Motion To Dismiss – CPS – Kentucky

How to write a Motion To Dismiss for CPS Juvenile Court In Kentucky

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

Links to State and Tribal Child Welfare Law and Policy

To better understand this issue and to view it across States, download the PDF (223 KB) of this publication.

Current Through March 2015

Statutes

http://www.lrc.state.ky.us/kar/922/001/330.htm

http://www.lrc.ky.gov/statutes/

  • Adoption: Title XVII, Chapter 199, §§ 199.470 through 199.5955
  • Child Protection: Title LI, Chapter 620, §§ 620.020 through 620.180; 620.500 through 620.550
  • Child Welfare: Title LI, Chapters 615, 620, 625; Title XVII, Chapter 199, §§ 199.800 through 199.805
  • Guardianship: § 403.270
  • Youth Services: §§ 620.140; 625.025
Regulation/Policy

http://lrc.ky.gov/KAR/titles.htm

See Title 922, Chapter 1:

  • For Kinship Foster Care Program, see § 1:130
  • For youth aging out of foster care, see §§ 1:450 and 1:500
Other Resources

Kentucky Court of Justice Local Rules of PracticeKentucky Office of the Ombudsman

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused or neglected child’ means a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, or other person exercising custodial control or supervision:

  • Inflicts or allows to be inflicted upon the child physical or emotional injury by other than accidental means
  • Creates or allows to be created a risk of physical or emotional injury to the child by other than accidental means

‘Physical injury’ means substantial physical pain or any impairment of physical condition.

‘Serious physical injury’ means physical injury that creates a substantial risk of death or causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily member or organ.

Neglect

The term ‘abused or neglected child’ includes a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, or other person exercising custodial control or supervision:

  • Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including, but not limited to, parental incapacity due to alcohol and other drug abuse
  • Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child
  • Does not provide the child with adequate care, supervision, food, clothing, shelter, education, or medical care necessary for the child’s well-being
  • Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for 15 of the most recent 22 months
Sexual Abuse/Exploitation

The term ‘abused or neglected child’ includes a child whose health or welfare is harmed or threatened with harm when:

  • His or her parent, guardian, or other person exercising custodial control or supervision:
    • Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child
    • Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child
  • A person age 21 or older commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon a child younger than age 16.

‘Sexual abuse’ includes, but is not necessarily limited to, any contacts or interactions in which the parent, guardian, person in a position of authority or special trust, or other person having custodial control or supervision of the child or responsibility for his or her welfare, uses or allows, permits, or encourages the use of the child for the purposes of sexual stimulation of the perpetrator or another person.

‘Sexual exploitation’ includes, but is not limited to, allowing, permitting, or encouraging the child to engage in prostitution or an act of obscene or pornographic photographing, filming, or depicting of a child.

Emotional Abuse

‘Emotional injury’ means an injury to the mental or psychological capacity or emotional stability of a child as evidenced by a substantial and observable impairment in the child’s ability to function within a normal range of performance and behavior with due regard to his or her age, development, culture, and environment, as testified to by a qualified mental health professional.

Abandonment

Citation: Rev. Stat. § 600.020
The term ‘abused or neglected child’ includes a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, or other person exercising custodial control or supervision abandons the child.

Standards for Reporting

Citation: Rev. Stat. § 620.030
A report is required when any person knows or has reasonable cause to believe that a child is dependent, neglected, or abused. In addition, a report must be made when any person knows or has reasonable cause to believe that a child is a victim of human trafficking, as defined in § 529.010.

Persons Responsible for the Child

Persons responsible for the child include:

  • A parent who is the biological or adoptive mother or father of a child
  • A person exercising custodial control and supervision or an agency that has assumed the role and responsibility of a parent or guardian for the child but does not necessarily have legal custody of the child
Exceptions

A parent or other person exercising custodial control or supervision of the child who is legitimately practicing his or her religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence and abuse’ means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

If a person commits a third or subsequent offense of assault in the fourth degree under § 508.030 within 5 years, and the relationship between the perpetrator and the victim in each of the offenses meets the definition of family member or member of an unmarried couple, as defined in § 403.720, then the person may be convicted of a Class D felony.

Persons Included in the Definition

‘Family member’ means a spouse, including a former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim.

‘Member of an unmarried couple’ means each member of an unmarried couple that allegedly has a child in common, any children of that couple, or members of an unmarried couple who are living together or have formerly lived together.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Any person who knows or has reasonable cause to believe that a child is abused or neglected shall immediately make an oral or written report, by telephone or otherwise.

A mandated reporter shall file a written report within 48 hours of the original report, if requested.

Content of Reports

The written report shall contain:

  • The names and addresses of the child and the child’s parents or other persons exercising control or supervision over the child
  • The child’s age
  • The nature and extent of the child’s alleged dependency, neglect, or abuse, including any previous charges of dependency, neglect, or abuse to the child or any siblings
  • The name and address of the person allegedly responsible for the abuse or neglect
  • Any other information that the reporter believes may be helpful
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Any physician attending a pregnant woman may perform a screening for alcohol or substance dependency or abuse, including a comprehensive history of such behavior. Any physician may administer a toxicology test to a mother under the physician’s care within 8 hours after she has delivered a baby to determine whether there is evidence that she has ingested alcohol or a controlled substance or if she has obstetrical complications that are a medical indication of possible use of any such substance for a nonmedical purpose.

Any physician attending a mother may administer to each newborn infant born to that mother a toxicology test to determine whether there is evidence of prenatal exposure to alcohol or a controlled substance, if the attending person has reason to believe, based on a medical assessment of either patient, that the mother used any such substance for a nonmedical purpose during the pregnancy.

The circumstances surrounding any positive toxicology finding shall be evaluated by the attending person to determine if abuse or neglect of the infant, as defined under § 600.020(1), has occurred and whether investigation by the Cabinet for Health and Family Services is necessary.

No prenatal screening for alcohol or other substance abuse or positive toxicology finding shall be used as prosecutorial evidence. No person shall conduct or cause to be conducted any toxicological test pursuant to this section on any pregnant woman without first informing her of the purpose of the test.

Agency Receiving the Reports

Reports may be made to a local law enforcement agency, the Department of Kentucky State Police, the Cabinet for Health and Family Services or its designated representative, the Commonwealth attorney, or the county attorney.

Initial Screening Decisions

Based upon the allegation in the report, the cabinet shall immediately make an initial determination as to the risk of harm and immediate safety of the child.

In regulation: Cabinet staff shall attempt to elicit from the reporter as much information as possible about the child’s circumstances. If a report does not meet the criteria for investigation or family-in-need-of-services assessment, the cabinet shall not accept the report for investigation or assessment but shall refer the caller to a community resource that may meet family needs and keep a record of the report.

Agency Conducting the Assessment/Investigation

If the report alleges abuse or neglect by someone other than a parent, guardian, or person exercising custodial control or supervision, the cabinet shall immediately notify the Commonwealth or county attorney and the local law enforcement agency or the State police.

Assessment/Investigation Procedures

Based upon the level of risk determined, the cabinet shall investigate the allegation or accept the report for an assessment of family needs and, if appropriate, may provide or make referral to any community-based services necessary to reduce risk to the child and to provide family support. A report of sexual abuse shall be considered high risk and shall not be referred to any other community agency.

In regulation: An initial determination is conducted to evaluate risk factors to determine immediate safety and risk of harm in order to decide whether to proceed with an investigation or a family-in-need-of-services assessment.

Based upon the initial determination that moderate to high risk factors exist, an investigation is conducted to collect information and evaluate risk factors to determine if a child has been abused or neglected or is dependent. When a moderate or high risk of harm is not present, a family-in-need-of-services assessment is conducted to collect information and evaluate risk factors in order to determine strengths and needs of a family.

Timeframes for Completing Investigations

The cabinet shall, within 72 hours, exclusive of weekends and holidays, make a written report to the Commonwealth’s or county attorney and the local law enforcement agency or the State Police concerning the action that has been taken on the investigation.

