Divorce Law Journal

Adoption and Termination of Parental Rights, Published Opinion from Ky Court of Appeals

M.L.W. V. HEART TO HOME ADOPTION AGENCY, ET AL.

Mother consented to adoption of her three children. Father contested the termination of his parental rights and appealed arguing that the findings of fact were insufficient to terminate his rights. The trial court stated that termination was in the children’s best interest, but did not make any findings supporting its conclusion. Moreover, the GAL improperly provided testimony as opposed to representing the best interests of the children; the Cabinet was not included as a party to the proceeding as required by statute; and, the adoption placement agency made no efforts to return the children to Father. Therefore, the Court of Appeals vacated the trial court’s order and remanded the case for further proceedings.

Digested by Elizabeth M. Howell

Published Opinion, Ky Court of Appeals, Termination of Parental Rights and Necessity of Notices of Appeal for Each Child

W. L.C. V. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.

Mother  appealed the  court order terminating rights to daughter after court terminated her parental rights for daughter and son, arguing the termination was not based on substantial evidence and the  trial should have been delayed to allow her an opportunity to secure negative drug test results essential to her defense. The Appellate Court found that because the termination order was made pursuant to KRS 625.090, there had already been multiple continuances, and CHFS stipulated to some of the missing evidence, there simply was no grounds for reversal.

Although mother failed to file an appeal in son’s case, she argued that the Appellate Court should assume she intended to appeal both judgments and allow her to appeal son’s case as well. The Court of Appeals holds that “Because there were two separate cases and two separate judgments, two separate notices of appeal should have been filed.” While strict compliance is no longer required, substantial compliance is required. Substantial compliance requires a separate appeal of separate judgments.

Digested by Elizabeth M. Howell.

Published Family Law Opinion From Ky Court of Appeals: Right to Counsel in Termination of Parental Rights/Conflict of Interest

T.W. V. CABINET FOR HEALTH AND FAMILY SERVICES

Mother and father's parental rights were terminated involuntarily by trial court after a hearing. While Mother and Father had counsel present at the hearing, counsel believed he had a conflict of interest and did not participate in the hearing. Although counsel asked to withdraw, the trial court did not allow his withdrawal and permitted the hearing to continue. The witnesses testifying on behalf of the Cabinet were not cross-examined. While counsel subsequently withdrew and separate counsel was appointed for mother and father, the witnesses were never subject to cross-examination.

The Court of Appeals holds that counsel's conflict of interest "constituted ineffective assistance of counsel requiring a new termination hearing." The court looks to KRS 625.080(3) and Z.T. v. M.T., holding that "in this Commonwealth, it is a fundamental right of parents facing termination of their parental rights to have counsel not only present but also conflict-free." Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky.App. 2008). As mother and father were denied their statutory right to counsel because counsel had an actual conflict of interest, the court holds that prejudice is presumed. Therefore, the court reverses and remands the trial court's order providing that Mother and Father should be allowed a new termination hearing.

Digested by Elizabeth M. Howell

 

Notice of Witnesses Required in Termanation of Parental Rights Proceeding: Ky Supreme Court Published Opinion

CABINET FOR HEALTH AND FAMILY SERVICES V. S.H,; V.N.M.J.R.N., A CHILD, ET AL.

The family court held a termination of parental rights hearing allowing a social worker to testify on behalf of CFHS with no prior notice to Mother. Mother objected arguing FCRPP 7(1) applied to a termination of parental rights hearing and she should have received 14 days-notice of the witnesses and their testimony. The family court ruled the termination hearing was not a permanent custody hearing and allowed the social worker to testify. Mother appealed the order terminating her parental rights arguing FCRPP 7(1) applied. The Court of Appeals agreed finding the error was not harmless and remanded, reversed and vacated the termination order.

The Ky Supreme Court granted discretionary review. CFHS argued FRCPP 7(1) did not apply because custody was not at issue. The Supreme Court agreed with the Court of Appeals holding that custody is undoubtedly at issue and 7(1) applies to termination proceedings. Although the Supreme Court holds that the language of FRCPP 7(1) gives the trial judge discretion to alter the notice requirement, it agrees with the Court of Appeals that in this case the family court erred by allowing the social worker to testify.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals: Termination of Parental Rights and Stepfather Adoption Affirmed

R.P., JR. V. T. A.C., ET AL.

