L.D. v. J.H., Ky COA, Grandparents’ Standing in Dependency Cases

L.D. v. J.H.

2010-CA-000792-ME

Published:  Affirming

County: Warren

After Child was removed from Mom’s custody by Cabinet because of environmental neglect and the fact that Mom’s husband was registered sex offender, Child was ultimately placed with paternal Grandparents.  One year later, Grandparents file motion for designation as de facto custodians and for permanent custody.  FC granted permanent custody to Grandparents.  Mom appealed.

Mom first argued that Grandparents lacked standing to commence custody action because they did not qualify as de facto custodians.  In order to qualify for de facto custodian status, one must provide primary care for a child for a requisite amount of time; but the time after a parent seeks custody of the child is not included.  Mom claimed that because she always wished to have Child in her care and because Cabinet’s permanency plan had a goal of returning Child to her care, that qualified as “commencing a legal proceeding,” sufficient to interrupt the one-year primary caregiver requirement of KRS 403.270.  CA disagreed that Mom’s wishes or the Cabinet’s permanency goal qualified as “commencing a legal proceeding.”  However, CA further found that Grandparents’ standing was conferred by KRS 620.027, which specifically confers to Grandparents the same standing given to parents, provided the child is residing with the Grandparents in a stable relationship.  CA held that substantial evidence supported FC’s finding that Grandparents provided a stable environment for Child and therefore had standing.

Mom next argued that because Grandparents agreed to Cabinet’s permanency plan with a stated goal of returning Child to Mom, Grandparents waived their right to seek permanent custody of Child.  CA found no precedent or authority for this claim, and further found that to so penalize Grandparents for cooperating with Cabinet would be detrimental to the Cabinet’s purpose. 

Next, Mom argued that FC did not give equal consideration to both parties in determining custody, and that FC refused to hear evidence about her fitness to have Child returned to her.  CA found that since Mom did not file a motion to regain custody of Child, the proceeding was rightfully limited to Grandparents’ motion for permanent custody, and that FC considered all relevant factors in its determination.    

Lastly, Mom argued that FC should have granted her request to speak to Child in chambers.  CA found that FC properly quashed subpoena based upon improper service (service upon Child instead of Guardian Ad Litem) as well as the Child’s therapist’s recommendations. 

FC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates