Capitol Annex. I hope one object of the forum will be to help the cabinet garner support for a large budge increase from the legislature. Our state's financial priorities are out of whack. We need social workers and we need them badly. We don't need any more social workers killed while walking solo into dangerous situations. And, while it is not the subject of this forum, our judges need more time for these important cases, which means we need more family court judges.

CASA a Valued Champion for Kids

Deborah Vetter reports CASA a valued champion for kids in yesterday's Courier-Journal, a timely topic for those whose New Year resolutions include seeking opportunities to volunteer for worthy causes. Many more volunteers are needed, and these dedicated folks really can make a difference in the lives of abused and neglected children. Some quotes from the article:

At a time of growing caseloads and increasingly complex situations of abuse and neglect -- often fueled by drugs and alcohol -- judges say the CASA volunteers are becoming increasingly important.

The advocates generally handle one case at a time, while busy social workers may have 15 to 20 or more.

"CASA makes a tremendous difference," said Jefferson Family Court Judge Patricia Walker FitzGerald. "I wish we could have a CASA volunteer for every child in the system."

Jefferson County's CASA has about 170 volunteers, while Family Court judges last year handled 3,500 cases of abuse or neglect.

Though judges acknowledge they probably will never have enough volunteers to appoint a CASA worker for every case in family court, they wish there were many more.

"A lot of times, CASA is the only primary, consistent person in the child's life," said Stephen M. George, chief judge of Jefferson Family Court.

How to volunteer? A vist to the volunteer page on the CASA website is a good place to start.

Com., Cabinet for Health and Family Services ex rel. A.W. and C.W. v. Huddleston et al.

Com., Cabinet for Health and Family Services ex rel. A.W. and C.W. v. Huddleston et al., 185 S.W.3d 222 (Ky.App. 2006)

Issue and Holding:
Whether a Family Court can require the Cabinet to maintain residence for children committed to its care in a particular county. The Court held no, the Family Court cannot intervene in the Cabinet’s placement of children.

Facts:
After petitions alleging neglect had been filed as to A.W and C.W., the children were committed to the custody of the Cabinet. At that time, the father of the children could not be located and the mother of the children was incarcerated. The children were placed with foster parents in Simpson County.
After the mother’s release from jail, she moved to Russell County. A permanency hearing was held, and the trial court ordered that the children remain in the custody of the Cabinet. It also found that the Cabinet’s plan to reunify the children with their mother was in the children’s best interests. However, the court also ordered that the Cabinet keep the children’s residence in Simpson County, more than 100 miles away from their mother.
The Cabinet filed a motion to alter, amend or vacate the portion of the order requiring it to keep the children in Simpson County, and it was denied. The Cabinet appealed.

Analysis:
The Cabinet, not the court, stands in loco parentis with regards to the children. KRS 610.010(11). The Cabinet has the sole and exclusive authority to determine the appropriate placement of children committed to its care. The court cannot intervene in the Cabinet’s placement of children. The court’s restriction on the Cabinet’s placement of the children also violated the separation of powers provision of the Kentucky Constitution.
Accordingly, the Court vacated only the portion of the trial court order restricting the Cabinet’s placement of the children and remanded the case back to the trial court for entry of a corrected order.

Adoption News Story Much Meatier Than Headline Suggests

"Kentucky looks to speed up adoptions", is the Courier-Journal front page headline reporting on the Blue Ribbon Panel on Adoption meeting in Frankfort yesterday. The online edition link to today's article was not yet available at the early hour of this posting. What an informative and productive meeting it appears to have been. Kentucky State Auditor Crit Luallen, a potential 2007 gubernatorial candidate, presented the results of an audit showing that children removed from homes because of abuse and neglect are waiting for adoption on average three years, longer than permitted by federal guidelines. The year long study makes no conclusions as to whether children are removed too hastily from homes, the issue that caused the panel to be formed in the first place. Mark D. Birdwhistle, chair of the panel stated that there are "pockets of problems" and acknowledged the need to have consistent standards across the state.
Many thoughtful and much needed ideas are being floated to this influential panel and discussed which is very welcome news. For example, yesterday auditor Luallen made recommendations for speeding up the three year wait for the 2000 children currently available for adoption, including creation of a birth father registry. We have reported on such a registry here and announced some new scholarly articles on these issues here.
Chief Judge, Jefferson Circuit Court, Family Division Stephen George and Family Court Judge Patricia Walker FitzGerald also presented to the panel the need for Guardians Ad Litem to be fairly paid and the need for attorneys to be appointed to represent parents at the initial temporary removal hearing. Judge George also said removing the confidentiality requirements of current law in dependency cases would make the family courts more accountable.
UPDATE: Here's the link to the Courier-Journal article by Deborah Yetter.

