M. (J.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: SEPTEMBER 10, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000156-ME
J.M.
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NOS. 08-J-02070, 08-J-02071 & 08-J-2072
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; A.G., C.G., AND J.G.,
CHILDREN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
ACREE, JUDGE: J.M. appeals an order of the Fayette Family Court denying her
motion for temporary custody of her three grandchildren. We affirm.
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
The Cabinet for Health and Family Services filed a petition on
November 7, 2008, alleging C.G., J.G., and A.G., all minor children of J.M.’s
daughter, were neglected and requesting they be removed from their mother’s
custody. J.M., an Ohio resident, was granted permission to intervene in the action
and filed a motion for temporary custody of the three children pursuant to KRS
620.090. That statute requires:
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[.] 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.
KRS 620.090(2).
Following J.M.’s motion, the family court ordered a home study be
conducted. Ohio officials conducted the study and approved J.M.’s home for
placement of the children and recommended that she be granted temporary
custody; however, the full report from Ohio revealed certain facts which caused the
Cabinet and the family court serious concern. The family court took judicial notice
of the report’s contents. According to information included with the report, M.G.,
the children’s mother and J.M.’s daughter, was the victim of sexual and emotional
abuse in J.M.’s home, though J.M. was not the perpetrator. Further, J.M. was
currently residing with her boyfriend who was previously convicted for felony
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domestic violence. M.G. informed the family court she did not want the children
to be placed with J.M. The oldest child, C.G., age 15, also opposed placement
with J.M. Based on these facts, the family court declined to place the children with
their grandmother and found it would be better for them to remain in foster care
and/or treatment while M.G. proceeded with her reunification plan. J.M.’s appeal
followed.
J.M.’s brief fails to comply with the appellate guidelines articulated in
the Kentucky Rules of Civil Procedure (CR). Appellate briefs must contain
[a]n “ARGUMENT” conforming to the statement of
Points and Authorities, with ample supportive references
to the record and citations of authority pertinent to each
issue of law and which shall contain at the beginning of
the argument a statement with reference to the record
showing whether the issue was properly preserved for
review and, if so, in what manner.
CR 76.12(4)(c)(v). Nowhere does J.M.’s brief cite to the record or state whether
the issues raised were preserved for appellate review. Accordingly, our review is
for manifest injustice only.2
J.M.’s brief appears to take three approaches to this matter. She
contends: 1) the family court should have conducted a hearing prior to dismissing
J.M.’s motion; 2) the court was required to place the children with a family
2
In Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990), we established the principle that, where
an appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only undertake an
overall review of the record for manifest injustice. We believe that principle applies as well to
the failure to comply with CR 76.12(4)(c)(v). Another appropriate remedy is to strike J.M.’s
brief for noncompliance with the Rule. CR 76.12(8)(a) (“A brief may be stricken for failure to
comply with any substantial requirement of this Rule[.]”). We have chosen the less severe
alternative of reviewing the case for manifest injustice due to the serious nature of the issues.
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member, namely J.M., because she was willing to take them in; and 3) the family
court was not entitled to disagree with the recommendation of an Ohio social
services agency.3 These arguments are not persuasive.
J.M. contends it was unfair for the family court to reach a decision
based in large part upon facts included with the home evaluation report which she
did not have the opportunity to refute in a hearing. Strictly speaking, J.M. was
granted a hearing on her motions, though no witnesses testified. The family court
received evidence regarding the home evaluation and heard brief arguments from
the Cabinet, from the Guardian Ad Litem (GAL), and from J.M. The court even
spoke informally to J.M. herself. She has identified no statutory or constitutional
provision which entitles her to more, nor has she identified where in the record she
petitioned the family court to provide more. Simply alleging the lack of a full
evidentiary hearing was “unfair” does not warrant a finding of manifest injustice.
J.M. next argues the family court was obligated to place the children
with her because of the statutory preference for placement with family members.
This position is based on a misreading of the statute. Pursuant to KRS 602.090, a
court is required to place children with a family member who is qualified, and here
the court found J.M. was not qualified. That determination was not manifestly
unjust. There was evidence J.M.’s home environment had resulted in abuse M.G.
experienced as a child. J.M. continued to deny that M.G. had been sexually abused
by a past boyfriend of J.M. despite the fact that M.G.’s claims had been
3
J.M. has not raised arguments on appeal regarding the portion of the family court’s order which
denied her request for reasonable visitation.
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substantiated by Ohio’s social services agency. Both the Cabinet and the
children’s GAL recommended not granting temporary custody to J.M. Combined
with M.G.’s stated preference that the children not be placed with J.M., and C.G.’s
preference not to be placed with J.M., factors the family court was obligated to
consider, there was ample reason to decline to place the children with their
grandmother.
J.M. finally contends the family court erred in declining to abide by
the recommendation of the Ohio social services agency that J.M. be granted
custody of the neglected children. J.M. cites no legal authority which indicates
such recommendations are dispositive of the issue of proper placement of the
children. The family court was not bound to follow the recommendation that the
children be placed with J.M. In fact, blindly agreeing with the Ohio officials
without consideration of the facts as a whole would have been an abdication of the
family court’s responsibilities. Further, accepting the proposition that the court is
so bound would eviscerate the principle that placement of neglected children is in
the discretion of the court.
Considering all of the foregoing, and having examined the record, we
conclude that the family court’s refusal to grant J.M. temporary custody of the
children was neither a manifest injustice nor an abuse of discretion. The Fayette
Family Court’s December 22, 2009 order is affirmed.
NICKELL, JUDGE, CONCURS.
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HARRIS, SENIOR JUDGE, CONCURS AND FILES SEPARATE
OPINION.
HARRIS, SENIOR JUDGE, CONCURRING: I concur in Judge
Acree's well-written opinion, and only write separately to state that I believe the
Court should strike the Appellant's brief because of blatant failure to comply with
the requirement that an appellate brief set forth "ample references to the specific
pages of the record, or tape and digital counter number . . . supporting each of the
statements narrated in the summary" in the statement of the case. CR 76.12
(4)(c)(v) and (8). I fear that letting lawyers get by with disregard of the
rules serves only to foster and encourage further erosion of the standards to which
Kentucky lawyers should be held.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jennifer McVay Martin
Lexington, Kentucky
Duane F. Osborne
Lexington, Kentucky
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