For children in out-of-home care (OOHC), the SSW, in consultation with the FSOS, staff, and other professionals involved in the case, may consider pursuing termination of parental rights (TPR) at any point in the case depending on the case specific circumstances. In general, if the family is unable or unwilling to meet the child’s need for a permanent, safe, and nurturing home, the Cabinet for Health and Family Services (CHFS/Cabinet) considers termination of parental rights (TPR) 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 in OOHC for fifteen (15) of the last forty eight (48) months, state law requires the agency to file for TPR, unless there are compelling reasons not to file. The agency may elect not to file or join a petition to TPR 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 interest 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 the following:
No grounds for TPR exist;
Adoption is not an appropriate goal—perhaps due to the parents’ recent progress; or
There are international legal obligations that preclude TPR.
The SSW, 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. Policy reflects that according to statute a court review is referred to as a case review.
- 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 fifteen (15) of the most recent twenty-two (22) months a petition is filed. However, state law requires that when a child has been in foster care for 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 fifteen (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; and
- Will not include trial home visits or runaway episodes in calculating fifteen (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 the Office of Legal Services (OLS) as necessary to ensure that the petition for involuntary TPR 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 TPR must be filed within sixty (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 reasonable efforts has been granted due to the parents previous felony conviction, the petition for TPR must be filed within sixty (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; and
- 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 TPR, the worker notifies OLS. 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 TPR procedures. The circuit court may involuntarily TPR 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
- TPR would be in the best interest of the child.
- State law provides that no TPR 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 TPR action was born subsequent to or during the pendency of the previous TPR; and
- The conditions or factors which were the basis for the previous TPR 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:
- A mentally ill person as defined by KRS 202A.011(9), or individual with an intellectual disability as defined by KRS 202B.010(9) 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 their circumstances, conduct, or conditions to make it in the child's best interest to return to the parent's 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 TPR 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 shall update the concurrent planning case plan goal to adoption once the TPR petition has been filed.
- Consults with supervisory staff and OLS 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 TPR 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 OOHC for nine (9) months and invites OLS, in accordance with any decision to file for TPR;
- 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;
- Requests the annual permanency hearing be scheduled within thirty (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 TPR;
- 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 OLS within two (2) calendar weeks of the court’s acceptance of the agency’s dispositional report and the goal of adoption; 1
- 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. OLS files the petition for TPR with the court;
- Does not attempt to set any type of hearing date when filing the petition, but coordinates with OLS to file the petition for TPR with the appropriate family or circuit court clerk within three (3) working days;
- Within five (5) days of the petition being filed, DCBS provides a courtesy copy of the petition to the foster parent by hand delivery, or certified mail. 2 3
- Continues service provision to the family, including reunification efforts;
- Begins working simultaneously with R&C as appropriate to identify, recruit, process, and approve a qualified family for adoption, from the point at which the petition is filed, or when the agency joins a petition to TPR. (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 permanency plan to the court no longer than thirty (30) days after a court enters the TPR judgement. This includes the child's presentation summary packet as well as the identification of an adoptive home if determined.