Family Law

Com. v. D.G.R. 2009-CA-00745-ME

Issue:  Termination of Parental Rights

Published:   Reversing

County: Caldwell

Cabinet appealed trial court order denying its petition to terminate the parental rights of D.G.R. and T.B.H. to their minor child.

FACTS:

A.T.H was twelve at the time of the termination hearing.  He had been diagnosed with autistic disorder, attention deficit hyperactivity disorder, and possible bipolar disorder.  D.G.R. and T.B.H. are the child?s parents, who never married but lived together. Three abuse petitions were filed by the Cabinet over a four year period.  The Cabinet then filed a petition to terminate the mother and father?s parental rights.  Trial court found by clear and convincing evidence that the child had been abused and neglected and that the child had been in foster care for a total of forty-three months.  However, the trial court denied the Cabinet?s petition on the basis that termination was not in the child?s best interests.  Cabinet appealed.   

ANALYSIS:

COA reversed and remanded to the trial court for an order terminating the mother and father?s parental rights.  All of the factors in KRS 625.090(3) weighed in favor of termination being in the child?s best interests.  There was overwhelming evidence that the parents, on more than one occasion, either abused the child or allowed the child to be abused, the parents were guilty of neglect regarding a sexual disease the child caught from the father, the parents used corporal punishment on the child, the child was not appropriately stimulated, the house was unsanitary, the parents lacked empathy toward the child, and the parents were unable and unwilling to provide basic needs for the child, much less provide for his special needs.

DISSENT: Henry, Senior Judge

 While the majority noted that it cannot disturb the findings of the trial court unless no substantial evidence exists in the record to support them, the majority concluded that the factual findings of the trial court were not based on substantial evidence.  Instead of finding that the trial court abused its discretion or was clearly erroneous in relying on the testimony of the occupational therapist, the majority just dismissed the testimony as minimal.  The majority incorrectly substituted its judgment for the trial court, which held hearings, met the parties, and listened to the testimony face-to-face.  It is easy to understand why the majority decided the way it did and there is no doubt the majority?s motives were pure.  However, the majority?s method of reaching its decision was uunsound. 

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