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Cabinet for Helath and Family Servs. v. K. H.

Supreme Court of Kentucky

February 20, 2014


Released for Publication March 13, 2014.

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[Copyrighted Material Omitted]

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COUNSEL FOR APPELLANT: G. Thomas Mercer, Erika Saylor, Sarah Mahan Steele.

COUNSEL FOR APPELLEE: Bethanni E. Forbush-Moss.

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Appellee, K.H., Sr., a resident of Cincinnati, Ohio, is the natural parent of Kenny,[1] a thirteen-year-old boy as of the date of this opinion. Kenny, along with his three half siblings, lived in Louisville, Kentucky with their biological mother. On June 24, 2009, the Cabinet for Health and Family Services (" Cabinet" ) conducted a " routine home visit" after discovering that the children's mother had been arrested for public intoxication and disorderly conduct. The home visit disclosed that the four children had been unsupervised for an extended length of time. Consequently, the Cabinet obtained an Emergency Custody Order removing Kenny and his siblings from their mother's care.[2] On June 26, 2009, the Cabinet brought forth a Dependency, Neglect and Abuse action (" DNA" ) in the Jefferson Family Court. A temporary removal hearing was held three days later. Despite being notified, Appellee did not attend the hearing. After determining that there were no relatives who could care for Kenny, the family court awarded custody to the Cabinet.

Several pretrial hearings in the DNA action were held in 2009, only one of which Appellee attended. On August 19, 2009, Appellee was appointed counsel. On October 7, 2009, Kenny's mother stipulated that she abused or neglected her children, including Kenny. A dispositional hearing was held on November 4, 2009, during which time the family court committed Kenny to the Cabinet. The family court specifically found that there were no less restrictive alternatives to returning Kenny to his mother because the " child has extensive emotional, mental/psychological needs which mother cannot meet." In addition, visitation with Kenny was limited to " supervised/therapeutic visits."

On April 19, 2010, the family court reconsidered its previous visitation order and denied a modification. In formulating its conclusion, the family court discussed at length Kenny's severe emotional trauma and significant developmental delays. Shortly after being placed in a foster home, for example, Kenny's foster parents reported that he displayed aggression and

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inappropriate sexual behavior towards others. Of particular concern, Kenny threatened to commit suicide. As a result, Kenny endured a five-week, inpatient hospitalization for psychiatric treatment at Wellstone Psychiatric Hospital. As the family court summarized, Kenny was " diagnosed with attachment disorder, RAD (Reactive Attachment Disorder), sexual abuse, post-traumatic stress disorder (PTSD), ADHD (Attention Deficit Hyperactivity Disorder), and neglect[.]" After being released from Wellstone, Kenny was placed in a therapeutic foster home as an only child.

On June 23, 2010, the Cabinet held a facilitated staff meeting to discuss Kenny's progress and goals. Appellee appeared at the meeting. The staffing report stated that Appellee " was at present unable and unwilling to take custody of child, resides in Cincinnati and has no contact with the child." The Cabinet also noted that, since his placement in the therapeutic foster home, Kenny had benefited from counseling and a school formulated Individualized Education Plan (" IEP" ). Kenny's mental health had improved, along with his grades and general disposition. In addition, Kenny's foster parents expressed interest in adopting him. For these reasons, the Cabinet determined that the goal of permanency would be changed from reunification to adoption.

Due to the Cabinet's changed permanency goal,. Appellee and Kenny's mother filed separate motions to obtain custody of Kenny. On June 29, 2010, a hearing was held to discuss the motions. The family court denied both motions, stating the following as it specifically pertained to Appellee:

[Appellee] acknowledged he did not come to court for pretrial hearing or at least 7 other dates. He had car problems, etc. Last saw [Kenny] in December '09. Tried to call attorney 6 times with no call backs. Motion for return is denied. Father has no understanding of [Kenny's] behavioral issues or need for treatment.

On April 12, 2011, the Cabinet filed a petition to involuntarily terminate the parental rights (" TPR" ) of Appellee and Kenny's mother. The TPR action was tried before the family court on February 10, 2012. Sara Morrison, Kenny's case worker, was the Cabinet's sole witness. Ms. Morrison inherited the case from her predecessor, Cassandra Taylor, in November of 2010. Ms. Morrison's testimony indicated that a case plan was formulated every six months for a total of six case plans. Appellee was not present at any of the case plan meetings. However, Ms. Morrison testified that she corresponded with Appellee through numerous letters and telephone conversations to ensure that he was aware of the case plan goals and tasks. As of January 2011, Appellee's case plan required him to pay child support and provide proof of such payments, attend counseling with the child, and contact the Cabinet in order for it to assess what services Appellee would benefit from, if any.

In July of 2011, the Cabinet modified Kenny's case plan due to Appellee's interest in obtaining custody. Ms. Morrison testified that, in addition to the previous requirements of the January 2011 case plan, Appellee was also required to obtain a substance abuse evaluation, maintain contact with the Cabinet twice per month, and initiate supervised phone conversations with Kenny twice per week. Appellee was also to provide Ms. Morrison with proof of a safe and stable home environment. Ms. Morrison informed Appellee of specific documentation that would satisfy the Cabinet's request, including a certified copy of Appellee's criminal background check, a letter from his employer stating

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his wages and the length of his continued employment, proof of home ownership or lease, and proof of payment of utilities. Ms. Morrison testified that, with the exception of the occasional phone call to Kenny, Appellee ...

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