The Trial Court entered an Order terminating Biological Father’s parental rights and granting Stepfather’s Petition for adoption of the minor child. Father appealed arguing that the Trial Court did not make sufficient findings to terminate his parental rights. Termination must be supported by clear and convincing evidence. In this case, the Trial Court found that Biological Father had abandoned the child, had not been involved in the child’s life, had not made efforts to be involved in the child’s life, and had not paid child support for several years. The Court of Appeals affirmed the Trial Court’s decision.  

Digested by Elizabeth M. Howell.

 

Published Family Law Opinion from Ky Court of Appeals Today -Directed Verdict Dismissing Termination of Parental Rights Petition Against Imprisoned Father Affirmed

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. C.L.H., ET AL.

The Appellate Court affirms the Trial Court’s grant of a directed verdict and dismissing the Cabinet for Health and Family Services’ (CHFS) petition to terminate the parental rights of father. Although the father is in Federal prison on drug charges until 2019, his prior involvement with his child was positive and beneficial. Additionally, father maintains regular prison visits with the child which are also beneficial. The father’s incarceration and length of incarceration alone  are not enough to support finding of abandonment or neglect necessary to sustain the CHFS Petition in light of the strong “fundamental liberty interest” a natural parent has in “the care, custody, and management” of his or her child.

Digested by Elizabeth M. Howell.

Ky Court of Appeals Family Law Published Opinion 12/24/14; Termination of Parental Rights; Indian Child Welfare Act; Standard of Proof

E.S.L.C. v. Cabinet for Health and Family Services, et al

The mother appealed from a Family Court order terminating her parental rights. She argued that she was deprived of due process because she was not notified prior to the termination hearing that the family court would apply the KRS 625.090 clear and convincing evidence standard of proof, instead of the reasonable doubt standard required by the Indian Child Welfare Act. The child had Indian heritage, specifically the Lower Brule Sioux Tribe.

The Appellate Court affirmed the Family Court’s judgment terminating the parental rights of the mother. The Appellate Court held that the Indian Child Welfare Act did not apply due to the Existing Indian Family Doctrine. The mother and father abandoned the child shortly after birth and the Lower Brule Sioux Tribe communicated it could not assist the child and would not intervene, so the child was never raised in an Indian home or environment. Thus, the Indian Child Welfare Act did not apply. Additionally, the Appellate Court held the mother was not prejudiced because the Family Court applied a higher standard of proof and not a lower standard of proof. The mother did not challenge the Family Court’s findings, and the Appellate Court found no error with the Order terminating the mother’s parental rights.

 

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.

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

Grandparent Visitation, Palmer v. Brunett digest, Ky Court of Appeals

Palmer v. Burnett, 2011-CA-002097-ME

Issue:  Grandparent visitation

Published:   Affirming   

County:  Jefferson

Maternal Biological Grandmother appealed FC’s order dismissing her motion for grandparent visitation on the basis that she lacked standing.       

FACTS:

In 1990, Michelle voluntarily relinquished her parental rights to Kristen and Michelle’s mother, Kristen’s biological grandmother, adopted Kristen.  In 2004, Kristen gave birth to Alexis.  Despite termination of Michelle’s parental rights to Kristen, Michelle and her husband developed a close relationship with Alexis.  Alexis even resided with them for several months.  However, in 2010, Michelle and her husband obtained DVOs against Kristen on the basis that she threatened to kill them.  Kristen and Alexis’ father then refused to allow Michelle and her husband to have contact with Alexis.  Michelle and her husband initiated a custody action, asserting standing as de facto custodians.  FC dismissed the custody action, finding that Michelle and her husband had not been Alexis’ primary caregivers for at least one year prior to filing the petition as required under KRS 403.270.  Michelle and her husband then filed a grandparent visitation action, which FC also dismissed, finding that due to the termination of Michelle’s parental rights to Kristen, she was not legally Alexis’ grandmother (and her husband, lacking even a biological relationship to Alexis, was also not a legal grandparent.)  However, FC implored CA to overturn its finding regarding standing, finding that a continued relationship with Michelle and her husband was in Alexis’ best interests.  Michelle and her husband appealed, although no argument was presented on husband’s behalf. 

ANALYSIS:

CA noted that termination of parental rights constitutes a permanent severance of the parent-child relationship—it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and the child.  All parental rights are then vested in the adoptive parent.  Thus, Michelle’s termination of her parental rights to Kristen included termination of a future right to a relationship with Alexis, and Kristen and Michelle became sisters for legal purposes, meaning Michelle is legally considered Alexis’ aunt.  As there is no statutory protection for visitation rights of aunts and uncles, Michelle had no standing to pursue visitation of Alexis.