In regulation: Based upon an accepted report of child abuse, neglect, or dependency, the cabinet shall make an initial determination as to the immediate safety and risk of harm to a child. The following timeframes apply:

  • If the report indicates imminent danger, the investigation shall be initiated within 1 hour.
  • If the report indicates nonimminent danger of physical abuse, efforts shall be made to have face-to-face contact with the child and family within 24 hours.
  • If the report indicates nonimminent danger, not involving physical abuse, efforts shall be made to have face-to-face contact with the child and family within 48 hours.
  • An investigation or an assessment shall be initiated within 48 hours within a report of dependency if a child is not in imminent danger.
Classification of Reports

Reports shall be classified as follows:

  • A report shall be ‘substantiated’ when there is:
    • An admission of abuse, neglect, or dependency by the person responsible
    • A judicial finding of child abuse, neglect, or dependency
    • A preponderance of evidence that abuse, neglect, or dependency was committed by the person alleged to be responsible
  • A report shall be ‘unsubstantiated’ when there is insufficient evidence, indicators, or justification present for substantiation of abuse, neglect, or dependency.

Parental Drug Use as Child Abuse

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Current Through April 2015

The Cabinet for Health and Family Services shall, as often as necessary, publish a list of the five most frequently abused substances, including alcohol, by pregnant women in the Commonwealth. Any physician and any other person legally permitted to engage in attendance upon a pregnant woman in this State may perform a screening for alcohol or substance dependency or abuse, including a comprehensive history of such behavior. Any physician may administer a toxicology test to a pregnant woman under the physician’s care within 8 hours after delivery to determine whether there is evidence that she has ingested alcohol, a controlled substance, or a substance identified on the list provided by the cabinet, or if the woman has obstetrical complications that are a medical indication of possible use of any such substance for a nonmedical purpose.

Any physician or person legally permitted to engage in attendance upon a pregnant woman may administer to each newborn infant born under that person’s care a toxicology test to determine whether there is evidence of prenatal exposure to alcohol, a controlled substance, or a substance identified on the list provided by the cabinet, if the attending person has reason to believe, based on a medical assessment of the mother or the infant, that the mother used any such substance for a nonmedical purpose during the pregnancy.

The circumstances surrounding any positive toxicology finding shall be evaluated by the attending person to determine if abuse or neglect of the infant, as defined under § 600.020(1), has occurred and whether investigation by the cabinet is necessary.

No prenatal screening for alcohol or other substance abuse or positive toxicology finding shall be used as prosecutorial evidence.

No person shall conduct or cause to be conducted any toxicological test pursuant to this section on any pregnant woman without first informing the pregnant woman of the purpose of the test.

‘Abused or neglected child’ means a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, person in a position of authority or special trust, or other person exercising custodial control or supervision of the child, engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse.

A person is guilty of controlled substance endangerment to a child in the fourth degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child is not injured as a result of the commission of the offense.

Controlled substance endangerment to a child in the fourth degree is a Class D felony.

A person is guilty of controlled substance endangerment to a child in the second degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child receives serious physical injury as a result of the commission of the offense.

Controlled substance endangerment to a child in the second degree is a Class B felony.

A person is guilty of controlled substance endangerment to a child in the third degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child receives physical injury as a result of the commission of the offense.

Controlled substance endangerment to a child in the third degree is a Class C felony.

A person is guilty of controlled substance endangerment to a child in the first degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child dies as a result of the commission of the offense.

Controlled substance endangerment to a child in the first degree is a Class A felony.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

If the court determines, as a result of a temporary removal hearing, that further proceedings are required, the court shall advise the child and his or her parent or other person exercising custodial control or supervision of his or her right to appointment of separate counsel.

The court shall appoint counsel for the child to be paid for by the Finance and Administration Cabinet. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel.

The court may, in the interest of justice, appoint a court-appointed special advocate (CASA) volunteer to represent the best interests of the child. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet of Health and Family Services, of the order appointing the CASA volunteer.

The Use of Court-Appointed Special Advocates (CASAs)

Local CASA programs shall comply with the National CASA Association and Kentucky CASA Association Standards for Programs. Local programs shall ensure that CASA volunteers are adequately supervised by providing at least one supervisory staff person for every 30 CASA volunteers appointed by the court. Program requirements include:

  • CASA volunteers shall, as far as practicable, represent the socioeconomic, racial, and ethnic composition of the area served.
  • CASA volunteers may be removed by the court for nonparticipation or other cause.
  • All written CASA reports shall become part of the record of the child maintained by the Cabinet of Health and Family Services.
  • Employees of the cabinet shall not become volunteers or employees of the CASA program.
  • Each CASA volunteer shall take an oath, administered by a member of the Court of Justice, to keep confidential all information related to the appointed case except in conferring with or reports to the court, parties to the case, the cabinet, the Citizen Foster Care Review Board, others designated by the court, and as provided by law.
  • CASA volunteers shall be appointed by the presiding judge to represent the best interests of the child, subject to judicial discretion, and only after confirmation from the director of the local CASA program that the CASA volunteer has been properly screened and trained.
Qualifications/Training

Counsel for the child shall document participation in training on the role of counsel that includes training in early childhood, child, and adolescent development.

A CASA volunteer shall meet the following minimum requirements:

  • Be at least age 21
  • Be of good moral character
  • Complete a written application providing the names of at least three references
  • Submit to a personal interview with program staff
  • Submit to a criminal record check
  • Submit to a check of the child abuse and adult protection registry maintained by the Cabinet of Health and Family Services

If found acceptable, the applicant shall receive a minimum of 30 hours of initial training and take an oath of confidentiality administered by a family court judge or a district judge.

Specific Duties

The CASA volunteer shall:

  • Attend all court hearings
  • Submit a written report and recommendation to the judge for consideration in determining the best interests of the child at the dispositional hearing, dispositional review hearings, other hearings as requested by the court, and at least one report every 6 months for as long as the case is assigned to the CASA volunteer
  • Monitor the case by visiting the child as often as necessary to observe whether the child’s essential needs are being met and whether court orders are actually being carried out
  • Participate in any treatment planning conferences and reviews involving the child to assess whether reasonable efforts are being made to provide services to the child and family and determine the appropriateness and progress of the child’s permanent plan
  • Advocate a prompt, thorough review of the case if the child’s circumstances warrant the attention of the court
  • Interview parties involved in the case, including interviewing and observing the child
  • Maintain complete written records about the case
  • Report any incidents of child or adult abuse or neglect to the appropriate authorities and to the program director
  • Remain actively involved in the case until dismissed from the case by the program director or judge with competent jurisdiction, or when an adoption proceeding is finalized
  • Return all case-related materials, including, but not limited to, written notes, court reports, and agency documents, to the program director upon the request of the program director
  • Work with the cabinet representatives to advocate the best interests of the child
How the Representative Is Compensated

Counsel for the child shall be paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed $500. However, if the action has final disposition in the District Court, the fee shall not exceed $250.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

For each child placed in the custody of the cabinet by an order of commitment, the cabinet shall file a case permanency plan for the child with the court and send a copy to the Administrative Office of the Courts Citizen Foster Care Review Board Program as soon as the plan is prepared, but no later than 30 days after the effective date of the order.

If a child remains in the temporary custody of the cabinet for longer than 45 days and if a request is submitted by the Administrative Office of the Courts Citizen Foster Care Review Board Program, the cabinet shall provide a copy of the case permanency plan for the child.

Who May Participate in the Case Planning Process

The cabinet must file a case permanency plan for each child placed in the custody of the cabinet.

In regulation: As part of the case planning process, the cabinet will work with the family and other involved parties to identify conditions within a family that may cause the threat of harm to a child and that need to be changed and the services necessary to bring about familial changes in order to facilitate a child’s safety and well-being in the home environment.

Contents of a Case Plan

The case permanency plan shall include, but need not be limited to:

  • A concise statement of the reasons why the child is in the custody of the cabinet
  • The actions that have been taken with regard to the child
  • The proposed actions that may be taken with regard to the child during the next 6 months and during the entire duration of the time the child is in the custody of the cabinet
  • Contemplated placements for the child
  • If the child is placed outside of the home, reasons why the child cannot be protected adequately in the home, the harms the child may suffer if left in the home, factors that may indicate when the child can be returned to the home, and efforts the cabinet or others are making to return the child to the home
  • If the child is placed outside of the home, the steps that the cabinet will take to minimize the harm to the child as a result, both at the time of removal and on a long-term basis
  • A description of the type of home or child care facility in which the child is to be placed or has been placed, and why the placement is appropriate for the child
  • If the placement is outside of the child’s county of residence, documentation that no closer placement is appropriate or available, and why the placement was chosen
  • A description of the services to be provided for the child and his or her family to facilitate the return of the child to his or her own home or to another permanent placement
  • A list of objectives and specific tasks, together with specific timeframes for each task, that the parents have agreed to assume, including a schedule of regular visits with the child
  • A projected schedule of time intervals by which each of the services, objectives, and tasks outlined in the plan should be accomplished and a schedule of time intervals that have already been accomplished or are in the process of accomplishment
  • If the child is to remain at home, reasons why he or she cannot be placed in foster care or why such care is not needed

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Concurrent Planning for Permanency for Children

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Current Through November 2012

‘Concurrent planning’ means the cabinet simultaneously plans for:

  • The return of a child in the custody of the cabinet to the child’s parent
  • Another permanency goal for the child if return to parent is not achieved within 15 of the last 22 months, in accordance with 42 U.S.C. § 671(a)(16)

Concurrent planning shall be considered during development of the case permanency plan and at the 6-month case review.

