Opinion
NO. 2015-CA-000505-ME
01-29-2016
S.L., CO-RESPONDENT AND S.L.'S NATURAL MOTHER; C.P., INTERESTED PARTY AND PATERNAL UNCLE OF M.L.; J.P., INTERESTED PARTY AND PATERNAL AUNT OF M.L. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND M.L., A CHILD APPELLEES
BRIEF FOR APPELLANTS: Nathan Goins Lawrenceburg, Kentucky NO BRIEF FILED FOR APPELLEE
NOT TO BE PUBLISHED APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 14-J-00080 OPINION
REMANDING BEFORE: CLAYTON, KRAMER, AND STUMBO, JUDGES. CLAYTON, JUDGE: S.L. (Mother) is the natural mother of M.L. (Child). Mother, C.P. (paternal uncle), and J.L. (paternal aunt) filed a joint appeal of the Anderson Circuit Court, Family Court Division's Disposition Order of February 3, 2015. The order held that Child was to remain with the foster parents thereby disregarding the Cabinet for Health and Family Services' (Cabinet) recommendation to place the child with the paternal aunt and uncle. Both the Cabinet and the Appellants filed motions to alter, amend, or vacate the February 3 order. On March 4, 2015, the family court denied both motions. The Appellants also appealed the March 4 order. After a review of the record and consideration of the arguments of the Appellant, we remand this action for findings from the family court.
Procedural History
In the review of the record, it was not clear to this Court whether both parties' Motion to Alter, Amend, or Vacate had been denied. If one order was still outstanding, then the matter was not final. Therefore, we issued a show cause order directing the parties to respond whether or not this action should be dismissed for failing to appeal from a final order of the family court. Both parties responded that the court had denied both motions and therefore the order was final. Additionally, the Cabinet neither filed a brief nor requested additional time to file a brief.
On December 2, 2015, we issued another show cause "why this Court should not regard the Appellee's failure to file a brief as a confession of error and reverse the judgment without considering the merits of the case pursuant to [Kentucky Rules of Civil Procedure] CR 76.12 (8)(c)(iii)". The Cabinet did not respond to the motion. Therefore, the arguments raised by the Cabinet to the family court are not before us and will not be addressed by us in this opinion.
Analysis
Child was born on June 11, 2014, and was later admitted to Central Baptist Hospital to recover from opiate withdrawal. Upon release from the hospital, Child was removed from Mother's custody and placed in a foster home. Once paternity of Child was determined, the father suggested his brother and sister-in-law be considered as a potential relative placement for Child. Mother did not object to the placement. Child was living in foster care with her two brothers, who are not the children of Child's father. Although the parents made some progress, both were in and out of jail for various reasons and struggled with drug addiction.
Child was safe and well cared for in the foster home, but the Cabinet did consider the father's request that his brother and sister-in-law be considered as a placement for Child. The paternal aunt and uncle began weekly visits with Child. The visits went well and the Cabinet recommended that a dispositional hearing be set and that Child be transitioned from the foster home to the home of the uncle and aunt.
The family court in its order of February 3, 2015, changed the goal to adoption, waived reasonable efforts by the Cabinet to assist the parents, and ordered that Child remain in foster care with her siblings. Both parties filed Motions to Alter, Amend, or Vacate. Both motions were denied. The Appellants argued that relative placement should have been granted based upon the recommendation of the Cabinet. Alternatively, the Appellants requested the court make findings of fact pursuant to Kentucky Rules of Civil Procedure (CR) 52.01 and 52.02. The court declined to make findings.
CR. 52.02 allows the court either on its own initiative or by motion of a party to amend its findings or make additional findings and may amend the judgment accordingly. Additionally, CR 52.04 does not permit a final judgment to be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to CR 52.02. The motion for findings was timely made. The record does not contain any findings or explanation by the family court as to the basis for its decision. As stated in McKinney v . McKinney , 257 S.W.3d 130, 134 (Ky. App. 2008):
Without adequate factual findings, we are unable to meaningfully review the trial court's decision. We are in complete agreement with the reasoning recently espoused by another panel of this Court addressing the same issue. In an unpublished opinion, the Court wrote:
It is well-established that a final judgment shall not be set aside because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless the failure is brought to the attention of the trial court by a written motion pursuant to CR 52.02. CR 52.04. In the absence of such a motion, this Court must presume that the evidence presented at trial supports the trial court's conclusions. Cherry v . Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
. . . .
But where a party preserved the issue through a proper motion, the question on appeal is whether the omitted finding involves a matter which was essential to the trial court's judgment. As this involves a question of law, we need not defer to the trial court's conclusion that its findings were sufficient. Furthermore, since the issue is preserved for review, this Court is not required to presume that the evidence supports the trial court's conclusions. Jarrett v . Jarrett, 2006-CA-001557-MR, 2007 WL 2460730 (August 31. 2007).
We are of the opinion the omitted finding involves a matter which was essential to the trial court's judgment. As such, the trial court erred by denying Keith's motion for additional factual findings on this issue. Consequently, this matter must be remanded for additional findings. Greathouse v . American National Bank and Trust Co., 796 S.W.2d 868, 870 (Ky.App. 1990).
In the matter at bar, we cannot discern the basis for the family court's decision. The omitted findings do involve a matter which was essential to the family court's judgment. Therefore, we remand this matter to the family court to make findings as to its decision to have Child remain in the foster home as opposed to following the recommendation to place Child with her uncle and aunt.
ALL CONCUR. BRIEF FOR APPELLANTS: Nathan Goins
Lawrenceburg, Kentucky NO BRIEF FILED FOR APPELLEE