Divorce Law Journal

J.M.R. v. Commonwealth, KY Termination Of Parental Rights

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

Discretionary Review Granted In Reversal Of Termination Of Parental Rights Case

The Court of Appeals case of T.G. v. Com. was digested here and here. The Kentucky Supreme Court has granted discretionary review.

M.B. v. D.W., Termination Of Parental Rights Of Transgendered Parent

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.

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

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

R.V. v. Commonwealth of KY

R.V. v. Commonwealth of KY, ___S.W.3d___, (Ct.App. 2007)

Mother and Father’s parental rights were terminated following a dependency, neglect and abuse action. When the action was initiated in district court, the parents were each appointed counsel. The adjudication and disposition hearings were held together and the court found the child had been neglected. A family case plan was developed and the permanency goal was to return the child to the parents. The parents were ordered to cooperate with the Cabinet and complete all programs and counseling required by the Cabinet. Eventually, the parents’ appointed attorneys were relieved of their duties. Following this, a permanency review was conducted and the goal was changed from return to parent to adoption. At this hearing, the parents were not represented by counsel. Hence, the Cabinet filed a petition for involuntary termination.
Before hearing the termination action, the circuit court appointed separate counsel for the parents. The circuit court then terminated both parents’ parental rights. In its opinion, the circuit court commented that the lack of counsel at the district court hearing changing the goal to adoption was probably a violation of due process. However, the court found this error was not fatal and terminated parental rights. The CA reversed and held it was a violation of due process to change the goal without providing counsel to the parents. The court opined that parents are entitled to “a meaningful opportunity to be heard, including the right to consult with counsel, at goal change and permanency hearings.” Therefore, parental rights may not be terminated unless parents are represented by counsel at every critical stage of the proceeding.
Digest by Linda Dixon Bullock, Diana L. Skaggs + Associates

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

KY: Cabinet May Not Appeal Failure Of Court To Terminate Parental Rights

This case is not yet final.
K.R.L. v. P.A.C., __ S.W.3d __ (Ky. App. 2006), 2006 WL 3459727 (Ky. App.)
At the trial court level, Mother petitioned the court to terminate Father’s parental rights, claiming in the petition that Father had abandoned Son for nearly two years and failed to provide essential care for Son. The trial court denied the petition and Mother brought her appeal, despite KRS 625.110’s provision that only the termination of parental rights can be appealed, thereby precluding the appeal of a denial of parental rights. Mother contested the constitutionality of this statute, claiming Section 115 of the Constitution guarantees her right to an appeal and that a circuit court’s decision declining to terminate parental rights

A.D.B. v. Com.

A.D.B. v. Com., 205 S.W.3d 255 (Ky. App. 2006)

A.D.B., the mother of D.W.G, brought the child to the doctor for a checkup. The exam showed that his head was enlarged and that he had delayed development. The doctor referred the family to another doctor, who conducted a C-Scan. That exam revealed two brain bleeds, one recent and one over a week old. The mother denied knowledge of any injuries, but offered the possibility of the child falling accidentally. The family was then referred to UK Medical Center, where it was determined that the injuries were the result of non-accidental trauma. The matter was then referred to the Cabinet.
The Cabinet removed the child from the home in March of 2004. The mother signed a case plan to work toward being reunited with her son. After a police investigation and a court hearing regarding the abuse allegations in October of 2004, the court adjudicated that P.G., the child’s father who lived with the mother, was more likely than not the person who abused the child.
In April of 2005 the Cabinet filed a petition to involuntarily terminate the mother’s parental rights. In July of 2005, P.G. voluntarily terminated his parental rights to the child. In August of 2005 a hearing was held, and the family court terminated the mother’s parental rights. The mother appealed.

Analysis:
The Court found that the evidence supported the family court’s determination that statutory grounds, under KRS 625.090(2)(e) and (g), existed for termination of the mother’s parental rights. At the hearing, the evidence demonstrated that 1) the mother knew P.G. was the abuser and continued to live with him against the Cabinet’s request, 2) the child suffered an older brain bleed which the mother failed to seek timely treatment for, 3) the mother failed to regularly visit the child while he was in the Cabinet’s custody, and 4) the mother repeatedly failed to provide, or was incapable of providing, essential food, clothing, shelter, medical care, or education necessary for the child’s well-being and no reasonable expectation of improvement in her conduct existed.
The Court also found that the evidence supported the family court’s finding that the termination of parental rights was in the best interests of the child under KRS 625.090(3)(b), (c), (d), (e), and (f). At the hearing, the evidence showed that 1) the mother neglected her other children on three other occasions, 2) the mother did not meet the goals of the Cabinet for reunification, 3) the child had resided with the same foster family since his removal and was doing very well and becoming attached to that family, 4) the mother failed to pay child support for the child, and 5) the mother did not make P.G. move out of her residence until 14 months after the child was removed.
The Court concluded that there was clear and convincing evidence to support the family court’s findings. Accordingly, the Court affirmed the decision below.

Com., Cabinet for Health and Family Services v. C.V. et al.,

Com., Cabinet for Health and Family Services v. C.V. et al., 192 S.W.3d 703 (Ky.App. 2006)

Issue and Holding:
Whether the trial court erred in finding that the Cabinet was required to amend its permanency goal in district court prior to filing a petition for termination of parental rights. The Court held yes, the trial court erred in so requiring. However, the trial court’s order was affirmed, since the Cabinet did not meet its statutory burden of proof to terminate parental rights.

Facts:
The parents engaged in a drug-related lifestyle, and their child was committed to the Cabinet and place with the paternal grandmother. After the child continued to have unexcused absences from school, he was placed in foster care. The Cabinet’s plan was to reunify the child with the parents, however, at the hearing on the plan the district court found that the Cabinet had failed to provide services consistent with the reunification plan. Subsequently, the trial court held a hearing on the Cabinet’s petition to terminate parental rights, and the court denied the petition. The Cabinet appealed.

Analysis:
On appeal, the Cabinet argued that the trial court erred in finding that the Cabinet was required to amend its permanency goal in the district court from reunification to termination of parental rights before it filed a petition to terminate the parental rights. The Court agreed that such action was not required. Under KRS 625.090(3)(c), such a finding from the district court is not necessary.
However, the trial court made no findings that supported termination of parental rights. Therefore, the trial court’s order is affirmed.

Judge Guidugli concurs in result only.
Judge Guidugli argued that the appeal should have been dismissed under KRS 625.110, which states that the denial of an involuntary termination of parental rights cannot be appealed.

Com., Cabinet for Health and Family Services v. A.A.W.K., et al.

Com., Cabinet for Health and Family Services v. A.A.W.K., et al., 199 S.W.3d 199 (Ky.App. 2006)

Issue and Holding:
Whether the Cabinet can appeal an order denying a petition to involuntarily terminate parental rights. The Court held no, KRS 625.110 does not allow such appeals.

Facts:
The Cabinet appealed from a family court order denying its petition to involuntarily terminate the parental rights of A.A.W.K. and J.J.K. By motion of the Court of Appeals, the appeal was dismissed.

Analysis:
KRS 625.110 provides that no party may appeal a court’s decision to deny a petition for involuntary termination of parental rights. Therefore, the Court denied the appeal for lack of jurisdiction.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G.

Cabinet for Health and Family Services, et al v. A.G.G. and W.E.G., 190 S.W.3d 338 (Ky. 2006)
Issues and Holdings:
1. Whether the evidence was sufficient to terminate parental rights. The Court held yes, the evidence was sufficient.
2. Whether out-of-court statements made by a child to a therapist and pediatrician describing sexual abuse were admissible under the hearsay exception for statements made for purposes of medical treatment or diagnosis. The Court held yes, that the statements were admissible under the hearsay exception.
3. Whether the Sixth Amendment right of confrontation, as outlined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied to termination of parental rights proceedings. The Court held no, the right of confrontation is not applicable in such proceedings because termination of parental rights proceedings are civil and not criminal.

Facts:
A.G.G. and W.E.G., both mentally disabled, are the parents of two children, N.E.G. and A.E.G. The family lived at two residences, their own home and the home of the children’s paternal grandparents. The Cabinet found both residences to be unsafe and in poor condition and the children to have poor hygiene, missed school, and delayed learning. The parents ignored appointments with social workers. The Cabinet also learned that two paternal uncles, who lived primarily at the paternal grandparents’ residence, were possible sexual offenders. There was evidence that at least one of the uncles sexually abused N.E.G. at the paternal grandparents’ residence.
The Cabinet made numerous recommendations, which were adopted by the family court as a disposition order. The recommendations included regular school attendance, improved home sanitation and hygiene, and that the children have no contact with certain paternal relatives. The parents failed to comply and the children were removed to foster care. The foster mother later observed N.E.G. sexually acting out with A.E.G. and other children. After repeated failure of the parents to respond to family services, the Cabinet filed a petition to involuntarily terminate parental rights.
The family court terminated the parental rights of both parents after a two day trial. The Court of Appeals reversed and remanded for a new trial, holding that the family court admitted improper hearsay evidence in violation of the holding in Crawford v. Washington. The Supreme Court granted discretionary review.

Analysis:
First, the Court held that the evidence was sufficient to terminate parental rights. The Court found that the family court’s findings of fact were not clearly erroneous and were supported by clear and convincing evidence. The Court found that there was ample evidence that N.E.G. was sexually abused and that the parents created a risk that an act of sexual abuse would be committed on A.E.G.
Second, the Court held that the statements made by N.E.G. to his therapist and pediatrician were admissible at trial under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though the therapist was not a physician. N.E.G. made statements to the therapist regarding sexual abuse by his two uncles and father. Such statements were admissible, even though the therapist was not a physician, since the therapist testified that she intended to provide any needed therapy for the child’s mental health. N.E.G. made statements to the pediatrician regarding sexual abuse by one of his uncles. Such statements were admissible since the physician was diagnosing and treating the child for suspected abuse.
Finally, the Court rejected the Court of Appeals’ reliance on Crawford to exclude the above statements. The Court found that Crawford was not intended to apply where the Sixth Amendment does not apply, such as in civil proceedings. Since termination of parental rights proceedings are civil, not criminal, Crawford does not apply. The Court also rejected the Court of Appeals’ reliance on G.E.Y. v. Cabinet for Human Resources, 701 S.W.2d 713 (Ky.App. 1985), for the proposition that hearsay exceptions do not apply in termination of parental rights proceedings. The Court noted that it had narrowed the holding of G.E.Y to permit the introduction of portions of the Cabinet’s investigative file that would be admissible if the social worker testified in person. Thus, G.E.Y. did not preclude the introduction of the statements of N.E.G. to the therapist and pediatrician.
The Court reversed the Court of Appeals and reinstated the judgment of the family court.

V.S. v. Com., Cabinet for Health and Family Services, 194 S.W.3d 331 (Ky.App., 2006)

Issue and Holding:
Whether the Cabinet for Health and Family Services failed to offer sufficient evidence to support a finding of medical and educational neglect. The Court found that the Cabinet failed to present sufficient evidence.

Facts:
The Cabinet filed a petition to involuntarily terminate V.S.’s parental rights to three children. V.S. did not contest the allegations in the trial court and did not appear for court proceedings. In May 2005 the family court conducted a hearing on the termination petition. At the hearing, one witness, a social worker, was called. The social worker testified that the Cabinet took custody of the children due to medical and educational neglect. The medical neglect allegations centered on the claims that 1) one child was allowed to place a catheter in another child, who had spina bifida, and 2) that the special needs child had missed doctor’s appointments. The educational neglect allegations centered on 1) V.S. stating that she could not get up early enough to take the children to school, 2) one child was reading far below the expected ability for his age, and 3) the social worker’s statement that V.S. could not provide a suitable home.
The family court found that the children were abused and neglected and terminated the mother’s rights. V.S. appealed.

Analysis:
On appeal, the Court interpreted V.S.’s brief as arguing that the Cabinet did not provide sufficient evidence to support the family court’s decision to terminate her rights. The Court applied the clearly erroneous standard on review.
The Court found that there was no concrete evidentiary support for the Cabinet’s allegations. The Court found that the social worker’s testimony at the hearing was nothing more than conclusory responses to leading questions. No evidence was presented as to specific harm that resulted from the allegations of neglect. As such, the Court vacated the termination orders of the family court and remanded the case for further proceedings.

Rights of Unmarried Father To Child Placed For Adoption

Janet Janghahr's Florida Divorce Law Blog: reports: "An adoption agency notified a biological father that his baby was going to be adopted.
That was how the biological father allegedly first learned of the child’s existence.
By that time, the baby was two months old and had been living since he was three days old with the family that planned to adopt him.
Upon learning of the boy, the father sought custody of his son.
But the New Mexico trial court terminated his parental rights on the grounds that he had abandoned the baby and his mother, freeing the baby up to be adopted.
On appeal, the ruling was reversed and the father’s parental rights restored.
The case was remanded for a custody determination, but appeals are on the way."
Kentucky needs an overhaul of its legislation in this area. A potential father's registry would be a start.
Here's a related article from the New Mexican.
Yet, Jeanne Hannah of Updates in Michigan Family Law posted good analysis of the issue yesterday,Why We Need a Federal Putative Father Registry, persuasively arguing that even state registries are not adequate and that a federal law is needed.

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.