Termination of Parental Rights
DETERMINING WHO HAS RIGHTS TO THE CHILD
ALLEGED OR PUTATIVE FATHER
DISCLAIMER BY PUTATIVE OR LEGAL FATHER
IDENTITY OF FATHER UNKNOWN
VOLUNTARY TERMINATION OF PARENTAL RIGHTS
THE PETITION FOR VOLUNTARY TERMINATION OF PARENTAL RIGHTS
APPEARANCE WAIVER AND CONSENT TO ADOPT
INDIAN CHILD WELFARE ACT
APPOINTMENT OF GUARDIAN AD LITEM
THE ORDER OF JUDGMENT
RESPONSIBILITIES OF THE CABINET UPON RECEIPT OF NOTICE THAT A PETITION FOR
VOLUNTARY TERMINATION HAS BEEN FILED
INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
CONSIDERATION AND REVIEW OF GROUNDS FOR INVOLUNTARY TERMINATION OF
INITIATING THE REQUEST FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
FILING THE PETITION
NOTICE TO OFFICE OF COUNSEL OF PETITION FILING
THE WITNESS CONFERENCE
SUBPOENA OF WITNESSES
TERMINATION OF PARENTAL RIGHTS
Every child has the right to a permanent home which
properly provides for his physical, mental, and emotional well-being in
an environment free from abuse and neglect. When a childs birth or
legal parents are unable or unwilling to provide the child with such a
home and when adoption is determined to be the appropriate plan for the
child, termination of parental rights becomes necessary. In the case
of a child who has been in foster care under the responsibility of the
State for 15 of the most recent 22 months, or if a court of competent
jurisdiction has determined a child to be an abandoned infant or has
made a determination that the parent has committed murder of another
child of the parent, committed voluntary manslaughter of another child
of the parent, aided and abetted, attempted, conspired, or solicited to
commit such a murder or voluntary manslaughter, or committed a felony
assault that has resulted in serious bodily injury to the child of the
parent, the state shall file a petition to terminate the parental
rights of the childs parent (or, if such a petition has been filed
by another party, seek to be joined as a party to the petition).
Termination of parental rights, achieved either voluntarily or
involuntarily, completely severs the parents legal ties to the child
and transfers such legal rights, including the right to consent to the
childs adoption, to the Cabinet or other person or agency as the
court believes best qualified to receive the child.
Due to the complexity of the termination of parental
rights process, workers should familiarize themselves with this chapter
prior to initiating a termination of parental rights.
A pre-permanency conference with the Office of Counsel
and Family Services staff shall be held prior to making the decision to
pursue an involuntary termination of parental rights. Office of Counsel
attendance of this conference is not mandatory prior to voluntary
termination of parental rights actions.
This conference is not intended to meet the
requirements for an administrative review.
Prior to changing a childs permanency plan to
adoption, a pre-permanency planning conference shall be held to
determine the appropriateness of this plan. The Family Services Worker
shall contact the Office of the Counsel and request their attendance at
the meeting. The role of Office of the Counsel staff is to assess the
evidentiary needs of the case. If a consensus cannot be reached between
Office of the Counsel and field staff regarding the termination of
parental rights action, the Family Services Worker may request further
review through appropriate supervisory channels.
WHO HAS RIGHTS TO THE CHILD
The Cabinet, when pursuing termination of parental
rights, shall determine who has legal rights to the child.
To free a child for adoption, it is necessary to ensure
that the rights of all persons having a direct, legal relationship to the
child are terminated. Otherwise, the possibility exists, however remote,
that the parent could challenge and successfully invalidate the childs
Those persons having a legal relationship to the child
- The mother.
- The biological father. The biological father is the man who
impregnated the childs mother whether or not he was then married to
- The legal father. The legal father is the man married to the mother
during the time of the childs conception or birth. A child born ten
or fewer months after a divorce is presumed to be a child of the
marriage (KRS 406.011). The biological father and legal father may be
the same person, but this is not always the case. The legal father may
also be the man who has legally established paternity or has adopted
- The legal mother (in the case of adoption). Parents who have adopted
a child are the legal parents.