Com., Cabinet for Health & Family Services ex rel. M.H. v. R.H., 199 S.W.3d 201 (Ky.App., 2006)

Com., Cabinet for Health & Family Services ex rel. M.H. v. R.H., 199 S.W.3d 201 (Ky.App., 2006)

Issue and Holding:
Whether the doctrine of issue preclusion applied to bar the Cabinet from introducing evidence of prior sexual abuse perpetrated against siblings of the infant by the parents at an adjudication hearing regarding the removal of the infant from the parents’ custody. The Court held that the doctrine did not apply.

Facts:
The Cabinet filed a juvenile dependency, neglect, and abuse petition on behalf of M.A.H., an infant, on January 5, 2005. The petition claimed that the infant was at risk of harm due to a history of “substantiated sexual abuse, physical abuse, and neglect as well as . . . domestic violence.” On March 4, 2005, the Cabinet filed a notice of intent to introduce evidence of the removal of the infant’s seven siblings from the parents’ custody at the adjudication hearing. In response, the parents claimed that the Cabinet was barred from doing so under the doctrine of res judicata. The family court agreed and prohibited the Cabinet from introducing evidence of sexual abuse of the infant’s siblings by the parents. The court then found that the Cabinet failed to meet its burden of proof and dismissed the petition. The Cabinet appealed.

Analysis:
The Cabinet argued on appeal that the family court erred by excluding evidence related to the removal of the infant’s siblings following a substantiated claim of sexual abuse perpetrated against at least one of them.
The Court noted that the Cabinet had a long history of involvement with the family and that the Cabinet had been granted permanent custody of the child’s siblings in February 2004. The Court found that the family’s long history of abuse and neglect was relevant to the instant adjudication proceedings.
The Court held that the elements of issue preclusion had not been established in the instant case. While the issue of sexual abuse of the child’s siblings was identified in the adjudication proceedings of both the siblings and the infant and the issue was litigated in the siblings’ adjudication proceeding, the issue was not actually decided in the siblings’ adjudication proceeding. During the first proceeding, the court declined to name the perpetrator of the sexual abuse because it believed that the identity of the offender was not essential to the proceeding. Therefore, the Court held that the Cabinet is not barred from introducing evidence that might identify the father as the perpetrator of the prior sexual abuse, noting that this evidence is “highly relevant” to determine whether the infant is an abused or neglected child.
The Court vacated the pretrial order barring the introduction of the disputed evidence and the order dismissing the original petition. The Court also remanded the case for an adjudicatory hearing.

Comments: Fees For Guardians Ad Litem

Comments to our post, Fees For Guardian Ad Litem:
"I wanted to inform your readers that I personally do not deserve all of the credit for "leading" this litigation. Joe Elder filed the origninal motion to hold the Cabinet in contempt of court. Other lawyers who have joined the cause are Chris Harrell, Dana Kolter, Cathy Wallace, and Elizabeth Bricking. Additionally, Richard Porter has litigated this issue in another division which resulted in the Cabinet being already held in contempt of Court for this identical issue.
It just seems less than fair for me to get the attention when it has been a true team effort.
John Helmers."
And From Carolyn Elfant:
" I think that when many of these court appointed programs were set up, the legislature contemplated that attorneys would be handling a case or two pro bono, rather than trying to earn a living off representation. Of course, this isn't a very realistic model for ensuring competent representation. I think what also happens in many cases where courts implement flat fees is that they discover that a few attorneys have abused the system, and they react by punishing everyone - not just attorneys, but the clients they represent."