Affirmed.

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

Termination of Parental Rights, Case Digest, B.M.H. v. CHFS, Ky Court of Appeals

B.M.H. v. Commonwealth of Kentucky, Cabinet for Health and Family Services; et al

No. 2012-CA-000194-ME

Published: Opinion Affirming

County: Jefferson

B.M.H. appeals from Order of Jefferson Circuit Court, Family Division, denying his motion to dismiss its September 22, 2011, judgment terminating his parental rights to I.C.D.

I.C.D. was born to N.D. on August 8, 2010.  Both mother and child tested positive for cocaine metabolite and a report was filed with the Cabinet for Health and Family Services.  The Cabinet obtained an emergency custody order & filed a petition alleging I.C.D. was an abused or neglected child, naming B.M.H. as the father.  The Cabinet was granted temporary custody.  On November 8, 2010, the Cabinet filed a petition for involuntary termination of B.M.H.’s parental rights.  B.M.H. was incarcerated at the time of the hearing and participated telephonically.  The Family Court terminated B.M.H.’s parental rights to I.C.D.  B.M.H. files this appeal.

B.M.H. argues that he should not be included in the action because he is not the putative father.  In an action to terminate parental rights, KRS 625.060 requires the Cabinet and the biological parents, if known, to be parties in the action.  Putative fathers are not necessary parties if exempted by KRS 625.065.  The statute requires a putative father to participate in an action to terminate parental rights only if one of six conditions exist.  If none of the conditions exist, the putative father has no parental rights to the child.

At the hearing, a social worker employed by the Cabinet, testified that the mother identified B.M.H. as the father in an affidavit, but no affidavit was introduced as evidence.  Since B.M.H. did not object to the testimony about the affidavit, any error in its omission was not preserved for review.

B.M.H. is without parental rights to I.C.D. either by the Court’s order or by the effect of KRS 625.060(2).  Since he would have no rights irrespective of the admission of testimony regarding N.D.’s affidavit, the Court of Appeals was unable to say that the alleged error resulted in manifest injustice to B.M.H.  Manifest injustice requires a showing that a different result would have occurred or the error was so fundamental it threatens a party’s right to due process.

The order of Jefferson Circuit Court, Family Division, is affirmed.

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

Miller v. Norris, Ky COA, Grandparent Visitation

Miller v. Norris

No. 2011-CA-001285-ME

Published: Opinion Affirming

County: Jefferson

Janet Miller appeals from Order of Jefferson Family Court granting summary judgment and dismissing her action seeking grandparent visitation.

In 2007, the Commonwealth removed two children from the custody of their biological parents and instituted a termination of parental rights action.  After the parents’ rights were terminated, the children were placed in foster care with Appellees Roxanne and Donald Norris, who adopted them in December, 2008.

The Norrises initially permitted Appellant, Janet Miller, the biological maternal grandmother of the children, to visit the children every Saturday with the understanding the children would have no contact with the biological mother.  After a visit with Appellant in February, 2010, the oldest child reported a telephone conversation with a woman during the visit.  The Norrises determined that it was in the children’s best interest to stop the visits with Miller to avoid contact by the children with the biological mother.

Miller testified that she had previously abandoned the idea of a grandparent visitation proceeding because the Norrises assured her they would never keep her from seeing the children.  Mr. Norris testified that although visits with Miller were allowed, she was never told that her access to the children was unconditional.

In August 2010, Miller filed a Petition for Grandparent Visitation.  The Norrises filed an answer and moved to dismiss under CR 12.02 alleging the complaint failed to state a claim upon which relief could be granted.  The Court utilized CR 56 and treated the motion as one seeking summary judgment and in June, 2011 it entered an Order Granting Summary Judgment and Dismissing the Action in favor of the Norrises.  The Court determined that termination of the biological mother’s parental rights also terminated Miller’s statutory right to seek grandparent visitation.  The Court ruled that KRS Chapter 405 gave Miller the right to pursue grandparent visitation only during the time her daughter had parental rights.  The Court rejected Miller’s argument that the doctrine of equitable estoppel should preclude the Norrises from asserting the defense that Miller had not complied with KRS Chapter 405.

Miller argued that the trial court improperly rejected her contention that the doctrine of equitable estoppel should bar the Norrises from arguing that Miller failed to assert a claim in conformity with KRS Chapter 405.  Miller asserted that had the Court accepted as true her claim that the Norrises told her she would always be allowed to visit the the children, she would also have been entitled to assert a claim of equitable estoppel.

The Court of Appeals noted that summary judgment shall be rendered if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.  The Court cited the elements of equitable estoppel which a party seeking to advance a claim must show, which are lack of knowledge of the truth, reliance on the conduct of the party to be estopped, and action or inaction which changes the conduct of the party claiming the estoppel, to his detriment.

The Court of Appeals found that in rejecting Miller’s claim of equitable estoppel, the trial court made a determination that Miller was aware of the necessity to seek grandparent visitation and the means of doing so though retained counsel.  Therefore, the Norrises were not barred by the doctrine of equitable estoppel from asserting the defense of Miller’s failure to comply with KRS Chapter 405.

Holding that the trial court correctly found there were no genuine issues as to any material fact and the Norrises were entitled to a judgment as a matter of law, the Court of Appeals affirmed the Summary Judgment of the Jefferson Family Court.

Digested by Sandra G. Ragland, 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  

A.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; and M.W.C., a child, Ky. COA, Termination of Parental Rights and Anders Procedures

A.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; and M.W.C., a child

No. 2011-CA-00504-ME

Published: Opinion Affirming

County: Kenton

 A.C. appeals from an order of the Kenton Family Court terminating her parental rights with regard to her minor son, M.W.C. The Court of Appeals is called upon to determine if it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493(1967) to appeals from orders terminating parental rights and, if so, whether the appeal herein is frivolous.

In January, 2009, the Cabinet filed a petition in Kenton Family Court claiming A.C. abused M.W.C. through excessive discipline. The Family Court committed M.W.C. to the Cabinet’s custody and adjudicated M.W.C. a dependent child. In March, 2010, the Cabinet filed its petition for involuntary termination of A.C.’s parental rights, which was tried in December, 2010.

A licensed clinical social worker testified about the abusive discipline, including the use of a stun gun. A.C. also failed to provide needed therapy and mediation. A social worker for the Cabinet testified that A.C. was resistant to services, refused to complete parenting classes, failed to complete a psychological examination and did not attend Alcoholics Anonymous meetings. The social worker reported that since admission to the Diocesian Catholic Children’s Home, M.W.C.’s disruptive behavior decreased and his grades improved, and concluded M.W.C. is happier and is likely to be adopted.

 In January 2011, the family court entered comprehensive findings of fact and conclusions of law, and an order terminating A.C.’s parental rights as to M.W.C. M.W.C. was committed to the Cabinet’s custody and the Cabinet was vested with authority to place M.W.C. for adoption.

A.C. filed a timely appeal and her court-appointed counsel filed an appellate brief stating she was unable to find any meritorious assignment of error to raise on A.C.’s behalf and requested this court to independently review the record in accordance with Anders to preserve A.C.’s right to fundamental fairness. Thereafter, A.C.’s counsel filed a motion to withdraw, pursuant to Anders, which was granted. A.C. was given additional time to retain new counsel and/or file a supplemental brief, but she has not done so.

After expiration of the allotted time, the Cabinet filed a Motion to Dismiss and a Motion to Advance, claiming A.C. failed to provide any claims of error and no party raised an issue necessitating merit review.  No “case or controversy” exists, justifying dismissal of A.C.’s appeal. On December 9, 2011, the Cabinet renewed its Motion to Dismiss. All matters are now ripe for review.

The question presented is whether Kentucky will apply the principles and procedures of Anders to appeals from orders terminating parental rights. In Anders, The United States Supreme Court addressed the duty of the court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after he has determined that there is no merit to the indigent’s appeal. The Supreme Court established Anders procedures or an Anders brief to safeguard a criminal appellant’s constitutional right to counsel when his court-appointed attorney wants to withdraw from a claimed no-merit appeal.

The Supreme Court said if the court-appointed counsel believes the indigent’s case is entirely frivolous, he should advise the court and ask to withdraw. The request should be accompanied by a brief referring to anything in the record that might support the appeal. After the indigent has the opportunity to review the brief and raise any points he chooses, the court will decide whether the case is wholly frivolous. If it so finds, the court may allow counsel to withdraw and dismiss insofar as federal requirements are concerned or decide on the merits, if state law requires. If, however, it finds any legal points arguable on their merits, the indigent must be offered assistance of counsel to argue the appeal.

