KY Supreme Court, Attorney General now involved in child custody case

Both the state Supreme Court and a state Appeals Court judge have now rejected emergency efforts to block the reunification of a one-year-old girl in foster care with her mother who is scheduled to be deported to Guatemala and currently is in custody of U.S. Immigration and Enforcement.

In a series of rulings late last week, the state Supreme Court weighed in after Judge Sara Walter Combs, with the Kentucky Court of Appeals, turned down an emergency appeal by the foster parents who opposed the move and sought to intervene, arguing they had not had sufficient input into the decision about the child they had cared for since shortly after birth.

Combs referred the matter to a three-judge panel for a final decision in her ruling entered Sept. 9 and posted Sept. 11 on the appeals court website.

But by then, the Supreme Court had already intervened, in a late-night ruling Sept. 10 on an emergency appeal from the foster parents. The high court on a 5-2 vote at 10:43 p.m. declined to issue a ruling to stop the reunification but did agree to consider pleadings on the merits of the case from all parties, according to case information on its website.

A written order detailing the decision has not been posted.

The Supreme Court also allowed Kentucky Attorney General Russell Coleman to intervene with an amicus, or friend of the court, brief on behalf of the foster parents. Coleman’s emergency filing argued closer scrutiny of the reunification is warranted.

Coleman also had sought to intervene in the appeals court case, but Combs denied his request, finding that the state’s interests were adequately represented by the Cabinet for Health and Family Services, which has custody of the child, and the Jefferson County Attorney.

Coleman’s brief acknowledges he does not have access to all records of the case, which are confidential by state law, but argues that law allows for a reunification process before a child is returned to a parent and that is not possible with the mother’s scheduled deportation.

“Reading between the lines, it appears that the Jefferson County Family Court chose to bypass a reunification process because the biological mother is about to be deported,” it said.

Parties have through Sept. 30 to submit filings but it’s not clear whether any decision would come in time to stop reunification of the child with the mother, which already has been ordered by a family court judge. Lawyers in the case have declined to comment, citing confidentiality of family court cases.

Combs’ order said an ICE agent had attended a recent family court hearing on the matter and he was awaiting a date for the reunification so he could obtain necessary documents for the child to leave the United States with the mother.

“It was clear that once the ICE agent received the requisite paperwork, the exchange would take place within a matter of days,” her order said.

Combs’ order also provided more information about the case, saying details of the case have been “misrepresented and distorted by unwarranted publication in social media or otherwise.”

“Mother has suffered hardship, prosecution, incarceration, and the deprivation of her newborn infant for more than a year,” it said.

Further, it said Jefferson Family Court Judge Angela Johnson, who is overseeing the case and had ruled in favor of reunification of the child with the mother, “meticulously sorted out the truth of her trauma” in deciding to return the child to the mother only to have her decision “unjustifiably frustrated and delayed.”

And foster parents, the order said, have never had custody of the girl and state laws “do not give any foster parent a custodial interest in children under their care” nor standing, or legal authority, to pursue the case, it said. 

Coleman’s amicus filing says that Kentucky law gives foster parents the “right to be heard” in court proceedings involving a child in their care but does not grant them the automatic right to intervene.

But the attorney general “submits that intervention should have been allowed under the unique circumstances of this case,” the brief said.

The child had been scheduled to be returned by the foster parents to cabinet child welfare officials on Sept. 7, who in turn were to give the child to ICE for reunification with the mother before they both were to travel to Guatemala, according to court records. The transfer was delayed when the foster parents filed an emergency appeal last week with the appeals court seeking to block the move.

Lawyers for the mother and foster parents, who are not identified in Combs’ ruling, did not immediately respond to a request for comment. Johnson, the judge in the case, has cautioned parties about public comments on a family court case which by law is confidential.

A tragic tale

Combs’ public ruling Friday, based on filings with the appeals court that also were deemed confidential, sheds more light on the mother’s circumstances.

It says that she had a “difficult journey” from Guatemala during which she was sexually assaulted, resulting in a pregnancy, which she carried to term after arriving in the United States.

The mother, 20, speaks no English or Spanish, only a Mayan dialect known as K’iche, which is rare enough that few interpretation services are available, the order said.

The mother did not seek medical help and gave birth to the baby alone at home.

The court does not know whether the mother chose to have the baby because of moral convictions, lack of access to reproductive health care or language barriers that prevented her from seeking help, the order said.

After the birth, she took the child to the hospital seeking help and was charged with abuse after officials suspected mistreatment. Combs’ order said the mother’s inability to communicate was a factor in her prosecution and separation from her child.

 She was jailed and released after pleading guilty in July to wanton endangerment but was then detained by ICE because she is undocumented. She has been held at a detention camp in Louisiana and ICE has delayed deportation to allow the mother to reunite with her child, Combs’ order said.

Combs’s order said the “intolerable reality” is that the family will be unable to reunite if the mother is deported without her child, adding the court “will not allow the foster parents to frustrate the family’s reunification when they lack standing; have never had legal custody of the child; and were given notice and opportunity to be heard before the family court.”