M.F., FATHER v. M.F., A CHILD; S.S., MOTHER; REBECCA AND CARL MORAN, TEMPORARY CUSTODIANS; KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, AMY LAINHART AND BETTY MONTGOMERY; AND DEPARTMENT OF MEDIATION AND FAMILY COURT SERVICES, SHANEA GARRETSON
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RENDERED:
DECEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002208-ME
M.F., FATHER
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 03-J-00892
M.F., A CHILD;
S.S., MOTHER;
REBECCA AND CARL MORAN, TEMPORARY
CUSTODIANS;
KENTUCKY CABINET FOR HEALTH AND
FAMILY SERVICES,
AMY LAINHART AND BETTY MONTGOMERY;
AND DEPARTMENT OF MEDIATION AND FAMILY
COURT SERVICES, SHANEA GARRETSON
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
JUDGE.
1
ABRAMSON AND GUIDUGLI, JUDGES; BUCKINGHAM, 1 SENIOR
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
BUCKINGHAM, SENIOR JUDGE:
M.F. (Father) appeals from orders of
the Fayette Family Court relating to mediation and other matters
concerning his child.
Because the appeal is from nonfinal
orders, it must be dismissed.
Father and S.S. (Mother) are the parents of a male
child born on January 10, 2003.
They had an “off and on”
relationship and were not married.
The Cabinet for Health and
Family Services became involved with the family in June 2003.
The family court became involved with the case in June
2003 when the Cabinet filed a non-removal neglect petition
against Mother.
In July 2003, Mother granted legal guardianship
of the child to Rebecca Moran.
the Cabinet.
This was done independently of
In September 2003, the family court found neglect
by Mother and granted temporary custody of the child to Moran.
Father was a part of the proceedings, and he agreed to cooperate
with the Cabinet.
In April 2004, the Cabinet recommended to the court
that it award permanent custody of the child to Moran, but the
court instead continued temporary custody with Moran.
The next
month, Moran withdrew her motion for permanent custody and the
court ordered the child returned to Father and Mother.
In August 2004, the Cabinet filed a non-emergency
removal petition alleging neglect by both parents due to
substance abuse and domestic violence.
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Temporary custody was
awarded to the Cabinet, and the child was placed with Moran and
her husband.
The following month, Father and Mother stipulated
to risk of neglect, and the court ordered temporary custody with
the Cabinet with continued placement of the child with the
Morans.
At the October 2004 disposition hearing, the court
committed the child to the Cabinet.
In January 2005, the Cabinet asked the court to be
relieved of its duty to use reasonable efforts to reunite the
family.
In June of that year, the court denied the Cabinet’s
motion.
In August 2005, Father filed a motion for the return
of parental custody, for review of visitation, and for findings
of alternatives to removal.
The court passed Father’s motion
and ordered the parties to permanency mediation. 2
Father
followed by moving the court to set aside its mediation order
and to grant him immediate custody of the child.
The court
denied the motions, and Father’s appeal herein followed.
Father argues on appeal that the family court erred in
denying him hearings on his motions and in ordering permanency
2
Father states that, according to the Administrative Office of the Courts
(AOC) Mediation and Family Court website, one of the goals in permanency
mediation is to encourage parents to give up their rights and “make the
courageous and loving decision to let someone more capable raise their
children.” Father included the AOC material in his brief as an exhibit. The
AOC permanency mediation material also states that “the parents who
voluntarily gave up their rights were gratified to be part of the solution.”
In searching the AOC website, it appears that the aforementioned language has
been omitted and that the mediation program is now referred to as the Child
Protection Mediation Program. The goals of the program have also been
modified.
-3-
mediation.
First, he asserts that forcing him to sign the
mediation agreement and participating in mediation “would have
waived his claim of superior custody entitlement he had not
lost, and negated the effect of proceedings he instituted to
toll the de facto parent statute.”
Second, he argues that
“specific legislative entitlement to review temporary custody
orders, placement and visitation, are available on motion of a
natural parent, and specific statutory procedure supercedes
general rules of procedure authorizing permanency mediation.”
In other words, Father maintains he was entitled to be heard on
his motions rather than simply be ordered to participate in
mediation of the issues.
Third, he argues that permanency
mediation was barred because the victim of domestic violence did
not consent to it. 3
We note first that while the court did not grant
Father a hearing on his motions, it did dispose of the motions
by denying them.
We also note that Father does not argue in his
brief that the basis of the court’s rulings on the motions as
set out in the order was erroneous.
Rather, he argues that he
should have been granted a hearing on the motions and that the
court erred in ordering permanency mediation.
3
Father relies on KRS 620.027 and KRS 403.036 to support this argument.
Also, it is unclear as to whether either Father or Mother was a domestic
violence victim.
-4-
Kentucky Revised Statutes (KRS) 620.155 provides in
part that a parent aggrieved by a proceeding in a dependency,
neglect, or abuse case may appeal as a matter of right.
However, the statute does not say which proceeding or
proceedings may be appealed from and which may not.
“ A final or appealable judgment is a final order
adjudicating all the rights of all the parties in an action or
proceeding, or a judgment made final under Rule 54.02.”
Kentucky Rules of Civil Procedure (CR) 54.01.
Included within
the definition of a final and appealable order is one which
“operates to divest some right in such a manner as to put it out
of the power of the court making the order . . . to place the
parties in their original condition.”
Murty Bros. Sales, Inc.
v. Preston, 716 S.W.2d 239, 241 (Ky. 1986)(internal citation
omitted).
In this case, the court disposed of the case by
committing the child to the custody of the Cabinet in accordance
with KRS 620.140(1)(d).
That order was a final and appealable
one, but Father did not appeal from it.
Furthermore, the court continued its jurisdiction over
the case following the dispositional order committing the child
to the Cabinet.
Among other things, the Cabinet is required to
file case permanency plans and case progress reports with the
court that ordered the commitment.
620.240.
See KRS 620.230 and KRS
Eventually, the child will either be returned home or
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there will be permanent placement, which may include termination
of parental rights.
See KRS 620.240(9).
This case had not
progressed to the extent the court had taken either of those
actions.
Rather, the court had ordered permanency mediation.
Pursuant to CR 16(1)(f), courts have the express
authority to order mediation.
See Kentucky Farm Bureau Mut.
Ins. Co. v. Wright, 136 S.W.3d 455, 458-59 (Ky. 2004).
order resolves no issue between the parties.
Such an
Instead, it places
them in a position to reach an agreement on how to resolve a
matter should they choose to agree.
Further, as the court had
not taken final action in the case, the mediation order was
clearly interlocutory and not subject to appeal.
Thus, as this
appeal was from nonfinal orders, it must be dismissed.
It is ORDERED that this appeal be DISMISSED.
ALL CONCUR.
ENTERED:
December 22, 2006
/s/ David C. Buckingham
JUDGE, COURT OF APPEALS
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