MELISSA A. v. JENELL C.
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RENDERED:
NOVEMBER 23, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2005-CA-000665-ME
MELISSA A.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M. GRIFFIN, JUDGE
ACTION NO. 02-CI-00621
v.
JENELL C.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, KNOPF, AND McANULTY, JUDGES.
KNOPF, JUDGE:
Melissa A. appeals from an order of the Daviess
Circuit Court, entered February 28, 2005, awarding permanent
custody of Melissa’s two children, T.A. and D. A., to Jenell C.,
the children’s paternal grandmother.
Melissa contends that the
trial court abused its discretion by refusing to interview the
older child, T.A.
She also contends that the court’s custody
ruling was erroneous in that it does not serve the best
interests of the children.
We affirm.
Jenell initiated this matter in May 2002.
At that
time she had been the children’s temporary custodian and their
sole source of care and support for about three years, since
shortly after D. A.’s birth in February 1999 when both parents,
Melissa and James A., were incarcerated on drug charges.
who was born in June 1995, was then not quite four.
T. A.,
Melissa
testified that she was probated and spent 2000 and 2001 living
with her parents.
She admitted that she continued to use drugs
during those years and did not seek the return of her children
because she did not consider herself stable and dependable.
In
early 2002 she was convicted of a misdemeanor paraphernalia
offense and was sentenced to several months in jail followed by
drug rehabilitation.
February 2003.
The rehabilitation program ended in
In April 2003, nearly a year after Jenell filed
her petition, Melissa filed her answer contesting Jenell’s claim
and seeking custody of the two children. 1
A domestic relations
commissioner heard the matter in November 2003, then, following
the recusal of both judge and commissioner, the matter was
resumed before a second commissioner in February 2004.
For
reasons not apparent from the record, the second commissioner
did not issue his recommended order until December 2004.
Relying primarily on testimony by a therapist and a clinical
1
James A., the father, did not contest his mother’s claim.
James died during the pendency of the action.
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psychologist who were treating the children and by a social
worker who had investigated charges that Jenell had neglected T.
A., the commissioner found that upsetting the children’s custody
regime would not be in their best interest and so recommended
that Jenell be awarded permanent custody.
The trial court
adopted the commissioner’s recommendation by order entered
February 28, 2005.
It is from that order that Melissa has
appealed.
Melissa claims that she has turned her life around.
She concedes her neglect of the children from before D. A.’s
birth (D. A. was born with methamphetamine in his system) until
her 2002 arrest and conviction, but asserts that she has
remained drug-free since May 30, 2002, and has committed herself
to making up for her past absence from the children’s lives.
She testified that she had been steadily employed as a manager
in a fast-food restaurant for several months, and the social
worker for the state found her living quarters at her parents’
house suitable for the children.
Melissa also presented
evidence tending to show that Jenell treated the children
unequally, attending more to D. A. while punishing T. A. unduly.
Lay testimony that Jenell abused T. A., however, was
contradicted by other lay witnesses and was not borne out by any
of the more objective professional witnesses.
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On the contrary, the children’s therapists both
testified that D. A. was thoroughly bonded with Jenell and
terrified of being separated from her, and that T. A., although
eager to resume contact with her mother, was torn between
wanting that renewed contact and wanting not to loose contact
with Jenell.
Both therapists strongly recommended that D. A.’s
custody not be transferred and warned that because T. A. was a
strong-willed child she was apt to pose discipline problems for
any caretaker.
As the parties note, under KRS 403.270 custody
disputes are to be resolved “in accordance with the best
interest of the child,” which is a factual finding this Court
reviews only for clear error. 2
Here, evidence that Jenell had
taken good care of the children in the past and that she
remained able to do so, together with the therapists’ testimony,
was substantial evidence supporting the court’s finding that
transferring the children’s custody from Jenell to Melissa would
not be in their best interest; thus, the Court’s finding may not
be disturbed.
This is so notwithstanding the fact that the
commissioners and the trial court rejected Melissa’s repeated
request that they interview T. A.
Melissa contends, correctly,
that in making its best-interest finding the trial court is
2
Largent v. Largent, 643 S.W.2d 261 (Ky. 1982).
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obliged to consider “the wishes of the child as to his
custodian,” and that failure to consider this or any of the
other factors enumerated in KRS 403.270 constitutes an abuse of
discretion.
The trial court committed such an abuse, she
maintains, by declining to interview T. A. concerning her wishes
and Jenell’s alleged abuse.
Whether to interview the child,
however, is discretionary with the court, 3 the decision depending
on such factors as the child’s age and maturity, other evidence
of the child’s wishes, and other overriding best-interest
factors. 4
Although a suitably mature child’s wishes may be
entitled to substantial weight, 5 a child’s wishes will seldom be
dispositive of the real question before the court, which is the
child’s best interest. 6
We are not persuaded that the trial court abused its
discretion in this case.
T.A. was only nine years old at the
time the trial court made its best-interest determination, not
old enough to make a mature assessment of her own best
3
KRS 403.290; Brown v. Brown, 510 S.W.2d 14 (Ky.App. 1974).
4
Sanders v. Busch, 123 S.W.3d 311 (Mo.App. 2003); McDowell v.
McDowell, 868 P.2d 1250 (Mont. 1994); Annotation, “Propriety of
Court Conducting Private Interview with Child in Determining
Custody,” 99 ALR 2nd 954 (1965).
5
Lewis v. Lewis, 343 S.W.2d 146 (Ky. 1961).
6
Shepherd v. Shepherd, 295 S.W.2d 557 (Ky. 1956); Annotation,
“Child’s Wishes as Factor in Awarding Custody,” 4 ALR 3rd 1396
(1965).
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interests, particularly an assessment of her own need for
discipline.
The court, moreover, had been presented with
overwhelming evidence that D. A.’s custody should not be changed
and properly finds that T. A.’s interest would not be served by
being separated from her brother even if she voiced a preference
for living with her mother.
Finally, the court had other
evidence tending to show that T. A. resented what she perceived
as Jenell’s favoritism, but could not take that possible
resentment into account without burdening the child with a sense
of having betrayed either her mother or her grandmother by
testifying.
All of these are legitimate reasons justifying the
trial court’s decision not to interview T. A.
Because that decision did not constitute an abuse of
the trial court’s discretion, and because substantial evidence
supports the court’s finding that the children’s best interest
will be served by remaining in Jenell’s custody, we affirm the
February 28, 2005, order of the Daviess Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Austin
Owensboro, Kentucky
Christopher G. Safreed
Moore, Malone & Safreed
Owensboro, Kentucky
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