LARRY MIDDLETON and REGINA MIDDLETON v. GINA MORAN (NOW WILLIAMS)
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RENDERED:
February 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0043-MR
LARRY MIDDLETON and
REGINA MIDDLETON
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 92-CI-3745
GINA MORAN (NOW WILLIAMS)
APPELLEE
OPINION
AFFIRMING
*
BEFORE:
*
*
*
*
GUDGEL, Chief Judge; EMBERTON and JOHNSON, Judges.
JOHNSON, JUDGE: Larry and Regina Middleton (the Middletons) appeal
from an order of the Fayette Circuit Court entered on December 9,
1996, that granted permanent custody of Alisha D. Moran (Alisha) to
her natural mother, Gina Williams (Gina).
Regina Middleton is
Alisha's maternal grandmother and Larry Middleton is Alisha's
maternal step-grandfather.
We affirm.
On appeal, all parties appear pro se.
Contrary to the
misunderstanding of the parties, Archie Williams, the husband of
Gina Williams, was not a party to the underlying action and is not
a party to this appeal.
Accordingly, it was improper for him to
have joined with Gina in submitting the brief on behalf of Gina.
By separate order, this Court has stricken Gina's brief from the
record.
In their brief, the Middletons cite no relevant legal
authority in support of their positions; however, they did give an
extensive recitation of their version of the facts.
The record
indicates substantive disagreements between the Middletons and Gina
concerning relevant events; these variations are noted as necessary.
On December 27, 1989, Gina married Alisha’s father, John
Moran.
Alisha was born on March 26, 1992.
on October 30, 1992.
Gina filed for divorce
In November 1993, Gina joined the U.S. Army
and reported to South Carolina for basic training, leaving Alisha
with the Middletons.
At this point in time, according to the
Middleton's, Alisha had spent about 17 months of her 20-month life
with them.
The parties disagree on the amount of time Alisha has
stayed with the Middletons.
About this time a contentious dispute
over Alisha's custody developed between John (supported by his
mother, Shari Moran) and Gina (supported by the Middletons).
In
particular, the maternal and paternal grandmothers developed a
bitter relationship, which included allegations of death threats.
On March 18, 1994, John was granted temporary custody of Alisha.
On August 18, 1994, Gina was granted temporary custody of Alisha,
and Alisha again, according to the Middletons, stayed with them.
Subsequently, Gina was deployed to Haiti and custody returned to
John.
In December 1994, the trial court granted joint custody to
Gina and John with alternating custody and visitation on a two-week
basis.
Between then and December 1995, according to the Middle-
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tons, Alisha spent about nine months with them.
On December 28,
1995, in conjunction with the property settlement in the divorce
action, Gina was granted permanent full-time custody of Alisha.
John and Gina’s divorce decree was likewise entered on December 28.
Meanwhile, in January 1995, Gina and her future husband,
Archie, began residing in the same home.
Archie is an African-
American, whereas Gina, John, Alisha, and the Middletons are
Caucasian.
During the course of this proceeding, each side has
accused the other of racism; each side, in turn, has defended
itself against these charges. Archie, according to the Middletons,
"is the crux that gave rise to the Middletons['] action."
In
addition to Alisha, there are now five other children living in the
Williams household.
Two of these are the natural children of
Archie and Gina; the other three are Archie’s natural children.
In February 1996, Alisha visited the Middletons. At this
time, the Middletons contend that they observed welts on Alisha's
thigh which were allegedly caused by Archie whipping her with a
belt.
The Middletons allege that similar welts, as well as
bruises, were again observed in August 1996.
Gina acknowledges
that Archie whipped Alisha with a belt on one occasion.
Also in
August 1996, 15-year-old Leah Chimenz, who was in the custody of
Regina Middleton, alleged that while she was visiting the
Williamses in June 1996, Archie raped her.
this allegation.
Gina vigorously denies
The Middletons timely informed Gina of their
suspicions of the abuse and neglect of Alisha and the rape of Leah.
Gina
refused
to
believe
these
immediate return of Alisha.
allegations
and
requested
the
Rather than return Alisha to the
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Williamses, the Middletons contacted Alisha's paternal grandmother,
Shari Moran (Shari) (Regina Middleton's former adversary), and
arranged to transfer custody to her.
The Middletons transferred
custody to Shari on August 19, 1996, in Prestonsburg, Kentucky.
The two grandmothers made plans to locate John and persuade him to
again seek custody of Alisha.
On August 20, the Middletons were
arrested for custodial interference.
On August 23, 1996, the Floyd District Court entered a
protective order granting temporary custody of Alisha to Erica
Goble, Alisha's paternal aunt (John's sister).
Efforts to locate
John were unsuccessful, so the Middletons filed for modification of
custody in the Fayette Circuit Court seeking custody of Alisha.
A
hearing was scheduled for September 27, 1996; however, at that
time, the trial court merely assumed jurisdiction and set a hearing
for November 6, 1996, to determine custody.
The Middletons allege
that after the September 27 hearing, Gina and Archie had ex parte
contact with Judge Payne's staff attorney, a Ms. Gunther.
Middletons
allege
that
this
meeting
led
to
a
requiring the immediate return of Alisha to Gina.
"secret
The
order"
The Middletons
allege that Judge Payne and his staff attorney, who are AfricanAmericans, have conspired in some manner to show favoritism to Gina
because she is married to an African-American. Alisha was returned
to Gina on September 27.
Hearings in the matter were then held on
November 6 and December 6, 1996.
At the conclusion of the
Middletons' presentation of their case, the trial court denied the
motion and ruled in favor of Gina.
On December 9 the trial court
issued its order granting Gina custody of Alisha and, further,
-4-
granting the Middletons one week of visitation per month.
This
appeal followed.
The
filings
of
the
parties
reflect
that
each
side
suspects the other is guilty of racism and each side, in turn,
defends itself against charges of racism.
So, as a preliminary
matter, we note that race may not be considered in child custody
proceedings.
See Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879,
80 L.Ed.2d 421 (1984); and Holt v. Chenault, Ky., 722 S.W.2d 897
(1987).
With respect to the racial issue, Holt is similar to the
case at bar.
In Holt the Caucasian mother had remarried an
African-American, and the father, for that reason, sought custody
of the child.
As noted in that case:
"It would ignore reality to suggest that
racial and ethnic prejudices do not exist or
that all manifestations of those prejudices
have been eliminated. There is a risk that a
child living with a stepparent of a different
race may be subject to a variety of pressures
and stresses not present if the child were
living with parents of the same racial or
ethnic origin.
* * *
"Whatever problems racially mixed households
may pose for children . . . [they] cannot
justify . . . removing an infant child from
the custody of its natural mother found to be
an appropriate person to have such custody."
Id. at 898, quoting Palmore at 433, 434, 104 S.Ct. at 1882
(emphasis in original).
Thus, the racial backgrounds of the
parties is not a factor to be considered when determining custody
between a parent and a nonparent.
In a custody dispute between a parent and a nonparent,
there is a decisive preference for the parent.
-5-
The parent has a
superior right and the nonparent has the burden of showing that the
parent is not "suited to the trust."
that
a
parent
is
competent
and
There is also a presumption
suitable
to
rear
the
Reynardus v. Garcia, Ky., 437 S.W.2d 740, 743 (1968).
child.
Anyone
seeking to abrogate the right of a parent to child custody has to
show unfitness by clear and convincing evidence.
Ky. App., 836 S.W.2d 434, 439 (1992).
Sumner v. Roark,
When the choice of custodian
is to be made between a natural parent and a nonparent, the parent
will prevail if all else is equal.
261, 263 (1970);
(1979).
James v. James, Ky., 457 S.W.2d
Jones v. Jones, Ky. App., 577 S.W.2d 43, 44-45
For a nonparent to prevail, it "must be shown that the
child's welfare is better served by placement with the nonparent
and also that the parent is unfit."
Jones at 45.
Chandler v. Chandler, Ky., 535 S.W.2d 71, 72 (1975).
See also
When a
natural parent and one not the natural parent are equally fit, the
natural parent shall prevail.
528, 529 (1974).
Bond v. Shepherd, Ky., 509 S.W.2d
In view of these authorities, it is clear that
the Middletons must meet a heavy burden of proof to justify
removing Alisha from her natural mother.
However, the presumption in favor of the natural mother
is not absolute.
A nonparent may prevail over a natural parent if
"it is shown that the natural parent (1) is unsuitable to have
custody, or (2) is harmful to the child, or (3) has contracted to
give his child away, or (4) is clearly estopped to claim custody."
James, 457 S.W.2d at 263.
The Middletons have alleged facts that,
if true, would meet the requirements of the standards set out above
in (1), (2) and (4).
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The first two standards, "unsuitable to have custody,"
and "harmful to the child," address the unfitness of the natural
parent.
The
test
for
unfitness
is
set
forth
in
Davis
v.
Collinsworth, Ky., 771 S.W.2d 329 (1989).
The type of evidence that is necessary to
show unfitness . . . is:
(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. at 330.
The Middletons raise three cognizable grounds for
finding Gina unfit:
the
alleged
(1) the alleged rape of Leah by Archie;
physical
and
emotional
abuse
of
Alisha,
inappropriate whippings and confinement in a closet;
(2)
i.e.
and (3) the
alleged inadequate medical and nutritional care of Alisha.
The alleged rape of Leah Chimenz by Archie and the
alleged tolerance of such conduct by Gina, if true, would justify
a determination that Gina was unfit to be Alisha's custodian. See,
Davis, supra at 330.
However, the Richmond County (Georgia)
Sheriff's office investigated this allegation and determined the
charge to be unsubstantiated.
determination.
The trial court accepted this
We recognize that the Middletons dispute the
conclusions of the rape investigation; however, as in any case, the
findings of fact of the trial court cannot be reversed unless they
are determined to be clearly erroneous.
The appellate court must
recognize "that the trial court had the opportunity to hear the
evidence
and
credibility,
observe
and
findings of fact."
the
therefore,
witnesses,
is
in
the
so
as
best
to
judge
position
to
their
make
Bealert v. Mitchell, Ky. App., 585 S.W.2d 417,
-7-
418 (1979);
Kentucky Rules of Civil Procedure (CR) 52.01.
Given
the contradictory evidence on this matter, we cannot conclude that
the trial court's findings were clearly erroneous. The Middletons,
in the view of the trial court, failed to meet their burden with
respect
to
this
allegation.
We
have
no
basis
to
determine
otherwise.
The Middletons allege that Alisha has been physically
abused on the basis that she has been subjected to whippings with
a belt that left welts and bruises on her body.
The Middletons
further allege physical or emotional abuse in that, as a form of
discipline, Gina and Archie have on occasion locked Alisha in the
closet.
Gina and Archie deny these allegations, which have been
investigated
by
unsubstantiated.
the
Georgia
Social
Services
and
found
to
be
The trial court accepted the findings of the
investigating agency.
It was the determination of the trial court
that the Middletons have failed to meet their burden with respect
to these allegations.
We have no basis for concluding that the
trial court was clearly erroneous.
See Bealert, supra at 418.
Lastly, the Middletons allege that Alisha has received
inadequate medical and nutritional care while in the custody of
Gina.
This claim is based on a medical examination conducted in
September 1996 which reflected that the four-and-one-half-year-old
Alisha weighed only thirty pounds; had a low hemoglobin count; and
suffered from the skin disease impetigo. The Middletons claim that
Alisha suffered from a "failure to thrive" as a result of Gina's
custodianship.
The Georgia Social Services was in a position to
investigate these allegations.
Moreover, the trial court was in a
-8-
position
to
observe
December 6, 1996.
Alisha
on
September
27,
November
6,
and
In view of the trial court's superior position
to evaluate any matters pertaining to health and medical care, we
cannot find clear error in its rejection of the Middletons' claims.
See Bealert, supra at 418.
With respect to the other two factors identified in
James, supra--i.e., a nonparent may prevail if the natural mother
has contracted to give her child away or if the natural parent is
estopped to claim custody--there is no allegation as to the former.
However, the Middletons do claim that, because Gina left Alisha
with them for long periods of time, she has waived her right to
custody.
We disagree.
"The parent's superior right of custody is
not lost to a non-parent, including a grandparent, simply because
a child is left in the care of the non-parent for a considerable
length of time."
(1995).
Shifflet v. Shifflet, Ky., 891 S.W.2d 392, 394
"'[T]he first question here is whether, considering the
totality of the evidence, [the parent] engaged in a knowing and
voluntary relinquishment of [her] superior right of custody, to
which [she] was entitled unless unsuited to the trust.'"
Id.,
quoting Greathouse v. Shreve, Ky., 891 S.W.2d 387, 391 (1995).
Here, there is no evidence presented that Gina ever engaged in a
knowing and voluntary relinquishment of her superior right to
custody.
In fact, throughout the divorce proceedings Gina pursued
custody of Alisha, first against John and Shari, and then against
the Middletons.
Additionally, Gina traveled extensively to visit
Alisha during those times in which she did not have custody.
Further, the leaving of Alisha with the Middletons was at times
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necessary due to her military obligations.
apparent
that
the
evidence
In view of this, it is
supported
the
trial
court's
determination that there was not a knowing and voluntary waiver by
Gina of her custodial rights.
Two additional issues were raised by the Middletons which
merit discussion.
First, the Middletons object to the trial
court's
granting
sua
sponte
of
a
"directed
verdict"1
conclusion of their presentation of evidence.
at
the
We believe the
action taken by the trial court was appropriate.
[I]t is the essence of judicial power to
determine whether or not a party has produced
evidence which is sufficient in law to sustain
judgment in his favor and to exercise that
inherent power by directing a verdict where
there is lack of proof supporting the material
elements of the cause of action asserted.
Masonic
Widows
and
Orphans
Home
and
Infirmary
v.
City
Louisville, 309 Ky. 532, 544, 217 S.W.2d 815, 822 (1948).
of
The
Middletons were provided ample opportunity to introduce evidence in
their favor, and, at their discretion, could have called Gina and
Archie to the stand and questioned them concerning the various
allegations. The trial court's ruling was supported by the lack of
evidence presented.
The
last
issue
to
allegations of judicial bias.
be
addressed
is
the
Middletons'
The simple allegation of prejudice
on the part of the judge is insufficient to sustain a claim of
judicial bias.
Foster v Commonwealth, Ky., 348 S.W.2d 759 (1961),
1
The trial court used this terminology in both the hearing
and its order. We believe that this is a misnomer; actually it
merely sua sponte denied the movants' motion for custody at the
close of movants' presentation of evidence.
-10-
cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530.
"The
asserted belief must be predicated upon stated facts showing bias
or
prejudice
sufficient
to
prevent
impartially trying the case."
746, 748 (1970).
the
judge
from
fairly
or
Howerton v. Price, Ky., 449 S.W.2d
See also Johnson v. Ducobu, Ky.,
258 S.W.2d 509,
511 (1953). Here, the Middletons' allegation is totally groundless
and unsupported by any evidence and amounts to nothing more than
their suspicions.
There is nothing in the record to reflect that
the trial court was biased in any regard.
the
trial
court
awarded
visitation with Alisha.
overcome
in
this
the
In fact, we note that
Middletons
one
week
per
month
The Middletons had a heavy burden to
case.
As
noted
above,
there
is
a
strong
preference for the natural parent in a custody proceeding. We find
no
error
in
the
trial
court's
ruling
and
no
basis
for
the
Middletons' allegations of bias.
For the foregoing reasons, the order of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
PRO SE BRIEF FOR APPELLANTS:
PRO SE BRIEF FOR APPELLEES:
Larry and Regina Middleton
Lexington, KY
Archie and Gina Williams
Augusta, GA
-11-
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