T. (S.) VS. C. (H.), ET AL.
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RENDERED: MARCH 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001816-ME
S. T.
v.
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 07-CI-00104
M. R. C., A MINOR CHILD; H. C.;
AND J. C.
APPELLEES
OPINION
AFFIRMING IN PART AND
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: MOORE, TAYLOR, AND THOMPSON, JUDGES.
MOORE, JUDGE: S. T. appeals the order of the Lee Circuit Court rejecting the
amended report of the domestic relations commissioner (DRC) in this child
custody case. After a careful review of the record, we affirm in part regarding
whether the circuit court may consider an issue for which exceptions to the DRC’s
report were not filed; and we reverse in part and remand as to the circuit court’s
finding that the father was unfit.
I. FACTUAL AND PROCEDURAL BACKGROUND
M. R. C., a minor female child, was born on July 26, 2006. Her
mother is H. C. and her father is S. T. The mother and father have never married.
The child’s maternal grandfather is J. C. During the child’s short life, she has been
the subject of extensive litigation before the DRC and the circuit court on
numerous occasions, culminating in this appeal.
This litigation began approximately one week before the child’s first
birthday, when her father filed a petition for permanent custody or, alternatively,
for visitation. In his petition, the father stated that the child’s mother had lost
custody of the child pursuant to a temporary removal order and that the child
resided with the grandfather, who also had custody of another child of the mother.
That child is the half-brother of the child at issue.
An agreed order was entered, giving the father supervised visitation of
the child. Another agreed order was later entered, stating that the father and the
grandfather would share temporary joint custody of the child. However, the
grandfather subsequently moved to suspend visitation or, alternatively, for
visitation to be supervised, on the basis that the father had been arrested for driving
under the influence (DUI) while the child was in the vehicle with him.1
1
The father contends that the breathalyzer test he took was negative. Regardless, it appears
from the record that before stopping the father’s vehicle, the officer noticed the vehicle swerving,
and the father refused to submit to blood or urine tests.
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The Special Domestic Relations Commissioner entered his
recommendations, in which he found, inter alia, that the father had been stopped
by Bluegrass Airport Police in Lexington, Kentucky, at approximately 11:00 p.m.
on October 25, 2008, with the child in the car. The father was arrested and charged
with DUI -- 2nd offense, endangering the welfare of a minor, driving side to side,
possession of an open alcoholic beverage in a motor vehicle, and failure to notify
of his address change. The DRC found that, on the night of his arrest, the father
had refused blood and urine tests; the father was taken to jail; and the child was
placed in the care of the father’s sister for that night. The DRC noted that the
father had “prior convictions for DUI (2006), Possession of [a] Controlled
Substance, 3rd (2005), and other charges.”
The DRC stated that “a courtesy worker from the Cabinet [for
Families and Children], Nikia Isabelle, conducts regularly scheduled home visits,
verifies employment, and conducts random drug screens on the [father]. The
[father] has passed the two drug screens given since the arrest.” The courtesy
worker had been to the father’s home and had no problems with his live-in
girlfriend. Also, the worker was not concerned about the child’s visitation with her
father and with those visits being supervised by the father’s girlfriend. The DRC
found that it was in the child’s best interests to continue with the visitation
schedule she had at that time with her father and that those visits should be
supervised by the father’s girlfriend. The DRC ordered the child not to be alone
with the father at any time, and the father was ordered not to consume or be under
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the influence of alcohol, non-prescribed medication or drugs in the child’s
presence. The father was also ordered not to drive with the child in the vehicle.
The grandfather objected to the DRC’s recommendations, arguing that
the girlfriend should not be allowed to supervise the visits because the father
changed girlfriends often, and because if the girlfriend left during a visitation
period, the grandfather would not know about it. The circuit court rejected the
DRC’s recommendations, reasoning that the girlfriend could leave the father at any
time without the grandfather’s knowledge and, even if she stayed with the father,
her allegiance would be to the father and not to his child by a former girlfriend.
An order was entered, stating that the father’s visitation with the child should be
supervised by the father’s mother.
The DRC entered new recommendations, finding that the father had
entered a plea pursuant to North Carolina v. Alford,2 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 162 (1970), concerning the charges of DUI – 2nd offense and endangering
the welfare of a minor, and the father had served thirty days in jail as a result of
that plea. The father had participated in a substance abuse assessment, as
requested by the Cabinet for Families and Children, and he had completed most of
the classes and passed his drug screens as of the time the DRC entered these
recommendations. The father was living in a two-bedroom condominium with his
fiancée (formerly referred hereinto as his girlfriend). The fiancée was a registered
2
This type of plea, known as an Alford plea, “permits a conviction without requiring an
admission of guilt and while permitting a protestation of innocence.” Wilfong v. Commonwealth,
175 S.W.3d 84, 103 (Ky. App. 2004).
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nurse who had previously operated a day care center and was also an approved
foster parent when she lived in Ohio, prior to her move to Lexington. The DRC
stated that during the child’s toilet training, the father and his fiancée noticed that
there were inconsistencies between their training methods and those of the
grandfather, which resulted in setbacks. Nikia Isabelle, the courtesy worker from
the Cabinet, had worked with the father for several months. Mr. Isabella found
that the father was attentive to the child’s needs and observed nothing
inappropriate in his parenting.
The DRC noted that “[t]here were allegations of neglect or abuse
made against [the grandfather] prior to the time [he] gained custody of [the child];
however, those allegations were investigated by Protection and Permanency and
unsubstantiated.” Further, “an allegation that [the grandfather] had given a Lortab
to [the mother] was investigated and unsubstantiated, due in part to [the mother]
recanting her statement to the contrary.” The child had resided in the grandfather’s
household since her birth. The DRC found that the grandfather was “treated
occasionally for anxiety and depression. [The grandfather] draws Social Security
disability and . . . his wife[] draws SSI.” The DRC noted that the mother wanted
the child to remain in the grandfather’s custody.
The DRC found that the grandfather was the de facto custodian of the
child, pursuant to KRS3 403.270(1)(a), because the child was under three years old
and he had been the primary caretaker of the child for more than six months prior
3
Kentucky Revised Statute(s).
-5-
to the filing of the custody action. The DRC stated that the father’s “behavior over
the past year suggests an intent to improve his ability to parent his daughter, but
that intent has fallen short[,]” due to his convictions for DUI – 2nd offense and
endangering the welfare of a minor. Because the father’s address had changed
multiple times and his employment was sporadic, the DRC found that this
instability was not in the child’s best interest. However, the DRC noted that the
situation could improve and a change in custody could be made if the father would
provide a stable home with long-term employment and a clean record. However,
pending such a change, the DRC found that it was in the child’s best interests for
custody to be jointly shared between the father and grandfather as a de facto
custodian, with the grandfather designated as the primary residential
custodian/parent.
The father filed exceptions to the DRC’s recommendations, arguing
that the grandfather should not be considered the de facto custodian because the
mother continued to reside in the grandfather’s home until March 2007, and during
that time, the child’s crib was in the mother’s room, and all three of the adults in
the home alternated providing care to the child. The father asserted that testimony
was introduced by two witnesses, one of whom was the grandfather’s ex-wife who
had resided in the home while the mother was living there, and that those witnesses
had testified that the mother was the primary person who took care of the child
from January 2007 through July 2007, rather than the grandfather.
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The father noted in his exceptions to the DRC’s recommendations that
in March 2007, the mother was arrested for DUI and the child was in the vehicle
with the mother. The child was removed from the mother’s care and placed in
foster care. The mother told social workers that the grandfather had been giving
her his medicine, and the Lee County Department of Protection and Permanency
alleged that the grandfather hit the mother in her face and that the grandfather had
threatened to commit suicide.
The child was then placed by the Cabinet in the grandfather’s custody4
and remained in his custody from March 13, 2007, until July 13, 2007, when the
father filed his petition for permanent custody. Thus, the father argued that the
DRC improperly found that the grandfather was the child’s de facto custodian
because the child was placed in the grandfather’s custody by the Cabinet, and the
grandfather had not had custody of the child for one year or more before the father
filed his petition for custody, as required under KRS 403.270(1)(a).
The grandfather also filed exceptions to the DRC’s recommendations,
in which he alleged that the DRC improperly recommended the parties share joint
custody, because the grandfather should have been awarded sole custody. He
contended that the father had never maintained a stable home, stable employment,
or stable relationships. The grandfather asserted that the DRC erred in
4
We assume that the allegations regarding the grandfather giving the mother his medicine were
the allegations that the mother later recanted, as mentioned previously. We are uncertain
regarding the resolution of the claims that the grandfather had hit the mother and the grandfather
had suicidal tendencies.
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recommending that the parties continue their timesharing schedule because
evidence had shown that the child was ill when returned from the father’s custody.
The circuit court rejected the DRC’s recommendations. Specifically,
the court held that the DRC erred in finding that the grandfather was the child’s de
facto custodian because the grandfather had not had custody of the child for at least
one year after the Cabinet placed her in his custody pursuant to KRS 403.270(1)(a)
and before the father filed his petition in the present case. The grandfather has not
appealed the circuit court’s finding that he was not the child’s de facto custodian.
The DRC entered amended recommendations, finding that the father
was self-employed and sporadically working as a consultant in the satellite
television industry because he had previously worked installing satellite dishes
before he was laid off in November 2008. The DRC noted that pursuant to Davis
v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989), before the court can consider
awarding custody to a non-parent who is not the de facto custodian, the court must
find that the parent is unfit by clear and convincing evidence. The DRC in this
case found that
the evidence is simply not clear and convincing by any
means that the [father] is unfit under this standard. Yes,
he was charged with DUI and convicted, and he had the
child in the car at a late hour, but this one occasion does
not make him unfit as contemplated in Collinsworth and
that line of cases.
-8-
Thus, the DRC concluded that it would be in the child’s best interests for custody
to be granted to the father, with the grandfather granted visitation under a standard
visitation schedule.
The grandfather filed exceptions to the DRC’s recommendations,
alleging that the matter had been remanded to the DRC for a determination
regarding the “fitness” of the parties. The grandfather further complained that the
DRC entered such recommendations without first holding a hearing on the parties’
fitness and therefore the matter should again be remanded to the DRC to hold a
hearing on that issue.
The circuit court again rejected the DRC’s recommendations, after
agreeing with the DRC that another hearing “would not yield any meaningful new
evidence on the question of fitness.” The court noted that on the night the father
received his DUI, the child was
out of bed near midnight, riding through a heavilytraveled area of Lexington, in a vehicle driven by or
occupied by5 an individual who was under the influence
of alcohol. [The father] testified that he had a good
support system with his sister, his mother, and his
fiancée, and that at least one of those three individuals is
available to care for [the child] whenever he needs a
babysitter. [The father’s sister] testified that she was at
home at the time of [the father’s] arrest and prior thereto
and would have been available to babysit, and both she
and [the father] testified that she was called to come to
the scene to pick up [the child] when he was arrested. It
concerns the Court that [the father] would not take
advantage of a willing babysitter but would instead
5
The circuit court noted that the father contended he was driving his drunken cousin somewhere
and when the cousin exited the vehicle a few minutes before the father was arrested, the cousin
had left behind his open container of alcohol.
-9-
choose to drive under the influence with [the child] in the
car (or, at best, to haul a drunk with [the child] in the
car). It baffles the Court that [the father] would not take
advantage of the opportunity to prove his innocence by
submitting to a blood or urine test and possibly avoid jail
time altogether, mitigating the trauma to the child, but
would instead choose to tell the police officer he had
been drinking, send his child home with someone else for
at least the night, defy the police officer and refuse tests
that could prove his innocence, ultimately spend 30 days
in jail, and jeopardize his position in his custody case.
The court continued, noting that although the one DUI arrest was the
only such incident of which it is aware; however, [the
father] only had visitation with [the child] approximately
8 days a month at that time and just happened to get
arrested on one of those days. The Court is inclined to
believe that since this particular needle was found in the
haystack, then the haystack must be stiff with needles.
