B.C. v. B.T. AND K.F., JOINT CUSTODIANS OF N.C.
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RENDERED:
DECEMBER 29, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000045-ME
B.C.
v.
APPELLANT
APPEAL FROM McCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 03-J-00320-001
B.T. AND K.F.,
JOINT CUSTODIANS OF N.C. 1
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
B.C. has appealed from the November 3, 2004,
order of the McCracken Family Court which granted custody of his
minor child, N.C., to B.T., the paternal grandmother of the
child, and K.F., the paternal aunt of the child.
Having
concluded that the family court’s factual findings were not
clearly erroneous, that it correctly applied the law, and that
1
The parties will be referred to by their initials or family status to
protect the interests of the minor child.
it did not abuse its discretion in making its custody award, we
affirm.
B.C. and his wife, R.C., are the natural and
biological parents of N.C., whose date of birth is June 17,
2002.
On July 18, 2003, a juvenile dependency, neglect, and
abuse petition was filed in the McCracken Family Court on behalf
of N.C. by Alexia J. Pritchett, a social worker with the Cabinet
for Families and Children.
The petition stated that the mother
had “verbally and physically assault[ed]” N.C.’s older sibling
and the Cabinet feared that since the older sibling had been
removed from the home that the mother’s anger would turn to N.C.
The petition further stated:
The home is unsafe for a thirteen-month old
child. The home is cluttered with piles of
clothes and other items several feet high.
[The mother] stores her medications on the
couch. [The mother] stated the couch was
her medicine cabinet and refused to move the
medication stating [the child] does not
climb on the couch. [The mother] makes baby
rattles out of medication bottles and blackeyed peas. [The father] works six days a
week driving a truck out of town.
An emergency custody order was entered the same date,
temporarily placing N.C. in the custody of the Cabinet. 2
On July
22, 2003, a temporary removal hearing was held and the family
2
The family court found all reasonable efforts were made to prevent the
child’s removal from the home.
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court entered an order placing N.C. in the temporary custody of
B.T., the paternal grandmother.
On September 18, 2003, the family court held an
adjudication hearing.
The family court found that N.C. was a
neglected child and allowed temporary custody to remain with the
paternal grandmother.
At a disposition hearing held on October
16, 2003, the family court found that because the mother
neglected the minor child, 3 and even though reasonable efforts
had been made to prevent the child’s removal from the home, it
was in the best interests of the minor child to grant his
temporary custody to the paternal grandmother.
Pursuant to an
amended disposition order entered on October 27, 2003, C.C., the
mother’s sister, N.C.’s maternal aunt, was granted one overnight
visitation per week with N.C., with the stipulation that if the
mother was present for the visitation that her visitation must
be supervised or the visitations at the maternal aunt’s home
would terminate. 4
3
The Cabinet filed a predispositional investigation report prior to the
disposition order being entered. While the Cabinet found the home clean and
medicines were up away from children, it had concern because the mother had
only visited with the minor child once or twice a week, while she had the
opportunity to do so every day. The Cabinet report states: “The Cabinet
recommends that [the mother] receive individual counseling to work on her own
issues before the children are returned to her.”
4
The family court noted in its custody order entered on December 3, 2004,
that the maternal aunt did not file a response or appear at the hearing on
the motion for permanent custody brought by the paternal grandmother and the
paternal aunt.
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On December 18, 2003, B.T., the paternal grandmother,
and K.F., the paternal aunt, filed a verified motion for
permanent custody of N.C.
During this time, the father filed a
motion for a rule on September 27, 2004, stating that the
paternal grandmother was denying him visitation with N.C.
However, neither the father nor the mother filed a response to
the paternal grandmother’s and the paternal aunt’s motion for
custody.
The father’s motion for a rule was renoticed on March
3, 2005.
There is no order of record as to the father’s motion
for a rule.
N.C.’s guardian ad litem filed her report on
November 10, 2004, recommending that the motion for permanent
custody be granted.
Following several delays, a hearing was
held in the family court on November 8, 2004.
The family court,
in an order entered on December 3, 2004, found as follows:
1.
