D.W.H. v. Cabinet for Human Resources

• Decision Date: 28 March 1986
• Docket Number: 85-CA-731-MR,Nos. 85-CA-620-M,s. 85-CA-620-M
• Citation: 706 S.W.2d 840
• Parties: D.W.H., Appellant, v. CABINET FOR HUMAN RESOURCES Commonwealth of Kentucky, G.W.H. and J.H., Appellees. G.W.H., Appellant, v. CABINET FOR HUMAN RESOURCES, Commonwealth of Kentucky D.W.H. and J.H., Appellees.
• Court: Kentucky Court of Appeals

Page 840

706 S.W.2d 840

D.W.H., Appellant, v. CABINET FOR HUMAN RESOURCES Commonwealth of Kentucky, G.W.H. and J.H., Appellees.

G.W.H., Appellant, v. CABINET FOR HUMAN RESOURCES, Commonwealth of Kentucky D.W.H. and J.H., Appellees.

Nos. 85-CA-620-MR, 85-CA-731-MR

Court of Appeals of Kentucky.

March 28, 1986.

Homer Parrent, III, Louisville, for appellant, D.H.

Robert J. Stauble, Louisville, for appellant, G.H.

Bixler W. Howland, Guardian Ad Litem, Louisville, for appellee, J.H.

R. Hughes Walker, Gen. Counsel, W. Kimble Moore, Jr., Staff Atty., Frankfort, for appellee, Cabinet for Human Resources.

Before CLAYTON, LESTER and REYNOLDS, JJ.

LESTER, Judge.

These are consolidated appeals by the parents from an order involuntarily terminating their parental rights and placing their minor child in the care and custody of the Cabinet of Human Resources.

Because the father, G.W.H., is a member of the Cheyenne River Sioux Indian tribe, this action was tried, by agreement of all the parties, pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) [hereinafter referred to as the Act].

The specific provision of the Act which is at issue in these appeals provides as follows:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. Sec. 1912 (f)) (emphasis added).

There is no real dispute that this Act requires a more stringent standard of proof for termination of Indian parental rights than the clear and convincing evidence standard which is applied to all other state termination proceedings. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); N.S. v. C. and M.S., Ky., 642 S.W.2d 589 (1982). In adopting this Act, Congress specifically found that the states had often failed to recognize essential tribal relations and cultural and social standards prevailing in Indian families, resulting in a disproportionately high percentage of Indian children being removed from their families. 25 U.S.C. Sec. 1901. Because of the relatively small Indian population in this state, this is a case of first impression in Kentucky.

Both parents maintain that the Commonwealth failed to establish beyond a reasonable doubt that their continued custody of the child was likely to result in serious emotional or physical damage to the child. The trial court found that the state had met this stringent standard of proof.

The history of G.W.H. and D.W.H. has been sporadic at best. The parties were married when the child was born in 1979 and, while they have been separated for several years, are still legally married. They apparently have another older child together, although neither appellant has seen or supported that child in at least two years. Although originally from the Louisville area, D.W.H. and G.W.H. moved to South Dakota in 1979. When the child J.H., was three months old, the father was sent to prison. He was released in 1982 but has been arrested on three occasions since his release. He admitted to physical abuse of the mother, D.W.H., a prior heavy alcohol addiction, a previous suicide attempt, and acknowledged that he has no place to keep the child, but wants his uncle in South Dakota to have custody of J.H.. He has had a number of short-term jobs, has failed to maintain regular visitation, has made no support payments, and has refused to utilize the services or programs offered by the Cabinet to prevent the breakup of the family.

While G.W.H. was in prison in South Dakota, D.W.H. lived in a number of homes, either taking the child or leaving her behind with relatives. On two separate occasions in that state, the Department of Social Services took temporary custody of J.H. due to the mother's neglect. D.W.H., like her husband, has been in trouble with the law, has changed jobs and residences, as well as live-in boyfriends, quite frequently, has a history of alcohol abuse and has attempted suicide on more than one occasion. While she has exercised her visitation rights with J.H., she has failed repeatedly to follow up with counseling or participate in any of the programs offered by the Cabinet. There was testimony relating to one incident of medical neglect in 1982 which resulted in three days hospitalization of the child for blisters, infections, vaginitis and impetigo. The child has primarily been in foster care since that time.

The trial court in this case entered an order which contained extensive and thorough findings of fact, all of which are amply...