M. (T. S.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.Annotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM PULASKI FAMILY COURT
HONORABLE WALTER F. MAGUIRE, JUDGE
ACTION NOS. 07-J-00218 & 07-J-00219
CABINET FOR HEALTH AND FAMILY
SERVICES; MARK BIRDWHISTELL,
SECRETARY; K.J.P.; AND K.K.P.
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
KELLER, JUDGE: T.S.M., the natural mother of K.J.P. (Child A) and K.K.P.
(Child B), has appealed from the October 2, 2007, orders of the Pulaski Family
Court finding that her children were dependent. Having determined that the family
court did not hold an adjudication hearing within forty-five days after granting
temporary custody to the Cabinet for Health and Family Services (the Cabinet) or
provide written reasons for extension of that time period, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
D.P. (the father) and T.S.M. (the mother) were never married but
maintained a ten-year relationship that ended in May 2006. In July 2006, the
father filed a Petition for Custody of the children in Pulaski Family Court. In
support of his petition, the father asserted that the mother was unfit to care for the
children due to her mental state and bizarre behavior. That “bizarre” behavior
allegedly included use of offensive language and physical fights with family
members while in the presence of the children. Through affidavits attached to the
petition, the father sought to establish that the mother had neglected the children
and subjected them to emotional damage. In her response, the mother stated that
she was a victim of domestic violence and accused the father of being physically
and verbally abusive to both her and the children. She also stated that she left
when he demanded that she do so.
The matter initially proceeded as a custody dispute between the
parents. Through mediation, the parties reached a partial agreement giving
temporary custody to the mother with the father having supervised visitation. The
court also ordered the Cabinet to investigate the family and appointed a guardian
ad litem (GAL) for the children. Cabinet worker Tonya Crawford (Crawford)
interviewed the parties and the children. Based on her investigation, Crawford
stated that no additional Cabinet involvement was necessary; however, she
recommended that the children undergo counseling. Consistent with Crawford’s
report, the court ordered the mother to make appointments for the children at the
Comprehensive Care agency in Whitley County and ordered the parents to undergo
mental health evaluations.1
In an interim report dated November 30, 2006, the GAL
recommended that the children live primarily with their father due to their
mother’s unstable living conditions and her husband’s health problems.2 In
December 2006, the parties reached an agreement, entered by the family court as
an Agreed Order, that Child A would live primarily with her mother and Child B
would live primarily with her father, and each child would visit with the other
parent three or four days per week.
On March 20, 2007, the parties entered into another agreement,
whereby the family court awarded the parties temporary joint custody of the
children and set up a schedule for transportation and visitation. Less than three
months later, the mother filed a motion for emergency sole custody with
supervised visitation for the father. In her motion, the mother argued that the
father’s home environment presented a serious danger to the children’s physical
and emotional well-being, and she alleged that the father had been physically and
verbally abusive to the children.
The parties underwent a Comprehensive Custodial Evaluation conducted by Feinberg &
Associates in early 2007.
The mother married another man shortly after leaving the father.
On June 8, 2007, the court heard testimony from Misty Robertson
(Robertson), the children’s counselor, and from the GAL. Based on this testimony,
and on its own motion, the court ordered the children to be placed in emergency
custody of the Cabinet for placement in therapeutic foster care. The court also
converted the custody case into two juvenile cases and scheduled a removal
hearing for June 11, 2007. Following that hearing, the court stated that it found by
clear and convincing evidence that the children were dependent. The court based
its finding on testimony from Cabinet worker Amanda Dick (Dick), the GAL, and
a report that had been prepared by Feinberg & Associates (the Feinberg report)3 for
the custody proceedings. The court noted that the parents had failed to follow
through with the recommendations in the Feinberg report that they obtain mental
health evaluations and that they get assistance and education to permit them to
better care for their children and to cooperate with each other. The court also
found that the children were in serious need of intensive treatment, and ordered
them placed in the temporary custody of the Cabinet for placement with a third
party. In doing so, the family court stated that the removal of the children would
allow the parents to get the treatment, education, and training necessary to
The report details some of the family history, and includes several recommendations. The
report noted that Child B had close relationships with both parents, while Child A had a
significantly strained relationship with her father. Both parents exhibited questionable judgment
in parenting, and both children had suffered emotionally. The report concluded that both
children were at risk, as they had been exposed to instability and inappropriate situations by both
parents. Ultimately, the report recommended that the mother be named the primary residential
custodial parent in a joint custody arrangement, with visitation for the father.
At a status hearing on June 13, 2007, a Cabinet worker reported that
the children were doing well in foster care. The court again voiced the opinion that
the parents were dysfunctional and that, in order to improve, the children needed
consistency and stability, along with intensive counseling. The court did not
believe the children could recover with the parents involved. The court also stated
that the parents had to “get themselves okay” and likened the removal to a “time
out” for the parents designed to give them the opportunity to heal. At the
conclusion of the hearing, the court recognized that the adjudication hearing
needed to be held within forty-five days, and accordingly scheduled that hearing
for July 23, 2007.
On July 23, 2007, the day scheduled for adjudication, the Cabinet
tendered petitions alleging that the children had been neglected. Cabinet workers
stated that a case plan had been created a few days after the children’s removal;
that the children were in therapeutic foster care; and that the children were doing
well as they no longer had contact with their parents. The family court, over the
mother’s objection, continued the adjudication hearing to August 20, 2007, and
later to August 27, 2007. On August 27th, the family court again continued the
adjudication hearing to October 1, 2007, 112 days after the children were
temporarily removed from the parents and placed with the Cabinet.
At the adjudication hearing, Robertson testified that the children were
nonverbal when she started treating them in early 2007. However, by the date of
the hearing, the children were doing well, laughing and playing together.
Robertson opined that the children would have been in substantial risk of harm due
to emotional and mental neglect had they not been removed from their parents and
placed with the Cabinet. Dick testified that the parents did not follow through with
the recommendations in the Feinberg report. The mother testified that she began
going to parenting classes one month after the Feinberg report was issued and that
she was getting required counseling. She also testified that she had done all that
was ordered in the report, except couple’s therapy. Social worker Brenda White
testified that the mother had completed a twelve-session program related to
At the conclusion of the adjudication hearing, the court found that the
children were not neglected, as the parents had made efforts to care for them to the
best of their abilities. However, the court also found that the ongoing conflict had
a negative impact on the children’s emotional welfare, and that they were
flourishing in an independent environment. Accordingly, the court found that the
children were dependent, as their parents failed to ensure their emotional health.
The court also ordered the parents to obtain mental health evaluations, at the
expense of the Cabinet. It is from these adjudication orders finding that the
children were dependent that the mother has taken the present appeal.
On appeal, the mother raises three arguments: 1) that the family court
removed the children without any evidence of abuse, neglect, or dependency to
support its decision; 2) that the family court did not consider any alternative to
removal; and 3) that the adjudicatory hearing was not timely held.
The Cabinet did not file a brief in this matter. Therefore, pursuant to
Kentucky Rules of Civil Procedure (CR) 76.12(8)(c), this Court may:
(i) accept the appellant’s statement of the facts and issues
as correct; (ii) reverse the judgment if appellant’s brief
reasonably appears to sustain such action; or (iii) regard
the appellee’s failure as a confession of error and reverse
the judgment without considering the merits of the case.
Because of the ramifications our decision in this appeal may have, we decline to
impose any penalties and review the merits of the mother’s appeal.
Because it is determinative of the appeal as a whole, we will only
address the mother’s argument that the court failed to timely hold the adjudicatory
hearing. Kentucky Revised Statute (KRS) 620.090(5) provides that, after the court
has awarded temporary custody to the Cabinet, it
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 the extension and after finding that the extension is in
the child’s best interest.
The forty-five-day time limitation is discussed in 15 Louise Everett Graham &
James E. Keller, Kentucky Practice § 6:18 (3d ed.2008):
A temporary custody order under KRS 620.090 is
a short-term order. The statute gives the court only fortyfive days from the date of the child’s removal to make a
final disposition, either returning the child to its home or
granting custody to the state or an alternative custodian.
Thus, the adjudicatory hearing must be held and the
court’s decision after the hearing must be reached within
the forty-five day period. If the court extends the fortyfive day period it must make written findings that meet
two criteria. First, the findings must establish the need
for the extension and second, the findings must establish
that the extension is in the child’s best interest. The
statute’s requirement for specific findings implies that
extensions should be given only in exceptional cases and
should not be granted as a matter of course.
Based upon our review of the statutory language and the above-cited paragraph, we
recognize that the forty-five-day rule is mandatory. Before the court can extend
that time limit, the judge must make written findings setting forth the need for the
extension and how the extension will be in the child’s best interests.
In the present case, the children were removed and placed in the
temporary custody of the Cabinet on June 8, 2007.4 The adjudicatory hearing was
originally scheduled for July 23, 2007; however, the hearing was continued
pursuant to a motion by the Cabinet. On the record, the judge stated that he
believed that a continuance would be appropriate so that the children could have
time to adequately adjust to their surroundings in therapeutic foster care and to
receive counseling. However, the judge did not reduce those statements to writing.
The only written order is the judge’s notation on the docket sheet stating as
Child[ren]’s parents present w/counsel. Petitions related
to this (these) matters filed.
Petitions read into the record and understood by counsel.
