GENOLA WEST v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 28, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-002589-MR
GENOLA WEST
v.
APPELLANT
APPEAL FROM PULASKI FAMILY COURT
HONORABLE DEBRA H. LAMBERT, JUDGE
ACTION NOS. 02-J-00287 & 02-J-00288 & 02-J-00289
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Genola West appeals from orders1 of the Pulaski
Family Court committing custody of her three children to the
Commonwealth’s Cabinet for Families and Children.
West contends
that the family court erred by finding that she neglected the
children by knowingly exposing them to drug manufacturing
activities and by permitting her husband, against whom a no1
The orders were entered September 30, 2003, and November 3,
2003.
contact domestic violence order was in effect, to care for them.
Convinced that substantial evidence supports these findings and
that the findings justify the family court’s dispositions, we
affirm.
During the evening of September 25, 2002, Pulaski
County police officers entered the residence of Genola and
Nelson West and discovered the implements and materials of a
methamphetamine lab apparently in the early stages of
production.
The police arrested Nelson, who admitted the drug
manufacturing, but claimed that his friends were making the drug
and that he was involved only to the extent of allowing the use
of his house.
children.2
A social worker took custody of Genola’s three
Genola, who had gone to work before the police began
their surveillance of the residence, did not arrive home until
about midnight.
By then the police had nearly finished their
investigation.
She told the police that she had not known of
Nelson’s drug manufacturing.
Following a removal hearing on September 27, 2002, the
Cabinet for Families and Children (CFC) obtained an order
granting it temporary custody of the three children.
Based on
the social worker’s testimony, the court found that the parents’
drug activity had placed the children at risk of injury and that
2
Two of the children are Genola’s by prior relationships and one
is hers and Nelson’s.
2
the risk was likely to be continuing.
submit to random drug screens.
It also ordered Genola to
Those orders remained in effect
following a pre-trial hearing on October 7, 2002, at which one
of the police officers testified about the drug paraphernalia he
found at the Wests’ residence.
The court scheduled the final custody adjudication for
early November 2002.
When the absence of certain witnesses
necessitated the postponement of the hearing, the court returned
custody of the children to Genola pending further proceedings.
Genola remained subject to the case plan CFC had devised for
her, which apparently required her to continue to submit to
random drug screens and to permit CFC workers to inspect her
home.
In early February 2003, Genola obtained a domestic
violence order against Nelson.
Nelson was to have no contact
with Genola or her family, although he was permitted visitation
with his son to be arranged through CFC.
The order was to
remain in effect until February 2006.
After several postponements of the final custody
adjudication, the matter was convened yet again on July 28,
2003.
Again one of the Cabinet’s witnesses did not appear, so
again the final hearing was postponed.
The Cabinet’s
representative testified, however, that Genola had been
neglecting the drug screens and that she had allowed Nelson to
3
have contact with the children in violation of the domestic
violence order.
When Genola admitted that Nelson sometimes
cared for the children while she was at work, the court ordered
that custody of the children be returned to CFC.
On August 11, 2003, the custody adjudication at last
commenced.
A police officer testified about methamphetamine
production and about the implements of production he had found
in the Wests’ residence.
According to the officer,
methamphetamine labs could be assembled quickly, that depending
on the method employed production of the drug required between
three and eighteen hours, and that the intermediate stage of the
process discovered in the Wests’ house could have been reached
in two or three hours.
Genola’s eldest son, who was about ten at the time,
testified that on the night of Nelson’s arrest he had been
asleep for three or four hours when Nelson and another man
awakened him.
Other men were downstairs who had him and his
brothers leave the house and wait in a car until a social worker
arrived and took them to CFC facilities.
He recalled seeing a
large jar that night containing an unusual substance, but said
that he had never before seen anything like that in the house
and had never heard his parents speak of drugs.
Upon Genola’s motion for a directed verdict, the
Cabinet conceded that the officer’s and the boy’s testimonies
4
alone did not show that Genola was aware of the manufacturing
that night.
It argued, however, that the entire evidence,
including police photographs of the scene showing the large
assortment of chemicals and implements used in the production,
some of which were found apparently stored in a toy box,
indicated that Genola was likely to have known of the presence
and the purpose of those materials.
Because the photographs had
been introduced at the October 7, 2002, pre-trial hearing,
before Genola had had an opportunity to consult with appointed
counsel, the court granted a continuance to permit her to recall
the police officer and cross-examine him regarding them.
That cross-examination took place on September 29,
2003, following which the court found that Genola had known of
Nelson’s drug manufacturing and that both parents had thus
neglected the children by exposing them to dangerous substances.
The court further found that Genola had neglected the children
by allowing Nelson to care for them in violation of the domestic
violence order.
At the disposition hearing on November 3, 2003,
the court awarded custody of one of the children to his father
and of the other two to CFC.
It is from the findings of neglect
and the adverse dispositions that Genola has appealed.
She
contends that the first finding of neglect is not based on
sufficient evidence that she was aware of Nelson’s drug making
5
and that the second was based on an allegation not properly
before the court.
Kentucky Revised Statute 600.020(1) provides in
pertinent part that an “abused or neglected child” is
a child whose health or welfare is harmed or
threatened with harm when his parent,
guardian, or other person exercising
custodial control or supervision of the
child: . . . (b) Creates or allows to be
created a risk of physical or emotional
injury as defined in this section to the
child by other than accidental means; . . .
(h) Does not provide the child with adequate
care, supervision, food, clothing, shelter,
and education or medical care necessary for
the child’s well-being.
KRS 620.060 – KRS 620.100 create a procedure whereby
abused or neglected children may be removed from their homes and
placed in the custody of CFC.
The removal is intended to
protect the child and to permit CFC to provide rehabilitative
services to the parents.
The burden of proving abuse or neglect
is on the complainant, CFC here, and the final “determination of
dependency, neglect, and abuse shall be made by a preponderance
of the evidence.”3
Genola insists that there was no evidence of drug
manufacturing at any time other than the night of Nelson’s
arrest.
The police officer’s testimony, moreover, that the
stage at which the manufacturing process had been discovered
3
KRS 620.100(3).
6
that night could have been reached in as little as two hours,
together with the child’s testimony that he had never before
seen jars in the house like the one he saw that night, imply
that Nelson’s friends brought the manufacturing implements to
the Wests’ home that evening after Genola had gone to work and
without her awareness.
Although Genola’s scenario is conceivable under the
evidence, we do not agree with her assertion that it must be
deemed as likely as any other scenario.
Particularly in light
of the photographs showing paraphernalia that appears to have
been stored in a closet and in the toy box, the trial court
could reasonably find it more likely than not that the men were
working at Nelson’s house because that is where the equipment
and supplies had previously been collected.
And Genola, the
trial court could reasonably infer, would more likely than not
have known what was there and why.
Because the presence of
volatile and poisonous chemicals poses an obvious risk of injury
to the children, the court did not err by finding Genola
neglectful on this ground.
Nor did the court err by finding her neglectful for
having failed to provide adequate care and supervision of the
children when, in violation of the DVO, she allowed Nelson to
watch them.
Genola contends that because CFC did not raise this
issue in its pleading, the trial court erred by addressing it.
7
As CFC correctly points out, however, CR 15.02 permits the trial
court to treat as pled any issue “tried by express or implied
consent of the parties.”
Because this issue was tried without
objection, the trial court did not abuse its discretion by
treating it as if it had been pled.4
In sum, the record contains sufficient evidence of
Genola’s neglect to support the court’s awards of custody to a
father of one child and to the Cabinet for Families and
Children.
Accordingly, we affirm the September 30, 2003, and
November 3, 2003, orders of the Pulaski Family Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ralph D. Gibson
Burnside, Kentucky
Carrie D. Wiese
Somerset, Kentucky
4
Nucor Corporation v. General Electric Company, 812 S.W.2d 136
(Ky. 1991).
8
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