T.C. v. Cabinet for Health & Family Servs.

• Docket Number: 2021-CA-0441-ME, NO. 2021-CA-0445-ME, NO. 2021-CA-0446-ME
• Decision Date: 22 July 2022
• Citation: 652 S.W.3d 670
• Parties: T.C. and J.C., Appellants v. CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; the Hardin County Attorney's Office; W.P.; L.P.; and K.C., a Minor Child, Appellees T.C. and J.C., Appellants v. Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney's Office; W.P.; L.P.; and L.C., a Minor Child, Appellees T.C. and J.C., Appellants v. Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney's Office; D.P.; T.P.; and R.C., a Minor Child, Appellees
• Court: Kentucky Court of Appeals

652 S.W.3d 670

T.C. and J.C., Appellants

v.CABINET FOR HEALTH AND FAMILY SERVICES, Commonwealth of Kentucky; the Hardin County Attorney's Office; W.P.; L.P.; and K.C., a Minor Child, Appellees

T.C. and J.C., Appellants

v.Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney's Office; W.P.; L.P.; and L.C., a Minor Child, Appellees

T.C. and J.C., Appellants

v.Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney's Office; D.P.; T.P.; and R.C., a Minor Child, Appellees

NO. 2021-CA-0441-ME

NO. 2021-CA-0445-ME

NO. 2021-CA-0446-ME

Court of Appeals of Kentucky.

JULY 22, 2022; 10:00 A.M.

BRIEF FOR APPELLANTS: Phyllis K. Lonneman, Elizabethtown, Kentucky.

BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Leslie M. Laupp, Covington, Kentucky.

BRIEF FOR APPELLEES L.P., W.P., T.P., AND D.P.: Juliana H. Reczek, Louisville, Kentucky.

BRIEF FOR APPELLEES K.C., L.C., AND R.C.: Bruce Justin Ferriell, Elizabethtown, Kentucky.

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

OPINION

MAZE, JUDGE:

T.C. (Mother) and J.C. (Father) appeal the orders of the Hardin Family Court removing their three daughters, K.C., L.C., and R.C., from their commitment to Appellee, Cabinet for Health and Family Services (Cabinet), and placing them in the temporary custody of the children's foster parents, Appellees, W.P. and L.P. and D.P. and T.P.

We conclude: (1) the family court made an unauthorized custodial disposition to third parties; (2) the family court made said disposition to individuals who had no standing; (3) the family court usurped the Cabinet's executive branch authority; and (4) the family court failed to make required findings of fact. Therefore, on the grounds that the family court abused its discretion, we reverse and remand.

BACKGROUND

Based upon reports of domestic violence and drug use by Father and Mother, a juvenile dependency/neglect or abuse (DNA) petition was initiated as to K.C. and L.C. on January 6, 2017. Emergency custody was granted to the Cabinet. After Father and Mother waived their temporary removal hearing, the children were placed in the temporary custody of the Cabinet. At the adjudication hearing, Father and Mother stipulated to dependency/neglect and an order was entered on January 18, 2017, whereby the children were to be "placed or continue to remain in the temporary custody" of the Cabinet. The Cabinet then placed them with their foster parents, W.P. and L.P. The disposition order, entered February 14, 2017, stated that the children would "be committed or remain committed" to the Cabinet. The Form AOC-DNA-5 notes that, as per KRS ¹ 620.140(2), an award of temporary custody to the Cabinet is not a permissible dispositional alternative. Nevertheless, Father and Mother were directed to follow all recommendations including mental health and drug/alcohol assessments (with associated recommendations for follow-up), attend parenting classes, remain clean and sober, maintain stable employment and housing for six months, and cooperate with the Cabinet/ service providers. They were also to complete parental capacity assessments with any necessary follow-up.

At the time of the first six-month review on July 26, 2017, K.C. and L.C. remained committed to the Cabinet. When the third child, R.C., was born on October 11, 2017, she was removed from her parents’ home, committed to the Cabinet, and placed with foster parents, D.P. and T.P.

Throughout 2017 the parents made minimal progress on their case plans. Father tested positive for opiates and marijuana and did not attend regular visitation with the children. However, he contacted the Veterans Administration (VA) to deal with post-traumatic stress disorder

(PTSD) and addiction. He began therapy. Mother had negative drug screens. Both parents were allowed supervised visitation twice a week. The parents completed forensic mental health evaluations with Dr. McCrary. However, neither of them met minimum parenting standards. At the time of the first permanency hearing on January 8, 2018, an order was entered indicating that while the goal for these children was return to their parents, they remained committed to the Cabinet.

