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