Fees For Guardians Ad Litem

It seems there are a few misconceptions out there about the Louisville, KY contempt motion heard this week against the Kentucky Finance and Administration Cabinet. The Courier-Journal headline reads Lawyers Seeking Higher State Fees
'There are 30 lawyers who represent children in abuse and neglect cases in Jefferson County's 10 Family Court divisions, and 40 more who represent indigent parents.
In the 12 months ending June 30, 3,592 new petitions were filed in abuse, neglect and dependency cases, the most in the 15-year history of Jefferson Family Court, said Jim Birmingham, the court's administrator.
Children in such cases by law must be appointed lawyers; judges may also appoint them for poor parents. The attorneys appear in court one day each week."
If I were a reader outside the system I would calculate, 3592 new cases in a year, 30 lawyers who are in court only one day per week, times $500 per case for the children = $65,866.67 per year per attorney, not bad for a day's work per week per year with little to no overhead!
This is not the case.
First, let's clear up that it is not the appointed attorneys for children who are seeking higher fees. While the statutory cap is $500 per case, for many years when a case is reopened for any number of changed circumstances, the appointed attorneys were paid for their time as if it were a new case. What changed is that the state stopped paying the fees for reopened cases, as I understand it.
While the attorneys are scheduled for one day per week in court, that is not indicative of the time spent on these cases. Further, in many cases the lawyers are paid less than $500.
Many of these attorneys are experienced, talented lawyers, precisely what we would insist upon for the representation of children otherwise without a voice.
As to the time incurred, I cannot say that I have ever done any volume of work in dependency court. What I have seen, however, is the most dedicated of professionals working all ours of the night and weekends. For example, during a custody dispute, dad accused mom's new husband of sexual abuse of one of the children. A Guardian Ad Litem was appointed (we won't discuss here the authority of the court to appoint a GAL in a custody dispute) to represent the children, who was luckily one of the GALs for that division's dependency docket. During a supervised visit, mom discovered bruising and whelps caused by dad's beating one of the children with a belt. She and the supervisor called the GAL, on an evening weekend, as I recall. The GAL raced downtown, took the children to Home Of The Innocents (since mom was still under investigation), calmed them down, eased their fears, talked about how fun Camp HOI was, and worked with the family in the resulting dependency action for many, many months through temporary out-of-county grandparent temporary placement to eventual parent stabilization and reunification.
How many attorneys would do this for $500? I'm still smarting over the $10,000+ in fees the parent I represented couldn't pay. Then, when problems recur and the case is reopened, who would you want appointed to represent those kids? The lawyer they already know, of course. But, if it is a reopening and the lawyer has already been paid $500, the state will say today, "sorry, you have already received your fee."
We need competent attorneys to do this grueling work. It is too bad we have already lost Teresa Kinberger, former head ot the Guardians Ad Litem Association who says the state is basically asking the GALs to work for free. Kudos to John Helmers and the other lawyers who are bringing this to a head. And, Chief Judge Stephen George was wise to make this hearing public even though abuse and dependency cases are confidential. While we don't agree that the Courier-Journal article fully lays out the competing concerns, it is a matter before the court of which the public has a right to be aware.
The Kentucky Law Blog also posted about this story.

John Walsh, Co-Founder and CEO of Morton Center to Retire

John Walsh, CEO of the Morton Center, an alcohol treatment center in Louisville,KY will retire next year. John co-founded the Morton Center in 1984. Over the years he became an indispensable resource to family law practitioners. If substance abuse was a concern for a child's safety, we could always count on John to objectively assess and make neutral recommendations. As often as not, he did not find an endangerment or even an addiction issue. When he found a serious problem that could endanger children, he always had a plan. Those who entered treatment under his direction were held strictly but compassionately accountable.
This level of trust and respect should make anyone happy with his life's accomplishments, but those feats are only the ones touching family lawyers and are the tip of the iceberg.
John has been a very active member of the Kentucky Family Law Network, Inc, the Louisville interdisciplinary collaborative law group.
How on earth does a community replace a guy like this? Knowing John, he has no doubt mentored well and has a plan in place.

Kentucky Children In Crisis

The Kentucky committee reviewing dependency, abuse, neglect and quick trigger adoptions met last week. If you read the Courier Journal report and the Lexington Herald-Leader story, they hardly seem to be covering the same meeting. Add to that, though, the Kentucky Post article about grandparents raising their grandchildren, and it all adds up to a huge problem. Leadership to find solutions and money to implement them will hold the keys to solving this crisis.

