H.H., ET AL. v. HONORABLE LORI GOODWIN, JUDGE, JEFFERSON FAMILY COURT, ET AL.
Case No. 2022-CA-1023-OA
Original Action arising from Jefferson Family Court
Decided by Dixon, Lambert, and Maze, Judges
Opinion by Maze, Judge
Date Rendered: December 2, 2022
Issue: Whether Family Court Erred and Writ of Prohibition Should be Issued
Minor child was born prematurely and positive for illicit drugs. Upon release from the NICU, minor child was placed with Petitioners, her cousins, who were approved as foster parents. The Cabinet filed a Dependency, Neglect, and Abuse (“DNA”) action in Jefferson County, and then later a Termination of Parental Rights (“TPR”) action. The goal of the DNA action was changed to adoption. Despite the goal change to adoption, Biological Mother’s visitation with Minor Child continued and were increased to overnight visitation.
Petitioner’s attorney contacted the Cabinet attorney to discuss the TPR action informing the Cabinet of Petitioner’s intent to intervene in the TPR action. The Cabinet subsequently e-filed a notice of voluntary dismissal, which was followed by Petitioner’s Motion to Intervene. Jefferson Family Court dismissed the TPR action without having ruled on the Motion to Intervene.
Petitioners then filed an adoption petition, and a petitioner seeking custody, in Breckenridge County, where they resided. The Cabinet moved to dismiss these petitions.
The Petitioner filed an ex parte motion for sole temporary custody of Minor Child in the Breckenridge Circuit Court custody action, which was granted and scheduled for a hearing. The Cabinet filed an emergency ex parte motion to return Minor Child to the custody of the Cabinet in the Jefferson County Family Court DNA action, which was granted without making any findings regarding a substantial risk to Minor Child. Minor child was placed into a new foster home before being placed in Biological Mother’s care.
Petitioners then sought a Writ of Prohibition, pursuant to CR 76.36, “directing the Jefferson Family Court to enter an order granting them temporary custody of Minor Child in the Jefferson County action, estopping the Cabinet from any activities inconsistent with the permanency goal of adoption, and to relinquish jurisdiction concerning the custody and adoption of Minor Child in favor of the Breckenridge Circuit Court.”
The Court of Appeals entered an Order providing Petitioner’s with intermediate relief while the Writ was pending, ordering physical custody to be returned to Petitioners, and granting them temporary custody.
Despite the Order of the Court of Appeals, the Jefferson County Family Court held a hearing on the Cabinet’s Motion for return of custody in the DNA action, and ordered custody to be returned to Biological Mother without making any findings it was in Minor Child’s best interest. The was stayed pending outcome of the Writ.
The Court of appeals determined this case qualified for a Writ of Prohibition under the special cases exception, which recognizes a writ 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.”
Firstly, the Court of Appeals found the Jefferson Family Court acted erroneously in dismissing the TPR action without having ruled on Petitioner’s Motion to Intervene, precluding Petitioner’s ability to appeal. The Court was extremely troubled by the Cabinet’s action of filing the notice to unilaterally dismiss the TPR action on the Sunday following receiving notice that Petitioners intended to intervene in the action.
Secondly, the Court of Appeals found the Jefferson Family Court erred when it granted emergency custody to the Cabinet in the DNA action without making any findings regarding a substantial risk to the child.
Thirdly, the Court of Appeals found the Jefferson Family Court erred when it awarded full custody of Minor Child to Biological Mother in the DNA action without making any findings that it was in Minor Child’s best interest, and in contravention of the Court of Appeal’s order granting temporary custody to Petitioners.
Fourthly, Court of Appeals held that a Writ was appropriate to the orderly administration of Justice. The Breckenridge County custody and adoption proceedings, and the Jefferson County DNA action created separate actions in separate counties which were issuing competing custody determinations.
Finally, the Court of Appeals found a Writ was appropriate because Petitioners had no remedy by appeal: Petitioners could not appeal from the TPR action because the family court never ruled on their Motion to Intervene, they could not appeal from the DNA action because they were not parties, and they could not appeal from the Breckenridge County actions because the orders entered were favorable to them and they were temporary in nature.
The Court of Appeals stayed the Jefferson County DNA action pending a ruling by the Breckenridge custody and adoption actions, and awarded Petitioners temporary custody of Minor Child.
Digested by Emily T. Cecconi