Friday, December 22, 2006

KY Inspector General to investigate 'every aspect' of custody termination process

Parental rights get boost in court
Appeals decision could impact inquiry into adoptions
Honeycutt-Spears, Valarie. Lexington Herald-Leader, May 30, 2006, pg. B1.

The Kentucky Court of Appeals says that a family court judge was wrong to terminate the rights of a mother of three children after a slightly more than 15-minute hearing in which the state offered no proof of abuse or neglect.

The decision, issued earlier this month, could have ramifications in an ongoing state investigation of so-called "quick-trigger" adoptions and improper terminations of parental rights, according to a leading child advocate.

"It's a shot in the arm for those of us who think that taking away a child is the ultimate thing a court can do," said David Richart, head of the Louisville-based National Institute on Families and Children, co-author of a report that has led to an investigation of the termination process.

The May 5 ruling is a departure from the majority of those made in the last 10 years by the state Court of Appeals. Records show that, in the majority of cases, terminations of parental rights have been upheld.

Before the Cabinet for Health and Family Services can arrange a state adoption, a Family Court judge must grant the Cabinet's request to terminate parental rights. Kentucky's inspector general is investigating every aspect of that process in the wake of allegations that the Cabinet sometimes makes improper decisions in an attempt to meet a federal mandate for placing more foster children in adoptive homes.

In the Hardin case, Cabinet for Health and Family Services officials had removed the children from their mother and wanted to terminate her parental rights because of what they described as educational and medical neglect.

But the three-member Court of Appeals panel said in its unanimous opinion that the Cabinet had acted in "haste" and had offered no proof that the problems the children had were the mother's fault. The opinion does not identify the family by name, only by initials.

The mother's attorney, Robert Bishop of Elizabethtown, said the ruling "reaffirms in bold terms" that the Cabinet must provide clear and convincing evidence that parental rights cannot be terminated because of poverty alone.

The Cabinet took custody of the children in November 2003 and in September 2004 filed a petition to terminate the mother's rights.

According to the Court of Appeals opinion, the Cabinet called only one witness, state social worker Carlonda Fields, who said the Cabinet took the children because of both educational and medical neglect. But the opinion said the medical neglect only applied to the youngest child, now 9, who has spina bifida and requires catheterization. Fields told the family court judge that the oldest child, now 13, placed a catheter in the younger sibling.

As to the educational neglect, Fields testified that the Cabinet assumed custody of a third child, a son, because he read on a kindergarten level even though he was 11 at the time.

The opinion stated that, although the Cabinet said the child with spina bifida missed some doctors' appointments, there was no evidence in the record the panel reviewed that the other two children were medically neglected. And the opinion said, "there was no evidence offered to suggest why the appointments were missed or what harm missing those appointments caused the child."

"And although permitting one minor child to catheterize another minor child is troublesome to us," the opinion said, "there is no evidence to show the harmful effects or that the mother knew of or condoned the catheterization."

The social worker also testified "without elaboration" that the children missed many days of school because the mother said she could not get up and get them to school, the opinion said.

The Cabinet offered no proof, such as school records showing how many days were missed, the opinion said. The opinion noted that young boys often have reading difficulties and that the Cabinet did not prove that the son's reading difficulties were due to his mother's actions.

With the admonition that "the state's efforts to sever permanently the relationship between parent and child is a serious affair" the case was sent back to Hardin County with orders that further proceedings should be consistent with the Court of Appeals opinion.

Wes Butler, the Cabinet's general counsel, said the Court of Appeals decision turned on the amount of evidence needed at trial, and on this issue the Cabinet does not plan to appeal. Butler said he could not discuss the case further because of confidentiality laws.

Bishop said a new date in family court hasn't been set yet and he's not sure how the ruling will immediately affect the mother's access to her children. But Bishop said the mother wants the children to be ultimately returned to her.


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