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

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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.

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