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D.L.B. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

January 3, 2014

D.L.B., Appellant/Cross-Appellee
CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; J.S.; and L.J.S., By and Through Appointed Guardian Ad Litem, Hon. Donna M. Bloemer, Appellees/Cross-Appellants.

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Lisa M. Wells, Covington, KY, for Appellant/Cross-Appellee.

Kelly Sensel Wiley, Covington, KY, for Appellees/Cross-Appellants.




D.L.B. (" mother" ) appeals, and the Cabinet for Health and Family Services cross-appeals, from the Kenton Circuit Court judgment which involuntarily terminated mother's parental rights with respect to her four children. After review of the record and applicable law, we affirm in part, reverse in part, and remand. Specifically, we affirm the portion of the family court's judgment which involuntarily terminated mother's parental rights, but reverse the portion of the judgment which voluntarily terminated J.S.'s (" father" ) parental rights and dismissed him from the involuntary termination action. On remand, the family court is directed to conduct an involuntary termination hearing with respect to father's parental rights or otherwise comply with the statutory procedures governing voluntary termination of parental rights.

This matter came before the family court upon the Cabinet's petition for involuntary termination of mother's and father's parental rights to their four children. At the outset of the termination hearing, counsel for father represented to the court that counsel had filed " voluntaries" on behalf of father and, as a result, father was not present at the hearing. The Cabinet objected to the voluntary termination of father's parental rights, arguing that it wished to prove its case against

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father in the involuntary termination action and to make a record for purposes of any future proceedings involving father, concerning these children or any other children. The family court overruled the Cabinet's objection, finding that father had executed an AOC [1] Form 292 [2] indicating that he wished to voluntarily terminate his parental rights. The court then dismissed father and his counsel from further proceedings. Following a two-day hearing, the family court determined that mother's parental rights should be involuntarily terminated and entered a judgment accordingly. This appeal and cross-appeal followed.

On appeal, mother contends that the grounds for termination, enumerated in KRS [3] 625.090, were not proven and thus the family court improperly terminated her parental rights. We disagree.

Although no evidence was introduced to establish that the children had been abused by their parents, which is a basis for termination under KRS 625.090(1), the evidence did show that the children had been neglected, which is also a basis for termination.[4] This finding, coupled with the family court's conclusion that termination would be in the children's best interests, KRS 625.090(1), and that mother had failed to provide essential parental care and protection, KRS 625.090(2)(e), and was incapable of providing those necessities, KRS 625.090(2)(g), was sufficient to support the court's decision to involuntarily terminate mother's parental rights. Mother's claim that the grounds for termination were not proven is without merit.

Proceeding to the Cabinet's claims on cross-appeal, the Cabinet first argues that the family court's conversion of the involuntary termination action into a voluntary termination action, and concurrent dismissal of father from the proceedings, was an abuse of its discretion. We agree.

A parent seeking voluntary termination of parental rights must file a verified petition in the circuit court. KRS 625.040(2). The petition shall contain certain information including, but not limited to, the " [n]ame and address of the person or of the cabinet or authorized agency to which parental rights are sought to be transferred[.]" KRS 625.040(2)(e). The petition must also contain " [a] statement that the person, cabinet, or authorized agency to whom custody is to be given has facilities available, [and] is willing to receive the custody of the child ..." KRS 625.040(2)(f). The statute permits counsel for the parent to file the petition so long as the Appearance-Waiver and Consent-to-Adopt forms are signed by the parent, counsel, and Cabinet pursuant to KRS 625.041(3)-(4). KRS 625.040(1).

In this case, father failed to comply with the statutory procedure for voluntarily terminating his parental rights. He did not file a verified petition with the circuit court, and the Cabinet's signature was absent from the Appearance-Waiver and Consent forms he executed. Without the filing of a petition, and the Cabinet's signature on the aforementioned ...

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