Hardin County Circuit Could erred in finding standing of foster parents to petition for custody, in closing the DNA cases after only temporary custody was decided, and the issue of statutory authority being exceeded – Published Opinion from Kentucky Court of Appeals

T.C. and J.C. 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, No. 2021-CA-0441-ME; 

T.C. and J.C. 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, No. 2021-CA-0445-ME; and 

T.C. and J.C. 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, No. 2021-CA-0446-ME

Hardin Family Court

The Cabinet for Health and Family Services was granted emergency and temporary custody of the children following 2017 dependency, neglect, or abuse (“DNA”) cases based on reports of domestic violence and drug use of the parents.  The Cabinet placed the children with foster parents, noting the children would “be committed or remain committed” to the Cabinet.  Mother and father were to adhere to instructions from the Cabinet, such as mental health and drug and alcohol assessments, and remaining drug free.  Mother and father did not make substantial progress on their case plans in 2017; nevertheless, the permanency goal was maintained as the children returning to their parents.  

Thereafter in 2018, mother and father made significant progress on their case plans, and in 2019, the goal was still that the children return to their parents.  This goal continued into 2020 until W.P. and L.P. (foster parents) filed a custody case for two of the minor children, namely K.C. and L.C.  The family court awarded temporary custody to the foster parents over the parents’ and the Cabinet’s objections.  D.P. and T.P. (foster parents) filed a similar case for the remaining child, R.C., in 2021.  Temporary custody was awarded to the foster parents in that case as well.  

In its written findings, the family court emphasized that it lost faith in the Cabinet to determine the best interest of the children at issue, and as a result, that the Cabinet should not have the exclusive right to determine placement of the minor children.  Mother and father argued on appeal that (1) the foster parents did not have standing to petition for custody; (2) the family court infringed on the Cabinet’s executive powers; and (3) the family court improperly allowed the foster parents to access the parents’ mental health evaluations that resulted in a Health Insurance Portability and Accountability Act of 1996 (HIPAA) violation.

The Court noted first and foremost, the foster parents did not have standing to petition for custody because they did not qualify as de facto custodians, and there had not been a determination that the parents were unfit. The parents also had not waived their right to custody of the children.  The family court also failed to apply relevant factors in Kentucky statutes to assist in making a custody and best interest of the child determination, which includes consideration of the parents’ and children’s wishes.

Second, by ordering the DNA cases closed following the temporary custody determinations, the family court overstepped on the Cabinet’s executive power, resulting in the family court exceeding its authority.  Third and finally, the Court did not agree with the parents’ argument that the family court infringed on their HIPAA rights by allowing the foster parents access to their mental health evaluations due to the disclosure coming from the court rather than a covered entity.

As a result, the Court found the family court abused its discretion in awarding temporary custody to the foster parents because it lacked statutory authority to do so, it failed to consider relevant factors in the statute pertaining to custody determinations and additional factors relating to the best interest of the children, and it improperly deciding the foster parents had standing to petition for custody.  Further, the Court held that the family court exceeded its authority in ordering the DNA cases be closed and future filings be addressed in the custody cases only.  The Court reversed and remanded to the family court with instructions. 

Caitlin P. Kidd, Esq.

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