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C.K. v. Cabinet for Health and Family Services

Court of Appeals of Kentucky

May 19, 2017

C.K. APPELLANT
v.
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; A.D.; K.D.; AND M.K., A CHILD APPELLEES

         APPEAL FROM MASON CIRCUIT COURT HON. STOCKTON B. WOOD, JUDGE ACTION NO. 15-CI-00254

          BRIEF FOR APPELLANT: Kimberly C. Morton Maysville, Kentucky

          BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Jacqueline S. Wright Maysville, Kentucky

          BRIEF FOR APPELLEE, A.D.: Laken Gilbert Maysville, Kentucky

          BRIEF FOR APPELLEE, K.D.: Debra S. Rigg Newport, Kentucky

          BEFORE: J. LAMBERT, MAZE, AND THOMPSON, JUDGES.

          OPINION

          MAZE, JUDGE.

         C.K. appeals from the Mason Circuit Court's denial of his petition for immediate entitlement to custody of his daughter M.K. He argues that the trial court failed to conduct the proper legal analysis before it denied his petition. We affirm the circuit court.

         Background

         On the morning of October 20, 2015, seven-year-old M.K.'s home in Maysville, Kentucky was destroyed by fire. Although M.K. managed to escape, the fire claimed the lives of her mother and her brothers. Shortly thereafter, social workers with the Commonwealth of Kentucky Cabinet for Health and Family Services (hereinafter "the Cabinet") secured an emergency custody order granting temporary custody of M.K. to the Cabinet and placing M.K. with her maternal grandmother (hereinafter "grandmother"). M.K.'s father, C.K. (hereinafter "Father"), lives in South Carolina, and neither the Cabinet nor the child's Kentucky family knew Father's contact information. At the time of the fire, Father had not visited M.K. in more than two years.

         One day after securing the emergency custody order, the Cabinet filed a petition alleging dependency in Mason District Court. Father was present at the corresponding temporary removal hearing on October 22, 2015, and he requested custody of M.K. with the intention of eventually taking her back to South Carolina. The district court nevertheless concluded that it was in M.K.'s best interests that grandmother have temporary custody, citing the fact that Father had not visited in-person with M.K. in over two years. In addition, the district court pointed out that M.K. had never been to South Carolina. However, the court ordered a background check on Father and a home evaluation for Father's home in South Carolina. The district court also ordered daily, face-to-face contact between Father and M.K. either in-person in Mason County or via telephone or Skype. Father availed himself fully of these visitation rights.

         Following the temporary removal hearing, Father filed a petition for immediate entitlement to custody pursuant to KRS[1] 620.110. During a hearing on the petition, the Mason Circuit Court heard extensive testimony from many interested parties and counsel, including Father, Father's wife, grandmother, Meagan Patton, M.K.'s school guidance counselor, and M.K.'s guardian ad litem (GAL). Grandmother testified that, prior to the fire, she typically saw M.K. on a daily basis, because her daughter frequently needed her help with child care. Meagan Patton, a social worker with the Cabinet, testified that M.K. had personal items at her grandmother's home and it was obvious that she spent time there prior to the house fire. She also testified M.K. was "probably the most traumatized child I've ever interviewed in my five years of doing this occupation, " and Ms. Patton asserted that M.K. needed as many bonds to as many people as possible following her horrific loss.

         In his testimony, Father admitted he had not seen M.K. in person since February or March of 2013, but he attributed this fact to the cost of traveling to Kentucky. He also stated that he had repeatedly attempted to call M.K. during that time, but that the child's late mother would not answer his calls. Finally, Father acknowledged on cross-examination that it would not be in M.K.'s best interest to take her back to South Carolina immediately, and he indicated that a period of transition was appropriate. During the case, Father had taken up temporary residence in Mason County where, presumably, he would stay during this transition period.

         The circuit court denied Father's petition and issued findings of fact, conclusions of law, and judgment on December 9, 2015. The court made no finding as to Father's fitness as a parent, but stressed that grandmother was M.K.'s only close relative who could be found when M.K.'s mother and siblings died. The circuit court observed that grandmother and M.K. shared a close bond, while Father had not been in his daughter's life for at least two years. The court acknowledged that Father would likely receive custody of M.K. in the future due to the law's preference for parental custody. However, the court concluded that removing M.K. from grandmother at that time would inflict further trauma on the child. Based on these findings and conclusions, the circuit court held that the district court's award of custody was not clearly erroneous. ...


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