The natural parents had inadequate
housing for the minor child at the time
of his removal from the home. The home
continues to be inadequate as of the
date of the hearing. In fact, [the
mother] testified that the home is
uninsurable due to structural problems.
One room has no floor whatsoever, only
open floor joists. This condition
allows snakes, mice and insects to come
into the home. One of the bathrooms is
completely unusable.
2.
The house was unsafe for a crawling
infant. At the time of the removal,
the house was littered with piles of
clothing and other items. Medicines
were kept within easy reach of the
child. A loaded gun was left on a
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nightstand, within easy reach of the
child. The baby’s older brother (age
9) took and shot the gun in the house
on one occasion. A whiskey bottle was
“stored” on the floor by the father’s
chair, within easy reach of the child.
Though these issues were addressed to
the parents by Social Services prior to
the removal, the conditions still
existed at the time of removal.
Neither [the father] nor [the mother]
recognized the seriousness of these
issues.
3.
[The mother] is an unfit parent. She
yelled, cursed and screamed at the
children unnecessarily and
inappropriately. She has also bit and
choked her older child. Her older son
was removed from her home due to her
neglect and abuse. . . .
4.
[The father] failed to provide adequate
shelter for his child prior to the
removal. [The father] has made no
significant effort over the fifteen
month period [the child] has been gone
to make the needed improvements to the
house.
5.
Neither parent has provided any
financial support for the minor child
since June, 2003.
6.
The parents had supervised visitation
throughout this proceeding. The
parents have not fully exercised said
visitation. They did not visit with
him except a few hours during the week
preceding the hearing, though the child
was available. [The father] has had
the opportunity to visit with his
child, but chose not to for a period of
two months (January and February 2004).
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The trial court also found both parents to be unfit, awarded the
paternal grandmother and the paternal aunt joint custody of
N.C., and ordered that the father and the mother be required to
pay child support. 5
From that order, the father filed this
appeal. 6
This proceeding was initially brought by the Cabinet
based on a petition alleging that N.C. was an abused and
neglected child as described in KRS 7 620.070.
McCracken County
has a family court system in place, thus the actions of the
family court in this case are viewed differently than a district
court carrying out the same functions.
The implementation of
the Family Court System has made the analysis of these type of
cases somewhat confusing.
Before we begin our analysis of the
issues at hand, we will outline the procedures, as set forth by
statute.
First, we will address the jurisdiction of the family
court.
It is a misnomer to say that a family court serves the
role of a district court and a circuit court.
KRS 23A.100
specifically states that the family court is “a division of
Circuit Court with general jurisdiction pursuant to Section 112
(6) of the Constitution of Kentucky.”
5
As a division of the
The record does not indicate whether child support was ever set.
6
The mother is not a party to this appeal, thus her rights to custody of N.C.
will not be determined by this Court at this time.
7
Kentucky Revised Statutes.
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circuit court, the family court has jurisdiction of cases,
including child custody and visitation. 8
Further, while still
acting as a division of the circuit court, the family court has
“additional jurisdiction” over “[d]ependency, neglect, and abuse
proceedings under KRS Chapter 620,” 9 such cases which are usually
under the jurisdiction of the district courts in Kentucky. 10
Thus, the family court when hearing cases normally within the
district court’s jurisdiction, is not sitting as a district
court, but rather as a circuit court given special jurisdiction
to hear cases normally under the district court’s charge.
This distinction is critical as it justifies this
Court’s authority to hear the case before us.
Appeals from
district court orders are appealed to the circuit court, not to
this Court. 11
However, regardless of the type of case before a
family court, it is still acting as a circuit court and thus an
appeal to this Court is proper.
Therefore, it is irrelevant
whether the current action is one that would have been handled
by a district court or a circuit court, as long as it is within
the jurisdiction given to the family court under KRS 23A.100,
our review is proper.
8
KRS 23A.100(1)(b) and (1)(c).
9
KRS 23A.100(2)(c).
10
KRS 610.010(1)(e) and (4); see also KRS 620.070(1).
11
KRS 610.130.
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Second, we will analyze the procedure used by either a
district court or a family court under KRS Chapter 610 and KRS
Chapter 620 to determine whether temporary removal of a child is
necessary based on his status as a dependant, neglected, or
abused child.
KRS 600.020(1) defines an abused or neglected
child as follows:
[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;
(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
. . . ;
(d)
Continuously or repeatedly fails or refuses
to provide essential parental care and
protection for the child, considering the
age of the child;
. . .
(h)
Does not provide the child with adequate
care, supervision, food, clothing, shelter,
and education or medical care necessary for
the child’s well-being. . . .
The formalities of filing a dependency, neglect, or
abuse action are outlined in KRS 620.070.
-8-
All juvenile
proceedings “shall consist of two (2) distinct hearings, an
adjudication and a disposition[.]” 12
In a dependency, neglect,
or abuse case, “[t]he adjudication shall determine the truth or
falsity of the allegations in the petition and shall be made on
the basis of an admission or confession of the child to the
court or by the taking of evidence.” 13
“The 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.” 14
The adjudication, which determines whether a
child has in fact been neglected or abused is considered a trial
and the parties have a right to appeal. 15
Once the family court has determined by a
preponderance of the evidence 16 that a minor child is dependant
due to neglect or abuse, the family court will hold a separate
hearing to determine the temporary removal of the child pursuant
to KRS 620.080.
“The temporary removal hearing statute’s
substantive standard strikes the balance between parental rights
and child protection by erring on the side of child protection.
. . .
The focus of a temporary removal hearing is the
12
KRS 610.080.
13
KRS 610.080(1); see also KRS 620.100(3).
14
KRS 620.100(3).
15
KRS 620.100(2); see also KRS 610.060(1)(a)(noting that both the child and
his or her parents have a right to counsel at such hearings).
16
KRS 620.100(3).
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possibility of harm to the child rather than a determination of
the truth or falsity of the dependency, neglect, or abuse
petition’s allegations” [footnote omitted]. 17
The burden of
proof is the same as at the adjudication hearing, i.e.,
preponderance of the evidence; however, at a temporary removal
hearing, hearsay testimony is allowed for good cause. 18
Should
the family court decide that the minor child should be removed
from the home, it shall issue a temporary custody order stating
“the specific reasons for removal and show[ing] that alternative
less restrictive placements and services have been considered.” 19
KRS 620.140 provides that continuation in the home
must “be contrary to the welfare of the child[.]” 20
This statute
seems to indicate that the family court should make reasonable
efforts to reunify a child with its family as defined in KRS
620.020(10). 21
However, pursuant to KRS 610.127(7),
“[r]easonable efforts as defined in KRS 620.020 shall not be
required to be made with respect to a parent of a child if a
17
15 Graham & Keller Kentucky Practice § 6.15 (2003).
18
KRS 620.080(2).
19
KRS 620.090.
20
See also KRS 620.130(1).
21
See KRS 620.020(10) (stating that “‘[r]easonable efforts’ means the
exercise of ordinary diligence and care by the department to utilize all
preventive and reunification services available to the community in
accordance with the state plan for Public Law 96-272 which are necessary to
enable a child to safely live at home . . .”).
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court of competent jurisdiction determines that the parent has:
(7) Other circumstances in existence that make continuation or
implementation of reasonable efforts to preserve or reunify the
family inconsistent with the best interests of the child and
with the permanency plan for the child.”
In determining the temporary custody of a child found
to be dependant, neglected, or abused, the family court shall
make its determination based on the best interests of the
child. 22
22
In determining custody in such a situation, the family
See KRS 620.023 which states as follows:
(1)
Evidence of the following circumstances if
relevant shall be considered by the court in all
proceedings conducted pursuant to KRS Chapter
620 in which the court is required to render
decisions in the best interest of the child:
(a)
Mental illness as defined in KRS 202A.011
or mental retardation as defined in KRS
202B.010 of the parent, as attested to by
a qualified mental health professional,
which renders the parent unable to care
for the immediate and ongoing needs of the
child;
(b)
Acts of abuse or neglect as defined in KRS
600.020 toward any child;
(c)
Alcohol and other drug abuse, as defined
in KRS 222.005, that results in an
incapacity by the parent or caretaker to
provide essential care and protection for
the child;
(d)
A finding of domestic violence and abuse
as defined in KRS 403.720, whether or not
committed in the presence of the child;
(e)
Any other crime committed by a parent
which results in the death or permanent
physical or mental disability of a member
of that parent’s family or household; and
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court, or a district court “shall utilize the provisions of KRS
Chapter 403 23 relating to child custody and visitation.” 24
(f)
(2)
23
Once a
The existence of any guardianship or
conservatorship of the parent pursuant to
a determination of disability or partial
disability as made under KRS 387.500 to
387.770 and 387.990.
In determining the best interest of the child,
the court may consider the effectiveness of
rehabilitative efforts made by the parent or
caretaker intended to address circumstances in
this section.
KRS 403.270(2) states as follows:
The court shall determine custody in accordance with
the best interests of the child and equal consideration
shall be given to each parent and to any de facto
custodian. The court shall consider all relevant factors
including:
(a)
The wishes of the child’s parent or parents, and any
de facto custodian, as to his custody;
(b)
The wishes of the child as to his custodian;
(c)
The interaction and interrelationship of the child
with his parent or parents, his siblings, and any
other person who may significantly affect the child’s
best interest;
(d)
The child’s adjustment to his home, school, and
community;
(e)
The mental and physical health of all individuals
involved;
(f)
Information, records, and evidence of domestic
violence as defined in KRS 403.720;
(g)
The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian;
(h)
The intent of the parent or parents in placing the
child with a de facto custodian; and
(i)
The circumstances under which the child was placed or
allowed to remain the custody of a de facto
custodian, including whether the parent now seeking
custody was previously prevented from doing so as a
result of domestic violence as defined in KRS 403.720
and whether the child was placed with a de facto
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family court has made a disposition as to the temporary custody
placement in a dependency, neglect, or abuse case, “[t]he
family, custodian, guardian, legal representative of such child”
may move the family court to continue the custody order prior to
expiration. 25
There is no dispute between the parties that the
paternal grandmother and the paternal aunt were de facto
custodians, as defined in KRS 403.270(1)(a), at the time of
filing the motion for permanent custody of N.C.
Thus, there is
no dispute that the family court should have used the “best
interests of the child” standard in determining N.C.’s custody
between his de facto custodians and his biological father, B.C.,
as all are on equal footing. 26
However, the father’s arguments
lie in whether the family court erred in its analysis of KRS
403.270(2) and whether the father was given equal consideration
with the de facto custodians.
In reviewing a child-custody award, the appellate
standard of review includes a determination of whether the
custodian to allow the parent now seeking custody to
seek employment, work, or attend school.
24
KRS 620.027 (stating that “[i]n any case where the child is actually
residing with a grandparent in a stable relationship, the court may recognize
the grandparent as having the same standing as a parent for evaluating what
custody arrangements are in the best interest of the child”).
25
KRS 610.120(1)(b).
26
KRS 403.270(2).
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factual findings of the family court are clearly erroneous. 27
finding of fact is clearly erroneous if it is not supported by
substantial evidence, which is evidence sufficient to induce
conviction in the mind of a reasonable person. 28
Since the
family court is in the best position to evaluate the testimony
and to weigh the evidence, an appellate court should not
substitute its own opinion for that of the family court. 29
If
the findings of fact are supported by substantial evidence and
if the correct law is applied, a family court’s ultimate
decision regarding custody will not be disturbed, absent an
abuse of discretion. 30
Abuse of discretion implies that the
family court’s decision is unreasonable or unfair. 31
Thus, in
reviewing the decision of the family court, the test is not
whether the appellate court would have decided it differently,
but whether the findings of the family court are clearly
erroneous, whether it applied the correct law, or whether it
abused its discretion. 32
27
Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719
S.W.2d 442, 444 (Ky. 1986).
