W.C.M. AND M.A.M v. COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN, C.M.H., J.H., AND C.R.H., A CHILD
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RENDERED: JULY 30, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-002348-MR
W.C.M. AND M.A.M
APPELLANTS
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 98-AD-00002
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN,
C.M.H., J.H., AND C.R.H., A CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; KNOX AND McANULTY, JUDGES.
KNOX, JUDGE.
This is an appeal from a judgment by the Caldwell
Circuit Court denying appellants permanent custody of their
three-year old grandson.
For the reasons set forth hereinafter,
we affirm the decision of the trial court.
C.R.H., born August 13, 1995, is the second of four
children born to the appellees, C.M.H and J.H.
When he was
approximately three months old, C.R.H. was diagnosed with nonaccidental head injuries and hospitalized.
Based on the severity
of the injuries and his father’s confession to the abuse, C.R.H
was removed from the home of C.M.H. and J.H. and placed in the
legal custody of the Cabinet for Families and Children (Cabinet)
from December 5, 1995, until June 3, 1996, when he was returned
to his parent’s home.
J.H. was convicted of assaulting his son
and sentenced to thirty (30) days in jail.
During the initial
removal, the Cabinet placed C.R.H in the home of appellants, his
maternal grandparents, W.C.M. and M.A.M. from February 1996 until
his return to his parent’s home in June 1996.
On April 14, 1997 the Cabinet was informed that C.R.H.
was at his babysitter’s house with serious bruises on his face
and body.
After confirmation of the injuries, C.R.H. was removed
from his parent’s home.
In addition, his two sisters, R.H. (age
4) and T.H., (age 1) were also removed from the home at that
time.
(The fourth child, C.H., was not born until May, 1998).
J.H. was again convicted of assaulting his son.
Following this
second removal, on April 14, 1997, the three children were placed
with appellants.
Due to the crowded conditions in the
appellants’ home and because of an existing attachment between
R.H. and her paternal grandmother, R.H. was later moved to the
paternal grandmother’s home.
C.R.H and T.H. were removed from
the appellants’ home and placed in foster care after
approximately six months because of a continuing problem with
head lice infestation in the appellants’ home.
The appellants
continued to visit C.R.H. at his foster home by informal
arrangements with C.M.H. and the paternal grandmother.
Because of the seriousness of the attacks on C.R.H. by
J.H. and the refusal by C.M.H. to leave her husband for C.R.H.’s
protection, the Cabinet moved in March 1998 to terminate the
parental rights of J.H. and C.M.H. to C.R.H.
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Appellants moved to
intervene in the termination on June 5, 1998, seeking permanent
custody of C.R.H. and his eventual adoption.
On June 24, 1998,
the motion to intervene was granted over the Cabinet’s objection.
Following a hearing, the trial court entered its Findings, Final
Order and Judgment on August 18, 1998.
The Order terminated the
parental rights of J.H. and C.M.H. to their son, C.R.H.
J.H. and
C.M.H. did not appeal the termination of their parental rights,
nor does any party dispute the correctness of that decision.
The
Final Order also denied the appellants’ petition for permanent
custody of C.R.H., effectively terminating their rights to C.R.H.
as well.
The appellants appeal that portion of the Order denying
their request for permanent custody of C.R.H.
The overriding consideration in any custody
determination is the best interests of the child.
Squires v.
Squires, Ky., 854 S.W.2d 765, 768 (1993); Ky. Rev. Stat. (KRS)
403.270.
The standard is not altered merely because the party
seeking custody is a grandparent.
In determining that which is
in the best interests of the child, the trial judge is given
broad discretion and allowed to use “his own common sense, his
experience in life, and the common experience of mankind” in
reaching a decision.
Krug v. Krug, 647 S.W.2d 790, 793 (1983).
In support of its decision to deny the appellants
custody, the trial court made the following findings: (1) C.R.H.
would suffer negative psychological harm by growing up in a home
where he would have future contact with his biological parents,
(2) the appellants cannot realistically handle the added burden
of raising C.R.H. financially or otherwise; and, (3) granting the
appellants custody of C.R.H. would be tantamount to maintaining
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the status quo and not in C.R.H.’s best interest.
This Court
will not set aside findings of fact unless clearly erroneous, and
we shall give due regard to the opportunity of the trial court to
judge the credibility of the witnesses.
