A routine practice by the Cabinet for Health and Family Services in Fayette County seems innocuous to the untrained eye, but it has a huge unintended consequence for certain parents. I wonder if this consequence is actually unintended, but absent confirmation, I’ll give them the benefit of the doubt. Although the Cabinet developed a standard Consent to Adopt and Waiver of Appearance form, in Fayette County (and perhaps others) parents who have decided to voluntarily terminate their parental rights to a child removed for neglect or abuse sign a Petition for Voluntary Termination. The petition has standard language, but each is written for the particular parent. This petition shows parental consent to the termination, but it does not waive the right of the parent to appear at the termination hearing.
Instead of filing the Petition for Voluntary Termination, the Cabinet attaches the signed document to an Involuntary Petition to Termination Parental Rights. This allows them to proceed with the termination even if the parent does not show for the hearing or is not served with the Involuntary Petition. The Consent to Adoption and Waiver of Appearance form would be just fine and allow for the same action, only it would be a Voluntary Termination rather than Involuntary.
This may seem like a meaningless distinction to most people and I am confident few, if any, of the parents signing these Petitions know of the ramification. Only after looking at KRS 625.090(2)(h) is there any concern for this practice. A voluntary termination is not held against a parent regardless of the reason; an involuntary termination counts against them for the rest of their lives:
(2) No termination of parental rights shall be ordered unless the Circuit Court also finds by clear and convincing evidence the existence of one (1) or more of the following grounds:
1. The parent’s parental rights to another child have been involuntarily terminated;
2. The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
3. The conditions or factors which were the basis for the previous termination finding have not been corrected;
Let’s say birth mom is addicted to cocaine and realizes she is in no shape to parent Child A. She does the caring and courageous things and voluntarily terminates her parental rights. Unbeknownst to her, though, the Cabinet attaches that voluntary to an involuntary petition. A few years later, she has cleaned up and has another child. Subsequent to a painful birth, she develops an addiction to pain pills and her baby is removed due to the addiction and history, even though Child B is healthy and shows no overt adverse effects indicative of neglect. Mom freaks out and relapses and uses cocaine one time which is caught on a drug screen.
Even though mom was clean for a couple of years, the Cabinet believes the necessary bells have been rung to satisfy the statute, gets approval to dispense with “reasonable efforts” to reunify Child B, and moves to involuntarily terminate the parental rights of mom to Child B. Because the judge has considerable discretion, he or she finds that: 1) there was a prior involuntary termination of parental rights (even though it was based on a voluntary consent), 2) Child B was born after Child A, and 3) mom’s relapse shows the conditions or factors for the previous removal have not been corrected. Even if none of the other items in KRS 625.090(2) have been proven, the termination regarding Child B will occur.
Sure, mom can appeal and argue that the conditions and factors of the previous removal had been corrected and that this was a new episode of drug abuse only tenuously related to the first, but there are major problems with this. First, mom cannot afford a lawyer to file the appeal and Kentucky does not give her the right to court appointed counsel on appeal. Second, the judge’s discretion is broad and incredibly unlikely to be overturned on appeal. One would be hard pressed to say the judge’s findings were “clearly erroneous”.
I am confident that no one from the Cabinet would sit down and explain to the birth mom that she is not only signing away her parental rights to Child A, but is also signing away a safeguard for the parental rights of any future children. Since the Voluntary Petition also waives the parent’s right to appointed counsel, they have no real way to know about this unintended consequence. Now, whether the Cabinet worker and Cabinet lawyer think about how much easier it will be for them to terminate the rights of any future children if they convert a voluntary into an involuntary without anyone being the wiser is anyone’s guess. Regardless, the practice amounts to preventings the parent from truly making a knowing and voluntary consent.