Opinion
NO. 2013-CA-000500-ME
02-28-2014
G.M. AND F.E. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; L.H., by and through his GUARDIANS, D.S. and M.S.; AND L.H., by and through his GUARDIAN AD LITEM, R.S. APPELLEES
BRIEFS FOR APPELLANTS: Phyllis L. Robinson Manchester, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Stephen Spurlock London, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE GENE CLARK, JUDGE
ACTION NOS. 08-J-00065, 08-J-00065-002 & 12-CI-00139
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES. VANMETER, JUDGE: G.M. and F.E. appeal from the Clay Circuit Court's February 20, 2013, order denying their motion to alter, amend or vacate the court's final orders entered in Civil Action No. 12-CI-00139 and Juvenile Action No. 08-J-00065-002, which have been consolidated for purposes of appeal. For the following reasons, we affirm.
The juvenile action began in 2008 when the Cabinet for Health and Family Services ("Cabinet") filed a juvenile dependency, neglect and abuse petition in the Clay Circuit Court, alleging that F.E., mother of minor child L.H., had abandoned L.H. in the care of G.M., a non-relative and inappropriate caretaker. The evidence presented in 2008 primarily concerned F.E.'s conduct, but showed L.H. lived with G.M. and G.M. had assumed a caretaking role. The court found as follows: L.H. was a neglected child; had health problems including rotten teeth; G.M. did not know F.E.'s location or how to find her; G.M. lacked authority to take L.H. to receive medical care; L.H.'s health was at risk; and L.H.'s father was deceased. The court removed L.H. from G.M.'s home and placed L.H. in the Cabinet's temporary custody pending F.E.'s completion of parenting skills training and obtaining stable housing. Eventually, the court ordered that L.H. be returned to F.E.'s home.
In March of 2012, the Cabinet filed another juvenile dependency, neglect and abuse petition with respect to F.E. and L.H. in the Clay Circuit Court. Again, the court removed L.H. from G.M.'s home and placed L.H. in the Cabinet's temporary custody. The following month, G.M. filed a civil action seeking custody of L.H. The trial court found G.M. had standing to seek custody of L.H. as a "co-parent" and joined him as a party to the juvenile case. See Mullins v. Picklesimer, 317 S.W.3d 569, 575 (Ky. 2010) (KRS 403.822 grants standing to a nonparent who, acting as parent to the child, has physical custody of the child). The court found G.M. did not have de facto custodian status as defined in KRS 403.270(1).
Kentucky Revised Statutes.
The trial court then consolidated the juvenile and civil custody actions for purposes of a hearing. During the hearing, the court heard testimony from F.E., G.M., S.J. (a minor child, not related to L.H. or G.M., but who also resided with G.M.), social worker Leslie Craft, and F.C., who is L.H.'s aunt. The court also conducted a private interview of L.H. pursuant to KRS 403.290(1) and taped the interview. Following the hearing, the court found F.E. had neglected L.H.; declined to grant G.M. custody of L.H.; and awarded custody of L.H. to the Smiths, his relatives. F.E. and G.M. now appeal.
As an initial matter, we note that, procedurally, the only issues properly before us on appeal pertain to the trial court's decision not to award custody of L.H. to G.M. The issue of whether the trial court erred by finding F.E. had "neglected" L.H., see KRS 600.020, is not reviewable for two reasons: (1) F.E. does not challenge that finding; and (2) G.M. lacks standing to challenge that finding. Furthermore, G.M.'s claim that the trial court erred by finding that he had neglected L.H. is misplaced; the record does not show the court ever made such a finding. G.M.'s assertion that the court's finding of neglect on his part led to its decision to deny him custody of L.H. is therefore incorrect. The only findings G.M. has standing to appeal are those that relate to the court's decision not to grant him custody of L.H.
G.M.'s reply brief concedes that the court never found he neglected L.H. And F.E.'s attempt, in the reply brief, to challenge the court's finding of neglect with respect to her is not well-taken. "Reply briefs shall be confined to points raised in the briefs to which they are addressed [.]" CR 76.12(4)(e). F.E.'s failure to challenge the court's finding of neglect in the original appellate brief precludes her from raising it in the reply brief.
An appellate court may only set aside the trial court's findings of fact if clearly erroneous, and "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01; Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). "[F]indings of fact are clearly erroneous only if they are manifestly against the weight of the evidence." 266 S.W.3d at 756. Appellate review of the trial court's conclusions of law is de novo. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005).
Kentucky Rules of Civil Procedure.
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Pursuant to KRS 403.270, the trial court shall grant custody in accordance with the child's best interests. KRS 403.270(2) sets forth the following factors the court shall consider in determining the child's best interests:
(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 interests;
(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 in 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 custodian to allow the parent now seeking custody to seek employment, work, or attend school.
G.M. argues the trial court failed to consider these factors; however, the record reflects otherwise. The court's custody order states that the court considered the factors set forth in KRS 430.270(2)(a)-(j) in determining L.H.'s best interests; specifically, the court considered F.E.'s wish for G.M. to have custody of L.H., G.M.'s wish to have custody of L.H., and L.H.'s wish to live with G.M. The court also found L.H. was well-adjusted to his placement in G.M.'s home, where he usually resided from his birth until removal in early 2012.
