D.G.R. v. Com, Ky S. Ct, Termination of Parental Rights

D.G.R. v. Com., 2010-SC-000100-DGE

Published:   Reversing

County: Caldwell

Parents appealed CA order remanding to the trial court for an order terminating the mother and father’s parental rights.


A.T.H was twelve at the time of the termination hearing.  He had been diagnosed with autistic disorder, attention deficit hyperactivity disorder, and possible bipolar disorder.  D.G.R. and T.B.H. are the child’s parents, who never married but lived together. Three abuse petitions were filed by the Cabinet over a four year period.  The Cabinet then filed a petition to terminate the mother and father’s parental rights.  TC found by clear and convincing evidence that the child had been abused and neglected and that the child had been in foster care for a total of forty-three months.  However, TC denied the Cabinet’s petition on the basis that termination was not in the child’s best interests.  Cabinet appealed.  CA reversed and remanded to TC for an order terminating the mother and father’s parental rights, holding that all of the factors in KRS 625.090(3) weighed in favor of termination being in the child’s best interests.  CA found that there was overwhelming evidence that the parents, on more than one occasion, either abused the child or allowed the child to be abused, the parents were guilty of neglect regarding a sexual disease the child presumable caught from the father, the parents used corporal punishment on the child, the child was not appropriately stimulated, the house was unsanitary, the parents lacked empathy toward the child, and the parents were unable and unwilling to provide basic needs for the child, much less provide for his special needs.


SC noted that the evidence presented offered two starkly different pictures of the child’s care from parents in the home.  In addition to the evidence noted by CA, the Cabinet also offered evidence of the Child’s marked improvement in behavior while at Our Lady of Peace and the testimony of witnesses regarding the parents’ inability to meet the Child’s needs, failure to accept responsibility for his problems, and refusal to change their parenting behaviors.  The parents’ witnesses, on the other hand, testified that the parents had a good relationship with the child, that mother worked to improve her parenting skills, and that the parents provided a clean and neat home for the child. 

SC noted that the termination statute, KRS 625.090, establishes different standards of proof for the Cabinet and the parents whose rights are to be terminated when the court considers the best interest of a child. While the Cabinet must prove the necessary statutory allegations by clear and convincing evidence in order for TC to terminate parental rights, KRS 625.090(1) and (2) (requiring a finding that termination is in best interests of child), the parents must only present proof by a preponderance of the evidence that the child will not be abused or neglected in the future in order to allow TC to exercise its discretion not to terminate, KRS 625.090(5).

As part of determining the best interest of the child and whether sufficient grounds for termination existed, TC was further required to consider several other statutory factors in KRS 625.090(3), including any mental illness of the parents, the reasonable efforts of the Cabinet to reunify the family, the efforts of the parents to return the child to the home, the state of the child and payment of support by the parents while the child was in the Cabinet's custody. SC held that these are factors to be considered but are not a checklist; they do not dictate a result, as TC must make an overall finding of the best interests of the child. 

SC held that TC was entitled to rely on the witnesses it found most convincing, and TC’s findings indicated that it gave significant weight to the parents' witnesses. And even if TC found clear and convincing grounds to terminate, TC could still shift from considering that proof and consider whether the parents had established, by a preponderance of the evidence, that the child would not continue to be abused or neglected, and exercise its discretion not to terminate. KRS 625.090(5). TC is never required to terminate under the statute.

SC could not say that TC was clearly erroneous in choosing to believe the witnesses offered by the parents, nor that their testimony was insufficient to support TC's determination.  Additionally, there was not enough evidence to terminate mother’s parental rights. Termination must be decided as to each parent separately.

CA reversed and TC’s judgment denying Petition to terminate parental rights of parents reinstated. 


“As is appropriate, this Court considers termination of parental rights a serious matter, and we accepted discretionary review to insure that termination of the parents' rights followed due process. Nevertheless, after careful review of the record below, it is clear that the trial court failed to apply the law correctly - a mistake the majority repeats. These errors of law leave a defenseless, disabled young boy vulnerable to the parents who have abused and neglected him, and prevent the Cabinet from attempting to find this child a permanent, loving and stable therapeutic adoptive home. … The majority excuses all of the above grievous errors by relying on KRS 625.090(5). Although this provision gives the trial court discretion to refrain from terminating parental rights where the parents prove, by a preponderance of the evidence, that the child will not continue to be abused or neglected in the future, this analysis is not a substitute for the best-interest finding that the trial court is REQUIRED to make under KRS 625.090(3).

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates