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(Cite as: 706 S.W.2d 840)
Court
of Appeals of Kentucky.
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
March 28, 1986.
*841
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. § 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.
§ 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. § 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, *842
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 supported by the record. In so doing,
the court below correctly applied the provisions of the Indian Child Welfare
Act, requiring proof beyond a reasonable doubt rather than the general
state standard of clear and convincing evidence.
After reviewing all of the evidence
and the lower court's findings, it is our opinion that the trial judge
found the cumulative effect of all the various factors constituted proof
beyond a reasonable doubt that continued custody of J.H. by either G.W.H.
or D.W.H. was likely to result in serious emotional and/or physical damage
to the child. When taken alone, the one incidence of medical
neglect, the alcohol abuse, the suicide attempts, or the unstable home
environment may not be enough to meet the stringent standard of proof.
However, in light of all the evidence, when considered together with the
testimony
of qualified expert witnesses, we believe there was sufficient evidence
to support the judgment of the trier-of-fact.
As did the circuit court, we
have examined numerous cases of other jurisdictions applying the Indian
Child Welfare Act. The great majority of those decisions have
held that the state met its burden of proof beyond a reasonable doubt
that termination was justified, particularly where, as here, all other
rehabilitative programs and efforts had proved unsuccessful. People
in Interest of P.B.,
S.D., 371 N.W.2d 366 (1985); D.E.D.
v. State, Ak., 704
P.2d 774 (1985); People
in Interest of C.A.J.,
Colo.App., 709 P.2d 604 (1985); Matter
of Welfare of W.R.,
Minn.App., 379 N.W.2d 544 (1985).
As the trial court noted in its
detailed findings:
They
both are still living with whomever will take them in. They
have failed to establish any type of stable home environment. They
have refused to undergo any counseling.... We have a situation where
foster care, in which J.H. now finds herself, is the only stable environment
in which this child has ever lived. The parents of this child
appear to be unable to provide for themselves, let alone provide a home
for their child.
While we strongly believe that
termination of parental rights is a drastic step that should not be taken
absent the failure of less permanent alternatives, this appears to be
a case where anything less will not be in the best
interests of this child.
The
appellants also contend that the Act's requirement of "qualified
expert witnesses" was not met in this case by the *843
social workers who testified on behalf of the Cabinet. Counsel
for appellants argue that an insight or expertise into Indian customs
or practices is required by the spirit of the 1978 Act.
Again, we have looked to the
law of other states interpreting the Act and conclude that, under those
holdings, the Cabinet's witnesses were qualified experts. The
failure of these experts to possess special knowledge of Indian life was
not fatal and the court did not abuse its discretion in admitting testimony
of "professional persons having substantial education and experience
in the area of his or her specialty." Federal Register
Vol. 44, No. 228, 11/26/79, p. 67593; Matter
of J.L.H. and P.L.L.H.,
S.D., 316 N.W.2d 650 (1982); State
ex rel. Juvenile Dept. of Lane Co. v. Tucker,
76 Or.App. 673, 710 P.2d 793 (1985).
In conclusion, based on all the
evidence, we believe the Cabinet for Human Resources has met its burden
of proof required by 25 U.S.C. § 1912 (f) to terminate parental
rights by producing evidence beyond a reasonable doubt, including the
testimony of qualified expert witnesses, that custody of the child, J.H.,
by either of the parents is likely to result in serious emotional or physical
damage to the child.
Accordingly, the judgment is affirmed.
All concur.
706 S.W.2d 840
END OF DOCUMENT
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2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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