D.H., IN THE INTEREST OF R.D.H. v. P.H.; AND CABINET FOR FAMILIES AND CHILDREN D.H., IN THE INTEREST OF B.L.H. v. P.H.; AND CABINET FOR FAMILIES AND CHILDREN
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RENDERED: October 8, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002607-MR
D.H., IN THE INTEREST OF R.D.H.1
APPELLANT
v.
APPEAL FROM JOHNSON FAMILY COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 02-J-00165
P.H.; AND
CABINET FOR FAMILIES AND CHILDREN
AND
NO. 2003-CA-002608-MR
D.H., IN THE INTEREST OF B.L.H.
v.
APPELLANT
APPEAL FROM JOHNSON FAMILY COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 02-J-00164
P.H.; AND
CABINET FOR FAMILIES AND CHILDREN
1
APPELLEES
APPELLEES
The parties will be referred to by their initials to protect the interests
of the minor children.
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; AND EMBERTON, SENIOR JUDGE.2
JOHNSON, JUDGE:
D.H. brings this consolidated appeal from
several orders entered by the Family Court Division of the
Johnson Circuit Court, which, inter alia, found her children,
B.L.H. and R.D.H., to be neglected and awarded permanent custody
of the children to their paternal grandmother, P.H.
Having
concluded that the family court’s determination that B.L.H. and
R.D.H. were neglected is supported by a preponderance of the
evidence and that the family court did not abuse its discretion
in awarding custody of the children to P.H., we affirm.
D.H. and K.H. were married and their marriage produced
two children, B.L.H., who was born on July 2, 2001, and R.D.H.,
who was born on July 24, 2002.
On October 28, 2002, a social
worker with the Cabinet for Families and Children discovered
drug paraphernalia in the residence of D.H. and K.H. during a
routine visit.
On November 6, 2002, separate dependency,
neglect, and abuse petitions were filed in the interest of
B.L.H. and R.D.H. in the Johnson District Court.
On November
27, 2002, the district court entered an order requiring D.H. and
2
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
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K.H. to complete a substance abuse counseling program and to
submit to random drug testing.
In February 2003 D.H. tested positive for marijuana
use.
On May 5, 2003, Jessica Franklin, a social worker with the
Cabinet, while investigating a report of domestic violence,
found the children locked in a bedroom.
On the same date,
separate dependency, neglect, and abuse petitions were filed in
the Family Court Division of the Johnson Circuit Court.3
In sum,
the petitions alleged that B.L.H. and R.D.H. were “exposed to
ongoing drug use by the parents” and that they were “at risk of
harm.”
Based on the allegations contained in the petitions, the
family court entered emergency custody orders placing the
children in the custody of P.H.4
A temporary removal hearing was
held on May 8, 2003, and the family court entered separate
orders granting temporary custody of the children to P.H.5
On June 3, 2003, the Cabinet filed a family case plan
with the family court.
Pursuant to the case plan, D.H. and K.H.
each agreed, inter alia, to complete a substance abuse
assessment and to submit to random drug screening.
On June 16,
3
Family courts and district courts have concurrent jurisdiction over
dependency, neglect, and abuse proceedings initiated under Kentucky Revised
Statutes (KRS) 620.010, et seq. See KRS 23A.100 and KRS 610.010.
4
5
See KRS 620.060.
See KRS 620.080 and 620.090.
County, Kentucky.
P.H. resides with her boyfriend in Lawrence
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2003, the family court held an adjudicatory hearing.6
Franklin
testified at the hearing that she was contacted by the police at
approximately 5:30 a.m. on May 5, 2003, and informed that a
domestic violence incident had occurred at the residence of D.H.
and K.H.
Franklin stated that she proceeded to the residence,
where she found B.L.H. and R.D.H. locked in a bedroom.
further testified that D.H.’s hand was bandaged.
Franklin
Franklin
claimed that D.H. told her that she cut her hand on the door of
the house.
Franklin also stated that she believed D.H. and K.H.
permitted overnight guests to stay at their residence on various
occasions.
In addition, Angela Porter, who is also employed by
the Cabinet, testified that D.H. tested positive for marijuana
use in February 2003.
Porter further testified that D.H. and
K.H. had failed to comply with the family case plan.
More
specifically, Porter stated that D.H. and K.H. had failed to
make themselves available for drug screens and that D.H. had
only attended one of her scheduled substance abuse counseling
sessions.
hearing.
P.H., the paternal grandmother, also testified at the
P.H. stated that K.H., her son, had informed her, as
recently as January 2003, that he had a drug problem.
6
See KRS 620.100. D.H. and K.H. were represented by counsel at the
adjudicatory hearing. In addition, the children were represented by a
guardian ad litem.
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D.H. refuted the allegations of neglect and abuse.
She insisted that the children were locked in their bedroom for
their own safety.
D.H. explained that B.L.H. had a habit of
waking up in the middle of the night and wandering around the
house and that she was concerned that he might hurt himself
during one of these late night walks.
D.H. further maintained
that she had taken and passed several drug tests since February
2003.
D.H. was unable, however, to produce any documentation
supporting this assertion.
D.H. further insisted that she was
attempting to complete a substance abuse program but that she
was experiencing difficulties obtaining transportation to and
from her scheduled appointments.
K.H. testified that he was
also attempting to complete a substance abuse program, however,
he acknowledged that he had failed to schedule any appointments.
K.H. denied that any acts of domestic violence occurred in the
presence of the children and he claimed the drug paraphernalia
that was found in his residence belonged to a friend that was
visiting.
On June 17, 2003, the family court entered an
adjudication hearing order.
In sum, the family court found the
children to be neglected and ordered that they remain in P.H.’s
custody.
On July 15, 2003, the Cabinet filed a report with the
court recommending, inter alia, that B.L.H. and R.D.H. remain in
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P.H.’s custody.7
On July 23, 2003, the family court entered a
disposition hearing order adopting the Cabinet’s
recommendations.
The court found that D.H. and K.H. had “failed
to work sufficiently for reunification of [the] children.”
On September 10, 2003, the Cabinet filed a report with
the court recommending that P.H. be granted permanent custody of
the children.
On September 15, 2003, the family court held a
dispositional review hearing.
The Cabinet contended that D.H.
and K.H. had failed to show any progress and it requested that
P.H. be granted permanent custody of the children.
Once again,
D.H. insisted that she was attempting to complete a substance
abuse program.8
D.H.’s mother, E.C., testified that D.H. and
K.H. were now residing with her.9
E.C. stated that she would
make sure that D.H. and K.H. had transportation to and from
their counseling sessions.
The family court ordered D.H. and
K.H. to attend counseling and to continue working with the
Cabinet towards a reunification plan.
On October 31, 2003, the Cabinet filed a case progress
report with the court recommending that P.H. be granted
permanent custody of the children.
In sum, the Cabinet
7
The Cabinet further recommended that D.H. and K.H. obtain counseling and
that they submit to random drug screening.
8
D.H. claimed she was having scheduling difficulties.
9
It appears that D.H. and K.H. were evicted from their residence in September
2003.
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contended that D.H. and K.H. had failed to comply with the
family case plan that was filed on June 3, 2003.
The progress
report indicated that D.H. had attended counseling on a sporadic
basis and that she had missed several scheduled appointments.
The report further indicated that K.H. was no longer residing
with D.H. and that K.H. had made no attempts to cooperate with
the Cabinet.
In closing, the Cabinet requested that it be
“released from providing reasonable efforts to reunify [B.L.H.
and R.D.H.] with their biological parents[.]”
On November 3, 2003, the family court held a
permanency hearing.10
On November 7, 2003, the family court
entered an order granting permanent custody of the children to
P.H.11
In sum, the family court found that “it would be contrary
to the welfare and best interests of the child[ren] to return
[ ] to parental custody” and that it was in their best interests
“that permanent custody be granted to [P.H.]”
The family court
noted that D.H. and K.H. had “failed to make sufficient progress
to regain custody of [their children]” and it released the
Cabinet from further reunification efforts.
On November 13,
2003, the family court entered a permanency hearing order
10
See KRS 610.125.
11
See KRS 620.027.
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consistent with the order it had entered on November 7, 2003.
This appeal followed.12
D.H. raises two issues on appeal.13
She contends the
evidence introduced at the adjudication hearing was insufficient
to support the family court’s determination that B.L.H. and
R.D.H. were neglected and that the family court’s decision to
award permanent custody of the children to P.H. was an abuse of
discretion.14
We disagree with both of these assertions.
An “abused or neglected child” is defined by KRS
600.020, which provides, in pertinent part, as follows:
(1)
“Abused or neglected child” means a
child whose health or welfare is
harmed or threatened with harm when
his parent, guardian, or other person
exercising custodial control or
supervision of the child:
(a)
Inflicts or allows to be inflicted
upon the child physical or
emotional injury as defined in
this section by other than
accidental means;15
12
On December 23, 2003, D.H. filed a motion requesting visitation rights with
B.L.H. and R.D.H., which was granted.
13
K.H. is not a party to this appeal.
currently estranged from her husband.
In her brief, D.H. contends she is
14
In their briefs, the parties fail to correctly state our standard of
review.
15
“Physical injury” is defined by KRS 600.020(44) as “substantial physical
pain or any impairment of physical condition[.]” “Emotional injury” is
defined by KRS 600.020 (24) as “an injury to the mental or psychological
capacity or emotional stability of a child as evidenced by a substantial and
observable impairment in the child’s ability to function within a normal
range of performance and behavior with due regard to his age, development,
culture, and environment as testified to by a qualified mental health
professional[.]”
-8-
(b)
Creates or allows to be created a
risk of physical or emotional
injury as defined in this section
to the child by other than
accidental means;
(c)
Engages in a pattern of conduct
that renders the parent incapable
of caring for the immediate and
ongoing needs of the child
including, but not limited to,
parental incapacity due to alcohol
and other drug abuse[.]
KRS 620.100(3) further provides that “[t]he burden of proof
shall be upon the complainant, and a determination of
dependency, neglect, and abuse shall be made by a preponderance
of the evidence.”16
As previously discussed, Franklin testified at the
adjudication hearing that she was contacted by the police and
informed that a domestic violence incident had occurred at the
residence of D.H. and K.H.
Franklin further testified that she
found B.L.H. and R.D.H. locked in a bedroom when she visited the
residence and she stated that she believed D.H. and K.H.
permitted overnight guests to stay at their residence on various
occasions.
In addition, Porter testified that D.H. tested
positive for marijuana use in February 2003, and there was
evidence indicating that a social worker with the Cabinet found
16
We note that this case does not involve an appeal from an order terminating
parental rights. The distinction is significant as the Legislature has
chosen to impose the more demanding “clear and convincing evidence” standard
in termination of parental rights proceedings. See KRS 625.090.
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drug paraphernalia in the residence during a routine visit in
October 2002.
Moreover, P.H. testified that K.H. had informed
her, as recently as January 2003, that he had a drug problem.
It is well-established that the trial court is the
finder of fact in a custody determination, and the court’s
determination as to the credibility of the witnesses, and the
best interests of the child, will not be disturbed unless
clearly erroneous.17
We conclude that the evidence introduced at
the adjudication hearing was sufficient under the preponderance
of the evidence standard to support the family court’s
determination that B.L.H. and R.D.H. were neglected as defined
by KRS 600.020(1).18
D.H. also appears to contend that the family court’s
decision to award permanent custody of the children to P.H. was
an abuse of discretion.19
We disagree.
“After a trial court
makes the required findings of fact, it must then apply the law
to those facts.
The resulting custody award as determined by
the trial court will not be disturbed unless it constitutes an
17
Kentucky Rules of Civil Procedure (CR) 52.01.
Ky.App., 74 S.W.3d 777, 782 (2002).
See also Sherfey v. Sherfey,
18
The Cabinet contends that D.H. failed to preserve her insufficiency of the
evidence argument with respect to the family court’s determination that
B.L.H. and R.D.H. were neglected by way of a motion “for a directed verdict
or some other peremptory instruction at the adjudication hearing.” Given our
conclusion that the family court’s determination that B.L.H. and R.D.H. were
neglected is supported by a preponderance of the evidence, we see no need to
address this issue.
19
D.H.’s brief actually refers to the clearly erroneous standard of review.
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abuse of discretion.”20
“‘Abuse of discretion in relation to the
exercise of judicial power implies arbitrary action or
capricious disposition under the circumstances, at least an
unreasonable and unfair decision.’”21
As previously discussed, the family court determined
that “it would be contrary to the welfare and best interests of
the child[ren] to return [ ] to parental custody” and that it
was in their best interests “that permanent custody be granted
to [P.H.]”
In addition, the family court found that D.H. and
K.H. had “failed to make sufficient progress to regain custody
of [their children].”
The record clearly indicates that D.H.
made little or no effort to comply with the family case plan
entered on June 3, 2003.
Had D.H. taken a more proactive role
in attempting to regain custody of her children, the family
court’s custody determination may very well have been different.
Unfortunately, this was not the case.
Consequently, we cannot
conclude that the family court abused its discretion by awarding
permanent custody of B.L.H. and R.D.H. to P.H.
Based upon the foregoing reasons, the orders of the
Family Court Division of the Johnson Circuit Court are affirmed.
ALL CONCUR.
20
Sherfey, 74 S.W.3d at 782-83.
21
Id. at 783 (quoting Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684
(1994)).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, P.H.:
John David Preston
Paintsville, Kentucky
Lance A. Daniels
Paintsville, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR FAMILIES AND CHILDREN:
Everett K. Preston II
Paintsville, Kentucky
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