The Family Services Worker shall check appropriate
legal documents to determine who has rights to the child. Included are:
birth certificate, marriage license, divorce decrees, etc.
OR PUTATIVE FATHER
The alleged or putative father shall be made a party in
the same manner as any other party in termination of parental rights
action. Staff shall consider the definition of putative father as found in
Consideration is given as to whether the man alleged to
be the father of the child meets the following definitions:
- The mother, by affidavit, has voluntarily identified him as the
father (this includes AFDC records);
- He has acknowledged the child as his own;
- His name is affixed to the birth certificate of the child;
- He has contributed financially to the support of the child;
- He has married or is living with the mother of the child; or
- He has commenced a judicial proceeding to claim parental rights.
BY PUTATIVE OR LEGAL FATHER
If the putative or legal father of a child the Cabinet
plans to place for adoption does not acknowledge paternity, the Family
Services Worker shall make efforts to obtain his signature on the
Disclaimer of Paternity form.
The Family Services Worker shall attempt to have the
legal or putative father sign a Disclaimer of Paternity form if he does
not acknowledge paternity Unsuccessful efforts to obtain a signature of
the alleged father shall be documented.
OF FATHER UNKNOWN
When the identity of the father is unknown, the Family
Services Worker shall make efforts to secure information about the
identity of the father.
The Family Services Worker shall be responsible for
consulting with the mother and other relatives to attempt to determine
the identity of the father. The Family Services Worker shall be
responsible for checking public records to determine if a man has been
previously named as the childs father. Records to be checked include:
- The DSS case record;
- The childs record;
- AFDC records;
- Title IV-E records;
- Child support records;
- Birth certificate.
TERMINATION OF PARENTAL RIGHTS
The Cabinet for Families and Children may assist
parents who decide to voluntarily terminate their parental rights, if
staff determine that termination of parental rights is in the childs
best interest. Staff shall act in accordance with KRS 625.040 to 625.046.
Voluntary terminations from seriously emotionally
disturbed or mentally retarded parents shall not be accepted without
consultation from legal counsel.
The petition for voluntary termination of parental
rights shall be filed in the Circuit Court of the Judicial Circuit
where the petitioner or child resides or in the Circuit Court in the
county in which juvenile court actions, if any, concerning the child have
commenced. Pursuant to KRS 625.040, no petition may be filed prior to
three days after the birth of the child.
PETITION FOR VOLUNTARY TERMINATION OF PARENTAL RIGHTS
A parent who decides to voluntarily terminate parental
rights shall file a petition in circuit court. If the Family Services
Worker finds that termination of parental rights is in the best interest
of the child, assistance may be given in the preparation of the petition
upon approval by the Family Services Office Supervisor. In situations in
which an unmarried mother or father is a minor, it is necessary that the
minors parent or some other adult join in the petition as next friend.
Under no circumstances shall the Family Services Worker assume the role of
next friend in the signing of the petition. When the childs custody is
to be vested in the Cabinet upon the courts entry of the final order of
termination, under no circumstance shall the Family Services Worker sign
an Appearance Waiver and Consent to Adopt form. To avoid any potential for
conflict of interest and to assure that parents seeking to place their
child in the Cabinets legal custody for adoption planning have an
opportunity to be fully aware of and informed of the purpose of the
termination proceeding and consequence of the action, the parent shall be
required to appear before the circuit court for the termination hearing.
When only one parent has consented to a voluntary termination of parental
rights, consideration shall be given to other persons having rights to the
child pursuant to policy number 301. A plan shall be made regarding those
persons having parental rights to the child, prior to the Family Services
Worker assisting in filing a petition for voluntary termination.
The Office of the Counsel may assist in drafting and
filing a voluntary termination of parental rights action.
- Approval memo
When a voluntary petition for termination of parental rights is
being sought, the Family Services Worker prepares a summary requesting
approval to assist with the termination petition.
The following outlines information for this summary:
- Parent information-name, date of birth, county of residence;
- Child information-name, date of birth, sex, race;
- Legal residence of petitioner;
- List of persons having parental rights to child and the plan for
- Reasons for termination action;
- Brief summary of casework services given to the parent in reaching
the decision to plan for adoptive placement of the child. In case
situations involving a minor unmarried parent, the summary includes
casework services provided to the minors parents as well. The
summary requesting approval is signed and dated by the worker, and
is approved by the Family Services Office Supervisor.
The Family Services Worker shall complete the Petition for Voluntary
Termination, DSS-158, within two weeks of signing the approval memo.
2. Drafting the
(a) The petition, DSS-158, shall state the status of the parental
rights of any parent not named in the petition. If the other
parents rights have already been terminated, if the other parent
has filed a disclaimer of paternity or if the other parent is
deceased, the petition shall so state and the appropriate document is
filed with the petition (i.e., disclaimer, death certificate, judgment
of termination). If there is a parent who is not named in the petition
whose rights must be dealt with before the child can be placed for
adoption, the petition shall indicate that this parents rights
shall be handled through a separate legal action. Assistance in
drafting and filing a petition may be sought through appropriate
supervisory channels or Office of the Counsel. In those jurisdictions
that require an attorney file the voluntary termination of parental
rights petition, the worker may request the Office of the Counsel to
assist the court with the procedural aspects of the action. The Office
of the Counsel may sign the petition on behalf of the child, but may
not represent the parent.
(b) Attached to the petition shall be a statement attesting that
the Cabinet has facilities to receive the care, custody and control of
the child (DSS-160). This is to be signed and sworn to by the Family
Services Worker. Refer to DSS-160, Statement of Representative of the
Cabinet for Families and Children, and procedural instructions.
WAIVER AND CONSENT TO ADOPT
KRS 625.040 and 625.041 allow the Administrative Office
of the Courts to prescribe an Appearance Waiver and Consent to Adopt form
to be filed with the termination petition when the parent initiating a
voluntary termination of parental rights action in the circuit court
chooses not to attend the proceeding . To protect Cabinet staff from any
potential conflict of interest and to insure that parents seeking to
voluntarily place their children with the Cabinet are fully aware of the
finality of the court order of termination, Appearance Waiver and Consent
forms will not be utilized in circumstances when the childs legal
custody will be transferred to the Cabinet, and the parent shall be
required to appear before the circuit court for the termination hearing.
Under no circumstances will the Cabinet agree to sign
an Appearance Waiver and Consent to Adopt form when a parent is seeking
termination of parental rights as a means of abdicating a child support
responsibility and adoption planning has not been initiated by a
child-placing agency, a relative exempted by KRS 199.470 (4), or an
individual with the written approval pursuant to KRS 199.473 of the
Secretary or the Secretarys designee for the childs placement for
CHILD WELFARE ACT
The Department for Community Based Services shall
comply with Federal law which requires notification of the tribe in any
termination of parental rights or adoption involving a Native American.
If either parent of a child for whom adoption is the permanency goal
is reported to be a member of an Indian tribe or of Native American
Heritage, the Family Services Worker shall contact a Central Office
Child Protective Services Specialist or Adoption Specialist regarding
compliance with the Indian Child Welfare Act.
OF GUARDIAN AD LITEM
Appointment of guardian ad litem is required by KRS 625
in all voluntary termination of parental rights action. The Family
Services Worker shall assist the guardian ad litem as appropriate.
Guardian Ad Litem
An attorney who is appointed to represent the best
interest of the child. His fee is not to exceed $500.00 and shall be paid
through the Finance and Administration Cabinet.
The circuit court shall set a date for the hearing
within three days after a petition for voluntary termination of parental
rights is filed. The hearing is held to prove to the court that
termination of parental rights and placement of the child with the Cabinet
is in the best interest of the child. A private hearing shall be held and
an official or mechanical record shall be made of the proceedings and
retained by the court for a period of five years.
THE ORDER OF
The DSS-159, Order and Judgment of Terminating Parental
Rights, may be completed by the Family Services Worker for signature by
the judge. This form is suggested for use in facilitating the work of the
Circuit Court Clerk and the court.
A certified copy of the order terminating parental
rights and order of judgment shall be obtained from the Circuit Court
clerk and forwarded by the worker to the appropriate Family Services
staff. Distribution may include original copy submitted with the
presentation summary, childs file and family file.
