Opinion
2021-CA-1491-ME 2022-CA-0604-ME
02-24-2023
S.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; B.G.; B.M.; C.J.; H.J., A MINOR CHILD; M.C.; MERCER COUNTY ATTORNEY'S OFFICE; AND S.G. APPELLEES AND S.C. APPELLANT v. H.J., A CHILD; B.G.; B.M., NATURAL MOTHER; C.J., NATURAL FATHER; MERCER COUNTY ATTORNEY'S OFFICE; AND S.G. APPELLEES
BRIEF FOR APPELLANT: Bethanni Forbush-Moss Louisville, Kentucky BRIEF FOR APPELLEE MERCER COUNTY ATTORNEY'S OFFICE: Whitney Z. Johns Assistant Mercer County Attorney Harrodsburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MERCER FAMILY COURT HONORABLE DOUGLAS BRUCE PETRIE, JUDGE ACTION NO. 20-J-00047-001
BRIEF FOR APPELLANT: Bethanni Forbush-Moss Louisville, Kentucky
BRIEF FOR APPELLEE MERCER COUNTY ATTORNEY'S OFFICE: Whitney Z. Johns Assistant Mercer County Attorney Harrodsburg, Kentucky
BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES.
OPINION
CETRULO, JUDGE
Appellant S.C. ("Aunt") appeals two Mercer Family Court Orders: the first denied her motion for custody of her nephew, H.J., a minor child ("Child"); and the second granted custody of Child to Appellees S.G. and B.G. (the "Fictive Kin").
FACTUAL AND PROCEDURAL HISTORY
Child's parents, Appellees B.M. and C.J. ("Mother" and "Father," respectively; together, the "Parents"), have a history of substance abuse. In June 2020, the Cabinet for Health and Family Services (the "Cabinet") filed a dependency, neglect, or abuse ("DNA") petition against the Parents. The Cabinet placed Child with the Fictive Kin at that time, and the Cabinet filed a prevention plan stating Mother was agreeable to that placement. Around that time, the paternal grandmother requested that the Cabinet place Child with her; however, she lived in Tennessee and the Cabinet would have had to conduct an ICPC prior to placement. Additionally, the Parents planned to work their case plans at that time - which included regular visits with Child - thus, the Cabinet determined it was best for the goal of reunification if Child stayed locally, with the Fictive Kin.
Prior to the DNA action, in March and April 2020, the Parents had left Child with the Fictive Kin (allegedly while Parents had COVID-19) and nearly every weekend after that, so Child was familiar with the placement.
Interstate Compact on the Placement of Children is a review process, which allows for the interstate transport of a child in a foster or adoption placement.
In July 2020, the family court placed Child in the temporary custody of the Cabinet but determined the Child should continue to reside with the Fictive Kin. Then, in September 2020, Mother and Father stipulated to neglect at the adjudication hearing, and the family court concluded that Child had been neglected. Early the next month - on October 7, 2020 - the family court held the disposition hearing, which largely focused on whether and how visitation would resume with the Parents, and entered the order of commitment, keeping Child with the Fictive Kin, upon the Cabinet's recommendation.
The family court left visitation to the Cabinet's discretion. Two weeks later, however, the Cabinet notified the family court that Mother and Father had relapsed, and the family court suspended visitation.
In December 2020, the family court held a review hearing in which it adopted the Cabinet's recommendation that Child remain in its custody and changed the goal to termination of parental rights ("TPR") and adoption. The family court emphasized that it had been working with Mother since 2017 and she still had not made the requisite progress.
Although Child was not born until 2019, Mother had a juvenile case with an older child which started in 2017.
The next month, in January 2021, at the permanency review hearing, the family court again adopted the recommendations of the Cabinet for Child to remain committed to the Cabinet and continue residing with the Fictive Kin. The next day, the Interested Party Review Board held a review, and in its findings and recommendations it was noted the Fictive Kin mentioned Aunt and the paternal grandmother wanted to be the placement for Child. It further noted that both relatives lived in another state and had not built a strong bond with Child; however, the Board claimed the Fictive Kin had been a significant part of Child's life since the time of removal. The findings explained that Megan Chaffins, Child's social worker ("SW Chaffins"), did not recommend moving Child because she did not want to add trauma to the situation. Additionally, the Cabinet filed the TPR petitions for the Parents that month.
These boards may be comprised of volunteers, parents, care providers, service providers, Cabinet personnel, and attorneys, depending on whom the Cabinet determines are "interested parties." The board conducts interactive reviews that focus on case plans for the parents and their child and the progress being made to secure permanency. Here, it appears the Fictive Kin and Cabinet were present, along with volunteers, but Aunt was not.
At the May 2021 review hearing, the family court adopted the Cabinet's recommendation that Child remain committed to the Cabinet with the goal of adoption by the Fictive Kin. The next month - on June 26, 2021 - Aunt moved for custody of Child. A month after that, the family court heard the issue and Aunt argued that under Kentucky Revised Statute ("KRS") 620.090(2), qualified relatives have a statutory preference for placement.
Further, Aunt explained that she had been in contact with Child - virtually and in-person - during his placement with the Fictive Kin. Aunt also claimed that she had been in contact with SW Chaffins during that time. SW Chaffins contested those statements, however, and claimed that she was aware only that the paternal grandmother sought placement shortly after the Cabinet filed the DNA petition. She argued she was not aware of Aunt at that time. Further, SW Chaffins explained that she knew of only two times Aunt had visited Child in-person - in September 2020 and January 2021, according to the Fictive Kin - and one video call.
The family court did not establish the exact date Aunt contacted the Cabinet to be considered as a placement for Child, but it acknowledged that Aunt did not move for custody until a year after Child had been placed with the Fictive Kin. Despite that lapse, no one questioned Aunt's standing to move for custody. The family court did note, however, that during that lapse, Child had been bonding with the Fictive Kin. The family court concluded it would wait until it received Aunt's ICPC results to determine what was in the best interest of Child. Child was to remain with the Fictive Kin until that time.
In October 2021, Tennessee's Department of Children's Services completed the ICPC and approved Aunt's residence as a foster home for Child. The family court reconvened that month. It noted that while Aunt may have had a statutory preference as a relative, there was caselaw that indicated the development of a bond between a child and a non-relative placement could overcome that preference. The family court elected to wait for the finalized TPR before making a determination on which placement was best for Child. As such, the family court focused on legal questions at that time.
At the end of November 2021, the family court heard the briefed legal issues, and the parties discussed the caselaw presented in their briefs. As those arguments addressed only the legal questions, Aunt requested a separate evidentiary hearing to establish facts concerning the relative merits of the proposed placements.
The family court noted that Child had been with the Fictive Kin for 17 or so months (consistently since June 2020), and that the amount of time that had passed "implied attachment" and could overcome any preference. The family court then adopted the recommendations of the Cabinet, keeping Child with the Fictive Kin ("November 2021 Order"). It further announced its intention to supplement the November 2021 Order. The next month, Aunt appealed the November 2021 Order.
In January 2022, the family court supplemented the November 2021 Order (the "Supplemental Orders"). In the Supplemental Orders, the family court concluded Child was bonded and attached with the Fictive Kin after being in their care 20 of the previous 22 months. The family court concluded that the Fictive Kin were "for all intents and purposes the 'psychological' parents of [Child]" and that Child was flourishing. Further, the family court noted that when the DNA action began, Aunt was not the relative that Mother had asked to care for Child (that was the paternal grandmother). The family court concluded that there was nothing in the record to indicate that the child's best interests would be served by disrupting the current placement.
The family court entered Orders on January 12 and 13, 2022 - the first contained handwritten findings and the next was typed on the standard Post-Disposition Review Order Form. Each contained the same information, so we will reference them jointly.
In February 2022, Aunt filed a motion to expand the initial appeal to include the family court's Supplemental Orders.
Additionally, the family court "decline[d] to set a separate hearing to receive testimony concerning the 'best interests' of the respective placements." The family court concluded that permanency reviews simply required the court to determine the child's best interest; therefore, it found that any "additional proof on that point is unnecessary and outside the parameters of the juvenile court."
Following its denial of Aunt's motion for custody, the family court continued with permanency reviews, which culminated in the family court terminating the Parents' parental rights and granting permanent custody of Child to the Fictive Kin. Aunt also appealed that order, discussed in greater detail below.
STANDARD OF REVIEW
The question of standing is an issue of law; therefore, we review it de novo. Cabinet for Health & Fam. Servs. v. Batie, 645 S.W.3d 452, 464 (Ky. App. 2022) (citing Tax Ease Lien Invs. 1, LLC v. Commonwealth Bank & Tr., 384 S.W.3d 141, 143 (Ky. 2012)).
ANALYSIS
A. First Appeal: Aunt's Motion for Custody of Child
On the first appeal, Aunt argues primarily that the family court denied her due process by not granting her an evidentiary hearing on her motion for custody. However, the Commonwealth argues that Aunt's first appeal is not properly before this Court because Aunt did not have standing before the family court, depriving us of jurisdiction to review the issue. We agree. Although the Commonwealth recognizes that it failed to raise the issue below, it correctly notes that constitutional standing cannot be waived, unlike statutory standing. Commonwealth, Cabinet for Health & Fam. Servs., Dep't for Medicaid Servs. v. Sexton, by & through Appalachian Reg'l Healthcare, Inc., 566 S.W.3d 185, 188 (Ky. 2018) ("[A]ll of Kentucky's courts have the responsibility to ascertain, upon the court's own motion if the issue is not raised by a party opponent, whether a plaintiff has constitutional standing, an issue not waivable, to pursue the case in court."). See also F.E. v. E.B., 641 S.W.3d 700, 706 n.6 (Ky. App. 2022) (citing Sexton, 566 S.W.3d 185). Thus, before considering any other arguments, we must first determine whether Aunt had standing to seek custody of Child, merely by virtue of being a relative of Child.
"For this reason constitutional standing, which relates to the court's subject matter jurisdiction, can be raised at any time whereas statutory standing, which relates only to particular case jurisdiction, must be raised in a timely manner before the trial court." Id.
In F.E., this Court explained that "a person usually has constitutional standing if that party has a substantial interest in the subject matter of the litigation and they will be aggrieved by an adverse ruling by the court." F.E., 641 S.W.3d at 706 (quoting Riehle v. Riehle, 504 S.W.3d 7, 9 (Ky. 2016)). There, the family court had previously granted a relative visitation with the child. Id. After a couple of years with visitation in place, the mother attempted to terminate the relative's visitation rights. Id. This Court determined the relative had constitutional standing because her right to visitation, previously ordered by the court, was a "substantial interest" and mother's attempt to terminate the right could negatively impact that interest. Id.
The Commonwealth argued on appeal that Aunt lacked "constitutional standing" under Truman v. Lillard, 404 S.W.3d 863 (Ky. App. 2012); however, Truman involved statutory standing, under KRS 403.270. Although Aunt also did not have statutory standing under that statute - as she was not Child's de facto custodian - that analysis fails to determine the issue before this Court: whether Aunt had constitutional standing.
Here, we do not find such circumstances. The family court had never granted custody of Child to Aunt. Further, any present interest in custody - existing while there was a temporary custody order in place - had lapsed eight months prior. I.e., Aunt had no present interest, much less a "substantial interest," in custody of Child. Without a substantial interest in custody of Child, the family court's ruling on Aunt's motion could not have negatively impacted such an interest. Aunt did not meet either prong under F.E.; therefore, she did not have constitutional standing.
Aunt had one additional option, however, to establish standing: by statute. This Court has found that a relative may establish standing if they timely file a motion for temporary custody, pursuant to KRS 620.090. E.g., J.M. v. Commonwealth, Cabinet for Health & Fam. Servs., 325 S.W.3d 901 (Ky. App. 2010). As this Court detailed in Batie, 645 S.W.3d at 467, there is a specific period of time in which a relative may establish statutory standing under KRS 620.090. In such circumstances, the relative has statutory standing while the temporary custody order is in place. Id. However, once the family court enters the order of commitment, following the disposition hearing, any relative preference under KRS 620.090 evaporates, along with their statutory standing. Id.
In relevant part, KRS 620.090(2) provides:
(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. . . .
"The Supreme Court said KRS 620.090(2) provides the necessary interest [to file a temporary custody motion]. But the opinion casts that interest in a temporal context by finding more than that the [relatives] had an interest. As [Kentucky Rule of Civil Procedure] CR 24.01 requires, said the Supreme Court, the [relatives'] interest [was] 'a "present substantial interest. . . ."' Baker [v. Webb, 127 S.W.3d 622,] 624 (emphasis added) . . . . If the temporary custody order under KRS 620.090(1) had been replaced by an order of commitment, the preference of KRS 620.090(2) no longer would have applied, and the interest the [relatives] claimed would have lapsed - it would no longer be a present interest as the Supreme Court held, but a past interest." Batie, 645 S.W.3d at 467 (citation omitted).
Here, the family court entered the order of commitment in October 2020. Aunt asserted her interest, moving for custody of Child under KRS 620.090, in June 2021. Although Aunt argued she was known by the Cabinet prior to the disposition hearing - and that may have been the case - by the time she attempted to assert her right in the family court, the order of commitment had been in place for eight months. Therefore, Aunt no longer had statutory standing under KRS 620.090. Without statutory or constitutional standing, Aunt could not properly bring her claims in the family court; therefore, her claim is not properly before us.
When a party fails "to satisfy the constitutional standing requirement, [this Court is] constitutionally precluded from exercising appellate jurisdiction over that case to decide its merits." Sexton, 566 S.W.3d at 196-97. "[B]ecause orders of a court acting without jurisdiction are incurable legal nullities and void ab initio, they are entitled to no deference by any court including the reviewing court which has no discretion but to set them aside." Batie, 645 S.W.3d at 471 (citing Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607, 610 (Ky. App. 1995)). Therefore, we must vacate the November 2021 Order and Supplemental Orders, as they pertain to Aunt's motion for custody of Child.
"[T]he circuit court 'shall have original jurisdiction of all justiciable causes.' If a case is not justiciable, specifically because the plaintiff does not have the requisite standing to sue, then the circuit court cannot hear the case. And because both this Court and the Court of Appeals 'shall have appellate jurisdiction only,' logically speaking, neither court can adjudicate a case on appeal that a circuit court cannot adjudicate because the exercise of appellate jurisdiction necessarily assumes that proper original jurisdiction has been established first at some point in the case." Sexton, 566 S.W.3d at 196 (citation omitted).
B. Second Appeal: Permanent Custody Granted to the Fictive Kin
Following its denial of Aunt's motion for custody of Child, the family court continued its permanency reviews. At the April 2022 review, the family court terminated the Parents' parental rights, placed Child in the permanent custody of the Fictive Kin, and closed the case. Aunt objected, arguing that such grant was improper because, she alleged, the family court failed to provide notice of the intent to modify custody and there had been no motions on point pending before the court.
Following the hearing, the family court entered orders placing Child in the permanent custody of the Fictive Kin ("April 2022 Orders"). It further noted that the Parents remained incarcerated with charges pending and had failed to address their "long term chronic substance abuse issues." Additionally, in the 22 months since Child had been living with the Fictive Kin, the Parents had not "come anywhere near being able to stabilize their lifestyle to allow the return of child." Finally, it noted that it considered the factors found in KRS 403.270 and found that granting permanent custody to the Fictive Kin was in Child's best interest. The family court did not address Aunt in the April 2022 Orders.
