Opinion
2023-CA-1160-ME
06-21-2024
J.P. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.W.; N.W.; B.G.; J.J.; AND L.J., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: PETER A. ROUSH COVINGTON, KENTUCKY BRIEF FOR APPELLEES N.W. AND A.W.: RENE B. HEINRICH G. KEITH GAMBREL NEWPORT, KENTUCKY BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY: RUSSELL COLEMAN ATTORNEY GENERAL OF KENTUCKY STEPHEN G. DASENBROCK ERIC D. SCHWARBER SPECIAL ASSISTANT ATTORNEYS GENERAL NEWPORT, KENTUCKY NO BRIEFS FOR APPELLEES J.J. AND B.G.
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE ABIGAIL E. VOELKER, JUDGE ACTION NO. 23-J-00033-001
BRIEFS FOR APPELLANT: PETER A. ROUSH COVINGTON, KENTUCKY
BRIEF FOR APPELLEES N.W. AND A.W.: RENE B. HEINRICH G. KEITH GAMBREL NEWPORT, KENTUCKY
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY: RUSSELL COLEMAN ATTORNEY GENERAL OF KENTUCKY STEPHEN G. DASENBROCK ERIC D. SCHWARBER SPECIAL ASSISTANT ATTORNEYS GENERAL NEWPORT, KENTUCKY
NO BRIEFS FOR APPELLEES J.J. AND B.G.
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.
OPINION
THOMPSON, CHIEF JUDGE
J.P. ("Grandmother") appeals from an order of the Campbell Family Court which denied her motion for custody of L.J. ("Child").We find no error and affirm.
As this case revolves around the custody of a child, we will not use the names of the parties in order to protect the privacy of the child.
FACTS AND PROCEDURAL HISTORY
J.J. ("Mother") learned of her pregnancy with Child while she was at the hospital after sustaining injuries inflicted upon her by B.G. ("Father"), child's biological father. Upon learning of the pregnancy, she contacted an adoption agency and eventually chose A.W. and N.W. (hereinafter collectively referred to as "Custodians") to be the adoptive parents of Child. Custodians were involved with the pregnancy and were with Mother at the birth. Child was born on January 23, 2023. Child was born four weeks premature and born with multiple medical issues. Child was also born with drugs in his system. The next day, Father took a DNA test to confirm paternity.
Father was arrested for the assault, but was later bailed out by Grandmother. Grandmother is the paternal grandmother of Child.
While in the hospital, Mother signed documents giving Custodians power of attorney over Child and a consent form to release Child to Custodians upon discharge. Mother was discharged from the hospital on January 28, 2023, and Child was discharged two days later. Child went home with Custodians.
Soon after, Custodians began receiving messages that Mother wanted Child back. On February 3, 2023, Custodians filed an emergency motion for temporary custody. That motion was granted. A hearing was held five days later, and testimony was received that Mother wanted custody of Child to go to her friend's mother or friend's grandmother. Testimony also revealed that Grandmother would be ineligible to receive custody because she lived in Ohio. Following the hearing, the court ordered that temporary custody was to remain with Custodians.
On March 7, 2023, Grandmother filed a motion to intervene and requested she be given custody of Child. The court granted her motion to intervene the next day. On March 15, 2023, an adjudication hearing occurred where Mother admitted to neglect and Father admitted to dependency.
Grandmother was also granted visitation with Child after this hearing. A disposition hearing was held on April 19, 2023, and the court ordered that Child was to remain with Custodians.
On June 13, 2023, a custody hearing was held based on Grandmother's motion for custody. All parties involved testified, along with a Cabinet social worker and a child psychologist. The court ultimately determined that Child's best interests would be served if he was to remain with Custodians for the time being. Grandmother moved to alter, amend, or vacate, but that motion was denied. This appeal followed.
STANDARD OF REVIEW
In reviewing a child-custody award, the appellate standard of review includes a determination of whether the factual findings of the family court are clearly erroneous. A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person. Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court's decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005) (footnotes and citations omitted). Additionally, we review issues of statutory interpretation de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003).
ANALYSIS
Before we turn our attention to the merits of this appeal, we must first address some preliminary issues. The statute at issue in this case is Kentucky Revised Statutes ("KRS") 620.090, which states in relevant part:
(1) If, after completion of the temporary removal hearing, the court finds there are reasonable grounds to believe the child is dependent, neglected or abused, the court shall:
(a) Issue an order for temporary removal and shall grant temporary custody to the cabinet or other appropriate person or agency. Preference shall be given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known. The order shall state the specific reasons for removal and show that alternative less restrictive placements and services have been considered. The court may recommend a placement for the child[.]
...
(2) In placing a child under an order of temporary custody, the cabinet or its designee shall use the least restrictive appropriate placement available. Preference shall be given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known. The child may also be placed in a facility or program operated or approved by the cabinet, including a foster home, or any other appropriate available placement.
However, under no circumstance shall the child be placed in a home, facility, or other shelter with a child who has been committed to the Department of Juvenile Justice for commission of a sex crime as that term is defined in KRS 17.500, unless the child committed for the commission of a sex crime is kept segregated from other children in the home, facility, or other shelter that have not been committed for the commission of a sex crime.
Grandmother argues that because she was an available and qualified relative to Child, she was entitled to custody.
Custodians argue that KRS 620.090 is not applicable in this case because it only applies to temporary custody and Custodians were already awarded temporary custody in February of 2023. In other words, since Custodians already had temporary custody, this temporary custody statute does not apply. The trial court did not rule on this issue and treated Grandmother's motion for custody as one for temporary custody.
Also relevant is that this seems to be an appeal from a temporary order, which is usually not ripe for appeal. B.D. v. Commonwealth, Cabinet for Health and Family Services, 426 S.W.3d 621, 622 (Ky. App. 2014). On the other hand, Grandmother also appealed the disposition order, which can be appealed. J.E. v. Cabinet for Health and Family Services, 553 S.W.3d 850 (Ky. App. 2018). Further complicating matters is the fact that the trial court entered a disposition order before ruling on Grandmother's motion for temporary custody. Had the temporary custody issue been completely resolved before the disposition was entered, there would be no problem.
Out of an abundance of caution, and because Grandmother appealed from the disposition order, we will examine Grandmother's arguments and rule on the merits of the case.
On appeal, Grandmother argues that the trial court misinterpreted KRS 620.090 and erred in not giving her temporary custody of Child. As previously stated, Grandmother argues that because she was an available and qualified relative to Child, she was entitled to custody. She bases this argument on the language of the statute and the case of J.M. v. Commonwealth, Cabinet for Health and Family Services, 325 S.W.3d 901 (Ky. App. 2010). In J.M., a grandmother moved to intervene in a dependency, neglect, and abuse action and sought temporary custody of three of her grandchildren. At the time, the grandmother lived in Ohio and a home study of the grandmother's home was conducted by Ohio authorities. The grandmother's home was approved for placement by the Ohio officials and those officials recommended that the grandmother be given temporary custody.
After reading the full report from the Ohio officials, the Cabinet and family court had concerns that the grandmother's home might not be appropriate. Ultimately, the court ordered that the children remain with the Cabinet. The grandmother appealed the order and argued that KRS 620.090 mandated that she get custody.
The Court of Appeals held that KRS 620.090 states that "a court is required to place children with a family member who is qualified[.]" J.M., 325 S.W.3d at 903 (emphasis in original). The Court went on to hold, however, that the grandmother in that case was not qualified because of the issues raised by the Cabinet and trial court. The Court then affirmed the trial court's judgment that the grandmother should not be given custody.
In this case, Grandmother argues that because the Court in J.M. stated that a court was "required" to place a child with a family member who was qualified, she must get custody of Child. She argues she is available and qualified to receive Child because she is a pediatric nurse, has no criminal record, and has a home in Kentucky that was found acceptable by the Cabinet.
Grandmother resides in Ohio with her husband, but bought a travel trailer and installed it in Kentucky when she began her fight for custody of Child. She is not currently living in it, but it is available, has running water and electricity, and was approved by the Cabinet.
The Custodians argue that KRS 620.090 does not mandate that a relative always get custody of a child, but that they be considered and given preference. Custodians, and the trial court, both relied on the case of P.W. v. Cabinet for Health and Family Services, 417 S.W.3d 758 (Ky. App. 2013), which also considered the relative placement language in KRS 620.090. In P.W., the Court of Appeals held that "although the Cabinet is required to consider any known and qualified relatives in its determination of proper placement, [statutes] do not mandate that the Cabinet choose a relative placement over other options." Id. at 761 (citation omitted) (emphasis in original). Furthermore, "[t]here can be no question that the overriding legislative policy of the pertinent statutes and regulations is consideration of the best interests of children." Id. (citation omitted).
After considering the arguments of the parties, the language of KRS 620.090, and the case law interpreting that statute, we conclude that KRS 620.090 does not mandate relative placement. While J.M. might have used the word "required" at one point when discussing relative placement, J.M. still went on to deny such a placement. That court still held the best interests of the children were paramount above all else. We agree with Custodians that there is no requirement for relative placement. The trial court should give preference to relative placement when it can, but there is no mandate.
In this case, the trial court considered Grandmother as an available placement for Child, but ultimately concluded that Child remaining with Custodians was what was in Child's best interests. This was an appropriate ruling and based on substantial evidence. The court was not fully convinced that Grandmother would move into the travel trailer should she get custody of Child. It would mean moving out of the marital home and further away from her job and family. The court was also concerned about Grandmother bailing Father out of jail after he assaulted Mother while she was pregnant. The court believed this was enabling behavior. The court also had an issue with the testimony of Grandmother's husband and did not believe he was fully on board with parenting Child.
The court later made additional findings and clarifications in its order denying Grandmother's motion to alter, amend, or vacate. The court indicated that it also took into consideration the testimony of the child psychologist who testified at the custody hearing. The court considered the testimony that a child this young can suffer trauma whenever he or she is removed from one caregiver and given to another. If the court were to remove Child from Custodians' care and give him to Grandmother, then later return Child to the parents should they complete a reunification case plan, the move from Custodians to Grandmother would be an extra, unnecessary trauma when considering Child's best interests. The court also clarified that Grandmother was uniquely qualified to care for Child's medical needs due to her training and skills as a pediatric nurse, but that did not make her a qualified relative as required by KRS 620.090. The court stated that for the reasons set forth previously, it had reservations about granting her custody.
To summarize, the trial court held that Grandmother was not a qualified relative due to the issues it raised in the two orders discussed above. The court also held that it was in Child's best interests to remain with Custodians. Both conclusions are supported by substantial evidence and the court's decision regarding custody was not an abuse of discretion. The court also did not misinterpret KRS 620.090.
CONCLUSION
We acknowledge that this case was a close call. Custodians had been caring for Child since his birth and were planning to adopt Child. They would undoubtedly be good caregivers. Grandmother also seems to love Child and would seem, to this Court, to also be a good caregiver; however, the trial court is in the best position to weigh the evidence and judge the credibility of the witnesses. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The trial court, after weighing the evidence, determined that it was in Child's best interests that Child remain with Custodians. As this decision was based on substantial evidence, we must affirm.
ALL CONCUR.