S. F. v. Steven R. Crebessa ( 2021 )

RENDERED: APRIL 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0693-ME
S.F. APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
v. HONORABLE BRUCE T. BUTLER, JUDGE, JUDGE
ACTION NO. 19-CI-00336
HONORABLE STEVEN R.
CREBESSA; COMMONWEALTH OF
KENTUCKY CABINET FOR
HEALTH AND FAMILY SERVICES;
J.F.; J.F.; AND M.F. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: S.F. (“Mother”) appeals from an order of the Meade Circuit
Court denying her request for a writ of prohibition to prevent the Meade District
Court from entering a permanent custody order in a dependency, neglect, and
abuse (“DNA”) action. We affirm the circuit court.
Before we begin our analysis, we note that Mother failed to file a
designation of record pursuant to Kentucky Rule of Civil Procedure (CR) 75.01.
As a result, we do not have the DNA record from the district court before us. It is
evident that the circuit court, in denying Mother’s petition for a writ of prohibition,
did have access to the district court record.1 The limited record before us, in
combination with the briefs submitted, is extremely confusing in terms of what has
happened procedurally in the DNA action. For example, in her petition to the
circuit court, Mother states that “[a]n Adjudication Order was entered by the
Meade District Court on March 21, 2019 in the DNA Action (‘3/21 Order’). A
timely appeal is presently pending before [the circuit court] 19-XX-0008.”
However, in her brief to this Court, Mother refers to the same order entered on
March 21, 2019, as the dispositional order. The circuit court order denying
Mother’s petition states that the disposition hearing was held by the district court
on May 9, 2019.2 Furthering our confusion, Mother states in her brief to this Court
that the district court awarded temporary custody of the minor child (“Child”) to
1
In the hearing before the circuit court, the court read directly from orders entered by the district
court.
2
This Court has held that that “a disposition order, not an adjudication order, is the final and
appealable order with regard to a decision of whether a child is dependent, neglected, or abused.”
J.E. v. Cabinet for Health and Family Services, 553 S.W.3d 850, 852 (Ky. App. 2018).
Regardless of which district court order was appealed, we note that Mother acknowledges the
circuit court affirmed the district court and that the district court order is now final.
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J.F., a relative. This is inconsistent with the record before us wherein Mother
states in a motion to the circuit court that “[Mother] testified that in the DNA
Action in the District Court [Child] was originally placed with her paternal uncle,
[J.F.], but custody was later removed and placed with the Cabinet [for Health and
Family Services] due to the individual not being able to financially meet the child’s
medical needs.” As a result, we do not know if Child is currently in the custody of
the Cabinet for Health and Family Services (“CHFS”) and placed with J.F. or if
J.F. has custody of Child.3 This distinction is important for reasons explained later
in this opinion.
This Court has repeatedly held that it is an appellant’s responsibility
to ensure that we have the complete record for our review.
In Hatfield v. Commonwealth, 250 S.W.3d 590 (Ky.
2008), the Supreme Court of Kentucky discussed the
appellant’s burden to present a complete record to
support his appeal:
Appellant has a responsibility to present a
“complete record” before the Court on appeal.
Steel Technologies, Inc. v. Congleton, 234 S.W.3d
920, 926 (Ky. 2007). “Matters not disclosed by
the record cannot be considered on appeal.”
Montgomery v. Koch, 251 S.W.2d 235, 237 (Ky.
1952); see also Wolpert v. Louisville Gas & Elec.
Co., 451 S.W.2d 848 (Ky. 1970) (holding that our
3
We note that J.F. did not file a brief in this action. CHFS filed the only appellee brief
submitted to this Court. CHFS’s brief was not helpful in clarification of whether Child is in the
custody of CHFS and placed with J.F. or if J.F. has custody of Child. CHFS’s brief stated only
that it “accepts the Appellant’s Statement of the Case.”
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predecessor court could not review contentions of
prejudice before the jury when the only basis for
the argument was the Appellant’s brief, because
review is confined to the record). Appellant may
not raise allegations of error on appeal “based
entirely on a silent record.” Commonwealth v.
Thompson, 697 S.W.2d 143, 144 (Ky. 1985).
Further, “[i]t has long been held that, when the
complete record is not before the appellate court,
that court must assume that the omitted record
supports the decision of the trial court.” Id. at 145.
Hatfield, 250 S.W.3d at 600-01.
Ray v. Ashland Oil, Inc., 389 S.W.3d 140, 145 (Ky. App. 2012); see also K.M.E. v.
Commonwealth, 565 S.W.3d 648, 654 (Ky. App. 2018).
We review petitions for a writ of prohibition based on lack of
jurisdiction de novo because it is primarily a question of law. See Grange Mut.
Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). However, our review is
inhibited by the lack of a complete record before us, and we are compelled to
assume that the omitted records support the circuit court’s order. Hatfield, 250
S.W.3d at 600-01. We conclude, nonetheless, that even the partial record we have
before us supports that the circuit court made a correct decision on this matter.
KRS4 620.027 provides, in relevant part,
[t]he District Court has jurisdiction, concurrent with that
of the Circuit Court, to determine matters of child
custody and visitation in cases that come before the
District Court where the need for a permanent placement
and custody order is established as set forth in this
4
Kentucky Revised Statute.
