H. (E.) VS. C. (S.)
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RENDERED: APRIL 8, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000992-MR
E.H.
v.
APPELLANT
APPEAL FROM LESLIE CIRCUIT COURT
HONORABLE GENE CLARK, JUDGE
ACTION NO. 08-J-00057
S.C.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
ISAAC, SENIOR JUDGE: E.H. appeals from an order awarding custody of his
minor child to S.C. The sole issue on appeal is whether the trial court erred by
failing to make a final disposition of the case within 45 days as required by
Kentucky Revised Statute (KRS) 620.090(5). We affirm.
1
Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
A juvenile dependency, neglect, and abuse petition was filed on
November 5, 2008. After a temporary removal hearing on November 6, 2008, the
trial court placed the child with S.C., the child’s maternal grandmother. The trial
court scheduled an adjudication hearing for November 24, 2008, which was
rescheduled for December 8, 2008. On December 11, 2008, the trial court entered
an adjudication hearing order and scheduled a disposition hearing for January 12,
2009, which was rescheduled for January 26, 2009. On February 19, 2009, the
trial court entered an order passing the disposition of the case pending further
orders. On December 9, 2009, E.H. filed a motion seeking entitlement to
immediate custody of the child. The trial court denied the motion and entered
findings of fact, conclusions of law, and an order of disposition awarding custody
of the child to S.C. Subsequently, E.H. filed a motion to alter, amend, or vacate
the order, which the trial court denied.
The sole issue on appeal is whether the trial court erred by failing to
make a final disposition of the case within 45 days of removal as required by KRS
620.090(5).
KRS 620.090(5) states:
The child shall remain in temporary custody with the
cabinet for a period of time not to exceed forty-five (45)
days from the date of the removal from his home. The
court shall conduct the adjudicatory hearing and shall
make a final disposition within forty-five (45) days of the
removal of the child. The court may extend such time
after making written findings establishing the need for
-2-
the extension and after finding that the extension is in the
child's best interest.
The child was removed on November 6, 2008. Therefore, the trial court should
have made a final disposition of the case or made written findings justifying an
extension before December 21, 2008. However, E.H. failed to object to any
continuance of the disposition hearing beyond the 45-day limitation. In fact, E.H.
first brought this issue to the attention of the trial court on the eve of the
disposition hearing almost a year after the case had been continued. Appellate
courts in Kentucky will not review alleged errors unless the issue was presented to
the trial court. Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). E.H. cannot be
permitted to remain silent in the face of a known error, agree to a course of
proceeding, and then claim error upon an unfavorable result. Moreover, once the
issue was belatedly brought to the attention of the trial court, it made sufficient
findings regarding the necessity of extending the 45-day period because of the
complexity of the underlying facts and unusual procedural posture of this case.
Accordingly, the order of the Leslie Circuit Court is affirmed.
DIXON, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stella B. House
Manchester, Kentucky
Kenneth A. Buckle
Hyden, Kentucky
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