Upon notice from any emergency medical services provider or hospital staff that a newborn infant has been abandoned at a hospital, the Cabinet for Health and Family Services shall immediately seek an order for emergency custody of the infant.

Upon the infant’s release from the hospital, the cabinet shall place the child in a foster home approved by the cabinet to provide concurrent planning placement services. As used in this paragraph, ‘concurrent planning placement services’ means the foster family shall work with the cabinet on reunification with the birth family, if known, and shall seek to adopt the infant if reunification cannot be accomplished.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A permanency hearing shall be held:

  • No later than 12 months after the child has entered foster care
  • Every 12 months thereafter as long as the child remains in placement
  • Within 30 days after a determination is made that reasonable efforts to reunify are not required

The local citizen foster care review board shall review the case of each child placed in the custody of the cabinet by an order of temporary custody or commitment by the court. The review shall occur at least once every 6 months until the child is no longer in the custody of the cabinet or until an adoption proceeding becomes final.

Persons Entitled to Attend Hearings

The following persons shall be notified of the hearing:

  • The child’s parents
  • The foster parents
  • Any preadoptive parent
  • Any relative providing care for the child
  • The attorney for the parent
  • The attorney or court-appointed special advocate for the child
  • The foster care review board member assigned to the case

The child’s parent, foster parent, preadoptive parent, and relative providing care to the child shall have the right to be heard. The attorney for the parent, attorney for the child, or court-appointed special advocate, if deemed appropriate by the court, may present any evidence relevant to the determination of a permanency goal for the child.

Notice of the local citizen foster care review board review and the right to attend and participate in the review shall be provided to the child’s parents, if parental rights have not been terminated or surrendered; the parent’s attorney; the guardian ad litem, the attorney for the child, or both; the foster parents; the prospective adoptive parent; the relative providing care for the child; and the child who is a party to the proceeding.

Determinations Made at Hearings

The court shall review the care and progress of the child since the last permanency hearing, including the following:

  • How long the child has been committed to the cabinet
  • The services and assistance provided to the parent since the last hearing and the results achieved
  • The efforts and progress of the child’s parent since the last hearing, including the number and dates of parental visits and the extent, quality, and frequency of the parent’s communications with the child
  • Familial and institutional barriers to returning the child to the home
  • Recommendations of services needed to make the transition from out-of-home care to independent living for children who have reached age 16
  • An evaluation of the child’s current placement and services provided to the child
  • Recommendations for services required to end the commitment of the child to the cabinet, to return the child home, or to facilitate another permanent placement
  • Recommendations for the permanency goal for the child

During each 6-month review, the local citizen foster care review board shall review:

  • The status of the child and his or her placement as shown through the case permanency plan, case record, and case progress reports
  • The efforts or adjustment the parent has made in his or her circumstances, conduct, or conditions to make it in the child’s best interests to return home within a time considering the age of the child
  • The efforts of the cabinet to locate and provide services to the parents of the child
  • The efforts of the cabinet and other agencies to facilitate the return of the child home or to find an alternative permanent placement if reunion with the parent is not feasible
Permanency Options

The court shall determine whether the child shall be:

  • Returned to the parent
  • Placed for adoption
  • Placed with a permanent custodian
  • Placed in another planned permanent living arrangement other than those listed above when there is a compelling reason that it is in the best interests of the child

Determining the Best Interests of the Child

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Current Through March 2016

Evidence of the following circumstances, if relevant, shall be considered by the court in all proceedings in which the court is required to render decisions in the best interests of the child:

  • Mental illness or an intellectual disability of the parent, as attested to by a qualified mental health professional, that renders the parent unable to care for the immediate and ongoing needs of the child
  • Acts of abuse or neglect toward any child
  • Alcohol and other drug abuse that results in an incapacity by the parent or caregiver to provide essential care and protection for the child
  • A finding of domestic violence and abuse, whether or not committed in the presence of the child
  • Any other crime committed by a parent that results in the death or permanent physical or mental disability of a member of that parent’s family or household
  • The existence of any guardianship or conservatorship of the parent pursuant to a determination or disability or partial disability

In determining the best interests of the child, the court may consider the effectiveness of rehabilitative efforts made by the parent or caregiver intended to address circumstances in this section.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may involuntarily terminate all parental rights if it is shown by clear and convincing evidence that:

  • The child has been found to be an abused or neglected child, as defined in § 600.020(1).
  • The parent has been convicted of physical or sexual abuse or neglect of any child, and 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.
  • Termination would be in the best interests of the child.

No termination of parental rights shall be ordered unless the court also finds by clear and convincing evidence the existence of one or more of the following grounds:

  • The parent has abandoned the child for a period of no less than 90 days.
  • The parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury.
  • 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.
  • The parent has been convicted of a felony that involved the infliction of serious physical injury to any child.
  • The parent, for not less than 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 there is no reasonable expectation of improvement in parental care and protection.
  • The parent has caused or allowed the child to be sexually abused or exploited.
  • 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 for the child’s well-being, and there is no reasonable expectation of significant improvement in the parent’s conduct in the immediately foreseeable future.
  • The parent’s parental rights to another child have been involuntarily terminated, and:
    • The child named in the present termination action was born subsequent to or during the pendency of the previous termination.
    • The conditions or factors that were the basis for the previous termination finding have not been corrected.
  • The parent has been convicted of causing or contributing to the death of another child as a result of physical or sexual abuse or neglect.
  • The child has been in foster care for 15 of the most recent 22 months preceding the filing of the petition to terminate parental rights.

In determining the best interests of the child and the existence of a ground for termination, the court shall consider the following factors:

  • Mental illness or mental retardation of the parent, as certified by a qualified mental health professional, that 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 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 to reunite the child with the parents unless one or more circumstances for not requiring reasonable efforts have been substantiated in a written finding by the court
  • The efforts and adjustments the parent has made in his or her circumstances, conduct, or conditions to make it in the child’s best interests to return home within a reasonable period of time
  • The physical, emotional, and mental health of the child and the prospects for the improvement of the child’s welfare if termination is ordered
  • The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so
Circumstances That Are Exceptions to Termination of Parental Rights

If the parent proves by a preponderance of evidence that the child will not continue to be an abused or neglected child if returned to the parent, the court, in its discretion, may determine not to terminate parental rights.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A newborn infant may be surrendered to a safe haven provider. The term ‘newborn infant’ means an infant who is medically determined to be less than 72 hours old.

Who May Relinquish the Infant

A newborn infant may be surrendered by a parent or any person who leaves the infant with a safe haven provider and expresses an intent to leave the infant and not return.

Who May Receive the Infant

Safe haven providers include hospitals, emergency medical services providers, police stations, and fire stations.

Responsibilities of the Safe Haven Provider

Any emergency medical services provider, police officer, or firefighter who accepts physical custody of a newborn infant shall immediately arrange for the infant to be taken to the nearest hospital emergency room and shall have implied consent to any and all appropriate medical treatment.

Every hospital that offers emergency services shall admit and provide all necessary medical care, diagnostic tests, and medical treatment to any newborn infant brought to the hospital when the identity of the parents is unknown.

Upon admittance, the physician or hospital administrator shall immediately contact the local office of the Department for Community Based Services. The Department for Community Based Services shall immediately seek an emergency custody order in accordance with § 620.350.

Every emergency room shall make available materials to gather health and medical information concerning the infant and the parents. The materials shall be offered to the person leaving the newborn infant, and it shall be clearly stated that acceptance is completely voluntary and that completion of the materials may be done anonymously. The provisions of this section shall not apply when indicators of child physical abuse or child neglect are present.

Immunity for the Provider

Any person performing medical care, diagnostic testing, or medical treatment shall be immune from criminal or civil liability for having performed the act. Nothing in this subsection shall limit liability for negligence.

Protection for Relinquishing Parent

A parent who surrenders a newborn infant shall have the right to remain anonymous and not be pursued and shall not be considered to have abandoned or endangered the newborn infant.

