COMMONWEALTH OF KENTUCKY VS. M. (C.), ET AL.
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RENDERED: MARCH 14, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
SUPREME COURT ORDERED NOT PUBLISHED: AUGUST 13, 2008
(FILE NO. 2008-SC-0268-DE)
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001468-ME
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 05-J-00099 AND 05-J-00099-002
C. M., A CHILD; C. M., FATHER;
T. M., MOTHER; AND KENTON COUNTY
ATTORNEY'S OFFICE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
CAPERTON, LAMBERT, AND THOMPSON, JUDGES.
CAPERTON, JUDGE:
The Cabinet for Health and Family Services
appeals the Kenton Circuit Court’s order extending or
reinstating C.M.’s commitment to the Cabinet.
review, we affirm.
After careful
The Cabinet assumed custody of C.M. as a dependant
minor until she reached the age of majority.
Upon reaching the
age of majority, with the consent of the Cabinet, the circuit
court approved C.M.’s request for continued commitment until age
21 for the purpose of facilitating her education at Northern
Kentucky University.
Following the extension of her commitment,
C.M. soon dropped out of her classes at Northern, and the
Cabinet asked her to voluntarily rescind her commitment.
After
speaking with her guardian ad litem, however, C.M. had a change
of heart about dropping out of Northern and about voluntarily
rescinding her commitment.
Therefore, she again moved for
reinstatement or continuation of her commitment.
At the hearing on the motion, C.M. contended that she
had made a mistake in dropping out of her classes and that she
deserved a second chance.
For its part, the Cabinet contended
that C.M. had failed to pursue her education at Northern, which
was the basis for extended commitment, and therefore the Cabinet
was within its rights to withdraw consent to her extended
commitment.
Ultimately, the circuit court was persuaded that
continued commitment was in C.M.’s best interests.
This appeal
followed.
The child, C.M., was committed to the Cabinet while
under the age of 18 pursuant to Kentucky Revised Statutes (KRS)
620.140 as a dispositional alternative.
Interpretation of KRS
620.140 is for the courts. See KRS 446.080.
Further, a cardinal
rule of statutory interpretation is for the reviewing court to
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ascertain and give effect to the legislature’s intent.
Commonwealth, Cabinet for Human Resources, Interim Office of
Health Planning and Certification v. Jewish Hospital Healthcare
Services, Inc., 932 S.W.2d 388 (Ky.App. 1996).
Commitments under the age of 18 are for an
indeterminate period of time. KRS 620.140(1)(d).
This
“indeterminate period” allows the Cabinet to work its programs
on the youth and, if necessary, the family of the youth through
counseling, education, and various programs designed to
rehabilitate.
The rehabilitation, by virtue of the steps
necessary to accomplish and the variation of abilities of
individuals, is certainly for an indeterminate period.
The
determination that the child/parent(s) have accomplished
rehabilitation is normally within the purview of the Cabinet
and, thus, the time of release from commitment is at the
discretion of the Cabinet absent objection.
The procedure for
such release is a rather informal letter to the court advising
that the Cabinet intends to release a child on a particular
date.1
A continued reading of KRS 620.140, for our purposes,
allows the court to further commit a child, here C.M., for the
purpose of education up to the age of 21 years.
Such order is
for a particular purpose, i.e. education, and extends either (1)
1
We would like to have had
letter referenced by counsel
in his brief was not part of
placed in the juvenile court
the one issued in this case, unfortunately, the
for the Cabinet for Health and Family Services
the record as certified on appeal nor ever
record.
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over a period of time up to the child’s age of 21 as
predetermined by the order or (2) accomplishment of the
educational purpose.
This type of order differs from an order
of indeterminate period in that the order sub judice continues
until a predetermined time expires or the educational purpose is
accomplished.
Counsel for the Cabinet is correct as to the
separation of powers set forth in our Constitution of Kentucky
wherein one branch, whether executive, judicial, or legislative,
shall not exercise the powers of the other unless expressly
authorized by our Constitution.
Ky. Const., § 27, § 28. Counsel
for the Cabinet complains of attempts by the judiciary to direct
decisions of the Cabinet concerning their programs and services.
Counsel professes to protect the Cabinet from the judiciary by
wielding the constitutional sword.
Now that the sword is
released from its scabbard, let us reverse the swing and sever
the Cabinet’s professed ability to vacate a court order. A court
order stands until set aside by the issuing court.2
The Cabinet’s informal procedure of writing a letter
may suspend educational services to a child but that is exactly
what is done, mere suspension.
The trial court below merely
reinstated services that were suspended by the Cabinet’s
procedure of issuing a letter of intent to release.
The court’s
order of education stands until modified or vacated by the
court; might we recommend an appropriate motion to said court.
2
Of course, such order may be appealed then affirmed, reversed or vacated.
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We, however, find there was no error in the order of
the circuit court reinstating C.M.’s commitment to the Cabinet.
Accordingly, we affirm the judgment of the Kenton Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Cynthia Kloeker
Covington, Kentucky
Martin A. Haas, Jr.
Guardian Ad Litem for C.M.
Covington, Kentucky
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