F.E. v. E.B.

641 S.W.3d 700

F.E. Appellant

v.E.B. and T.S., a Child, Appellees

NO. 2021-CA-0286-ME

Court of Appeals of Kentucky.

FEBRUARY 18, 2022; 10:00 A.M.

BRIEFS FOR APPELLANT: Jonathan L. Sacks, Bowling Green, Kentucky.

BRIEF FOR APPELLEE T.S.: Thomas Vallandingham, Owensboro, Kentucky.

NO BRIEF FILED FOR APPELLEE E.B.

BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

OPINION

JONES, JUDGE:

This dependency, neglect, or abuse ("DNA") action was originally commenced when F.E. ("Aunt") filed a petition alleging her nephew, T.S. ("Child"), was at risk because his mother, E.B. ("Mother"), was facing drug-related criminal charges and unable to provide him a stable home life. During the course of the DNA proceedings, Aunt received custody of Child. Eventually, however, Mother regained custody of Child with Aunt receiving visitation. This arrangement remained in place for some time; however, Mother eventually moved the family court to terminate Aunt's visitation. Following a hearing, the family court granted Mother's motion after it determined that Aunt did not have standing to seek visitation. This appeal followed. Having reviewed the record and being otherwise sufficiently advised, we reverse and remand for further proceedings.

I. BACKGROUND

Child was born in June of 2014. He remained in Mother's care until just before his second birthday. At that time, Mother took Child to live with Aunt because she was facing drug charges and Child's father was incarcerated. Mother asked Aunt to keep Child for an undefined period of time telling Aunt that she believed Child needed a more stable home than she could provide him at that time. Aunt agreed to keep Child, and subsequently commenced the underlying DNA action by filing a petition on Child's behalf pursuant to KRS ¹ 620.070.

Thereafter, the family court conducted a temporary removal hearing ("TRH") pursuant to KRS 620.080. During the TRH, Mother testified that she was not fit to care for Child. She explained that she did not have a job and was facing criminal charges. Given her circumstances, Mother believed Child would be better off living with Aunt. Following the TRH, on June 21, 2016, the family court entered an order granting Aunt temporary custody of Child. See KRS 620.090.

A short time later, Mother stipulated to dependency. As a result, the family court entered an adjudication order finding Child dependent and continued custody of Child with Aunt. Approximately a month later, the family court held a disposition hearing. Pursuant to the family court's disposition order, Child was to remain in Aunt's custody. Mother was ordered to work with the Cabinet for Health and Family Services ("Cabinet").

The matter next came before the family court for a progress review in December of 2016 at which time it was determined that Child should remain in Aunt's custody. In July of 2017, Mother petitioned the family court for visitation. See KRS 620.150. In October of 2017, pursuant to the parties’ agreement, the family court granted Mother visitation with Child every Thursday evening for four hours and every weekend from Friday evening through Sunday evening. Mother's visitation was expanded in late November of 2017 such that she had visitation each week from Thursday evening through Sunday evening. The family court set the matter for a hearing in January of 2018 for the purpose of determining whether Child should be returned to Mother's custody.

Following the January 2018 hearing, the family court entered an order on January 22, 2018, returning Child to Mother's custody. The order also provided that Aunt was to receive visitation with Child every other weekend. There is no indication in the record that Mother objected to Aunt receiving visitation before the family court or that she filed a notice of appeal as related to the award of visitation to Aunt.

For the next two years the parties operated under the family court's January 22, 2018 order with Aunt having visitation with Child. However, on February 24, 2020, Mother filed a motion for review of visitation. Therein, she asked the family court to terminate Aunt's visitation on the basis that it was no longer beneficial to Child. The family court appointed counsel to assist Aunt and set the matter for a hearing.

At the hearing, Mother did not offer any specific reason for wishing to end Child's visitation with Aunt. She simply testified that she no longer desired Child to visit with Aunt. In contrast, other witnesses testified that Aunt and Child had a close relationship, Child was close to Aunt's son, and Child enjoyed visiting with Aunt. Following the hearing, the family court entered an order on October 21, 2020, granting Mother's motion to terminate visitation on the basis that Aunt did not have standing to seek visitation with Child. Aunt filed a CR ² 59.05 motion to alter, amend, or vacate directing the family court's attention to KRS 403.320.³ Aunt asserted that she had properly been granted visitation with Child pursuant to this statute because she was related to Child and had previously been granted temporary custody of Child during the original DNA proceedings. While the family court acknowledged the potential applicability of KRS 403.320, it nevertheless concluded that Aunt had not properly invoked the statute because she had neither moved to intervene in the DNA action nor commenced an original action seeking visitation. As such, the family court denied Aunt's motion to alter, amend, or vacate, reiterating its conclusion that Aunt did not have standing to seek visitation.

This appeal by Aunt followed.⁴

II. STANDARD OF REVIEW

The family court's decision to terminate Aunt's visitation was based on its conclusion that Aunt lacked standing. "The [family] court's ultimate determination on the standing issue is a pure legal question[,]" which we review de novo. Interactive Gaming Council v. Commonwealth ex rel. Brown , 425 S.W.3d 107, 111 (Ky. App. 2014). Under de novo review, we owe no deference to the family court's application of the law to the established facts. Cinelli v. Ward , 997 S.W.2d 474, 476 (Ky. App. 1998).

III. ANALYSIS

A. Briefing Issues

Before delving into the legal issue presented by this appeal, we must briefly address the appellate briefing in this case. Aunt timely submitted her appellant brief asking us to reverse the family court and restore her visitation with Child per the family court's January 2018 order. Child's guardian ad litem ("GAL") filed an appellee brief on Child's behalf. The GAL agrees with Aunt that we should reverse the family court's order; however, the GAL argues that we should not simply reverse. The GAL explains that the better course is remand the substantive issue of whether Aunt's visitation should be terminated with instructions for the family court to make that determination consistent with Child's best interest.

While the Cabinet was named as an appellee, it filed a motion with this Court requesting its dismissal. In support of its motion, the Cabinet explained that it had not been actively involved in this matter since January 2018 when custody was returned to Mother, and it took no position with respect to the visitation issue. In September of 2021, prior to submission to this panel, this Court granted the Cabinet's motion.

Aunt also named Mother as an appellee in her notice of appeal. A review of the docket indicates that Mother was served with the notice of appeal and with Aunt's appellant brief. However, Mother did not file an appellee brief, and she has not taken any other action with respect to this appeal. If an appellee brief has not been filed within the time allowed, the Court may:

(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.

CR 76.12(8)(c). "The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Roberts v. Bucci , 218 S.W.3d 395, 396 (Ky. App. 2007). While we could impose a penalty, we do not deem it necessary. The standing issue is relatively straightforward and the facts as related to that issue are uncontested. As such, we have elected to review the appeal on its merits despite the fact Mother failed to file a brief.

B. Standing

We begin with KRS 403.320(4)⁵ which provides:

Under circumstances where the court finds, by clear and convincing evidence, it is in the best interest of the child, any relative, by blood or affinity, that was previously granted temporary custody pursuant to the provisions of KRS 620.090 may be granted reasonable noncustodial parental visitation rights by a Circuit Court or Family Court as an intervenor or by original action. Once the relative has been granted visitation pursuant to this subsection, those rights shall not be adversely affected by the termination of custodial or parental rights of an individual who has permanent custody of the child unless the court determines that termination of the visitation rights are in the best interests of the child. The action shall be brought in the county in which the temporary or permanent custody order was entered or where the child resides.

The parties agree that Aunt is related to Child by blood or affinity, and Aunt was previously granted temporary custody of Child pursuant to KRS 620.090 as part of the DNA action. In its order denying Aunt's motion to alter, amend, or vacate the family court focused on the fact that Aunt neither intervened in the DNA action nor filed an original action to support its conclusion that Aunt lacked standing to seek visitation. While this may be technically correct, we cannot appreciate why Aunt would have needed to formally intervene in the DNA action at the time she was awarded visitation. She filed the DNA petition, she was given notice of all the DNA proceedings, and she had custody...