B.G.N. v. J.M.

Full title: B.G.N. APPELLANT v. J.M. APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 15, 2013

NO. 2012-CA-001028-ME (Ky. Ct. App. Mar. 15, 2013)

Opinion

NO. 2012-CA-001028-ME

03-15-2013

B.G.N. APPELLANT v. J.M. APPELLEE

BRIEFS FOR APPELLANT: Eric Tedder Carlisle, Kentucky BRIEF FOR APPELLEE: John Preston Thompson Assistant Carter County Attorney Grayson, Kentucky

LAMBERT

NOT TO BE PUBLISHED

APPEAL FROM CARTER FAMILY COURT

HONORABLE DAVID D. FLATT, JUDGE

ACTION NO. 11-J-00207

OPINION

AFFIRMING

BEFORE: KELLER, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: This appeal arises from an award of permanent custody by the Carter Family Court in a dependency, neglect, and abuse ("DNA") case filed by J.M., the maternal grandmother ("the Grandmother") of A.N.N. ("Child 1"). The child's father, B.G.N., ("Father 1") has appealed from this ruling, arguing that, as the natural father, he had a superior right to custody. Because we disagree with Father 1's argument based upon the application of Kentucky Revised Statutes (KRS) 620.027, we affirm.

In August 2011, the Grandmother filed two DNA petitions, one in the interest of Child 1 (born August 24, 2006) and the other in the interest of her other grandchild and Child 1's half-brother, C.G.H. (born September 30, 2010) ("Child 2").¹ In these petitions, the Grandmother sought temporary custody of both grandchildren due to neglect, and in her letter attached to the petition she focused on the actions of the mother of the two children ("the Mother") and Child 2's father ("Father 2"). The Grandmother stated that both the Mother and Father 2 abused drugs and paid no attention to the children. She also related an incident earlier that month when she found Child 2 screaming in the Mother's car, which was parked in front of the sheriff's office with the windows up. While none of these incidents involved Father 1, the Grandmother also described her concerns about him, including a back condition for which he took medication and for which he was attempting to obtain disability benefits. In addition, the Grandmother reported that Father 1 did not have a residence of his own but was living with his brother.

1 The present appeal only concerns Child 1's custody.

The family court held a temporary removal hearing on August 23, 2011. Father 1 appeared with counsel, and the court appointed a guardian ad litem for the children. The Grandmother, the Mother, and Father 2 also appeared at the hearing, along with a representative of the Cabinet for Health and Family Services ("the Cabinet"). The court heard testimony from Cabinet social worker Staci Menix as well as from Father 1, who reported that he was currently living with his parents and that he was taking his medications as prescribed. The court, identifying what it described as "red flags," placed the children in the temporary custody of the Grandmother and permitted Father 1 to have visitation with his son while supervised by his parents. In addition, the court ordered the Mother, Father 1, and Father 2 to undergo drug testing.

The family court held an adjudication hearing on October 4, 2011. The Mother admitted to general drug abuse at the beginning of the court proceeding, and Father 1 indicated that he wanted either custody of his son or unsupervised visitation. The court then scheduled an evidentiary disposition hearing for early January 2012. At the disposition hearing, the court heard testimony from Ms. Menix, who had an ongoing case with the Mother, Father 2, and the children. Father 1 was not a part of the case plan because he was not named in the DNA petition and he did not live in the same county. She reported that Father 1's drug test came back positive for Xanax (a medication he was prescribed), but negative for other narcotic pain medications he was prescribed and claimed to take as needed. She also reported that family members of the Mother reported that Father 1 had been selling his medications. Ms. Menix recommended that the brothers (Child 1 and Child 2) stay together and remain in the custody of the Grandmother. Jason Mellencamp, the Cabinet's social worker from Harrison County, testified that he had evaluated Father 1's place of residence with his parents, noting that there was no risk of harm to a child. Following the testimony, the court held a recess, after which the parties reported that they had reached an agreement pending a permanent decision. The Grandmother would retain custody of the children, and Father 1 would be reinstated to the previous order of timesharing as set forth in an earlier custody case. The court entered an order on January 5, 2012, memorializing the parties' agreement and ordering that the Grandmother and Father 1 would have joint custody of Child 1, designating the Grandmother as the primary custodian, and permitting Father 1 to have his previous visitation reinstated. The Harrison County Cabinet was also ordered to open a case on Father 1 and provide him with all necessary services.

Finally, the court held a permanent custody hearing on May 1, 2012. Ms. Menix recommended that Child 1's placement remain the same, with the Grandmother. She reasoned that this arrangement was best because Child 1 had been with the Grandmother more than anyone else and would remain with his brother in the grandmother's home. She also noted that Child 1 was content with this arrangement. Regarding Father 1, Ms. Menix testified that she no longer had any concerns with him, noting that he was in the process of obtaining disability benefits. Mr. Mellencamp testified about his investigation of Father 1's family, and reported that Father 1 had been awarded disability benefits and back-pay. He noted that because of his back pain, Father 1 would benefit from the support of his relatives. In addition, Mr. Mellencamp noted that Father 1's drug test came back negative, despite the fact that it should be positive for narcotic medication.

In addition to the two social workers, the court heard testimony from the parties. The Mother testified, briefly, regarding Father 1's past activity in selling his medications, and stated that he had given her pills in 2008 or 2009 when they were still together. The Mother wanted both children to remain with the Grandmother because it was a stable environment. The Grandmother testified that the children were doing well in her care, and that Child 1 was excelling in school and was well-adapted. She testified that she had been receiving child support through Father 1's disability award. She related that Father 1 would ask her for money from Child 1's disability benefits when he would have him for visitation. She paid him between $40.00 and $50.00 on a few occasions before she was told to stop doing so.

Father 1 testified that he could not explain why his pain medication was not showing up on the drug tests, indicating that he had taken one the day of the drug test and wore a pain patch. His prescriptions included Percocet, a Fentanyl patch, and diabetes medication. He stated that he did not take the pain medication as prescribed, but took it as needed. He denied ever selling any of his pills. Regarding his ability to care for his son, Father 1 testified that he did not have any trouble taking care of him during visitations. If he obtained custody, he would welcome any of Child 1's family members in the house, including the Grandmother and Child 2.

On May 10, 2012, the family court entered an order awarding permanent custody to the Grandmother. The court found this was in the best interest of Child 1 based upon the following findings:

1. [Father 1], father of the above child, is prescribed strong prescription medication, Percocet and Fentanyl, from a pain clinic in Lexington as a result of a back injury. The father is not to pick up more than five pounds.
2. The caseworker with the Cabinet for Health and Family Services testified that she would not feel comfortable placing this child with the father if he did not live in the home with his parents.
3. The above child is stable and comfortable in his current living arrangements.
4. This child lives with his maternal grandmother who also has custody of this child's brother. The Court finds it is in this child's best interest to be placed in the home with his brother.
5. The maternal grandmother testified that the father has asked that she send money with the child when he comes to visit. This was at a time that he was behind on his child support payments.
6. The father testified that he was on a waiting list for an apartment and due to his social security back pay; he is now able to secure housing outside of his parents' home. The Cabinet has great concern for his ability to independently care for a child.
7. The father denies substance abuse and/or addiction. He states he functions every day without side effects.
9. The maternal grandmother has seen the father clearly drug affected, staggering and with slurred speech. The Court finds this to be a serious concern since it was at a time that he was to be transporting the child. The
maternal grandmother refused to allow the child to visit the father on this occasion.

This appeal now follows.

On appeal, Father 1 contends that the family court abused its discretion by denying him his superior right to custody when it awarded custody to the Grandmother because he was not found to be unfit and had not waived his right to custody. In response, the Grandmother² contends that Father 1 has been shown to be unfit and that he waived his right to custody.

2 We presume the appellee brief filed for the Carter County Attorney is in support of the Grandmother's position.
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Our standard of review is set forth in L.D. v. J.H., 350 S.W.3d 828, 829-30 (Ky. App. 2011):

This Court's standard of review of a family court's award of child custody in a dependency, abuse and neglect action is limited to whether the factual findings of the lower court are clearly erroneous. Kentucky Rules of Civil Procedure (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 the 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). 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). Finally,

[s]ince the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court

should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed absent an abuse of discretion.

Id.

Father 1 does not appear to contest the family court's factual findings. Rather, he confines his argument to whether the family court denied him his superior right to custody and thereby abused its discretion when it awarded custody to the Grandmother.

In his brief, Father 1 argues that he has a superior right to custody based upon his status as the natural parent: "Parents of a child have a fundamental, basic and constitutional right to raise, care for, and control their own children." Vinson v. Sorrell, 136 S.W.3d 465, 468 (Ky. 2004). The Vinson Court went on to address exceptions to the fundamental rule that would allow a non-parent to pursue custody:

In Moore v. Asente, this court examined how a non-parent may pursue custody. When a non-parent does not meet the statutory standard of de facto custodian, the non-parent pursuing custody must prove either of the following two exceptions to a parent's superior right or entitlement to custody: (1) that the parent is shown by clear and convincing evidence to be an unfit custodian, or (2) that the parent has waived his or her superior right to custody by clear and convincing evidence.

Vinson, 136 S.W.3d at 468 (Ky. 2004) (footnotes omitted). The Grandmother argues that these exceptions apply, while Father 1 argues that neither applies in the present case because he has not been deemed unfit and has not waived his right to custody. We need not reach this argument because statutory law places the Grandmother in the same footing as Father 1 in this case.

The family court's jurisdiction in juvenile matters such as this arises under KRS 610.010. Regarding permanent custody awards, the statute specifically provides: "The court shall have no jurisdiction to make permanent awards of custody of a child except as provided by KRS 620.027." KRS 610.010(8). KRS 620.027, in turn, provides:

The District Court has jurisdiction, concurrent with that of the 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, in making these determinations, shall utilize the provisions of KRS Chapter 403 relating to child custody and visitation. In any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interest of the child. [Emphasis added.]

In L.D. v. J.H., supra, this Court addressed the application of KRS 620.027 in a case where the grandparents sought custody in a DNA action, as in the present case:

[T]he family court correctly determined that because this matter originated as a dependency, abuse and neglect case under KRS Chapter 620, Appellees' standing is conferred by virtue of KRS 620.027, which provides in relevant part: "In any case where the child is actually residing with the grandparents in a stable relationship, the court may recognize the grandparents as having the same
standing as a parent for evaluating what custody arrangements are in the best interest of the child." Once the family court makes a finding of a stable relationship between grandparent(s) and child, the court is to utilize KRS Chapter 403 to determine custodial arrangements.

L.D. v. J.H., 350 S.W.3d at 830-31 (emphasis added).

In the present case, the family court found that Child 1 "is stable and comfortable in his current living arrangement." This finding is supported by substantial evidence of record; in fact, Father 1 does not contest this finding. Based upon this finding, the family court could then consider the Grandmother on the same footing as Father 1 in making a determination as to the child's best interest with regard to permanent custody. While Father 1 does not specifically argue that the family court's decision was not in the child's best interest, we note that the family court certainly considered the best interest of the child in reaching this decision, including the undisputed facts that Child 1 was happy and content in his Grandmother's care, was doing well in school, and had adapted well. In addition, he got along well with his half-brother, who was also in the custody of the Grandmother. We perceive no abuse of discretion in the family court's order placing Child 1 in the permanent custody of the Grandmother.

For the foregoing reasons, the judgment of the Carter Family Court is affirmed.

MOORE, JUDGE, CONCURS.

KELLER, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Eric Tedder
Carlisle, Kentucky
BRIEF FOR APPELLEE: John Preston Thompson
Assistant Carter County Attorney
Grayson, Kentucky