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

involves substantial rights equal to those which are affected in a decision terminating parental rights.
CA agreed with Mother, finding that Section 115 of the Constitution has only two specific exceptions to the “appeal as a matter of right:” 1) the Commonwealth may not appeal from an acquittal and 2) the General Assembly has the power to prohibit a party from appealing the dissolution portion of a decree dissolving marriage. Therefore, CA held, KRS 625.110 is unconstitutional to the extent that it prohibits the right of appeal from the denial of a petition to terminate parental rights, and Mother had standing to bring her appeal.
Mother contended that the trial court’s finding of facts made from the bench contradicted the trial court’s written findings of fact, and that the trial court’s written findings made so sense under the statutory scheme. To terminate parental rights, KRS 625.090 requires a finding, by clear and convincing evidence, 1) that the child is abused or neglected as defined in KRS 600.020(1), 2) that termination would be in the best interest of the child and 3) that one or more of the factors found in KRS 625.090(2) (a-j) exists. Despite Mother’s claim that Father’s fifteen month absence from child’s life and failure to pay child support constituted failure to provide essential care, food and clothing and abandonment, thereby meeting the definition of abuse and/or neglect, the trial court in this case found that Son was not an abused or neglected child. CA held that the evidence did not clearly compel a contrary finding. CA also noted that Mother did not present evidence that termination of Father’s rights would be in Son’s best interest. Thus, even if the trial court made a finding of abuse or neglect, there still would have been insufficient evidence for an involuntary termination of Father’s parental rights.