G. P. v. Cabinet for Health & Family Servs.
572 S.W.3d 484
| Ky. Ct. App. | 2019Background
- Child (born Nov. 30, 2015) had been in CHFS foster care with Foster Mother; Father acknowledged paternity and received custody in Nov. 2017.
- Father was arrested by federal authorities on June 19, 2018 on drug-trafficking charges; a search of his apartment seized large quantities of narcotics and an unsecured handgun from what appeared to be a child’s bedroom.
- CHFS petitioned for temporary removal and sought to place Child with Stepmother (Father’s estranged wife), who was biologically unrelated; Foster Mother and the GAL opposed and favored return to CHFS placement with Foster Mother.
- Father executed a Power of Attorney (POA) on June 26, 2018 purporting to appoint Stepmother guardian/custodian; the trial court excluded the POA from the record and Father did not challenge that exclusion.
- The trial court entered an Emergency Custody Order (ECO) removing Child from Father, found Child neglected based on the seized guns/drugs and Father’s detention, committed Child to CHFS, set adoption as permanency and scheduled a TPR; Father appealed.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (CHFS/Trial Ct./GAL) | Held |
|---|---|---|---|
| 1. Appellate preservation / brief compliance | Father raised three errors on appeal but did not include preservation statements or adequate citations | Respondents noted procedural default and urged limited review | Court criticized counsel’s CR 76.12 noncompliance, declined to dismiss appeal but limited review; treated only the POA/emergency argument as preserved |
| 2. Validity of ECO / existence of emergency | Father argued no true emergency existed (POA made Stepmother guardian) | CHFS/GAL pointed to Father’s arrest, incarceration, and dangerous items seized from apartment | Court found substantial evidence of immediate danger under KRS 620.060(1)(c) and ECO was supported |
| 3. Neglect finding based on Father’s arrest | Father contended arrest alone did not establish neglect | CHFS/GAL relied on drugs and unsecured handgun found in child’s bedroom during search | Court held neglect finding proper; the weapon/drugs in child’s environment supported neglect and commitment to CHFS |
| 4. Placement — Stepmother or relatives vs. Foster Mother | Father urged placement with Stepmother (via POA) or three blood relatives | CHFS/GAL argued Stepmother lacked standing/relationship proof; proposed relatives were unsuitable (criminal histories, household risks); Foster Mother provided stability and had long relationship | Court affirmed exclusion of Stepmother (no standing/de facto custodian proof and POA excluded), found relatives unsuitable, and held Foster Mother was the least-restrictive appropriate placement under KRS 620.090(2) |
Key Cases Cited
- Jones v. Livesay, 551 S.W.3d 47 (Ky. App. 2018) (preservation requirement; issues not raised below generally not reviewable on appeal)
- D.G.R. v. Commonwealth, Cabinet for Health & Family Servs., 364 S.W.3d 106 (Ky. 2012) (standard that appellate courts defer to trial court findings supported by substantial evidence)
- P.W. v. Cabinet for Health and Family Services, 417 S.W.3d 758 (Ky. App. 2013) (CHFS must consider relatives but is not required to place with relatives over other appropriate placements)
- Oakley v. Oakley, 391 S.W.3d 377 (Ky. App. 2012) (discussion of preservation and palpable error review)
- Curty v. Norton Healthcare, Inc., 561 S.W.3d 374 (Ky. App. 2018) (failure to comply with appellate briefing rules not automatically fatal; courts have discretion to limit review)
- Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367 (Ky. 1971) (definition of substantial evidence)