Opinion
NO. 2019-CA-000269-ME NO. 2019-CA-000278-DGE
04-17-2020
K.C. APPELLANT v. N.C.R., S.R., AND W.A.R., A MINOR CHILD APPELLEES AND K.C., IN THE INTEREST OF W.A.R., A MINOR CHILD MOVANT v. S.R., N.R.; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND W.A.R., A MINOR CHILD RESPONDENTS
BRIEF FOR APPELLANT: G. George Bertram Jamestown, Kentucky BRIEF FOR APPELLEE S.R.: Angela M. Capps Columbia, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CUMBERLAND CIRCUIT COURT
HONORABLE DAVID WILLIAMS, JUDGE
ACTION NO. 14-CI-00047 ON DISCRETIONARY REVIEW FROM CUMBERLAND CIRCUIT COURT
ACTION NO. 17-XX-00003 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. COMBS, JUDGE: These cases involve the custody of a child, W.A.R. (W.R.) K.C. (Mother) appeals from an order of the Cumberland Circuit Court which granted joint physical and legal custody of W.R. to the child's paternal grandmother; denied Mother's separate petition to return exclusive physical and legal custody of the child to his parents; and affirmed the district court's adjudication of the child as abused or neglected as well as its disposition granting joint custody of the child to the child's paternal grandmother. After our review of the record and the pertinent law, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
W.R. was born in Cumberland County in May 2011 to Mother and N.C.R. (Father), an unmarried couple. In May 2014, Father filed a petition in Cumberland Circuit Court seeking custody of the child. Mother filed a motion to dismiss, contending that she and the child had been residents of Tennessee for two years. After a hearing, the circuit court ruled that Kentucky was the child's home state. In an order entered on September 25, 2014, the court denied the motion to dismiss. On the same date, Mother filed a petition for child support in Clay County, Tennessee. She contended that Father was not fit to have visitation with the child because of his criminal record and pending felony charges for the manufacture of methamphetamine. Father filed a motion for visitation in the Cumberland Circuit Court.
The record is essentially silent until January 15, 2016, when Father filed a motion requesting the Cumberland Circuit Court to render a custody decision and to enforce his right to visitation with the child. After a hearing on the motion, a hearing on custody was scheduled for February 5, 2016. However, the parties reached an agreement with respect to custody and visitation before the hearing. An agreed order awarded the parties joint custody of the child and designated Mother, still a Tennessee resident, as the primary residential custodian. Father was awarded unsupervised visitation every Wednesday and alternate weekends. The order recognized that Father remained on supervised probation as a result of his prior felony conviction and that Mother had been indicted in Cumberland Circuit Court for possession of controlled substances and other charges and that she would be arraigned on February 25, 2016. Mother agreed to random drug testing. Finally, the parties agreed to a child-support award. The order provided that the parties would communicate with each other only about matters concerning the child.
The agreed order was not entered until June 17, 2016. Within a week, Father filed a motion asking the circuit court to make him the primary residential custodian and to require that Mother's visitation with the child be supervised. He referred to Mother's "most recent drug related violations of the terms of her bond." Following a hearing on the motion, the circuit court ordered that the child remain in Kentucky with Father until an evidentiary hearing could be conducted. Mother was awarded supervised visitation with the child, but she did not see him for a period of 49 days because she was incarcerated.
On August 23, 2016, Mother filed a motion for review of the child's physical custody. She indicated to the court that Father was now incarcerated. The court quickly granted a hearing on the motion on August 25, 2016, at which the court expressed its frustration with both Mother and Father and its concern about the safety and well-being of the child due to the parents' on-going drug abuse and alternating periods of incarceration. The court specifically denied Mother's request for physical custody of the child since she had been arrested in the child's presence and charged with possession of controlled substances; her visitation periods with him had remained supervised under the court's previous order. With Father in jail and thus clearly unable to take physical custody of the child, the court asked counsel to suggest alternatives other than inviting the Cabinet for Health and Family Services (the Cabinet) to become involved in a proceeding to remove the child -- perhaps to foster care.
The parties agreed that an alternative to the Cabinet's intervention was acceptable. Mother indicated that she preferred that the child's maternal step-grandmother take physical custody of W.R. The court rejected that suggestion and ordered that the child be placed in the temporary physical custody of his paternal grandmother, S.R. (Grandmother). Grandmother had been caring for the child while Father was unable or unwilling to do so pending an evidentiary hearing scheduled for August 30, 2016. Both counsel and the parties appeared to be in agreement with what amounted to an emergency custody order entered pursuant to the provisions of KRS 620.060.
Kentucky Revised Statutes.
On August 29, 2016, Grandmother filed a motion to intervene in the custody action pending in circuit court. In her motion, Grandmother also advised the circuit court that she had filed a dependency, neglect, or abuse petition in district court in which she alleged that Mother and Father had put the child at risk of harm. She charged, in part, that they:
have been in and out of jail and continue to abuse drugs, sometimes while [W.R.] is in his or her care. [Mother] has bounced between residences multiple times while [child] has been in her care and she has left the child with inappropriate caregivers.The record indicates that Grandmother had pleaded with the Cabinet for help several times -- but to no avail.
During an extensive hearing conducted by the circuit court on August 30, 2016, the court heard evidence that tended to indicate that Mother: had failed to maintain supervision of her visitation as previously ordered; had threatened Father and Grandmother; and had been untruthful during her sworn testimony. Though it pronounced that "hope springs eternal," the court explained that it did not now see either parent as a viable alternative to the emergency custody order made in favor of Grandmother. The court spoke to the parents severely but kindly and implored them to consider putting the child's needs ahead of their own. The court indicated that it was concerned only with the child's best interests and that the parents' quest for a "cheap high" would have to stop. The court assured the parents that the child would be raised in a drug-free home and indicated that the dependency, neglect, or abuse proceedings would continue in district court.
Through its order entered on September 2, 2016, the circuit court denied Grandmother's motion to intervene in the custody action. By order entered September 13, 2016, a special judge was appointed in the Cumberland District Court to preside over the pending dependency, neglect, or abuse proceedings.
On September 29, 2016, the district court conducted a proceeding akin to a temporary removal hearing pursuant to the provisions of KRS 620.080. Mother and Father denied neglecting or abusing the child. However, the district court determined that there were reasonable grounds to believe that the child would be neglected or abused if he were returned to the custody of either of his parents, continuing physical custody of the child with Grandmother according to the agreement reached on August 23, 2016. Mother and Father were provided separate schedules for supervised visitation with the child and were ordered to pay child support. The district court ordered the Cabinet to open a case with respect to the child and directed the Cumberland County Attorney to intervene in the action. The court appointed a guardian ad litem for the child.
Following an extensive evidentiary hearing, the district court's adjudication order was entered on December 22, 2016. The district court found by a preponderance of the evidence that W.R. was a dependent, neglected, or abused child pursuant to the provisions of KRS Chapter 620. The court found specifically that "a pattern of drug use by both parents and evidence of domestic violence" put the child at risk of physical or emotional injury; at risk of not having his needs met; and at risk for lack of parental care and protection. Meanwhile, pending disposition, the court ordered the child to remain in Grandmother's custody.
Prior to the disposition hearing, the Cabinet submitted the results of its investigation to the circuit court. The Cabinet reported that Grandmother was meeting the child's needs appropriately and that he was strongly attached to her. The Cabinet reported that Mother was living with her stepmother in Kentucky but that she anticipated returning home to Tennessee upon the child's return to her custody. According to the Cabinet, Mother was enrolled in drug court (as an alternative to incarceration). She was doing well with her classes and had had no positive drug screens. She was also enrolled in parenting classes and working nights at Junction Station, a combination gas station and restaurant in Clinton County. Father continued on probation and had a positive drug screen resulting in his incarceration for several days prior to December 7, 2016. The Cabinet recommended that W.R. be returned to Mother's custody with visitation awarded to Grandmother.
On January 25, 2017, the child's guardian ad litem filed her report with the district court. She reported that the child was comfortable with the current arrangement and enjoyed spending time with Mother, Father, and Grandmother. The child's grades had improved significantly during the last nine-week period and he appeared to be benefitting from the custody arrangement. He enjoyed many outdoor activities, had a large collection of toys, and engaged in creative, age-appropriate play. Given the "stability and nurturing environment" that Grandmother offered, the guardian recommended that she continue as the child's primary residential custodian.
The district court concluded its dispositional hearing on January 27, 2017, and addressed Mother's motion to set aside its previous order adjudicating the child to be neglected or abused, noting that her motion was not likely appropriate procedurally but nonetheless denying it on its merits. After recognizing the efforts of Mother and Father to stay clean, the district court granted Mother and Father joint custody of the child along with Grandmother, who remained the primary residential custodian. Mother's visitation could be unsupervised and the child could stay with her at her home in Tennessee during weekends. Father's visitation could also be unsupervised, but the child was to sleep only at Father's residence during his visits. Mother was ordered to remain compliant with the conditions of drug court. Father was ordered to remain compliant with the conditions of his probation. The results of their weekly drug tests were to be delivered to the circuit clerk's office, who would forward them to counsel and the special judge. Arrangements were made for a home evaluation of Mother's Tennessee residence. A status hearing was scheduled for June 16, 2017.
In an order entered on February 23, 2017, the circuit court granted Grandmother's renewed motion to intervene in the custody proceedings. No party objected. The circuit court ordered each party to submit a brief concerning the custody of W.R. by March 15, 2017.
Meanwhile, on February 27, 2017, Mother's new counsel filed with the circuit court a notice of her appeal of the district court's orders. In her appeal, Mother argued that the removal of the child from the physical custody of his parents had been unlawful from the outset. Eventually, counsel conceded that the child had been removed from the parents' care and placed with Grandmother by agreement of the parties.
Different counsel entered his appearance on Mother's behalf on March 15, 2017, and filed a brief in the pending circuit court custody action as ordered. In her brief, Mother argued that the temporary custody order of the district court was effectively extinguished when the circuit court again took up the custody issue and that Grandmother could not show by clear and convincing evidence that Mother had waived her superior right to custody or that she was unfit to parent W.R.
The guardian ad litem filed an extensive brief on March 15, 2017, recommending that the district court's decision be affirmed. The guardian ad litem believed that maintaining primary residential custody with Grandmother served the child's best interests. She observed as follows:
[Mother] has only been in Drug Court since August 2016 (following her positive drug test of June 2016 and her 49-day incarceration). She is being compliant with mandates of the Drug Court but has admittedly "socialized with other members of drug court outside of the Drug Court environment," has been in the company
of [a] convicted felon (who admits to being a Soboxin [sic] user with admitted short term memory loss), both violations of the Drug Court policy. [Mother] has declared her intent to return to Celina, Tennessee with the child as soon as she gets the child back in her custody. This would be disruptive of the child's continued education and completion of this school year. This would also result in cutting the Paternal Grandparents and their extended family from the child.The guardian ad litem noted that another hearing before the district court was scheduled for June 16, 2017.
[Father] has had a positive drug test and has been incarcerated for 8 days in late 2016. [Father] is working with Probation and Parole, attending his counseling and has submitted to the drug tests as required.
Grandmother filed her brief on March 16, 2017. Citing the relevant provisions of KRS 620.027, Grandmother argued that the circuit court should recognize that she has standing as a parent for purposes of the custody action because the child had been residing with her in a stable relationship. She contended that it was in the child's best interests to continue in the current custody arrangement, to reside primarily with her, and to visit with his parents on a regular and frequent basis.
On April 17, 2017, Mother filed a petition in the circuit court for immediate entitlement to custody pursuant to the provisions of KRS 620.110. Although this proceeding is an original action as defined by statute, the petition was erroneously filed in the action still pending in circuit court. In her petition, Mother contended that Grandmother's joint custody of the child should be terminated immediately. An evidentiary hearing was conducted by the circuit court on June 14, 2017.
The circuit court entered its findings of fact, conclusions of law, and final custody order on January 23, 2019. The court found that both Mother and Father had routinely failed to provide W.R. with the care and attention that he had so critically needed and that Grandmother had provided a consistently stable environment. In its order, the circuit court also addressed the appeal from district court and affirmed on appeal the adjudicatory and dispositional decisions of the district court finding that they were supported by substantial evidence; denied Mother's petition for immediate custody filed pursuant to the provisions of KRS 620.110; and awarded joint custody of the child to the parties, granting primary residential custody of W.R. to Grandmother. The joint custodians were to receive (as closely as possible) equal timesharing with the child.
On February 15, 2019, Mother filed in the circuit court her notice of appeal to this Court as a matter of right of the circuit court's custody decision and its decision with respect to her petition for immediate entitlement to custody. On February 25, 2019, she filed a motion for discretionary review in this Court with respect to the district court's adjudicatory and dispositional orders. By order entered on June 10, 2019, we granted discretionary review. Upon our own motion, we consolidated the appeals and ordered them expedited. Before us we now have the matter-of-right appeal from the circuit court and the discretionary review of the adjudicatory/dispositional order of the district court affirmed by the circuit court.
On appeal, Mother argues that the circuit court erred by affirming the adjudication and dispositional orders of the district court in the dependency, neglect, and abuse proceedings. She contends that the district court's findings of fact are clearly erroneous because they are not supported by substantial evidence. Grandmother argues that evidence indicating that Mother has been unable or unwilling to care for the child adequately supports the district court's findings.
Kentucky's juvenile code defines an abused or neglected child as one whose health or welfare is harmed or threatened when his or her parent:
1. Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;
2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;
3. Engages 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;
4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;
. . .KRS 600.020(1)(a).
8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. . . .
A trial court has broad discretion in its determination of whether a child is dependent, neglected, or abused. Dep't for Human Resources v. Moore, 552 S.W.2d 672 (Ky. App. 1977). "The adjudication shall determine the truth or falsity of the allegations in the complaint. The burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 620.100(3). A trial court's findings regarding the weight and credibility of the evidence shall not be set aside unless clearly erroneous. CR 52.01. "Under this standard, an appellate court is obligated to give a great deal of deference to the trial court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." D.G.R. v. Commonwealth, Cabinet for Health & Family Services, 364 S.W.3d 106, 113 (Ky. 2012) (citation omitted). Substantial evidence has been defined as some evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367 (Ky. 1971).
Kentucky Rules of Civil Procedure. --------
KRS 620.023(1) provides that:
(1) Evidence of the following circumstances if relevant shall be considered by the court in all proceedings conducted pursuant to KRS Chapter 620 [dependency, neglect, or abuse proceedings] in which the court is required to render decisions in the best interest of the child:
. . .
(b) Acts of abuse or neglect as defined in KRS 600.020 toward any child;
(c) Substance use disorder, as defined in KRS 222.005, that results in an incapacity by the parent or caretaker to provide essential care and protection for the child;
(d) A finding of domestic violence and abuse as defined in KRS 403.720, whether or not committed in the presence of the child[.]
The purpose of the dependency, neglect, and abuse statutes is to provide for the health, safety, and overall well-being of the child. KRS 620.010. Based upon our review of the record, the district court's findings are ably supported by the evidence, and its ultimate finding of neglect is not clearly erroneous.
During the district court's extensive evidentiary hearing conducted on December 22, 2016, Mother admitted that she had been the child's primary caregiver until Grandmother was awarded physical custody during the emergency custody hearing. Mother admitted that she and Father had argued in front of the child, but she denied that any violence or physical abuse had occurred in his presence. Mother vehemently denied ever having put the child in danger. However, she admitted that she had wrecked her vehicle during an altercation with Father and that the child had been in the vehicle at the time.
Mother also admitted that she and Father had used methamphetamine together, but she denied having done so in the presence of the child. She admitted to having used methamphetamine as recently as June 2016; that she had failed a drug screen; and that she had a pending felony drug charge. Mother admitted that she had broken the rules governing her participation in drug court by associating with felons and other drug court participants while outside the program. Contradicting herself, she both denied and admitted having threatened Father and Grandmother, but she ominously assured counsel that if she had really meant to make good on the threat, Father would simply "not be there."
Mother denied that prescription pills seized by police during a traffic stop belonged to her. She admitted that she failed to take W.R. to the dentist as she should have and that she missed follow-up doctor appointments. She also explained that although she had intended to prepare W.R. adequately and to enroll him in kindergarten, she was incarcerated before school began. Mother also admitted that she was not present for the child's surgery because she had been incarcerated.
A Burkesville city police officer described the traffic stop that he initiated on December 8, 2015. He indicated that he stopped Mother's vehicle near 11:00 p.m. on a weeknight. He noticed W.R. in the vehicle. After he established probable cause, the officer searched the car and found several different controlled substances. When he arrested Mother, the officer asked her to call for someone to remove W.R. from the scene. Mother called her sister, D.A., who picked up the child. Mother knew that D.A. was a convicted felon who had been charged with drug-trafficking. In her testimony, D.A. indicated that she was the child's regular babysitter and that he had been left with her for a period of two nights or more in a row.
Father testified that he had a felony drug conviction and that his drug of choice was methamphetamine. He admitted that he and Mother had used illegal drugs together. While he denied that he had ever been impaired while the child was in his presence, Father admitted that he had tested positive on a drug screen while the child was in his physical custody. He explained that he and Mother could not get along -- even in the child's presence. He indicated that he had sought an order of protection from Mother after an altercation with her overnight at his home. He did not know the whereabouts of W.R. during this time.
Grandmother testified that W.R. had been left in her care overnight within days of his birth. She indicated that she had been involved in every aspect of the child's medical and dental care and that Mother had routinely failed to keep appointments with his doctors. Grandmother testified that she had been concerned for the child's welfare because of Mother's and Father's drug abuse and incarceration but that she could not get assistance from the Cabinet. She testified that the Cabinet had been unresponsive to her requests for intervention time and again because Mother was a resident of Tennessee.
Grandmother also testified that W.R. had once revealed to her that he could not wake Mother all day and that as a result, he had been left to fend for himself and that he had become afraid for his safety. Grandmother had photographic and video evidence of cigarette burns on the child's back and hand inflicted (as he indicated) while he was in Mother's custody. Grandmother, a former elementary school teacher and school administrator, testified that she had become involved in the child's day-to-day school work and that she worked with him to catch him up with his peers after he came to live with her. She provided stability for the child, and she indicated that he was doing better in her care.
Having reviewed the entirety of the district court's evidentiary hearing, we conclude that the circuit court did not err in its determination that the district court's finding of neglect or abuse was more than adequately supported by the evidence and that its disposition was entirely proper. We affirm the order of the circuit court as to the appeal taken from the district court's dispositional order before us on discretionary review.
Next, Mother argues that the circuit court erred by failing to grant her petition for immediate entitlement to custody pursuant to the provisions of KRS 620.110. Mother filed the petition -- considered an original action "in the nature of habeas corpus" -- alongside her appeal to the circuit court of the district court's custody order. B.D. v. Commonwealth, Cabinet for Health and Family Services, 426 S.W.3d 621, 623 (Ky. App. 2014) (quoting Moore v. Dawson, 531 S.W.2d 259, 262 (Ky. 1975)).
Mother contends that in the original action arising from her petition, the circuit court should have applied standards more rigorous than those found in our statutes related to dependency, neglect, and abuse proceedings. Contending that no evidence supports a finding that she is unfit for custody, Mother argues that the circuit court erred in denying her petition for immediate entitlement to custody. This court considered and rejected a similar argument in C.K. v. Cabinet for Health and Family Services, 529 S.W.3d 786 (Ky. App. 2017).
In C.K., we considered the proper standard to be applied in adjudicating a petition for immediate entitlement: whether "a higher standard" derived from the constitutional rights enjoyed by a parent should govern or whether the standard of "best interests of the child" utilized by the district or family court in its disposition should prevail. In C.K., as in the appeal before us, it was argued that parents are constitutionally entitled to the care, custody, and control of their children -- absent a finding of unfitness. We unambiguously concluded that the provisions of KRS Chapter 620 do not require such a finding.
In our analysis, we observed that following a removal hearing, a district or family court must decide whether there are "reasonable grounds to believe the child is dependent . . . ." KRS 620.090(1). Having decided that such grounds exist, the court is required by that same statute to issue a temporary custody order granting custody "to the cabinet or other appropriate person or agency." Id. Citing N.L. v. W.F., 368 S.W.3d 136 (Ky. App. 2012), and the provisions of KRS 620.010, we observed that Kentucky's dependency, neglect, and abuse statutes necessarily place their emphasis on "the health, safety, and overall well-being of the child." "The custody rights of parents, while important, are not the trial court's priority in such cases." C.K., 529 S.W.3d at 790 (citing N.L., 368 S.W.3d at 147). We concluded as follows:
The appropriate legal consideration on a petition for immediate entitlement to custody following removal of a child under KRS 620.080 is, and must be, that which is announced within the juvenile code. Notwithstanding the fact that a petition for immediate entitlement is treated as an original action akin to a writ of habeas corpus, it would be legally impractical to apply one standard at removal and another, far more exacting standard upon a circuit court's review of the very same circumstances. The juvenile code, and specifically its
provision for removal and the temporary orders which usually ensue, "strikes the balance between parental rights and child protection by erring on the side of child protection." 15 Graham & Keller, Kentucky Practice, Domestic Relations Law, § 15.10 at 512 (2nd ed. 2000). Father's proposed standard on a petition for immediate entitlement would greatly shift this balance to the benefit of parents with little or no regard for the best interests of their children. This cannot be the law. Rather, it remains the case that "[i]n determining the temporary custody of a child found to be dependent, neglected, or abused, the family court shall make its determination based on the best interests of the child." B.C., 182 S.W.3d at 218 (citation omitted).Id. (Emphases added.)
We have already determined that substantial evidence supported the district court's findings of fact and its ultimate ruling regarding W.R.'s best interests. We have summarized that evidence -- including the testimony of the parties. Considering the best interests of the child, we cannot conclude that the circuit court erred by denying Mother's petition for immediate entitlement to custody of W.R.
Finally, Mother asks us to consider whether the circuit court erred in its separate custody order. We conclude that it did not. Grandmother established her status as primary residential custodian of the child before the circuit court. We have determined that there was no error either in the district court's finding of neglect or in its decision to grant Grandmother joint physical custody of the child. Nor have we found any error in the circuit court's decision to deny Mother's petition for immediate entitlement to custody. Therefore, we have no basis whatsoever to reverse the circuit court's order retaining Grandmother as primary residential custody of W.R.
We AFFIRM the orders of the Cumberland Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: G. George Bertram
Jamestown, Kentucky BRIEF FOR APPELLEE S.R.: Angela M. Capps
Columbia, Kentucky