Opinion
NO. 2011-CA-002103-ME
07-20-2012
D.K. APPELLANT v. S.M., MATERNAL GRANDMOTHER; I.T.M., FATHER; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; M.K., AN INFANT CHILD APPELLEES
BRIEFS FOR APPELLANT: Joel R. Smith Jamestown, Kentucky c/Denise Clayton JUDGE, COURT OF APPEALS BRIEF FOR APPELLEE S.M.: Gary A. Little Albany, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NOS. 09-J-00155 AND 09-J-00155-001
OPINION AND ORDER
DISMISSING APPEAL
BEFORE: CLAYTON, MAZE AND TAYLOR, JUDGES. CLAYTON, JUDGE: D.K. (mother) appeals from orders of the Russell Family Court relating to visitation with her child, M.K. Because the appeal is from a nonfinal order, it must be dismissed.
On August 15, 2009, M.K. (the child) was born to D.K. The biological father is I.T.M., but the parents were no longer together at the time of the child's birth, and they were never married.
The circumstances that led to this case began on October 16, 2009. M.K., who was nine-weeks old, was being cared for by Terry Becker, D.K.'s boyfriend, while she was at work. He called D.K. to inform her that M.K. was acting strangely. He appeared to be constipated, was crying, and his legs were quivering. Over the weekend, the child continued to exhibit symptoms. Besides the previously mentioned symptoms, he also had a low-grade temperature, was vomiting, and irritable. D.K. took M.K. to Russell County Hospital three times and was sent home each time. Becoming frustrated, D.K. then took the child to the Taylor County Hospital, where a spinal tap was performed. It was discovered that the spinal tap was tinged with blood. In addition, M.K. had a seizure at the hospital. Medical personnel at Taylor County Hospital transferred the child to Kosair Children's Hospital in Louisville, Kentucky.
At Kosair Hospital, after examination, the baby was diagnosed with Shaken Baby Syndrome. The diagnosis was based on his symptoms including three hemorrhages in his right eye. Because the baby had been in Becker's care, the Kosair's medical team assumed that he was responsible for the injuries. He was not allowed to be around the child. No other injuries were found, and medical personnel at Kosair Hospital opined that the ultimate prognosis for M.K. was good.
Next, law enforcement interviewed D.K. and Becker. D.K. stated she had not harmed the child but admitted that he had been injured. Whereas Becker contended that D.K. had jerked the baby and was, therefore, the cause of the injury. Further, he denied injuring the child. When the police questioned D.K., she indicated that she might have jerked the child in the past. Eventually, the police determined that even though the child was with Becker when the symptoms first appeared, he was not the perpetrator. After the child's hospitalization, when D.K. returned to her father's (J.K.) home where she lived, the police came to re-interview her. Eventually, D.K. admitted that she had harmed the baby. (Later, she recanted this statement and claimed that she had been frightened and felt pressured to make the statement.)
Procedurally, a dependency, neglect, and abuse petition was initially filed against Becker on October 26, 2009. Then, on November 5, 2009, the family court granted the motion to amend the petition and name the mother as the responsible party. A temporary removal order was entered and S.M., the paternal grandmother, was awarded temporary custody of M.K.
The family court had an adjudication hearing on December 3, 2009. After the adjudication hearing, the family court entered an order ruling that the allegations in the petition had been proven. The order found that the child had suffered a non-accidental injury and ordered that temporary custody remain with the paternal grandmother.
Next, on January 21, 2010, a dispositional hearing was held. Before the hearing, D.K. requested through counsel that the child be returned to her. The trial court, however, continued the child's placement with S.M. and allowed supervised visitation for the mother. Next, a review hearing was held on June 3, 2010, and the family court ordered that temporary custody remain with the paternal grandmother and that supervised visitation continue.
On August 5, 2010, D.K. made a motion for review. In her motion, she requested that custody of M.K. be returned to her. The family court ordered an evaluation of J.K's home (D.K.'s father) since she was living with him. On October 1, 2010, the family court again denied D.K.'s motion for restoration of custody.
