Opinion
NO. 2018-CA-001898-ME
01-31-2020
A.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; A.B., JR., A MINOR CHILD; AND A.S. APPELLEES
BRIEFS FOR APPELLANT: Zack McKee Louisville, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA J. JOHNSON, JUDGE
ACTION NO. 17-J-502124-001 OPINION
AFFIRMING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: A.B. (hereinafter referred to as Mother) appeals from an order of the Jefferson Circuit Court, Family Division One, which granted permanent custody of Mother's minor child, A.B., Jr. (hereinafter referred to as Child), to Child's maternal aunt, A.S. (hereinafter referred to as Aunt). On appeal, Mother argues that the trial court utilized the wrong statutory standards in granting permanent custody to Aunt and that the trial court's findings were not supported by substantial evidence. We find no error and affirm the court's judgment. We must, however, also remand for the trial court to set forth a visitation schedule.
This case involves allegations of dependency and neglect against a minor child; therefore, we will not use the names of the parties involved in order to protect the child's privacy.
FACTS AND PROCEDURAL HISTORY
Mother is the natural mother of Child. On May 27, 2017, A.B., Child's father (hereinafter referred to as Father), was arrested for violating an emergency protection order. At the time, Mother was incarcerated for a driver's license violation. Child was residing with Father at the time of the arrest, and because Mother was already incarcerated, an order for emergency custody was granted to the Cabinet. On May 31, 2017, the Cabinet for Health and Family Services filed a petition alleging Child had been abused or neglected. Aside from both parents being in the custody of police, there were also allegations that Child and Father had been living in a car, that Child had missed a large amount of school, and that Child was not being fed properly. There was also an allegation that the parents had been abusing drugs.
Mother was released from jail shortly after the removal of Child. Father stipulated to the neglect of Child and Mother stipulated to the dependency of Child. Cabinet case plans were drawn up and Child was placed in the temporary custody of Aunt. The Cabinet case plan for Mother required that she find stable housing, maintain employment, take parenting classes, and refrain from using drugs.
Testimony from the hearing in this case indicated that Mother had a hard time complying with her case plan at first. Mother was able to get a job in February or March of 2018 and as of November 27, 2018, was making $18 per hour and had health insurance for her and Child. Mother was also paying $100 a week in child support. From June to September of 2018, Mother attended the Kristy Love Foundation in Louisville, which is a drug recovery program. On September 17, 2018, Mother tested positive on a drug screen administered by the Cabinet; however, after that point, Mother began consistently having negative drug screens. Also in September of 2018, Mother began living in a large, yet unfinished, basement at the home of a friend.
During the pendency of this dependency, neglect, and abuse action, Mother filed various motions seeking visitation; however, a domestic violence order (DVO) granted in Oldham County against Mother and in favor of Aunt and Child prevented any visitation. Additionally, the Cabinet objected to any visitation until after Mother had completed a drug abuse treatment program and had consistently tested negative on random drug screenings. On October 22, 2018, Mother filed a motion for Child to return to her care and custody or, in the alternative, for visitation. On October 30, 2018, the Cabinet and Aunt filed a motion requesting that Aunt be granted permanent custody of Child.
Aunt sought a DVO against Mother after Mother showed up at Aunt's house and attempted to see Child without permission of the court. Aunt alleged that Mother tried to break into the house and that Child was present. Mother claimed she did not attempt to break in.
A hearing was held on November 27, 2018. Testimony was heard from Mother, the social worker of record, a child behavioral professional, and Aunt. On December 4, 2018, the trial court entered two orders. The first was a handwritten calendar order which stated:
The NM's motion for return of custody is respectfully denied. The court cannot say that it would be in the child's best interest to return to NM at this time. The child has not had sufficient opportunity to reunify with NM and it is unclear whether NM is ready to accept custody of child with whom she is not bonded. In regard to the motion for PC, the court finds it would be in the child's best interest if [Aunt] was awarded PC. The court notes NM's objection and desire. Moreover, the court commends the NM on her progress. NM should not be discouraged by this ruling. The court simply cannot penalize the child by delaying permanency. The NM's
motion for visitation is granted. CHFS to aid the parties in creating a schedule for visitation.The trial court's second order was a form order which stated in pertinent part:
The Ct. would be remiss if it failed to further find that the child is doing very well with [Aunt], he is thriving, bonded and seemingly happy.