Louisville, KY Drug Court

It was welcome news that the state found funding for the Jefferson County family court drug court program. Yet, it is concerning that this program was not funded in the budget, and that a front page newspaper article was required to get it back in gear. The blogosphere is full of speculating on the "story behind the story." I think the Kentucky Law Blog's queries, though, are straight on:

"Why was drug court overlooked and ignored during the normal funding cycle when the AOC web pages, chief justice resume', and press releases abound with its praise?
Why were those involved in drug court left in the dark during the funding process?
This is the second time that funds were re-allocated for a project (eg., the minority law school scholarships - CLEO and now Drug Courts) which raises questions as to the reliability of the budgeting numbers going in and/or what programs or activities are being deprived of funds?
Where was $287,000 found during financially difficult times as now, and which programs paid the price?
What effect will this funding interruption have on the program and its personnel since classes were postponed and personnel let go when the money was running out?
Does the state auditor need to look at these books to see if there are any more funds that can be wisely used?
Is it wise to now finance the program outside of the AOC and will that result in loss of AOC oversight?"

A couple of weeks ago a group of mediators met for dinner to talk about how to do things better. The waiter, learning that some judges were present (those present actually included retired judges who are now serving as mediators) asked whether Judge Ryan would be coming. When someone asked why he wanted to know, he said "because he saved my life in drug court." Family drug court not only saves the lives of the addicts, but positively impacts the next generations, too.

First Report of Committee Studying "Quick Trigger" Adoptions

A Kentucky State Government press release sent after the first meeting of the committee studying "quick trigger" adoptions announces it will meet monthly and possibly recommend legislation in 2007. It is good news that the 12 member panel will personally be headed by The Kentucky Cabinet for Health and Family Services Cabinet Secretary Mark D. Birdwhistell.
The panel is getting off to a good start, said Tom Emberton Jr., commissioner of the Department for Community Based Services (DCBS), the office that oversees public adoptions.
Emberton said his staff is ready for the panel’s constructive evaluation.
“We look forward to working with this group to achieve good outcomes for children,” he said. “We are asking for an honest assessment of our practices.”
Thanks to Mike Stevens, of the Kentucky Law Blog, for forwarding the press release.

Family Drug Court

Eleanor Garber, Jefferson Circuit Court, Family Division Judge is surprised and disappointed that Kentucky state funding has been eliminated for her cutting edge program designed to treat drug addicts so their children can be reunited with them, the Courier-Journal reports.
"Drug Court officials said yesterday that they had thought that after meetings last summer, the state Administrative Office of the Courts would request that the General Assembly allocate funding for both the family court program and a separate Adult Drug Court program in Jefferson County.
Instead, the AOC, which manages Kentucky's judicial system, requested funds for only the adult drug court -- and even that was funded only for the 2008 fiscal year, and not this year. "I was blown away," Garber said. "For reasons unknown to us, they did not ask for funds for our drug court."
Jason Nemes, general counsel to Kentucky Chief Justice Joseph Lambert, said he wasn't involved in the meetings last summer and didn't know of any agreements made to fund the family court program.
He said the AOC focused on persuading the General Assembly to allocate money to expand the adult drug court program statewide.
"It was a calculation we made to do the best we could," Nemes said. "… I don't want to say one is more successful than the other but adult drug court is maybe more measurable."
Nemes added it's possible that funding may yet be found for the family drug court program in Jefferson County, which he agreed has been successful.
"It's premature to say it's going to close down," Nemes said. "There may be something that can be done. We're not sure at this point."
But Jefferson County Attorney Irv Maze, whose office helps run the local program, said:
"We are going to continue to fight the fight, but the likelihood of success is remote."
Officials with the Family Court drug program also complained that no AOC officials told them they wouldn't receive funding this year until a few months ago.
"Why didn't they let us know earlier?" Garber asked. "I would have done anything to try to find other sources."
Nemes said he didn't know about any communication problems and noted that "we're not at cross purposes" with Jefferson County officials."
Kentucky Law Blog comments on the story and links to the AOC budget through 2005. "With some programs being slashed within the AOC, then the question is how does a member of the public provide input to our Administrative Office of the Courts on what should or should be done and how should those priorities be affected?
Family Drug Court supporters are surely going to scrutinize the AOC's spending habits now that it has struck home and slashed a program with much local support within the courts and by the public."
Comment: Surely the heads of the executive and judicial branches can explain why funding for this program which had been jump started by a $1.2M federal grant was not sought from the legislature. Child protective services and the successful parents are surely owed an answer. ""There's lots of people that complain that we don't do enough to reunify families, and then a program like this gets cut," Sky Tanghe, a social worker with the state Child Protective Services, said of the family drug court. "To see this not available anymore is quite a shame." A mom helped by the family drug court agreed. "Without the program, I would never know that I have a disease, that I suffer from drug addiction," she said. "I learned how to live, how to be responsible."
UPDATE: The Kentucky Law Blog reports on the Courier-Journal August 8,2006 editorial and links to an AOC 2004 press release bragging about the success of drug courts.

