N.L. v. W.F., Modification of Custody in a Dependency, Neglect and Abuse proceeding; Prematurity of Appeals and Finality of Orders

N.L. v. W.F., 2010-CA-001787-ME and 2011-CA-000091-ME

Published:   Reversing and Remanding

County:  Greenup

Mother appealed FC order awarding custody of children to children’s fathers.


Mother had two children from two separate fathers.  After altercation with her boyfriend, Cabinet filed petition dependency, neglect and abuse (DNA) petitions for both children.  Children were placed with Father 1’s parents after temporary removal hearing.  At disposition hearing, Child 1 was placed with his father and Child 2 was placed with Father 1’s parents but Father 2 was allowed to take Child 2 with him to his home in Florida.  FC then scheduled a permanent custody hearing.  At permanent custody hearing, Mother asserted that permanent custody hearing could not be held as neither Father had filed a Motion for Permanent Custody.  FC disagreed and proceeded with the hearing, and evidence at the hearing reflected that Mother had history of alcohol and substance abuse but was making progress on Cabinet’s case plan.  Cabinet offered evidence regarding the Fathers’ criminal history and home environment.  At the hearing, each Father orally requested that he be awarded custody of his Child.  FC made oral finding, based upon preponderance of the evidence, that it was in Children’s best interests to be in custody of their Fathers with supervised visitation to Mother, citing Mother’s lifestyle involving drugs and alcohol, though recognizing she was currently doing well.  FC completed AOC-DNA-9 form for each child, reducing oral order to written form.  In Findings of Fact section, FC checked that it had considered several KRS 403.270 factors, but provided no additional specific findings in the provided space on the form.  Mother filed a timely CR 59.05 motion to alter, amend or vacate, asserting that FC could not modify custody on its own motion; that Cabinet was under duty to make reasonable efforts to return children; that FC ignored protective needs of Children given Fathers’ admitted criminal or substance abuse histories; and that FC failed to make written findings in support of custody determination.  FC issued order denying Mother’s motion but stated in the Order that it would issue subsequent written order with more detailed findings.  This order included no finality language.  Mother filed notice of appeal from the Order denying her motion to alter, amend or vacate.  FC subsequently issued its Order including detailed findings of fact, including another denial of Mother’s motion to alter, amend or vacate.  The findings included general statements regarding children’s relationships with their fathers and Father 2’s parents, existence of mother’s drug and alcohol problems, and recognition that Cabinet thought Fathers were appropriate and Guardian Ad Litem recommended placement with Fathers. 


Issue 1:  Did Mother properly appeal from FC’s initial denial of motion to alter, amend or vacate?

            CA noted that, for an Order to be final and appealable, Rules require that an order must either adjudicate all rights of all parties in a proceeding or lower court must issue finding that there is no just reason for delay as to an order resolving only a portion of all the rights of all the parties in a proceeding, and that portion of all of the rights of all of the parties must be finally resolved.  As the initial order did not include this language of finality, then it must have adjudicated all the rights of all the parties in order to be final and appealable.  CA found that the Order was inherently interlocutory because of its stated intention to make more detailed findings of fact.  However, Mother’s notices of appeals should not be dismissed, but should relate forward to FC’s order containing more detailed findings, per CR 73.02.

Issue 2:  Did FC err by conducting a permanent custody hearing, as neither Father filed a motion requesting a change of custody?

            CA held that KRS Chapter 620 procedural structure does not preclude a permanent custody hearing and award of custody, so long as the proper procedures are followed, but such a determination is not required under this statute. 

Issue 3:  Did FC err by granting custody to Fathers?

            Mother’s Orders of custody were not in record, so CA could not address the possible procedural deficit in Fathers’ failures to file motion for modification of custody, as CA had no knowledge of validity or content of orders and whether FC had jurisdiction to modify them.  However, CA could rule as to propriety of FC’s ultimate decision to award custody.  Custody determination in KRS Chapter 620 proceeding must follow standards in KRS 403.270.  CA found that FC failed to sufficiently consider and make findings related to KRS 403.270 factors, as FC made no separate finding, apart from pre-printed portion of AOC form, that custody awards were in children’s best interests, nor did ruling take Mother’s progress case plan or Fathers’ past legal issues. 

Reversed and remanded to FC. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates