Ky Court of Appeals Family Law Published Opinion 12/24/14; Termination of Parental Rights; Indian Child Welfare Act; Standard of Proof

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E.S.L.C. v. Cabinet for Health and Family Services, et al

The mother appealed from a Family Court order terminating her parental rights. She argued that she was deprived of due process because she was not notified prior to the termination hearing that the family court would apply the KRS 625.090 clear and convincing evidence standard of proof, instead of the reasonable doubt standard required by the Indian Child Welfare Act. The child had Indian heritage, specifically the Lower Brule Sioux Tribe.

The Appellate Court affirmed the Family Court’s judgment terminating the parental rights of the mother. The Appellate Court held that the Indian Child Welfare Act did not apply due to the Existing Indian Family Doctrine. The mother and father abandoned the child shortly after birth and the Lower Brule Sioux Tribe communicated it could not assist the child and would not intervene, so the child was never raised in an Indian home or environment. Thus, the Indian Child Welfare Act did not apply. Additionally, the Appellate Court held the mother was not prejudiced because the Family Court applied a higher standard of proof and not a lower standard of proof. The mother did not challenge the Family Court’s findings, and the Appellate Court found no error with the Order terminating the mother’s parental rights.