Opinion
NO. 2012-CA-001040-ME
04-19-2013
C.S. APPELLANT v. C.R.; CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND A.E. APPELLEES
BRIEF FOR APPELLANT: John T. Fowler III Louisville, Kentucky NO BRIEF FILED FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES NO BRIEF FILED FOR APPELLEE A.E. NO BRIEF FILED FOR APPELLEE C.R.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NOS. 11-J-501586, 11-J-501587, & 11-J-506737
OPINION AND ORDER
DISMISSING
BEFORE: KELLER, STUMBO, AND THOMPSON, JUDGES. KELLER, JUDGE: C.S. (father) appeals from the family court's order granting permanent custody of his children to C.R., the children's maternal grandmother. On appeal, father argues that the court erred because it did not conduct a de facto custodian hearing pursuant to Kentucky Revised Statute (KRS) 403.270(1)(a) and it failed to give due consideration to father's rehabilitation efforts. Neither the Cabinet for Health and Family Services (the Cabinet) nor A.E. (mother) have filed a brief. Having reviewed the record, we dismiss the appeal as taken from an order that is not final and appealable.
Judge Michelle M. Keller authored this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
FACTS
Father and mother have three children: D.S., born August 15, 2009; S.S., born September 13, 2006 ; and J.S., born July 9, 2004. On April 4, 2011, the Cabinet filed dependency, neglect, and abuse petitions (the petitions) alleging that the children had been neglected and abused by mother and father. The allegations in the petitions arose from a domestic violence dispute between mother and father that the children allegedly witnessed. The Cabinet's investigation, conducted in conjunction with the petitions, revealed that substantiated and unsubstantiated charges of neglect and educational neglect involving J.S. had previously been brought against mother and father. The investigation also revealed that father had been charged with a number of criminal offenses, including assault, trafficking in an illegal substance, theft, fleeing or evading, unlawful taking, DUI, and resisting arrest. At the time the petitions were served, father was in jail because he had violated an emergency protective order.
J.S.'s birth date is listed variously as 7/6/04 and 7/9/04. We use 7/9/04 as that is the date on the dependency, neglect, and abuse petition at issue herein and on school records attached to an earlier dependency, neglect, and abuse petition.
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Following a temporary removal hearing on April 14, 2011, the court awarded temporary custody to C.R. and appointed counsel to represent mother and father. The court ordered mother and father to undergo random drug screenings, and it ordered father to attend the Batterer Intervention Program (BIP) and to have no contact with the children.
In September 2011, the Cabinet noted that: father had been released from jail in June 2011; he had enrolled in the BIP; he had completed parenting classes; and he had tested negative for drugs. Because of father's compliance, the Cabinet recommended that he be granted supervised visitation, which the court awarded. However, it appears that C.R. did not comply with the court's order and, in late September 2011, father filed a motion to hold C.R. in contempt. C.R. did not appear for the contempt hearing. Despite C.R.'s failure to appear, the court did not hold her in contempt and continued her temporary custody of the children.
In December 2011, father was charged in Indiana with breaking and entering, theft, resisting law enforcement, failure to stop at the scene of an accident, and operating a motor vehicle without a license. He reported these charges to the Cabinet social worker and she reported the charges to the court in late January 2012.
On March 22, 2012, the court held a permanent custody hearing. Following that hearing, the court found that father had been compliant with the Cabinet's plan and had provided the children with clothing. The court also noted that father had been charged with burglary in Indiana and that the children were adjusting well to living with C.R. The court scheduled another hearing regarding permanent custody for May 3, 2012. Although it is not clear from the record, it appears from father's brief and a report from the Cabinet that this second hearing was scheduled so that the court could determine what the outcome of father's Indiana criminal charges would be.
Father did not appear for the May 3, 2012, hearing and the court awarded permanent custody to C.R. In doing so, the court relied on the findings it had made following the March 22, 2012, hearing. On May 10, 2012, father, pro se, filed a motion "seeking to refile [sic] for a motion to regain custody of my kids . . . ." In a letter attached to his motion, father indicated that he missed the May 3, 2012, hearing because he confused it with another hearing he had scheduled. He noted that he had a stable home, employment, and "a strong support system." He also made some disparaging remarks about C.R. On May 17, 2012, father failed to appear for the hearing on his motion. Rather than denying father's motion, the court remanded it, meaning that the court took no action. Father then filed this appeal.
An order of judgment must be final in order to be appealable. See Hook v. Hook, 563 S.W.2d 716 (Ky. 1978). The timely filing of a Kentucky Rule of Civil Procedure (CR) 59.05 motion postpones finality, and a ruling on a CR 59.05 motion is necessary to achieve finality. Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 458 (Ky. 2002). Father did not designate his May 10, 2012, motion as a motion to alter, amend, or vacate pursuant to CR 59.05; however, that is what his motion was. By filing that motion, father postponed the finality of the court's May 3, 2012, order. Because the court did not rule on father's motion, its May 3, 2012, order is not final and father's appeal is premature. Therefore, we must dismiss it.
Finally, although we need not address the merits of father's appeal, we do so briefly because we anticipate that the issue may re-surface. Father argues that, before the court could award C.R. permanent custody based on the best interests of the children, it had to conduct a hearing to determine if she qualified as a de facto custodian. In a child custody dispute brought pursuant to KRS Chapter 403, father would be correct. However, this action was brought pursuant to KRS Chapter 620. KRS 620.027 provides, in pertinent part, that "In any case where the child is actually residing with the grandparents in a stable relationship, the court may recognize the grandparents as having the same standing as a parent for evaluating what custody arrangements are in the best interest of the child." Because this is a KRS Chapter 620 dependency, neglect, and abuse matter, the court is not required to conduct a hearing to determine if C.R. qualifies as a de facto custodian before awarding her permanent custody using the best interests of the children standard. However, the court must determine that the children are "residing with [C.R.] in a stable relationship." See L.D. v. J.H., 350 S.W.3d 828, 831 (Ky. App. 2011).
CONCLUSION
Father took this appeal from an order that is not final; therefore, this appeal is hereby DISMISSED.
ALL CONCUR.
Michelle M. Keller
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: John T. Fowler III
Louisville, Kentucky
NO BRIEF FILED FOR APPELLEE
CABINET FOR HEALTH AND
FAMILY SERVICES
NO BRIEF FILED FOR APPELLEE
A.E.
NO BRIEF FILED FOR APPELLEE
C.R.