CFC has completed case plans. Children are in
therapeutic foster care together. Cont. to 8/20/07 1:30 for
reports & adjudication. Phoenix Report submitted and
objected to by Mr. Lyon [counsel for the father] due to
lack of reasonable notice & time to evaluate report.
It appears that the children were actually removed on June 8, 2007, pursuant to a handwritten
note on the docket sheet. The formal order of temporary removal on AOC form DNA-3, was
entered on June 11, 2007.
Ms. Line [counsel for the mother] objects to continuance
of adjudication due to childs(rens) [sic] removal 44 days
On August 27, 2007, the Cabinet requested another continuance,
citing its need to obtain a complete copy of the Feinberg report prior to the
adjudication hearing.5 In a written docket order, the family court ruled as follows:
Cont. to 10/1/07 @ 1:30 for adjudication. Children
remain in Foster Care and reported to be progressing. No
Contact provisions are amended to permit therapeutic
contact at the discretion of Ms. Robertson, Phoenix
Preferred Care. Payment of Feinberg Report costs to be
In the videotaped record from August 27, 2007, the court stated that the matter
should be continued pending receipt of a complete copy of the Feinberg report.
The adjudication hearing was finally held on October 1, 2007, 112 days after the
children had been temporarily removed by the family court, or sixty-seven days
past the forty-five-day deadline contained in KRS 620.090(5).
Pursuant to the clear and mandatory terms of KRS 620.090(5), the
family court was required to hold the adjudication hearing within forty-five days of
the children’s removal, or to extend the time period by written order setting forth
the need to extend the time and that the extension would be in the children’s best
interests. Such mandatory terms are in place in order to give effect to the express
legislative purpose that “all parties are assured prompt and fair hearings.” KRS
The Feinberg report in the record contains a statement that it is not a comprehensive custodial
report. We note that no one obtained the complete Feinberg report because an additional $1,500
fee would be assessed for the complete report. Neither the mother nor the father had the required
600.010(2)(g). In the present case, although the family court did make some
limited oral findings, it failed to make any written findings to justify its three
continuances of the adjudication hearing. Therefore, we must reverse the family
court’s orders finding the children dependent based upon the violation of the fortyfive-day limitation in KRS 620.090(5).
Even if we were to consider the court’s oral findings, the reasons cited
for the multiple continuances would not justify the extension of time in the present
matter. The reason cited for the July 23rd continuance was that the children needed
time to adjust. However, by that time, the children had already been in counseling
for many months and had been in therapeutic foster care for the preceding six
weeks. Neither the record nor the family court’s oral findings specify how
additional time in foster care and counseling would have been in the children’s best
Regarding the August 27th continuance, the Cabinet indicated that it
needed to obtain the completed Feinberg report. However, the Feinberg report was
dated February 6, 2007, and is located in the record with a “filed” stamp dated June
11, 2007. Therefore, the Cabinet had more than enough time to obtain the
completed Feinberg report, or to at least bring the problem to the attention of the
family court prior to the August 27, 2007, hearing date. Accordingly, we hold that
neither prong of the statutorily mandated test to grant an extension of time had
Based on this holding, the mother’s arguments regarding the absence
of a basis for the court’s findings of dependency are moot. Therefore, we will not
address them. However, we note that it appears from the record that the court did
have the best interests of the children at heart. Furthermore, it appears that the
children did improve while in the custody of the Cabinet and in foster care.
For the foregoing reasons, the orders of the Pulaski Family Court
finding the children to be dependent are reversed.
NICKELL, JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE
CAPERTON, JUDGE, DISSENTING: Today we consider the
decisions of our family courts concerning our children under KRS 620.090(5). It is
true that KRS 620.090(5) requires a disposition within 45 days of commencement
of the action, and a continuance beyond such time is to be in writing. The court’s
extension of time to conduct a final disposition requires the court to make “written
findings establishing the need for the extension and after finding that the extension
is in the child’s best interest.” KRS 620.090(5). The family court sub judice made
Next we must consider whether the actions of the family court warrant
affirmation, reversal, or other appropriate action. The history of the case suggests
that the family court had dealt with the family situation for a period of time and
was likely well-informed of the circumstances in this particular matter. A hearing
was held and the family court made disposition, albeit not within the 45 day period
and not with the required “written findings.”
Under CR 76.12(8)(c)(i), our Court may “accept the Appellant’s
statement of the facts and issues as correct . . . .” when the Appellee fails to file a
brief. I hasten to add that the remainder of the options under the rule are in the
disjunctive, thereby allowing us to consider the issues and render an appropriate
Respectfully, I would remand to the family court for the required
written findings, perhaps nunc pro tunc.
BRIEF FOR APPELLANT:
No brief for appellees.