Termination of Parental Rights; The Impossible Wisdom Required of Social Workers

Her Most Difficult Call- When is a Mother so troubled, or troubling that a welfare worker must take her kids from her? by Daniel Bergner, is the New York Times Magazine, July 23, 2006 cover story. It's heartbreaking to read, but important for us to realize what a difficult job these dedicated professionals have. Double that for the judge who must make the ultimate call.

Agency Accused of Taking Children From Biological Families

Valerie Honeycutt Spears wrote a detailed summary in the Herald-Leader of this week's legislative hearing in Frankfort on premature termination of parental rights.

Appointment of GAL Requires Notice and Hearing

Case Law Development: Appointment of GAL for parent in dependency action requires notice and hearing, from the Family Law Prof Blog. In states where there is statutory authority for a GAL in dependency cases, including Kentucky, this case may be inapplicable. But see our prior post on Guardians Ad Litem where there is not statutory authority.

Representing Children: A Resource

Steven Kriegshaber, Louisville attorney, and a past president of the Kentucky Chapter of the AAML, serves on the national AAML Special Concerns of Children Committee, and helped author a publication, REPRESENTING CHILDREN: Standards for Attorneys & Guardian Ad Litems in Custody or Visitation Proceedings. Published several years ago, it advocates that GALs not make recommendations to the court. As with all AAML publications and positions, much study and deliberation uas undertaken before it was released. He also wrote "Representing Children in Divorce Litigation,'' The Advocate, July/August 1997 . The AAML publication remains available for purchase online. The cost? $10.

State to Hold Hearings on Quick Trigger Adoptions

The KentuckyLawBlog reports today that the state will hold hearings on children hastily removed from biological parents to facilitate "quick trigger" adoptions. The post links to a Lexington Herald-Leader story. The hearings in the legislature will begin June 21, 2006 at 1 p.m.

Termination of Parental Rights Reversed Even Though Parent Did Not Object

In a story in yesterday's Lexington Herald-Leader, the recent unpublished opinion of V.S. v. Commonwealth was the topic. It is newsworthy because of the ongoing investigation into "quick-trigger" adoptions.

More on Investigation of Children Improperly Removed from Domestic Violence Victims

 

The Kentucky Office of Inspector General is investigating whether children whose mothers are domestic-violence victims, and others are being inappropriately removed from their families to increase state foster-care adoptions and federal financial bonuses. The matter is also under review by the Cabinet for Health and Family Services, by various grass-roots organizations and, most recently, by Gov. Ernie Fletcher. For the whoe story by Valarie Honeycutt Spears, click here: Herald-Leader, We found the story on the Family Law Professor’s Blog, but hopefully we’ll soon have the Lexington Herald Leader on RSS feed, too.

Lexington Children Removed from Abused Women in Shelters

The Courier Journal printed an AP story on Monday revealing that the state has removed 50 children in the last year from women who fled to Lexington, KY shelters to escape domestic violence. That morning I asked Nina Mosley, a Louisville attorney who often represents women in shelters (and whose husband is the Director of Wayside Christian Mission in Louisville) whether she has seen such removals in Jefferson County and was pleased to hear that had not been her experience. She only sees children removed when a serious issue such as drug abuse causes the children to be neglected. Today's CJ editorial page confirmed the issue appears limited to Lexington. Surely a thorough investigation will follow.