Kentucky Court of Appeals holds Relatives’ Writ of Prohibition is appropriate, stays Jefferson Family Court DNA action pending ruling by Breckinridge Circuit Court on Relative’s private custody and adoption petitions



Cousins sought a writ directing Jefferson Family Court to enter an order granting them temporary custody of Child in the Jefferson County action, estop Cabinet from any activities inconsistent with the permanency goal of adoption, and relinquish jurisdiction concerning the custody and adoption of Child in favor of the Breckinridge Circuit Court.

In November 2019, Child was born and subsequently removed from Mother. After her release from the neo-natal intensive care unit, Child was placed with Cousins, who were approved as foster parents in November 2020. A DNA action was filed in January 2020 in the Family Court, wherein Mother later stipulated to neglect. An order entered in January 2021 by the Family Court provided that the permanency goal was to return Child to Mother and that Child was to remain in Cabinet’s custody.

Cabinet filed an involuntary termination of parental rights (TPR) action in the Family Court in August 2021 because of the length of time that Child had been in care, the relative newness of Mother’s compliance with her case plan and a lack of bonding between Mother and Child. No significant litigation occurred in that case until June 2022.

Meanwhile, the DNA action was before the Family Court for a second annual permanency review hearing. A report was filed on January 24, 2022, that documented Mother’s progress in completing her case plan and remaining sober. In February 2022, an order of permanency found that Mother was compliant and sober but had no bond with Child whatsoever, and thus, Child was to remain in Cabinet custody and be placed for adoption. Despite the goal change to adoption, Mother’s visitation continued and in April 2022, the Family Court ordered Mother could have increased supervised visitation and that Cabinet may expand to overnight visits which were not to begin prior to August 2022.

In June 2022 Cousins hired an attorney who discussed the Cousins’ desires to intervene in the TPR action with Cabinet. The following Sunday, June 29, 2022, Cabinet’s attorney emailed Cousins’ attorney to inform them that the TPR action had been dismissed. This dismissal was the result of a voluntary notice of dismissal, which Cabinet had efiled that same Sunday. Cousins immediately filed their motion to intervene, but the Family Court entered an order dismissing the TPR on June 29, 2022, without having ruled on the motion to intervene.

Cousins then filed an adoption petition in Breckinridge Circuit Court on June 30, 2022, and a Petition for Custody on July 5, 2022. Cabinet moved to dismiss these petitions on August 1, 2022. The matter was set for hearing on August 17, 2022, during which the Breckinridge Circuit Court declined to change custody of Child and scheduled the matter for an evidentiary hearing on November 28, 2022. The motions to dismiss were still pending.

Also in August 2022, a breakdown between the parties occurred when Child was to spend her first overnight with Mother. Prior to the visit’s scheduled start, Cousins contacted Cabinet to report concerns about the visit. Specifically, that Mother’s brother – who had previously been incarcerated in relation to his causing the death of a child and seriously injuring another child – was living in her home. During that phone call, Cabinet informed Cousins that it was concerned about their compliance with their foster care contract and that their adoption worker would be in contact, which Cousins perceived as a threat. Cabinet’s adoption worker subsequently closed Cousins’ home and cited Cousins’ interference of visits between Mother and Child as the reason for the closure. Until August 2022, there was no record of Cousins interfering with the relationship between Child and Mother.

On August 19, 2022, Cousins filed an ex parte motion for sole temporary custody of Child in the Breckinridge Circuit Court custody action. The motion was granted that same day and the matter was set for an evidentiary hearing. After its receipt of the Breckinridge Circuit Court’s order, on August 22, 2022, Cabinet filed its own emergency ex parte motion in the Family Court to return Child to Cabinet custody. The attached certificate of service did not indicate Cousins were notified of this motion despite their having temporary sole custody pursuant to the Breckinridge Circuit Court order. Cabinet’s motion was heard on the Family Court’s emergency docket and was granted that same day and ordered Cousins to turn over Child to Cabinet. Cousins complied and Cabinet ultimately placed Child in Mother’s care.

On August 25, 2022, Cousins filed this original action and motion for immediate relief, which was granted on September 2, 2022. Cousins were also given temporary custody of Child pending disposition of the writ petition. On September 6, 2022, Cabinet filed its own petition for writ of prohibition, initiating Case No. 2022-CA-1059-OA., which was denied by separate opinion and order.

On September 15, 2022 the Jefferson Family Court conducted a hearing on Mother’s motion for return of custody in the DNA action. No testimony or evidence was introduced and there was no consideration as to Child’s best interest aside from recitation by the Cabinet and the Jefferson County GAL that they believed it was in Child’s best interest to be returned to Mother. Cousins attempted to bring up an alleged burn mark that Child received while in the care of Mother in August 2022, but Cabinet asserted that no DNA petition had been filed and that the incident was irrelevant. The Family Court then ordered – in contravention of the Court of Appeals amended order dated September 3, 2022 –that custody of Child be returned to Mother. The orders entered by the Jefferson Family Court on September 15, 2022, contained limited findings of fact and conclusions of law, and there were no written findings of fact regarding the best interests of Child.

Petitioners then filed a second motion for intermediate relief with the Court of Appeals requesting a stay of the Family Court’s September 15, 2022, order. That same day, the Court of Appeals entered an order requiring parties to maintain the status quo as set forth in its amended September 3, 2022, order. The parties responded to the Cousins’ motion to stay: Mother requested the Court deny it; Cabinet had no objection to maintaining the status quo; the Breckinridge County GAL supported the stay in a response that reflected positively on Cousins and detailed Child’s worsened mood, behavior and temperament after having been in Mother’s home for only a few days earlier in the year. Cousins’ motion for a stay was granted on September 20, 2022, and the Court of Appeals addressed the writ of prohibition.

The Court of appeals determined that this case sub judice qualified for a writ under the special cases exception which recognizes a subcategory of writs in cases where “a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and a correction of the record is necessary and appropriate in the interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). The Court of Appeals held that the Family Court acted erroneously in dismissing the TPR action without having ruled on Cousins’ motion to intervene in June 2022, despite them having a right to intervene. Without such a ruling, Cousins had no way in which to appeal. The Court disagreed with Cabinet’s argument that its voluntary dismissal of the TPR meant the permanency goal automatically reverted to reunification. The Court of Appeals concluded that a decision as to permanency must be documented according to the Adoption and Family Safety Act of 1997 (ASFA) which requires Cabinet to file a TPR action if a child has been in foster care for 15 out of the most recent 22 months unless – among other reasons –  a state agency has documented in the case plan a compelling reason for determining that filing such a petition would not be in the best interest of the child. 42 U.S.C. 675(5)(E)(ii). Cabinet’s own administrative guidelines reiterates in 922 KAR 1:140, Section6(2) that Cabinet must document why termination is no longer in the child’s best interest and request an exception. The Court of Appeals admonished the Family Court for allowing Cabinet to act inconsistently with the law.

The Court of Appeals acknowledged that without a mechanism to appeal, Cousins felt their only choice was to move for ex parte emergency custody in the custody action, prompting Cabinet to file their own ex parte emergency motion to return Child to cabinet custody. However, Cabinet did not elaborate on what the substantial risk to Child was, and thus, the Family Court did not appropriately utilize KRS 620.060, which authorizes the use of emergency custody orders when the custodian is unwilling or unable to protect the child, it is in the child’s best interest and if the child is in serious danger of physical or sexual abuse or imminent death, the parent has repeatedly inflicted or allow to be inflicted physical or emotional injury, or the child is in immediate danger due to the parent’s refusal or failure to provide for the safety or needs of the child. None of the grounds listed by Cabinet in its motion warranted the relief it sought.

Finally, the Court of Appeals held that the Family Court’s final error was in awarding full custody of Child to Mother in the DNA action with no findings of fact or conclusions of law that doing so was in Child’s best interest, choosing instead to focus heavily on Mother’s improvement on her case plan and the court’s frustrations with Cousins. Worse, the Family Court awarded custody of Child to Mother will full knowledge of this pending original action and in contravention of the Court of Appeals order temporarily awarding custody to Cousins while the action was pending, despite acknowledging that the ruling would cause a bigger mess still, believing that it had original and continuous jurisdiction in the DNA action to make such an order.

The Court of Appeals stated that the erroneous actions of parties, counsel, and the Family Court illustrated why correction was necessary and appropriate for the orderly administration of justice. The Family Court believed that it was the only court that could make custody determinations regarding Child. However, pursuant to KRS 199.470(1), adoption petitions must be filed in the county where the petitioner resides; in this case, in Breckinridge County where Cousins reside. Ideally, only one county will hear all matters regarding one child, but in this case, transferring the DNA and TPR cases to Breckenridge would make little sense since Breckinridge County lacks a family court. Thus, though the separate actions in separate counties are proper, the parties have shown that when one court makes a decision it disagrees with, the other court may make an alternate decision. This is not beneficial for the administration of justice and more importantly, such action is not in line with Child’s best interests.

Finally, the Court of Appeals held that a writ is appropriate because Cousins have no adequate remedy by appeal: no appeal was possible on their behalf in the TPR action because the Family Court never ruled on their motions to intervene; Cousins are not parties to the DNA action and thus cannot appeal from orders entered therein by the Family Court; Cousins were not aggrieved by the Breckenridge Circuit Court’s orders and thus cannot appeal because they are temporary custody orders and are as such, unappealable.

The Court denied Cousins’ request as to the adoption issue as moot because the Family Court never had jurisdiction over the adoption. However, Cousins’ request was granted to the extent that the Breckinridge Circuit Court shall make all further determinations regarding custody of Child in the civil custody action, unless it determines Cousins lacked standing to bring that action and it is dismissed. If the custody action is dismissed, then all custody decisions shall be made by the Breckinridge Circuit Court in the adoption action. If the adoption action is dismissed, then the Family Court may resume making custody determinations.

The Court further ordered that the Family Court DNA action was stayed pending a ruling by the Breckinridge Circuit Court on whether Cousins have standing to bring the custody and adoption actions. Cousins’ request for an order granting them temporary custody Child was granted, but their request to estop Cabinet from any activities inconsistent with the permanency goal of adoption was denied.

Carter Anderson

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