Opinion
NO. 2013-CA-001323-ME
06-27-2014
L. A. W., SR.1 APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; COMMONWEALTH OF KENTUCKY; K. N. D., an infant; A. J., an infant; B. D. D.; J. R. F.; and W. D. APPELLEES
BRIEF FOR APPELLANT: Richard H. Shuster Louisville, Kentucky BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY: Michael J. O'Connell Jefferson County Attorney David A. Sexton Assistant Jefferson County Attorney Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NOS. 12-J-506181 AND 12-J-506182
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: L.A.W., Jr., appeals from a dispositional order of the Jefferson Family Court following a trial on a dependency, abuse, and neglect petition filed regarding his two minor stepchildren, K.N.D. (three years of age at the time involved) and A.J. (two years of age). After our review, we affirm.
The notice of appeal refers to the Appellant as L.A.W., Sr., but at the trial, he identified himself as L.A.W., Jr. We shall simply refer to the Appellant as L.A.W.
B.D.D. is the biological mother of K.N.D. and A.J., both of whom have separate fathers. L.A.W. is not the father of either child, and he asserts no legal claim to the children. When the investigations began, B.D.D. was pregnant with a child by L.A.W. Although that child was born during the pendency of the underlying neglect and abuse actions, it was not the subject of the Cabinet's investigations nor of the underlying actions, and it was not subsequently added to the pending cases.
Upon receiving reports of abuse and neglect, the Cabinet for Health and Family Services opened investigative cases regarding K.N.D. and A.J. Based upon the allegations and the results of the investigation, the Cabinet instituted neglect and abuse proceedings against Mother. L.A.W. had no legal claim to the children and was not named as a party; he was named in the petitions only as "another person" living in Mother's home. (Actually, the couple married on the same date that the petitions were instituted.) L.A.W. then sought to intervene and participate in the case before the family court. In the interest of justice, the family court allowed him to participate and even appointed counsel to represent him.
Following a trial on the merits, the trial court found that the children were at risk of neglect based on Mother's relationship with L.A.W. because of his extensive criminal and domestic violence history. Although L.A.W. had refused to cooperate with the Cabinet, its investigation revealed an extensive criminal history spanning more than fifteen years. His convictions included charges arising from: multiple domestic violence episodes, among which were assaults and other violent crimes against women and children; violent sexual crimes; drug offenses; criminal mischief and trespassing; terroristic threatening; menacing; burglary; theft; flagrant non-support; wanton endangerment, and a probation violation.
Mother has not appealed any issues. The family court's disposition of the case provided for a transition of K.N.D. back into Mother's care - even though L.A.W. resides there. However, the court's order did not include A.J., who had been removed from Mother in a separate custody action filed by the child's biological father.
On appeal, L.A.W. contends that there was insufficient evidence to support the family court's finding that his presence in the home created a risk of neglect for the children.
Despite procedural infirmities of L.A.W.'s failure to cite to the record adequately, we have nonetheless undertaken an analysis of this matter and have treated it as an advanced case on our docket because it involves the well-being of children.
Kentucky Rules of Civil Procedure (CR) 76.12(4)(C)(v).
At the threshold, we note that the issue of standing has arisen in our conferencing on this case. Although L.A.W. apparently conceded on the record that he had no standing, the family court believed otherwise and not only permitted him to participate but, as noted above, also appointed him counsel.
Since the trial court effectively accorded L.A.W. standing to participate in this case, we are precluded from revisiting this issue. Harrison v. Leach, 323 S.W.2d 702 (Ky. 2010), has addressed this issue and has specifically forbidden the Court of Appeals from voluntarily (i.e., sua sponte) raising the specter of standing to second guess the lower court's disposition. Compelling for purposes of the case before us is the following language from Harrison:
So even in cases where there is a genuine issue about whether a party lacks standing, an appellate court should refuse to inject standing into a case if the parties have not done so themselves . . . . [A]n appellate court errs by injecting it into a case on its own motion. (Emphasis added.)Id. at 709.
Additionally, statutory law indicates that L.A.W. is entitled to invoke the standing that the trial court elected to confer upon him. Although L.A.W. is a stepfather with no biological ties to the two children involved, he has certainly met the definition set forth in Kentucky Revised Statute[s] (KRS) 610.060(1)(a) of a "person exercising custodial control" who is statutorily entitled to counsel in a formal proceeding concerning a child or children. The family court recognized that L.A.W. "voluntarily injected" himself into this proceeding. Significantly, rather than barring his participation for lack of standing, the family court nonetheless permitted him to participate because of his connection to their mother. His very presence in the home as a "person exercising custodial control" inevitably has a critical impact on the future of the children, their return to the home, and numerous other issues directly related to his participation in the family dynamics. Thus, he indeed has a "judicially cognizable interest in the outcome of the case."
Although we recognize his right to file and pursue this appeal, we nonetheless cannot agree that he is entitled to prevail. Our review of the record indicates that the family court had ample evidence upon which to base its decision in this case.
Applying the criteria in KRS 600.020(1) (a)-(b), the family court determined that the dangerous atmosphere created by L.A.W.'s presence in the home created a risk of harm to the children based upon his "extensive criminal record with convictions for violent crimes."
Our standard of review in such a case is high indeed, and we may not disturb the decision of a family court and substitute our judgment. It enjoys great latitude in the exercise of its considerable discretion in such matters, a discretion that we cannot upset unless it has acted clearly erroneously. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
Finding that the Jefferson Circuit Court has committed no error, we affirm.
CLAYTON, JUDGE, CONCURS.
NICKELL, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
NICKELL, JUDGE, DISSENTING. Respectfully, I dissent. I disagree with the majority's belief that the holding in Harrison precludes us from reaching the issue of standing because my review of the record convinces me we would not be doing so sua sponte. Further, in reaching the merits, I believe the majority makes assumptions and conclusions unsupported by the record. For the following reasons, I would dismiss the matter based on L.A.W.'s lack of standing to prosecute this appeal.
As the majority notes, L.A.W. was never named as a party below—his status was listed only as "other" in the petitions—and he has never asserted a legal claim to the children. He was not the subject of the Cabinet's investigation and it has never been alleged he harmed the children. Rather, he injected himself into these matters based on his relationship with and subsequent marriage to the children's mother. At a hearing following the adjudication, counsel for L.A.W. readily conceded his lack of standing.
Although not reflected in the majority opinion, the children were removed from their mother's care prior to her marriage to L.A.W.
Contrary to the majority's statement that the trial court believed L.A.W. had standing, a full review of the record reveals the trial court stated the opposite—that she did not believe he had standing—noting the decision to allow him to participate—even in the face of his concession that he lacked standing— was mainly for the benefit of Mother and was based on the court's perception that Mother was heavily reliant on L.A.W. The trial court stated on the record that the decision to appoint counsel and allow L.A.W. to participate was being made in the interest of justice and "out of the kindness of my heart," but cited no legal authority for doing either. Because I believe it lacked legal authority to take either action, the trial court erred in both instances.
Apparently, Mother became extremely dependent on L.A.W. in a short period of time. Likewise, it appears from the record L.A.W. did all he could to alienate Mother from her family and friends, and attempted to control nearly every aspect of her life.
While the trial court's efforts to ensure justice and adequate representation of the parties is commendable, none of the actions below conferred on L.A.W. "a judicially recognizable interest in the subject matter of the suit." Commonwealth v. Yamaha Motor Mfg. Corp., 237 S.W.3d 203, 205 (Ky. 2007) (citations and internal quotation marks omitted). The Supreme Court of Kentucky
has repeatedly reaffirmed the proposition that [courts have] no jurisdiction to decide issues which do not derive from an actual case or controversy. Ky. Const. § 110, In Re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692 (1936) ("Power to render advisory opinions conflicts with Kentucky Constitution Section 110 and thus cannot be exercised by the Court"). Recently, in Philpot v. Patton, Ky., 837 S.W.2d 491, 493 (1992), [the Court] reiterated that "[o]ur courts do not function to give advisory opinions, even on important public issues, unless there is an actual case or controversy."Commonwealth v. Hughes, 873 S.W.2d 828, 829-30 (Ky. 1984).
A careful review of the trial court's order being challenged reveals it was focused on Mother's actions—not L.A.W.'s. Contrary to the majority's assertion, the trial court's ruling that the children were at risk of neglect was not based solely on "Mother's relationship with L.A.W. because of his extensive criminal and domestic violence history." Rather, the trial court found the children were at risk of neglect due to Mother's hiding the youngest child from that child's biological father; her dishonesty with the court regarding L.A.W.'s "crim[inal] record, whereabouts, their relationship or other facts regarding [L.A.W.'s] contact with the children;" and L.A.W.'s criminal record. Despite these findings, the children were returned to mother's care in the home she now shares with L.A.W. Nowhere in the order is there any mention that L.A.W.'s presence in the home created a "dangerous atmosphere" placing the children at risk of harm or neglect, nor is there any indication the order impacts L.A.W. in any legally cognizable way for which this Court could grant relief.
Without "an actual case or controversy," it is "impossible for this Court to grant actual or practical relief." Id. at 830 (citing Brown v. Baumer, 301 Ky. 315, 191 S.W.2d 235, 238 (1945)). Thus, I believe we are prohibited from issuing an advisory opinion on the question presented by L.A.W. because he lacks a judicially recognizable interest in the outcome of the case and can be afforded no relief.
In concluding this appeal should be dismissed, I am acutely aware of Harrison's holding prohibiting an appellate court from sua sponte injecting the issue of standing where it has not been raised by a party. However, Harrison is clearly distinguishable from the case at bar as both the trial court and L.A.W. were aware of and conceded the lack of standing to prosecute an appeal on the record. Moreover, unlike the Harrisons, who clearly had an interest in the children for whom they sought custody, L.A.W.'s sole legal connection with the children in the present case—if it should even be so characterized—is his after-the-fact matrimonial status with their mother. He was never named a party to the action below and none of the trial court's rulings altered his current position as a stepparent to the children.
L.A.W. is simply without authority to challenge the court's rulings with respect to children with whom he has no biological or legal bond. I cannot join the majority in reading Harrison to convey standing upon a person who admitted to the trial court he had no standing—especially when the trial court agreed on the record that L.A.W. lacked standing. Thus, Harrison is inapplicable and I believe we are compelled to dismiss this appeal.
Furthermore, I believe the majority's reliance on KRS 610.060(1)(a) is misplaced and unsupported by the record. No evidence was offered to show L.A.W. exercised custodial control over the children, "assumed the role and responsibility of a parent or guardian for the child[ren]," nor had anything more than incidental contact with them. It must be remembered that the children were removed from mother's care prior to her marriage to L.A.W. I am perplexed by the majority's conclusion that "he has certainly met the definition" of a person exercising custodial control, and that "[h]is very presence in the home" in that role inevitably impacts the children and their return to the home.
KRS 610.060 references a "person exercising custodial control" in the context of the appointment of counsel. KRS 600.020(44) defines a "person exercising custodial control or supervision" as "a person or agency that has assumed the role and responsibility of a parent or guardian for the child, but that does not necessarily have legal custody of the child[.]"
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After a careful review of the complete record, I am unable to find even a modicum of evidentiary support for the majority's conclusions. I am unwilling to read KRS 600.020(44) and 610.060(1)(a) so expansively as to say one's mere presence in a home equates to an exercise of custodial control. Taken to its logical conclusion, the majority's reading of KRS 600.060(1)(a) could easily be construed as permitting any "other" person—whether he/she be a roommate, friend, family member, paramour, or otherwise—residing with mother—with or without the children and for an unspecified time—to gain the status of a "person exercising custodial control" over the children, without first producing even a scintilla of evidence in support of that conclusion. I am equally unwilling to agree that the trial court believed L.A.W. met the definition, particularly because it made no such finding and specifically stated on the record the belief L.A.W. lacked standing. As such, I am unconvinced any statutory grounds exist for conferring standing upon L.A.W.
For these reasons, I would dismiss the instant appeal. BRIEF FOR APPELLANT: Richard H. Shuster
Louisville, Kentucky
BRIEF FOR APPELLEE,
COMMONWEALTH OF
KENTUCKY:
Michael J. O'Connell
Jefferson County Attorney
David A. Sexton
Assistant Jefferson County Attorney
Louisville, Kentucky