Opinion
2023-CA-0206-ME
11-17-2023
L.G. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; J.M.; AND E.J.V., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: William D. Tingley, Michele L. McKinney BRIEF FOR APPELLEE J.M.: Vincent F. Mallon.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT HONORABLE LAUREN ADAMS OGDEN, JUDGE ACTION NO. 16-J-502042-002
BRIEF FOR APPELLANT: William D. Tingley, Michele L. McKinney
BRIEF FOR APPELLEE J.M.: Vincent F. Mallon.
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
OPINION
EASTON, JUDGE:
The Appellant, L.G., challenges the decisions, including temporary custody, of the Jefferson Family Court in a DNA (specifically dependency) case regarding E.J.V. (hereafter the "Child"). The Child is now a teenager. This case illustrates ineffective use by the litigants of available legal process to achieve proper custody. We affirm the Jefferson Family Court.
Acronym for dependency, neglect, and abuse.
FACTUAL AND PROCEDURAL HISTORY
L.G. is the paternal aunt of the Child. The Cabinet for Health and Family Services ("Cabinet") filed a petition claiming dependency in January of 2021 after it discovered that Child's mother (hereafter "Mother") had died of an overdose. At that time, the Child's father (hereafter "Father") was incarcerated in a federal penitentiary in Indiana serving a 45-year sentence. The family court held a temporary removal hearing in early February of 2021. The family court granted temporary custody of the Child to Appellee, J.M., the Child's maternal grandmother.
Prior to Father's incarceration in 2015, the Child lived with his parents. However, there were periods when the Child may have lived with J.M. or L.G. Both relatives claimed the Child lived with them for substantial periods. Mother died on May 23, 2020. It is disputed where the Child was living at the time of Mother's death. J.M. claims the Child had been living with her for approximately three months prior to Mother's death. L.G. alleges the Child was living with his Mother when she died. According to L.G., the Child only went to stay with J.M. after Mother's death. There is no dispute that the Child lived with J.M. after Mother's death and so had lived with J.M. since at least May 2020. The Child then had been living with J.M. for over six months when the dependency petition was filed.
When L.G. learned that Mother had died, she informed Father. Father then told L.G. he wanted her to take care of the Child. L.G. reached out to the Cabinet to make a report that Mother had passed away and that she wished to take custody of the Child. L.G. made this contact with the Cabinet within a few days after Mother's death. According to L.G.'s testimony, the Cabinet worker she spoke with informed her they were unable to locate the Child. L.G. inquired twice again in June 2020, and both times she was told they could not find the Child or J.M. L.G. did not hear from the Cabinet again.
Six months later, in December 2020, L.G. filed a Petition for Adoption of Child. Father signed a Consent to Adopt. L.G. testified that the Cabinet was served with the Petition, but it did not file a response or otherwise enter an appearance. L.G. claims the Petition included the information where Father was incarcerated. This Petition for Adoption was dismissed by the Jefferson Family Court because L.G. lacked the statutory requirement of having the Child in her custody for the requisite time.
In January 2021, the Cabinet filed the dependency petition but did not serve Father or L.G. The Cabinet claimed it was unaware of where Father was incarcerated and only had knowledge that he was incarcerated somewhere in Indiana. Counsel was appointed for Father, as well as for J.M., and a Guardian ad Litem ("GAL") was appointed for the Child.
After temporary custody was granted to J.M., the adjudication hearing was held in March 2021. After this hearing, the family court found the Child to be dependent partially based upon the stipulation of J.M., the person who had possession of the Child. At this point, Father was still unaware of the action and therefore was not present for any of the proceedings up to this point. Likewise, L.G. also had no knowledge that a petition had been filed.
In April 2021, L.G. finally became aware of the dependency action. She filed to intervene which was initially denied in May 2021 at the scheduled dispositional hearing. L.G. then filed a Motion for Additional Findings Pursuant to CR 52 and Motion to Alter, Amend, or Vacate. Father filed a motion to join L.G.'s motions. In addition, he moved the family court to vacate its disposition order due to ineffective assistance of counsel. He claimed his appointed counsel never informed him of the pending action and stipulated to dependency without his consent or knowledge.
Kentucky Rules of Civil Procedure.
In August 2021, the Family Court granted L.G. and Father's motions and allowed L.G. to intervene in the dependency action. The court also vacated the previous disposition order and rescheduled it to a future date. Over six months later, in April 2022, Father moved to set aside the dependency stipulation on his behalf. He also moved to dismiss the case in its entirety, as he claimed the Child did not meet the definition of a "dependent child." Father argued the family court had no jurisdiction.
In May 2022, the GAL moved the Family Court to allow visitation between the Child and L.G. The CASA representative likewise made this recommendation, as the Child had expressed wishes to have more time with L.G. and her family. The family court granted visitation in June 2022. That same month, Father signed a Parental Power of Attorney for Temporary Delegation of Legal Custody and Care of a Minor. The stated purpose of this power of attorney was to give L.G. authority over the Child.
Court Appointed Special Advocates.
In November 2022, the Family Court held its second and final disposition hearing. It issued its Findings of Fact, Conclusions of Law, and Judgment on November 30, 2022. In this order, the family court ruled that the Child should remain in the sole custody of J.M., because of the need for long-term stability. The court further ruled that L.G. should continue to have visitation with the Child. While several other motions were filed and denied, this custody order is the basis of this appeal. Prior to the briefing in this appeal, Father was killed in a prison fight.
This left L.G. as the sole appellant in this action. L.G. claims the family court made four errors in its orders regarding the Child. First, she alleges the court erred when it adjudged Child to be dependent. Then she argues the family court erred when it denied Father's motion to set aside the adjudication based upon ineffective assistance of counsel. She also claims the court erred as a matter of law when it based its adjudication on the stipulation of J.M.
L.G.'s final allegation of error is that the family court abused its discretion by awarding temporary custody of the Child to J.M. in its final disposition order. However, L.G., in her reply brief, states this point is now moot, as the family court has since changed custody of the Child from J.M. to L.G. The family court entered an Order on June 29, 2023, changing the temporary custody from J.M. to L.G.
STANDARD OF REVIEW
A family court's findings of fact in a DNA action shall not be set aside unless 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. If the family court's findings of fact were supported by substantial evidence, and it applied the correct law, its decision will not be disturbed absent an abuse of discretion. An abuse of discretion occurs when 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.
M.C. v. Cabinet for Health and Fam. Servs., 614 S.W.3d 915, 921 (Ky. 2021) (internal quotation marks and citations omitted). A determination of dependency, neglect, and abuse shall be made based upon a preponderance of the evidence. KRS 620.100(3).
Kentucky Revised Statutes.
ANALYSIS
KRS 600.020 is the controlling statute defining the terms in the Unified Juvenile Code. KRS 600.020(20) defines a "dependent child" as "any child, other than an abused or neglected child, who is under improper care, custody, control, or guardianship that is not due to an intentional act of the parent, guardian, or person exercising custodial control or supervision of the child[.]"
L.G. first argues the family court erred in its adjudging the Child to be dependent. She claims the Child's Father had designated her as the Child's caregiver when the Child's mother passed away. Father argued that the Child was not dependent because he had chosen his sister, L.G., to care for the Child. Both Father and L.G. argued that controlling law dictates that a fit parent must be allowed to make child-rearing decisions. See Hoskins v. Elliott, 643 S.W.3d 115 (Ky. App. 2022). Because Father was never found to be "unfit," he argues his directions as to who should have custody of the Child should control.
While this argument may have some merit in principle, Father and L.G. did not follow the proper procedures designed for the protection of the Child for L.G. to obtain legal custody of the Child. Prior to June 2022, there was no legally binding documentation, even a Power of Attorney ("POA"), that would have granted L.G. any authority over Child. By the time Father had signed a POA, the dependency action had been pending for approximately 18 months, and there was a valid court order granting custody of the Child to J.M.
It was not until the Cabinet filed the dependency petition that anyone had legal decision-making authority over this Child. The Child then was dependent and needed a legally authorized custodian. While L.G. filed an adoption petition, the proper (and easier) option would have been for L.G. herself to file a dependency petition and ask the family court to grant her custody of the Child. Pursuant to KRS 620.070(1), a dependency, neglect, or abuse petition may be filed by any interested person. This would have been an appropriate action for L.G. to take upon the death of the Child's Mother and the incarceration of his Father.
In the alternative, L.G. could have filed a separate family court custody action. L.G. was advised to do just that when the family court initially denied her motion to intervene. L.G. was ultimately able to assert her and Father's interests in the existing dependency case after the family court allowed the intervention. Regardless, we wish to emphasize that a dependency action is not designed to be the proper avenue to achieve long-term custody of a child.
Father argues he placed the Child with L.G. upon Mother's death. However, an incarcerated parent cannot simply grant legal custody to another person just by saying he has done so. There are procedures and processes in place to do such a thing, but none of those was followed here to permit L.G. to have legal custody of the Child prior to the filing of the dependency petition.
Both Father and L.G. argued to the family court that the Child could not be dependent because there was no evidence that L.G. was an "improper" caregiver of Child. However, that was never the issue. The issue was that neither L.G. nor J.M. had any legal custody of the Child. The Child was with J.M., but no one had legal custody until the Cabinet filed the dependency petition. In these circumstances, the Child met the definition of "dependent child" under KRS 600.020(20), and the family court's finding was not clearly erroneous.
L.G.'s second claim of error is that the family court erred when it denied the motion to set aside the adjudication of dependency due to ineffective assistance of counsel. Because we affirm the family court's adjudication of the Child as dependent and Father is now deceased, this argument is rendered moot in these circumstances as to Father's position in the case. As we will explain, Father could not have shown ineffective assistance of counsel at any rate.
KRS 620.100(1)(b) states "[t]he court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel pursuant to KRS Chapter 31." (Emphasis added.) While Father was appointed counsel in this action, the statute only requires appointed counsel for parents who have custodial control of their children. R.V. v. Com., Dep't for Health and Family Services, 242 S.W.3d 669, 672 (Ky. App. 2007). Father could not have been exercising custodial control over the Child in this case, as he had been a federal inmate since 2015. The Child was not living with Father or L.G. at Father's direction but rather with J.M.
Regardless of what Father's appointed counsel did or did not do in this case, it would not change the outcome. Dependency is an adjudication of a child that arises "not due to an intentional act of the parent ...." KRS 600.020(20). While Father was not present at, or even aware of, the adjudication hearing, he and L.G. were present at future hearings in the DNA proceeding. They did not timely present any evidence that L.G. had proper, legal custody of the Child. There is nothing Father's attorney could have done and no evidence he could have presented to change the finding of dependency.
The same can be said for L.G.'s third contention of error. L.G. argues it was an error of law for the family court to base a finding of dependency based on the stipulation of J.M. The facts of this case would support a finding that the Child was dependent without any stipulation. Based on the evidence and the facts of this case, there really is no other conclusion the family court could have made about dependency.
L.G.'s argument that Father had ineffective assistance of counsel could have possibly affected L.G.'s final allegation of error, which is the argument that the family court abused its discretion by granting J.M. custody of the Child in its final disposition. However, this argument is rendered moot by the family court's order changing custody of the Child from J.M. to L.G. It is unnecessary to review this altered decision further.
CONCLUSION
The findings of the family court are not clearly erroneous, and its findings support an adjudication of dependency. All other contentions of error are moot. For the foregoing reasons, the adjudication order of the Jefferson Family Court finding dependency and awarding temporary custody is AFFIRMED.
ALL CONCUR.