P. (K.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: MARCH 13, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
MODIFIED: APRIL 24, 2009; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001092-ME
K.P.
v.
APPELLANT
APPEAL FROM HARDIN FAMILY COURT
HONORABLE MATTHEW B. HALL, JUDGE
ACTION NO. 05-J-00525
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY; K.P., NATURAL MOTHER;
F.K., NATURAL FATHER; AND
J.C. AND BARBARA CONTRERAS,
INTERVENING PETITIONERS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, CLAYTON AND DIXON, JUDGES.
DIXON, JUDGE: Appellant, K.P., through his guardian ad litem, appeals from an
order of the Hardin Family Court removing him from the custody of Appellee, the
Cabinet for Health and Family Services (“Cabinet”), and returning him to his
natural mother. Finding no error, we affirm.
K.P. was born on May 25, 2004. On July 5, 2005, he was removed
from the custody of his mother, K.P. (“mother”), after she left him in the care of
his grandmother who was disabled and unable to take care of him. In September
2005, the family court found K.P. to be dependent and placed him in the custody of
the Cabinet. K.P. was thereafter placed in foster care with Appellees, J.C. and
Barbara Contreras. K.P. was subsequently diagnosed with Reactive Attachment
Disorder (RAD), as well as speech and behavioral issues, and participated in
therapy in the Contrerases’ home.
The Contrerases and K.P.’s mother worked together toward the
Cabinet’s goal of reunification. By 2007, K.P. was spending three days of each
week with his mother. Unfortunately, K.P. did not adjust well to the split in time
between his mother and the Contrerases, and began regressing towards his former
behavior. The Contrerases eventually became frustrated when the Cabinet ignored
their concerns and requests for a reevaluation of the reunification plan. As noted
by the family court, the Contrerases were no longer able to handle the emotional
pain of witnessing K.P.’s regression and, on February 8, 2007, filed the fourteenday notice with the Cabinet to discontinue foster care of K.P.
K.P. was thereafter returned to his mother’s care by the Cabinet on
February 22, 2007. It appears from the record that the reunification was without
either the required court approval or a review of K.P.’s CATS assessment. In May
2007, both K.P. and his infant sibling were the subject of a new dependency
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petition1 after their mother was involved in an altercation with her boyfriend.
Although both children were initially removed, the infant was informally adjusted
and returned to the mother. K.P. was placed in the home of new foster parents,
James and Andrea Edwards2.
Upon learning that K.P. had again been removed from his mother’s
home, the Contrerases immediately contacted the Cabinet but were informed that
they were no longer eligible to provide K.P. foster care. As a result, on November
28, 2007, the Contrerases filed a motion to intervene in the instant action “for the
purposes of placement and custody.” On December 12, 2007, the family court
entered an order ruling as follows:
Since the Contreras’ [sic] are the persons with
whom the natural mother wishes for the child to be
placed, and since there is evidence that they may stand in
a superior position due to the statutory language and have
been “tapped” by the natural mother to be the custodians,
then in that event, by operation of Civil Rule 24.01, and
pursuant to the [Baker v. Webb, 127 S.W.3d 622 (Ky.
2004)] holding, they shall be allowed to intervene in this
action.
The allowance of intervention does not guarantee
placement or equal footing in a custody determination,
but simply recognizes their status under the statutory
enactment.
1
The trial court questioned why the Cabinet chose to file a new petition when K.P. was already
legally in its care and custody. As a result, K.P. was actually represented by two separate
guardian ad litems. There is no explanation provided in the record as to why a second petition
was filed.
2
Interestingly, the Edwards were not married at the time K.P. was placed in their home. In fact,
the Contrerases took care of K.P. during the Edwards’ one-week honeymoon.
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On April 29, 2008, the family court held a lengthy evidentiary hearing
to determine the custodial placement of K.P. On May 9, 2008, the court entered its
Findings of Fact, Conclusions of Law and Order, removing K.P. from the
Cabinet’s custody and returning him to his mother. This appeal ensued.
