TRENTON CLAY HATFIELD v. ALAN WALTERS; ROSE WALTERS; AMANDA WALTERS WOODS; JERRY HATFIELD; KATIE HATFIELD; AND COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN
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RENDERED:
FEBRUARY 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
(Opinion rendered September 17, 2004, withdrawn)
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002270-MR
TRENTON CLAY HATFIELD
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 99-CI-00587
ALAN WALTERS; ROSE WALTERS;
AMANDA WALTERS WOODS; JERRY HATFIELD;
KATIE HATFIELD; AND COMMONWEALTH
OF KENTUCKY, CABINET FOR FAMILIES
AND CHILDREN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Trenton Hatfield appeals from a judgment of
the Pulaski Circuit Court that awarded custody of his son, T.H.,
to the child’s maternal grandparents, Alan and Rose Walters.
Hatfield argues that the evidence that he allegedly abandoned
T.H. fails to satisfy the “clear and convincing” standard
required by KRS1 625.090.
After a careful review of the record,
we believe that the proper evidentiary standard was met.
Thus,
we affirm.
Hatfield and Amanda Walters Woods were married in
1993.
T.H. was born September 28, 1994.
When the child was
four months of age, Hatfield joined the military.
He was
initially stationed in Louisiana, where his wife and son later
joined him.
After the Hatfields separated in the summer of
1995, T.H. never again lived with his father, nor did he visit
Hatfield’s residence.
The Louisiana decree dissolving the
Hatfields’ marriage neither mentioned T.H. nor made any
provision for his support.
Amanda suffers from emotional and psychiatric
disorders and has been unable to care for T.H. by herself.
After she and her son returned to Kentucky in 1995, T.H. lived
with the Amanda’s parents, the Walterses.
contact with T.H. during the next year.
Hatfield had no
He did not provide the
Walterses with any financial support for T.H.
He contends that
he paid Amanda $100 each month to comply with an oral agreement.
This evidence was disputed by the Walterses.
In October of 1996, Amanda moved close to her parents.
Hoping that Amanda’s mental health had improved and that she
would be able to care for her son, the Walterses allowed T.H. to
1
Kentucky Revised Statutes.
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reside with his mother for several months.
Nevertheless, the
Walterses continued to be a frequent presence in T.H.’s life,
providing both financial assistance and emotional sustenance to
him.
In 1997, Amanda remarried and gave birth to a second
child.
T.H. returned to the Walterses’ residence, where he more
or less essentially remained until the fall of 2001.
During
this time, Dr. Glenn Blackburn, a pediatrician and T.H.’s
primary physician since his birth, diagnosed T.H. as suffering
from Attention Deficit Hyperactive Disorder (ADHD) and
prescribed a regimen of drugs for the child.
Dr. Blackburn also
diagnosed T.H. with bi-polar disorder, the same mental disorder
affecting his mother.
Upon petitioning the court, Jerry and Katie Hatfield,
Trenton Hatfield’s parents, were granted regular visitation with
T.H. in 1999.
The elder Hatfields are the custodians of another
of Hatfield’s children, an eleven-year-old son from a previous
marriage.
Tensions arose between the two sets of grandparents
partly because T.H.’s paternal grandparents did not agree with
Dr. Blackburn’s medical diagnoses and treatment of T.H.
They
refused to give T.H. his medicine during their visitations with
him.
Their actions and the resulting conflict with the
Walterses had significant physical and emotional consequences
for T.H.
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During the four-year period from 1997 to 2001, neither
the Walterses nor T.H. received telephone calls or any other
form of communication from Hatfield.
Hatfield testified that he
was not even aware that T.H. was living with the Walterses
during those years.
He saw his son at his parents’ home only on
the rare occasions when he was on leave from the military.
In
October 1999, after the Walterses applied for a state medical
card for T.H., Hatfield was ordered to pay $100 per month for
T.H.’s support.
In January of 2001, Hatfield voluntarily
increased that amount to $150 per month.
In August 2001, the Walterses petitioned the Pulaski
District Court to be appointed as T.H.’s guardians in order to
enroll him in school.
On September 5, 2001, they were granted a
limited guardianship of the child.
deployed to Kosovo.
Hatfield had recently been
He moved to vacate that order and argued
that his mother was better qualified to serve as T.H.’s
guardian.
A legal battle between the sets of grandparents
ensued.
The Walterses, who had lost their own son as a result
of an accident in June of 2001, testified that they were
constantly harassed by Hatfield’s parents and that they have
became fearful for their own safety as well as that of T.H.
