Bodacious A. McCullaugh v. Commonwealth of Kentucky

RENDERED: APRIL 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0101-ME

BODACIOUS A. MCCULLAUGH APPELLANT

APPEAL FROM MEADE CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 19-CI-00286

COMMONWEALTH OF KENTUCKY; APPELLEES COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; DENNIS TUCKER; AND C.R.T., A MINOR

OPINION AND ORDER DISMISSING

** ** ** ** ** BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Bodacious A. McCullaugh brings this appeal from a December 30, 2019, Order of the Meade Circuit Court denying McCullaugh’s petition for immediate entitlement of her minor child. For the reasons stated, we dismiss this appeal.

On August 20, 2019, the Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet) filed a dependency, neglect, or abuse action as to McCullaugh’s minor child in the Meade District Court (Action No. 2019-J-0120). On that same day, the district court rendered an emergency custody order placing the child with the Cabinet. (Kentucky Revised Statutes (KRS) 620.060). Later that day, the district court conducted a temporary removal hearing, and a temporary removal order was rendered awarding the Cabinet temporary custody of the child. KRS 620.080; KRS 620.090.

As a consequence, McCullaugh filed a petition for immediate entitlement to custody in the Meade Circuit Court pursuant to KRS 620.110. By order entered December 30, 2019, the circuit court denied McCullaugh’s petition for immediate custody. On January 15, 2020, McCullaugh timely filed a notice of appeal of the order denying McCullaugh’s petition for immediate custody.

On March 30, 2021, this Court entered a Show Cause Order directing McCullaugh to show good cause why this appeal should not be dismissed as moot. Therein, the Court noted that the record revealed “a dispositional hearing was scheduled for July 14, 2020, and from our review of the docket, it appears that a dispositional order was entered on July 16, 2020.” Show Cause Order at 2. As explained in the order:

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This Court has interpreted KRS 620.110 as providing a mechanism of relief for “[a]ny person aggrieved by the issuance of a temporary removal order.” [B.D.] v. Commonwealth, Cabinet for Health and Family Servs., 426 S.W.3d 621, 622 (Ky. App. 2014). This statutory mechanism is necessary because a temporary custody by its very nature is nonfinal and interlocutory; thus, under KRS 620.110, an aggrieved person may file an original action in circuit court.

In this case, it appears that the district court’s temporary custody order was supplanted by a subsequent adjudication order and a dispositional order. In dependency, neglect, and abuse cases, the disposition order is the final order from which an appeal may be taken. J.E. v. Cabinet for Health and Family Servs, 553 S.W.3d 850, 852 (Ky. App. 2018). If a disposition order was entered after the appeal was filed, this appeal has been rendered moot, and must be dismissed as we are deprived of subject matter jurisdiction. See Commonwealth, Bd. of Nursing v. Sullivan Univ. Sys. Inc., 433 S.W.3d 341, 344 (Ky. 2014).

Show Cause Order at 3. The Court of Appeals also directed McCullaugh to file a response no later than ten days from the date of entry of the Show Cause Order. The Court cautioned McCullaugh that “[f]ailure to response shall result in immediate dismissal of this appeal.”

More than ten days have lapsed since entry of the March 30, 2021, Show Cause Order, and McCullaugh has failed to respond to said order. Based on the legal authority cited, we have no alternative but to dismiss this appeal as moot.

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Therefore, this Court hereby ORDERS that Appeal No. 2020-CA-0101-ME is DISMISSED.

ALL CONCUR.

ENTERED: _April 30, 2021____ ___/s/ Jeff S. Taylor____________ JUDGE, COURT OF APPEALS

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

George R. Carter Louisville, Kentucky

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