Appellant first argues that the trial court erred in permitting the
Contrerases to intervene in the action herein. Appellant cites to Commonwealth,
Cabinet for Health and Family Services v. Huddleston, 185 S.W.3d 222, 223 (Ky.
App. 2006), wherein a panel of this Court held that KRS 610.010(11) confers sole
and exclusive authority upon the Cabinet to determine the appropriate placement of
a child committed to its care and, in fact, “explicitly prevents [the family court]
from intervening in Cabinet decisions with respect to their placement.”
In granting intervention, the family court cited to CR 24.01, which
provides in relative part:
(1) Upon timely application anyone shall 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 relating to the property or
transaction which is the subject of 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 that interest, unless the interest is adequately
represented by the existing parties.
Kentucky courts construe this rule liberally in order to effectuate the purpose of
intervention. Yocom v. Hi-Flame Coals, Inc., 568 S.W.2d 757 (Ky. App. 1978).
Further, so long as the threshold timeliness requirement is satisfied, the decision to
grant intervention is within the sound discretion of the trial court and will not be
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disturbed absent a showing of abuse of that discretion. See Webster v. Board of
Education, Walton-Verona Independent School District, 437 S.W.2d 956 (Ky.
1969); Arnold v. Commonwealth ex rel. Chandler, 62 S.W.3d 366 (Ky. 2001).
We initially find that this issue is essentially moot in that the family
court did not order placement of K.P. with the Contrerases. In fact, the family
court explicitly stated that it did not have the power to do so. Rather, the court
terminated custody to the Cabinet and awarded custody to the natural mother.
Nevertheless, in granting the motion to intervene, the family court
commented,
The question remains is there a present substantial
interest in the subject matter of the litigation in order that
the Contreras’ [sic] be allowed to intervene. . . . The
seminal case in this arena is . . . Baker v. Webb, 127
S.W.3d 622 (Ky. 2004), which held “in order to
intervene, the party’s interest relating to the transaction
must be a present substantial interest in the subject matter
of the lawsuit, rather than an expectancy or contingent
interest.” [Citation omitted]. The Court in Baker held
that the regulations and policies of the Cabinet for
Families and Children, now Cabinet for Health & Family
Services, constituted sufficient legal interest under CR
24.01 to allow intervention into the action. In Baker, the
parties seeking to intervene were family members of the
minor child. Here, the Contreras [sic] also fall into a
superior category which is a person, upon considering the
wishes of the parent concerning the placement of the
child.
As such, the family court concluded because both the Contrerases and the natural
mother wanted K.P. to be placed with them, the Contrerases had a significant
interest in the outcome of the proceedings and permitting them to intervene served
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K.P.’s best interests. We are of the opinion that such determination was wellwithin the family court’s discretion.
The Contrerases have cited this Court to the recent unpublished
decision of our Supreme Court in Hammond v. Foellger, 2005-SC-000966-MR
(March 22, 2007). Therein, a foster parent, Tina Carter, moved for custody of a
child who had been in her care. Over the objections of relatives and the guardian
ad litem, the trial court recognized Carter as an “other person” under KRS
620.140(1)(c) and ruled that she had standing to seek custody of the child. After
the trial court found that it was in the best interests of the child to remain with
Carter, the relatives sought a writ of prohibition in this Court, which was denied.
On appeal, our Supreme Court held:
The Family Court Division of the Campbell Circuit Court
had the authority and responsibility to hear all matters
related to the custody and care of the child. Pursuant to
Baker v. Webb, 127 S.W.3d 622 (Ky. 2004), the court
appropriately allowed Tina Carter to present evidence as
to the best interests of the child. With the passage of
KRS § 23A.100, the General Assembly created a court
with the authority to hear all custody matters related to
children who are the subject of custody cases (including
all matters in the nature of actions for custody or actions
arising from dependency, neglect, or abuse).
Procedurally, this case was brought back to the Court by
the Cabinet for a review of a prior dispositional
determination. Following the motion for review, Tina
Carter filed a motion for custody pursuant to KRS §
403.270 and at the hearing of this matter stated that she
desired to be considered as a placement alternative under
KRS § 620.140(1)(c). The Family Court held these
grounds to be a proper basis for Tina Carter to bring an
action seeking custody. Tina Carter, as the primary
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caregiver and foster parent, had a significant interest in
the outcome of the proceedings.
