Termination of Parental Rights

TPR 
PRE-PERMANENCY CONFERENCE
 
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 PARENTAL RIGHTS
 
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 SECTION

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 child’s 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 right’s of the child’s 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 child’s 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.

PRE-PERMANENCY CONFERENCE

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 child’s 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.

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DETERMINING 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 child’s adoption.

Those persons having a legal relationship to the child are:

  1. The mother.
  2. The biological father. The biological father is the man who impregnated the child’s mother whether or not he was then married to the mother.
  3. The legal father. The legal father is the man married to the mother during the time of the child’s 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 child.
  4. 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.

ALLEGED 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 KRS 625.065.

Consideration is given as to whether the man alleged to be the father of the child meets the following definitions:

  1. The mother, by affidavit, has voluntarily identified him as the father (this includes AFDC records);
  2. He has acknowledged the child as his own;
  3. His name is affixed to the birth certificate of the child;
  4. He has contributed financially to the support of the child;
  5. He has married or is living with the mother of the child; or
  6. He has commenced a judicial proceeding to claim parental rights.

DISCLAIMER 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.

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IDENTITY 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 child’s father. Records to be checked include:

  1. The DSS case record;
  2. The child’s record;
  3. AFDC records;
  4. Title IV-E records;
  5. Child support records;
  6. Birth certificate.

VOLUNTARY 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 child’s 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.

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THE 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 minor’s 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 child’s custody is to be vested in the Cabinet upon the court’s 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 Cabinet’s 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.

  1. 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:

  1. Parent information-name, date of birth, county of residence;
  2. Child information-name, date of birth, sex, race;
  3. Legal residence of petitioner;
  4. List of persons having parental rights to child and the plan for these persons;
  5. Reasons for termination action;
  6. 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 minor’s 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 Petition

(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 parent’s 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.

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APPEARANCE 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 child’s 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 Secretary’s designee for the child’s placement for independent adoption.

INDIAN 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.

APPOINTMENT 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 Hearing

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.

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THE ORDER OF JUDGMENT

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, child’s 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.

RESPONSIBILITIES 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 Specialist.

No action is required on relative or agency adoptions.

There is no appeal process in the voluntary termination of parental rights.

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INVOLUNTARY 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 child’s 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 child’s 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 final judgment.

Parents’ Attorney

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 party’s 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.

CONSIDERATION 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 are paramount.

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.

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INITIATING 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.

FILING THE PETITION

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 Worker.

NOTICE 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 parent’s 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.

THE WITNESS CONFERENCE

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 this conference.

It is the expectation that the witness conference shall be held at least two weeks before the trial.

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SUBPOENA OF WITNESSES

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 clerk’s office and delivers them to the Sheriff’s office.

Subpoena

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 court’s 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.

Appeal

Either party may appeal the case within 30 days of the judge’s decision. The Court of Appeals can uphold or rescind the decision of the Circuit Court. The circuit court’s 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.

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