Opinion
NO. 2020-CA-1034-ME
02-05-2021
J.M. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; R.M., A CHILD; A.M.; G.M.; AND B.M. APPELLEES
BRIEF FOR APPELLANT: Sarah E. Clay Louisville, Kentucky BRIEF FOR APPELLEES A.M. AND G.M.: Katie Brophy Louisville, Kentucky NO BRIEF FILED FOR APPELLEE B.M. NO BRIEF FILED FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES.
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 18-J-502155-001 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. CLAYTON, CHIEF JUDGE: J.M. ("Mother") appeals the Jefferson Family Court's order relinquishing its continuing and exclusive jurisdiction over her son, R.M. ("Child"), to another state. Specifically, Mother argues that the court erred when it declined to consider the statutory factors set forth in the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"), as codified in Kentucky Revised Statutes (KRS) 403.800 through 403.880, and when it failed to hold an evidentiary hearing on the matter. For reasons more fully explained below, we vacate the court's order and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Child was born in March 2018 to Mother and B.M. ("Father"). Thereafter, in May 2018, the Cabinet for Health and Family Services (the "Cabinet") filed a Juvenile Dependency/Neglect or Abuse ("DNA") Petition pursuant to KRS Chapter 620 et. seq. (the "DNA Petition") with the family court (the "DNA Case"). The Cabinet alleged in the DNA Petition that Child had tested positive for both opiates and marijuana at birth, that Mother and Father were homeless, and that Mother and Father had not complied with the Cabinet's attempts to meet with them. Child remained in the neonatal intensive care unit from his birth until May 8, 2018 and was diagnosed with neonatal abstinence syndrome.
The court held a hearing regarding the DNA Petition on May 8, 2018, which was the only proceeding the parents attended. Mother was ordered, among other things, to submit to a hair follicle drug test, and a paternal cousin located in Kentucky agreed to temporary custody of Child.
A pre-trial report by the Cabinet issued on June 4, 2018 indicated that Mother's hair follicle screening was positive for amphetamines, methamphetamines, morphine, and opiates. After that test, Mother failed to submit to a urine drug screen as ordered, failed to cooperate with the Cabinet, and failed to appear at any further court proceedings.
G.M. and A.M., Child's paternal grandparents ("Grandparents"), immediately sought placement of Child in their home. Because Grandparents resided in Wisconsin, the Cabinet initiated an Interstate Compact on the Placement of Children (the "Compact") Request on August 15, 2018, which was ultimately granted.
On August 21, 2018, the court held an adjudication hearing at which it adjudicated Child to be neglected or abused as defined in KRS 600.020(1) by both Mother and Father, both of whom were found to be non-cooperative with the Cabinet. The court further awarded temporary custody of Child to Grandparents, and Child has resided with Grandparents in Wisconsin since August 21, 2018.
In November 2018, Grandparents filed a motion for permanent custody of Child. The court held a hearing on December 11, 2018, at which both parents again failed to appear. The court's findings from the hearing indicated that the parents' whereabouts were unknown and that there had been no contact with the Cabinet by the parents since they appeared in court on May 8, 2018. Therefore, the court awarded Grandparents permanent custody of Child at the December 11, 2018 hearing.
Approximately one year later, on December 20, 2019, Grandparents filed a petition for termination of the parental rights of both Mother and Father (the "Termination Petition") in Waukesha County, Wisconsin, as a precursor to the filing of a petition of adoption. Additionally, in May 2020, Grandparents filed a motion with the Jefferson Circuit Court requesting the court to enter an order declining the exercise of continued custodial jurisdiction and to relinquish its jurisdiction to Wisconsin pursuant to KRS 403.824(1)(a). In the motion, Grandparents indicated that Child had at that time resided in Wisconsin for approximately twenty-one months and that, in order to proceed with the termination of parental rights and ultimate adoption of Child, it was necessary for the court to relinquish jurisdiction of the case to Wisconsin.
On June 12, 2020, Mother filed motions objecting to Grandparents' motion for the court to relinquish custodial jurisdiction, requesting a hearing, and seeking visitation with Child. Mother alleged in such motions that Grandparents were refusing to allow her to have any contact with Child. Mother noticed the motion objecting to the court's relinquishment of jurisdiction for the court's June 30, 2020 motion hour, at which time the court did not hear any substantive arguments from the parties, but rather continued the case to July 6, 2020, in order for the court to review the applicable law. The court indicated that it did not know whether it would need a full hearing on July 6, 2020.
Nevertheless, on July 1, 2020, the court cancelled the July 6, 2020 hearing date and entered an order denying Mother's motion for supervised visitation and granting Grandparents' motion to transfer jurisdiction pursuant to KRS 403.824(1)(a) to Wisconsin. The family court noted that the DNA Case had concluded in 2018 with the Grandparents being awarded permanent custody and that there were no pending Kentucky cases seeking custody or visitation.
Mother filed a motion to vacate and for a hearing on the jurisdictional issue pursuant to Kentucky Rule of Civil Procedure (CR) 59.05 and requested that the court make the specific findings required under KRS 403.824 and KRS 403.834. The court denied the motion, finding that, because the DNA Case had been closed, there was no pending custody case in Kentucky. Mother filed the instant appeal. Father has not joined the appeal.
ANALYSIS
The Kentucky legislature enacted the UCCJEA in 2004 to bring Kentucky law in line with the federal Parental Kidnapping Prevention Act. See Wallace v. Wallace, 224 S.W.3d 587, 589 (Ky. App. 2007). As a preliminary matter, we note that, under its express terms, the UCCJEA does not apply to adoptions, and that this case differs from other Kentucky cases involving the UCCJEA in that Grandparents are not simply requesting to modify Child's custody, but rather to terminate Mother's parental rights and ultimately adopt Child. See KRS 403.802.
However, we adopt the reasoning of Williams v. Bittel, 299 S.W.3d 284, 288 (Ky. App. 2009), whereby another panel of this Court held that, where the issue is not whether Kentucky has jurisdiction over an adoption proceeding but is instead whether - as in this case - Kentucky retains exclusive, continuing jurisdiction over a custody case that originated in its jurisdiction, the UCCJEA remains applicable.
Moreover, it matters not that the court's initial permanent custody determination originated from a DNA proceeding under Chapter 620. Mauldin v. Bearden, 293 S.W.3d 392, 400 (Ky. 2009). As explained by the Kentucky Supreme Court in Mauldin, "[w]hen a family court is involved, custody is a single issue, subject to several different statutory schemes. So long as a family court is acting within its statutory authority, it makes little difference what docket is involved." Id.
With those preliminary matters addressed, and because none of the parties dispute that the Kentucky court was acting within its jurisdiction and statutory authority in making the initial custody determination, we turn to a discussion of the primary issue before us on appeal; namely, whether the family court properly declined to exercise its continuing, exclusive jurisdiction under the UCCJEA. The determination as to whether the Kentucky court properly acted within its jurisdiction in declining to exercise continuing jurisdiction is a question of law which we review de novo. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky. App. 2009).
In a case such as this where one or both biological parents still reside in Kentucky, then the Kentucky court that made the initial custody determination retains "exclusive, continuing jurisdiction over the determination" under the UCCJEA until such time as:
[a] court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships[.]KRS 403.824(1)(a).
"Significant connection" is explained by the following comment to the UCCJEA § 202:
Biggs, 301 S.W.3d at 33. "[T]he state having original jurisdiction maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met." Wallace, 224 S.W.3d at 590.[E]ven if the child has acquired a new home State, the original decree State retains exclusive, continuing jurisdiction . . . . If the relationship between the child and the person remaining in the State . . . becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.
Additionally, a panel of this Court has held that a new state may not exercise jurisdiction for purposes of custody unless the Kentucky court that issued the initial determination makes the specific findings listed in KRS 403.834. Biggs, 301 S.W.3d at 34. In Biggs, the Court concluded that a family court's decision that a child no longer had a substantial connection to Kentucky and declining jurisdiction without consideration of the factors contained in KRS 403.834(2) was erroneous. Id.
Specifically, KRS 403.834(2) contains the following factors which the court "shall consider" when determining "whether it is appropriate for a court of another state to exercise jurisdiction":
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;Particularly, the Court in Biggs indicated that courts are required to "apply rather meticulously the factors in . . . KRS 403.834(2)." Biggs, 301 S.W.3d at 34.
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
In this case, we have no evidence that the trial court followed the procedures described in Biggs by considering the KRS 403.834(2) factors when it declined to exercise jurisdiction. Rather, the court explained that it granted the motion to transfer jurisdiction because "procedurally" the DNA Case had concluded and there was no other custody cases pending in Kentucky. Therefore, it declined to consider any evidence concerning the jurisdictional issue. While we understand that the family court had closed the original DNA Case, the language of KRS 403.824 is not couched in terms of whether a particular case is procedurally "open" or "closed," but rather, that the statute applies to "a court of this state which has made a custody determination consistent with KRS 403.822 or 403.826[.]" KRS 403.824(1).
Moreover, the court failed in both its July 1, 2020 off-docket ruling and in its subsequent July 6, 2020 order to address any of the factors contained in KRS 403.824 or KRS 403.834(2). Indeed, the family court could not have made the findings required under the UCCJEA because it heard no evidence regarding the applicable factors. The parties do not dispute that the family court's original custody determination was in any way jurisdictionally deficient, and it therefore had "exclusive, continuing jurisdiction over the determination" until the family court considered the factors contained in KRS 403.824 and KRS 403.834.
CONCLUSION
Because we find that the family court failed to consider and apply the necessary statutory factors as set forth in Biggs, we therefore vacate the decision of the Jefferson Circuit Court and remand the matter for the court to consider the necessary factors under KRS 403.824 and KRS 403.834.
ALL CONCUR. BRIEF FOR APPELLANT: Sarah E. Clay
Louisville, Kentucky BRIEF FOR APPELLEES A.M. AND
G.M.: Katie Brophy
Louisville, Kentucky NO BRIEF FILED FOR APPELLEE B.M. NO BRIEF FILED FOR APPELLEE
CABINET FOR HEALTH AND FAMILY
SERVICES.