T.H.’s guardian ad litem petitioned the court to place the child
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in the custody of the Cabinet for Families and Children pending
the outcome of the custody dispute.
After returning from Kosovo in December 2001, Hatfield
filed a petition in the Pulaski Circuit Court seeking permanent
custody of T.H.
The Walterses also petitioned for custody and
alleged that Hatfield was not a fit parent.
conducted in May 2002.
A hearing was
Neither Amanda nor Hatfield’s parents
participated in or testified at the hearing.
The Walterses testified about the care that they had
provided to T.H. over the years, noting that they had received
only one telephone call from Hatfield during that entire time.
During that conversation, which occurred during 1995 or 1996,
Hatfield promised to send clothes for T.H.
clothes or ever call again.
But he did not send
The Walterses also told the court
about T.H.’s multiple health problems and the difficulties which
resulted when the Hatfield grandparents withheld his medication.
Hatfield testified that he had been married three
times and that he was currently residing with his 23-year-old
fiancée in Fayetteville, North Carolina, near Fort Bragg.
said that he earned about $43,000 per year.
He
Although his
fiancée had not met T.H. prior to the custody hearing, Hatfield
testified that they could provide a loving and stable home for
T.H.
However, he added that he had no plans to have his older
son reside in his household since his parents had done a
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wonderful job of raising that child.
He had left his first son
with his parents because he did not want to uproot him.
In its judgment of June 7, 2002, the trial court found
that T.H.’s best interest would be most beneficially served by
placement with the Walterses.
The court concluded that they had
established by clear and convincing evidence that Hatfield was
“unfit or unsuited to the trust of exercising custody of [T.H.]”
-- especially in light of the child’s delicate medical
situation.
The trial court omitted a recitation of any of the
specific criteria listed in KRS 625.090(2) in support of its
conclusion that Hatfield was unfit.
reversed the judgment.
Accordingly, this Court
The matter was remanded to the Pulaski
Circuit Court with directions that it make findings pursuant to
the specific statutory criteria and that it determine anew
whether to award custody of T.H. to Hatfield or to the
Walterses.
On remand, the trial court initially awarded custody
to Hatfield.
Relying on the definition of abandonment in O.S.
v. C.F., Ky.App., 655 S.W.2d 32, 34 (1983), as a “settled
purpose to forego all parental duties and relinquish all
parental claims of the child,” the trial court reasoned as
follows:
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The Court’s [prior] finding that
[Hatfield] was unfit arose simply from the
fact that he had deferred the rearing of his
child to other persons, while he pursued
other activities. However honorable those
other activities may have been, they were
accorded by [Hatfield] a higher priority
than tending to his child. He pursued his
military career and allowed other people to
raise his child. In doing to, he allowed
his child to become acclimated in the home
of Alan and Rose Walters, and dependent upon
Alan and Rose Walters for his daily care and
nurturing. [Hatfield’s] decisions allowed
his son to become rooted in its
grandparents’ home. His more recent
decision to become active as a father has
the result of uprooting his son from the
relations he has established in his father’s
absence. It is in that sense alone that the
Court found [Hatfield] to be “unfit” to rear
his child.
. . .
[Hatfield] was uninvolved in the
child’s life for periods of more than 90
days on numerous occasions. His devotion to
duty away from the home evinced an intention
to forego parental duties and let others
control his child’s growth and development.
He has maintained relatively little contact
with his child throughout the child’s life,
seeing him ordinarily no more than three
times a year for relatively short visits.
He did not maintain frequent and regular
contact with the child through letters or email. Although he plainly abrogated his
parental role for several years, his
indifference did not forego “all” of his
parental duties since he did continue
through his work to support the child.
Following the new judgment, the Walterses and the
child’s guardian ad litem moved the trial court to alter, amend,
-7-
or vacate its judgment.
Their motions were based on our recent
decision in Kimbler v. Arms, Ky.App., 102 S.W.3d 517 (2003).
In
that case, this Court elaborated upon the definition of
abandonment in the context of civil litigation to encompass
willful behavior such as “withholding of parental care,
presence, opportunity to display voluntary affection and neglect
to lend support and maintenance.”
Id. at 522.
Abandonment was
also broadly defined to mean “failure to fulfill responsibility
of care, training and guidance during the child’s formative
years.”
Id. at 522-523.
In its final order of August 26, 2003, the trial court
concluded that the “clear and convincing evidence show[ed] that
[Hatfield] had abandoned [T.H.] for multiple periods in excess
of 90 days since birth.”
Because the Walterses had acted as the
“primary caregivers and nurturers” of T.H., the trial court
awarded them custody of their grandson while granting Hatfield
reasonable visitation on holidays and at other times.
This
appeal followed the denial of Hatfield’s motion to alter, amend,
or vacate the judgment.
The sole issue presented by this appeal is whether the
trial court properly determined as a matter of law that Hatfield
abandoned T.H.
Hatfield claims that the weight of the evidence
does not satisfy the standard of clear and convincing evidence
required by KRS 625.090.
He argues that the facts establish
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that he has always provided financial support for T.H.; that he
has “made efforts to visit his son when permitted by the
military”; and that his “military commitment and sacrifice have
been the main reasons behind his periodic absence from [T.H.’s]
life.”
(Appellant’s brief, p. 6.)
Although he was physically
absent from T.H., Hatfield urges that the evidence does not
support the conclusion that he intended to “forego ‘all’ of his
parental duties since he provided significant voluntary support
for [T.H.].”
(Id. at p. 9.)
After a careful review of the record, we are satisfied
that the trial court did not err in concluding that the
Walterses met their burden of proving by clear and convincing
evidence that Hatfield abandoned T.H. as contemplated by KRS
625.090(2)(a).
Because the Walterses did not seek to be treated
as T.H.’s de facto custodians, they were required to prove by
clear and convincing evidence either that Hatfield was unfit or
that he has waived the right to custody by his conduct.
v. Sorrell, Ky., 136 S.W.3d 465, 467 (2004).
The concept of
proof by clear and convincing evidence:
relates more than anything else to an
attitude or approach to weighing the
evidence, rather than to a legal formula
that can be precisely defined in words.
Id., at 468.
Clear and convincing proof does not
necessarily mean uncontradicted proof.
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Vinson
It
is sufficient if there is proof of a
probative and substantial nature carrying
the weight of evidence sufficient to
convince ordinarily prudent-minded people.
Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934).
The trial court recited the following incidents or
conduct in concluding that Hatfield abandoned T.H.:
Hatfield’s
failure to attempt to have any relationship with T.H.; his
failure to bear any significant responsibility for his child
(other than a minimal amount of financial support) during the
seven years between his divorce from T.H.’s mother and the
custody hearing; his failure ever to contact the Walterses or to
inquire about T.H.’s well-being or needs; his failure to confer
with T.H.’s pediatrician (prior to the custody dispute) about
his child’s significant medical problems; his failure to
initiate any personal contact with T.H. or to send him letters,
cards, or gifts on birthdays or at Christmas; and his pattern of
permanently delegating responsibility for his children to
others.
The evidence reveals that Hatfield’s failure to
maintain a relationship or to have any personal contact with his
son is not attributable to the actions of the Walterses or of
his former wife, Amanda.
Hatfield does not contend that the
Walterses discouraged or thwarted his attempt to contact T.H.
There is no evidence that the Walterses attempted to undermine
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Hatfield’s parental relationship or that they created any
obstacle to his access to his son.
On the contrary, the
evidence discloses that the Walterses have pictures of Hatfield
in their home and that they have told T.H. about his father.
The Walterses always transported T.H. to and from his visits
with Hatfield’s parents.
Hatfield’s explanation for ignoring T.H. is that he
was serving his country in the military.
Hatfield’s assignment
kept him physically out of the country for eight months of
T.H.’s life; however, he was stationed in the eastern part of
the United States for many other months.
He failed to visit
with his child while he was stateside, arranging to see him on
approximately three occasions.
He gave no accounting as to why
he did not call or write to his little boy.
He did not
communicate with his child’s caregivers, nor did he demonstrate
interest in his son during his critically important formative
years.
Kimbler, supra, at 522-523.
Hatfield argues persuasively and sympathetically that
he is being penalized by a callous court system for the logical
and necessary consequences of serving his country.
the case.
Such is not
Many thousands of parents in military service manage
to keep in touch intimately and frequently with their families.
Distance and inconvenience are not impediments for them to
communicate with loved ones, to exchange photos, to reiterate
-11-
messages of love and affection.
Cell phones and the internet
have become a blessing of modern technology for absent parents.
However, there is a vast distinction between absence and
indifference.
K.R.S. 625.090(2) and pertinent case law require us to
look beyond the reason for Hatfield’s non-involvement with his
son and to focus instead on its impact on this child.
Abandonment has been equated with unfitness as a matter of law –
with regrettable semantic innuendoes.
Unfitness to the lay mind
connotes neglect or abuse -– perhaps even violent or criminal
conduct.
However, for purposes of a custody decision, the legal
definition of unfitness has evolved into what child
psychologists have taught us to recognize as the harm resulting
from the withholding of intangible emotional contacts from a
child that are critically necessary to normal development.
One
is legally deemed to have abandoned a child by absenting himself
for prolonged periods and refraining from interacting by
demonstrating love and affection.
Such a parent is deemed to be
unfit – or at least to have waived his superior right to
custody.
Vinson, supra, at 468.
We are persuaded that the trial court was correct in
determining that the extreme degree of detachment and lack of
involvement exhibited by Hatfield toward his son constitutes
abandonment as a matter of law.
Hatfield consistently ignored
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his son for seven years.
during those years.
He did provide some financial support
But that sporadic support is only one of
the many factors to be considered.
See, Vinson supra, at 470.
Thus, we find no abuse of discretion in the trial court’s award
of custody to the only two people who have consistently provided
stability, attachment, care, and emotional constancy in T.H.’s
life.
This is a sad and difficult case.
From the earliest
days of his life, T.H. has been the subject of legal wrangling.
Hatfield obviously cares for his son as he has pursued his
custody action vigorously.
We emphasize that this is a custody
case rather than an action to terminate parental rights.
Therefore, Hatfield will have the right and opportunity to
establish a relationship with T.H. through visitation.
We affirm the judgment of the Pulaski Circuit Court.
GUIDUGLI, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS WITH SEPARATE OPINION.
KNOPF, JUDGE, CONCURRING OPINION:
While I concur in
the result reached by the majority, I believe that the prior
panel’s opinion unduly narrowed the issue to be considered by the
trial court upon remand.
In Vinson v. Sorrell, 136 S.W.3d 465
(Ky., 2004), the Kentucky Supreme Court recently explained that
when a non-parent does not meet the statutory standard of de
facto custodian, the non-parent pursuing custody must prove
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either of the following two exceptions to a parent's superior
right or entitlement to custody:
(1) that the parent is shown by
clear and convincing evidence to be an unfit custodian, or (2)
that the parent has waived his or her superior right to custody
by clear and convincing evidence.
Id. at 468.
Under the first exception, a parent’s abandonment of a
child may prove unfitness.
“Abandonment” must be shown under the
standards set out in KRS 625.090(2)(a), relating to termination
of parental rights.
Lacking the guidance of Vinson v. Sorrell,
the prior panel of this Court focused on the first exception.
Since that decision is now law of the case, the trial court and
the majority confine their inquiry to that issue.
The problem with the approach taken by the prior panel
is that it equates abandonment for purposes of custody with
abandonment for purposes of termination of parental rights.
In
its June 19, 2003, order the trial court expressed some
frustration with this standard, stating, “[i]f the law is such
that even a career criminal’s incarceration cannot be found to
constitute abandonment, it is inconceivable that the mere benign
indifference to fatherhood shown by a career soldier could be
deemed to be ‘abandonment’.”
Thus, the trial court initially
concluded that it could not find that Hatfield had abandoned T.H.
despite his nearly total lack of involvement in the child’s life
for several years.
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Upon reconsideration, however, the trial court found
that Hatfield’s conduct constituted an abandonment of T.H.
I am
concerned about that lack of specificity of that finding and the
court’s contradictory finding in its earlier order.
Nevertheless, I agree with the majority that the trial court’s
application of KRS 625.090(2)(a) to the facts of this case was
not clearly erroneous.
Moreover, under the second exception, a parent may
waive his or her superior right to custody through an intentional
and voluntary relinquishment of that right.
Vinson v. Sorrell,
supra at 469, citing Greathouse v. Shreve, 891 S.W.2d 387 (Ky.
1995).
In determining whether a parent has waived his or her
right to custody, a court may consider the length of time the
child has been away from the parent, circumstances of separation,
age of the child when care was assumed by the non-parent, time
elapsed before the parent sought to claim the child, and
frequency and nature of contact, if any, between the parent and
the child during the non-parent's custody.
Id. at 470, citing
Shifflett v. Shifflett, 891 S.W.2d 392, 397 (Ky., 1995) (Spain,
J., concurring).
The trial court’s findings clearly justify the
conclusion that Hatfield waived his superior right to custody of
T.H.
As the trial court and the majority correctly note,
Hatfield pursued his military career for seven years and
knowingly allowed T.H. to be raised by non-parents, including the
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Walterses.
Therefore, I would hold that Hatfield has waived his
superior right to custody, and consequently the trial court did
not abuse its discretion by awarding custody of T.H. to the
Walterses.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Tommie L. Weatherly
London, Kentucky
Charles J. McEnroe
Somerset, Kentucky
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