T.N.H. v. J.L.H., Termination of Parental Rights When Parent Is A Minor

UPDATED 11/08: The Kentucky Supreme Court has accepted discretionary review of this case. T.N.H. V. J.L.H., ___S.W.2d___ (Ky. App. 2007)

UPDATED 11/08: The Kentucky Supreme Court has accepted discretionary review of this case. T.N.H. V. J.L.H., ___S.W.2d___ (Ky. App. 2007)

Mom appealed TC’s judgment terminating her parental rights to child, and Cabinet appealed TC’s order for Cabinet to pay mother’s appellate attorney fees and her filing fees.

At the age of fourteen, Mom gave birth to Son, and, shortly after the birth, Cabinet filed Petition for dependency and neglect alleging that Mom was neglecting Son. Mom and Son were initially placed in custody of maternal aunt, but one month later, both Mom and Son were voluntarily committed to Cabinet’s custody. Mom and Son were placed in a foster home. However, after Mom was disruptive at the home, ran away, did not participate in care of Son, and was dismissed from school, she was placed in the first of a series of homes for troubled teens. At each of these homes, Mom had periods of positive behavior, such as participation in counseling and parenting classes, high school classes, and part-time employment; and negative behavior, such as instigating fights and prolonged absences from the homes, during which she would have contact with an abusive boyfriend. One and a half years after the initial Petition was filed, the Cabinet filed a Petition to terminate Mom’s rights to Son, and foster parents were prepared to adopt Son. GALs were appointed for both Mom and Son. The Cabinet called only one witness, the social worker responsible for the family’s case. He testified that Mom was detached from Son and had not been fully cooperative in parenting programs. He admitted that Mom had made progress in developing parenting skills since the initial petition was filed, but that that progress was insufficient for her to act as Son’s parent. The Cabinet presented no psychological assessments, no evidence concerning Mom’s mental capacity, and no evidence regarding the likelihood that Mom might develop necessary parenting skills. Mom’s aunt testified on her behalf that Mom had made progress and was capable of caring for Son. TC terminated Mom’s parental rights. After TC denied Mom’s motion to alter, amend, or vacate, Mom requested TC to order Cabinet to pay her appellate filing fees and attorney fees. After several cross-motions, TC ultimately held Cabinet in contempt for failing to pay appellate filing fee, appointed appellate counsel for Mom and ordered Cabinet to pay Mom’s appellate counsel’s fee.

Standard of review in termination of parental rights cases is the clearly erroneous standard based upon clear and convincing evidence. In addition to several claims of error based on procedural flaws, rejected by CA, Mom also claimed that because the filing of the Petition was not in Mom’s best interests, the Cabinet breached its duty to her. CA found that where both parent and child are in Cabinet’s custody and the Cabinet seeks termination of the parent’s rights, there should be a statutory procedure for appointment of an independent person to protect the parent’s best interests, and that it would be appropriate for the legislature to take up the matter. However, CA held that the more problematic issue in this case was the Cabinet’s failure to meet its burden of proof, which was Mom’s last contention of error. CA held that, “It is well established in our law and recognized in society in general that juveniles are often plagued by their inexperience, poor decision-making skills, and lack of appreciation for the consequences of their actions. As a result, a juvenile is not held to the same standards of conduct as an adult or to the same punishments. Yet, in this case, we are convinced that mother’s rights were terminated based solely on her past conduct as a juvenile with no consideration as to her future parenting abilities. Just as incarceration alone cannot serve as the basis for termination, nor can the young age of the parent, by itself, be sufficient. In cases such as this, where the parent’s age and emotional immaturity undeniably contribute to her lack of parenting skills, we believe that termination must not be based solely on the parent’s prior behavior without some objective assessment of her psychological and mental capacity to develop the required abilities to effectively parent a child.” In response to the Cabinet’s argument that termination was founded on Mom’s abandonment of Son, CA found that because Mom had relinquished custody of Son to the Cabinet when he was three months old and since that time had never had custody of the child, there was no clear and convincing evidence of abandonment. Cabinet’s remaining ground for termination was that Son had been in foster care under the responsibility of the Cabinet for fifteen of the most recent twenty-two months. CA held that although this fact was not in dispute, it was attributable to mother’s age rather than any action on her part. CA expressed concern that if the time of commitment can serve as a basis for termination in cases such as this, young parents would be discouraged from committing their children to the Cabinet, though this may be in his or her child’s best interests for the short term. CA suggested that patience with the parent/child was required in such instances so that the state does not prematurely terminate the parent’s rights. CA recommended that, in the future, in similar cases, the Cabinet should present TC with expert testimony as to the likelihood that when the teen reaches adulthood, the parent would not be able to effectively parent the child. Termination judgment vacated.

CA agreed with the Cabinet that the award of appellate filing and attorney fees to Mom constituted error and reversed this Order. By statute, the maximum award of $500 serves as the cap on attorney fees, whether the services are rendered at trial, or on appeal, or both. KRS 610.060(4) specifically states that the “fact that a child is committed to a state agency shall not be cause for the court to order that agency to pay for counsel.” There is no contrary provision for wards in termination proceedings. CA held that since $500 is the maximum that could be awarded to appointed counsel and, since that was exhausted at the trial level, TC erred when it ordered the Cabinet to pay mother’s appellate attorney fees. TC also ordered the Cabinet pay her appellate filing fee. CA found no statutory provision which permits the court to require that the Cabinet pay the fee. CA held that as an indigent, mother should have filed a motion to proceed in forma pauperis in the circuit court, and could have thus avoided the fee. Order awarding attorney fees and appellant filing fee vacated.

“Where the statutory factors under KRS 625.090 are otherwise met, unlike the majority, I am not of the opinion that if a parent’s negative behavior is attributable to her immaturity, that termination is premature where the parent is reasonably likely to develop necessary parenting skills with a reasonable time after entering adulthood. I appreciate the majority’s qualifier of “reasonableness” in reference to time limitations for a young parent to develop parenting skills. However, my view is that age does not excuse the mother from any of her parenting duties whatsoever for any time period, and especially does not excuse her for her overall failure to be a responsible parent for almost all of her son’s entire life.”

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

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