When the attorney believes there are no non-frivolous grounds for appealing a termination of parental rights, the Anders procedures may be applied, providing balancing of the rights of the indigent parents and the obligations of their appointed attorneys. Just as the US Supreme Court provided Anders safeguards in the criminal context, our Court of Appeals provides indigent parents the right to appellate counsel in termination of rights cases.

The Court of Appeals provides a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. The Anders brief is not a substitution for an advocate’s brief on the merits, nor is it an escape provision to end undercompensated legal services the lawyer agreed to provide.

Having articulated the standard to be applied, the Court of Appeals reviewed the records and agreed with counsel’s assessment and saw no basis warranting relief on appeal. The Cabinet’s Motion to Dismiss and to Advance is moot and the Kenton Family Court’s order terminating A.C.’s parental rights to M.W.C. is affirmed.

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

A.M.W. v. Cabinet for Health and Family Services. Ky COA, Child must be party to termination of parental rights appeal

A.M.W. v. Cabinet for Health and Family Services

No. 2011-CA-001441-ME

Published: Opinion and Order Dismissing

County:Pike

A.M.W. appealed from an Order terminating the Appellant’s parental rights. The Cabinet for Health and Family Services filed a motion to dismiss the appeal for failure to join the child as a party.

Appellant served a copy of the notice of appeal on the attorney for the Cabinet and the
circuit court judge, but failed to serve a copy on the guardian ad litem. Although the child at issue was included in the style of the notice of appeal, the child’s guardian ad litem was not
provided fair notice of the appeal and the child was not joined as a party.

In an action to terminate parental rights, the child’s interests are not the same as
the interest of the parents or the Cabinet.
When a parent appeals an order terminating parental rights, the child is
a principal focus of the appeal and must be made a party to protect his
interests. The child is a necessary and
indispensable party to an appeal from the termination of parental rights. Failure to join the child requires dismissal of the appeal.

Digested by Sandra G. Ragland, 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

Cabinet for Health and Family Services v. I.W.Jr., et al, Ky COA, Termination of Parental Rights

Cabinet for Health and Family Services v. I.W., JR., et al

2010-CA-000301-ME

County:  Clark

Published:   Reversing and Remanding

 

The Cabinet appealed a judgment of Clark Family Court denying the petition to terminate the parental rights of Appellee, I.W., Jr.

 

M.A.W. was born in 2002 to R. S. and her stepbrother, Appellee, I.W., Jr.  I.W., Sr., Appellee’s father, and M.W., R.S.’s mother, married when I.W., Jr. was 13 years old and he lived in the same household with R.S. about 2 1/2 years.  I.W., Jr. engaged in sexual relations with R.S. for approximately 10 years, beginning when she was sixteen.  I.W., Sr. sexually abused R.S. as a child and their sexual relationship continued after she was an adult.  I.W., Jr. advised his wife, C.W., of his relationship with R.S., and after learning R.S. was pregnant with M.A.W., C.W. asked I.W., Jr. to determine if he was the father.  When R.S. denied I.W., Jr. was the father, no further inquiry was pursued.

 

M.A.W. lived in a number of homes with various relatives and in foster care.  The child was abused and neglected and witnessed domestic violence.  In 2006, M.A.W. and his older half-sister, M.S.W., were placed with P.W. and J.W., M.S.W.’s biological father and stepmother who had two other children.  The next year, M.S.W. died as a result of injuries inflicted by P.W. and J.W., which occurred in the presence of all the children.  The children were removed from the home and remain placed together in a foster home.  I.W., Jr. and his wife, C.W., moved the court for custody or visitation.

 

Several alternatives were considered and rejected as possible custodial arrangements.  Extensive testing and evaluations were conducted by a psychologist and the UK Comprehensive Assessment and Training Services.  They reported the severe violence and emotional trauma the child had experienced and concluded that M.A.W. should not be separated from his siblings.  The evidence was presented at a trial on the termination of parental rights on August 21, 2009.  On October 21, 2009, the trial court denied the Cabinet’s petition to terminate I.W., Jr.’s parental rights because it had not sustained the burden of proof that termination of parental rights was in the child’s best interest,  The child, however, was left in the  Commonwealth’s custody.  After the trial court denied the Cabinet’s motion to alter, amend or vacate, this appeal was filed.

 

The Court of Appeals found that there was substantial evidence in the record to support termination of parental rights and there was no evidence supporting a finding that termination was not in M.A.W.’s best interest.  Therefore, the ruling was clearly erroneous and reversed, remanded to Clark Family Court for an order terminating I.W., Jr.’s parental rights.

 

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

 

Cabinet for Health and Family Services v. L.J.P., M.J.P., and D.J.P: Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings

Cabinet for Health and Family Services v. L.J.P.,  M.J.P., and D.J.P, 2008-SC-000950-DGE  

Issue:  Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings

Published:   Reversing

County: KENTON

 

Cabinet appealed CA’s reversal of FC’s denial of paternal grandparents’ motion to intervene in termination of parental rights action, where CA held that the grandparents could intervene as a matter of right under CR 24.01.  SC held that, given that the proceeding before FC was for termination, and not adoption, grandparents' motion to intervene was correctly denied, and they had no statutory standing to proceed with an adoption.

 

FACTS:

Soon after Grandchild's birth, his birth parents lost custody of him in a dependency, neglect, and abuse action. Grandchild has since resided in foster care.  When Grandchild was about one, Cabinet filed a petition for involuntary termination of parental rights. About four months later, parents filed a petition to voluntarily terminate their parental rights, conditioned on Grandchild being placed for adoption with grandparents, and contemporaneously filed moved to intervene, claiming the filing of the Voluntary Termination Petition gave them standing to do so.  FC denied their motion to intervene, finding the voluntary termination petition to be invalid because the involuntary petition was filed first. CA found that grandparents could intervene as a matter of right based on the “elevated status” given to grandparents in custody determinations

 

ANALYSIS:

A. Timeliness

SC held that FC incorrectly believed that the effect of the Cabinet’s previously filed petition for involuntary termination was to cause the parents to lose the right to be free from state interference in deciding who shall have custody of Grandchild.  Thus, FC believed Voluntary Petition was untimely and could not give grandparents standing.  SC held that Involuntary Petition was merely pending as the parents’ rights were not affected until an order issued terminating their rights.  The fact that they did file their petition before their parental rights were terminated makes their voluntary petition timely.  This alone, however, did not give grandparents standing. 

 

B. The Substance of the Parents' Petition

While the parents clearly could voluntarily terminate their parental rights, even in an involuntary termination proceeding, the real question is whether given the status of their case, they could go further and consent to adoption in a voluntary termination proceeding.  Obtaining the consent of parents who retain their parental rights is but the first step of a consent adoption.  Pursuant to KRS 199 .470(3), grandparents could not petition to adopt Grandchild unless the Grandchild had been placed with them by the Cabinet or until he had resided with them for at least ninety (90) days immediately prior to the filing of the adoption petition.  In this case, Grandchild had never resided with Grandparents.  The 90 day residence requirement is a jurisdictional prerequisite so they could not adopt him at that time.  Further, SC found voluntary termination petition’s conditional language would have required FC to place Grandchild for adoption with Grandparents, which FC found to be an improper attempt to make an endrun around the requirements of the adoption statute. If the petition had been a proper petition for consent adoption, then Grandparents would have had to invoke FC's jurisdiction to proceed, and they could not meet the statutory grounds to do so. Nonparental relatives or potential custodians such as Grandparents are not mentioned or considered in the termination statutes, and thus it cannot be said that a statute confers an unconditional right to intervene.  Furthermore, to the extent that Grandparents' interest is in receiving custody post-termination, it would not be a "present substantial interest" but merely "an expectancy or contingent interest," and thus insufficient to warrant their intervention as a matter of right. FC is statutorily obligated, upon issuing an order terminating parental rights, to "vest care and custody of the child in such person, agency, or cabinet as FC believes best qualified." Thus, Grandparents would be entitled to custody only if the court finds they are the "best qualified" among all potential custodians, something which is purely speculative at this point, especially since parental rights have not been terminated.

 

CA reversed, and FC order reinstated.

 

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

 

 

Ky Supreme Court Releases Two Family Law Opinions Today

Lichtenstein v. Barbanel, payment of marital debt may not be off-set against child support under UIFSA. Trial Court also erred in failing to establish child support arrearage owed by one parent before determining net amount owed by other, where custody had been changed and amount mother owed to father had not been established before Income Withholding Order had been issued.

Cabinet for Health and Family Services v. L.J.P.,  M.J.P., and D.J.P.  Grandparents lacked standing in adoption proceeding and lacked right to intervene in termination of parental rights case.

Digests to follow.

S.B.B. v. J.W.B., Ky COA, Termination Of Parental Rights

S.B.B.v. J.W.B. 2009-CA-001033-ME

Issue:  Termination of Parental Rights

Published:   Reversing and Remanding

County: Daviess

 

Stepfather appealed from TC order denying his petition to involuntarily terminate the parental rights of Biological Father to Son, and to adopt the child.

 

FACTS:

TC’s sole reason for denying the petition was Father’s sporadic payment of child support by wage deduction over approximately eight years of the child’s life.  TC had stated it would have granted the relief except for the fact that Father had paid $23,000.00 in child support over the years, albeit on a sporadic basis by wage deduction and notwithstanding that he was over $8,000.00 in arrears. TC stated that, as a matter of law, that this fact, and this fact alone, precluded a finding of abandonment or failure to provide care or essentials under KRS 199.502 (1), the only possible grounds for termination in this case. 

 

ANALYSIS:

Although payment of support is a significant factor in determining whether a parent has abandoned a child, it is but one factor to be considered. Abandonment is not actually defined in KY jurisprudence in the context of termination proceedings. Rather, abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child. The evidence presented to TC clearly reveals Father exhibited such conduct.  Payment of support, though significant, is but one factor to consider among the totality of circumstances when determining parental abandonment.  Remanded to TC for determination as to whether Father’s sporadic payment of support outweighs other important considerations in determining the propriety of terminating his parental rights.

 

 Digested by Michelle Eisenmenger Mapes, 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  

Kentucky Supreme Court Publishes Two Family Law Opinions Today

A deeply divided court, in Mullins v. Picklesimer, holds that mother waived her superior right of custody, thus permitting her same sex partner to have joint custody. The dissents worry that this "new found rule of law" will pave the way for grandparents, step-parents and other non-parents to seek custody.

Commonwealth, Cabinet for Health & Family Services, et al v. T.N.H, et al  concerns termination of parental rights of minor in CHFC custody. 

Digests of both to follow.

P.C.C. v. C.M.C., Ky COA, Step-parent Adoption, Termination Of Parental Rights,Due Process

P.C.C. v. C.M.C., __ S.W.3d __ (Ky. App. 2009)

           P.C.C. appealed the judgment of adoption which effectively terminated his parental rights and allowed the child’s stepfather to adopt him.  P.C.C. and K.R.C. were married and had a son.  The parties divorced and agreed that K would have sole custody and P would have a set visitation schedule with the child.  K then married C.M.C., who filed a Petition for Adoption and Termination of Parental Rights.  P objected, arguing that C lacked standing to initiate termination proceedings, and he filed a motion to enforce his visitation rights in the divorce matter.  The trial court refused to hear P’s visitation motion unless the adoption petition was ultimately denied.  Pursuant to KRS 199.502, the court granted the adoption petition and terminated P’s parental rights on the theory that P had abandoned the child for more than 90 days by failing to exercise his visitation rights.

            COA reversed and remanded.  P was not afforded fundamental due process throughout the litigation.  C also failed to meet his burden of proof that P abandoned the child.  The evidence indicated that throughout the child’s life his father’s attempts to visit with him had been “systematically thwarted” by the child’s mother.

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

Ky Supreme Court Minutes Yesterday

No family law to be published opinions were released, but discretionary review was granted in Commonwealth, Cabinet for Health and Family Services, v. L.J.P., et al. A digest of the court of appeals opinion and link to the decision is here. Briefing will be expedited and oral arguments will be held August 12, 2009 at 11 a.m.

R.M. v. R.B., KY COA, Adoption, Termination Of Parental Rights

R.M. v. R.B. , _ S.W.3d _ (Ky. App. 2009); 2008-CA-001099-ME

Trial court denied adoption of A.E.B. by her maternal aunt and uncle, R.M. and R. M., and further denied the involuntary termination of parental rights of the child’s father, R.B. R.M. and R.M. appealed. COA held that adoption is statutory right and that Kentucky Courts require strict compliance with the statutory mandates set out in KRS Chapter 199. Several statutory procedures were not followed by the trial court. First, the petition for adoption contained no allegations against R.B. sufficient to establish grounds for terminating his parental rights. Second, the trial court conducted an adoption hearing without submission of the Cabinet’s required report regarding its investigation of the proposed adoption. There was no record that the Cabinet had even investigated the adoption pursuant to KRS 199.510. Nevertheless, COA affirmed the trial court. Even thought the trial court made its decision based on the wrong reasons, it reached the correct result. COA noted that appellants are not barred from filing another petition that complies with the adoption statutes.

