Kentucky sets forth the grounds for a court involuntarily terminating parental rights in KRS 625.090. The statute basically gives the essential elements, all of which much be proved by the heightened standard of “clear and convincing” evidence: the child has been abused or neglected (and there are three wasy to show this) and that it is in the best interest of the child for the parental rights to be terminated (interestingly, the likelihood of the child actually finding a permanent home through adoption is not supposed to be considered in determining “best interes”, but that is a topic for another day).
After laying out those two essential elements, the statute provides a laundry list of other things, one of which must also be found to be true. Supposedly, this list is to put the breaks on a little to keep parental rights from being terminated too easily. Unfortunately, built into that list is one item that is not ulitmately within the parent’s control and is a strict liability type provision. In other words, it is either true or not and there is no consideration for intent or mitigating circumstances. The provision is KRS 625.090(2)(j). Where the legislative intent appears to be to put on the brakes, provision (j) disables those breaks and leaves parents careening toward a crash.
How this plays out is if the Cabinet for Health & Family Services worker and surpervisor wishes to do an involuntary termination of parental rights with a parent, but that parent is basically doing fair, they stall the case. Most of the families they deal with are lower income and less educated with multiple challenges facing them. Even in families with great resources, one can find issues and challenges pop up. It is even easier to find such issues when the families are also facing stressors related to socio-economic status or who are less sophisticated in dealing with government agencies. So, the Cabinet highlights those challenges. For example, the parents long term friends may have brushes with the law or be involved in drug use or alcohol abuse. Even if the parent does not have those challenges, then the whole guilt by association sets in and the Cabinet demands they give up their friends creating isolation that is not readily filled (by the way, from my experience some workers partake of illegal substances or drink to excess at times and there is no mandatory employee testing for Kentucky governmental employees, but that is also a topic for another day). Perhaps the worker is concerned about an unsafe neighborhood and they demand the parent move to a nicer one. Or, perhaps the parent has a criminal history of minor, but frequent criminal incidences and they tell the parent they want to see a pattern of stability over time – let’s say twelve (12) months. The list can go on, but before anyone realizes it, they are up against that 15 of the last 22 months from (j).
So, you say, what’s the big deal? Well, if one examines all of the other items (a – i) in list, only one of which needs to be proven, (j) stands alone. The other items all require a showing that the parent has done something horrible or continues to really mess up and is not caring for the child. However, (j) is a strict timeline and the parent could actually be doing okay during that time, but (j) still gets them. The other items show some kind of mental status or intent on the part of the parents: they are either negligent which is requires a state of mind (mens rea)for latin geeks) or act willfully. Item (g) even expressly says that the failure in it must be for reasons “other than poverty alone.” Bu, item (j) requires no state of mind whatsoever; it just happens. In all the other items (a – j), the parent has some level of control over whether the even comes to pass whereas in (j), unless there is an active judge, they are at the mercy of the Cabinet.
So, this parent who is not messing up royally, but that is also not blowing people away with their progress, loses all the safequards that the statute is supposed to afford because the Cabinet structured the case that way. The Cabinet worker can simply drag the case along, picking at issues enough justify their “cautious” approach and then suddenly say, “Oh, we’re going to terminate your parental rights – see ya’ in court and have a nice day.”
The only way to combat this stall tactic is to be active in getting the case before the court on a regular basis. Insist on having reviews every three or four months and get the progress, or lack thereof, on the record. For attorney’s representing parents, it does mean more work and it does mean the County Attorney, the Cabinet, and maybe the Judge being frustrated at filling the dockets up. For parents, it means speaking up both to the court and to your attorney. For everyone, it means remaining focused on confronting legitimate issues head on and in a timely manner. Otherwise, this loophole in the involuntary termination of parental rights statute can ensnare the unwary and once again, where Constitutional protections should be at their height, they are found at their lowest ebb.