The Court having considered the length of time the child(ren) has been in the care of [Aunt] the Temporary Custodian(s), the stable relationship existing, the current inability of the parent(s) to provide for the child(ren), the need for permanency for the child(ren) and all other relevant factors pursuant to KRS Chapter 403, and having found pursuant to KRS 620.027 that it is in the best interest of the child(ren) that permanent care and custody be granted to [Aunt.] . . . Subject to parent(s) visitation rights as otherwise ordered by this Court.
NM stands for natural mother.
PC stands for permanent custody.
Kentucky Revised Statutes. --------
On December 11, 2018, Mother filed a motion to alter or amend the orders to set specific visitation days. There is no order in the record before us indicating whether the court took up this motion. This appeal then followed.
ANALYSIS
Mother's first argument on appeal is that the trial court did not consider KRS 620.023 and KRS 620.130 when it decided permanent custody. Mother argues the consideration of these statutes is required. Mother also argues that the court improperly considered KRS 403.270 when considering permanent custody. The Cabinet argues that KRS 620.023, KRS 620.130, and KRS 403.270 should all be considered when deciding permanent custody and that the trial court did consider these statutes in this case.
KRS 620.023 states:
(1) Evidence of the following circumstances if relevant shall be considered by the court in all proceedings conducted pursuant to KRS Chapter 620 in which the court is required to render decisions in the best interest of the child:
(a) Mental illness as defined in KRS 202A.011 or an intellectual disability as defined in KRS 202B.010 of the parent, as attested to by a qualified mental health professional, which renders the parent unable to care for the immediate and ongoing needs 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;
(e) Any other crime committed by a parent which results in the death or permanent physical or mental disability of a member of that parent's family or household; and
(f) The existence of any guardianship or conservatorship of the parent pursuant to a determination of disability or partial disability as made under KRS 387.500 to 387.770 and 387.990.
KRS 620.130 states:
(2) In determining the best interest of the child, the court may consider the effectiveness of rehabilitative efforts made by the parent or caretaker intended to address circumstances in this section.
(1) In any proceeding under this chapter, when the court is petitioned to remove or continue the removal of a child from the custody of his parent or other person exercising custodial control or supervision, the court shall first consider whether the child may be reasonably protected against the alleged dependency, neglect or abuse, by alternatives less restrictive than removal. Such alternatives may include, but shall not be limited to, the provision of medical, educational, psychiatric, psychological, social work, counseling, day care, or homemaking services with monitoring wherever necessary by the cabinet or other appropriate agency. Where the court specifically finds that such alternatives are adequate to reasonably protect the child against the alleged dependency, neglect or abuse, the court shall not order the removal or continued removal of the child.
(2) If the court orders the removal or continues the removal of the child, services provided to the parent and the child shall be designed to promote the protection of the child and the return of the child safely to the child's home as soon as possible. The cabinet shall develop a treatment plan for each child designed to meet the needs of the child. The cabinet may change the child's placement or treatment plan as the cabinet may require. The cabinet shall notify the committing court of the
change, in writing, within fourteen (14) days after the change has been implemented.KRS 403.270 states in pertinent part:
(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian, with due consideration given to the influence a parent or de facto custodian may have over the child's wishes;
(c) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(d) The motivation of the adults participating in the custody proceeding;
(e) The child's adjustment and continuing proximity to his or her home, school, and community;
(f) The mental and physical health of all individuals involved;
(g) A finding by the court that domestic violence and abuse, as defined in KRS 403.720, has been committed by one (1) of the parties against a child of the parties or against another party. The court shall determine the extent to which the domestic violence and abuse has affected the child and the child's relationship to each party, with due consideration given to efforts made by a party toward the completion of any domestic violence treatment, counseling, or program[.]