In Baker, this Court stated as follows: “In so
holding, we are ensuring that all options for a permanent
placement are afforded children in need of a home.
Evaluating several possible homes only more thoroughly
serves the overriding legislative policy of considering the
best interests of the child.” Id. at 625-26.
Baker involved cousins of a child who had already
been adopted by foster parents seeking custody of the
child. This Court, in finding fault with the Cabinet, did
note that relatives are to be considered for placement of a
child. However, the clear holding of that case, as stated
above, is that the Court should consider which placement
of a child best fits within the best interests of the child.
Here the Family Court made a reasonable determination
on a matter within its jurisdiction, and we find no abuse
of discretion on the part of the Court of Appeals in
denying extraordinary relief.
Hammond, at 2-3.
While the Hammond decision cannot be cited as precedent, we agree
that as in Hammond, the family court herein acted within its discretion in
determining that it was in K.P.’s best interest that the Contrerases participate in the
custody proceedings to ensure that he was afforded “all options for a permanent
placement.” Baker, 127 S.W.3d at 625. Clearly, KRS 620.090(1) and KRS
620.140(1)(c) require consideration of a parent’s wishes as to placement of a child.
There is no dispute that K.P.’s parents wanted him to be placed with the
Contrerases. Thus, we find no error in the trial court’s order granting the motion to
intervene.
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However, we emphasize that the Contrerases sought to intervene only
for the limited dispositional determination of custody and placement of K.P., and
the family court noted as much in its order granting their motion. No request was
made to intervene in the proceedings to determine whether “there were reasonable
grounds to believe [K.P. was] dependent, neglected or abused . . .” KRS 620.080;
KRS 620.090. And we certainly do not believe that intervention for that purpose
would be proper or appropriate.
We are also of the opinion that the family court erroneously
concluded that it could not award custody of K.P. to the Contrerases.3 It is clear
from the family court’s order that it believed it was prohibited from placing K.P.
with the Contrerases based upon the language of KRS 620.130, which provides:
(1) In any proceeding under this chapter, when the court
is petitioned to remove or continue the removal of a child
from the custody of his parent or other person exercising
custodial control or supervision, the court shall first
consider whether the child may be reasonably protected
against the alleged dependency, neglect or abuse, by
alternatives less restrictive than removal. Such
alternatives may include, but shall not be limited to, the
provision of medical, educational, psychiatric,
psychological, social work, counseling, day care, or
homemaking services with monitoring wherever
necessary by the cabinet or other appropriate agency.
Where the court specifically finds that such alternatives
are adequate to reasonably protect the child against the
alleged dependency, neglect or abuse, the court shall not
order the removal or continued removal of the child.
3
The Contrerases concede that this issue is not preserved as they did not appeal the family
court’s findings in this respect. As such, we decline to reverse on this basis.
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2) If the court orders the removal or continues the
removal of the child, services provided to the parent and
the child shall be designed to promote the protection of
the child and the return of the child safely to the child's
home as soon as possible. The cabinet shall develop a
treatment plan for each child designed to meet the needs
of the child. The cabinet may change the child's
placement or treatment plan as the cabinet may require.
The cabinet shall notify the committing court of the
change, in writing, within fourteen (14) days after the
change has been implemented.
Although the family court did not specifically reference subsection (2), it is evident
that it assumed it was bound by the Cabinet’s placement decisions.
In fact, it is KRS 610.010(12) that prohibits a family court from
directing the Cabinet where to place a child that is in the Cabinet’s custody:
(12) Except as provided in KRS 630.120(5), 635.060(3),
or 635.090, nothing in this chapter shall confer upon the
District Court or the family division of the Circuit Court,
as appropriate, jurisdiction over the actions of the
Department of Juvenile Justice or the cabinet in the
placement, care, or treatment of a child committed to the
Department of Juvenile Justice or committed to or in the
custody of the cabinet; or to require the department or the
cabinet to perform, or to refrain from performing, any
specific act in the placement, care, or treatment of any
child committed to the department or committed to or in
the custody of the cabinet.