No child protective services investigation or assessment shall be initiated regarding the abandonment of an infant. The provisions of this subsection shall not apply when indicators of child physical abuse or child neglect are present.

Effect on Parental Rights

By placing a newborn infant in the manner described in this section, the parent:

  • Waives the right to notification required by subsequent court proceedings until such time as a claim of parental rights is made
  • Waives legal standing to make a claim of action against any person who accepts physical custody of the newborn infant

Upon the infant’s release from the hospital, the cabinet shall place the child in a foster home to provide concurrent planning placement services. ‘Concurrent planning placement services’ means the foster family shall work with the cabinet on reunification with the birth family, if known, and shall seek to adopt the infant if reunification cannot be accomplished.

At the temporary removal hearing, the court may place temporary custody with the cabinet for a minimum of 30 days. During that time, the cabinet shall request assistance from law enforcement officials to investigate through the Missing Child Information Center and other national resources to ensure that the infant is not a missing child.

As soon as practicable following the 30-day placement period, the cabinet shall file a petition with the court seeking the involuntary termination of parental rights of the unknown parents. If a claim of parental rights is made at any time prior to the court order terminating rights, the court may hold the action for involuntary termination of parental rights in abeyance for no longer than 90 days.

A hearing shall be conducted within 10 days of the assertion of parental rights. The court may order genetic testing to establish maternity or paternity at the expense of the claimant. The cabinet shall conduct a child protective services investigation or assessment and home evaluation to develop recommendations for the court.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘de facto custodian’ means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of 6 months or more if the child is under age 3 and for a period of 1 year or more if the child is age 3 or older or has been placed by the Cabinet for Health and Family Services.

In regulation: The term ‘caretaker relative’ means a relative with whom the child is, or shall be, placed by the cabinet and who is seeking to qualify as a kinship caregiver. A ‘kinship caregiver’ is the qualified caregiver relative of a child with whom the child is placed by the cabinet as an alternative to foster care.

Purpose of Guardianship

The permanency goal for a child in the custody of the cabinet shall be permanent relative placement if:

  • Return to the parent is not in the child’s best interests.
  • A relative who does not pursue adoption or legal guardianship is able to provide a permanent home for the child.

The permanency goal for a child in the custody of the cabinet shall be legal guardianship if the cabinet determines that:

  • Return to the parent or adoption is not in the child’s best interests.
  • There is an identified adult willing to seek legal guardianship of this child.
  • Legal guardianship by the identified adult is in the child’s best interests.
A Guardian’s Rights and Responsibilities

This issue is not addressed in the statutes and regulations reviewed.

Qualifying the Guardian

The caregiver relative of the child and each adult member of the household shall undergo a criminal records check and a child abuse and neglect check conducted by the cabinet. Each adolescent household member of the caregiver relative’s home shall undergo a child abuse and neglect check.

The caregiver relative and each household member shall agree to undergo a relative home evaluation. During a relative home evaluation, the cabinet shall consider the caregiver relative’s understanding of the impact that familial abuse, neglect, or substance abuse may have on a child and the child’s extended family and their willingness and ability to:

  • Protect the child from abuse or neglect
  • Assume permanent custody
  • Participate in the child’s case permanency plan
  • Access transportation, telephone, medical services, first aid supplies, and school
  • Provide full-time care
  • Accommodate for the child within the home, including:
    • Providing for the child’s sleeping and eating
    • Maintaining adequate heat and ventilation in the home
    • Using active smoke detectors in the home
    • Assuring the child’s inaccessibility to medication, alcoholic beverages, poisonous substances, cleaning materials, ammunition, firearms, and unsupervised contact with a birth parent
Procedures for Establishing Guardianship

The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:

  • The wishes of the child’s parent and any de facto custodian
  • The wishes of the child
  • The interaction of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interests
  • The child’s adjustment to his or her home, school, and community
  • The mental and physical health of all individuals involved
  • Information, records, and evidence of domestic violence
  • The extent to which the child has been cared for, nurtured, and supported by any de facto custodian
  • The intent of the parents in placing the child with a de facto custodian
  • The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence
Contents of a Guardianship Order

Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section.

Modification/Revocation of Guardianship

his issue is not addressed in the statutes and regulations reviewed.

