Opinion
NO. 2014-CA-001331-ME
03-20-2015
KIMBERLY CORBIT APPELLANT v. JARRED DONALD HALL, MANDY MAE HALL, AND DASJOHN SIMPSON APPELLEES
BRIEF FOR APPELLANT: Jeremy S. Aldridge Elizabethtown, Kentucky BRIEF FOR APPELLEES JARRED DONALD HALL AND MANDY MAE HALL: Lori A. Kinkead Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 13-CI-00610
OPINION
AFFIRMING
BEFORE: CLAYTON, KRAMER, AND NICKELL, JUDGES. KRAMER, JUDGE: Kimberly Corbit appeals the Hardin Family Court's order denying her motion to set aside an Agreed Order transferring permanent custody of her child J.A.M.C. to Jarred Hall and Mandy Hall, and permitting her supervised visitation with J.A.M.C. for no less than one hour each week at a private facility, at her own expense. After careful review of the record and Kimberly's arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kimberly Corbit has given birth to four children. Kimberly's oldest child, born when Kimberly was fifteen, is under the legal guardianship of Kimberly's mother, Pamela Lee. Kimberly's second child, born when Kimberly was seventeen, was placed in foster care and subsequently adopted. Kimberly's third child remains in her legal custody, but is primarily cared for by Kimberly's aunt, as well as Kimberly's mother, Ms. Lee. Kimberly's fourth and youngest child, J.A.M.C., was born on October 21, 2011, and is Kimberly's only biological child with DasJohn Simpson.
DasJohn does not appeal the Hardin Circuit Court's July 15, 2014 order.
Mandy Hall, an elementary school teacher, taught Kimberly's oldest child during the 2012-2013 school year. In the fall of 2012, Ms. Lee, Kimberly's oldest child's guardian, met with Mandy for a parent-teacher conference. During the course of the conference, Ms. Lee expressed concern about Kimberly's parenting; how Kimberly's relationship with her oldest child affected the child; and additionally, concerns that Kimberly was unable to care for her youngest child. Ms. Lee told Mandy that she had encouraged Kimberly to "give up" J.A.M.C., and invited Mandy to her home for a birthday party where J.A.M.C. would be present. At the party Mandy and her husband, Jarred Hall, met Kimberly and J.A.M.C. for the first time and spoke with Kimberly about the possibility of adopting J.A.M.C.
After the birthday party, J.A.M.C. was quickly integrated into the Hall family. About a week after meeting J.A.M.C. and Kimberly for the first time, on September 28, 2012, infant J.A.M.C. traveled with the Hall family on a week-long vacation to coastal North Carolina. After the Halls returned from the vacation, they began caring for J.A.M.C. on weekends. By the end of October, J.A.M.C. was spending both weekends and weeknights with the Halls. For a short period Kimberly continued to care for J.A.M.C. during the week while the Halls were at work. By January 2013, the Halls began providing daycare for J.A.M.C. Kimberly's contact with J.A.M.C. became sporadic thereafter.
On three occasions, Kimberly contacted Mandy Hall and expressed a desire to resume the responsibilities of a full-time parent, and on each occasion, returned J.A.M.C. to the Halls in frustration within a few days. The third such incident occurred on March 10, 2013, at which time Mandy spoke with Ms. Lee and told her that Kimberly's erratic demands were disrupting the Hall's family and that without some sort of permanent agreement, the Halls would not continue to care for J.A.M.C.
At that point Kimberly agreed to a permanent arrangement placing J.A.M.C. with the Halls, and the Halls arranged for adoption paperwork to be prepared. The Halls hired independent counsel for Kimberly and scheduled an appointment for Kimberly to meet with her attorney to review the adoption paperwork. At the appointment Kimberly was advised that visitation with J.A.M.C. could not be guaranteed after an adoption occurred. As a result, Kimberly refused to move forward with the adoption. A second appointment was scheduled to review an agreement granting the Halls permanent custody of J.A.M.C. After Kimberly's counsel added an "agreement to agree" to visitation and a waiver of child support, both Kimberly and DasJohn signed the Agreed Order granting custody of J.A.M.C. to the Halls.
On April 12, 2013, the Hardin Family Court entered the Agreed Order transferring custody of J.A.M.C. to Mandy and Jarred Hall. The Agreed Order provided that either party may motion the court to set a specific visitation schedule. Mandy testified that during the period immediately following execution of the Agreed Order, Kimberly called and requested visitation on a moment's notice, and frequently skipped or canceled scheduled visits with J.A.M.C. As a result of Kimberly's erratic visitation and fearing that Kimberly was abusing drugs and alcohol, on August 28, 2013, the Halls moved the Family Court to order Kimberly to submit to a drug screen and to terminate visitation if Kimberly screened positive for drugs or establish a regular visitation schedule if Kimberly screened negative. The Family Court temporarily suspended visitation until the results of Kimberly's drug screen came back negative. On October 10, 2013, the court ordered supervised visitation between Kimberly and J.A.M.C. for no less than one hour each week at a private facility, at Kimberly's expense.
