Opinion
NO. 2017-CA-000984-ME
08-03-2018
BROOKE AMMONS APPELLANT v. CALEN HAZEL WOOD APPELLEE
BRIEF FOR APPELLANT: Dawn L. McCauley Lebanon, Kentucky BRIEF FOR APPELLEE: William R. Noelker Danville, Kentucky Calen Hazelwood, Pro se Harrodsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO. 16-CI-00085 OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, NICKELL AND THOMPSON, JUDGES. DIXON, JUDGE: Appellant, Brooke Ammons, appeals from a decision of the Mercer Family Court denying her motion to modify custody. For the reasons set forth herein, we reverse the decision of the family court and remand this matter for further proceedings.
The parties are the biological parents of two minor children. On February 8, 2016, Appellant appeared in the family court in response to a juvenile dependency, neglect and abuse petition alleging that she had endangered the children while they were in her care. Thereafter, on March 30, 2016, Appellee filed a petition in the family court for permanent sole custody and child support. Following an adjudication hearing in the juvenile case on July 16, 2016, the family court found the allegations in the petition to be true and made a finding that the children were, in fact, neglected or abused. The family court ordered Appellant to complete a case plan with the Cabinet and return to the court for review.
The record is not entirely clear as to the proceedings in the juvenile actions. Two actions were initially filed in 2013 and, at one point, Appellee's mother was granted temporary custody of the children. At the time of the February 8, 2016 hearing, Appellee had temporary sole custody of both children. During several of the hearings herein, the family court referenced the fact that the Cabinet had attempted to work with Appellant over the course of four years.
On March 8, 2017, the family court held a second hearing wherein the Cabinet submitted its report indicating that Appellant had failed to sufficiently work toward completion of her case plan, and that it was recommending that the children remain in the permanent custody of Appellee. Finding that Appellant had failed to demonstrate that the children could be safely placed in her care, the family court closed her case with the Cabinet and awarded permanent custody to Appellee. The family court further ordered that Appellant would be allowed visitation with a supervisor approved by the Cabinet.
Twenty days after the juvenile case was closed, Appellant filed a motion in the family court case initiated by Appellee to modify custody and visitation. Following a brief hearing, the family court entered an order on March 31, 2017, stating that it would not hold an evidentiary hearing on modification of custody because Appellant "failed to show that a meaningful change in circumstances as required by KRS 403.340(3) [had] occurred in the twenty days since entry of the sole custody order to [Appellee]." The family court did, however, set a hearing on the issue of visitation.
Because the family court awarded sole custody to Appellee in the juvenile action, there is no custody order in the family court action.
On May 5, 2017, the family court held a hearing on visitation wherein both parties testified. In its subsequent order entered on May 12, 2017, the family court noted its increasing concerns about Appellant's instability and lack of trustworthiness, and concluded that "the children's welfare would be at risk of serious endangerment [should] the current visitation order be modified." Because of apparent difficulties between the parties in arranging visitation with a suitable supervisor, the family court ordered that Appellant was entitled to no less than one hour per week supervised visitation at Angel's Hope, a family services organization in Harrodsburg, Kentucky. Appellant thereafter appealed to this Court.
Appellant argues herein that the family court erred in denying her the opportunity to be heard before it awarded sole custody to Appellee. Specifically, Appellant contends that the family court was required to consider and make findings as to the factors set forth in KRS 403.270(2) regarding the best interest of the children before it reached a decision regarding custody. We must agree.
Findings of fact may be set aside only if they are clearly erroneous. CR 52.01. Whether or not the findings are clearly erroneous depends on whether there is substantial evidence in the record to support them. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). If findings are supported by substantial evidence, then appellate review is limited to whether the facts support the legal conclusions made by the finder of fact. The legal conclusions are reviewed de novo. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). Further, if the factual findings are not clearly erroneous and the legal conclusions are correct, the only remaining question on appeal is whether the trial court abused its discretion in applying the law to the facts. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
KRS 403.270(2) provides:
We note that KRS 403.270 was amended by the General Assembly in 2018, but we utilize the version of the statute in effect when this action was brought. --------
(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. 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 custody;Furthermore, relevant to juvenile dependency, neglect and abuse actions, KRS 620.023 additionally provides:
(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.
(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 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) Alcohol and other drug abuse, 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.
(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.
While not specifically addressed in the dependency, neglect and abuse statutes in KRS Chapter 620, a panel of this Court has adjudged that in order for any court to determine permanent custody, the best interest analysis of KRS 403.270(2) must be applied. In London v. Collins, 242 S.W.3d 351 (Ky. App. 2007), the family court denied the appellant's petition for custody of his biological daughter. The family court found that, because less than two years had passed since an order of permanent custody of the child had been awarded to the mother's cousin in a previous dependency action, and the appellant had presented no evidence that the child could be harmed by her present environment, he had failed to meet the statutory requirements of KRS 403.340 to modify custody. Id. at 354. On appeal, a panel of this Court held that the custody order entered in the previous dependency action was not a "custody decree" as envisioned by KRS Chapter 403 and, as a result, the requirements of KRS 403.340(2) to modify custody would not apply.