The family court entered orders on April 27 and 28, 2022 - the first contained hand-written findings and the next was typed on the standard Post-Disposition Review Order Form. Each contained the same information, so we will reference them jointly.
Yet, Aunt filed a motion to set aside the April 2022 Orders, under CR 59.05 and CR 60.02, claiming, in pertinent part, that the family court failed to provide notice, and failed to provide an opportunity to be heard. The family court denied Aunt's motion to set aside the orders and Aunt appealed.
Again, our first question is whether Aunt had standing to bring her claims. As to statutory standing, for the reasons discussed above, Aunt still did not meet the requirements under KRS 620.090. By the time Aunt filed the second appeal, in April 2022, nearly 18 months had passed since the family court entered the order of commitment for Child and nullified standing for Aunt under KRS 620.090.
Next, we must determine whether Aunt had constitutional standing to bring these claims, i.e., "a substantial interest in the subject matter of the litigation" and whether she would be "aggrieved by an adverse ruling by the court." F.E., 641 S.W.3d at 706 (citation omitted).
Here, the subject matter of the litigation - the April 2022 Orders - pertained to the Parents' parental rights and the Fictive Kin's custody of Child. KRS 625.060 clarifies that the parties to a TPR action include "the child, the petitioner [here, the Cabinet], the Cabinet (if not the petitioner), the birth parents, and qualifying putative fathers." S.B. v. Cabinet for Health & Fam. Servs., 616 S.W.3d 715, 719 (Ky. App. 2020) (quoting Commonwealth, Cabinet for Health & Fam. Servs. v. L.J.P., 316 S.W.3d 871, 876 (Ky. 2010)). This is important because it explained who had cognizable rights to protect or enforce a termination proceeding. Id. (quoting L.J.P., 316 S.W.3d at 876) ("Because '[a] termination proceeding concerns the relationship between parent and child, and not any other party[,] . . . [the relatives][ ] simply have no cognizable rights to protect or enforce in a termination proceeding.").
To be clear, here, neither the Parents nor the Fictive Kin appealed the orders before this Court. Aunt is the only appellant in this case.
In S.B., this Court emphasized that the relative's "interest must be 'a present substantial interest in the subject matter of the lawsuit, rather than an expectancy or contingent interest." Id. (quoting L.J.P., 316 S.W.3d at 875). "To the extent that [the relative's] interest is in receiving custody post-termination, it would not be a 'present substantial interest' but merely 'an expectancy or contingent interest,' . . . and thus insufficient to warrant their intervention as a matter of right." Id. In sum, relatives do not have a present substantial interest - and therefore no constitutional standing - to intervene and subsequently appeal a TPR proceeding just because they are a relative to the child and would like custody.
Here, Aunt was not a party to the TPR action, and she had no present interest in custody of Child; therefore, she did not have standing to move to set aside the family court's April 2022 Orders regarding same. Again, without standing in the court below, this Court does not have jurisdiction to review the merits of Aunt's claims. Sexton, 566 S.W.3d at 196-97.
As such, the family court correctly denied Aunt's motion to set aside its April 2022 Orders, thereby reaffirming those orders. Because Aunt's lack of standing did not affect those orders, they are not void and need not be vacated. They are affirmed.
CONCLUSION
Aunt did not have statutory or constitutional standing to move for custody of Child nor appeal the orders denying that motion. Additionally, Aunt did not have statutory or constitutional standing to appeal the TPR or the grant of custody to the Fictive Kin. As such, the November 2021 and Supplemental Orders, as they pertain to Aunt's custody, are VACATED; and the April 2022 Orders are AFFIRMED.
ALL CONCUR.