R. (S.) VS. N. (D.), ET AL.
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RENDERED: JUNE 24, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000743-ME
S.R.
v.
APPELLANT
APPEAL FROM WOODFORD FAMILY COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 09-J-00020
D.N.; J.H.; AND
H.W.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
JUDGE.
THOMPSON, JUDGE: S.R. (father) appeals from an order of the Woodford
Family Court granting D.N. (stepfather) permanent custody of H.W. (father’s
biological child) following dependency, neglect, and abuse proceedings. For the
reasons stated, we conclude that there were no errors and affirm.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On February 18, 2009, the Department of Community Based Services
filed a dependency, neglect, and abuse petition against mother alleging that child
had been neglected due to her exposure to substance abuse and domestic violence
in mother’s home. On March 3, 2009, the family court held a hearing and ordered
the appointment of counsel for mother and a guardian ad litem for child. Father
was not appointed counsel and was ordered not to have unsupervised visits with
child. After the hearing, mother was allowed to keep child at her residence but she
was not to allow her boyfriend access to her home or children.
On March 6, 2009, the family court issued a show cause order against
mother for allowing her boyfriend contact with her children. The family court
ordered that mother’s three children, including H.W., be placed in the custody of
the father of the child’s two siblings. On the same day, a second dependency,
neglect, and abuse petition was filed against mother for violating the prior order.
After a temporary removal hearing, the family court found that the
mother had violated two provisions of its prior order. She had continued living
with her boyfriend, who allegedly committed domestic violence against her, and
she admitted to improper consumption of prescription medication. The family
court ruled that mother could only have supervised visitation with her children.
The family court kept the child in the custody of her siblings’ father. After an
adjudication and disposition hearing, stepfather was granted custody of the child,
and, mother was denied contact with her children until she complied with her case
plan.
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After a notice was provided that the family court was going to
consider the issue of the child’s permanent custody, a hearing was conducted
where evidence was placed in the record regarding the circumstances of the child’s
care. The family court found that mother had made “no progress on her case plan.”
At the hearing, father moved for immediate entitlement to custody of
the child. The family court ruled that such motions should be filed in court in
Franklin County where the child resided and would not be addressed in the
juvenile case. The family court further found that father had failed to comply with
setting up a case plan as required by the Department and had no contact with the
child prior to her removal from her mother. Following the hearing, pursuant to
KRS 620.027, the family court awarded the stepfather permanent custody of the
child, and found that the stepfather was the child’s de facto custodian.
Father contends that the family court abused its discretion.
Specifically, he alleges that: Two hearings were held after the statutory time period
for such hearing; the family court did not advise him to obtain counsel or appoint
counsel for him; the family court failed to address his claim to custody of the child;
and the family court erred by finding that stepfather was child’s de facto custodian,
because the record does not support the finding. Thus, he argues that the family
court’s order must be reversed.
We observe that a family court’s findings of fact shall not be set aside
unless they are clearly erroneous and, thus, not supported by substantial evidence.
Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky.
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2006). Substantial evidence is evidence that is sufficiently probative to induce
belief in the mind of a reasonable person and due regard must be given to the
family court to weigh the evidence. Hunter v. Hunter, 127 S.W.3d 656, 659
(Ky.App. 2003). Further, a family court has broad discretion in matters relating to
determining the custody of children and its decision will not be reversed absent
abuse of discretion. Futrell v. Futrell, 346 S.W.2d 39 (Ky. 1961).
In this case, father alleges that two of the dependency, abuse, and
neglect hearings were held beyond the time period required by statute. However,
father did not present this argument to the family court and has not indicated how
this argument was preserved. When a litigant makes an allegation to an appellate
court, it is fundamental that the claim must be first presented to the family court.
Richardson v. Rees, 283 S.W.3d 257, 265 (Ky.App. 2009). Thus, an “issue not
raised in the [family] court may not be presented for the first time on appeal.”
Keeton v. Lexington Truck Sales, Inc., 275 S.W.3d 723, 726 (Ky.App. 2008).
Thus, we will not address father’s allegation regarding the delayed hearings.
Father’s allegation that he was not advised to obtain counsel or was
not appointed counsel was also not preserved. Father has not cited to this Court
where he preserved this issue, and he and his counsel did not bring this matter to
the family court’s attention at the March 25, 2010, hearing. Regardless, KRS
620.100(1)(b) provides that “[t]he court shall appoint separate counsel for the
parent who exercises custodial control or supervision if the parent is unable to
afford counsel pursuant to KRS Chapter 31.” Here, father has not established that
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he had custody or supervision of child. Therefore, we fail to see how father’s
allegation constitutes error.
Father’s contention that the family court failed to address his claim to
custody of the child is incorrect. The family court directly addressed his claim at
the final hearing and stated that father must file for permanent custody outside of
the juvenile case. The family court further informed father that child resided with
stepfather in Franklin County where he should bring his action. Additionally, the
family court found that father failed to comply with setting up a case plan with the
Department and had no contact with the child prior to removal.
Under KRS 620.140(1)(c), family courts are authorized to award
custody of an abused or neglected child to an “adult relative, other person, or childcaring facility or child-placing agency, taking into consideration the wishes of the
parent or other person exercising custodial control or supervision.” In this case,
stepfather, the father of the child’s two siblings, had temporary custody of the child
for the entire year before the permanent custody hearing and this case. Child’s
mother had not complied with the family court’s order and failed to appear at the
final hearing.
Additionally, a case worker testified that father neither contacted nor
requested the services of the Cabinet for Health and Family Services. At the
hearing, father did not state a single step that he took to establish a case plan. After
considering the child’s wishes, her interaction with her siblings, her adjustment to
her home and school, and after reasonable efforts were made to work with the
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child’s parents, the family court found that it was in the child’s best interest to be
placed in the stepfather’s permanent custody. Thus, we conclude that the family
court’s custody award was not an abuse of discretion.
We further note that the family court properly stated the procedural
steps that should be taken to obtain permanent custody pursuant to KRS 403.270 et
seq. As stated in S.R. v. J.N., 307 S.W.3d 631 (Ky.App. 2010), dependency,
neglect, and abuse proceedings were not intended to be a substitute for full civil
custody hearings under KRS 403. Id. at 637. In this case, the family court told
father to bring an action for full permanent custody in the Franklin Family Court.
We believe the Woodford Family Court’s directive reflects proper procedure. Id.
Father’s allegation that the family court erred by finding that
stepfather was the child’s de facto custodian must fail. KRS 403.270(1)(a)
provides the following:
As used in this chapter and KRS 405.020, unless the
context requires otherwise, “de facto custodian” means a
person who has been shown by clear and convincing
evidence to have been the primary caregiver for, and
financial supporter of, a child who has resided with the
person for a period of six (6) months or more if the child
is under three (3) years of age and for a period of one (1)
year or more if the child is three (3) years of age or older
or has been placed by the Department for Community
Based Services. Any period of time after a legal
proceeding has been commenced by a parent seeking to
regain custody of the child shall not be included in
determining whether the child has resided with the
person for the required minimum period.
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In this case, the child was greater than three years of age at the time of the
proceedings and the stepfather was the child’s primary caregiver, financial
supporter, and resided with her for over a year before the designation. By order
entered on March 6, 2009, the stepfather had custody of the child and maintained
custody for the year preceding the order. Additionally, as provided by the record,
including a report from the Cabinet filed June 9, 2009, stepfather provided for the
care and rearing of the child. Therefore, we conclude that the family court’s
finding was supported by substantial evidence.
Father next contends that the family court failed to properly consider
him as a permanent custodian of his biological child. We disagree.
The family court properly determined that this matter was limited to a
custody determination related to the underlying dependency, neglect, and abuse
petition. There was no pre-removal custody award to father and he had no contact
with his child prior to her removal from mother. Father sought a permanent
custody award pursuant to KRS 403.270 et seq. in a dependency, neglect, and
abuse proceeding under KRS 620. This tactic is not appropriate and father should
have brought the matter under KRS 403.270 et seq. for a full proceeding on the
issue of child custody. Therefore, the family court committed no error.
For the foregoing reasons, the order of the Woodford Family Court is
affirmed.
LAMBERT, SENIOR JUDGE, CONCURS.
MOORE, JUDGE, DISSENTS.
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BRIEFS FOR APPELLANT:
Marie K. Brannon
Frankfort, Kentucky
BRIEF FOR APPELLEE,
COMMONWEALTH OF
KENTUCKY:
Phyllis Lee Sharp Mattingly
Assistant Woodford County Attorney
Versailles, Kentucky
BRIEF FOR APPELLEE, D.N.:
Mitzy L. Evans
Versailles, Kentucky
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