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K. C. O. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

April 7, 2017

K. C. O. APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES; C. D.; R. D.; AND C. R. O. APPELLEES AND C. O.
v.
CABINET FOR HEALTH AND FAMILY SERVICES; C. D.; R. D.; AND K. C. O. APPELLEES

         APPEAL FROM WARREN CIRCUIT COURT HONORABLE CATHERINE RICE HOLDERFIELD, JUDGE ACTION NOS. 15-J-00445-001, 15-J-00445-001.

          BRIEFS FOR APPELLANT K. C. O.: Joy D. Denton Bowling Green, Kentucky.

          BRIEFS FOR APPELLANT C. O.: Steve O. Thornton Bowling Green, Kentucky.

          BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie Bucklew Assistant Warren County Attorney Bowling Green, Kentucky.

          BRIEF FOR APPELLEES, C. D. AND R. D.: Trevor W. Webb Bowling Green, Kentucky.

          BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE.

         Biological parents, K.C.O. (mother) and C.O. (father), challenge the Warren Circuit Court's award of grandparent visitation to R.D. and C.D. (paternal grandparents) in an informal adjustment order entered in a juvenile dependency, neglect and abuse (DNA) proceeding in November 2015. Parents also challenge the court's March 2016 denial of motions to alter, vacate or amend the award and motions to terminate the award. Upon review of the record, the briefs, and the law, we affirm in part, vacate in part and remand for entry of an order consistent with this Opinion.

         By statute, an award of grandparent visitation begins with a grandparent petitioning for visitation under KRS[2] 405.021(1) and demonstrating visitation will be in the child's best interest by clear and convincing evidence. This is not such a case. The paternal grandparents never requested visitation; the trial court, sua sponte, granted it even though the paternal grandparents had not filed a petition seeking visitation, were not parties to the DNA case, and had not moved to intervene in the DNA case. Curiously, the maternal grandparents (K.C. and B.C.), and the maternal great-grandparents (D.B. and B.B.), [3] all of whom had moved to intervene, were not granted visitation.

Visitation is not solely for the benefit of the adult visitor but is aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child's emotional well-being by permitting partial continuation of an earlier established close relationship." Looper v. McManus, Okla.App., 581 P.2d 487, 488 (1978).

Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979) (abrogated by statute, as noted in B.F. v. T.D., 194 S.W.3d 310 (Ky. 2006)).

         According to the DNA petition filed by the paternal grandparents, their three-year-old grandson was living with his parents in a home rife with domestic violence and regular intravenous methamphetamine use. On August 7, 2015, mother telephoned the paternal grandparents saying she and their child's father had been involved in a domestic violence episode in their son's presence. The paternal grandparents suspected parents were using drugs-something mother admitted had been occurring since father's release from drug court several months earlier-prompting the paternal grandparents to take mother and child into their home.

         On August 13, 2015, the parents allowed the paternal grandparents to take the child to an out-of-state wedding. Upon their return, the paternal grandparents asked to keep the child while the parents addressed their drug issues. According to the petition, the parents responded by threatening to cause bodily harm to the paternal grandparents and burn their home; the parents collected the child and refused to allow the paternal grandparents to see him. In response, some eighteen days after this episode began, the paternal grandparents filed a juvenile DNA petition-supported by affidavit-in the family court division of the Warren Circuit Court, resulting in removal of child from both mother and father.

         At the temporary removal hearing[4] that followed, no sworn testimony was heard, but there was reference to rancor and discord between the paternal grandparents and their son, the child's father. When a civil, but passionate, battle for the child erupted between the maternal and paternal sides of the family, the trial court stated emphatically it was not conducting a custody hearing and encouraged everyone to "get real amicable real fast if you want this child to stay out of foster care." At the time of this hearing, CHFS had visited only the paternal grandparent's home, where the social worker met the child whom she described as well-adjusted.

         Troubled by internal squabbles between the in-laws, but glad to see relatives were willing to take the child, the court warned that family conflict had to be reduced. The court also expressed suspicion that all the grandparents knew more about the parents' activities than they were revealing. The court maintained the status quo, giving both sets of grandparents equal visitation with the child at the discretion of CHFS. Visitation by the parents was to be supervised.

         By October 16, 2015, CHFS had completed home evaluations of the maternal great-grandparents, the maternal grandparents, and the paternal grandparents, deeming all to be appropriate placements. Of the three options, the social worker recommended placement with the maternal grandparents because the child "has a strong bond" with them and they are "very supportive of [the parents] in their recovery and progress." The maternal great-grandparents were willing to take the child, but favored placement with the maternal grandparents due to the child's "strong bond" with them and the fact that other children were in the maternal grandparents' home. The social worker did not recommend placement with the paternal grandparents "because there is another home that is better suited for placement of the ...


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