P.W. v. Cabinet for Health & Family Services

417 S.W.3d 758, 2013 Ky. App. LEXIS 178, 2013 WL 5969875
CourtCourt of Appeals of Kentucky
DecidedNovember 8, 2013
DocketNo. 2013-CA-000496-ME
StatusPublished
Cited by4 cases

This text of 417 S.W.3d 758 (P.W. v. Cabinet for Health & Family Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.W. v. Cabinet for Health & Family Services, 417 S.W.3d 758, 2013 Ky. App. LEXIS 178, 2013 WL 5969875 (Ky. Ct. App. 2013).

Opinion

OPINION

DIXON, Judge:

Appellant, P.W., appeals from an order of the Garrard Family Court denying her motion for immediate placement with a relative, which sought to place her two minor children in the custody of relatives. Finding no error, we affirm.

P.W. and C.P.1 are the biological parents of two daughters, A.L.P. and A.R.P. In March 2011, the Cabinet for Health and [759]*759Family Services (“Cabinet”) filed a petition in the Garrard Family Court alleging that P.W. and C.P. were incapable of providing adequate care to the children due to substance abuse and environmental neglect. At the time of the petition, A.L.P. was two years old and A.R.P. was three months old. In fact, A.R.P. was still in the care of the University of Kentucky’s Neonatal Intensive Care Unit, having been born 24 weeks premature. A removal hearing was thereafter held and both children were placed in the temporary custody of the Cabinet. A.L.P. was subsequently returned to her parents’ care two weeks later after P.W. tested negative for drugs. However, due to her extensive medical needs, A.R.P. was placed in a medically-fragile foster home when she was discharged from the hospital four months after her birth.

In February 2012, the Cabinet filed a second neglect petition against P.W. and C.P. alleging ongoing substance abuse and failure to adequately care for A.L.P. A.L.P. was again removed from the home and placed with the same foster family who had custody of A.R.P. Subsequently, in September 2012, the family court conducted a dispositional review hearing and therein accepted the Cabinet’s recommendation to change the goal from reunification to a termination of parental rights and adoption due to the parents’ failure to complete their case plans and demonstrate skills necessary to ensure a safe reunification.

On October 18, 2012, P.W. notified the assigned social worker, Wendell Combs, that her paternal cousins, hereinafter referred to as the “C’s,” were willing to care for the children. A home evaluation was thereafter conducted and the C’s were approved on December 10, 2012. However, when the Cabinet’s Regional Review Committee met the following week to discuss the case and placement alternatives, the decision was made to not recommend placement of the children with the C’s. Despite their qualifications, the C’s had previously had little contact with the children, and the Committee determined that because the children had bonded with their foster parents, who wished to adopt both, removal from the foster home was not in their best interest.

Upon learning of the Cabinet’s recommendation, P.W.’s counsel filed a “Motion for Immediate Placement with Relative” requesting that temporary custody of the children be granted to the C’s. Therein, P.W. argued that the Cabinet’s refusal to place the children with the C’s was contrary to Kentucky’s statutory preference for placement of children with qualified relatives. The family court denied the motion and P.W. thereafter filed a Kentucky Rules of Civil Procedure (CR) 59.05 motion to alter, amend or vacate. Following a hearing, the family court entered an order denying the CR 59.05 motion, noting that from the children’s initial removal in 2011, the Department of Community Based Services had repeatedly inquired of P.W. as to whether there were any suitable relatives for placement. The family court pointed out that it was not until October of 2012, when the Cabinet’s goal changed to a termination of parental rights, that P.W. finally submitted the C’s as possible foster parents. The family court continued,

Throughout the entire process, as pointed out by the guardian ad litem, [P.W.] preferred foster care to relative care. She knew the children were out of her care, ..., she knew of the relatives who lived nearby, she was regularly asked about relatives. She failed to disclose the existence of these relatives for whatever reason.
That addresses the mother’s failure to notify DCBS of less restrictive alterna[760]*760tives, now we turn to the interests of the children. [A.R.P.] has spent her entire [life] with the foster care family, she has bonded to the only parents she has ever known. [A.L.P.] has been in the same home for over a year. She too, has bonded with these people. The Court has been taught, from the beginning of his time as DRC and continuing as Family Court Judge, that changing the custodians or environment of children is one of the most stressful maneuvers that it will ever perform; it is always done with caution and consideration; it is in this case. After the amount of time with the foster parents, after multiple opportunities to provide relatives, the Court concludes that the best interest of the children is for them to remain in their adoptive home. The decisions of the mother have had unfortunate consequences but the bonding by the children over time has become complete and the Court will not undo it for a venture into the unknown of another placement.

P.W. thereafter appealed to this Court as a matter of right.

In this Court, P.W. argues that the trial court erred by ignoring the fact that the C’s were a suitable relative placement option and instead finding that the children’s best interests would be served by allowing the Cabinet to pursue the termination of her parental rights as well as the potential adoption of the children by the foster family. P.W. contends that the trial court’s decision violates Kentucky Revised Statutes (KRS) 620.090 and 922 Kentucky Administrative Regulations (KAR) 1:140 Section 7, which indicate the legislative intent that preference shall be given to family relatives in placement determinations.

The family court’s findings herein are reviewed under the clearly erroneous standard. C.R.G. v. Cabinet for Health & Family Services, 297 S.W.3d 914 (Ky.App.2009). Such standard does not require uneontradicted proof, but rather “proof of a probative and substantive nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people.” Id. Significantly, “regardless of conflicting evidence, the weight of the evidence, or the fact the reviewing court would have reached a contrary finding, ‘due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses’ because judging the credibility of the witnesses and weighing evidence are tasks within the exclusive province of the trial court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003).

The Cabinet’s administrative regulation 922 KAR 1:140 Section (3)(6) governing foster care and adoption permanency services states that “[placement shall be [s]elected according to the least restrictive appropriate placement available, as required by KRS 620.090(2)-” Further, KRS 620.090 provides, in relevant part:

(1) If, after completion of the temporary removal hearing, the court finds there are reasonable grounds to believe the child is dependent, neglected or abused, the court shall issue an order for temporary removal and shall grant temporary custody to the cabinet or other appropriate person or agency.

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Related

G. P. v. Cabinet for Health & Family Servs.
572 S.W.3d 484 (Court of Appeals of Kentucky, 2019)
J.L.C. v. Cabinet for Health & Family Servs.
539 S.W.3d 692 (Court of Appeals of Kentucky, 2018)

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Bluebook (online)
417 S.W.3d 758, 2013 Ky. App. LEXIS 178, 2013 WL 5969875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pw-v-cabinet-for-health-family-services-kyctapp-2013.