[The father] has expressed no remorse and has assumed
no responsibility for his arrest but has continued to
maintain his innocence. In fact, at the hearing, he even
painted himself as a Good Samaritan who had been
punished for giving a ride to a family member to prevent
the poor lad from driving drunk and getting into trouble
himself. The Court has no reason to think that [the
father] will work to provide better care and protection for
[the child] in the future considering that he cannot admit
that he has done anything wrong or that he has a problem
with alcohol or substance abuse despite this arrest and
other prior drug possession charges and his prior decision
to “self-medicate” with drugs and alcohol to deal with
depression, all of which he discussed in his testimony at
the hearing. [The father] further testified that he has
attended classes to address these issues as part of the
conditions of probation, but he gave no indication that he
had ever sought help on his own or that he even
perceived a need for help. [The father] placed [the child]
in a life-threatening situation, the same as if he had
stopped feeding her, refused her needed medication, or
left her outside in the elements. . . . The Court fears that
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awarding sole custody to [the father] would send [the
child] to her doom.
The circuit court then found the father was unfit and there was “no
reasonable expectation that his ability to provide care and protection for [the child]
will improve.” The court determined that, pursuant to KRS 403.270, it was in the
best interests of the child to be in the custody of the grandfather. The court
reasoned that the grandfather had
provided a home for [the child] and ha[d] been her
primary financial supporter since her birth in July 2006.
[The father], on the other hand, provided only $50.00 to
$100.00 for [the child’s] benefit until he was ordered to
pay child support by the Court, and he was in arrears
approximately $3,000.00 at the time of the hearing. [The
grandfather] and his wife . . . assisted the child’s mother .
. . in caring for her until temporary custody was given to
[the grandfather] on March 17, 2007, at which time [the
grandfather] became [the child’s] primary caregiver. He
qualified for kinship care soon after. [The child’s] halfbrother, with whom she has a close relationship, and [the
grandfather’s wife’s] grandchild also reside in [the
grandfather’s] home, and [the mother] has expressed her
desire that [the child] continue to reside there. [The
grandfather] is treated for anxiety and depression and
receives Social Security disability benefits. Allegations
of neglect or abuse have been made against him on two
occasions, but such allegations have been investigated
and unsubstantiated by the Lee County Protection and
Permanency Office, and social workers have expressed
no concerns for [the child’s] safety while in [the
grandfather’s] care.
Therefore, the circuit court awarded sole custody to the grandfather,
and the father’s current visitation schedule was ordered to continue, with the
restriction that he should not consume or be under the influence of alcohol or
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illegal drugs during his visitation; he should not permit individuals of ill repute or
who are under the influence of alcohol or illegal drugs to be around the child
during his visitation; and his visitation should be supervised by his own mother.
The child’s mother was permitted to visit with the child whenever the grandfather
agreed, with that visitation to be supervised by the grandfather. The father was
ordered to continue to pay child support as previously ordered.
The father now appeals, contending that: (a) the circuit court abused
its discretion when it reversed the DRC’s finding on an issue for which no specific
exceptions were filed; and (b) the circuit court erred in finding him unfit with no
reasonable expectation of improvement.
II. ANALYSIS
A. CLAIM REGARDING REVERSAL IN THE ABSENCE OF SPECIFIC
EXCEPTIONS
We first address the father’s allegation that the circuit court abused its
discretion when it reversed the DRC’s finding on an issue for which no specific
exceptions were filed. The Kentucky Supreme Court has noted that, pursuant to
CR6 53.06(2),
within ten days after notice of the filing of the [DRC’s]
report, any party may serve written objections and have a
hearing thereon before the circuit court. With respect to
the report, the court may adopt, modify or reject it, in
whole or in part, and may receive further evidence or
may recommit it with instructions. In sum, the trial court
has the broadest possible discretion with respect to the
use it makes of reports of domestic relations
commissioners. . . . [Kentucky case law has] confirmed
6
Kentucky Rule of Civil Procedure.
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the right of the trial court to re-evaluate the evidence and
reach a different conclusion than the commissioner.
