No family law to be published opinions were released, but discretionary review was granted in Commonwealth, Cabinet for Health and Family Services, v. L.J.P., et al. A digest of the court of appeals opinion and link to the decision is here. Briefing will be expedited and oral arguments will be held August 12, 2009 at 11 a.m.
R.M. v. R.B. , _ S.W.3d _ (Ky. App. 2009); 2008-CA-001099-ME
Trial court denied adoption of A.E.B. by her maternal aunt and uncle, R.M. and R. M., and further denied the involuntary termination of parental rights of the child’s father, R.B. R.M. and R.M. appealed. COA held that adoption is statutory right and that Kentucky Courts require strict compliance with the statutory mandates set out in KRS Chapter 199. Several statutory procedures were not followed by the trial court. First, the petition for adoption contained no allegations against R.B. sufficient to establish grounds for terminating his parental rights. Second, the trial court conducted an adoption hearing without submission of the Cabinet’s required report regarding its investigation of the proposed adoption. There was no record that the Cabinet had even investigated the adoption pursuant to KRS 199.510. Nevertheless, COA affirmed the trial court. Even thought the trial court made its decision based on the wrong reasons, it reached the correct result. COA noted that appellants are not barred from filing another petition that complies with the adoption statutes.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates
L.J.P. v. Cabinet for Health and Family Services, _ S.W.3d _ (Ky. App. 2008) 2008 WL 4998635
Paternal grandparents appealed trial court order denying their motion to intervene and request for custody of their grandchild in an involuntary termination of parental rights action. The issue on appeal was whether the grandparents have a right under CR 24.01 to intervene in a termination of parental rights action. COA found that grandparents have a “legally cognizable interest” in their grandchildren under Kentucky law. KRS 625.100 recognizes that the child’s relatives have an elevated status when the court awards custody of the child post-termination. It is difficult to understand how grandparents will assert their interest as potential custodians if intervention is not allowed. In addition, grandparent visitation survives termination proceedings if established prior to termination and in the best interests of the child. Pursuant to Baker v. Webb, grandparents have a right to intervene in adoption proceedings.
COA held that “[t]he right of grandparents to intervene in an adoption proceeding, recognized in Baker, would be impaired or impeded if the grandparents were denied the right to intervene in the custody determination subsequent to a termination proceeding because the stability of the child as well as the child-grandparent relationship, factors to be considered in a subsequent adoption proceeding, may likely be adversely affected by the custody order that follows termination but precedes adoption.” Therefore, grandparents have a right to intervene in the custody determination under KRS 625.100.
REVERSED AND REMANDED
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates
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
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
J.M.R. v. Commonwealth___S.W.3d___ (Ky. App. 2007)
Mother appealed the termination of her parental rights to her two infant children. Mother alleged TC made three errors. First, she alleged it was error to permit the children’s therapists to testify about statements made to them by the children about the abuse. CA held that the testimony of the therapist was admissible under KRE 803(4). CA opined that the statements were made to the therapist so that they could determine what happened and determine what treatment was necessary. Therefore, the statements were made for the purpose of receiving medical treatment.
Next, Mother argued that not allowing the children to testify violated her constitutional rights. CA held that it was not error to refuse to allow the children to testify. CA reasoned that the children were questioned by the court in camera with Mother’s counsel present. Therefore, she had been afforded an opportunity to question the children. TC did not error in its finding that it would not be in the best interest of the children to make them testify.
Finally, Mother alleged that the TC erred in holding that she had failed to provide for the essential needs of her children. CA opined that Mother’s failure to pay court ordered child support, while the children were in state custody, and the fact that she still resided with the children’s stepfather, and abuser, who paid all of the household bills was substantial evidence to prove she had failed to provide for their essential needs. Furthermore, CA opined that even if it was error it was harmless because her rights would have been terminated based on the abuse.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates
M.B. v. D.W. ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007.
TC granted a petition for adoption, which thereby terminated Father’s parental rights. The TC held, pursuant to statutory authority, that termination was appropriate because the child had suffered neglect and emotional harm. TC reasoned that the harm resulted from father’s failure to appropriately prepare the child, mentally, for the effects of his gender reassignment surgery. Due to the harm inflicted on the child it was in her best interest to grant the petition for adoption. Additionally, the TC held that Father had failed to financially support the child because he had not been paying his share of her insurance and medical expenses.
CA held, TC’s decision was supported by substantial evidence. Therefore, the court's decision to terminate parental rights and grant the adoption was not clearly erroneous. CA also opined that Father failed to preserve his argument that less drastic measures should have been taken. Regardless, CA reasoned that TC had made an implied finding that there were no less drastic measures. Finally, CA stated that it was not holding that gender reassignment is itself grounds for termination of parental rights. Instead, the CA stated that it was upholding TC’s decision because all of the statutory elements were meet and supported by substantial evidence.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.
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
Recent Comments