However, the family court herein specifically removed K.P. from the
Cabinet’s custody. At that point, KRS 620.140(c) authorized the court to place
K.P. in the custody of “an adult relative, other person, or child-caring facility or
child-placing agency, taking into consideration the wishes of the parent or other
person exercising custodial control . . . .” And as our Supreme Court held in
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Hammond, a foster parent falls within the definition of “other person.”
Accordingly, we believe that the family court had the discretion to grant custody of
K.P. to the Contrerases.
Next, Appellant contends that K.P was denied procedural due process
when the family court refused to allow the Cabinet to present its case. At the
beginning of the hearing, the court announced that the Contrerases and the Cabinet
would each have one hour and forty five minutes to present their cases and all
other parties would be afforded fifteen minutes. That amount of time was to be
used for both direct and cross-examination. No objections to the time limits were
made. However, after the conclusion of the Cabinet’s first witness, the court
stopped the hearing. The Contrerases claim that the Cabinet used all of its time in
cross-examination, while the Cabinet argues that the family court improperly cut
off its right to present evidence.
We cannot conclude that the Cabinet was prevented from presenting
its case. The family court clearly articulated its time constraints at the onset of the
hearing. No objection was made at either the time the court started or stopped the
hearing. In fact, the Cabinet’s counsel’s only remark to the court was just that he
was “disappointed” in how he presented the case.
The family court was well-apprised of the facts of this case at the time
of the evidentiary hearing. The Cabinet had every opportunity to call witnesses but
instead chose to stipulate to a majority of the testimony. Further, there is no
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indication that Appellant sought to present any evidence as the guardian ad litem.
Consequently, we conclude that no error occurred.
We also find no merit in Appellant’s claim that the family court erred
in permitting the Contrerases to introduce records from K.P.’s daycare center. Not
only did the evidence qualify as business records under KRE 803(6), but the
individual daycare workers testified about the personal observations that were
contained in the records.
Finally, Appellant argues that the family court erred in returning K.P.
to his mother because she lacks the stability and skills to care for him. Appellant
claims that the court’s decision was not based on any evidence in the record.
As an initial observation, we find it interesting that Appellant takes
the position that K.P.’s mother is unfit to have custody of him when it was
Appellant who, acting as guardian ad litem for K.P.’s younger sibling, advocated
for the return of the infant to the mother. Notwithstanding, we agree with the
Contrerases that the family court had three options in this matter: (1) leave K.P. in
the custody of the Cabinet and with a foster family that evidence established was
not meeting his needs; (2) return him to his mother who already had custody of his
younger sibling; or (3) place him with the Contrerases. Given that the court felt
that it was statutorily prohibited from granting custody to the Contrerases, it
returned K.P. to his mother with the knowledge that she was going to receive
assistance from the Contrerases. And, in fact, they have had physical custody of
K.P. since April 2008.
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There is no question that the family court herein was frustrated with
the Cabinet. In its Findings of Fact, Conclusions of Law, and Order, the court
stated:
It amazes this Court that CHFS wants [K.P.] to
remain with the Edwards for stability sake when they
have done everything contrary when it comes to his
stability.
...
As much as this Court would like to place this
child with the Contrerases, it cannot tell CHFS where to
place [K.P.]. KRS 620.130 states:
In any proceeding under this chapter, when
the court is petitioned to remove or continue
the removal of a child from the custody of
his parents or other person exercising
custodial control or supervision, the court
shall first consider whether the child may be
reasonably protected against the alleged
dependency, neglect or abuse, by
alternatives less restrictive than removal . . .
Where the court specifically finds that such
alternatives are adequate to reasonably
protect the child against the alleged
dependency, neglect or abuse, the court shall
not order the removal or continued removal
of the child. (Emphasis added).
