J.A.H. v. M.L.H.
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RENDERED:
AUGUST 11, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001173-MR
J.A.H.
v.
APPELLANT
APPEAL FROM PULASKI FAMILY COURT
HONORABLE DEBRA HEMBREE LAMBERT, JUDGE
ACTION NO. 01-CI-00254
M.L.H.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KNOPF,1 SENIOR JUDGE; MILLER,2
SPECIAL JUDGE.
COMBS, CHIEF JUDGE:
A father, J.A.H., appeals from an order of
the Pulaski Family Court denying his request for a change of
custody for his minor child, A.H., after a suicide attempt by
the child’s mother, M.L.H.
He argues that the family court
erred by failing to change custody.
He believes that the court
incorrectly relied on the medical opinion of the mother’s
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
psychiatrist that she was able to care for the child safely.
He
also cites incomplete findings of fact as a basis for error.
After our review, we agree.
Accordingly, we vacate and remand.
The parents were married in June 2000, and A.H., a
boy, was born March 1, 2001.
The mother had one older child, a
daughter, from a previous relationship; the daughter resided
primarily with her maternal aunt and uncle.
After her second
child was born, M.L.H. began suffering from epileptic seizures.
That second child is A.H., a little boy, who is the subject of
these proceedings.
The parties separated when A.H. was one week
old; they agreed to joint custody with the mother to be the
primary residential custodian.
A dissolution decree entered on
June 27, 2001, formalized their agreement as to custody.
A.H.
continued to reside with his mother and had regular visitation
with his father.
After the dissolution of this marriage, M.L.H. remarried and divorced twice within the next three years.
Her
lifestyle and experiences were traumatic in many respects.
She
accused her second husband of sexually assaulting her while they
were in the process of divorcing.
Her third husband was
suspected of stealing her anti-seizure medication and of
breaking into her home and punching her in the eye.
In
addition, M.L.H. was jailed for a short time and pled guilty to
falsifying a police report after her home was burglarized.
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Shortly after a hysterectomy (performed in April 2004), she was
raped by an acquaintance.
By June 2004, three years since her
divorce from J.A.H., M.L.H. was planning to marry again -- for
the fourth time.
Her fiancé had moved in with her and A.H., who
was now about three years of age.
M.L.H. was supporting the
family of three by utilizing A.H.’s social security and his
child support payments from J.A.H.
After her request for her
own disability was denied, M.L.H. attempted suicide by a drug
overdose.
She was hospitalized in a psychiatric unit from June
10-17, 2004.
After learning of his ex-wife’s hospitalization,
J.A.H. filed a petition on June 16, 2004, requesting a change of
custody, seeking to have himself designated as primary custodian
with M.L.H. to receive supervised visitation.
He alleged that
her suicide attempt and turbulent domestic history were
endangering the welfare of A.H.
At a hearing on July 23, 2004,
the family court granted J.A.H. temporary custody of his son
while the change of custody petition was pending.
Depositions were taken from M.L.H., her aunt, and Dr.
P.D. Patel, a psychiatrist who had been treating her for more
than a year.
In October 2004, M.L.H. completed a parenting
class provided by Adanta Group Clinical Services.
submitted post-hearing memos in November 2004.
Both parties
On February 10,
2005, the family court entered an order denying the request for
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change of custody.
J.A.H. filed his motion to alter, amend, or
vacate, which was denied on May 4, 2005.
This appeal followed.
M.L.H. did not file an appellee brief.
J.A.H. argues that the family court abused its
discretion by failing to consider the character and lifestyle of
the mother before determining whether a change of custody was in
the best interests of A.H.
KRS3 403.340(3) does not allow a
court to modify child custody:
. . .unless after hearing it finds, upon the
basis of facts that have arisen since the
prior decree or that were unknown to the
court at the time of entry of the prior
decree, that a change has occurred in the
circumstances of the child or his custodian,
and that the modification is necessary to
serve the best interests of the child. When
determining if a change has occurred and
whether a modification of custody is in the
best interests of the child, the court shall
consider the following:
(a) Whether the custodian agrees to the
modification;
(b) Whether the child has been integrated
into the family of the petitioner with
consent of the custodian;
(c) The factors set forth in KRS 403.270(2)
to determine the best interests of the
child;
(d) Whether the child's present environment
endangers seriously his physical, mental,
moral, or emotional health;
(e) Whether the harm likely to be caused by
a change of environment is outweighed by its
advantages to him; and
(f) Whether the custodian has placed the
child with a de facto custodian.
3
Kentucky Revised Statutes.
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The father contends that M.L.H.’s relationships with abusive
men, her serious medical conditions, and the attempted suicide
satisfy KRS 403.340(3)(d) so as to warrant modification of
custody.
M.L.H. has been married twice since her divorce from
J.A.H.
At the time of her overdose, she was planning to marry
her fourth husband.
She alleged that her second ex-husband
sexually assaulted her while they were in the process of
divorcing and also that she was raped by an acquaintance in
April 2004.
She suffers from epileptic seizures, diabetes, and
depression.
At the time of the filing of the petition for
change of custody, M.L.H. planned to move into a trailer with
her fiancé and A.H.
J.A.H. expressed concern that she and his
son would be left alone while the fiancé was at work.
Without
directing us to the record, he contends that A.H. has been
present when his mother suffered seizures.
However, there is no
dispute that A.H. has never been physically harmed while in the
care of his mother.
The Kentucky Supreme Court has addressed the issue of
allowing a change of custody when a child’s custodian places him
in an environment where he may be subjected to future harm.
Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983), it observed:
A trial judge has a broad discretion in
determining what is in the best interests of
children when he makes a determination as to
custody. In many instances he will be able
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In
to draw upon his own common sense, his
experience in life, and the common
experience of mankind and be able to reach a
reasoned judgment concerning the likelihood
that certain conduct or environment will
adversely affect children. It does not take
a child psychologist or a social worker to
recognize that exposure of children to
neglect or abuse in many forms is likely to
affect them adversely. Many kinds of neglect
or abuse or exposure to unwholesome
environment speak for themselves, and the
proof of the neglect or abuse or exposure is
in itself sufficient to permit a conclusion
that its continuation would adversely affect
children.
We also think the trial court is not
precluded from consideration of
circumstances where the neglect, abuse, or
environment has not yet adversely affected
the children but which, in his discretion,
will adversely affect them if permitted to
continue. (Emphasis added).
J.A.H. relies on Krug to support his contention that the family
court erred in denying his request for custody modification.
We
agree.
A.H. was not present during his mother’s suicide
attempt, nor was he with her at the time that she was assaulted.
However, the court failed to address the incidents at all as to
how their possible repetition might endanger the physical,
mental, moral, or emotional health of the child.
There was no
inquiry into the likelihood that the mother may have become
involved in a pattern of behavior that would adversely affect
A.H.
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Dr. Patel testified by deposition that M.L.H.’s
seizure condition is under control and that she had been
compliant with her psychiatric treatment since she became his
patient in 2003.
Although she had attempted suicide, she did
seek medical help after taking the drug overdose.
Based on the
treatment that she received while hospitalized and her follow-up
care, Dr. Patel initially expressed an opinion that M.L.H. could
safely care for a young child -- as long as she continued to
take her medications properly.
J.A.H., however, argues that the family court erred in
relying on Dr. Patel’s opinion after it learned that his opinion
was based on an inadequate and false patient history.
J.A.H.
points out that Dr. Patel had not been aware of a previous
psychiatric hospitalization.
In addition, Dr. Patel was not
informed about the details of her tumultuous personal life.
In her deposition, M.L.H. admitted that she was
briefly hospitalized for depression some seven years earlier
when she was pregnant with her first child.
She denied that she
had ever thought about or attempted suicide prior to her June
2004 overdose.
Based on a discrepancy in the urine screen
performed at the hospital, J.A.H. claims that M.L.H. lied to her
doctor about the medications on which she overdosed.