The court further found L.H. was well-adjusted to his present placement with his relatives, the Smiths, and their four children, with whom he interacts well. The court found L.H.'s grades have been good since placement in the Smith home and he is now involved in extracurricular activities like running track. The court noted L.H. had health problems in the past (e.g., rotted teeth in 2008), but his mental and physical health is currently good. The court found L.H.'s health needs are being met in his current placement with the Smiths.
The court noted G.M. takes Xanax, Soma, and cholesterol medicine; suffers from high blood pressure; and once had a nervous breakdown. The court found G.M. frequently provides care for another non-relative minor child, S.J., now age thirteen, and that G.M. was aware that S.J. was having a romantic relationship with a man in his 20's when she was only twelve years old, but failed to intervene in any way. The court noted G.M. was convicted of felony marijuana trafficking in 1997 and that as an adult, G.M. had sexually abused a fourteen-year-old male child and asked a minor female to have sex with him, but was rebuffed. The court found G.M. has provided marijuana and alcohol to minor children and has involved minor children in the growing of marijuana, including teaching them how to grow it. During the period of time L.H. resided with G.M., L.H., along with S.J., had easy access to drugs and pornography and was not properly supervised by G.M. While residing in G.M.'s home with L.H., S.J. at times had persistent lice.
Based on what the court found to be credible evidence concerning G.M.'s current situation, his past abuse and neglect of children, his criminal activity, and his failure to properly supervise the children, the court determined it was not in L.H.'s best interests to be in G.M.'s custody. G.M.'s assertion that the court failed to take into account the factors set forth in KRS 403.270, and improperly gave weight to certain testimony, is refuted by the record and ignores the discretion afforded to the trial court to judge the credibility of the witnesses and to weigh the evidence. Thus, this claim of error is without merit.
Next, G.M. claims the trial court erred by failing to enforce its oral order requiring the Cabinet to offer reunification services to him. The Cabinet concedes that at some point the court orally ordered reunification services, but neither party directs us to a written order in the record reducing that oral order to writing. "Courts of record speak only by their orders duly entered and signed in the books provided for that purpose." Midland Guardian Acceptance Corp. v. Britt, 439 S.W.2d 313, 314 (Ky. 1968) (internal quotations omitted). A written order signed by a judge becomes "effective" only after notation in the civil docket by the clerk. CR 58. No written order in the record requires reunification services.
The Cabinet further points out that later on in the proceedings, the court orally clarified that reunification services were to be offered to G.M. at the discretion of the Cabinet. The Cabinet states that it chose to discontinue reunification services once it became clear that G.M. was an inappropriate caretaker. Regardless, no written order reflects this clarification and G.M. provides no authority in support of his proposition that a "co-parent" is entitled to reunification services at all. He cites to Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), but that opinion does not address reunification as it relates to a co-parent and thus is unpersuasive. G.M.'s claim of error therefore fails.
Next, G.M. contends the court erred by failing to take judicial notice of the fact that he was the court-appointed guardian of L.H.'s disabled, adult sibling, B.H. G.M. implies that his status as B.H.'s guardian entitled him to some sort of special deference and consideration by the trial court in making its custody determination with respect to L.H. G.M. points to KRS 387.540 which requires, for guardian appointments, a home evaluation of the proposed caregiver by a social worker, and a psychological and physical evaluation of the ward. G.M. maintains that by satisfying the statutory standards to qualify as B.H.'s guardian, he was qualified to receive custody of L.H. Yet, G.M. provides no authority establishing that a court's findings for purposes of a guardian appointment pursuant to KRS 387.540, with respect to one child, bears in any way on a court's custody determination pursuant to KRS 403.270, with respect to a different child. Accordingly, this claim of error is not well-taken.
Lastly, G.M. asserts the trial court erred by failing to consider the testimony of a physician, Dr. Hayes. G.M. claims Dr. Hayes's testimony establishes that he did not neglect L.H. We reiterate that the court never found G.M. neglected L.H.; therefore, G.M. cannot challenge a finding that was never made. Moreover, even if his claim was reviewable, the record does not reflect that Dr. Hayes's deposition was ever filed in the record. G.M.'s cite to Dr. Hayes's deposition in the appellate brief contain no citation to the record; G.M. just provides the page number of the notice of deposition, which does not clarify whether the deposition was ever filed in the record. While Dr. Hayes did testify at the temporary removal hearing, he did not testify at the final hearing and the court's final custody order does not reflect that the court even considered his testimony in making its custody determination. For these reasons, G.M.'s assertion that the trial court erred by not considering Dr. Hayes's testimony is without merit.
The order of the Clay Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Phyllis L. Robinson
Manchester, Kentucky
BRIEF FOR APPELLEE
CABINET FOR HEALTH
AND FAMILY SERVICES:
Stephen Spurlock
London, Kentucky