D.P. AND S.P. v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; S.L.; J.P.; AND M.D.S.
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RENDERED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000672-ME
D.P. AND S.P.
APPELLANTS
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 05-AD-500013
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES; S.L.;
J.P.; AND M.D.S.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND JOHNSON, JUDGES.
DYCHE, JUDGE:
D.P. and S.P. appeal from an order of the
Jefferson Family Court denying their Ky. R. Civ. Pro. (CR) 24
motion to intervene in this Termination of Parental Rights
action filed pursuant to KRS 625. 1
Because the appellants
failed to comply with the applicable rule pertaining to
intervention, we affirm.
1
D.P. is the paternal grandfather of one of the children, and S.P. is the
maternal grandmother of both. Although the trial court incorrectly stated
these relationships, the error was, at worst, harmless. CR 61.01.
CR 24.03 requires that the motion to intervene “shall
be accompanied by a pleading setting forth the claim or defense
for which intervention is sought.”
The appellants filed no such
pleading, even after this deficiency was pointed out in the
trial court, and the motion could have been summarily denied.
Mulligan v. First National Bank & Trust Co. of Lexington, 351
S.W.2d 59 (Ky. 1961).
The family court, however, considered the
merits of the motion, even in the absence of this pleading.
We have examined the record carefully, and find that
the family court judge did an exceptional job of analyzing the
contentions of the parties, stating the salient facts, stating
the applicable law, and formulating a cogent order resolving the
issues herein.
We therefore adopt her opinion, in full, as our
own:
This case is before the Court on the
motion of the paternal grandparents of one
child to Intervene in this Termination of
Parental Rights (TPR) action involving two
children. The grandparents assert claims
for custody and visitation.
This case was previously before this
division of Jefferson Family Court in
Dependency/Neglect/Abuse Case #’s 00J501925003 and 00J501924-004. The grandparents
were granted standing in that matter at the
time of adjudication on a second neglect
petition as they had previously had
temporary custody of the children following
removal pending a first neglect petition.
Following a hearing on their motion for
temporary custody, this Court denied the
motion. They were also present and
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testified on their own behalf at a
dispositional hearing concerning the
children on June 9, 2004. Following the
dispositional hearing on the second
petition, the Court committed the children
to the Cabinet for Health and Family
Services (CHFS) (See Finding of Fact,
Conclusions of Law and Dispositional Order
entered June 14, 2004).
The grandparents claim that two recent
Kentucky appellate decisions indicate that
grandparents should be permitted to
intervene in Termination of Parental Rights
cases, Baker v. Webb, Ky, 127 S.W.3d 622
(2004) and E.D. vs. Commonwealth, Ky.App.
152 S.W.3d 261 (2004). The Cabinet for
Health and Family Services and the Guardian
Ad Litem have both filed responding
memoranda in opposition.
The Kentucky Rules of Civil Procedure
provides the following grounds for
intervention of right in a civil action:
Upon timely application anyone
should be permitted to intervene
in an action (a) when a statute
confers an unconditional right to
intervene, or (b) when the
applicant claims an interest
related to the property or
transaction which is the subject
in the action and is so situated
that the disposition of the action
may, as a practical matter impair
or impede the applicant[’]s
ability to protect the interest,
unless that interest is adequately
represented by existing parties.
CR 24.01(1)
There is no statutory right of
grandparents nor other relatives to
intervene in TPR actions in Kentucky.
Therefore, we must explore whether any right
to intervene exists under CR 24.01 (1)(b).
-3-
This is an action to terminate the rights of
the mother of two children and the rights of
two putative fathers. The movant
grandparents are the paternal grandparents
of one of the two children involved, M.P.
While movants have developed an emotional
bond with the younger child, T.L., they have
no blood relationship, no parental
relationship, no legal custodial or defacto
custodial relationship to the child. With
respect to the daughter of their son, they
similarly have no parental rights to assert;
they are neither custodians, defacto
custodians or otherwise vested with parental
rights. Movants do not have parental rights
to assert or protect in this action.