On November 25, 2014, Kimberly moved to set aside the Agreed Order transferring custody to the Halls, alleging she was not competent at the time she signed the Agreed Order. Kimberly also claimed that Mandy exercised undue influence as Kimberly's oldest child's teacher. Kimberly's motion came before the Hardin Family Court on May 5, 2014. After hearing over three hours of testimony from several witnesses, the Family Court denied Kimberly's motion to set aside the Agreed Order and declined to modify Kimberly's visitation. On July 14, 2014, the Family Court made written findings of fact summarizing the testimony at the hearing and reduced its decision to writing. Although Kimberly never motioned the Family Court to modify its initial visitation determination or made a written request for findings on that issue, she now appeals this aspect of the Family Court's Order.
STANDARD OF REVIEW
"[T]he Family Court has considerable discretion to determine the living arrangements which will best serve the interests of the [child]." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). "[T]his Court will only reverse a Family Court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Id. (Citations omitted). A factual finding is not clearly erroneous if it is supported by substantial evidence. Shelton v. Shelton, 446 S.W.3d 663, 665 (Ky. App. 2014). "'[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.'" Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations omitted). However, "...application of the appropriate standard to the facts are issues of law that we review de novo." Walker v. Blair, 382 S.W.3d 862, 867 (Ky. 2012) (citation omitted).
ANALYSIS
Kimberly's arguments on appeal are that the Family Court abused its discretion by ordering her no less than one hour of privately supervised visitation per week and ordering her to be responsible for all for all costs and fees associated with visitation at the private facility. We find no error in either decision by the Family Court.
As part of her argument, Kimberly asserts the Family Court's visitation determination was a restriction of her non-custodial visitation rights and required the Family Court to conclude that visitation would seriously endanger the child's physical, mental, moral or emotional health pursuant to Kentucky Revised Statutes (KRS) 403.320(1). As a question of law, we review the application of the appropriate standard de novo.
Under the circumstances we disagree with Kimberly's argument that the Family Court applied the wrong standard. As used in KRS 403.320(1), "restrict" means to provide the non-custodial parent with something less than "reasonable visitation." Kulas v. Kulas, 898 S.W.2d 529, 530 (Ky. App. 1995). "What constitutes 'reasonable visitation' is a matter which must be decided based upon the circumstances of each parent and the children, rather than any set formula." Drury, 32 S.W.3d at 524.
After careful review of the record, we cannot conclude that the Family Court provided Kimberly something less than reasonable visitation. Testimony indicated that Kimberly had sporadically cared for J.A.M.C. during the first year and half of J.A.M.C.'s life. Prior to the court's visitation determination, Kimberly's caretaking had become increasingly infrequent. Kimberly's step-mother testified that she cared for J.A.M.C. for three months and again for eighteen days while Kimberly was incarcerated. Samantha Meredith testified that she also cared for J.A.M.C. for weeks at a time and at other times for shorter duration. Similarly, the Halls quickly stepped into the role of J.A.M.C.'s primary caretaker after meeting Kimberly. Although Kimberly initially cared for J.A.M.C. on weekdays, she stopped about a month after meeting the Halls and J.A.M.C. was enrolled in daycare.
Further, Kimberly admitted she had a history of mental health issues, continued to abuse drugs and alcohol, and had failed to seek treatment for either. Kimberly's mother, stepfather, and Kimberly herself testified that Kimberly was unable to care for J.A.M.C. independently. Mandy testified that upon taking J.A.M.C. to the doctor and dentist she learned that J.A.M.C. had missed routine vaccinations and needed teeth removed. Moreover, the visitation determination merely set a minimum amount of visitation between Kimberly and J.A.M.C., but tellingly, even after the Family Court set a visitation schedule, Kimberly failed to visit with J.A.M.C. at any time before the May 5, 2013 hearing to set aside the Agreed Order. Under these circumstances, the Family Court's visitation determination was reasonable. Accordingly, we now look to see if substantial evidence supports that its visitation determination was in the best interest of the child.
We need look no further than the testimony summarized by the Family Court in its written findings of fact to determine that substantial evidence exists to support its decision that granting Kimberly visitation no less than once a week at a private, supervised facility was in J.A.M.C.'s best interest. The Family Court found that Kimberly's mother, Ms. Lee, testified she felt Kimberly was unable to independently care for J.A.M.C. Its findings included Ms. Lee's statement that Kimberly had recently, and at different times of her life, experienced a great deal of mental distress, including post-partum depression, anxiety, bipolar disorder, and had a history of failing to take medication prescribed to her as directed by her doctors. Ms. Lee stated that Kimberly had discussed placing J.A.M.C. for adoption prior to meeting the Halls. Further, Ms. Lee acknowledged the Halls took infant J.A.M.C. out of state on vacation for over a week shortly after meeting Kimberly and J.A.M.C. for the first time and that J.A.M.C. stayed with the Halls most every night since October 2012. Ms. Lee stated that the Halls provided medical and dental care for J.A.M.C. and that she had no concerns for the safety of J.A.M.C. while with the Halls.
