Divorce Law Journal

Published Dependency Opinion from Ky Court of Appeals

E.Y. V. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL.

Mother appealed trial court’s dependency adjudication arguing that as dependency was not alleged in the Petition, the trial court did not have the authority to make a finding of dependency. The mother did not raise the issue at the trial court level, so the Court of Appeals reviews under the palpable error standard, holding that a Judge has the authority to find dependency in a neglect hearing as long as the statutory requirements for dependency are met. The Court of Appeals views dependency as “a lesser-included offense of neglect.”

Mother also argues that testimony about the Petition was hearsay evidence and should not have been admitted. Social workers without personal knowledge of the events in the Petition testified as to the facts within the Petition. The Court of Appeals holds the social workers’ testimony is an exception to the hearsay rule as all of their testimony was either based on first-hand observations or information in the Cabinet’s records, which falls under the public record exception to hearsay. KRE 803(8).

Mother makes a number of additional arguments including that it was an error for the trial court to consider the neglect case of her other minor child, the court’s findings were insufficient to support removal and less restrictive alternatives than removal were available. The Court of Appeals, finding no errors, affirms the trial court’s order.

Digested by Elizabeth M. Howell.

 

Criminal Contempt for Violation of Statute and FCRPP and Standard of Review: Ky Supreme Court Published Opinion

CABINET FOR HEALTH AND FAMILY SERVICES V. J.M.G., ET AL.

In the midst of a lengthy dependency, neglect, and abuse, case the family court held CHFS in contempt for failure to file the required case progress report per KRS 620.240 and failure to immediately obtain a pretrial conference date per FCRPP 34(1).

The Supreme Court begins its opinion with a lengthy explanation clarifying difference between civil and criminal contempt. Civil contempt is generally a sanction sought by the adverse party and subject to purgation through compliance. On the other hand, criminal contempt is imposed primarily to vindicate the authority of the court. Typically, a criminal contempt sanction is only appropriate if there is proof that a lawful and reasonably specific order was willfully violated.

The Supreme Court goes on to clarify that there could be a situation in which absent a specific duty set forth in a court order, a rule or statute creates a duty enforceable by contempt holding, “Where a rule or a procedural statute creates a duty clearly applicable to the instant proceeding and the obliged party violates the duty under circumstances that could reasonably be thought to show beyond a reasonable doubt that the violation was willful or openly disrespectful, then criminal contempt may well be an appropriate sanction.”

In Kentucky, show cause orders are typically used to initiate both criminal and civil contempt proceedings. The Supreme Court addresses the due process requirements a court must consider when exercising its power of criminal contempt. The court has nearly unlimited discretion in using contempt to assure court proceedings are orderly and proper. When a petty contemptuous action is committed in the court’s presence, notice and the opportunity to be hard are enough to satisfy due process concerns. Alternatively, if an alleged contemptuous action occurs outside of court, or is ambiguous, the show cause hearing should be conducted with the “safeguards constitutionally guaranteed for ordinary criminal trials.”

The Supreme Court also addresses the standard of review Appellate Courts should use for contempt. The standard of review used by the Court of Appeals in this case, granting the trial court nearly unlimited discretion, was not appropriate. When a court imposes substantial criminal penalties, the ordinary criminal judgment standard of review should be used by Appellate Courts.

Ultimately, the Supreme Court holds that the trial court’s order did not clearly apply the beyond a reasonable doubt standard, there was not sufficient evidence of willful violation of FCRPP 34(1), and there was insufficient evidence of a willful violation of KRS 620.240. Therefore, the Supreme Court remands the matter to the trial court for additional proceedings.

Family law and civil practitioners should note that in its dicta the Supreme Court urges the bench and bar to “become more mindful of criminal contempt’s constitutional ramifications.”

Digested by Elizabeth M. Howell.

 

Supervised Visitation Order reversed by Ky Court of Appeals in Published October 2, 2015 Opinion

RYAN V. RYAN

Mother filed a motion to suspend father’s summer visitation time after daughter reported smelling marijuana in the home. Father submitted to a urine test which was negative for all substances, and a hair follicle test which tested positive for marijuana. There was no mechanism for determining the date of marijuana use. At a hearing in front of a domestic relations commissioner, father testified he did not smoke marijuana and rarely drank alcohol. The commissioner recommended Father’s timesharing be reinstated, but the trial court entered an order requiring father’s visitation to be supervised until he had six months of clean drug tests.

Father argues that trial court unreasonably restricted his visitation rights in violation of KRS 403.320(3). The Court of Appeals agrees reversing the judgment of the trial court. In order to modify visitation, the trial court must find that visitation would seriously endanger the child. After considering the evidence, the Court of Appeals finds that there was not sufficient evidence to establish daughter was seriously endangered by Father’s visitation where Father denied smoking or possessing marijuana, immediately submitted to a drug test which came back negative, daughter never saw Father smoking, and daughter did not see drug paraphernalia in the home.

Digested by Elizabeth M. Howell

Published Famiily Law Opinion from Ky Court of Appeals September 11, 2015: Child Custody

 S. E.A. v.  R. J.G.

Child was temporarily removed from Mother’s custody in a DNA action. Father filed separate custody action in which mother stipulated to dependency for the purposes of temporary custody. At a subsequent DNA hearing, the family court determined the child should remain in father’s temporary custody with timesharing to be determined in the custody action. The court-appointed G.A.L. issued a report after the DNA hearing. Then, the family court issued an order giving father sole custody and ordering temporarily removal from mother. The family court stated all further orders would be entered in the custody action.

The parties while preparing for a custody hearing in Kentucky, opened a case in Connecticut. The Kentucky court cancelled the custody hearing upon being advised of the Connecticut action. Subsequently, father filed a motion for permanent custody in both Kentucky actions. The family court granted father permanent custody with a hearing. Upon mother’s motion to vacate, the court ordered  the G.A.L. to submit another report. After the report was filed, the family court entered findings of fact and conclusions of law granting father permanent sole custody relying, almost exclusively, on the G.A.L.’s reports.

The Court of Appeals vacated the family court’s order and remanded the action, holding a full evidentiary hearing was necessary and mother should have been given an opportunity to cross-examine the G.A.L. A hearing in a DNA action, predating a psychiatric evaluation and and G.A.L. reports, cannot serve as a basis for a later order regarding permanent custody.

Digested by Elizabeth M. Howell

One Published Family Law Opinion from Ky Court of Appeals Today

B.L. v. J.S., et al  Lack of counsel in underlying neglect case is not considered a  lack of counsel at all critical states of adoption where the biological parent  was not the target of the neglect case and where biological father did not object to adoptive parents being granted full custody of child. Biological father is not a parent exercising custodial control or supervision where he was incarcerated and uninvolved with child for most of child’s life. Court was not required in adoption proceeding to consider less drastic means than adoption. Finally, relatives related only by marriage are nonetheless relatives where statute does not require they be blood relatives and thus there was no error in permitting great-aunt and great-uncle related by marriage to adopt without placement for adoption by the Cabinet.

One Published Family Law Opinion from Ky Court of Appeals Today

B.D. v. Cabinet for Health and Family Services, et al.  Where children are removed from parent under a temporary removal order and then parent files a petition in family court for “immediate entitlement” under KRS 620.110, family court erred in dismissing the case without a hearing. The family court had held  that statute is intended for appellate review and because the family court made the removal order, an appeal should be made to the court of appeals. The Court of Appeals held that the  removal order was a temporary order and thus is interlocutory and not ripe for appeal. Moreover KRS 620.110 does not refer to an appeal. It is an original action which should be heard in family court.

Three Published Family Law Opinions from Ky Supreme Court Yesterday

Bell v. Bell  Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result.

 

Cabinet for Health and Family Services v. K.H., Sr.   Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore reversed and the family court’s order terminating parental rights was affirmed.

 

Coffey, et al v. Wethington  A person acting as a parent has standing to bring a custody action. If the person acting as a parent has physical custody of the child at the time the action is commenced, standing exists and it need not have been for six consecutive months. The six month requirement applies only to persons who had physical custody in the past but who do not have physical custody at the commencement of the action.

Three Published Family Law Opinions from Ky Court of Appeals Today

Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs.

 

D.L.B. v. Cabinet for Health and Family Services, et al  Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion.

 

Murry v. Murry  Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and presents more problems than it resolves falls short of the requirement that necessary facts be found specifically so case was remanded to trial court to make further factual findings.

Published Family Law Opinions from Ky Court of Appeals today

 

 

Fortwengler v. Fortwengler  

A prior appeal affirmed the 50/50 division of debt to husband’s father. Husband sought to garnish wife’s maintenance to satisfy her half of the debt. Trial court’s denial of this request and trial court’s subsequent denial of husband’s father’s motion to intervene for a judgment and payment schedule was affirmed on appeal. Proper procedure is for husband’s father to attempt to collect the debt in a separate action against wife.

C.J.M. v. Cabinet for Health and Family Services 

Termination of parental rights affirmed.

Termination of Parental Rights, Case Digest, KY Court of Appeals, C.A.W. and T.L.M. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; B.L.M., an Infant, and S.M.M., an Infant

C.A.W. and T.L.M. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; B.L.M., an Infant, and S.M.M., an Infant, NO. 2012-CA-000875-ME

Published: Affirming

County: Jefferson

FACTS:

On September 7, 2011, the Cabinet for Health and Family Services filed a petition for the involuntary termination of parental rights against Mother and Father. The Cabinet had filed two dependency petitions regarding the children, alleging that they were abused or neglected under KRS 600.020(1). The September 23, 2009, petition alleged that the children had been left unsupervised without adequate food and that the parents acknowledged that their substance abuse issues interfered with their ability to care for the children. In a second dependency petition filed in February 2010, the Cabinet alleged physical abuse against one of the children during a supervised parental visit, lack of supervision of the children, and the parents’ substance abuse issues. After a temporary removal hearing, the children were placed in the custody of the Cabinet.  

Throughout the dependency cases, the parents were ordered to participate in supervised visitation, remain clean and sober, comply with court orders, complete a psychological assessment, complete a substance abuse assessment, and complete parenting classes. These orders were incorporated into a case plan signed by the parents. The psychological assessments showed that Mother’s intellectual functioning was in the borderline range and that she could not care for young children without significant outside assistance. Mother also acknowledged anxiety, depression and a nerve disorder. Father’s psychological testing revealed cognitive function in the extremely low range and recommended parenting education courses.

Mother and Father did not fully comply with the recommendations in the assessments. Mother tested positive for alcohol, and Father tested positive for cocaine during random alcohol and drug screenings. Neither parent provided proof of completion of the ordered parenting classes or attendance at Alcoholics Anonymous meetings.

The Family Court found that the children would continue to be abused or neglected if returned to parental custody and that termination of parental rights was in their best interest. The parents’ mental and substance abuse issues made it clear that they would not be able to provide even minimally acceptable care to the children. The court also found that the children had been stable since their placement in foster care. The parents appealed.

ANALYSIS:

In order to terminate a parent’s rights, Kentucky courts must find by clear and convincing evidence that the child has been abused or neglected, that termination is in the child’s best interests and that at least one of the grounds listed in KRS 625.090(2) exists.  The trial court has a great deal of discretion in the involuntary termination of parental rights. The parents argued that the Family Court erred in terminating their rights because the Cabinet did not meet its burden.

Since the parents stipulated to the abuse and neglect of their children alleged in the two dependency petitions, there was ample evidence to support the Family Court’s finding that the children were abused and/or neglected. The termination was in the best interest of the children because the court considered how the parents’ mental and cognitive disabilities affected their parenting.  The Cabinet also made all reasonable efforts to reunite the children with their parents before filing the termination petition. The parents’ continued disregard for court orders and progress of their children while in the Cabinet’s custody demonstrates that the Cabinet could not have helped the family reunite. At the time of the termination hearing, the children had been in the Cabinet’s custody for twenty-four months. The parents had failed to provide essential food, shelter, clothing and medical care to the children during that time, thus the children had been abandoned for more than ninety days as required under Kentucky law. Furthermore, the children had formed a strong bond with the foster parents and no longer required counseling.

The Family Court found that a litany of grounds justified the termination of parental rights, and that finding was not clearly erroneous.

Affirmed.

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

Termination of Parental Rights, Case Digest, C.J.M. v. Com, Ky Court of Appeals

C.J.M. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000590-ME

and

C.F.A. v. Cabinet for Health and Family Services, Commonwealth

of Kentucky, in the interest of C.K.A., an infant

No. 2012-CA-000591-ME

Published: Opinion Affirming

County: Garrard

C.J.M. (“the mother”) and C.F.A. (“the father”) appeal in separate cases from the order and judgment of Garrard Circuit Court terminating their parental rights.

C.K.A. (“the child”) was born on May 10, 2010 to the parties who lived together but were not married. On June 1, 2011, the Cabinet for Health and Family Services of the Commonwealth of Kentucky (the Cabinet) filed a petition for involuntary termination of the parental rights of both the mother and the father.  Shortly after the child’s birth, she tested positive for marijuana.  During a home visit at the parent’s residence on May 19, 2010, the worker and a colleague observed a large amount of beer cans and beer cases under the porch, and determined that the child did not have a crib or bassinet.

The mother admitted using marijuana during and prior to pregnancy and disclosed that she had two other children from a different relationship who were placed with their father in Ohio that she had not seen in a long time.  The father objected to taking a drug test, admitted marijuana use and stated he was not going to stop.  The Cabinet workers were concerned about their own safety because of the father’s erratic behavior.  The child, pursuant to an emergency custody order, entered foster care. The father’s aunt was given temporary custody, but when difficulties arose, the child was placed with a foster family with whom she still resided at the time of the trial.

At an adjudication hearing in August, 2010, the court found that the father neglected the child and the mother had stipulated to neglect.  The family court entered a disposition order and adopted the Cabinet’s case plan.  Both parents and the child were appointed counsel, but the parents fired their appointed counsel during the dependency proceedings.  Counsel was reappointed for the termination action.  Both parents also filed civil rights action in Garrard Family Court and United States District Court, all of which were dismissed.  During the dependency action, the Cabinet prepared several case plans requiring certain actions by the parents and payment of child support from each of them.

Subsequently, the father become increasingly hostile and resisted working the Cabinet’s case plan while the federal case was pending.  In September, 2010, the father requested waiver of further court appearances and waiver of reasonable efforts to reunite him with the child.  In October, 2010 the mother went to a domestic violence shelter and stayed about one month.  In February, 2011, the father was arrested and charged with terroristic threatening against a Cabinet worker and her supervisor.  He pled guilty and was ordered to have no contact with the worker or her supervisor.

On April 1, 2011, the family court held the annual permanency planning required by the statute and, after consideration of the parents’ progress, changed the goal for the child from reunification to adoption.  On June 1, 2011, the Cabinet filed a petition for involuntary termination of parental rights and the trial was conducted February 7, 2012.  At trial, the Cabinet testified that the child was doing well, had been in foster care approximately two years, and the foster family wanted to adopt her if given the opportunity.  The mother testified that the Cabinet failed to use reasonable efforts to reunite the child with her.  She described her various difficulties with transportation, finances, and communication, and discussed her failure to complete tasks related to her own case plan.  The father testified that termination of his parental rights was not warranted because the Cabinet did not use reasonable efforts to reunite him with the child.

On February 27, 2012, the Garrard Circuit Court entered Findings of Fact, Conclusions of Law, and an Order Terminating Parental Rights and Judgment.  The Order explained that both parents had abandoned the child for a period of at least 90 days, had failed to make adequate efforts in the child’s best interests so she could be returned to their custody, had failed to protect the child’s right to a safe, nurturing home, and finally it was in the child’s best interest to terminate the mother's and father’s parental rights.  Pursuant to KRS 600.020(1), the child was abused and neglected.  The family court thus determined that under KRS 625.090, it had been established by clear and convincing evidence that the parents were not providing a safe, nurturing home, and there was no reasonable expectation of significant improvement in the immediately foreseeable future.  Both parents appealed from these orders and are separately represented.

Both parents argue that the Cabinet failed to make reasonable efforts to reunite the child with them and that they were without effective assistance of counsel during critical phases of the juvenile case.  The Cabinet’s position is that clear and convincing evidence supported the termination and the parents waived representation during the dependency proceedings.

KRS 625.090 provides the statutory direction for a circuit court to involuntarily terminate parental rights.  There must exist at least one of the ten factors enumerated in the statute.  Further, the Cabinet must make reasonable efforts to reunite the child with the parents.  The Court of Appeals found sufficient evidence to remove the child from the home to ensure her safety.  The child tested positive for cocaine at birth and both parents admit they used marijuana before and during the pregnancy.  Neither parent had seen the child for more than one year, they were not working on the case plan, and both had child support arrearages.

With respect to the Cabinet’s obligation to make reasonable efforts toward reunification of the family, the Court of Appeals found that the mother was offered many services associated with her case plan, but did not avail herself of them.  Likewise, the father ignored efforts to work toward reunification and chose not to see the child.  On the issue of failure to provide effective assistance of counsel, the Court of Appeals noted that the parties dismissed their respective counsel during a portion of the dependency action. The Court of Appeals found that neither party had proven that their decision to be unrepresented occurred at a critical stage.

The Garrard Circuit Court’s order terminating the parental rights of the mother and the father is affirmed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Waiver of Superior Right to Child Custody, Johnson v. Overbee digest, Ky Court of Appeals

Johnson v. Overbee, 2011-CA-002097-ME

Published:   Affirming   

County:  Lee

Biological parents appealed FC’s ruling denying their petition for custody of Child.      

FACTS:

Child of Biological Mother and Father tested positive at birth for multiple illicit drugs, and Cabinet filed and was granted a petition for emergency custody.  After one and a half month removal, Biological Parents regained custody of Child.  Four months later, Biological Mother shot Child in abdomen while attempting to shoot Biological father—Biological Father had held Child in front of his body as a shield and Biological Mother shot anyway.  Cabinet was again granted emergency custody, but this time placed Child with Biological Mother’s Cousin and her husband.  FC ultimately conducted adjudication hearing and granted permanent custody of Child to Cousin and her husband.  Biological Parents were present at the hearing and represented by counsel, and made no objection to the award of custody, nor did they appeal that award.  Almost two years later, Biological Parents filed a petition for custody of Child.  FC issued an Order on that petition almost four years later, in which it determined that Biological Parents had waived their superior right to custody of Child, and that it was in Child’s best interests to remain in custody of Cousin and Husband.  Biological parents filed this appeal.      

ANALYSIS:

CA noted that while biological parents have a superior right to custody of their children, a third party may acquire standing to obtain custody of a child if the biological parent is unfit or if the biological parent waived his or her superior right to custody.  For the waiver to be effective, the biological parent must have intended to voluntarily and indefinitely relinquish custody of the child.  CA found that Biological Parents did just that at the adjudication hearing, and their failure to file an appeal further evidenced that intent, demonstrating by clear and convincing evidence that Biological Parents waived their superior right to custody of Child.  CA noted that there also appeared to be substantial evidence of Biological Parents’ unfitness, but such a finding was rendered moot by the finding regarding waiver.

Affirmed.

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

N.L. v. W.F., Modification of Custody in a Dependency, Neglect and Abuse proceeding; Prematurity of Appeals and Finality of Orders

N.L. v. W.F., 2010-CA-001787-ME and 2011-CA-000091-ME

Published:   Reversing and Remanding

County:  Greenup

Mother appealed FC order awarding custody of children to children’s fathers.

FACTS:

Mother had two children from two separate fathers.  After altercation with her boyfriend, Cabinet filed petition dependency, neglect and abuse (DNA) petitions for both children.  Children were placed with Father 1’s parents after temporary removal hearing.  At disposition hearing, Child 1 was placed with his father and Child 2 was placed with Father 1’s parents but Father 2 was allowed to take Child 2 with him to his home in Florida.  FC then scheduled a permanent custody hearing.  At permanent custody hearing, Mother asserted that permanent custody hearing could not be held as neither Father had filed a Motion for Permanent Custody.  FC disagreed and proceeded with the hearing, and evidence at the hearing reflected that Mother had history of alcohol and substance abuse but was making progress on Cabinet’s case plan.  Cabinet offered evidence regarding the Fathers’ criminal history and home environment.  At the hearing, each Father orally requested that he be awarded custody of his Child.  FC made oral finding, based upon preponderance of the evidence, that it was in Children’s best interests to be in custody of their Fathers with supervised visitation to Mother, citing Mother’s lifestyle involving drugs and alcohol, though recognizing she was currently doing well.  FC completed AOC-DNA-9 form for each child, reducing oral order to written form.  In Findings of Fact section, FC checked that it had considered several KRS 403.270 factors, but provided no additional specific findings in the provided space on the form.  Mother filed a timely CR 59.05 motion to alter, amend or vacate, asserting that FC could not modify custody on its own motion; that Cabinet was under duty to make reasonable efforts to return children; that FC ignored protective needs of Children given Fathers’ admitted criminal or substance abuse histories; and that FC failed to make written findings in support of custody determination.  FC issued order denying Mother’s motion but stated in the Order that it would issue subsequent written order with more detailed findings.  This order included no finality language.  Mother filed notice of appeal from the Order denying her motion to alter, amend or vacate.  FC subsequently issued its Order including detailed findings of fact, including another denial of Mother’s motion to alter, amend or vacate.  The findings included general statements regarding children’s relationships with their fathers and Father 2’s parents, existence of mother’s drug and alcohol problems, and recognition that Cabinet thought Fathers were appropriate and Guardian Ad Litem recommended placement with Fathers. 

ANALYSIS:

Issue 1:  Did Mother properly appeal from FC’s initial denial of motion to alter, amend or vacate?

            CA noted that, for an Order to be final and appealable, Rules require that an order must either adjudicate all rights of all parties in a proceeding or lower court must issue finding that there is no just reason for delay as to an order resolving only a portion of all the rights of all the parties in a proceeding, and that portion of all of the rights of all of the parties must be finally resolved.  As the initial order did not include this language of finality, then it must have adjudicated all the rights of all the parties in order to be final and appealable.  CA found that the Order was inherently interlocutory because of its stated intention to make more detailed findings of fact.  However, Mother’s notices of appeals should not be dismissed, but should relate forward to FC’s order containing more detailed findings, per CR 73.02.

Issue 2:  Did FC err by conducting a permanent custody hearing, as neither Father filed a motion requesting a change of custody?

            CA held that KRS Chapter 620 procedural structure does not preclude a permanent custody hearing and award of custody, so long as the proper procedures are followed, but such a determination is not required under this statute. 

Issue 3:  Did FC err by granting custody to Fathers?

            Mother’s Orders of custody were not in record, so CA could not address the possible procedural deficit in Fathers’ failures to file motion for modification of custody, as CA had no knowledge of validity or content of orders and whether FC had jurisdiction to modify them.  However, CA could rule as to propriety of FC’s ultimate decision to award custody.  Custody determination in KRS Chapter 620 proceeding must follow standards in KRS 403.270.  CA found that FC failed to sufficiently consider and make findings related to KRS 403.270 factors, as FC made no separate finding, apart from pre-printed portion of AOC form, that custody awards were in children’s best interests, nor did ruling take Mother’s progress case plan or Fathers’ past legal issues. 

Reversed and remanded to FC. 

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

D.G.R. v. Com, Ky S. Ct, Termination of Parental Rights

D.G.R. v. Com., 2010-SC-000100-DGE

Published:   Reversing

County: Caldwell

Parents appealed CA order remanding to the trial court for an order terminating the mother and father’s parental rights.

FACTS:

A.T.H was twelve at the time of the termination hearing.  He had been diagnosed with autistic disorder, attention deficit hyperactivity disorder, and possible bipolar disorder.  D.G.R. and T.B.H. are the child’s parents, who never married but lived together. Three abuse petitions were filed by the Cabinet over a four year period.  The Cabinet then filed a petition to terminate the mother and father’s parental rights.  TC found by clear and convincing evidence that the child had been abused and neglected and that the child had been in foster care for a total of forty-three months.  However, TC denied the Cabinet’s petition on the basis that termination was not in the child’s best interests.  Cabinet appealed.  CA reversed and remanded to TC for an order terminating the mother and father’s parental rights, holding that all of the factors in KRS 625.090(3) weighed in favor of termination being in the child’s best interests.  CA found that there was overwhelming evidence that the parents, on more than one occasion, either abused the child or allowed the child to be abused, the parents were guilty of neglect regarding a sexual disease the child presumable caught from the father, the parents used corporal punishment on the child, the child was not appropriately stimulated, the house was unsanitary, the parents lacked empathy toward the child, and the parents were unable and unwilling to provide basic needs for the child, much less provide for his special needs.

ANALYSIS:

SC noted that the evidence presented offered two starkly different pictures of the child’s care from parents in the home.  In addition to the evidence noted by CA, the Cabinet also offered evidence of the Child’s marked improvement in behavior while at Our Lady of Peace and the testimony of witnesses regarding the parents’ inability to meet the Child’s needs, failure to accept responsibility for his problems, and refusal to change their parenting behaviors.  The parents’ witnesses, on the other hand, testified that the parents had a good relationship with the child, that mother worked to improve her parenting skills, and that the parents provided a clean and neat home for the child. 

SC noted that the termination statute, KRS 625.090, establishes different standards of proof for the Cabinet and the parents whose rights are to be terminated when the court considers the best interest of a child. While the Cabinet must prove the necessary statutory allegations by clear and convincing evidence in order for TC to terminate parental rights, KRS 625.090(1) and (2) (requiring a finding that termination is in best interests of child), the parents must only present proof by a preponderance of the evidence that the child will not be abused or neglected in the future in order to allow TC to exercise its discretion not to terminate, KRS 625.090(5).

As part of determining the best interest of the child and whether sufficient grounds for termination existed, TC was further required to consider several other statutory factors in KRS 625.090(3), including any mental illness of the parents, the reasonable efforts of the Cabinet to reunify the family, the efforts of the parents to return the child to the home, the state of the child and payment of support by the parents while the child was in the Cabinet's custody. SC held that these are factors to be considered but are not a checklist; they do not dictate a result, as TC must make an overall finding of the best interests of the child. 

SC held that TC was entitled to rely on the witnesses it found most convincing, and TC’s findings indicated that it gave significant weight to the parents' witnesses. And even if TC found clear and convincing grounds to terminate, TC could still shift from considering that proof and consider whether the parents had established, by a preponderance of the evidence, that the child would not continue to be abused or neglected, and exercise its discretion not to terminate. KRS 625.090(5). TC is never required to terminate under the statute.

SC could not say that TC was clearly erroneous in choosing to believe the witnesses offered by the parents, nor that their testimony was insufficient to support TC's determination.  Additionally, there was not enough evidence to terminate mother’s parental rights. Termination must be decided as to each parent separately.

CA reversed and TC’s judgment denying Petition to terminate parental rights of parents reinstated. 

DISSENT:

“As is appropriate, this Court considers termination of parental rights a serious matter, and we accepted discretionary review to insure that termination of the parents' rights followed due process. Nevertheless, after careful review of the record below, it is clear that the trial court failed to apply the law correctly - a mistake the majority repeats. These errors of law leave a defenseless, disabled young boy vulnerable to the parents who have abused and neglected him, and prevent the Cabinet from attempting to find this child a permanent, loving and stable therapeutic adoptive home. … The majority excuses all of the above grievous errors by relying on KRS 625.090(5). Although this provision gives the trial court discretion to refrain from terminating parental rights where the parents prove, by a preponderance of the evidence, that the child will not continue to be abused or neglected in the future, this analysis is not a substitute for the best-interest finding that the trial court is REQUIRED to make under KRS 625.090(3).

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

K.H. v. Cabinet for Health & Family Services, et al, Ky COA, Evidence Necessary to Support Finding of Neglect

K.H. v. Cabinet for Health & Family Services, Commonwealth of

Kentucky, in the Interest of K.H., NO. 2011-CA-000896-ME

and

K.H. v. Cabinet for Health & Family Services, Commonwealth of

Kentucky, in the Interest of A.B.H., No. 2011-CA-000897-ME

Published:  Opinion Reversing

County: Morgan

K.H. and A.H. are the parents of two children, ABH and KSH.  K.H.’s twelve-year old cousin, AKY, alleged that A.H. had touched her inappropriately and made inappropriate comments of a sexual nature while she was staying at K.H. and A.H.’s house.  The Cabinet and Kentucky State Police concluded, after an investigation, that the allegation was substantiated.

