For children in out of home care (OOHC), the SSW, in consultation with supervisor staff and other professionals involved in the case, may consider pursuing termination of parental rights at any point in the case depending on the case specific circumstances. In general the family is unable or unwilling to meet the child’s need for a permanent, safe and nurturing home, the Cabinet considers termination of parental rights as a means to provide permanency. Prior to filing for the involuntary TPR, the SSW seeks parental consent for a voluntary TPR as outlined in SOP 11.35 Voluntary Termination of Parental Rights (TPR), which:
- Is generally less difficult for the child; and
- Leaves the parent(s) with some sense of self-esteem that they have acted in the best interest of the child.
Once a child has been OOHC for fifteen (15) of the last forty eight (48) months, state law requires the agency to file for termination of parental rights, unless there are compelling reasons not to file. The agency may elect not to file or join a petition to terminate the parental rights of a parent if:
- The child is being cared for by a relative;
- The agency has documented in the case plan (which must be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the individual child; or
- The agency has not provided to the family, consistent with the time period in the case plan, services deemed necessary for the safe return of the child to the home, when reasonable efforts to reunify the family are required. (45 CFR 1356.21 (i)(2)).
Federal language around “compelling reasons” is broad. Such reasons may include, but are not limited to: that no grounds for TPR exist, that adoption isn’t an appropriate goal—perhaps due to the parents’ recent progress, that there are international legal obligations that preclude termination, etc. The worker, in consultation with the FSOS as appropriate, may exercise some discretion as to whether or not there is a compelling reason not to move forward with TPR. However, the justification for not moving forward will be clearly documented, as required by the federal standard, on the case plan and available for court case review. According to statute a court review is referred to as a case review. Policy reflects this.
- Consults with supervisory staff and the Office of Legal Services at any point in the case when a waiver of efforts has been issued by the court for any reason;
- Consults with supervisory staff and other professionals involved with the child and family making the decision to pursue involuntary TPR in the absence of a waiver of efforts;
- Considers the length of time the child has been in care;
- Considers whether or not services provided to the parent have been adequate for reunification, and whether or not additional services are likely to facilitate a safe reunification;
- Determines, in consultation with supervisor staff and other professionals involved in the case, whether or not to pursue a goal change to termination of parental rights or an exemption to ASFA requirements at the next annual permanency review;
- Schedules a pre-permanency conference to coincide with the OOHC regional consultation occurring when the child has been in out of home care for nine (9) months and invites the Office of Legal Services (OLS), in accordance with any decision to file for termination of parental rights;
- Reviews the grounds for involuntary TPR with the regional attorney to assess the evidentiary needs for termination;
- Holds the periodic review and case planning conference prior to the next annual permanency court review;
- Ensures that the case plan reflects adoption as goal or concurrent goal, in accordance with the agency decision to move forward with termination;
- Requests the annual permanency hearing be scheduled within 30 days of the development of the case plan;
- Ensures a copy of the case plan, goal(s), prevention plans, and dispositional report are provided to the court prior to the hearing (Family Court Civil Rule 29);
- Ensures the dispositional report reflects the agency’s intent to move forward with a termination of parental rights;
- Ensures the contents of the dispositional report are entered into TWIST;
- Ensures that the case plan reflects the court approved goal after a goal change is made in court;
- Submits the DSS-161 Request for Involuntary TPR to the SRA or designee within 2 calendar weeks of the court’s acceptance of the agency’s dispositional report and the goal of adoption;
- Upon receipt of the signed DSS-161, forwards a copy of the signed DSS-161 to the Office of Legal Services;
- Receives the petition for involuntary TPR from OLS and reviews it for accuracy;
- Signs, swears to and attaches to the petition for TPR the DSS-160 Statement of Representative of the Cabinet for Health and Family Services, which states that the Cabinet has facilities to receive the care, custody and control of the child;
- Does not attempt to set any type of hearing date when filing the petition, but coordinates with OLS to file the petition for termination with the appropriate family or circuit court clerk within 3 working days;
- Continues service provision to the family, including reunification efforts;
- From the point at which the petition is filed, or when the agency joins a petitions to TPR, the agency begins working simultaneously with R&C as appropriate to identify, recruit, process, and approve a qualified family for adoption. (Title IV-E, Section 475 (5)(E) of the Social Security Act and 45 CFR 1356.21 (i)(3)).
- Submits all necessary paperwork to facilitate the child's pemanency plan to the court no longer than thirty (30) days after a court enters the termination of parental rights judgement. This includes the child's presentation summary packet as well as the identification of an adoptive home if determined.
- Federal law (Title IV-B, Section 475 (5)(E) of the Social Security Act and 45 CFR 1356.21 (i)), requires that when a child has been in foster care for 15 of the most recent 22 months a petition is filed. However, state law requires fifteen (15) out of forty eight (48) months a petition must be filed by the end of the child’s 15th month in foster care, unless there are compelling reasons not to file. In calculating when to file a petition, the state:
- Will calculate the 15 out of the most recent forty eight (48) month period from the date the child entered foster care as per requirements of state law;
- Will use a cumulative method of calculation when a child experiences multiple exits from and entries into foster care during the forty eight (48) month period;
- Will not include trial home visits or runaway episodes in calculating 15 months in foster care.
- If a waiver of efforts has been issued by the court for any reason, the SSW consults with supervisory staff and Office of Legal Services as necessary to ensure that the petition for involuntary termination is filed as quickly as possible. Service provision to the family is no longer required unless the court has specifically made orders regarding additional service provision. The SSW updates any existing case plans and visitation schedules accordingly.
- Per federal law (45 CFR 1356.21 (i)(1)(ii), when an infant has been designated by the court as abandoned under the state’s safe infant laws, the petition to terminate parental rights must be filed within 60 days of the judicial determination that the child is an abandoned infant.
- Per federal law (45 CFR 1356.21 (i)(1)(iii), if a waiver of efforts has been granted because of the parents previous felony conviction, the petition for termination must be filed within 60 days of the judicial determination that reasonable efforts to reunify are not required. Applicable convictions under Kentucky statute include:
- A situation where the parent caused or contributed to the death of another child of the parent;
- A felony assault that resulted in serious bodily injury to the child or to another child of the parent;
- If another party files a petition to involuntarily terminate the parents’ rights, the worker notifies the Office of Legal Services. OLS files a motion to be joined as a party to the petition. (Title IV-B, Section 475 (5)(E) of the Social Security Act and 45 CFR 1356.21 (i)).
- State law (KRS 625.090) governs termination of parental rights procedures. The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
- The child has been adjudged to be abused or neglected, as statutorily defined, by a court of competent jurisdiction;
- The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
- Termination would be in the best interest of the child.
- State law provides that 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:
- That the parent has abandoned the child for a period of not less than ninety (90) days;
- That the parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
- That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
- That the parent has been convicted of a felony that involved the infliction of serious physical injury to any child;
- That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
- That the parent has caused or allowed the child to be sexually abused or exploited;
- That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
- The parent's parental rights to another child have been involuntarily terminated;
- The child named in the present termination action was born subsequent to or during the pendency of the previous termination; and
- The conditions or factors which were the basis for the previous termination finding have not been corrected;
- That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
- That the child has been in foster care under the responsibility of the cabinet for fifteen (15) of the most recent forty eight (48) months preceding the filing of the petition to terminate parental rights.
- State law permits the court to consider the following factors:
- Mental illness as defined by KRS 202A.011(9), or mental retardation as defined by KRS 202B.010(9) of the parent as certified by a qualified mental health professional, which renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time;
- Acts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family;
- If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition made reasonable efforts as defined in KRS 620.020 to reunite the child with the parents unless one or more of the circumstances enumerated in KRS 610.127 for not requiring reasonable efforts have been substantiated in a written finding by the District Court;
- The efforts and adjustments the parent has made in his circumstances, conduct, or conditions to make it in the child's best interest to return him to his home within a reasonable period of time, considering the age of the child;
- The physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered; and
- The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so.
- Under state law, if the parent proves by a preponderance of the evidence that the child will not continue to be an abused or neglected child as defined in KRS 600.020(1) if returned to the parent, the court in its discretion may determine not to terminate parental rights.
- In cases where the court has declined a goal change, but OLS has certified the case for TPR, the SSW may update the case plan goal to adoption once the TPR petition has been filed.