It appears as though Mother's argument stems from the fact that the court did not cite KRS 620.023 or KRS 620.130 in its orders but did generally cite to KRS Chapter 403. We agree with Mother that KRS 620.023 and KRS 620.130 must be considered in this case. KRS Chapter 620 concerns dependency, neglect, and abuse actions. KRS 620.023 concerns issues related to the best interests of a child and the best interests of a child are paramount when determining custody. KRS 620.130 states that a court shall consider alternatives to the continued removal of a child from the home. Granting permanent custody to a non-parent would be the continued removal of a child from the home.
We also agree with the Cabinet that KRS 403.270 must be considered, too. KRS 620.027 states that KRS Chapter 403 should be utilized when determining permanent custody in dependency, neglect, and abuse cases. N.L. v. W.F., 368 S.W.3d 136, 148 (Ky. App. 2012), also discusses using KRS 403.270 when determining permanent custody in dependency, neglect, and abuse cases.
Here, the trial court did not specifically mention that it considered KRS 620.023 and KRS 620.130, but the trial court's orders stated that it considered the best interests of the child and set forth reasons why it did not believe Mother was ready for Child to be returned to her. We believe this satisfied KRS 620.023 and KRS 620.130. In addition, Mother did not request more specific findings pursuant to Kentucky Rules of Civil Procedure (CR) 52.02 or CR 59.05. Without a motion seeking additional findings, we are unable to reverse on this issue. CR 52.04.
Mother's next argument on appeal is that the trial court's findings are not supported by the evidence and that Child should have been returned to her.
The Court of Appeals . . . [is] entitled to set aside the trial court's findings only if those findings are clearly erroneous. And, the dispositive question that we must answer, therefore, is whether the trial court's findings of fact are clearly erroneous, i.e., whether or not those findings are supported by substantial evidence. "[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." 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 the witnesses" because judging the credibility of
witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003) (footnotes omitted).
Mother claims that the court's findings are clearly erroneous because she has been drug-free for two months, she has stable employment, and she has a place to live. The Cabinet argues that Child had been out of Mother's custody for 20 months, but that at the time of the hearing, she had only been consistently complying with her case plan for two months and had not completed her case plan. We believe that the evidence presented at the hearing in this case supports the trial court's order. Mother had only been sober for two months and the Cabinet social worker believed a longer-term sobriety was necessary before Child could be returned to Mother. Additionally, Mother was living in an unfinished basement in the house of a friend. This basement had not been inspected by the Cabinet as to whether it was suitable. Additionally, Mother admitted it was not a long-term solution and that she was looking for another residence. Also, the DVO out of Oldham County was still in effect at the time of the hearing, although it stated the Jefferson Circuit Court could amend it as it pertained to this juvenile action. Furthermore, Mother had not yet begun her parenting class and the social worker testified that it would take four to six months to complete the program. Finally, testimony revealed that Child had been thriving in Aunt's care.
While another court could have denied the motion for permanent custody and returned Child to Mother, this trial court found that Aunt should have permanent custody and Mother should get visitation. As discussed above, this holding is supported by the evidence presented at the hearing.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. We will, however, still remand this case to the trial court. The trial court ordered that Mother should get visitation with Child but did not set a visitation schedule. The trial court left it to the Cabinet and Mother to work out a visitation schedule. We believe it would have been more appropriate for the trial court to set forth a specific visitation schedule. More than one year has passed since the orders were entered that form the basis of this appeal. Hopefully the parties have agreed to a visitation schedule or the court has entered a visitation order. Unfortunately, the record before us does not show if these events have happened. We believe the court must enter a visitation schedule and remand for it to do so.
ALL CONCUR. BRIEFS FOR APPELLANT: Zack McKee
Louisville, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky