Opinion
NO. 2013-CA-000139-ME
01-31-2014
MICHAEL DEAN APPELLANT v. JEREMY BURNETTE; REBECCA BURNETTE; D.D., AN INFANT; AND FELICIA HICKS APPELLEES
BRIEFS FOR APPELLANT: Winter R. Huff Monticello, Kentucky BRIEF FOR APPELLEES, JEREMY BURNETTE AND REBECCA BURNETTE: D. Bruce Orwin Somerset, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE FAMILY COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NO. 11-CI-00250
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Michael Dean appeals the November 30, 2012 order of the Wayne Family Court which awarded permanent custody of his minor child, D.D. (Child), to Rebecca and Jeremy Burnette. Because we cannot conclude that the finding concerning Child's best interest was erroneous, we affirm.
Child was born August 18, 2008, but was removed from her parents' custody as an infant and successively placed in the care of various temporary custodians, including the Burnettes. Finally, Child was placed with the Burnettes on a long-term basis, and she remained in their care for the fifteen months preceding the initiation of the action now before us. The April 22, 2010 order of temporary custody is founded on Kentucky's dependency, neglect, and abuse statutes codified in KRS Chapter 620.
Kentucky Revised Statutes.
On July 7, 2011, the Burnettes filed a petition for permanent custody of Child, who was then nearly three years old. They asserted that they had attained de facto custodial status and that it was in the best interest of Child to remain in their care.
Dean responded. He opposed the Burnettes' request for permanent custody and filed a motion for visitation. On appeal, he argues that we should reverse the family court order awarding permanent sole custody to the Burnettes so that they will continue under the order granting temporary custody. Our reversal would allow him time to complete a residential substance abuse program following which he could pursue custody of Child.
Child's mother also responded and participated in the litigation before the family court, but she has not participated in this appeal.
In deciding custody, the court found it in Child's best interests to make a permanent award to the Burnettes and entered an order of initial custody to that effect. Dean's motion for visitation was denied, and this appeal followed.
We perceive a number of errors in the proceedings which culminated in this order. First, the order invokes KRS 403.822, a portion of the UCCJEA, despite there being no issue regarding interstate jurisdiction. N.B. v. C.H., 351 S.W.3d 214, 221 (Ky. App. 2011) ("The role of the UCCJEA was misconceived here. . . . No jurisdictional issue was before the court."). Dean does not raise this as a point of error. However, because the family court has continuing supervision of this case and is likely to entertain future motions, we remind the court that "[i]f jurisdiction is not an issue, the UCCJEA is not applicable, and the trial court is in error by applying it." Richard A. Revell, Diana L. Skaggs, Kentucky Divorce § 9.2 (citing N.B. v. C.H.).
Uniform Child Custody Jurisdiction and Enforcement Act.
The order also states, "pursuant to KRS 403.270, that the best interest of the minor child requires . . . Michael Dean and Felicia Hicks [have] no visitation at this time." However, the family court cannot rely solely on the best interests of Child to deny visitation outright. The right of a parent, even a non-custodial parent, to maintain a relationship with his child is constitutionally based. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"). That does not mean, however, that a court may never deny visitation. To balance the various considerations, our legislature enacted KRS 403.320 which aids in the guarantee that "[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health." KRS 403.320(1)(emphasis added). There is no finding in this order that visitation would endanger seriously the child's health. While Dean did not challenge this ruling on appeal, "[v]isitation . . . can be modified upon proper showing, at any time, having no two-year restriction[,] pursuant to KRS 403.320." Pennington v. Marcum, 266 S.W.3d 759, 767 (Ky. 2008)(emphasis added). If Dean pursues a modification of the visitation order, the standard set out in KRS 403.320(3) must be followed. That provision states:
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.KRS 403.320(3).
Next, the family court failed to find explicitly that the Burnettes had standing as Child's de facto custodians. That determination requires findings, based on clear and convincing evidence, that the putative de facto custodians "have been [1] the primary caregiver for, and [2] financial supporter of" the child in question. KRS 403.270(1). Although the court found the Burnettes had been Child's sole financial supporters for more than one year, it made no finding that the petitioners had also been Child's primary caregivers for that period, or that either factor was demonstrated by clear and convincing evidence. The findings therefore were technically insufficient to support a determination of de facto custodian status. KRS 403.270(1). As this Court said in Diaz v. Morales, 51 S.W.3d 451 (Ky. App. 2001):
the standard of proof required to establish a de facto custodial relationship is high - to wit - it must be demonstrated by clear and convincing evidence that the third party is [1] the primary care giver and [2] financial supporter for the stated time period.Id. at 455. Again, Dean does not challenge the Burnettes' de facto custodian status. For that reason, his argument that he has a "superior right to custody as opposed to a non-parent" must fail. When a court determines custody, "equal consideration shall be given to each parent and to any de facto custodian." KRS 403.270(2).
Lastly, it appears Child's Guardian Ad Litem (GAL) allowed himself to be placed in a conflict of interest. SCR 3.130(1.7). Prior to his appointment as Child's GAL for the Burnettes' petition for permanent custody, the GAL was appointed to represent Dean when the Cabinet for Health and Family Services successfully sought to place child temporarily with the Burnettes in 2010 (R. 5). In view of this conflict, the court should consider the propriety of the GAL's continued representation of Child in this case.
Rules of the Kentucky Supreme Court.
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Whether the matters we have here noted would have been sufficient to reverse the family court's order we cannot say. Dean has raised none of them in his appellate briefs, and so they are waived. However, reversal on those grounds would not give Dean the relief he seeks on appeal. He desires to avoid "the consequence of this award [of permanent custody] that Mr. Dean, as the biological father, is now saddled with a period of two years before he can even seek to petition the court for modification . . . ."
Seeking to have us set aside the custody order, Dean argues that the family court failed to properly consider the factors of KRS 403.270 in determining Child's best interest and that the family court erroneously determined it was in Child's best interest to award permanent custody to the Burnettes. We are not persuaded by either argument.
The order of permanent custody invokes KRS 403.270 and addresses several factors enumerated therein, including the parties' physical and mental health, Child's adjustment to the Burnette home and interactions with various family members, and the parties' wishes. We are not persuaded that the family court disregarded the statutory bases of determining the child's best interest.
We are likewise not persuaded that the family court erroneously concluded that awarding permanent custody to the Burnettes was in Child's best interest. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009) ("As to what constitutes the best interest of the child, any factual findings are reviewed under the clearly erroneous standard; any decisions based upon said facts are reviewed under an abuse of discretion standard."). There was evidence that Child was thriving in the Burnette home, where she was fully integrated into the family, and that telephonic contact with her biological parents was upsetting and confusing for her. Child has not been in Dean's physical custody since nearly immediately following her birth. Furthermore, at the time of the hearing, both Dean and Child's mother were incarcerated, and Dean admitted to a long history of substance abuse.
In light of this evidence, the family court's assessment of Child's best interest was not an abuse of discretion, and so we affirm the November 30, 2012 order of the Wayne Family Court.
TAYLOR, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Winter R. Huff
Monticello, Kentucky
BRIEF FOR APPELLEES, JEREMY
BURNETTE AND REBECCA
BURNETTE:
D. Bruce Orwin
Somerset, Kentucky