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chapter. The District Court, in making these
determinations, shall utilize the provisions of KRS
Chapter 403 relating to child custody and visitation.
Mother’s primary argument to this Court is, essentially, that once a
district court enters a dispositional order in a DNA action, it lacks jurisdiction to
enter any orders pertaining to permanent custody of the child. She also contends
that the district court lacks jurisdiction to enter any orders regarding custody or
visitation of Child. In doing so, Mother coins the phrase “specific case
jurisdiction,” but her argument is without merit and without basis in the law.
Indeed, she cites to no legal precedent to support her assertion. We agree with the
circuit court’s well-reasoned analysis:
The essence of [Mother’s] argument is that KRS 620.027
only allows a District Court to determine child custody
and visitation where the need for a permanent placement
and custody order is established. However, a close
reading of that statute provides that the District Court and
the Circuit Court have concurrent jurisdiction to
determine child custody and visitation where there is a
need for permanent placement and custody order.
KRS 620.090 provides clearly that after a temporary
removal hearing, the Court upon proper findings shall
‘grant temporary custody’ to [CHFS] or other appropriate
person or agency.
[Mother] interprets KRS 610.010(9)[5] and KRS 620.027
to limit the jurisdiction of the District Court when
5
KRS 610.010 deals with district court jurisdiction over juvenile matters. Subsection (9)
provides that
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deciding temporary child custody to situations “where the
need for a permanent placement and custody order is
established as set forth in this chapter[.]” KRS 620.027.
However, [Mother] is interpreting this statute in a
restrictive manner. KRS 620.027 was not meant to limit
the District Court jurisdiction in custody orders on a
temporary basis to situations where a need for permanent
custody has been established, but was meant to expand
the jurisdiction of the District Court, concurrent with the
Circuit Court to enter permanent custody orders.
Mother’s assertion that the district court lacks jurisdiction to award
permanent custody is without basis in the law. KRS 610.125(1) provides that
when a child has been removed from his home and placed in the custody of the
Cabinet, the court shall conduct a permanency hearing no later than twelve months
after placement and every twelve months thereafter. The purpose of this is “to
determine the future status of the child.” Id. To that end, the court must address
whether the child should be placed for adoption or with a permanent custodian. As
[i]f the court finds an emergency to exist affecting the welfare of a
child, or if the child is eligible for the relative or fictive kin
caregiver assistance as established in KRS 620.142, it may make
temporary orders for the child’s custody; however, if the case
involves allegations of dependency, neglect, or abuse, no
emergency removal or temporary custody orders shall be effective
unless the provisions of KRS Chapter 620 are followed. Such
orders shall be entirely without prejudice to the proceedings for
permanent custody of the child and shall remain in effect until
modified or set aside by the court. Upon the entry of a temporary
or final judgment in the Circuit Court awarding custody of such
child, all prior orders of the juvenile session of the District Court in
conflict therewith shall be deemed canceled. This section shall not
work to deprive the Circuit Court of jurisdiction over cases filed in
Circuit Court.
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previously stated, because of the limited record before us, we do not know with
certainty if Child is in the custody of CHFS and placed with J.F. or if J.F. has
temporary custody of Child, so it is unclear if KRS 610.125 is applicable. It is also
unclear from the record before us if J.F. or CHFS has motioned the district court
regarding permanent custody of child. Regardless, an award of permanent custody
within a DNA action is within the jurisdiction of the district court as provided in
KRS 620.027.
Mother fails to grasp the distinction between custody in the context of
a DNA action pursuant to KRS Chapter 620 and a true custody action. Even if a
district court awards permanent custody in a DNA action, it is not necessarily a
custody decree. This Court has explained the distinction, noting,
a [permanency] hearing and an award of custody are not
precluded by the structure of KRS Chapter 620, so long
as the proper procedures are followed. See London v.
Collins, 242 S.W.3d 351, 356 (Ky. App. 2007) (“if a
permanency order in a dependency action brought under
Chapter 620 complies with KRS 403.270(2) and is based
on the best interests of the child, determined after
considering the factors set out in that statute, we . . .
believe [that] it would qualify as a ‘custody decree’ and
that the requirements of KRS 403.340 would have to be
satisfied in order to amend it.”). We are mindful, though,
of our holding in S.R. v. J.N., 307 S.W.3d 631 (Ky. App.
2010), in which we specifically addressed the differences
between DNA and custody cases: “The purpose of the
dependency, neglect, and abuse statutes is to provide
for the health, safety, and overall well-being of the
child. KRS 620.010. It is not to determine custody
rights which belong to the parents. A dependency,
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neglect or abuse adjudication hearing is simply not the
appropriate forum for rehashing custody issues.” Id. at
637.
N.L. v. W.F., 368 S.W.3d 136, 147 (Ky. App. 2012) (emphasis added) (internal
footnote omitted).6
Accordingly, for the reasons stated herein, the order of the Meade
Circuit Court denying Mother’s request for a writ of prohibition is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
COMMONWEALTH OF
Harry B. O’Donnell IV KENTUCKY CABINET FOR
Louisville, Kentucky HEALTH AND FAMILY
SERVICES:
Michael M. Ferguson
Elizabethtown, Kentucky
6
Mother points out that she filed for divorce from Child’s father in the Meade Circuit Court
during the pendency of the DNA action. She states that no orders have been entered in that case
regarding custody and visitation of Child.
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