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

One To Be Published Ky COA Adoption Case Decided Today

A digest of R.M. v. R.B. will follow.

L.J.P. v. Cabinet for Health and Family Services, Ky COA, Grandparent Rights In Termination Action

L.J.P. v. Cabinet for Health and Family Services, _ S.W.3d _ (Ky. App. 2008) 2008 WL 4998635

Paternal grandparents appealed trial court order denying their motion to intervene and request for custody of their grandchild in an involuntary termination of parental rights action. The issue on appeal was whether the grandparents have a right under CR 24.01 to intervene in a termination of parental rights action. COA found that grandparents have a “legally cognizable interest” in their grandchildren under Kentucky law. KRS 625.100 recognizes that the child’s relatives have an elevated status when the court awards custody of the child post-termination. It is difficult to understand how grandparents will assert their interest as potential custodians if intervention is not allowed. In addition, grandparent visitation survives termination proceedings if established prior to termination and in the best interests of the child. Pursuant to Baker v. Webb, grandparents have a right to intervene in adoption proceedings. COA held that “[t]he right of grandparents to intervene in an adoption proceeding, recognized in Baker, would be impaired or impeded if the grandparents were denied the right to intervene in the custody determination subsequent to a termination proceeding because the stability of the child as well as the child-grandparent relationship, factors to be considered in a subsequent adoption proceeding, may likely be adversely affected by the custody order that follows termination but precedes adoption.” Therefore, grandparents have a right to intervene in the custody determination under KRS 625.100. REVERSED AND REMANDED
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

A.P. v. Commonwealth, 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

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

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

J.M.R. v. Commonwealth___S.W.3d___ (Ky. App. 2007)
Mother appealed the termination of her parental rights to her two infant children. Mother alleged TC made three errors. First, she alleged it was error to permit the children’s therapists to testify about statements made to them by the children about the abuse. CA held that the testimony of the therapist was admissible under KRE 803(4). CA opined that the statements were made to the therapist so that they could determine what happened and determine what treatment was necessary. Therefore, the statements were made for the purpose of receiving medical treatment.
Next, Mother argued that not allowing the children to testify violated her constitutional rights. CA held that it was not error to refuse to allow the children to testify. CA reasoned that the children were questioned by the court in camera with Mother’s counsel present. Therefore, she had been afforded an opportunity to question the children. TC did not error in its finding that it would not be in the best interest of the children to make them testify.
Finally, Mother alleged that the TC erred in holding that she had failed to provide for the essential needs of her children. CA opined that Mother’s failure to pay court ordered child support, while the children were in state custody, and the fact that she still resided with the children’s stepfather, and abuser, who paid all of the household bills was substantial evidence to prove she had failed to provide for their essential needs. Furthermore, CA opined that even if it was error it was harmless because her rights would have been terminated based on the abuse.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Discretionary Review Granted In Reversal Of Termination Of Parental Rights Case

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

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

M.B. v. D.W. ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007.

TC granted a petition for adoption, which thereby terminated Father’s parental rights. The TC held, pursuant to statutory authority, that termination was appropriate because the child had suffered neglect and emotional harm. TC reasoned that the harm resulted from father’s failure to appropriately prepare the child, mentally, for the effects of his gender reassignment surgery. Due to the harm inflicted on the child it was in her best interest to grant the petition for adoption. Additionally, the TC held that Father had failed to financially support the child because he had not been paying his share of her insurance and medical expenses.
CA held, TC’s decision was supported by substantial evidence. Therefore, the court's decision to terminate parental rights and grant the adoption was not clearly erroneous. CA also opined that Father failed to preserve his argument that less drastic measures should have been taken. Regardless, CA reasoned that TC had made an implied finding that there were no less drastic measures. Finally, CA stated that it was not holding that gender reassignment is itself grounds for termination of parental rights. Instead, the CA stated that it was upholding TC’s decision because all of the statutory elements were meet and supported by substantial evidence.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

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

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

R.V. v. Commonwealth of KY

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

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

T.G. V. COMMONWEALTH

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

T.G. v. Com. –S.W.3d—(Ky. App. 2007)

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

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

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

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

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

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

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

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

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

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

A.D.B. v. Com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rights of Unmarried Father To Child Placed For Adoption

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

Termination of Parental Rights Reversed Even Though Parent Did Not Object

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