When parents do not stabilize their life and do
what CHFS or the Court needs of them for the sake of
their child, the Court removes them from the parents’
care. In this case, CHFS has made very poor choices
with [K.P.]. CHFS has made one bad decision after
another and has never backed up or regrouped for the
sake of the child. Instead of putting [K.P] first, they
brought in Dr. Brenzel to bolster their case. Instead, Dr.
Brenzel’s testimony only proved that CHFS’s actions
continued to put [K.P] in one disruptive setting after
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another, and this Court is removing him from their care.
It is found that [K.P.] would be better off reunited with
his mother. There was specific testimony regarding
[K.P.’s] attachment to his mother. Both of [K.P.’s]
parents4 believed that [K.P.] was better off in the
Contrerases’ care and requested this Court, at the close of
evidence, to place [K.P.] back into the Contrerases’
home. This Court finds that placing [K.P.] with [his
mother], along with the assistance of the Contrerases, is a
least restrictive alternative than removal of the child. . . .
[K.P.] is far better off in the care of his mother with the
Contrerases’ assistance than remaining in foster care
indefinitely, especially in the setting where the child is
out of his foster home 55 hours per week.5
We are of the opinion that the family court certainly had a legitimate
basis for its frustration with the Cabinet’s handling of this case. However, we are
additionally concerned about exactly what it is that Appellant desires to have
happen to K.P. The other guardian ad litem who represented K.P in the family
court tendered a memo to the court objecting to any appeal on the grounds that
such would only add to the lack of permanency in K.P.’s life and would not serve
his best interests. Moreover, there is an indication in the record that the Edwards
are no longer married. So, while it was Appellant’s argument in the family court
that K.P. should be returned to the Edwards, that is no longer a viable option.
Thus, to reverse the family court, as Appellant urges us to do, would result in K.P.
being placed in yet another unfamiliar setting. As was aptly stated in the family
court, “there is a difference between doing what is right and doing what one has a
4
K.P.’s father is currently serving a fifteen-year prison term, but was present at the hearing and
represented by counsel.
5
The evidence established that the Edwards had placed [K.P.] in daycare five days a week from
8:15 a.m. until 7:00 p.m.
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right to do.” We conclude that given all of the facts and evidence in this case, the
family court acted well within its discretion in fashioning a remedy that would
serve K.P.’s best interests and provide him the stability he so desperately needs.
The order of the Hardin Family Court is affirmed.
CAPERTON, JUDGE, CONCURS.
CLAYTON, JUDGE, CONCURS IN RESULT AND FILES
SEPARATE OPINION.
CLAYTON, JUDGE, CONCURRING IN RESULT: I concur in the
result reached by the majority opinion, but I write separately because I believe the
Hardin Family Court erred when it allowed J.C. and Barbara Contreras, the foster
parents, to intervene in the dependency, neglect, and abuse action. KRS 620.360,
which is titled “Rights and responsibilities of foster parents[,]” states:
(4) Nothing in this section shall be construed to establish
monetary liability of or cause of action against the cabinet.
Therefore, according to this statutory requisite, foster parents are not allowed to
intervene in these actions. In fact, the family court in its order entered December
27, 2007, recognized that restriction when it stated that “[i]t is assumed that this
motion to intervene is made pursuant to Civil Rule 24, since there is no separate
right to intervene conferred through KRS Chapter 620.”
At this point, the court begins to explore several theories of
intervention. First, it determines that the Contrerases did not qualify as de facto
custodians of K.P. Next, the court discussed both parental unfitness and waiver of
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custody. Ultimately, the court dismissed these theories as a basis for intervention.
Finally, the court concluded that “[t]he Contrerases are simply asking to be
allowed to intervene in this action[,]” and allowed the intervention by relying on
CR 24.01 and Baker v. Webb, 127 S.W.3d 622 (Ky. 2004). The court held that
“[h]ere, the Contrerases also fall into a superior category [sic] which is a person,
upon considering the wishes of the parent concerning the placement of the child.”
I disagree with the majority’s conclusion that this analysis was correct.
I do, however, agree with the majority’s result. Hence, because K.P.
was placed with his mother, the court’s decision to allow the Contrerases to
intervene does not alter the decision of this Court. However, there are significant
implications in concluding that foster parents have the right to intervene in these
actions.
