R. (J.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.Annotate this Case
RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
J.R., BIOLOGICAL FATHER
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 07-J-00045
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY; AND D.R., A CHILD
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
COMBS, CHIEF JUDGE: J.R.1 appeals from an order of the Woodford Family
Court granting permanent custody of his son, D.R., to his maternal grandparents as
a result of an abuse petition filed against J.R. The child’s biological mother is
deceased. After our review, we affirm.
Because a juvenile is involved, the names of all involved parties are withheld in order to assure
On April 16, 2007, the Cabinet for Health and Family Services (the
Cabinet) in Woodford County filed an abuse petition on behalf of D.R., a minor,
against J.R., his biological father. D.R. has been diagnosed with cerebral palsy and
deals with severe physical limitations; he is confined to a wheelchair. The Cabinet
alleged that J.R. had slapped D.R. in the face and neck hard enough to leave a
“significant red mark.” According to a report later filed by the Cabinet, J.R.
admitted to slapping D.R. because the child had bitten him. J.R. said that he had
been pulling D.R.’s lip down because the child had been lying to him; D.R. then bit
his father’s finger.
The abuse petition also charged that J.R. had subjected D.R. to
inappropriate disciplinary practices. The first referral to the Cabinet involved an
inquiry as to whether J.R. had caused D.R. to suffer a broken leg by overstretching the child’s leg during physical therapy sessions. That complaint was
determined to have been unsubstantiated. A later Cabinet referral alleged that J.R.
had placed soap and vinegar in D.R.’s mouth to such a degree as to cause vomiting
at school. The Cabinet had handled these earlier incidents by referral to counseling
rather than by recourse to an abuse petition.
On May 2, 2007, the trial court appointed a guardian ad litem to
represent D.R.’s interests. On June 1, 2007, J.R. decided to place D.R. in
Heartspring, a residential facility located in Wichita, Kansas. J.R. had been
considering such a move prior to the filing of the abuse petition because of D.R.’s
increased resistance to self-care and walking. D.R. had not been removed from
J.R.’s care at this point. On June 14, 2007, the trial court ordered that J.R. was to
have no unsupervised contact with D.R. It also ordered that if D.R. should leave
Heartspring, the parties were to advise the court immediately.
On August 20, 2007, the guardian ad litem filed a preliminary report.
She advised the trial court that based upon her conversations with professionals at
Heartspring, D.R. did not require institutional care. D.R.’s maternal grandparents
were willing and able to take care of him. The grandparents had previous
experience in caring for D.R. and had visited him on numerous occasions. They
had also taken him for his appointments with his doctor and for therapy
appointments. They took him on family outings. The grandmother is a retired
registered nurse. The grandparents’ home in Wetumpka, Alabama, is equipped
with a wheelchair ramp and a handicapped bathroom. They are well prepared to
provide care for D.R. The guardian ad litem concluded her report by requesting
that temporary custody of D.R. be given to his grandparents so that he would not
have to be institutionalized while the case was pending. The court treated the
report as a motion that temporary custody of D.R. be given to the grandparents,
and a temporary removal hearing was scheduled.
The parties appeared before the Woodford Family Court on
September 4, 2007. J.R. admitted and stipulated that he had abused D.R. by
slapping him. The trial court ordered that D.R. be released from Heartspring, and
he was placed in the temporary custody of his maternal grandparents. The court
also reiterated its prior order that there was to be no unsupervised contact between
J.R. and D.R. J.R. was ordered to pay $600.00 per month in temporary child
support to the grandparents, and all Social Security benefits received on D.R.’s
behalf were ordered to be paid over to the grandparents. J.R. agreed to the
placement and to the financial arrangement.
On October 11, 2007, a supervisor in the Cabinet for Health and
Family Services filed a report regarding the case and noted that J.R.’s initial visits
with D.R. in Alabama had gone well. However, J.R. expressed reservations about
restrictions that the grandparents had placed on him with respect to his visits. He
was concerned about D.R.’s weight gain and other physical health needs. The
report detailed J.R.’s progress in counseling. The report also indicated that his
grandmother believed that it would be detrimental for D.R. to return to live with
his father because D.R. experienced bad dreams and cried before his father’s visits.
During a hearing on October 16, 2007, the Cabinet supervisor orally
supplemented her initial report with information that she obtained after a trip to
Alabama to meet with D.R. D.R. told her that he was afraid of his father and that
he did not want to live with him. He reported additional past incidents of abuse by
J.R., including that J.R. had allowed him to fall in the bathroom. The supervisor
observed that D.R. had adjusted well to living with his grandparents. She
concluded that she did not believe that it would be advisable or beneficial for D.R.
to return to his father’s custody at the present time.
The guardian ad litem also filed another report on October 16 in
which she indicated that D.R. was adjusting well to living with his grandparents
and to his new school. The parties had agreed that J.R. would visit D.R. in
Alabama on Saturday and Sunday of every third weekend and that J.R. would call
D.R. on other occasions. J.R.’s first weekend visit with D.R. at the grandparents’
home had gone well. However, D.R. became upset with J.R. during his second
visit because of an incident at church and refused to tell him good-bye. According
to the report, D.R. did not eat well that evening and had a hard time falling asleep.
