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.
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.
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