Subsequently, roughly six months later, on May 5, 2011, D.K. made another motion for a review hearing and for custody of M.K. to be restored. She followed with another motion, on July 8, 2011, for full custody of M.K. Shortly thereafter, on August 31, 2011, S.M. and I.M. (paternal grandfather) made a motion to be declared de facto custodians of M.K. Then, a hearing on D.K.'s motions was held on October 20, 2011. After the hearing, the family court entered an order that allowed for D.K.'s visitation to be supervised by her father rather than S.M. and extended the amount of visitation. D.K. now appeals from the October 20, 2011 order.
Pursuant to Kentucky Revised Statutes (KRS) 620.155, a parent aggrieved by a proceeding in a dependency, neglect, or abuse case may appeal as a matter of right. The statute, however, does not delineate with particularity the type of proceeding that may be appealed. Hence, we are tasked with ascertaining whether the visitation order appealed herein is a final order.
"A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." Kentucky Rules of Civil Procedure (CR) 54.01. CR 54.01 defines a judgment as "a written order of a court adjudicating a claim or claims in an action or proceeding." Unless it adjudicates all of the rights of all of the parties, the judgment must specifically state that the court grants a final judgment upon less than all of the claims or parties and with a notation that there is no just reason for delay. CR 54.02. Indeed, the judgment must recite that there is no just reason for delay and that the judgment is final or it will be considered interlocutory and not ripe for appeal. CR 54.02.
The Kentucky Supreme Court has explained the distinction between interlocutory and final orders by explicating that a final order is one which "operates to divest some right in such a manner as to put it out of the power of the court making the order . . . to place the parties in their original condition." Murty Bros. Sales, Inc. v. Preston, 716 S.W.2d 239, 241 (Ky. 1986), quoting Maysville & L.R. Co. v. Punnett, 15 B.Mon. 47, 54 Ky. 47 (Ky. 1854). In other words, when a final order is rendered, the involvement of the court is no longer necessary for the determination of the outcome.
Here, the family court disposed of the case in its January 21, 2010 dispositional order whereby it placed the child with S.M. in accordance with KRS 620.140(1)(c). That order was a final and appealable one, but mother did not appeal from it. Nevertheless, the family court retained jurisdiction over the case following the dispositional order. Among other things, the Cabinet is required to file case permanency plans and case progress reports with the court that ordered the commitment. See KRS 620.230 and KRS 620.240. Eventually, the child will either be returned home or there will be permanent placement, which may include termination of parental rights. See KRS 620.240(9).
Thus, our task is to determine whether this order adjudicated "all the rights of all the parties in an action or proceeding[.]" CR 54.01. Without doubt, the order contains no CR 54.02 finality language. Moreover, the order refers specifically to visitation and only to visitation issues. A visitation order does not adjudicate "all the rights of all the parties in an action or proceeding." In Hale v. Deaton, 528 S.W.2d 719 (Ky. 1975), the former Court of Appeals addressed the interplay of these rules as well as the need for a final adjudication:
Before the processes of CR 54.02 may be invoked for the purpose of making an otherwise interlocutory judgment final and appealable, there must be a final adjudication upon one or more of the claims in litigation. The judgment must conclusively determine the rights of the parties in regard to that particular phase of the proceeding.Id. at 722. Here, the family court continues its jurisdiction over the case and will continue to issue periodic and interlocutory orders about certain factors in the case like visitation. Clearly the family court has not yet progressed to the point where it has decided whether M.K. will either be returned to his mother's custody or there will be permanent placement, which may include termination of parental rights.
Since the court has not taken final action in the case, the visitation order was clearly interlocutory and not subject to appeal. Therefore, since this appeal was from a nonfinal order, it must be dismissed.
It is ORDERED that this appeal be DISMISSED.
MAZE, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Joel R. Smith
Jamestown, Kentucky
c/Denise Clayton
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLEE S.M.:
Gary A. Little
Albany, Kentucky