S.T. AND J.T. APPELLANTS
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; HON. HUGH SMITH HAYNIE; S.J.; D.J.; A.C.; D.M.; OFFICE OF THE JEFFERSON COUNTY ATTORNEY; ELIZABETH PEPA; K.C., A CHILD; and K.M., A CHILD APPELLEES
APPEALS FROM JEFFERSON CIRCUIT COURT HONORABLE HUGH SMITH
HAYNIE, JUDGE ACTION NOS. 15-J-504243-002 AND 17-J-501572-002
FOR APPELLANTS: Armand I. Judah Louisville, Kentucky
FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Jennifer
E. Clay Louisville, Kentucky
BEFORE: GOODWINE, NICKELL, AND SPALDING, JUDGES.
No. 2019-CA-000080-ME, S.T., and her husband, J.T. (jointly,
"the T's"), challenge denial of their motion to
intervene in a custody matter pertaining to K.M., S.T.'s
great-niece. The Jefferson Circuit Court heard the petition
before ruling the T's could not invoke KRS
620.110 because neither petitioner was K.M.'s
natural parent as the court believed was required by C.K.
v. Cabinet for Health and Family Services, 529 S.W.3d
786 (Ky. App. 2017). The T's did not move the court to
reconsider denial of their petition. The same order addressed
a second child, K.C.-K.M.'s half-sister-to whom neither
of the T's is related. Case No. 2018-CA-001840-ME echoes
the argument as it pertains to K.C., acknowledging no blood
relation but urging the court to keep the half-siblings
together. In this appeal, the T's challenge the award of
temporary custody, and ultimately permanent custody, of both
girls to family friends rather than blood relatives. We
ordered the two appeals to be heard together. Having reviewed
the record, briefs and law, we affirm.
AND PROCEDURAL BACKGROUND
(mother) and D.M. (father) are the unmarried natural parents
of K.M., a daughter born December 5, 2016. S.T. is
father's aunt and K.M's great-aunt. K.C. is a girl
born to mother on November 22, 2015, by a different man.
Mother and father have significant histories of domestic
violence and substance abuse; father has anger issues. An
ongoing Child Protective Services ("CPS") case
involving mother and father was closed in September 2017.
Neglect was substantiated against mother when K.C. tested
positive for opiates at birth.
a physical altercation between mother and father on November
3, 2017, the Cabinet for Health and Family Services
("CHFS") filed juvenile petitions naming both
parents and alleging K.C. and K.M. were neglected or abused
by being present during the altercation. Mother said the
girls were awake; father maintained they were asleep.
November 14, 2017, a domestic violence order
("DVO") was entered directing parents to have no
contact with one another. On December 5, 2017, father told
CPS worker Katy Coleman he and mother had used drugs together
in violation of the no contact order. At the time of the
temporary removal hearing on December 20, 2017, mother had
fled Kentucky with both children. She claimed she was in New
York, but the children were located in Florida. Father was at
work. Neither parent attended the removal hearing and neither
identified any relative for potential family placement.
Temporary custody of both girls was given to CHFS which
placed them in foster care.
eventually named as a potential placement S.J. and D.J.
(jointly, "the J's")-a married couple mother
had met through a ministry and considered to be family
friends. Father named no one. During a pretrial hearing in
February 2018, temporary custody of the girls was given to
trial on May 9, 2018, the trial court found "domestic
violence placed the children at risk of harm" and
ordered the girls to remain with the J's. At a
disposition hearing on July 18, 2018, the trial court found
reasonable efforts had been made to prevent removal of the
children from the parental home. All prior, consistent orders
post-disposition review was conducted on September 12, 2018.
Reiterating the matter had already been adjudicated, the
court considered father's motion for custody. Proof was
heard about two incidents of father's aggressive behavior
while exchanging the children with the J's. The trial
court found father was "not credible," was accusing
all of "corruption," and had "zero
accountability, and zero appreciation for what the [J's]
have done for him and his children." Terming
father's behavior "too troubling," his custody
motion was overruled as not being in the best interests of
the girls. The next day, father sought dismissal of the DVO
between he and mother. CPS worker Parker Hall urged the court
to hold mother and father in contempt of court orders entered
December 20, 2017.
September 26, 2018, the J's, at the request of CHFS,
moved for permanent custody of K.C. and K.M. At a hearing on
October 10, 2018, the county attorney and CHFS endorsed the
J's motion for permanent custody. That same day,
father's attorney moved to withdraw, and father declined
appointment of new counsel. The trial court warned father the
permanent custody hearing scheduled for November 14, 2018,
would not be delayed due to lack of counsel.
October 19, 2018, the T's made themselves known to the
trial court for the first time,  moving to intervene and seek
custody of both girls. Their succinct motion recited:
[t]he Cabinet was aware that family members were available
and willing to take the children as early as August 2018. The
Cabinet failed to investigate to discover their suitability
as custodians. The [T's] requested visitation, but the
request was denied.
Pursuant to KRS 620.090, the Cabinet is to use the least
restrictive placement possible, and preference is to be given
to available and qualified relatives. Further, pursuant to
KRS 620.110, any person aggrieved by the issuance of a
temporary custody order may file a petition for immediate
entitlement to custody, and a hearing shall be expeditiously
motion bore the case numbers for each girl, but was filed
only in K.C.'s case, the child to which neither of the
T's is related. Accompanying the petition was an
affidavit signed by the T's saying:
1. [S.T.] is the great-aunt of the child, [K.M.] (she is the
aunt of [father]).
2. [The T's] state that the temporary custodians, [the
J's], are not related to either of the children.
3. [The T's] state that they were never told that this
case was pending.
4. [The T's] state that they were never told that the
children had been removed. [The T's] state that they have
only just found out about this.
5. [The T's] state that they had not seen the children
and had asked [father] about seeing the children, but he lied
to [them] about the status of the children. [Father] told
[them] that the children were doing great, but [the T's]