Opinion
NO. 2014-CA-000088-MR
06-05-2015
VIKAS DHAWAN APPELLANT v. VERONIKA G. NAUMCHENKO APPELLEE
BRIEFS FOR APPELLANT: David A. Weinberg Lexington, Kentucky BRIEF FOR APPELLEE: Crystal L. Osborne Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCINDA CRONIN MASTERTON, JUDGE
ACTION NO. 10-CI-07091
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
BEFORE: CLAYTON, DIXON AND KRAMER JUDGES. DIXON, JUDGE: Vikas Dhawan appeals from the December 20, 2013 order of the Fayette Circuit Court denying his motion to remove the guardian ad litem (GAL) in this child custody case.
Vikas Dhawan and Veronika Naumchenko are the parents of one child, a daughter born in 2002. In 2007, they divorced in Indiana and were awarded joint custody of their child. In 2010, Vikas moved to Lexington, Kentucky, and Veronika moved to North Carolina. Vikas successfully sought temporary sole custody of the child in Fayette Circuit Court. On January 20, 2011, the court appointed a GAL to represent the child. On February 11, 2011, the court dissolved the emergency order of sole custody and restored joint custody to the parties.
Finally, following lengthy proceedings during which the GAL filed several reports, the trial court entered an order on April 12, 2013, granting Veronika visitation with the child. Vikas appealed from that order which was subsequently affirmed by this Court. Dhawan v. Naumchenko, 2014 WL 1155616 (2013-CA-000807-ME) (March 21, 2014) (disc. rev. denied Aug. 13, 2014).
On August 12, 2013, Vikas filed a motion requesting the trial court to do the following: (1) allow the child to resume therapeutic counseling through the Department of Pediatrics Division of Adolescent Medicine at the University of Kentucky (with affidavits from Drs. Marlene Huff and Cheryll Pearson setting forth their opinions regarding the child's need for therapeutic counseling); (2) remove and replace the Parenting Coordinator, against whom Vikas had filed a complaint with the Kentucky Board of Licensure of Marriage and Family Therapists; (3) remove the GAL, who he argued had exceeded her authority and become an advocate for Veronika, while ignoring the child's best interests. Specifically, he criticized the GAL's recommendations regarding the child's need for further psychological counseling and the GAL's unannounced visit with the child at her school.
On August 15, 2013, the GAL filed a supplemental report in which she explained how she and the Parenting Coordinator had made some headway with the parents in formulating a parenting plan, but that Vikas's filing of the ethics complaint had thwarted further action by creating a conflict of interest for the Parenting Coordinator.
Vikas filed another motion on August 16, 2013, objecting to the GAL's supplemental report.
Following a hearing on September 20, 2013, the trial court entered an order stating that the parties had agreed that Dr. Kay Hubbard would serve as the child's therapist and that the parents would work with her and follow her recommendations. The Parenting Coordinator had removed herself from the case, and the trial court ordered the parties to cooperate with a new coordinator. Finally, the trial court denied the motion to remove the GAL. This appeal by Vikas followed.
The sole issue on appeal is whether the trial court abused its discretion in refusing to allow the GAL to testify at the hearing on the removal motion. Vikas alleges that this issue was preserved for review, but gives no specific reference that would enable us to locate the objection in the video recording of the hearing, which lasted for over two hours. See Kentucky Rules of Civil Procedure (CR) CR 76.12(4)(c)(iv) and (v). Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (quoting Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App.1990)). Because Vikas has raised a significant due process issue, and the appellee does not dispute his account of the proceedings, we will ignore the deficiency and proceed with our review.
At the time of the hearing on Vikas's motion to remove the GAL, the state of the law was unsettled as to the role of the GAL in custody, visitation and support proceedings, and specifically as to whether due process required the GAL to be subject to cross-examination. In Morgan v. Getter, 2013 WL 645717 (Ky. App. Feb 22, 2013) (2012-CA-000655-ME), review granted (Jun 12, 2013) (opinion vacated by Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014)), a panel of this Court had held that a GAL was not subject to cross-examination, but the Kentucky Supreme Court had taken discretionary review of the case at the time of the removal hearing. The opinion of the Supreme Court was rendered on September 18, 2014, and became final on October 9, 2014, while Vikas's appeal in this case was pending.