Kentucky Rules of Civil
Procedure 52.01; Reichle v. Reichle, Ky., 719 S.W.2d 442, 444
(1986).
The appellants’ first argument on appeal is that
insufficient evidence was submitted to support the trial court’s
finding that the child would suffer negative psychological harm
by growing up in a home where he would still be in some contact
with his biological parents.
We disagree.
The trial court’s finding relating to psychological
harm is supported by the testimony of Joan Daub, the ongoing case
worker from the Cabinet for Family and Children assigned to the
C.R.H. case.
Ms. Daub testified that one of her major concerns
was that the appellants would not protect C.R.H.
She also
testified that over time the appellants would possibly leave
C.R.H. alone with J.H. for short periods of time thinking that he
would be fine.
Ms. Daub further expressed concern over the fact
that M.A.M. never related any feelings of anger over what J.H.
had done to C.R.H.
While we acknowledge that Ms. Daub is not an
expert in the field of psychiatry or psychology, she nevertheless
is a professional social worker with substantial experience and
training.
Moreover, as the case-worker assigned to C.R.H., she
had personal interaction with the parties involved.
Hence Ms.
Daub’s testimony is, alone, evidence sufficiently substantial to
support the trial court’s findings.
In addition, in regard to a
trial court’s custody decision, “[i]t does not take a child
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psychologist or a social worker to recognize that exposure of
children to neglect or abuse in many forms is likely to affect
them adversely.”
Krug v. Krug, 647 S.W.2d at 793.
The appellants’ second argument that it would be in the
best interests of C.R.H. to be placed with the appellants if
there is no evidence of potential harm from some future contact
with the birth parents, is dispensed with by the rationale above.
There is in fact abundant evidence of potential harm.
A Family Services clinician interviewed J.H. after the
second beating.
She testified that J.H. had abused C.R.H.
because, instead of playing with J.H., the child would always
sleep when J.H. was left alone to babysit.
much that he hit the child.
This angered J.H. so
We believe this testimony serves as
evidence that there is a risk of potential harm to C.R.H. if he
has further contact with his biological father.
C.M.H. testified that she does not believe that her
husband beat C.R.H. even though he twice confessed to the abuse
and was twice convicted of the assaults.
This testimony
discloses that C.M.H. is more concerned about her continued
relationship with her husband than with the safety of her
children and in our view supports the trial court’s conclusion
that C.M.H.’s presence would have a negative psychological effect
on C.R.H.’s well-being.
Further testimony in support of the trial court’s
decision is provided by appellants themselves.
W.C.M.’s
testimony raises doubt as to whether he would be willing or able
to prevent future unsupervised contact between C.R.H. and his
father.
In addition, M.A.M.’s testimony portrays an attitude
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towards J.H.’s physical abuse of her grandson that causes this
Court to question whether she understands how serious C.R.H.’s
injuries were.
In our view the appellants’ testimony supports
the trial court’s finding that custody being granted to
appellants would be tantamount to maintaining the status quo.
It has already been shown that there is a substantial
risk that the appellants would permit continuing contact between
C.R.H. and his abusive parents.
Evidence was presented to the
trial court regarding the appellants’ financial situation.
While
poverty alone is not a bar to custody, there were also other
circumstances that were considered by the trial court.
Factors
such as the size of the appellants’ home, the presence of a
special-needs child of their own, and a prolonged infestation of
head lice all add to the difficulties that the appellants would
face in raising C.R.H. in their home.
Appellants are biological
family members and they have shown that they are “good and well
meaning people”, but when these concerns are balanced against the
best interests of the child, then the child’s best opportunity
for a normal and healthy life must always prevail.
While it is true that grandparents can sue for
visitation of their grandchildren over the opposition of a
custodial parent under Baker v. Perkins, Ky. App., 774 S.W.2d 129
(1989); Ky. Rev. Stat. (KRS) 405.021, this is not a visitation
case and it is unclear how Baker and/or the statute would apply
to the present facts.
Also, visitation under Baker still has to
be proven to be in the best interests of the child and if C.R.H.
is placed for adoption then a trial court may decide that a clean
break with his past would be in the best interests of the child.
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Based upon the foregoing, we cannot say that the trial
court abused its discretion in denying custody to the appellants.
The judgment of the Caldwell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Susan E. Neace
Hopkinsville, Kentucky
Mona S. Womack
Owensboro, Kentucky
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