GEORGE GASTON AND GLORIA GASTON, HIS WIFE v. COMMONWEALTH OF KENTUCKY; CABINET FOR FAMILIES & CHILDREN; S.A.M.; B.G.M.; B.A.M, A CHILD; AND M.D.M., A CHILD GEORGE GASTON AND GLORIA GASTON, HIS WIFE V. COMMONWEALTH OF KENTUCKY; CABINET FOR FAMILIES & CHILDREN; S.A.M.; B.G.M.; B.A.M, A CHILD; AND M.D.M., A CHILD
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RENDERED: JULY 6, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002181-MR
GEORGE GASTON AND
GLORIA GASTON, HIS WIFE
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 98-AD-00013
COMMONWEALTH OF KENTUCKY;
CABINET FOR FAMILIES & CHILDREN;
S.A.M.; B.G.M.; B.A.M, A CHILD;
AND M.D.M., A CHILD
AND
NO. 1999-CA-002642-MR
GEORGE GASTON AND
GLORIA GASTON, HIS WIFE
V.
APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE JAMES R. DANIELS, JUDGE
ACTION NO. 98-CI-00895
COMMONWEALTH OF KENTUCKY;
CABINET FOR FAMILIES & CHILDREN;
S.A.M.; B.G.M.; B.A.M, A CHILD;
AND M.D.M., A CHILD
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
APPELLEES
BARBER, JOHNSON, AND SCHRODER, JUDGES.
APPELLEES
BARBER, JUDGE:
Appellees, Commonwealth of Kentucky and Cabinet
for Families and Children (“Cabinet”), filed an action in
McCracken Circuit Court terminating the parental rights of S.A.M.
and B.G.M. in their two surviving minor children.
S.A.M. and
B.G.M. had severely abused and neglected their children,
resulting in the death of one of their children prior to
intervention by the Cabinet.
The order terminating the parental
rights of the biological parents is presently on appeal.
Appellants, George and Gloria Gaston (“the Gastons”),
the aunt and uncle of the minor children, filed a motion to
intervene in the termination action on August 5, 1998.1
circuit court denied this motion.
The
The Gastons then filed a
petition for custody of the minor children in September 1998.
The Cabinet filed a motion to dismiss the Gastons’ petition.
The
circuit court denied the motion to dismiss, and the Gastons
amended their petition to request that they be allowed to adopt
the surviving children.
On August 24, 1998, the Gastons, who
live out of state, attempted to file an out-of-state application
for permission to receive or place a child with the Cabinet.
The
Cabinet refused to accept the application, stating that S.A.M.
and B.G.M.’s parental rights had already been terminated.
Therefore, the children were not available for independent
adoption.
The Cabinet refused to accept the Gastons’ out-of-
state application pursuant to KRS 199.473(1).
KRS 199.473(1)
provides, “nothing in this statute shall be construed to limit
1
George Gaston is the step-brother of the biological father,
B.G.M.
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the authority of the department . . . to determine the proper
disposition of a child committed to it . . . prior to the filing
of an application to place or receive.”
922 KAR 1:1010 states,
at section 6, that “an application for permission to place or
receive a child shall not be processed if prior to receipt of the
application, the child was committed to the Cabinet . . . .”
Following the Cabinet’s refusal to accept the out-of-state
application, the Gastons filed a petition for custody in the
circuit court on September 18, 1998.
The circuit court
terminated the parental rights of B.G.M. and S.A.M. on October 7,
1998.
On November 23, 1998, the trial court entered an order
declaring the Cabinet to be the legal representative of the minor
children.
The Cabinet asserts that this order was entered for
the express purpose of allowing the Cabinet to place life
insurance proceeds in trust for the minor children.
The Gastons
filed a motion to set aside the judgment dismissing their
petition for custody.
denied.
On August 16, 1999, this motion was
S.A.M. appealed the termination of her parental rights.
In the same appeal, the Gastons appealed the trial court’s denial
of their motion to intervene in the action granting the Cabinet
custody of the minor children.
On September 18, 1998, prior to the termination of the
parental rights of the biological parents, the Gastons filed a
separate action submitting a petition for custody of the minor
children.
The custody petition was amended to an adoption
petition on May 26, 1999.
Simultaneously, the Gastons filed a
DSS-187 application for permission to receive a child.
-3-
On June
10, 1999, the Cabinet denied the application claiming that the
Cabinet was the legal representative of the children and that the
legal custody had been vested in the Cabinet prior to receipt of
the application.
The trial court dismissed the Gastons’
adoption petition on October 6, 1999.
The Gastons also appealed
that order, and the actions were consolidated.
The Cabinet asks that 1999-CA-02181-MR be dismissed as
the Gastons were not parties to the underlying action and the
appeal was not timely filed.
1999-CA-002181-MR is an appeal of
the orders of the trial court entered on November 23, 1998 and
August 16, 1999.
The 1998 order declared the Cabinet to be the
legal representative of the minor children.
The 1999 order
denied the Gastons’ motion to set aside the judgment terminating
the parental rights of the biological parents and awarding
custody of the children to the Cabinet.
The Gastons’ motion to
intervene in the termination of parental rights action was denied
by the trial court.
The Cabinet asserts that the November 23,
1998 order simply made the Cabinet the legal representative of
the minor children for the limited purpose of controlling the
life insurance proceeds.
The Gastons’ appeal of the November 23,
1998 order was not filed until ten months after entry of the
order.
The Cabinet asserts that as the trial court denied the
Gastons’ motion to intervene in the termination/custody action,
the Gastons are not entitled to appeal the trial court’s August
16, 1999 ruling.
The law permits a party to appeal the denial of a
motion to intervene in a legal proceeding.
-4-
See Cabinet for Human
Resources v. Houck, et al, Ky. App., 908 S.W.2d 673 (1995);
Stovall v. Ford, Ky., 661 S.W.2d 467, 468 (1983).
The Gastons
cannot be successful on that issue, as KRS 625.060 prohibits
intervention in a termination of parental rights action by any
party.
For this reason, the trial court’s denial of the motion
to intervene is affirmed.
S.A.M. did not file a brief supporting her appeal of
the termination of her parental rights.
Similarly, the Cabinet
failed to submit any evidence or argument supporting the
termination.
A review of the file by this Court reveals that the
termination of parental rights was in accordance with law, and
the record reflects no reason to reverse the termination.
The
Cabinet is entitled to terminate the parental rights of
individuals who abuse and neglect their children.
See V.S. v.
Cabinet for Human Resources, Ky. App., 706 S.W.2d 420 (1986).
The Gastons’ appeal of the trial court’s dismissal of
the adoption petition is properly before this Court, and after
review of the record, we affirm.
The Cabinet asserts that at the
time the children were removed from the home of the biological
parents and placed with the Cabinet, it had the sole authority to
place the children in any adoptive home which it believed was in
the best interests of the children.
KRS 199.473.
The Gastons assert that the Cabinet failed to follow
its own policies regarding the placement of the minor children by
denying family members the right to adopt the children.
Cabinet’s placement policy states, in pertinent part, the
The
following:
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Children shall be placed in the most familylike, least restricting setting that meets
their special needs and serves their best
interests. Listed in order of increasing
restrictiveness, settings for placements
include: home of a relative . . . .
Cabinet Policy #350.
The Gastons assert that no immediate family members
were aware that the children had been taken into custody by the
Cabinet, and they did not know that the parental rights of B.G.M.
and S.A.M. were being terminated.
The Gastons show the Court
that they had no earlier notice of the proceeding, and thus, they
were not able to intervene in the action sooner.
The Gastons
filed the underlying action as soon as they became aware of the
childrens’ situation.
The Gastons also argue that the Cabinet should be
required to accept an adoption petition by an out-of-state
relative.
Specific statutes and supporting regulations define
when the Cabinet may deny an application for custody of a child.
The Cabinet must show that such a denial is not arbitrary or
capricious, unreasonable or predicated upon an erroneous factual
determination.
Department for Human Resources v. R.G., Ky., 664
S.W.2d 519, 522 (1984).
The Gastons argue that the children should have been
placed with them, as the record shows that they were approved as
having a satisfactory home following home study conducted by the
Cabinet.
The study clearly found the Gastons to be an
appropriate placement for the children.
The law does not
require, however, that home study be binding upon the Cabinet.
-6-
Kentucky law permits the Cabinet to look at factors in addition
to the home study when determining the best placement for a
child.
Department for Human Resources v. Basham, Ky., 540 S.W.2d
6, 7 (1976).
The Gastons ask this Court to find that even where the
parental rights to a child have been terminated, a biological
relative be given the first opportunity to adopt the child.
The
biological parents of the minor children requested, through
counsel, that the Gastons be permitted to adopt the children.
The Gastons argue that the children were not legally made wards
of the Cabinet until October 7, 1998, the date of the termination
of parental rights, and until that date the Cabinet was required
to place the child with any relative who desired custody and had
been found to be a fit placement.
We decline to adopt such a
strict interpretation of the statute and conclude that once a
child is removed from the home he/she is in the custody of the
Cabinet.
Pursuant to its statutory authority, the Cabinet may
determine the best placement for the child after the child has
been removed from the home.
The Cabinet argues that consideration of placement with
relatives is merely an option and not required by law.
The
Cabinet also asserts that it considered the Gastons as a
placement for the children, but the Cabinet determined that it
would not be in the best interests of the children to be placed
with their relatives.
The law does not permit this Court to make
a determination as to the fitness of the Gastons, nor does it
permit us to reverse the Cabinet’s decision regarding placement
-7-
of the children, in the absence of an abuse of discretion on the
Cabinet’s part.
As the Gastons show, the Cabinet’s own policies
encourage placement of children with family members, even if such
placement is not mandated.
However, in this case, the children
were placed in another home, a placement which the Cabinet
asserts served the best interests of the children.
The children
were adopted by that family prior to the time that this action
became final.
Where one home is already approved, and placement of
the children in that home has taken effect, the Cabinet is not
required to weigh the virtues of that home against other homes
which become available.
Department for Human Resources v. R.G.,
Ky., 554 S.W.2d 519, 522 (1984).
After years of abuse, the
children have been adopted into a permanent home, and we are
unwilling to reverse that decision and wreak further upheaval
upon them.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Benjamin J. Lookofsky
Mayfield, Kentucky
Mona S. Womack
Assistant Counsel Cabinet for
Families and Children
Owensboro, Kentucky
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