While the investigation was pending, K.H. signed a Prevention Plan recommended by the Cabinet which provided that she would not leave the children alone with A.H.  After the investigation was complete, however, she refused to sign an Aftercare Plan, which further restricted A.H.’s interactions with his children.

The Cabinet filed petitions alleging that K.H. and A.H. had neglected the children and that K.H.’s refusal to sign the Aftercare Plan exposed the children to a risk of sexual abuse from A.H. and amounted to neglect.  The trial court held an evidentiary hearing and concluded that the children were neglected based on the allegations in the Cabinet’s petition.  The court directed that the children remain in the home, but A.H. could not live in the home or have unsupervised contact with his children and K.H. filed this appeal.

The sole issue on appeal is whether the Cabinet presented sufficient evidence to establish that K.H. has neglected ABH and KSH.  The Cabinet does not allege that the children have been subjected to direct acts of abuse or neglect, but rather K.H.’s refusal to sign the Aftercare Plan amounts to neglect by exposing them to risk of sexual abuse from A.H.

The Court of Appeals noted that while it did not doubt the Cabinet’s good faith and desire to protect the children, it was concerned about the breadth of authority the Cabinet asserts.  There is no allegation that A.H. ever sexually abused his children, and K.H. had no legal obligation to sign the Aftercare Plan.  State intervention between parent and child must be done with utmost caution.

It is insufficient for the Cabinet to show that K.H. would be well-advised to agree to the Aftercare Plan.  The statutory definition requires a finding that K.H. created or allowed to be created a risk of sexual abuse to her children. A “substantiated” allegation is simply an administrative determination and is not binding upon the court and has no preclusive effect in subsequent proceedings.  The risk of harm must be more than a mere theoretical possibility, but rather an actual and reasonable potential for harm.

There is no allegation K.H. has done anything improper in the care of her children.  The Cabinet concedes she is a good and fit mother and the children are well cared for and have never been abused.  At worst, she chose to believe in the innocence of her husband. The trial court’s finding of neglect was clearly erroneous as it applied to K.H., and the orders of the Morgan Family Court finding ABH and KSH to be neglected are reversed insofar as they apply to K.H.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

M.C. v. Commonwealth of Kentucky, Ky COA, Educational Neglect

M.C. v. Commonwealth of Kentucky

2010-CA-002088-ME

Published:  Affirming

County: Clark

Cabinet filed dependency, neglect and abuse petition against Mom alleging Mom had educationally neglected Child as Child had been tardy 16 times and absent 30 times in one school year, though Child had all B’s and C’s for that school year.  Mom provided care for her elderly parents and said care interfered with her ability to get Child to school, but Mom testified that she helped Child with homework.  Although TC did not find Child suffered actual harm from Mom’s actions, TC nonetheless found Mom had neglected Child’s education and ordered that Mom would pay $21.80 per day for each future unexcused absence.  Mom appealed the finding of educational neglect, arguing that as there was no actual harm to Child, Commonwealth failed to meet its burden of proof.  Commonwealth argued that there must only be a risk of harm to satisfy the statute.  CA agreed, finding that Mom’s repeated inability to ensure Child attended school each day presented a threat of harm to Child’s welfare by denying Child the right to educational instruction.

FC affirmed.

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

D.J.D. v. Cabinet for Health & Family Services and M.G.P., an infant child, Ky COA, Termination of Parental Rights

D.J.D. v. Cabinet for Health & Family Services

  and M.G.P., an infant child

2010-CA-001184-ME

Published: Affirming

County: Jefferson

D.J.D., the mother of M.G.P., an infant, appealed from Order of Jefferson Family Court terminating her parental rights.

M.G.P. was born July 5, 2008.  On July 10, 2008 the Cabinet for Families and Children filed a petition alleging abuse or neglect of the child by the mother because the use of drugs resulted in positive tests for cocaine and heroin for both mother and child.  Mother had a six-year history of substance abuse and there were three criminal charges pending against her.  The petition stated that the putative father was incarcerated in Ohio for violation of a previous deportation order.

On July 17, 2008, the Family Court awarded temporary custody to the Cabinet and ordered mother to complete a drug assessment and follow any recommendations.  In August, 2008, the Family Court suspended visitation with the child because of her noncompliance with treatment, and thereafter she repeatedly failed to appear for intake appointments at Jefferson Alcohol and Drug Abuse Center.  In February, 2009, the Family Court permitted the Cabinet to waive further efforts to reunite the family due to mother’s significant drug history.

In September, 2009, mother finally reported to JADAC for treatment.  In November, 2009 and January, 2010, Family Court conducted a hearing on the Cabinet’s motion to terminate the parental rights of mother and putative father.  A Cabinet employee who was the mother and child’s case worker testified that mother had seven different residences in one year, was unemployed, and was dependent on her boyfriend for financial needs.  Mother failed to provide information for investigation of boyfriend to determine suitability of the home for return of the child.  Worker believed boyfriend was in the U.S. illegally.   The worker testified about the mother’s history of drug abuse, her failure to obtain stable housing, and contribute to the child’s support.  She testified that the child had suffered drug withdrawal, developmental delays and vision problems, and had bonded with foster family.

Mother testified that she had used drugs from 2003 until July 2009 and had previously worked as a strip club dancer and in a restaurant and grocery store.  She was unemployed, but her boyfriend had a steady job and she had been in JADAC program since September, 2009.

Family Court terminated mother’s parental rights finding that mother had abused the child, that termination was in child’s best interest, and that mother had failed to provide parental care for more than six months.  Mother contended on appeal that her conduct did not meet the standard of the involuntary termination statute and that there was no clear and convincing evidence that her conduct could not improve.

The Court of Appeals cited KRS 625.090 and its tests for termination, noting the broad discretion of family courts in making these determinations.  Decisions are reviewed for clear and convincing evidence under the clearly erroneous standard of CR 52.01, which does not require uncontradicted proof, but only proof of a probative nature sufficient to convince ordinarily prudent people.  Upon review of the record, the Court of Appeals found Family Court’s findings supported by substantial evidence.

Family Court found that the foster family was meeting the needs of the child and intended to adopt him upon termination of parental rights.  The court found that termination was in child’s best interests.  The court of Appeals applied the abuse of discretion standard which is that unless a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, it will be sustained.  Here, the Court of Appeals held that the Family court was presented with substantial evidence to sustain its termination order.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

L.D. v. J.H., Ky COA, Grandparents’ Standing in Dependency Cases

L.D. v. J.H.

2010-CA-000792-ME

Published:  Affirming

County: Warren

After Child was removed from Mom’s custody by Cabinet because of environmental neglect and the fact that Mom’s husband was registered sex offender, Child was ultimately placed with paternal Grandparents.  One year later, Grandparents file motion for designation as de facto custodians and for permanent custody.  FC granted permanent custody to Grandparents.  Mom appealed.

Mom first argued that Grandparents lacked standing to commence custody action because they did not qualify as de facto custodians.  In order to qualify for de facto custodian status, one must provide primary care for a child for a requisite amount of time; but the time after a parent seeks custody of the child is not included.  Mom claimed that because she always wished to have Child in her care and because Cabinet’s permanency plan had a goal of returning Child to her care, that qualified as “commencing a legal proceeding,” sufficient to interrupt the one-year primary caregiver requirement of KRS 403.270.  CA disagreed that Mom’s wishes or the Cabinet’s permanency goal qualified as “commencing a legal proceeding.”  However, CA further found that Grandparents’ standing was conferred by KRS 620.027, which specifically confers to Grandparents the same standing given to parents, provided the child is residing with the Grandparents in a stable relationship.  CA held that substantial evidence supported FC’s finding that Grandparents provided a stable environment for Child and therefore had standing.

Mom next argued that because Grandparents agreed to Cabinet’s permanency plan with a stated goal of returning Child to Mom, Grandparents waived their right to seek permanent custody of Child.  CA found no precedent or authority for this claim, and further found that to so penalize Grandparents for cooperating with Cabinet would be detrimental to the Cabinet’s purpose. 

Next, Mom argued that FC did not give equal consideration to both parties in determining custody, and that FC refused to hear evidence about her fitness to have Child returned to her.  CA found that since Mom did not file a motion to regain custody of Child, the proceeding was rightfully limited to Grandparents’ motion for permanent custody, and that FC considered all relevant factors in its determination.    

Lastly, Mom argued that FC should have granted her request to speak to Child in chambers.  CA found that FC properly quashed subpoena based upon improper service (service upon Child instead of Guardian Ad Litem) as well as the Child’s therapist’s recommendations. 

FC affirmed.

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

CHFS v. Hon. Garber and Hon. Bowles, Ky COA, Writs of Mandamus and Prohibition

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Eleanore Garber, et al.

and

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Jerry J. Bowles, et al.

No. 2010-CA-0012260OA and

No. 2010-CA-001351-OA

Published:  Petitions granted

County:     Jefferson

 

        The Cabinet for Health and Family Services filed original actions in the Court of Appeals after two divisions of Jefferson Family Court entered orders in domestic violence proceedings directing the Cabinet to investigate certain individuals for the risk of dependency, neglect, or abuse of children.

 

        The Cabinet argued that the Family Court acted outside its jurisdiction and violated the separation of powers doctrine by ordering an investigation instead of reporting suspected child dependency, neglect, or abuse pursuant to KRS 620.030 and KRS 620.040.  By ordering an investigation, the Family Court usurped the executive function of the Cabinet to determine the necessity of an investigation and, if warranted, initiating the investigation.

 

        The Cabinet also asserts that it is entitled to a writ based on the fact that the Family Court was acting within its jurisdiction, but erroneously, and there is no adequate remedy by appeal and great and irreparable injury will result.  Since the Cabinet subjected itself to contempt proceedings, however, it has an adequate remedy by appeal.

 

By ordering the Cabinet to conduct an investigation, the Family Court acted outside its jurisdiction and violated the separation of powers of Section 28 of the Kentucky Constitution.  Division Five of Jefferson Family Court is prohibited from enforcing its Order of June 15, 2010 and Division Six is prohibited from enforcing its July 8, 2010 Order.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Leach v. Harrison, Ky COA, Parent Fitness For Sole Custody As Against Non-Parent

Leach v. Harrison

No. 2009-CA-000622-ME on remand from Supreme Court of KY.

No. 2010-SC-000018-DGE

Published:  Opinion Affirming

County:  Estill

 

Father appealed order of trial court granting permanent sole custody of his three children to their maternal grandparents, the Appellees.  He argued that the Trial Court erred in finding him to be an unfit parent and by finding it was in the best interests of the children to be placed with the maternal grandparents.

 

The only question on appeal is father’s fitness to have sole custody of the children, because the mother stipulated to neglect in Madison Circuit Court and does not appeal.

 

As a result of more than eight investigations by the Department for Community Based Services related to the mother’s abuse and neglect of the children, the children were removed from the home.  The father was implicated for his failure to prevent the mother’s abuse and neglect.

 

In August, 2006 one child was placed with the maternal grandparents and one child was staying with the paternal grandparents.  After gaining temporary custody of these two children, the maternal grandparents filed petitions for permanent sole custody of both.  On the recommendation of the Domestic Relations Commissioner, the children were returned to the parents with orders prohibiting corporal punishment.  The maternal grandparents were awarded weekly visitation, but the parents failed to produce the children for 23 regularly scheduled visitations.

 

In August, 2007 the mother violated the court’s order and corporally punished one of the children and father failed to prevent it.  The two older children were placed with the maternal grandparents and the infant was placed with them in December.  Abuse allegations were substantiated against the mother and both parents were found to have neglected all three children.  Mother stipulated to neglect in Madison Family Court, and the court found that father also had neglected them.

 

After venue was transferred to Estill Circuit Court, the Domestic Relations Commissioner recommended awarding custody to father, visitation rights to maternal grandparents and eventual visitation rights to mother.  The grandparents filed exceptions.  The trial court subsequently rejected the DRC’s recommendation noting that the court feared “three potential homicides” if the children were returned to Dad because he seemed incapable of protecting them from their mother.

 

The father appealed and the CA determined that maternal grandparents lacked standing and the TC lacked subject matter jurisdiction due to repeal of KRS 403.420.  The Supreme Court accepted the case for discretionary review and held that standing can be waived in Kentucky and circuit courts have SJM over all child custody matters regardless of whether there is a statute specifically allowing such suit.  The Supreme Court remanded to Court of Appeals for a determination on the merits.

 

Father’s only argument on appeal is that TC’s finding that he was an unfit parent was unsupported by substantial evidence.  CA noted that since repeal of KRS 403.420, there is no longer a statute directing the standards to be applied by the TC, and consequently the court used the standards previously employed in cases of nonparents seeking custody.  Two ways for a nonparent having physical custody of a child to challenge a biological parent’s superior right is 1) a showing of unfitness sufficient to support involuntary termination or 2) parent’s voluntary waiver of their superior right to custody.

 

If nonparent shows by clear and convincing evidence that parent’s behavior could result in termination of parental rights, the TC may determine custody under a “best interest of the child” standard, with the nonparent on equal footing with parent.   The CA held that the TC made a finding that father was unfit and properly used the best interest standard in making its custody determination.  The CA found ample evidence presented at the hearing that father either allowed or failed to prevent mother’s abuse, as well as the adjudication of neglect by the Madison Family Court.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

C. C. v. Cabinet for Health and Family Services, Ky S. Ct., Application of Rules of Procedure in Dependency cases

C. C.  v. Cabinet for Health and Family Services

2010-SC-000395-DGE

Published:   Reversing, vacating and Remanding

County: Lewis

Mom appealed from FC's order removing Children from her custody based on a finding of neglect, contending that the Rules of Civil Procedure applied to proceedings prior to the adjudication in dependency hearings and that FC committed error by denying Mom discovery of relevant information and documents prior to the adjudication hearing. 


I. Background

Based upon information from 5 year-old Child and photographs of Child's injuries, and after Mom refused to cooperate in Social Worker's investigation of abuse complaint, Social Worker filed juvenile petitions in FC alleging that Child and her younger sibling were abused and requested and received Emergency Custody Orders removing Children from Mom's custody.  When Social Worker and State Trooper arrived at Mom's home to remove Children, Mom came storming out of the home, screaming that Child was a "liar" and a "thief" and that she would "holler rape" if the trooper touched her. Trooper then arrested Mom on an unrelated outstanding warrant and Social Worker took Children into her custody.  At Temporary Removal hearing, Mom admitted calling Child "liar" and "thief" but informed FC that she had ADHD and manic-depressive disorder and had not been taking her medication; Boyfriend admitted spanking Child.   Social Worker also testified about her investigation, but because she did not bring photos of Child's injuries with her, they were not introduced into evidence.  FC entered temporary order removing Children from Mom's custody and scheduled adjudication hearing.  The following day, Mom's counsel served the County Attorney with interrogatories and requests for production of documents regarding the witnesses and exhibits that would be used by the County Attorney at the adjudication hearing; the request cited KRS 620.100 as making the Civil Rules applicable to the action. The County Attorney responded that KRS 620.100 applied only to the adjudication hearing itself, not pre-hearing matters, but that the Commonwealth would agree for FC to enter an Order permitting Mom's counsel to inspect all of Cabinet's relevant records. 

FC did not hear the discovery issue until the day of the scheduled adjudication hearing. Because of FC's concern that Mom would have access to confidential documents, FC ordered the parties to submit briefs on the issue within ten days and rescheduled the adjudication hearing.
After submission of briefs, FC eventually denied the discovery request, holding "that KRS 620.100(3) applies to the adjudication hearing and not to pre-adjudicative matters." FC subsequently held adjudication and disposition hearings, found Children to be neglected, and ordered that Children remain out of Mom's custody.

CA affirmed, holding that nothing in the Uniform Juvenile Code requires application of the Civil Rules prior to the adjudication hearing, and noting that pre-hearing applicability of the rules would be impractical or impossible, given the short time frames for resolution of these cases. CA also held that Mom's rights were otherwise adequately protected. Lastly, CA found that Mom could have examined the photographs and other documentary evidence had she chosen to do so even without the statutory right to such examination, given Commonwealth's agreement to her access to the Cabinet's records.  However, SC noted that this contention was incorrect because although Commonwealth agreed to entry of an Order, no Order was ever entered. 

SC granted discretionary review to determine whether Civil Rule discovery prior to the adjudication hearing is allowed in a dependency, neglect, or abuse action.

Analysis

Civil Rules provide that they are applicable to all civil actions, which includes DNA actions, unless those rules conflict with rules provided under "special
statutory proceedings." DNA statutes meet the definition of special statutory proceedings because they provide a complete procedural framework within the statutes. 

Although discovery under the Civil Rules can take much longer than the DNA time frames, this does not present a conflict between the statutory requirements of DNA actions and the Civil Rules, as both allow for flexibility as to time frames. FC has the power to control the timing and sequence of discovery both with regard to the civil rules and per DNA statute.  Thus, there is no direct conflict between the statutes and rules.  Moreover, by statute, the Civil Rules apply to DNA actions. KRS 610.080(2) states that the Civil Rules apply to the "action." This encompasses not just the adjudication portion of the action, but the entire action, which also includes the temporary removal hearing and the disposition hearing, with no exceptions.

SC noted that there may be a conflict between the Civil Rules and the DNA statutes under other circumstances.  In those instances, because DNA actions are "special statutory proceedings," their time limits will trump those in the Civil Rules where a conflict arises. Nevertheless, a participant in a DNA action is entitled to the benefit of the Civil Rules, including the discovery provisions, so long as there is no conflict with the Juvenile Code. Though this may not mean access to the full range of discovery tools, since a judge may or may not be convinced that a time frame needs to be changed, it means at least reasonable access to the discovery procedures.  Thus, Mom was improperly denied access to the discovery provisions of the Civil Rules and therefore was deprived of due process.

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

One Published Family Law Opinion From Ky Supreme Court Today

C.C. v. Cabinet for Health and Family Services, et al. Kentucky Rules of Civil Procedure apply to all phases of dependency , neglect and abuse actions , including temporary removal hearing portions, so long as not in  conflict with the Juvenile Code. At least reasonable access to discovery must be permitted.  Statutory procedural requirements prevail over inconsistent civil rules procedures.

Digest to follow.

J.M. v. Com., Ky COA, Placement of Children in Dependency Cases

J.M. v. Com, 2010-CA-000156-MR 

Published:   Affirming

County: Fayette

 

Grandmother appealed FC’s order denying her motion for temporary custody of grandchildren in a dependency case.

 

FACTS:

Cabinet filed petition alleging that Grandchildren were neglected by their custodian, Mother, child of Grandmother.  Grandmother intervened and filed a motion for temporary custody of Children pursuant to KRS 620.090. FC ordered a home study, under which Grandmother’s home was approved for placement of the children and it was recommended that Grandmother be granted temporary

custody; however, the report revealed that as a child, Mother had been the the victim of sexual and emotional abuse in Grandmother’s home at the hands of Grandmother’s boyfriend at the time. Further, Grandmother was currently residing with her boyfriend who was previously convicted for felony domestic violence. Mother told FC she did not want Children to be placed with Grandmother and 15 y.o. Child also objected to the placement. FC therefore denied Grandmother’s motion and she filed this appeal.

followed.

ANALYSIS:

CA first took issue with the format and content of Grandmother’s brief, noting that it did not contain citations to the record or state whether the issues raised were preserved for appellate review. CA therefore reviewed for manifest injustice only. 

Grandmother first contended that it was unfair for FC to reach a decision based the home study without the ability to address the home study in a hearing. CA noted that Grandmother technically did receive a “hearing” though no witnesses testified. CA noted no statutory or constitutional provision entitling her to more, nor did she ask FC for more.

Grandmother next argues FC was obligated to place Children with her because of the statutory preference for placement with family members.  CA disagreed, noting that the required placement is only for qualified family members and that FC found Grandmother to be unqualified, said determination not being manifestly unjust based upon Mother’s and Child’s preferences and Mother’s abuse in Grandmother’s home. 

Grandmother finally contended FC erred in declining to abide by the recommendation in the home study report that Grandmother be granted custody of Children. CA found that FC was not bound to follow the recommendation and that doing so without consideration of the facts as a whole would have been an abdication of FC’s responsibilities.

FC’s order affirmed.

 

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

 

S.R., Mother v. J.N., Father and D.N., a Minor Child, Ky COA

S.R., Mother v. J.N., Father and D.N., a Minor Child, 2009 CA-001621-ME  

Issues:  Family Court must determine truth or falsity of all allegations in a complaint and consider only the evidence in the record to reach its conclusions.

Published:   Vacating and Remanding

County:   Marshall

 

S.R. (Mother) and J.N. (Father) were married in 2005 and their child, D.N. (minor child) was born later that year.  In 2006, divorce proceedings were initiated and after two contentious years, divorce was granted and mother was awarded custody of D.N.  Mother remarried and had another child in 2008.  When Mother’s new marriage deteriorated, her husband (Rambo) contacted Father and alleged Mother’s conduct was putting D.N. at risk.  Based on these allegations and Rambo’s affidavit, Father filed an Emergency Custody Petition and was awarded emergency custody on April 24, 2009.  An adjudication hearing was held on July 21.

 

Father’s complaint alleged that after an all-night drinking episode, Mother was too intoxicated to take D.N. to school and that she did not take the medications prescribed for her bipolar disorder.  Attached to the petition was Rambo’s affidavit alleging mother’s misconduct, Father and Rambo both testified at the adjudication hearing.

 

Mother and two witnesses also testified at the hearing and disputed the allegations of Father and Rambo.  Nevertheless, the Family Court ruled D.N. was an abused or neglected child and placed him in Father’s care.

 

Mother appealed asserting the Family Court failed to determine the truth or falsity of the allegations in the complaint, made erroneous findings of fact regarding Rambo’s testimony, and erroneously concluding D.N. was neglected, especially in light of testimony that he was routinely cared for by competent caregivers.

 

When a court conducts an adjudicatory hearing following temporary removal of a child from a custodian, KRS 620.100 requires the adjudication shall determine the truth or falsity of the allegations in the complaint with the burden of proof on complainant.  Findings of fact must be supported by substantial evidence in the record.

 

The Family Court determined the truth or falsity of only 2 of the 17 allegations in the petition.  The conclusion that D.N. was abused or neglected was not supported by substantial evidence.  The Family Court also went beyond allegations in the complaint and the testimony at the hearing and referred to evidence from prior proceedings and the court’s own knowledge acquired in the course of those prior actions; none of which was introduced into evidence at the adjudicatory hearing.  While a court may take judicial notice of its findings of fact in a prior case, it is improper to consider the evidence from the prior action.

 

CA held that Family Court’s finding that D.N. was abused or neglected was erroneous as a matter of law because the court did not determine the truth or falsity of the allegations in the complaint and relied on information outside the record and as a result the conclusion that D.N. is abused or neglected is not based on substantial evidence.

 

CA vacated the Order finding D.N. an abused or neglected child and remanded to Family Court for entry of an order which determines the truth or falsity of all the allegations in the complaint and based only on the record in this case.

 

 

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Com. v. D.G.R., Ky COA, Termination Of Parental Rights

Com. v. D.G.R. 2009-CA-00745-ME

Issue:  Termination of Parental Rights

Published:   Reversing

County: Caldwell

Cabinet appealed trial court order denying its petition to terminate the parental rights of D.G.R. and T.B.H. to their minor child.

FACTS:

A.T.H was twelve at the time of the termination hearing.  He had been diagnosed with autistic disorder, attention deficit hyperactivity disorder, and possible bipolar disorder.  D.G.R. and T.B.H. are the child’s parents, who never married but lived together. Three abuse petitions were filed by the Cabinet over a four year period.  The Cabinet then filed a petition to terminate the mother and father’s parental rights.  Trial court found by clear and convincing evidence that the child had been abused and neglected and that the child had been in foster care for a total of forty-three months.  However, the trial court denied the Cabinet’s petition on the basis that termination was not in the child’s best interests.  Cabinet appealed.   

ANALYSIS:

COA reversed and remanded to the trial court for an order terminating the mother and father’s parental rights.  All of the factors in KRS 625.090(3) weighed in favor of termination being in the child’s best interests.  There was overwhelming evidence that the parents, on more than one occasion, either abused the child or allowed the child to be abused, the parents were guilty of neglect regarding a sexual disease the child caught from the father, the parents used corporal punishment on the child, the child was not appropriately stimulated, the house was unsanitary, the parents lacked empathy toward the child, and the parents were unable and unwilling to provide basic needs for the child, much less provide for his special needs.

DISSENT: Henry, Senior Judge

 While the majority noted that it cannot disturb the findings of the trial court unless no substantial evidence exists in the record to support them, the majority concluded that the factual findings of the trial court were not based on substantial evidence.  Instead of finding that the trial court abused its discretion or was clearly erroneous in relying on the testimony of the occupational therapist, the majority just dismissed the testimony as minimal.  The majority incorrectly substituted its judgment for the trial court, which held hearings, met the parties, and listened to the testimony face-to-face.  It is easy to understand why the majority decided the way it did and there is no doubt the majority’s motives were pure.  However, the majority’s method of reaching its decision was uunsound. 

Diana L. Skaggs + Associates  

Commonwealth, Cabinet For Health & Family Services v. T.N.H., Ky S. Ct., Minor's Parental Rights To Child May Be Terminated

Com. v. T.N.H., 2008-SC-00318-DGE

Issue:  Termination of Parental Rights

Published:   Reversing

County: Jefferson

 

Supreme Court granted discretionary review in this case wherein the COA reversed the trial court’s decision to terminate the parental rights of a mother, who was a minor and committed to the Cabinet, because the Cabinet failed to present evidence of the likelihood that the mother would not develop the necessary parenting skills once she turned 18.   

 

FACTS:

When T.N.H. was 14 years old, she gave birth to J.L.H.  Shortly thereafter the Cabinet filed a petition for dependency, abuse, and neglect, claiming T.N.H. was neglecting the child.  Both mother and son were placed in the custody of a maternal aunt.  Two months later they were both voluntarily committed to the Cabinet’s custody and placed in foster care.  J.L.H. remained in the same foster home throughout the litigation.  Due to T.N.H’s disruptive behavior, refusal to participate in the various treatment plans, violation of curfew, and several attempts to run away, the mother spent time in multiple placements.  The social worker testified at the termination hearing that there was no apparent bond between mother and son.  At one time, mother ran away for 107 days and made no contact with the child and did not inquire as to his well-being.  She only returned to seek medical attention after her boyfriend physically abused her.  In contrast, J.L.H. had adjusted well to his foster family, called his foster parents “mom” and “dad,” and the social worker testified that the foster family was willing to adopt the child. 

 

The trial court granted the Cabinet’s petition and terminated the mother’s parental rights.  The court made several findings of fact, including that “T.N.H., for reasons other than poverty alone, had continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for J.L.H.’s well-being and there was no reasonable expectation of significant improvement in T.N.H’s conduct in the immediately foreseeable future (KRS 625.090(2)(g)). . .” (emphasis added).  The COA reversed the trial court’s decision, opining that when the mother is a minor, the Cabinet should present evidence as to the likelihood that when the teen reaches adulthood the parent cannot effectively parent the child. 

 

ANALYSIS:

SC reversed the COA’s decision and reinstated the trial court’s order terminating the mother’s parental rights.  By requiring the Cabinet to present evidence of the likelihood that the minor will not be able to effectively parent once he/she reaches adulthood, the COA raised the standard for terminating a minor’s parental rights.  SC rejected the more stringent standard.  First, the language of the statute does not reflect an intent by the legislature to raise the standard for a minor parent.  Second, the needs of the child are the same regardless of the age of the parent.  Children of minors should not be forced to stay in foster care longer than children of adult parents.  Attaining adulthood is no guarantee that a parent’s skills will meet the law’s minimum requirements.  Age and immaturity do not excuse a parent from his/her responsibility to meet the basic needs of the child.  Given the mother’s history of inappropriate behavior and failure to meet the child’s basic needs, the evidence was sufficient to show that there was no reasonable expectation of significant improvement in her conduct in the immediately foreseeable future.  It was in the child’s best interests that the mother’s rights be terminated. 

SC refused to hear multiple issues raised by the mother as alternate grounds to support the COA opinion, because the issues were not raised via a cross motion for discretionary review.     

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

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."