Kentucky Court of Appeals reverses and remands Jefferson County Family Court’s termination of parental rights due to lack of cited evidence showing termination was clearly and convincingly in the child’s best interest

D.W. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; N.W.W., a child; and T.A., natural mother, Case No. 2021-CA-1011-ME

There are two issues addressed in the present appeal: (1) whether counsel e-filing the notice of appeal for the TPR (termination of parental rights) case in a related DNA (dependency, neglect, abuse) case was sufficient to meet procedural rules; and (2) whether substantial evidence existed in the family court case to support the court’s termination of D.W.’s parental rights of N.W. as being in N.W.’s best interest.

First, D.W.’s counsel for this appeal filed a notice of appeal in a related DNA case for the child, rather than in the TPR case.  TPR cases are sealed cases following entry of an order; therefore, e-filing is not available for completed TPR cases per Kentucky Supreme Court Amended Administrative Order 2018-11 Section 9(3) and said filings much be conventionally filed.  D.W.’s counsel attempted to make this filing within ten (10) minutes of the filing deadline, only to encounter this procedural trap.  D.W.’s counsel then filed the notice of appeal in a related DNA case.  The Court of Appeals determined there are ambiguities in the e-filing rules, and therefore determined to proceed with the merits of the appeal.

Second, the Court analyzed the extent of substantial evidence the family court utilized in making its decision to terminate D.W.’s parental rights for N.W.  There is a three-part test that must be satisfied by clear and convincing evidence: (1) the child must be adjudged neglected or abused; (2) termination of the parent’s rights must be in the child’s best interest; and (3) one of the conditions outlined in the statute regarding grounds for involuntary termination of parental rights must be met.

D.W. does not disagree that (1) and (3) above were properly established at the family court level.  However, D.W. argues the Cabinet “did not show – by clear and convincing evidence – that termination of his parental rights is in N.W.’s best interest pursuant to KRS 625.090(1)(c).”  The Court agreed with this argument, finding there is insufficient evidence in the family court case to show “that D.W.’s convictions are directly related to the 2018 adjudication of educational neglect; and furthermore, the court specifically found that it could not conclude that D.W. had abandoned the child.”  Moreover, the Court discussed the extent of D.W.’s incarceration as it relates to abandonment, compelling termination of his parental rights.  Ultimately, the Court held there was not a basis to show that termination of D.W.’s parental rights was in N.W.’s best interest.

Judge Goodwine dissented on both issues.  First, Judge Goodwine noted the e-filing rules are not ambiguous and the majority’s opinion invites other counsel to rely on the case as precedent in not following the bright line rules for e-filing.  Second, Judge Goodwine opined the family court “painstakingly went through the evidence presented at trial and the statutory requirements of KRS Chapter 625 and methodically detailed her findings and conclusions. . .,” thereby concluding the family court met the necessary standard to terminate D.W.’s parental rights.

Caitlin P. Kidd, Esq.

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