The Family Court also included in its findings Kimberly's testimony that prior to September 2012, she was in a terrible mental state, depressed, suicidal, and was drinking and trying not to abuse drugs, and that after the Halls began to care for J.A.M.C. in October 2012, Kimberly continued to be depressed and resumed the use of drugs and alcohol. Kimberly stated that she did not seek assistance with her issues because she lacked the identification necessary to enroll in medical insurance and had no transportation to and from appointments. Kimberly admitted that when she would visit with J.A.M.C., she was unable to handle J.A.M.C. and would return her to the Halls early. Kimberly admitted that she lied when completing her court-ordered mental health evaluation in that that she had not been clean from drug use for a year as she claimed and that she could manipulate medical professionals into getting what she wanted. Kimberly stated that she had not stopped abusing alcohol or drugs since the Halls began caring for J.A.M.C. Kimberly acknowledged that she was granted court-ordered visitation with J.A.M.C., but that she has not completed registration necessary to begin the visitation or exercised any visitation in over nine months preceding the hearing.
Kimberly did not detail what forms of identification were necessary to enroll in medical insurance, why she could not obtain the necessary identification, or why she could not use public transportation to avail herself of necessary and prudent services for herself and J.A.M.C.
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Mandy Hall's testimony was also summarized by the Family Court and included in its written findings of fact. Mandy testified that she had been employed as an elementary school teacher for four years and had four children, two of whom were adopted. Mandy stated that when she arrived at the birthday party in September 2012, J.A.M.C. was handed to her as soon as she arrived and that she spoke to Kimberly about an open adoption and pledged to remain in contact with Kimberly. Mandy testified that about a week after the birthday party, Kimberly agreed to allow J.A.M.C. to go on a weeklong vacation to coastal North Carolina with the Hall family and that after they returned J.A.M.C. began staying with the Halls each weekend. Mandy testified that by the end of October 2012, J.A.M.C. was spending both weekends and weeknights with the Halls. Mandy testified that on three occasions Kimberly took J.A.M.C. away from the Halls, saying that she wanted to care for her child. But on each occasion Kimberly returned J.A.M.C. to the Halls and requested they resume caring for the child. Mandy stated that on the third such occasion she was contacted by Ms. Lee and that she told Ms. Lee that she would not take J.A.M.C. back into her home without a permanent agreement because the Hall family was suffering with J.A.M.C. coming in and being taken out of their lives repeatedly. Mandy testified that after entry of the Agreed Order, visits between Kimberly and J.A.M.C. were scheduled. But after Kimberly missed and canceled several visits, the Halls filed a motion to establish a specific schedule as provided for by the Agreed Order. Mandy stated that although the Family Court ordered supervised visitation at a private facility, she was never asked to bring J.A.M.C. to the facility.
The Family Court's findings also summarized the following testimony from Jarred Hall. Jarred testified that he is an inspector for the Kentucky Transportation Cabinet. He stated that at the September birthday party, Ms. Lee and Ms. Lee's sister were persistent about the Halls holding J.A.M.C. He testified that during the period Kimberly was caring for J.A.M.C. while the Halls were at work, he was responsible for dropping off J.A.M.C. with Kimberly in the morning and was late to work on a number of occasions because he could not get Kimberly to answer the door. He testified that on one such occasion he thought Kimberly may have been under the influence of alcohol or drugs.
Patty Bradley, Kimberly's stepmother, and her daughter, Samantha, testified that they cared for J.A.M.C. on two occasions while Kimberly was incarcerated - once for eighteen days and once for three months, and on other occasions for shorter duration. Ms. Bradley stated that Ms. Lee told her that if she refused to care for J.A.M.C. while Kimberly was incarcerated, Ms. Lee would call social services. Samantha testified that she took care of J.A.M.C. for two weeks and on other occasions for shorter duration. Samantha testified that she was aware that Kimberly had issues with drugs and alcohol. Their testimony was also included in the Family Court's findings.
Given the Family Court's substantial and detailed findings, we cannot say that it abused its discretion in granting Kimberly weekly supervised visitation for no less than one hour, at her own expense. Although the Family Court failed to reference specifically the words "best interest" in its written order, no particular wording or phraseology is required when its rationale is readily determinable from its substantial findings. Keifer v. Keifer, 354 S.W.3d 123, 126 (Ky. 2011) ("[W]hile the written order entered by the trial court failed to reflect those findings of facts, and even failed to indicate compliance with the 'best interest of the child' standard, the factual basis for the trial court's decision is not a mystery.") We sympathize with Kimberly regarding her financial circumstances and acknowledge that because she is required to pay for the costs associated with visitation at a private, supervised facility, the Family Court's order inhibits the amount of visitation she can exercise. It is Kimberly, however, who has put herself in this situation. It appears that the Halls desired to work with her but not at the expense of the best interest of J.A.M.C. And, we can find no legal authority - and Kimberly has cited no legal authority - supporting her contention that requiring her to pay for use of the private facility during visitation was an abuse of discretion.
For these reasons, the judgment of the Hardin Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jeremy S. Aldridge
Elizabethtown, Kentucky
BRIEF FOR APPELLEES JARRED
DONALD HALL AND MANDY
MAE HALL:
Lori A. Kinkead
Elizabethtown, Kentucky