Family Law

J.M. v. Com, 2010-CA-000156-MR 

Published:   Affirming

County: Fayette

Grandmother appealed FC?s order denying her motion for temporary custody of grandchildren in a dependency case.

FACTS:

Cabinet filed petition alleging that Grandchildren were neglected by their custodian, Mother, child of Grandmother.  Grandmother intervened and filed a motion for temporary custody of Children pursuant to KRS 620.090. FC ordered a home study, under which Grandmother?s home was approved for placement of the children and it was recommended that Grandmother be granted temporary

custody; however, the report revealed that as a child, Mother had been the the victim of sexual and emotional abuse in Grandmother?s home at the hands of Grandmother?s boyfriend at the time. Further, Grandmother was currently residing with her boyfriend who was previously convicted for felony domestic violence. Mother told FC she did not want Children to be placed with Grandmother and 15 y.o. Child also objected to the placement. FC therefore denied Grandmother?s motion and she filed this appeal.

followed.

ANALYSIS:

CA first took issue with the format and content of Grandmother?s brief, noting that it did not contain citations to the record or state whether the issues raised were preserved for appellate review. CA therefore reviewed for manifest injustice only. 

Grandmother first contended that it was unfair for FC to reach a decision based the home study without the ability to address the home study in a hearing. CA noted that Grandmother technically did receive a ?hearing? though no witnesses testified. CA noted no statutory or constitutional provision entitling her to more, nor did she ask FC for more.

Grandmother next argues FC was obligated to place Children with her because of the statutory preference for placement with family members.  CA disagreed, noting that the required placement is only for qualified family members and that FC found Grandmother to be unqualified, said determination not being manifestly unjust based upon Mother?s and Child?s preferences and Mother?s abuse in Grandmother?s home. 

Grandmother finally contended FC erred in declining to abide by the recommendation in the home study report that Grandmother be granted custody of Children. CA found that FC was not bound to follow the recommendation and that doing so without consideration of the facts as a whole would have been an abdication of FC?s responsibilities.

FC?s order affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates