Court: Court of Appeals of Kentucky; July 1, 2011; Kentucky; State Appellate Court
L.D. appealed a Warren Family Court order that awarded permanent custody of her son, O.H., to his paternal grandparents, J.H. and M.H. The court found no error in this decision. O.H. and his siblings were initially removed from L.D.'s care in 2003 due to environmental neglect and her husband's status as a registered sex offender. The children were placed with L.D.'s parents, who gained permanent custody in 2006. However, in 2007, a petition was filed for emergency custody after substantiated reports of physical abuse against the children by their maternal grandparents, leading to their placement in foster care.
Temporary custody of O.H. was granted to J.H. and M.H. in 2008, and they sought de facto custodian status and permanent custody in 2009. After a March 2010 hearing, the family court determined that permanent custody with the grandparents was in O.H.'s best interest. L.D. challenged the ruling, arguing the grandparents lacked standing under KRS 403.270 and the precedent set by Mullins v. Picklesimer. The appellate court's review focused on whether the family court's factual findings were clearly erroneous based on substantial evidence, and whether the court abused its discretion in applying the law to the facts. The court concluded that as long as the factual findings were supported and the law was correctly applied, the family court's custody decision would remain undisturbed.
Any time after a parent initiates legal proceedings to regain custody of a child is excluded when determining the required minimum period of residence for custody considerations. The Appellant acknowledges that O.H. has lived with the Appellees for over six months but argues that her intent to regain custody constitutes a legal proceeding under the relevant statute. The court disagrees, noting that the Appellant has not taken any legal action since O.H.'s removal in 2003 and that compliance with the permanency plan does not equate to initiating a legal proceeding. Additionally, the family court found that the Appellant failed to comply with the permanency plan, which led to the Cabinet recommending against returning O.H. to her care.
The court confirmed that under KRS 620.027, which grants standing to grandparents in stable relationships with the child, the Appellees were recognized as having the same standing as a parent for custody evaluations. The family court determined that the Appellees provided a stable environment for O.H., despite the Appellant's claims to the contrary, which were unsupported by evidence. The Appellant's argument that the Appellees waived their right to seek permanent custody due to their prior agreement with the Cabinet's permanency plan was found to be without merit, as there was no indication this issue was raised in family court, and testimony indicated a shift in circumstances justifying the Appellees' pursuit of permanent custody.
Appellees collaborated with involved parties to return O.H. to Appellant, but it became clear that this was not feasible and continued proceedings were harmful to O.H. Establishing a precedent that penalizes Appellees for their cooperation with the Cabinet's plan would undermine its objectives. Appellant argued that even if Appellees had standing, the family court failed to equally consider both parties in the permanent custody ruling and did not evaluate her fitness to regain custody. KRS 403.270 mandates that custody decisions prioritize the child's best interests and require equal consideration for each parent and any de facto custodian, taking into account various factors including parental wishes, the child's preferences, family interactions, adjustment to home and school, mental and physical health, evidence of domestic violence, and the role of de facto custodians. Additionally, KRS 620.023 outlines circumstances affecting custody decisions, such as mental illness, abuse, and substance abuse by the parent. The court may also evaluate rehabilitative efforts made by the parent. Appellant did not file a motion to regain custody, making the proceedings primarily about Appellees’ request for permanent custody. After reviewing the evidence, it was determined that the family court adequately considered all relevant factors under KRS 403.270(2) and KRS 620.023 in its decision.
The court found that the Appellees provided O.H. with a stable and secure environment and collaborated with his school and counselors for his necessary treatment. In contrast, the Appellant had not sought O.H.'s return since his removal in 2003, was aware of abuse occurring to her children while they were in the maternal grandparents' care but failed to report it to the Cabinet, did not complete a court-ordered psychological evaluation for her domestic abuse issues, neglected the Cabinet's recommendation for life skills counseling, and was reported to have threatened another child in her care. All involved therapists and counselors unanimously agreed on the need for O.H. to have permanency and stability, which the Appellees were providing. The family court concluded that granting permanent custody to the Appellees was in O.H.'s best interest, and the decision was not an abuse of discretion. The Appellant contended that the court erred by not allowing O.H. to testify regarding his wishes. However, the record shows that Appellant's counsel improperly served a subpoena directly on O.H. rather than through the guardian ad litem, violating procedural rules. During the hearing, O.H. showed emotional distress, leading to the court quashing the subpoena based on improper service and the therapist's recommendation against testifying. The Appellant did not seek to have O.H. properly served afterward. The trial court's rulings were affirmed, with all judges concurring.
