Grandparents Not Permitted to Intervene in Termination of Parental Rights Action – Published Opinion from Kentucky Court of Appeals

Grandparent

S.B. v. Cabinet for Health and Family Services, Com.

Jefferson Family Court

After cannabinoids and opiates were detected in Child’s system after birth, the Cabinet for Health and Family Services (“the Cabinet”) filed a dependency, neglect, and abuse petition, resulting in Family Court ordering a treatment plan for her parents. Mother soon after died, and Father admitted to using heroin. Child was placed with her paternal great-grandmother. After several other placements, Father expressed his desire for Child to be placed with Grandparents in Florida. Grandparents contacted the Cabinet to request consideration for placement. The Florida Child Protective Services performed a home study, and the Cabinet ultimately did not recommend placement with Grandparents.

Thereafter, Grandparents sought permanent custody of Child. In a dispositional hearing, Family Court denied Grandparents’ request, which Grandparents’ appealed and the Court of Appeals affirmed. During the pendency of the appeal, the Cabinet petitioned to terminate Father’s parental rights. Grandparents moved to intervene in the termination action and to hold it in abeyance pending the resolution of the appeal regarding their motion for permanent custody. Family Court denied these motions, and Grandparents appealed.

The Court of Appeals held that Grandparents were unable to intervene as of right. Commonwealth, Cabinet for Health and Family Services v. L.J.P., 316 S.W.3d 871 (Ky. 2010) held that grandparents do not have the right to intervene in a termination case under either prong of CR 24.01. Under the first prong, no statute confers an unconditional right on grandparents to intervene, and KRS 625.050 specifically enumerates the parties to such an action, which do not include grandparents. Under the second prong, the applicant’s interest must be “a present substantial interest in the subject matter of the lawsuit . . . .” Grandparents do not have a present interest to protect or enforce in a termination proceeding, which is between parent and child.

The Court of Appeals held that Grandparents were unable to permissively intervene. Permissive intervention requires a shared question of law or fact in common with the termination action. Grandparents were seeking custody of or grandparent visitation with Child, which do not involve the termination action.

The Court of Appeals did not overturn the order of Family Court denying a motion to hold the termination action in abeyance, finding Family Court’s reasoning to be sound where Grandparents did not address it in their appeal brief. The motion was denied because Grandparents lacked standing and the termination action did not seek to terminate Grandparents’ relationship with Child.

Digested by Nathan R. Hardymon

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