JANNA STOCK v. STEVEN MATTHEW BAKER AND KATHY BAKER
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RENDERED: MAY 18, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001466-ME
JANNA STOCK
v.
APPELLANT
APPEAL FROM MCCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 05-CI-00893
STEVEN MATTHEW BAKER AND KATHY BAKER
APPELLEES
OPINION
AFFIRMING
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BEFORE: THOMPSON AND VANMETER, JUDGES; PAISLEY,1 SENIOR JUDGE.
PAISLEY, SENIOR JUDGE: Janna Stock appeals from the Findings of Fact and Order
of the McCracken Family Court entered on April 6, 2006, and its subsequent order
denying her motion to alter, amend or vacate. The family court found that Janna was
unfit to be the custodian of her daughter, Olivia, due to her history of drug abuse. The
court awarded joint custody to the child’s natural father, Steven Matthew Baker, and her
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Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
paternal grandmother, Kathy Baker. Janna argues that the court erred in granting Kathy
the same status as a parent in making its custody determination.
Steven Matthew Baker (“Matthew”) and Janna Stock are the parents of
Olivia Sky Baker, who was born on December 17, 2002. The couple lived together for
about one year after Olivia’s birth. Matthew’s parents then purchased a mobile home for
the couple to live in, but they separated shortly afterwards and Janna moved in with a
friend. Kathy Baker, Matthew’s mother, frequently looked after Olivia. Janna’s use of
illegal drugs worsened during this period, and eventually, in August 2005, Kathy sought
emergency custody of Olivia. Following a hearing, Janna entered into an agreed order
granting temporary custody of Olivia to Kathy on October 6, 2005.
Meanwhile, on August 12, 2005, Matthew had filed a petition to gain
permanent custody of Olivia. Kathy filed a motion to intervene in this custody action,
and an intervening complaint. The motion was granted by an order entered November
22, 2005.
The custody hearing was held on February 6, 2006. Evidence was
presented that Matthew had a history of criminal activity. At the time of the hearing, he
was on probation following a conviction for the felony of receiving stolen property, and
was facing new felony charges of burglary in the first degree and assault in the fourth
degree. Janna, on the other hand, admitted to a history of serious drug abuse. She
testified that she had used cocaine for four years, and had been addicted to
methamphetamine. Janna admitted that she had lied about the extent of her drug use at
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the emergency removal hearing, and that she had failed several drug tests. Kathy
described how on one occasion Janna had come to her house and slept through an entire
weekend and on another occasion had “crashed” to the point where Kathy was unable to
wake her up. Testimony from one of Janna’s neighbors indicated that there was a lot of
partying at her house, that her electricity had been cut off on two occasions, and that
Olivia sometimes refused to answer the door when Kathy or Matthew came to the house
to see Olivia. Janna also testified, however, that she had completed a drug rehabilitation
program in September, 2005, and had tested negative for drug use since that time.
As to Kathy’s role in Olivia’s life, evidence was adduced that Kathy had
been the child’s primary caregiver since her birth, and that Kathy had eventually quit her
job in order to devote more time to looking after Olivia.
The family court found that Kathy had not looked after Olivia for
sufficiently long periods to qualify as a de facto custodian under Kentucky Revised
Statutes (KRS) 403.270(1), which requires a residency period of six months or more.
After expressing serious concerns about Janna’s history of drug use, the court awarded
joint custody to Matthew and Kathy, based upon Matthew’s agreement to waive his
superior right to custody. Janna was granted standard, unsupervised visitation privileges.
In its order denying Janna’s subsequent motion to alter, amend or vacate, the court
explicitly stated that it had found Janna an unfit custodian for Olivia.
Janna argues that because Kathy did not qualify as a de facto custodian, she
colluded with Matthew in order to circumvent the statutory scheme which provides that
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parents have a superior right to custody of their children. She argues that Kathy was
improperly allowed to assume the same status as a parent in the custody determination.
She also disputes the court’s finding that she was an unfit custodian for Olivia.
Janna is correct that Kathy could have attained equal status to Janna and
Matthew in the custody dispute if she had qualified as a de facto custodian. See KRS
403.270(1). When a custody dispute arises between a parent and a nonparent who does
not meet the legal definition of a de facto custodian, however, the nonparent may still
acquire equal status if he or she is able
to prove that the case falls within one of two exceptions to
parental entitlement to custody. One exception to the parent’s
superior right to custody arises if the parent is shown to be
“unfit” by clear and convincing evidence. A second
exception arises if the parent has waived his or her superior
right to custody.
Moore v. Asente, 110 S.W.3d 336, 359 (Ky. 2003).
Under the first exception, the nonparent must first show by clear and
convincing evidence that the parent has engaged in conduct similar to activity that could
result in the termination of parental rights by the state. Id. at 360.
The type of evidence that is necessary to show unfitness on
the part of the mother in this custody battle with a third party
is: (1) evidence of inflicting or allowing to be inflicted
physical injury, emotion 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., n. 100.
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Under the statutory scheme governing the termination of parental rights,
KRS 625.090 (1) provides that a circuit court may involuntarily terminate parental rights
only if it finds by clear and convincing evidence that the child is abused or neglected, and
that termination would be in the child’s best interest. KRS 600.020(1)(c) defines an
“abused or neglected child” as one whose health or welfare is harmed or threatened with
harm when his parent “[e]ngages 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 as defined in KRS 222.005[.]”
Next, under KRS 625.090(2), the court must also find by clear and
convincing evidence the existence of one or more of several grounds, including the
following:
(g) That the parent, for reasons other than poverty alone, has
continuously or repeatedly failed to provide or is incapable of
providing essential food, clothing, shelter, medical care, or
education reasonably necessary and available for the child’s
well-being and that there is no reasonable expectation of
significant improvement in the parent’s conduct in the
immediately foreseeable future, considering the age of the
child[.](emphasis supplied.)
Janna has argued that the court failed to acknowledge the improvements she
has made in her lifestyle, such as her completion of the rehabilitation program and her
testimony that she had been drug-free for several months, and had instead based its
decision solely on her past conduct. She cites in support of her argument our opinion in
Forester v. Forester, where we stated that
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where lack of ability to provide parental care and protection is
the basis for involuntary termination, the trial court must find
that there is no reasonable expectation of improvement in
parental care and protection as required by KRS
625.090(2)(d).
979 S.W.2d 928, 930 (Ky.App. 1998).
But Janna’s testimony that she had completed the rehabilitation program
and been drug-free for several months had to be balanced against the evidence offered
about the pattern of her behavior in the past. Janna’s abuse of drugs began even before
Olivia’s birth, and continued throughout the child’s life, with no evidence that Janna had
made serious efforts to stop this destructive behavior until she entered the rehabilitation
program in the fall of 2005. Janna consistently relinquished her child care
responsibilities to Kathy. At the emergency custody hearing, Janna lied about the
seriousness of her drug use, and failed a drug test just days after she had lost custody of
Olivia in the emergency proceedings. The court expressed its concerns about Janna’s
usage of methamphetamine, which it described as “one of the most highly addictive drugs
known to mankind.” Although the court is directed by the statute to consider the
possibility of reasonable improvement on the parent’s part, it also had to consider the
evidence of Janna’s years of drug abuse and addiction and her consequent neglect of
Olivia.
Regardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
reached a contrary finding, due regard shall be given to the
opportunity of the trial court to judge the credibility of
witnesses because judging the credibility of witnesses and
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weighing evidence are tasks within the exclusive province of
the trial court.
Vinson v. Vinson, 136 S.W.3d 465, 470 (Ky. 2004)(citations and quotation marks
omitted).
There was substantial evidence, based on Janna’s prior behavior, to support
the finding that there was no reasonable expectation of a significant improvement in
Janna’s conduct. The court did not err in concluding that Janna had relinquished her
superior right to custody.
A second exception to the parental entitlement to custody “arises if the
parent has waived his or her superior right to custody.” Moore, 110 S.W.3d at 359. It is
undisputed that Matthew’s waiver of his superior right to custody in favor of his mother
was both knowing and voluntary. After determining that Janna was unfit, and that
Matthew had waived his right, the court was free to determine custody in accordance
with the child’s best interest. Id. at 360.
For the foregoing reasons, the findings of fact and order of the McCracken
Family Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Richard D. Null
Mayfield, Kentucky
John T. Reed
Paducah, Kentucky
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