Eligibility for Guardianship Subsidy

To the extent funds are available, the cabinet may consider a child for initial eligibility in the kinship care program if the cabinet:

  • Determines that the child is at risk of removal from the child’s home with the child’s biological or adoptive parent and would otherwise be placed in foster care, or is in the custody of the cabinet and residing in foster care due to:
    • A cabinet investigation that resulted in a substantiation of abuse or neglect within 120 calendar days of placement in the home of the caregiver relative and prior to April 1, 2013
    • The death of both parents
  • Places the child with a caregiver relative prior to April 1, 2013, due to abuse or neglect or the death of both parents

Kinship care program benefits shall be available to a child who was placed by the cabinet with a nonparental relative in accordance with this administrative regulation and whose initial eligibility determination for the kinship care program took place prior to April 1, 2013.

Links to Agency Policies

Kentucky Administrative Regulations, 922 KAR 1:130. Kinship Care Program

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

In placing a child, the cabinet shall use the least restrictive and appropriate placement available. Preference shall be given to available and qualified relatives of a child for custody placement.

Requirements for Placement with Relatives

Before a child can be placed in the home of a relative caregiver, a criminal background check of the relative and all adult household members must be completed.

To the extent that funds are available, the cabinet may establish a program for kinship care that provides a more permanent placement with a qualified relative for a child who would otherwise be placed in foster care.

Requirements for Placement of Siblings

This issue is not addressed in the statutes and regulations reviewed.

Relatives Who May Adopt

A relative is a person related to the child through blood, marriage, or adoption, including a stepparent, grandparent, sister, brother, aunt, uncle, great-grandparent, great-aunt, or great-uncle.

Requirements for Adoption by Relatives

The adoption of a child by a relative does not require placement by an agency or the permission of the secretary, as other adoptions do. Before a child can be placed in the home, the secretary will require a criminal background check of the relative and all adult household members.

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services that are available to the community and necessary to enable to child to live safely at home.

When Reasonable Efforts Are Required

Reunification services are remedial services that are designed to:

  • Strengthen the family unit
  • Secure reunification of the family and child, where appropriate, as quickly as practicable
  • Prevent the future removal of the child from the family

When the court is petitioned to remove or continue the removal of a child from the custody of his parent or other person exercising custodial control or supervision, the court first shall consider whether the child may be reasonably protected against the alleged dependency, neglect, or abuse by alternatives less restrictive than removal. Such alternatives may include, but shall not be limited to, the provision of medical, educational, psychiatric, psychological, social work, counseling, day care, or homemaking services with monitoring wherever necessary by the Cabinet for Health and Family Services or other appropriate agency. When the court specifically finds that such alternatives are adequate to reasonably protect the child against the alleged dependency, neglect, or abuse, the court shall not order the removal or continued removal of the child.

If the court orders the removal or continues the removal of the child, services provided to the parent and the child shall be designed to promote the protection of the child and the return of the child safely to the child’s home as soon as possible. The cabinet shall develop a treatment plan for each child designed to meet the needs of the child.

When Reasonable Efforts Are NOT Required

Reasonable efforts shall not be required if a court determines that:

  • The parent has subjected the child to aggravated circumstances, including any of the following:
    • The parent has not had contact with the child for more than 90 days.
    • The parent is incarcerated for at least 1 year, will be unavailable to care for the child, and there is no appropriate relative to care for the child.
    • The parent has sexually abused the child and refused available treatment.
    • The parent has engaged in abuse of the child that required removal two or more times in the last 2 years.
    • The parent has caused the child serious physical injury.
  • The parent has been convicted of having caused the death of another child of the parent.
  • The parent has committed a felony assault that resulted in serious bodily injury to the child or another child of the parent.
  • The parent had his or her parental rights to another child terminated involuntarily.
  • The parent has engaged in a pattern of conduct due to alcohol or drug abuse that has rendered the parent incapable of caring for the immediate and ongoing needs of the child, and has refused or failed to complete a treatment plan.
  • The parent has a mental illness or retardation that places the child at substantial risk of harm even if services were provided to the parent for 12 months.
  • The parent has sexually abused the child or is required to register on a sex offender registry under 42 U.S.C. § 16913, the Adam Walsh Child Protection and Safety Act of 2006.
  • Other circumstances make reasonable efforts inconsistent with the best interests of the child and the permanency plan for the child.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

 

 

CPS Statutes & Rules

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OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT