G. P.  APPELLANT
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.P., A MINOR CHILD APPELLEES
FROM KENTON CIRCUIT COURT HONORABLE CHRISTOPHER J. MEHLING,
JUDGE ACTION NO. 15-J-01617-003
FOR APPELLANT: Joseph T. Ireland Covington, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky,
Christopher S. Nordloh Special Assistant Attorney General
BEFORE: MAZE, NICKELL, AND K. THOMPSON, JUDGES.
("Father") appeals from an order of the Kenton
Circuit Court, Family Division, committing his son, M.P.
("Child"),  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.
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 in heroin and fentanyl; he denied 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.
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 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.
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.
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.
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.
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." KRS620.060(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.
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.
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
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
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.
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 ...