M.A.H.
told the hospital that she overdosed on Klonopin and
Amitryptylines; Dr. Patel stated that her urine screen was
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negative for benzodiazepines (which would include Klonopin).
Her Dilantin levels were elevated.
J.A.H. claims that this
discrepancy is evidence that M.L.H. lied to her treating
physician about the method she used to attempt suicide.
While the basis of this contradiction has not been
resolved by follow-up testimony, it is nonetheless an additional
gap in the knowledge on which Dr. Patel based his original
opinion of M.L.H.’s fitness for custody.
(Page 12 of his
deposition).
Okay, I guess going back down on my
statement . . . . If somebody steals your
medication and you have a seizure condition,
then yes you are predisposing yourself to
having seizures and endangering your life
and you may not be able to provide for
yourself or somebody else who’s under your
care.
As to the reliability of a medical opinion founded upon a faulty
history, the Supreme Court of Kentucky has aptly observed:
Medical opinion predicated upon . . .
erroneous or deficient information that is
completely unsupported by any other credible
evidence can never, in our view, be
reasonably probable.
Cepero v. Fabricated Metal Corporation, 132 S.W.3d 839, 842 (Ky.
2004).
The family court failed to address the discrepancy in
Dr. Patel’s opinion.
It also omitted any consideration or
evaluation of M.L.H.’s lifestyle as to its potential (or lack of
likelihood) to have an adverse affect upon A.H.
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Its principal
findings relevant to this appeal contain the following
observations:
5. In the instant case, the Petitioner had
been the primary caregiver for the child
during his entire three years of life until
a voluntary temporary relinquishment of that
role during the pendency of Respondent’s
motion to modify custody. After Respondent
was designated as primary custodian, he
relegated the duties of day to day
caregiving to his grandparents (the child’s
great grandparent) for a significant period
of time.
6. At a point in time when the child was
not being cared for by the Petitioner, she
attempted suicide then sought medical
treatment and follow up care. Petitioner’s
treating mental health professional, Dr.
Patel testified that he saw no problem with
Petitioner being an appropriate caregiver
for a three year old child.
Findings of Fact, Conclusions of Law, and Order, February 10,
2005, p. 2.
(Emphasis added.)
J.A.H. contends that the family court erred by
entering incomplete findings of fact.
We agree.
CR4 52.01
provides as follows:
In all actions tried upon the facts without
a jury or with an advisory jury, the court
shall find the facts specifically and state
separately its conclusions of law thereon
and render an appropriate judgment; and in
granting or refusing temporary injunctions
the court shall similarly set forth the
findings of fact and conclusions of law
which constitute the grounds of its action.
Requests for findings are not necessary for
purposes of review except as provided in
4
Kentucky Rules of Civil Procedure.
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Rule 52.04. Findings of fact shall not be
set aside unless clearly erroneous, and due
regard shall be given to the opportunity of
the trial court to judge the credibility of
the witnesses. . . . (Emphasis added).
The family court requested submission of findings, and the
parties complied.
J.A.H. proposed numerous factual findings,
which included information about M.L.H.’s mental and physical
health, her suicide attempt, her multiple marriages, the
physical and sexual abuse by the
men in her life, the fact that
Dr. Patel was not aware of all of these circumstances, and an
allegation that her seizures were not under control.
Nonetheless, the family court summarily concluded that “the
Movant has failed to meet the burden of proof required for a
modification of the Court’s prior custody order.”
We hold that the family court clearly erred in
omitting to address and to evaluate the serious and potentially
dangerous impact of the problems set forth in J.A.H.’s proposed
findings.
The incomplete medical history on which Dr. Patel
relied is yet another compelling reason that this case must be
re-visited and reconsidered by the family court.
Accordingly, we vacate this matter and remand it to
the family court for entry of an order re-evaluating this case
and specifically setting forth the findings upon which it bases
its conclusion.
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We vacate the order of the Pulaski Family Court and
remand for entry of an order consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO APPELLEE BRIEF
Paul F. Henderson
Somerset, Kentucky
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