However, by July of 2018, the Cabinet was able to advise the family court that the parents had made "significant progress" on their case plans. Father continued to attend AA/NA,² therapy, and Veterans Drug Court. CASA³ reported that Father maintained consistent visitation with the children and both parents were "very attentive." Mother also continued to have negative drug screens.

In October of 2018, the social worker on the case conducted a home visit and reviewed the parents’ progress with their case plans. Father continued to be involved with Veterans Drug Court, completed drug screens, and attended AA/NA meetings. Mother had attended 63 AA/NA meetings since March of 2018. On November 30, 2018, the family court ordered visitation increased.

In January of 2019, the Cabinet filed its annual permanency review report, noting the parents’ progress, and requesting that Dr. McCrary re-evaluate their parenting skills. In April of 2019, social worker Kelly sought an ASFA⁴ exemption, reporting that the parents continued to make progress. Although the family court denied the motion for an ASFA exemption, the goal remained return to parents.

In May of 2019, Dr. McCrary found that both parents met the minimum standard for adequate parenting and provided guidance as to transition. In June, the Cabinet recommended unsupervised visitation. In July, CASA reported parental improvement and the family court ordered additional visitation with the children.

In January of 2020, both the Cabinet and CASA recommended more unsupervised visitation. The family court denied the request, but the goal remained return to parents. In February of 2020, Kelly negotiated a modified case plan with the parents providing for additional responsibilities. Parental visitation and attendance at medical appointments continued until suspended due to COVID-19. However, the parents were able to conduct visitations by video chat. In May of 2020, the family court expanded visitation, pending lifting of the COVID-19 restrictions.

In fact, a return to parents remained the family court's goal until May 27, 2020, when W.P. and L.P. filed their motion to intervene for purposes of requesting custody of K.C. and L.C. They also filed a separate custody action. Father, Mother, and the Cabinet objected to intervention but, following a hearing, the family court granted the motion to intervene, and temporary custody was awarded to W.P. and L.P. Father and Mother's motion to alter, amend, or vacate was denied by order entered September 3, 2020. On October 6, 2020, the family court ordered that the DNA cases be closed and that all future motions be filed in the custody action. Father and Mother moved the court for findings of fact and conclusions of law.

A motion to intervene and for temporary custody was also filed by D.P. and T.P. as to R.C. in January of 2021. Those motions were also granted. On January 4, 2021, the family court entered its findings of fact, conclusions of law, and order regarding its previous orders of September 3, 2020, and October 6, 2020. R.C.’s case was then considered in the family court's supplemental findings of fact and conclusions of law entered on March 17, 2021.

In its initial findings of fact, conclusions of law, and order, the family court found as follows:

1. The parties were determined by a forensic mental health evaluation report dated 12/4/2017 that both parties lacked even minimal parenting skills.

2. The parties even since this time have not displayed appropriate parenting skills towards these children.

3. Even during periods of supervised visitation, the parties do not display appropriate parenting skills despite their completion of a case plan.

4. Even after the parents made a genuine effort to work their case plan it took approximately 15 months for them to complete it.

5. The Court commends that parties [sic] for overcoming any drug dependency they may have experienced in the past; however, the lives of these children also went on and they needed love, protection, consistency, stability, and permanency.

6. The minor children who were extremely young at the time of removal have become extremely attached to their foster parents. [R.C.] has not formed an attachment, or very little attachment, to her biological parents and cries during visits when she is required to go to her natural parents.

The family court then considered the Cabinet's position and found that its "primary goal is return to parent and not the best interest of the children regardless of the evidence that the parents have not substantially benefited from the various steps to correct their lack of parenting skills in their case plan." The family court also held that "[t]he [C]abinet should have taken action on this case much earlier to waive reasonable efforts[.]" It then stated that "[t]his Court has lost confidence in the Cabinet to seek the best interest of these children to allow the Cabinet to continue to have temporary custody would not be in the best interest of the minor children since the Cabinet has the exclusive right to determine placement of minor children in their custody." The court determined that it would be in the best interests of the children to allow W.P. and L.P. to intervene and award them temporary custody. In the family court's view, the Cabinet no longer had custody, it concluded that the issues no longer constituted a DNA proceeding, and the case was therefore ordered closed.

The court's supplemental findings of fact, conclusions of law, and order, entered on March 17, 2021, contained virtually identical language, specifically awarding temporary custody of R.C. to D.P. and T.P. However, the order also provides for continued visitation of all three children by the natural parents. It then reiterates that the...