D.R. told the guardian ad litem that he no longer wanted to have
Sunday visits with his father. He also told her that he had “been through too
much” living with his father and did not think that he ever wanted to live with him
again because he was scared. The guardian ad litem concluded her report by
recommending that D.R. remain in the temporary custody of his grandparents. By
agreement of the parties, the court subsequently changed the visitation schedule to
Saturdays only. It permitted the grandparents to monitor D.R.’s telephone
conversations with J.R. and to terminate them if D.R. became upset.
A dispositional hearing was held on December 18, 2007. At this
hearing, the trial court ordered that sole permanent custody of D.R. was to be given
to his maternal grandparents. In reaching this decision, the trial judge expressed
her opinion that a continuance of temporary custody by the grandparents was not
an available option. On January 15, 2008, the trial court entered the following
order that reflected all of its rulings at the dispositional hearing:
This matter having come before the Court for Disposition
and the Court having reviewed the Dispositional Report
prepared by the Cabinet for Health and Family Services,
the Report of the Guardian Ad Litem and having heard
additional information from the Cabinet Supervisor and
the Guardian Ad Litem as well as having heard
statements from counsel on behalf of the father of this
child, [J.R.], it is hereby ORDERED that the child’s
maternal grandparents, [G.D.] and [J.D.], are to receive
SOLE PERMANENT CUSTODY of [D.R.] effective
December 18, 2007. Additionally, the following
clarifications are made: (a) any and all benefit checks for
[D.R.] from Social Security are to be paid directly from
the Social Security Administration to the maternal
grandparents, [G.D.] and [J.D.][;] (b) [J.R.] is permitted
to place telephone calls to [D.R.] on Tuesday, Thursday
and Sunday evenings at 7 p.m. central standard time; the
calls are to last no longer than thirty minutes and the
grandparents are to make [D.R.] available for these calls;
(c) if [D.R.’s] school makes his grades available online,
the maternal grandparents are to make any access code
for this information available for [J.R.] to receive
monthly updates on [D.R.’s] grades; if this information is
not available online, the maternal grandparents are to
send a note to [D.R.’s] school that permits [J.R.] monthly
contact for updates on [D.R.’s] grades and IEP; (d) the
maternal grandparents are to send [J.R.] a monthly report
by e-mail on [D.R.’s] physical medical appointments and
physical medical information. All prior agreements as to
the recommendations made in the Guardian Ad Litem’s
Report filed October 16, 2007 as well as all prior Orders
of this Court regarding child support, supervised
visitation and other matters are to remain in effect.
J.R. filed a timely notice of appeal from this order on January 16, 2008.
The only issue for our consideration on appeal is whether the trial
court erred in awarding sole permanent custody of D.R. to the grandparents. J.R.
contends that as the biological parent of D.R., he had a superior right to custody of
his son that could only be overcome upon a finding that he was an “unfit” parent.
Although J.R. orally objected to the court’s permanent custody ruling
at the hearing, he did not preserve his argument for appellate review. Nor did he
present it to the trial court in a post-hearing motion. “Appellate courts review only
claims of error which have been presented to trial courts.” Humphrey v.
Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998).
On appeal, J.R. argues that in effect, the court’s grant of permanent
custody amounted to an involuntary termination of his parental rights. He now
objects for the first time that the findings of the trial court were insufficient to
support his lack of fitness as a parent. Again, his failure to raise that issue
deprived the trial court of the opportunity to rectify an alleged error and to rule
accordingly. Our role in reviewing a record for error precludes us from
considering a new argument and essentially granting a litigant a second
opportunity to be heard as if he were once again before the trial court. Florman v.
MEBCO Ltd. Partnership, 207 S.W.3d 593, 607 (Ky. App. 2006). It is a timehonored and consistently repeated rule of Kentucky courts to require proper
preservation of issues for appellate purposes, and we could cite a myriad of cases
In the case before us, J.R. incorrectly contends that his parental rights
have been involuntarily terminated. A grant of sole permanent custody to the
grandparents did not terminate his status as D.R.’s father. The court’s order set
forth clear guidelines for J.R.’s opportunities for access to D.R. As the
Commonwealth notes in its brief, Kentucky Revised Statutes (KRS) 620.130
grants J.R. the opportunity to petition the court for custody at a future time. Such
would not be the case if the court had involuntarily terminated his parental rights.
In an abuse case brought pursuant to KRS Chapter 620, a court may
order a dispositional alternative that most closely meets the best interests of the
child. Among the choices it may consider is the following provision:
Removal of the child to the custody of an adult
relative, other person, or child-caring facility or childplacing agency, taking into consideration the wishes of
the parent or other person exercising custodial control or
supervision. (Emphasis added.)
KRS 620.140(1)(c). While the court is directed to take into consideration the
wishes of a parent, it is not required to defer to them. We note that considerable
latitude is conferred upon a court in tailoring a remedy to meet the needs of a child.
The preamble to the statute at § (1) recites that a court “shall have, but shall not be
limited to” the dispositional alternatives that are then set forth.
Under the facts and circumstances of this case, we conclude that the
circuit court did not abuse its discretion under KRS 620.140 to elect to award sole
permanent custody of D.R. to his grandparents as a dispositional alternative.
We affirm the order of the Woodford Circuit Court.
BRIEF FOR APPELLANT:
Edward M. Thompson
BRIEF FOR APPELLEE
Alan J. George
BRIEF FOR APPELLEE
GUARDIAN AD LITEM FOR THE
Susan Smith Horne