H.H. v. Goodwin
| Decision Date | 02 December 2022 |
| Docket Number | 2022-CA-1023-OA |
| Parties | H.H. AND T.H. PETITIONERS v. HONORABLE LORI GOODWIN, JUDGE, JEFFERSON FAMILY COURT; AND HONORABLE KENNETH HAROLD GOFF II, JUDGE, BRECKINRIDGE CIRCUIT COURT RESPONDENTS AND CABINET FOR HEALTH AND FAMILY SERVICES; V.H.; AND S.M.H., A MINOR REAL PARTIES IN INTEREST |
| Court | Kentucky Court of Appeals |
AN ORIGINAL ACTION ARISING FROM JEFFERSON FAMILY COURT ACTION NO. 20-J-502526-001 AND ARISING FROM BRECKINRIDGE CIRCUIT COURT ACTION NOS. 22-CI-00100 AND 22-AD-00012
COUNSEL FOR PETITIONERS: Richard I. Williams, Jr. Hollyn M Richardson Louisville, Kentucky
COUNSEL FOR REAL PARTY IN INTEREST CABINET FOR HEALTH AND FAMILY SERVICES: Rachel T. Caudel Louisville, Kentucky
COUNSEL FOR REAL PARTY IN INTEREST V.H.: Erin S. Kennedy Startzman Louisville, Kentucky
BEFORE: DIXON, LAMBERT, AND MAZE, JUDGES.
Petitioners, H.H. and T.H., filed the above-styled original action pursuant to CR[1] 76.36 seeking a writ of prohibition. Petitioners seek a writ "directing the Jefferson Family Court to enter an order granting [them] temporary custody of S.M.H. in the Jefferson County action, estopping [Real Party in Interest, the Cabinet for Health and Family Services (the Cabinet)] from any activities inconsistent with the permanency goal of adoption, and to relinquish jurisdiction concerning the custody and adoption of S.M.H. in favor of the Breckinridge Circuit Court." Having reviewed the record and being otherwise sufficiently advised; IT IS HEREBY ORDERED that Petitioners' petition for a writ is hereby GRANTED IN PART and DENIED IN PART for the reasons set forth below.
S.M.H. was born prematurely on November 21, 2019, to Real Party in Interest, V.H. She was born positive for illicit drugs and tested positive for Hepatitis C. The first two months of her life were spent in the neo-natal intensive care unit (NICU) at the University of Louisville hospital. Upon release from the hospital, S.M.H. was placed with Petitioners, her cousins.[2] Petitioners were eventually approved as foster parents in November 2020. It appears from the limited record before the Court that V.H. was incarcerated during this time.
The Cabinet filed a dependency, neglect, and abuse (DNA) petition in January 2020 in the Jefferson Family Court, No. 20-J-502526-001. V.H. stipulated to abuse or neglect on September 10, 2020. CourtNet indicates an "order of dependency disposition" was entered on December 7, 2020.[3] On January 15, 2021, the Cabinet filed its annual dispositional hearing report. The report notes that V.H. had five supervised visits with S.M.H. from September 2020 to October 2020, and that, as of the filing of the report, V.H.'s whereabouts were unknown. Further, while the goal was to reunify V.H. and S.M.H., the report notes "SSW[4] is going to audit the case to change the goal." The Jefferson Family Court's order entered on January 28, 2021, provides that the permanency goal was to return S.M.H. to V.H. and that S.M.H. was to remain in the custody of the Cabinet.
At some point between January 2021 and August 2021, V.H. had another child and entered a drug treatment program. The Cabinet acknowledges that during this time V.H. made significant efforts to comply with her case plan, and her visits with S.M.H. resumed in June 2021. Regardless, the Cabinet filed an involuntary termination of parental rights (TPR) action in the Jefferson Family Court, No. 21-AD-500359, in August 2021 because of "the length of time [S.M.H.] had been in care, the relative newness of [V.H.'s] treatment compliance, and a lack of bonding between mother and child[.]" No significant litigation occurred in the TPR action until June 2022.
Meanwhile, the DNA action came before the Jefferson Family Court for a second annual permanency review hearing. On January 24, 2022, the Cabinet filed its second annual dispositional hearing report. The report documented V.H.'s progress in completing her case plan and remaining sober. Additionally, the Cabinet documented, "[t]he extent, quality and frequency of the communications with the child . . . by the mother has been 3 in-person visits, 13 zoom visits and 8 visits that did not occur." In total, V.H. was offered twenty-four visits and attended sixteen, six were canceled by V.H., and two were cancelled by Petitioners.
An order of permanency was entered on February 17, 2022. The Jefferson Family Court's permanency order found that V.H. "is compliant and sober; however, she has ∅ bond with this child." S.M.H. was to remain in the Cabinet's custody and be placed for adoption. Despite the new goal of adoption, V.H.'s visitation continued, and on April 1, 2022, the Jefferson Family Court ordered V.H. could have increased supervised visitation with S.M.H., and that "[t]he Cabinet . . . may expand to overnight visitation with the minor child." V.H. would not have her first overnight visit with S.M.H. until August 17, 2022.
In June 2022, Petitioners hired an attorney. Petitioners allege their attorney contacted the Cabinet attorney on June 8, 2022, to discuss the TPR action. The attorneys had a phone conversation on June 10, 2022, wherein Petitioners' attorney claims to have informed the Cabinet of Petitioners' intention to intervene in the TPR action. Petitioners claim the Cabinet's attorney emailed their attorney on June 12, 2022, a Sunday, to inform her the TPR action had already been dismissed. The limited record reflects the Cabinet electronically filed (efiled) a notice of voluntary dismissal on Sunday. Petitioners then filed their motion to intervene. On June 29, 2022, the Jefferson Family Court entered an order dismissing the TPR action without having ruled on the motion to intervene. Petitioners assert the voluntary dismissal was an intentional maneuver by the Cabinet seeking to deprive them of their right to be heard. The Cabinet places the blame on Petitioners. Notably, when the TPR action was dismissed, V.H. had not had a single overnight visit with S.M.H.
Petitioners, who reside in Breckinridge County, then filed an adoption petition in Breckinridge Circuit Court, on June 30, 2022, No. 22-AD-00012. They also filed a petition for custody in Breckinridge Circuit Court on July 5, 2022, No. 22-CI-00100. The Cabinet moved to dismiss these petitions on August 1, 2022. Petitioners allege the Cabinet purposefully efiled the motions to dismiss as "motions not requiring a hearing," leading the circuit court to believe there were no objections to the motions. This, they assert, was yet another attempt to deprive them of their right to be heard by the court. According to the Cabinet, when the motions to dismiss were originally efiled they were rejected by the circuit court clerk. The Cabinet asserts when the motions were refiled, the circuit court clerk erred and docketed them as "motions not requiring a hearing." During oral argument before this Court, the Cabinet conceded that it did not comply with the local practice rules for the Breckinridge Circuit Court. Despite the error, the Breckinridge Circuit Court set the matter for a hearing on August 17, 2022. All parties were present, either in person or via Zoom, at the hearing. During the hearing, the Breckinridge Circuit Court declined to change custody of S.M.H. and scheduled the matter for an evidentiary hearing on November 28, 2022. The motions to dismiss are still pending.
The events that occurred on the evening of August 17, 2022, appear to be pivotal in the decline of Petitioners' and the Cabinet's relationship. As far as the Court can discern, Petitioner H.H. contacted the Cabinet with concerns about S.M.H. going to the scheduled visit with V.H. that evening.[5] Unbeknownst to the Cabinet, Petitioners' attorney was also on the phone call. During the call, H.H. informed the Cabinet that V.H. seemed upset about the visit and suggested the Cabinet forced her into continuing the visit. H.H. also expressed concern that V.H.'s brother was residing with V.H. because he had been "released from prison for causing the death of a child and seriously injuring another child." The Cabinet does not appear to have been worried about S.M.H.'s safety.
At some point during this call, the Cabinet informed H.H. it was concerned about Petitioners' compliance with their foster care contract and that their adoption worker would be in contact. After this perceived "threat," Petitioners' attorney made her presence on the call known to the Cabinet. According to the Cabinet's response to the petition for a writ of prohibition:
The [Petitioners'] home was subsequently closed by their adoption worker due to their having interfered with visits between the child and her biological family, and having filed for direct custody of the child, both of which are in violation of their contractual and statutory duties as foster parents.
Until August 2022, there is no indication from the record the Cabinet believed Petitioners were actively trying to interfere with the relationship between V.H. and S.M.H.
On August 19, 2022, Petitioners filed an ex parte motion for sole temporary custody of S.M.H. in the Breckinridge Circuit Court custody action. The Cabinet claims not to have received notice of the motion in time to respond or be heard. The motion was granted that same day and the matter was set for an evidentiary hearing. Having received the Breckinridge Circuit Court's order on August 22 2022, the Cabinet proceeded to file an emergency ex parte motion to return S.M.H. to the Cabinet's custody in the Jefferson Family Court DNA action. The certificate of service does not indicate Petitioners were notified of the motion despite their having temporary sole custody of S.M.H. pursuant to the Breckinridge Circuit Court's order. The motion was...
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