. . . In general, a party who desires to object to a report
must do so as provided in CR 53.06(2) or be precluded
from questioning on appeal the action of the circuit court
in confirming the commissioner’s report. . . . Ordinarily,
appellate courts review only the orders or judgments of
lower courts, and pursuant to CR 46, a party must make
“known to the court the action which he desires the court
to take or his objection to the action of the court.” If we
should merely apply the provisions of CR 52.03, . . . and
authorize review of questions of sufficiency of evidence
without requiring objections to the commissioner’s
report, appeals would be taken from trial court judgments
adopting commissioner’s reports without the trial court
ever having been apprised of any disagreement with the
report.
. . . [However, where the trial court considers untimely
objections], no sound policy prevents appellate review.
Eiland v. Ferrell, 937 S.W.2d 713, 716-17 (Ky. 1997).
In the present case, the father contends that the circuit court erred in
permitting the grandfather to file exceptions twenty-two days after the DRC’s
report was entered. The father also asserts that, unlike the Eiland case, the
exceptions filed in this case did not challenge the sufficiency of the DRC’s finding
regarding the father’s fitness as a parent, but rather, the exceptions only “requested
the opportunity to present additional evidence on the issue of fitness.”
Pursuant to Eiland, the circuit court has broad discretion in the use it
makes of a DRC’s report and in the consideration of exceptions filed late. The
circuit court is also permitted to modify any part of the DRC’s report or re-evaluate
the evidence and reach a different conclusion than the commissioner. Accordingly,
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although the grandfather did not file a specific objection to the DRC’s
recommendation that the father was not unfit, based on Eiland’s holding, the
circuit court did not abuse its discretion when it re-evaluated the evidence. While
Eiland and subsequent cases reviewing the role of the DRC appear in many
respects to have superseded CR 52.03, this is the status of the law. Therefore,
given the very broad discretion of the circuit court in relation to reviewing
recommendations from the DRC, the circuit court did not err when it considered
the issue of the father’s fitness, even if the grandfather’s exceptions did not address
that issue and even though the exceptions were filed late.
B. CLAIM REGARDING FINDING OF UNFITNESS
The father also contends that the circuit court erred in finding him to
be an unfit parent with no reasonable expectation of improvement. We may “set
aside the trial court’s findings when those findings are clearly erroneous.” Vinson
v. Sorrell, 136 S.W.3d 465, 470 (Ky. 2004). “To determine whether findings are
clearly erroneous, reviewing courts must focus on whether those findings are
supported by substantial evidence.” Id.
“[S]ubstantial evidence” is [e]vidence that a reasonable
mind would accept as adequate to support a conclusion
and evidence that, when taken alone or in the light of all
the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men. Regardless
of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a
contrary finding, due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses because judging the credibility of witnesses
and weighing evidence are tasks within the exclusive
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province of the trial court. Thus, [m]ere doubt as to the
correctness of [a] finding [will] not justify [its] reversal,
and appellate courts should not disturb trial court
findings that are supported by substantial evidence.
Id. (internal quotation marks omitted).
“[A] natural parent is entitled to custody over a non-parent unless it is
demonstrated that the natural parent (1) is unsuitable to have custody, (2) is
harmful to the child, (3) has contracted to give his child away, or (4) is clearly
estopped to claim custody.” Forester v. Forester, 979 S.W.2d 928, 929 (Ky. App.
1998). “The United States Supreme Court has recognized fundamental, basic and
constitutionally protected rights of parents to raise their own children; and, that an
attack by third persons seeking to abrogate that right must show unfitness by ‘clear
and convincing evidence.’” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982)). “[A] natural parent’s superior right to the
child’s care and custody can be abrogated in an action involving a non-parent
seeking custody [only] by a showing of unfitness sufficient to support an
involuntary termination of parental rights.” Id. (internal quotation marks omitted).
[T]he evidence necessary to show unfitness of a parent
when a third party seeks custody includes: (1) evidence
of inflicting or allowing to be inflicted physical injury,
emotional harm, or sexual abuse; (2) moral delinquency;
(3) abandonment; (4) emotional or mental illness; and (5)
failure, for reasons other than poverty alone, to provide
essential care for the children.
