Denial of Petition to Terminate Parental Rights Affirmed – Published Opinion from Ky. Court of Appeals

Com., Cabinet for Health and Family Services v. J.M.A.

Jefferson Circuit Court

Alleging abuse and neglect of Older Daughter, the Cabinet for Health and Family Services (“the Cabinet”) filed a dependency, neglect, and abuse (“DNA”) petition against Mother. Family Court placed Older Daughter in Maternal Grandmother’s custody, ordering Mother to complete several treatments, maintain sobriety, and refrain from domestic violence. Mother was permitted supervised visitation. At the adjudication hearing, Mother stipulated to abuse or neglect of Older Daughter. At the dispositional hearing, Family Court placed Older Child in Maternal Grandmother’s permanent custody, and the Cabinet closed it case.

Thereafter, and after Mother’s incarceration for various drug convictions, Maternal Grandmother died. Despite a court order that she only have supervised visits with Older Child, Mother cared for Older Child for approximately 8 months. Mother also allowed Father to have visits with child, despite a no-contact order. During one visit, Father was arrested in Indiana with Older Child in the car. The Cabinet filed a second DNA petition against Mother, alleging abuse or neglect and that Mother continued to abuse substances. Older Daughter was placed in the Cabinet’s custody and has remained in the Cabinet’s custody since.

Younger Daughter was subsequently born to Mother and Father while Mother was incarcerated. She tested positive for heroin at birth and was placed in the Cabinet’s emergency custody at two days old. Following a DNA petition against Mother, the Cabinet received temporary custody of Younger Child and has retained custody since.

Following Mother’s release from jail, her whereabouts were unknown for approximately a year. During this period, Mother missed several court dates relating to the DNA petitions. In the interim, Family Court, at a dispositional hearing, found both children to be neglected or abused and gave the Cabinet custody of the children.

A few months later, Mother communicated with the Cabinet that she began to receive methadone treatment and wanted to engage in reunification. The Cabinet began to allow Mother supervised visitation with the children after several clean drug screens and signing another prevention plan. Simultaneously, the Cabinet petitioned to terminate Mother’s parental rights.

Nearly a year later, Mother was allowed unsupervised visitation until she tested positive for drugs. Trial in the termination of parental rights matter began a few months after and concluded the next year at a hearing which was cut short after three hours due to time constraints. Family Court granted the Cabinet’s petition and terminated Mother’s parental rights. Mother filed a motion to alter, amend or vacate alleging that she was not afforded adequate time to present her testimony and proof. The Court vacated its order and set another trial date to allow Mother to complete her evidence. Family Court then denied the Cabinet’s petition. The Cabinet appealed.

The Kentucky Court of Appeals affirmed Family Court, holding that when a court decides not to terminate parental rights, only substantial evidence is needed to avoid reversal, and the testimony was not insufficient to support Family Court’s determination. In order to terminate a parent’s rights, the Court must make those findings required by KRS 625.090 under a clear and convincing standard. Otherwise, substantial evidence is all that is required. Substantial evidence supported Family Court’s findings that the children had a relationship with Mother, that Mother had demonstrated a creditable effort in her work toward sobriety, and that Mother would continue in her attempts to reunify with her children, including evidence from Mother and counselors who treated Mother and the children.

Digested by Nathan R. Hardymon

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