While this appears to be a question of first impression in Kentucky, we believe that for a custody order to be a "custody decree," within the meaning of KRS Chapter 403, it must be based on the standards set out in KRS 403.270(2). A permanency order in a dependency action, under KRS Chapter 620, can and ordinarily should satisfy this requirement. KRS 620.027 provides,
The District Court has jurisdiction, concurrent with that of Circuit Court, to determine matters of child custody and visitation in cases that come before the
District Court where the need for a permanent placement and custody order is established as set forth in this chapter. The District Court [or Family Court], in making these determinations, shall utilize the provisions of KRS Chapter 403 relating to child custody and visitation....
Id. at 356. See also N.L. v. W.F., 368 S.W.3d 136, 148 (Ky. App. 2012) ("In order to grant permanent custody via a custody decree in a dependency action arising under KRS Chapter 620, the court must comply with the standards set out by the General Assembly in KRS 403.270(2)").
Therefore, if a permanency order in a dependency action brought under Chapter 620 complies with KRS 403.270(2) and is based on the best interests of the child, determined after considering the factors set out in that statute, we that believe it would qualify as a "custody decree" and that the requirements of KRS 403.340 would have to be satisfied in order to amend it.
During the March 8, 2017 hearing in the juvenile action, the family court noted that the intent was for Appellant to successfully finish her case plan, thus closing the juvenile action, and the family court would address all custody issues in the circuit court case. However, because Appellant did not finish her case plan, the Cabinet asked the family court to make a permanent custody determination during the hearing. The family court ruled that it was in the best interests of the children to be permanently placed with Appellee, with Appellant having supervised visitation. As a result, permanent custody was given to Appellee. The March 8, 2017, order, entered on AOC form DNA-6, recited that after considering evidence presented at the hearing, the family court found that it was in the children's best interests were served by the Cabinet's recommendation to permanently place them with Appellee. We would note, however, that while the family court checked the appropriate boxes on the form, it did not include any additional findings relevant to KRS 403.270(2) or KRS 620.023. In other words, apart from the preprinted portion of the form order, there are no separate findings that the custody award was in the best interest of the children.
Subsequently, during the brief hearing that occurred on March 28, 2017, wherein the family court ruled that it would not consider a change in custody but would address visitation in a separate hearing, Appellant argued that she was not even aware that the family court was going to characterize the form custody order as a permanent decree because the court had not yet considered the factors set forth in KRS 403.270(2). The family court opined that it could not do so because the best interest analysis only becomes relevant if there are two or more potential custodians who are on "equal footing." In this case, because Appellant was clearly not in a position at the time of the final hearing in the dependency action to have custody of the children, the family court believed that it could not engage in an analysis of the KRS 403.270(2) factors because Appellee was the only suitable custodian.
While we find the family court's rationale understandable in light of the facts of this case, we nevertheless conclude that it is erroneous. The interplay between KRS 403.270(2) and KRS 620.023 clearly must be interpreted as always requiring a best interest analysis before awarding permanent custody in a dependency action. Indeed, the language of KRS 620.023 contemplates a situation where a parent or other custodian is unable to care for a child due to mental illness, alcohol/drug use, or prior instances of abuse and neglect. KRS 620.023(a), (b) and (c). Simply because evidence of an incapacitating factor exists does not negate the family court's responsibility to fully consider all statutory factors in determining the best interests of the children before awarding permanent custody. As such, we cannot conclude that the order of custody entered in the dependency case was a permanent "custody decree" in the absence of specific findings under KRS 403.270(2) and KRS 620.023. London, 242 S.W.3d at 357. Therefore, the requirements of KRS 403.340(2) to modify custody are inapplicable.
We are cognizant of the fact that our decision herein is based upon a technicality and that the family court had more than sufficient evidence to render the decision that it did. Nor do we necessarily believe that upon remand the result will or should be any different. Nevertheless, we are bound by the statutory language found in KRS Chapters 403 and 620, and must conclude that the family court is required to determine the best interests of the children after considering the factors set forth in KRS 403.270(2) and KRS 620.023, and make specific written findings supporting its decision.
Appellant next argues that the family court erred in taking judicial notice of the juvenile proceedings without providing notice of its intent to do so. We find this argument to be wholly without merit.
"[I]t is a well-established principle that a trial court may take judicial notice of its own records and rulings, and of all matter patent on the face of such records, including all prior proceedings in the same case." M.A.B. v. Commonwealth Cabinet for Health and Family Services, 456 S.W.3d 407, 412 (Ky. App. 2015). See also Adkins v. Adkins, 574 S.W.2d 898, 899 (Ky. App. 1978). "Furthermore, a court may take judicial notice of such records and rulings at its discretion, 'whether requested or not.' KRE 201(c)." M.A.B., 456 S.W.3d at 412. The family court herein presided over both the dependency action and the instant action. Appellant, in filing the motion to modify custody, specifically challenged the procedure and decision of the court in the dependency action. Certainly, she should have been aware that the family court would rely on the evidence and findings of the dependency proceedings in determining whether its orders of custody and visitation rendered therein should be modified. No prior notice needed to be given to Appellant.
Based on the foregoing, we reverse the order of the Mercer Circuit Court and remand for further proceedings consistent with this opinion.
NICKELL, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Dawn L. McCauley
Lebanon, Kentucky BRIEF FOR APPELLEE: William R. Noelker
Danville, Kentucky Calen Hazelwood, Pro se
Harrodsburg, Kentucky