28
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
29
Reichle, 719 S.W.2d at 444.
30
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); Sherfey v. Sherfey, 74
S.W.3d 777, 782 (Ky.App. 2002).
31
Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
32
Sherfey, 74 S.W.3d at 782-83.
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A
The father begins his argument by contesting the
family court’s initial adjudication of neglect and order of
removal of N.C. from his home.
He argues that there was not
sufficient evidence to justify the initial removal on September
18, 2003, and that that decision was based, in part, on hearsay
evidence.
This argument is not well founded.
The original family court action brought under KRS
620.070 had been final for two months prior to the filing of a
motion for permanent custody of N.C. by the paternal grandmother
and the paternal aunt.
Pursuant to KRS 620.110, any person
aggrieved by the issuance of a temporary order may appeal that
decision.
The father took no steps to do so, and even during
the year in which the motion for permanent custody was filed and
the hearing was held, the father neither filed a reply to the
motion, nor did he file his own motion for custody.
There was a
substantial and valid basis for N.C.’s removal and the family
court had jurisdiction.
Thereafter, the child and the parents
were properly represented and the matter proceeded to its
conclusion following all constitutional due process protections
and Kentucky statutory law.
The family court’s finding on the
initial determination of neglect and removal were not clearly
erroneous.
The father also argues that when making the custody
award the family court should have considered the issues that
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led to the removal 33 and also the steps taken by him and the
mother to alleviate the issues that led to the removal. 34
It is
evident by reviewing the family court’s custody order that the
family court heard evidence regarding both of these issues and
made appropriate findings.
The father also argues that the family court erred by
failing to accept the findings of the expert witness, Dr.
Stephen Alexander as Dr. Alexander provided the only expert
testimony regarding the mother’s mental condition.
Dr.
Alexander testified that the mother had no clinical
psychopathology.
First, it should be pointed out that the
mother is not a party to this appeal and how this report
affected her chances for custody of N.C. is moot.
Regardless of
whether the mother had a defined psychological condition, the
family court supported its decision with overwhelming evidence
of the mother’s actions that were contrary to N.C.’s best
interests.
Therefore, we find no error by the family court as
to this issue.
The father then argues that there was no evidence that
he failed to protect N.C., but rather that there was evidence he
had taken a different job to put him home on a regular basis,
had supplied health insurance, and had bought various
33
KRS 403.270(2)(i).
34
KRS 620.023(2).
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necessities for N.C.
However, the father failed to request
amended or additional findings pursuant to CR 52.02.
When a
party fails to make a CR 52.02 request for additional findings,
CR 52.04 provides that:
A final judgment shall not be reversed or
remanded because of the failure of the trial
court to make a finding of fact on an issue
essential to the judgment unless such
failure is brought to the attention of the
trial court by written request for a finding
on that issue or by a motion pursuant to
Rule 52.02.
The father made no such motion.
His failure to request
additional findings of fact by the family court is fatal to his
appeal as to the issue of the lack of such findings of fact. 35
Our Legislature, through KRS 403.270(2), commands the
family court to determine custody based on the best interests of
the child, while considering all appropriate parties equally and
considering all relevant factors.
This Court has determined
that there is no “significant difference” in the analysis
required to make an award of joint custody versus sole custody. 36
The father argues that he was not given adequate consideration
for joint custody of N.C.
However, in reviewing the record and
the family court’s final order, it appears that the family court
considered all relevant factors before determining what custody
35
Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997)(citing Cherry, 634 S.W.2d
at 423.
36
Squires v. Squires, 854 S.W.2d 765, 768 (Ky. 1993).
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arrangement was in the best interests of N.C.
The family court
considered the evidence presented, including the testimony of
the parties.
Considering the clear evidence of abuse and
neglect, we agree with the family court that the evidence
overwhelmingly demonstrated that the father was unfit to parent
N.C.
Thus, the evidence in the record supports the family
court’s findings.
For the foregoing reasons, the order of the McCracken
Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Delbert K. Pruitt
Paducah, Kentucky
Vicki R. Holloway
Paducah, Kentucky
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