Bodacious A. McCullaugh v. Commonwealth of Kentucky

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0101-ME
BODACIOUS A. MCCULLAUGH APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
v. HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 19-CI-00286
COMMONWEALTH OF KENTUCKY; APPELLEES
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES; DENNIS
TUCKER; AND C.R.T., A MINOR
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Bodacious A. McCullaugh brings this appeal from a
December 30, 2019, Order of the Meade Circuit Court denying McCullaugh’s
petition for immediate entitlement of her minor child. For the reasons stated, we
dismiss this appeal.
On August 20, 2019, the Commonwealth of Kentucky, Cabinet for
Health and Family Services (Cabinet) filed a dependency, neglect, or abuse action
as to McCullaugh’s minor child in the Meade District Court (Action No. 2019-J-
0120). On that same day, the district court rendered an emergency custody order
placing the child with the Cabinet. (Kentucky Revised Statutes (KRS) 620.060).
Later that day, the district court conducted a temporary removal hearing, and a
temporary removal order was rendered awarding the Cabinet temporary custody of
the child. KRS 620.080; KRS 620.090.
As a consequence, McCullaugh filed a petition for immediate
entitlement to custody in the Meade Circuit Court pursuant to KRS 620.110. By
order entered December 30, 2019, the circuit court denied McCullaugh’s petition
for immediate custody. On January 15, 2020, McCullaugh timely filed a notice of
appeal of the order denying McCullaugh’s petition for immediate custody.
On March 30, 2021, this Court entered a Show Cause Order directing
McCullaugh to show good cause why this appeal should not be dismissed as moot.
Therein, the Court noted that the record revealed “a dispositional hearing was
scheduled for July 14, 2020, and from our review of the docket, it appears that a
dispositional order was entered on July 16, 2020.” Show Cause Order at 2. As
explained in the order:
-2-
This Court has interpreted KRS 620.110 as
providing a mechanism of relief for “[a]ny person
aggrieved by the issuance of a temporary removal order.”
[B.D.] v. Commonwealth, Cabinet for Health and Family
Servs., 426 S.W.3d 621, 622 (Ky. App. 2014). This
statutory mechanism is necessary because a temporary
custody by its very nature is nonfinal and interlocutory;
thus, under KRS 620.110, an aggrieved person may file
an original action in circuit court.
In this case, it appears that the district court’s
temporary custody order was supplanted by a subsequent
adjudication order and a dispositional order. In
dependency, neglect, and abuse cases, the disposition
order is the final order from which an appeal may be
taken. J.E. v. Cabinet for Health and Family Servs, 553
S.W.3d 850, 852 (Ky. App. 2018). If a disposition order
was entered after the appeal was filed, this appeal has
been rendered moot, and must be dismissed as we are
deprived of subject matter jurisdiction. See
Commonwealth, Bd. of Nursing v. Sullivan Univ. Sys.
Inc., 433 S.W.3d 341, 344 (Ky. 2014).
Show Cause Order at 3. The Court of Appeals also directed McCullaugh to file a
response no later than ten days from the date of entry of the Show Cause Order.
The Court cautioned McCullaugh that “[f]ailure to response shall result in
immediate dismissal of this appeal.”
More than ten days have lapsed since entry of the March 30, 2021,
Show Cause Order, and McCullaugh has failed to respond to said order. Based on
the legal authority cited, we have no alternative but to dismiss this appeal as moot.
-3-
Therefore, this Court hereby ORDERS that Appeal No. 2020-CA-
0101-ME is DISMISSED.
ALL CONCUR.
ENTERED: _April 30, 2021____ ___/s/ Jeff S. Taylor____________
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
George R. Carter
Louisville, Kentucky
-4-