THEODORE MARAS v. WAYNE MOORE; KATHLEEN MOORE; T.M., AN INFANT; A.M., AN INFANT; CABINET FOR FAMILIES AND CHILDREN
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RENDERED: MARCH 9, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002913-MR
THEODORE MARAS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFERY P. MORRIS, JUDGE
ACTION NO. 99-CI-004680
v.
WAYNE MOORE;
KATHLEEN MOORE;
T.M., AN INFANT;
A.M., AN INFANT;
CABINET FOR FAMILIES AND CHILDREN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUDGEL, Chief Judge; BARBER, and SCHRODER, JUDGES.
BARBER, JUDGE:
Theodore Maras (Maras) appeals the judgment of
the Jefferson Circuit Court denying his motion to alter, amend or
vacate its prior order adjudging that the circuit court lacked
the authority to conduct a hearing on a motion to alter the
custody of Maras’ two (2) minor children.
Having reviewed the
record and applicable law, we affirm.
On December 13, 1996, a petition was filed in the
Jefferson Family Court alleging neglect by him of his two (2)
minor children.
A temporary removal hearing was held on December
17, 1996, at which time the children were permitted to remain in
their father’s custody.
Thereafter, at a hearing conducted on
January 29, 1997, Maras stipulated to the alleged neglect and the
children were placed in the custody of the Cabinet for Families
and Children (Cabinet).1
They were placed by the Cabinet with
Wayne and Kathy Moore (the Moores).
Following several continuances, a hearing was conducted
on September 9, 1997, wherein due to Maras continued use of
alcohol and illegal drugs, it was determined that the Moores
would retain temporary custody of the children.
Maras was
instructed to attend therapy and anger management classes upon
the completion of which he could redocket the matter for further
custody consideration.
In May 1998, Maras filed a motion to have the children
returned to his custody.
However, due to evidence demonstrating
that Maras continued to be troubled with alcohol and illegal drug
use, as well as having a tendency to leave the children
unsupervised during visitation, the court concluded the children
remained at risk.
Therefore, the court ordered that temporary
custody was to remain with the Moores, permitting Maras only
supervised visitation during therapeutic sessions with the
children and counselors.
In June 1998, the Moores filed a motion for permanent
custody.
On August 25, 1998, the Jefferson Family Court entered
1
At the time of the January 1997, hearing the Cabinet for
Families and Children remained known as the Cabinet for Human
Resources.
-2-
a final order awarding permanent custody of the children to the
Moores.
As grounds therefor, the court found that Maras had
inflicted physical and emotional abuse upon the children, was not
a suitable custodian for the children’s care, and that in accord
with the children’s therapist, they should have no contact with
their father other than in a strictly therapeutic setting.2
On September 25, 1998, Maras filed a notice of appeal
challenging the August 25, 1998, permanent custody award.
Maras
failed to perfect his appeal with a timely statement of same;
however, on November 3, 1998, he obtained a court order allowing
five (5) days in which to file an amended notice of appeal.
Maras failed to comply with the time extension.
Due to these
deficiencies, the circuit court dismissed Maras’ appeal pursuant
to CR 72.08.3
On April 11, 1999, Maras petitioned the circuit court
for immediate entitlement to custody, KRS 620.110, and for a writ
of habeas corpus, KRS 419.020.
The court denied the petition in
its entirety and this appeal followed.
Maras raises several arguments before this Court
regarding the sufficiency of the initial neglect summons, the
propriety of the procedure followed by the family court, as well
as the validity of the temporary custody order.
We believe that
the sole issue, as noted in Maras’ introduction, remains whether
2
A Judgment of Custody was entered on September 11, 1998,
which incorporated by reference the court’s prior findings of
fact and conclusions of law.
3
“An appeal from the district court must be perfected
within 30 days after the date of filing the first notice of
appeal.” CR 72.08.
-3-
the circuit court properly ruled as to the application of KRS
620.110 in the matter sub judice.
We conclude there was no
error.
KRS 620.110 provides, in pertinent part:
Any person aggrieved by the issuance of a
temporary removal order may file a petition
in circuit court for immediate entitlement to
custody . . . .
Unquestionably, the statute addresses relief from a “temporary
removal order.”
The order which Maras challenged in the circuit
court was a “permanent order,” that is, the August 25, 1998,
judgment awarding permanent custody of the children to the
Moores.
As such, the circuit court correctly concluded that KRS
620.110 has no application in this case and its final disposition
will not be disturbed.
CR 52.01
The remainder of Maras’ contentions are not arguable in
this appeal.
Rather, Maras challenges a number of issues arising
in the context of the temporary custody proceedings and orders
resulting therefrom.
If Maras perceived that he was aggrieved by
or through these proceedings, the onus was upon him to appeal
same in accordance with CR 72.02.
He failed to properly appeal
from that proceeding and, therefore, he cannot now be heard to
complain.
Stewart v. Kentucky Lotto Corp., Ky. App., 986 S.W.2d
918 (1998).
In accordance with the above discussion, the order of
the Jefferson Circuit Court is affirmed.
ALL CONCUR.
-4-
BRIEF FOR APPELLANT:
BRIEF FOR WAYNE MOORE AND
KATHY MOORE:
J. Russell Lloyd
Louisville, Kentucky
Bruce D. Prizant
BRIEF FOR COMMONWEALTH OF
KENTUCKY, CABINET FOR FAMILIES
AND CHILDREN:
Carey Arnold
Louisville, Kentucky
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