As noted above, KRS 620.360(4) prohibits foster parents from
bringing any action against the Cabinet for the alleged violation of any right
created by KRS 620.360, leaving as the only basis to intervene CR 24.01.
Nevertheless, CR 24 does not allow the Contrerases to intervene for several
reasons. First, CR 24.03 requires:
A person desiring to intervene shall serve a motion to
intervene upon the parties as provided in Rule 5. The
motion shall state the grounds therefor (sic) and shall be
accompanied by a pleading setting forth the claim or
defense for which intervention is sought. The same
procedure shall be followed when a statute gives a right
to intervene. . . .
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The Contrerases filed no such pleading. This language is mandatory.
Furthermore, the family court is clear in its order entered December 27, 2007, that
“[t]his allowance of intervention does not guarantee placement or equal footing in
a custody determination, but simply recognizes their status under the statutory
enactment.” Yet, if the Contrerases don’t have an “equal footing” on their custody
claim, then what substantial interests do they have under CR 24? As held in
Gayner v Packaging Service Corp. of Kentucky, 636 S.W.2d 658, 659 (Ky. App.
1982), CR 24.01 requires that the interest must be a “present substantial interest in
the subject matter of the lawsuit as distinguished from a mere expectancy or
contingent interest.” In other words, “simply asking to intervene” is not enough.
Thus, the Contrerases never had a present substantial interest in the litigation.
Supporting the contention that the Contrerases did not have a present substantial
interest is the fact that the family court, in its order entered May 9, 2008, did not
grant the Contrerases’ request for placement of K.P. with them but held that KRS
620.130 does not permit the court to tell the Cabinet where to place a child. KRS
610.010(12) also forbids the court from directing the Cabinet to perform any
specific act of placement.
Without a substantial interest in the litigation, the only “expectancy”
that the Contrerases had was a desire for a suitable placement for K.P. In this
matter, their interest was adequately represented by existing parties; namely, the
mother and the child. The court was aware that the mother wanted K.P. to be
placed with the Contrerases. Notwithstanding her desire, the court decided that it
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could not grant this relief. Moreover, the mother’s wishes were already known to
the court without Contrerases’ intervention. Therefore, CR 24.01 is not applicable.
Not only is the reliance on CR 24 improper, so is the court’s reliance
on Baker, 127 S.W.3d at 622. Baker can be distinguished from the case herein
because not only did that case involve an adoption proceeding but also the parties
seeking to intervene were relatives of the child, not foster parents. In Baker, the
Kentucky Supreme Court addressed the definition of “relative” in KRS 199.470
and held that biological relatives of a child sought to be adopted by foster parents
had "a sufficient, cognizable legal interest in the adoption proceeding" so as to
grant them a right to intervene in the proceeding pursuant to CR 24.01(1). Id. at
625. In fact, the regulations of the Cabinet gave priority to relatives of a child
placed for adoption, and the Cabinet in that instance failed to follow both the
statute and their own regulations. To support its decision, the Court referred to
KRS 620.090(2), which requires the Cabinet to give preference to available and
qualified relatives of a child when placing a child in a temporary custody situation.
Id. Thus, the Baker decision was based on the parties’ status as relatives, not as
foster parents, and for that reason, the Bakers had standing. In this case, however,
the Contrerases do not have standing because they have no claim or substantial
interest. There is no avenue for relief from the court.
I am aware of the family court’s frustration with the Cabinet. Family
court judges must rule upon very difficult and emotionally compelling cases that
decide the welfare and safety of children. They very much want to do the right
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thing. Notwithstanding this admirable and understandable motivation, the rules of
procedure still apply to family court. And a statutory mandate exists against
granting standing to foster parents in these matters. It is not the province of the
courts to disregard the language of the statute and ignore the requirements of a
civil rule.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Sherry Keith Kelley
Elizabethtown, Kentucky
C. Thomas Mercer
Louisville, Kentucky
Teresa E. Logsdon
Elizabethtown, Kentucky
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