Id.
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In the present case, the circuit court did not specify which of these
five factors was the basis for its finding that the father was unfit. Rather, the
circuit court stated that its finding was based on the fact that the father was
convicted of a DUI and endangering the welfare of a child. The court also based
its unfitness finding on the fact that on the evening the father was arrested on those
charges, he was driving with her in a heavily traveled area of Lexington near
midnight. The circuit court begrudged the fact that the father entered an Alford
plea to the charges against him, as is evident from the court’s finding that the
father “expressed no remorse and has assumed no responsibility for his arrest but
has continued to maintain his innocence,” and from the court’s note that it has “no
reason to think that [the father] will work to provide better care and protection for
[the child] in the future considering that he cannot admit that he has done anything
wrong.”
None of these findings would constitute physical, emotional, or sexual
abuse; abandonment; emotional or mental illness; or failure to provide essential
care for the child. Consequently, we can only assume that the circuit court found
that the aforementioned facts rendered the father morally delinquent and used that
factor as its basis for finding him unfit.
Regarding the court’s determination that the father had assumed no
responsibility for his actions and refused to admit wrongdoing, the court essentially
used the fact that the father entered an Alford plea to the charges as a reason to find
him morally delinquent and, therefore, unfit. However, the mere fact that a parent
-16-
has entered an Alford plea does not render that parent unfit. Further, it is improper
for the court to deny a person his fundamental constitutional right to parent simply
because that person chose to exercise his due process rights by maintaining his
innocence in a criminal proceeding. The circuit court’s role in this case was to
examine the parental fitness of the father, not the integrity of his Alford plea in the
criminal proceedings.
The circuit court’s note that the father was driving the child through a
heavily traveled area of Lexington late at night likewise cannot serve as a basis for
finding him morally delinquent and, therefore, unfit to parent the child. The court
also found that the father’s convictions for DUI and endangering the welfare of the
child (due to the fact that the child was in the vehicle when he was arrested for the
DUI) rendered him unfit to parent. Although we do not condone the father’s
actions on which these convictions were based and find this conduct absolutely
deplorable, this single instance of poor judgment--wherein fortunately the child
suffered no harm--is insufficient to show, by clear and convincing evidence, that
the father is an unfit parent. If every parent who made a mistake lost their
fundamental constitutional right to parent their children, nearly every child in the
Commonwealth would be a ward of the State. The circuit court, in this case,
overreacted to the father’s convictions and appeared to base its finding that he was
an unfit parent partially on the court’s own supposition that, because he committed
those crimes, he must have committed others of which the court was not aware. In
fact, the court stated that it was “inclined to believe that since this particular needle
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was found in the haystack, then the haystack must be stiff with needles.”
However,
[t]he rights of litigants in courts of justice are not
determined by guesswork, surmise, or speculation. There
must either be direct evidence authorizing a finding of
fact, or a network of circumstantial evidence, based upon
facts which will authorize a finding by a court or a juror
without indulgence in mere speculation or surmise.
Magness’ Adm’x v. Hutchinson, 274 Ky. 226, 117 S.W.2d 1041, 1043 (Ky. 1938)
(internal quotation marks omitted). Therefore, the court improperly used its own
speculation as a basis for finding the father unfit, and the court’s other findings are
insufficient to meet the high standard for declaring a parent unfit by clear and
convincing evidence. Therefore, the circuit court erred in finding the father unfit
based on the facts before it at that time.
Accordingly, the order of the Lee Circuit Court is affirmed in part
regarding whether the circuit court could review an issue for which specific
exceptions to the DRC’s report were not filed and for which the exceptions that
were filed were untimely. However, the order of the Lee Circuit Court is reversed
in part concerning the determination that the father was unfit. The case is
remanded for proceedings regarding custody and visitation that is consistent with
this opinion.
THOMPSON, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
-18-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE J.C.:
Melissa C. Howard
Jackson, Kentucky
Charnel M. Burton
Booneville, Kentucky
-19-
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