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S.T. v. Cabinet for Health And Family Services

Court of Appeals of Kentucky

September 13, 2019

S.T. AND J.T.[1] APPELLANTS
v.
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

          BRIEFS FOR APPELLANTS: Armand I. Judah Louisville, Kentucky

          BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Jennifer E. Clay Louisville, Kentucky

          BEFORE: GOODWINE, NICKELL, AND SPALDING, JUDGES.

          OPINION

          NICKELL, JUDGE.

         In Case 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[2] 620.110[3] 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.

         FACTS AND PROCEDURAL BACKGROUND

         A.C. (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.

         Following 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.

         On 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.

         Mother 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 the J's.

         At 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 were continued.

         A 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.

         On 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.

         On October 19, 2018, the T's made themselves known to the trial court for the first time, [4] 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 held.

         The 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] ...

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