In this case the paternal grandparents’
request for temporary custody of these
children was carefully considered during
D/N/A hearings and rejected. Their claims
were never ignored or set aside, as in Baker
vs. Webb, Id.. [sic] Indeed they were at
one time granted temporary custody of the
children.
The [grandparents’]reliance on Baker
vs. Webb, Ky. 127 S.W.3d 622 (2004) in
support of their motion to intervene is
misplaced. In Baker, relatives of the
children sought to intervene in an adoption
proceeding after parental rights had been
terminated. They never sought to intervene
in an action to terminate parental rights.
Further, the relatives who sought to
intervene had initially been ignored by the
Cabinet when they made inquiries to be
considered as temporary custodians as the
least restrictive placement for the children
when Dependency/Neglect/Abuse proceedings
were commenced. Accordingly, the Kentucky
Supreme Court held that the regulations and
policies of the Kentucky Cabinet for Health
and Family Services vested the biological
relatives of an adoptive child with a
sufficient cognizable legal interest in the
child’s adoption proceedings and determined
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that their motion to intervene should have
been granted.
In any successful motion to intervene,
a party’s interest relating to the
transaction must be a “present substantial
interest in the subject matter of the law
suit,” rather than an expectancy or
contingent interest. Gainer vs. Packaging
Service Corp. Ky. App., 636 S.W.2d 658, 659
(1982). KRS 625.090 (6) provides that
following a trial the Trial Court shall
enter a decision either “. . . . (a)
Terminating the right of the parent; or (b)
Dismissing the petition and stating whether
the child shall be returned to the parent or
shall remain in the custody of the state.”
A termination action can, but does not
always result in a child’s becoming eligible
for adoption. In this case, the
grandparents have an expectancy or
contingent interest.
The [grandparents] also rely on E.D.
vs. Commonwealth, Ky.App., 152 S.W.3d 261
(2004), indicating that the decision in that
case demonstrates the precariousness of
grandparents visitation “rights”, in the
event that parental rights are terminated.
In that case, the Kentucky Court of Appeals
held that the existence and extent of
grandparents[’] right[s] is exclusively the
prerogative of the legislature. There are
no common law grandparents[’] rights nor is
there common law termination of parental
rights or adoption; all are created by
statutes. The Court in E.D. quoted
precedent in stating that “this court is not
in a position to add words and meaning to a
statute that is clear on its face”. The
Court emphasized that it can only enforce a
statute as it is written. The Court
construed KRS 405.021 to allow grandparent
visitation post termination of parental
rights if and only if such visitation was
established pursuant to KRS 405.021 in a
Circuit Court action. The Court further
-5-
held a District Court Order granting
visitation during the course of the
Dependency/Neglect/Abuse action was
insufficient to establish grandparents[’]
visitation rights post-TPR. The Court
further explained that visitation during the
parents[’] visitation was not a separate
order of visitation conferring separate
rights upon the parties after termination
had occurred.
In this case the [grandparents] were
not granted visitation separate from that of
the parents nor did they initiate or obtain
visitation pursuant to any Circuit Court
order under KRS 405.021. In E.D., the Court
found that where the grandparents had not
been granted visitation rights pursuant to
KRS 405.021, there were no rights to
enforce. Accordingly, E.D. is of no help to
the [grandparents] in this case.
Understandably, movants are concerned
that if their son’s parental rights are
terminated, this legal result could
jeopardize (or result in the severing of)
the bond between grandparent and child(ren.)
If the legislature permitted extended family
members, grandparents, aunts, uncles, adult
siblings, cousins, and others to intervene
in TPR cases, however, the goals and
policies of the Adoption and Safe Families
Act (AFSA) and Kentucky law, to provide
efficient and timely justice for children
and their families and to facilitate
children’s rights to a safe, healthy
childhood with a nurturing, permanent family
would be severely delayed. Accordingly, for
all of the reasons set forth above,
Movants[’] request to intervene is
hereby overruled.
The order of the Jefferson Family Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
John H. Helmers, Jr.
Helmers, Demuth & Walton PLC
Louisville, Kentucky
G. Thomas Mercer
Office of Legal Services
Cabinet for Health and Family
Services
Louisville, Kentucky
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