C.K. v. Cabinet for Health & Family Services

529 S.W.3d 786
CourtCourt of Appeals of Kentucky
DecidedMay 19, 2017
DocketNO. 2016-CA-000139-ME
StatusPublished
Cited by3 cases

This text of 529 S.W.3d 786 (C.K. v. Cabinet for Health & Family Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.K. v. Cabinet for Health & Family Services, 529 S.W.3d 786 (Ky. Ct. App. 2017).

Opinion

OPINION

MAZE, JUDGE:

C.K. appeals from the Mason Circuit Court’s denial of his petition for immediate entitlement to custody of his daughter M.K. He argues that the trial court failed to conduct the proper legal analysis before it denied his petition. We affirm the circuit court.

Background

On the morning of October 20, 2015, seven-year-old M.K’s home in Maysville, Kentucky was destroyed by fire. Although M.K. managed to escape, the fire claimed the lives of her mother and her brothers. Shortly thereafter, social workers with the Commonwealth of Kentucky Cabinet for Health and Family Services (hereinafter “the Cabinet”) secured an emergency custody order granting temporary custody of M.K. to the Cabinet and placing M.K. with her maternal grandmother (hereinafter [788]*788“grandmother”). M.K.’s father, C.K. (hereinafter “Father”), lives in South Carolina, and neither the Cabinet nor the child’s Kentucky family knew Father’s contact information. At the time of the fire, Father had not visited M.K. in more than two years.

One day after securing the emergency custody order, the Cabinet filed a petition alleging dependency in Mason District Court. Father was present at the corresponding temporary removal hearing on October 22, 2015, and he requested custody of M.K. with the intention of eventually taking her back to South Carolina. The district court nevertheless concluded that it was in M.K.’s best interests that grandmother have temporary custody, citing the fact that Father had not visited in-person with M.K. in over two years. In addition, the district court pointed out that M.K. had never been to South Carolina. However, the court ordered a background check on Father and a home evaluation for Father’s home in South Carolina. The district court also ordered daily, face-to-face contact between Father and M.K. either in-person in Mason County or via telephone or Skype. Father availed himself fully of these visitation rights.

Following the temporary removal hearing, Father filed a petition for immediate entitlement to custody pursuant to KRS1 620.110. During a hearing on the petition, the Mason Circuit Court heard extensive testimony from many interested parties and counsel, including Father, Father’s wife, grandmother, Meagan Patton, M.K.’s school guidance counselor, and M.K’s guardian ad litem, (GAL). Grandmother testified that, prior to the fire, she typically saw M.K. on a daily basis, because her daughter frequently needed her help with child care. Meagan Patton, a social worker with the Cabinet, testified that M.K. had personal items at her grandmother’s home and it was obvious that she spent time there prior to the house fire. She also testified M.K. was “probably the most traumatized child I’ve ever interviewed in my five years of doing this occupation,” and Ms. Patton asserted that M.K. needed as many bonds to as many people as possible following her horrific loss.

In his testimony, Father admitted he had not seen M.K. in person since February or March of 2013, but he attributed this fact to the cost of traveling to Kentucky. He also stated that he had repeatedly attempted to call M.K. during that time, but that the child’s late mother would not answer his calls. Finally, Father acknowledged on cross-examination that it would not be in M.K’s best interest to take her back to South Carolina immediately, and he indicated that a period of transition was appropriate. During the case, Father had taken up temporary residence in Mason County where, presumably, he would stay during this transition period.

The circuit court denied Father’s petition and issued findings of fact, conclusions of law, and judgment on December 9, 2015. The court made no finding as to Father’s fitness as a parent, but stressed that grandmother was M.K.’s only close relative who could be found when M.K.’s mother and siblings died. The circuit court observed that grandmother and M.K. shared a close bond, while Father had not been in his daughter’s life for at least two years. The court acknowledged that Father would likely receive custody of M.K. in the future due to the law’s preference for parental custody. However, the court concluded that removing M.K. from grandmother at that time would inflict further trauma on the child. Based on these findings and [789]*789conclusions, the circuit court held that the district court’s award of custody was not clearly erroneous. Upon Father’s request, the circuit court amended its factual findings in a supplemental order, but declined to amend its legal conclusions or the ultimate result of the original order. Father now appeals as a matter of right.

Standard of Review

“Pursuant to KRS 620.110, any person aggrieved by the issuance of a temporary order may appeal that decision.” B.C. v. B.T., 182 S.W.3d 213, 220 (Ky. App. 2005). Petitions for immediate entitlement under KRS 620.110 are not considered appeals of the temporary order of removal, however, but are considered original actions “in the nature of habeas corpus.” B.D. v. Commonwealth, Cabinet for Health and Family Services, 426 S.W.3d 621, 623 (Ky. App. 2014) (quoting Moore v. Dawson, 531 S.W.2d 259, 262 (Ky. 1975)). Nevertheless, “in reviewing the decision of the [trial] court, the test is not whether the appellate court would have decided it differently, but whether the findings of the [trial] court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.” B.C., 182 S.W.3d at 219-20 (citation omitted). We proceed accordingly.

Analysis

The crux of Father’s argument on appeal is that parents are constitutionally entitled to the care, custody, and control of their children, absent a finding of unfitness. Father cites a number of cases in support of this proposition, including: Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004); and Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Because no court found Father to be unfit for custody, he contends the circuit court erred in denying his petition for immediate entitlement to custody. Father’s constitutional arguments are misplaced in the context of this case.

As it appears to this Court, a petition for immediate entitlement to custody is an under-utilized tool that KRS 620.110 provides to parents who are unhappy with a district or family court’s decision regarding temporary custody following a temporary removal hearing. The clear object of the statute is to permit parents to seek relief from a temporary order. This object is achieved by treating a parent’s petition pursuant to KRS 620.110

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Bluebook (online)
529 S.W.3d 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ck-v-cabinet-for-health-family-services-kyctapp-2017.