In its opinion, the Kentucky Supreme Court clarified the distinction between the duties of a friend of the court and a GAL, and most importantly for this case, which of these individuals is subject to cross-examination.
[T]he guardian ad litem should not be confused with the de facto friend of the court. Whereas the friend of the court investigates, reports, and makes custodial recommendations on behalf of the court, and is subject to cross-examination, the guardian ad litem is a lawyer for
the child, counseling the child and representing him or her in the course of proceedings by, among other things, engaging in discovery, in motion practice, and in presentation of the case at the final hearing. The guardian ad litem neither testifies (by filing a report or otherwise) nor is subject to cross-examination.Morgan, 441 S.W.3d at 119.
The Supreme Court concluded that a party's due process rights could be impaired if the party was not permitted to cross-examine an individual appointed as a GAL but acting as a friend of the court. Id. at 112.
The Fayette Circuit Court's order described the role of the GAL in this case as follows:
The Court believes that a fundamental misunderstanding regarding the GAL's role has occurred and this misunderstanding has caused some nerves to fray. The Court defined the role of the GAL as that of a person that advocates consistently for [the child's] best interests. The GAL is not in the business of making the parents happy. Her job is to get information from [the child] and in return give that information to the Court. This Judge does not talk directly to children because she thinks it is damaging and scary for a child to be dragged to court to face a Judge.
The Court needs to hear the child's voice, what is going on in the child's head from the child's point of view and that is exactly what the GAL is tasked to tell the Court.
Thus, by the trial court's own admission and by the evidence of the GAL's reports in the record, the GAL was acting in some respects as a de facto friend of the court. Under Morgan, Vikas had a due process right to cross-examine her insofar as she was acting in that capacity.
On appeal, Vikas argues that the GAL showed bias against him in recommending against further counseling for the child and by visiting the child at her school without informing him. He claims, without citation to the record, that his attorney assured the trial court that he wished the GAL to testify only as to what she did nor did not do as part of her duties and to demonstrate her bias and lack of impartiality' and insists that it was not his counsel's intent to question her regarding the content of her previously submitted reports.
We are concerned that the issue of the GAL's removal is now moot, however, because Vikas's claim that the child should continue to receive counseling was amicably resolved at the hearing, with the parties agreeing to therapy with Dr. Hubbard. The Parenting Coordinator to whom Vikas had objected had removed herself. No issue remained to be resolved except Vikas's motion to remove the GAL. We do not know whether the GAL is still active in this case, and if she is functioning as a GAL or friend of the court, or as a hybrid of the two.
The "capable of repetition yet evading review" exception to the mootness doctrine has two elements: "(1) the challenged action must be too short in duration to be fully litigated prior to its cessation . . . , and (2) there must be a reasonable expectation that the . . . complaining party will be subjected to the same action again." Id. at 100 (citing Philpot v. Patton, 837 S.W.2d 491 (Ky. 1992)). In this case, the first element may be met if the issues in this case have all been resolved, or the GAL is no longer on the case; on the other hand, if the case is ongoing, there is certainly a reasonable expectation that the same complaining party, Vikas, will be subjected to the same action again.
Accordingly, that portion of the Fayette Circuit Court order denying Vikas's motion to remove the GAL is reversed. The case is remanded solely for a hearing to clarify the GAL's role (assuming she is still active in the case). If the trial court determines that she is acting as a friend of the court, and Vikas still wishes to have her removed, he may cross-examine her as to matters pertaining to her performance and to her alleged bias and lack of impartiality. The order of the Fayette Circuit Court is affirmed in all other respects.
ALL CONCUR. BRIEFS FOR APPELLANT: David A. Weinberg
Lexington, Kentucky
BRIEF FOR APPELLEE: Crystal L. Osborne
Lexington, Kentucky