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G. P. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

March 15, 2019



          BRIEF FOR APPELLANT: Joseph T. Ireland Covington, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky, Christopher S. Nordloh Special Assistant Attorney General Covington, Kentucky



          NICKELL, JUDGE

         G.P. ("Father") appeals from an order of the Kenton Circuit Court, Family Division, committing his son, M.P. ("Child"), [2] to the Cabinet for Health and Family Services ("CHFS"). Father urged custody be awarded to K.P. ("Stepmother")-the estranged wife he attempted to make Child's guardian by executing a Power of Attorney ("POA") and whom CHFS approved and also proposed as Child's custodian. Alternatively, Father suggested three blood relatives as potential custodians. Following review of the record, briefs and law, we affirm.


         A termination of parental rights ("TPR") petition was pending against R.Y. for twenty months. During that time, Child was committed to CHFS which placed him in foster care with J.F. ("Foster Mother"). When it was determined Child was not R.Y.'s son, Father acknowledged paternity and received custody of Child in November 2017. On June 19, 2018, while Father had custody of Child- but Child was physically with Stepmother at a different residence-Father was arrested by federal authorities and jailed on charges of trafficking[3] in heroin and fentanyl; he denied the charges.

         The arrest occurred at Father's two-bedroom apartment in Covington, Kentucky. While executing a search warrant of the apartment, officers seized- from what appeared to be a child's bedroom containing toys-a large quantity of drugs and a handgun without a lock or device to prevent firing.

         Following Father's arrest, CHFS petitioned for temporary removal of Child from Father, proposing Stepmother as temporary custodian. Child was represented by a guardian ad litem ("GAL") who proposed Child be returned to CHFS for placement with Foster Mother. While the petition was pending, Father executed a POA[4] purportedly naming Stepmother as Child's guardian and custodian. The trial court excluded the POA from the record and there was no attempt to introduce it by avowal. Content of the purported POA is unknown.

         No sworn testimony was taken at the temporary removal hearing. Discussions between attorneys, the GAL and the CHFS caseworker revealed during the six months Father had custody of Child, Stepmother likely provided the majority of Child's care, control and supervision during the week-when he was not at daycare-and Child spent most weekends with Foster Mother who had planned on adopting Child before Father acknowledged paternity. The GAL argued Foster Mother occasionally picked up Child from daycare during the week. Father and Stepmother are married, but separated in January 2018 and live apart.

         It was determined Stepmother is biologically unrelated to Child, and in the trial court's words, had possession of Child "only because of a romantic relationship with the biological dad, and [Stepmother] tells you they split up." The GAL objected to Stepmother being in the courtroom during the hearing because she was not a party. The petition, which did not seek an emergency custody order ("ECO"), identified Stepmother as a "person exercising custodial control over Child." Thereafter, the trial court excluded Stepmother from the confidential proceeding because she was neither a parent nor a named party. The trial court further excluded Stepmother from consideration as a custodian because she was not Child's parent or a blood relative, terming Stepmother a "stranger" to the boy.

         CHFS recommended Child be placed with Stepmother. The GAL urged Child be placed with Foster Mother, arguing she had an ongoing relationship with Child, was caring for him on weekends and occasionally during the week, and Stepmother had to know of Father's illegal drug activities because she was driving a new Camaro he bought for her and without proceeds from illegal drug deals he lacked independent means to buy a new car. The caseworker confirmed Child would be placed with Foster Mother if committed to CHFS.

         When the hearing ended, the trial court signed an ECO, finding service could not be made on the biological mother; no available relatives had been served and brought before the Court; and, Child was "in immediate danger due to the parent's failure or refusal to provide for the safety or needs of the child." KRS[5]620.060(1)(c). The last finding was based on Father's arrest, as well as drugs and an unsafe weapon being found in the apartment. Custody of Child was awarded to CHFS which placed him with Foster Mother where he is thriving.

         Father telephonically attended the removal hearing on June 28, 2018, where the trial court again found Stepmother was not a party, was biologically unrelated to Child, and lacked standing, noting Stepmother had separated from Father and was living apart from him at a different address. Without elaborating, counsel for Father argued the "emergency" the trial court believed existed when it signed the ECO did not really exist. Counsel also suggested standing was a non-issue because Stepmother had exercised custodial control over Child and had been named in the POA before the trial court awarded custody to CHFS. The trial court said it was unconvinced of the accuracy of counsel's bare suggestion. Counsel reiterated Child should be placed with Stepmother because she was Father's choice, as reflected in the POA which purportedly attempted to make her Child's guardian. Although providing no details, counsel alleged Stepmother had established and maintained a bond with Child.

         The GAL again strongly opposed Stepmother receiving custody, arguing it was in Child's best interest to be placed with Foster Mother to create needed long-term permanency. The GAL again emphasized the POA was signed after Father's arrest, noted Father's current federal charges were in addition to previously filed federal charges, and Child's biological mother had not successfully worked a case plan since the TPR proceeding against R.Y. which resulted in Child being awarded to CHFS and being placed with Foster Mother for twenty months.

         The trial court was persuaded by the GAL's position, highlighting Foster Mother's lengthy, ongoing relationship with Child in comparison to Stepmother's short time with him about which there was no proof of a true or thriving relationship. Additionally, Foster Mother was prepared to adopt Child during his first stint in foster care, and there was the looming specter of Father facing extended federal incarceration. The trial court left Child in CHFS custody.

         Detective Rogers of the Covington Police Department participated in the search of Father's apartment. He testified at the adjudication hearing a large quantity of narcotics and a handgun were seized from a child's bedroom in the apartment where mail, car titles and a driver's license bearing Father's name were found. No child was present during the search. Detective Rogers did not know whether the handgun was loaded, but testified he did not believe it had a lock, safety mechanism or device to keep it from firing.

         Father's attempt to introduce the POA was again rejected. At the conclusion of the hearing, the trial court again found Child was neglected, noting the handgun-lacking a safety mechanism-was found in the child's bedroom. According to the trial court, lack of a "device to keep it ...

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