The Galloways sought to have a full hearing in the Hopkins Circuit Court on their right to custody of their child, with evidence to be presented touching upon the critical question of the best interest of the infant. The trial judge deemed that the only issue before him was the question of the immediate possession of the child, based upon legal entitlement, without reference to a general consideration of the best interests of the child, except within the narrow limits mentioned in Scott v. Scott, Ky., 445 S.W.2d 871, relating to the possibility of imminent danger of harm to the child by remaining in the possession of its legal custodians. The Galloways undertook to place evidence in the record by way of avowal, but the trial judge refused to permit that procedure.
The appellants sought a full hearing in the Hopkins Circuit Court on their right to custody. A trial judge refused to admit testimony as to the best interest of the child except within the narrow limits set out in Scott v. Scott, Ky., 445 S.W.2d 871 (1969), relating to the possibility of imminent danger of harm to the child. On pages 558 and 559 the Court, in Galloway, takes the view that it is inappropriate and unreal that proceedings to determine the right of immediate possession of a child, however denominated, be consigned to the narrow confines of traditional habeas corpus.
Donnie has appealed from that judgment. Donnie's principal contention is that the proceeding was one of habeas corpus; that under Scott v. Scott, Ky., 445 S.W.2d 871, the proceeding should have been confined to the sole issue of the right to immediate possession of the child; and that the trial court erred in making any determination other than whether "the appellant was 'unfitted to the trust' for any reason." Taking this argument at face value, it falls of its own weight, because the trial court found specifically the fact of "unsuitability of the father to the trust on a temporary basis."
In any event, we conclude that Appellee failed to demonstrate that she had completed service of her Missouri sentence. Scott v. Scott, 445 S.W.2d 871, 872-3 (1969). The cases Appellant cites in support of its argument, Crady v. Cranfill, Ky., 371 S.W.2d 640 (1963) and Brewster v. Luby, Ky., 380 S.W.2d 261 (1964), do, however, suggest a "hands-off" approach as to the validity of detainers when those issues are intertwined with questions of state policy — i.e., whether a "forfeiture of sentence rule" should apply to unauthorized custody transfers of an inmate.
After a review of the pertinent factors, we conclude that due process does not require habeas relief as a means of lodging a collateral attack on the termination judgment. See, e.g., Scott v. Scott, 445 S.W.2d 871, 872 (Ky. 1969) ("habeas corpus procedure, in situations involving disputes over possession or custody of children, ordinarily should be invoked only to determine who has the right to immediate possession, and the proceedings should be confined to that issue"). "The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his [or her] parent . . . [and as such, it] is a most serious and sensitive judicial action."
The best interests of the children were also considered in Scott v. Scott, 445 S.W.2d 871 (Ky. 1969), an immediate possession case that did not involve Cabinet removal. In Scott, the Court agreed with the family court that the grandparents acted improperly be seizing the children of their deceased son away from their mother simply because the children's mother proposed to move away.
It would behoove all the adults involved in child's life to make every effort to get along and to avoid antagonizing each other, however we can understand feelings running "hot" given all that has transpired. The best interests of the children were also considered in Scott v. Scott, 445 S.W.2d 871 (Ky. 1969), an immediate possession case that did not involve Cabinet removal. In Scott, the Court agreed with the family court that the grandparents acted improperly be seizing the children of their deceased son away from their mother simply because the children's mother proposed to move away.
The respondent may desire to obtain an order changing the custody upon the ground that the long-term best interest of the child requires the change but habeas corpus inquires only as to the immediate entitlement. Scott v. Scott, Ky., 445 S.W.2d 871 (1969). Not only are the issues severely limited in habeas corpus but the action must proceed in the county in which the child is detained and the procedure for appeal is different from the procedure in ordinary cases.
Cf. Lathey v. Lathey, Ky., 305 S.W.2d 920 (1957). As to the additional claims, we consider the rule stated in Scott v. Scott, Ky., 445 S.W.2d 871 (1969), as qualified in Galloway v. Pruitt, Ky., 469 S.W.2d 556 (1971), controlling. In Scott we said:
469 S.W.2d at 558. The Hintons contend that this case should be decided on the narrower and more technical principles enunciated in Scott v. Scott, Ky., 445 S.W.2d 871 (1969). Actually, however, what Galloway v. Pruitt stands for is that regardless of how it begins, no child custody case should be tried in a straitjacket.