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.