The Order of Judgment
After the close of testimony, the court enters an order
terminating all parental rights and obligations of the parent and
transferring parental rights to the Cabinet or other person or agency as
the court believes best qualified to receive them. The order terminating
parental rights and order of judgment shall be recorded by the Circuit
Court Clerk in the court records. Termination judgment orders are
confidential records, and requests for copies should be processed through
open records procedures.
OF THE CABINET UPON RECEIPT OF NOTICE THAT A PETITION FOR VOLUNTARY
TERMINATION HAS BEEN FILED
In those cases in which the person receiving the child
is a non-relative, independent adoptive placement, the worker shall
determine if an application for approval has been completed and approved
pursuant to KRS 199.473. If the placement has not been approved, the
Family Services Worker is to send notice to the pertinent court. Written
or verbal notice shall also be sent to the Central Office Adoption
No action is required on relative or agency adoptions.
There is no appeal process in the voluntary termination
of parental rights.
TERMINATION OF PARENTAL RIGHTS
The decision to seek involuntary termination of
parental rights is an extremely difficult one. The belief in the capacity
of people to change and the sanctity of the family is an important element
in permanency planning. However, consideration must be given to whether
the childs family can provide for the child a meaningful family
relationship in a permanent safe home in a reasonable time. Indecision or
unnecessary delays in initiating the termination action may result in
significant emotional costs to the child. Additional months spent in
non-permanent placements are months that the child will not be able to
benefit from the security of a permanent home. Children who linger in
care, generally demonstrate greater difficulty bonding and may become more
difficult to place in adoptive homes.
When a child has been abused or neglected and the
family is unable or unwilling to meet the childs need for a permanent,
safe, and nurturing home, the Cabinet may consider an involuntary
termination of parental rights as a means to provide permanency. Prior to
making this decision, the worker should explore the possibility of seeking
parental consent for a voluntary termination of parental rights as this
decision is generally less difficult for the child and leaves the parent
with some sense of self-esteem in that they have acted in the best
interest of the child.
The involuntary termination of parental rights action
is a difficult and legally complex task. Assistance from Office of Counsel
should begin with the pre-permanency conference and close communication
should be maintained throughout the case.
Guardian Ad Litem (GAL)
The GAL is an attorney who is appointed to represent
the best interest of the child. The guardian ad litem has the right to
cross examine all witnesses and to call witnesses of his own. The guardian
ad litem shall be paid a fee not to exceed $500, to be paid by the Finance
and Administration Cabinet, if the Cabinet is to receive custody of the
child. The guardian ad litem prepares a report to the court prior to the
Parents have a right to legal representation in
termination actions. If a parent does not have an attorney and the Circuit
Court determines the parent to be indigent, the court may appoint an
attorney to represent the interest of the parents.
Warning Order Attorney
A warning order attorney is necessary when the party to
be summoned is avoiding summons or the partys whereabouts are unknown.
If the party is out of state but a current address is known, then the
party may be served by certified mail, by personal service, or by warning
order attorney. The Office of Counsel may be consulted to determine the
most expeditious method of service. The Family Services Worker should not
attempt to request the appointment of a warning order without explicit
direction from the Office of Counsel. The Circuit Court Clerk shall
appoint a warning order attorney, upon request of the petitioner. The
warning order attorney is required to report the results of his efforts to
the court within 50 days after his appointment.
AND REVIEW OF GROUNDS FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
It is the policy of the Cabinet for Families and
Children to seek involuntary termination of parental rights when it is
necessary to secure a permanent placement for a child who cannot be
returned to his parents or relatives and a voluntary termination of
parental rights is not possible. The Family Services Worker shall consult
with supervisory staff and other professionals involved with the child and
family in making this decision. The needs and best interest of the child
Staff shall review the grounds for involuntary
termination as found in KRS 625.090. Consideration shall be given as to
whether: 1) there is clear and convincing evidence that the child has
been abandoned, physically abused, emotionally harmed, neglected or
sexually abused according to statutory definitions 2) reasonable
services were rendered to the parent; and 3) additional services would
be unlikely to bring about lasting parental adjustments.
The Office of the Counsel provides legal assistance
to staff in matters relating to involuntary termination procedures in
circuit court. Staff shall conform to KRS 625.050 through 625.120 in
regard to involuntary termination.
THE REQUEST FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
The DSS-161, Request for Involuntary Termination of
Parental Rights, is prepared by the Family Services Worker, signed by the
Family Services Office Supervisor and forwarded to the Office of Counsel
within two weeks of the conference when the decision is made to seek
termination. Refer to DSS-161 and procedural instructions.
Based on information contained in the DSS-161, the
Office of the Counsel shall prepare the petition and return it to the
worker. The worker shall review the petition for accuracy and within three
working days file the petition with the appropriate circuit court clerk.
The worker shall file the petition within three
working days of receipt. The worker shall make
no attempt to set any type of hearing date.
Attached to the petition shall be a statement that the
Cabinet has facilities to receive the care, custody and control of the
child. This statement is to be signed and sworn by the Family Services
TO OFFICE OF COUNSEL OF PETITION FILING
The Family Services Worker shall, within seven working
days, inform the Office of the Counsel of the date the petition was filed,
the date the summonses were served and information regarding the
appointment of the guardian ad litem, warning order attorney, and the
parents attorney .
The DSS-177 shall serve as notice to Office of the
Counsel. The information for completing the DSS-177 may be obtained from
the circuit court clerk.
A conference between Family Services staff, other
witnesses and Office of the Counsel attorney is essential for proper
preparation of an involuntary termination of parental rights action. This
conference shall be a face-to-face meeting which shall give the attorney
an opportunity to brief witnesses on their testimony. The Family Services
Worker may be requested by Office of the Counsel to assist in arranging
It is the expectation that the witness conference shall
be held at least two weeks before the trial.
In preparation for the hearing, the Office of the
Counsel attorney may request the Family Services Worker to arrange for the
subpoena of witnesses. Assistance in completing and filing subpoenas may
be obtained from the Office of the Counsel attorney.
The Family Services Worker obtains the subpoena forms
from the office of Circuit Court clerk, completes the subpoena forms,
files them in the clerks office and delivers them to the Sheriffs
A subpoena is issued by the court ordering a party to
attend the hearing. The subpoena states the name of the court and the
title of the action; it commands the person to whom it is directed to
attend and give testimony at a specified time and place. A subpoena may
also command the person to whom it is directed to produce the business
records, papers, or other documents. A subpoena requesting only the
presentation of records is a subpoena duces tecum.
Involuntary Termination of Parental Rights Hearings
The court hearing is a formal, private trial
conducted according to the Kentucky Rules of Civil Procedure. As the
petitioner, the Cabinet for Families and Children is required to present
its proof first. After each witness testifies, he may be cross examined
by the attorney for the parent and by the guardian ad litem for the
child. After the Cabinet has presented all of its evidence, the parents
may testify and may call other witnesses. If contested, these hearings
are generally formal, lengthy and demanding. The effective worker will
be thoroughly prepared for this type of hearing. Guidelines for
effective testimony are contained in the appendix of the Child
Protective Services chapter.
Order of Judgment
At the involuntary termination of parental rights
hearing, the Office of Counsel attorney prepares an order submitting the
case for judgment. The Judge prepares the findings of fact and
conclusion of law and enters a judgment, either affirming or dismissing
the petition for termination. This order is sent to the petitioner (the
Cabinet). The Office of Counsel attorney involved in the termination
will notify the local office of the courts decision in the case by
forwarding, immediately upon receipt, a certified copy of the order of
judgment to the appropriate local Family Services staff. The order of
judgment is a confidential record and requests for copies should be
processed by an open records request.
Either party may appeal the case within 30
days of the judges decision. The Court of
Appeals can uphold or rescind the decision of the Circuit Court. The
circuit courts order may be temporarily set aside while the appeal is
pending. This is called a Temporary Stay of Judgment. Either party may
request a temporary stay. The request is first made to the Circuit
Court, and if not granted, a request can be made to the Appellate Court.
Further appeals may be held in the Supreme Court, if the Court elects
to hear the appeal.