Opinion
NO. 2012-CA-000758-ME NO. 2012-CA-000937-ME
03-08-2013
J.L.A. APPELLANT v. S.C.; S.C.; AND R.M.F. APPELLEES
BRIEF FOR APPELLANT: J.L.A., Pro se Irvine, Kentucky BRIEF FOR APPELLEES: Lisa L. Johnson Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON FAMILY COURT
HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 04-CI-00353
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: J.L.A. (Father) appeals an order of the Madison Family Court determining that S.C. and S.C. (paternal grandparents) had established that they were the de facto custodians of Father's minor child and awarding permanent custody of the child to them. After our review, we affirm.
J.L.A. (Father) and R.M.F. (Mother) are the biological parents of J.B.A., a little boy born on September 25, 2003. On March 23, 2004, Father filed a petition for custody of the child in the Madison Family Court. Mother's answer was filed simultaneously. In her answer, Mother agreed that the court should grant the parties joint custody and that Father should be the child's primary residential custodian. She agreed to visitation with the child on Sundays from 4:00 to 8:00 p.m. and at such other times upon which they could agree. Mother agreed that she could not remove the child from Madison County and that she would -- in no event -- exercise visitation for more than 24 hours at a time. An agreed judgment was rendered by the Madison Circuit Court three days later. Father was ordered to pay for the support of the child and for all of his medical expenses.
S.C. and S.C. are the child's paternal grandparents. On August 19, 2011, they filed a motion to intervene in the custody action. They asserted that they were the child's de facto custodians and requested that they be granted temporary custody of the child. According to the motion, the paternal grandparents had been the child's primary caregivers and financial supporters for nearly eight years.
On August 22, 2011, Father filed a motion to dismiss. In his motion, Father indicated that the child had lived with him for approximately two weeks. He indicated that the case should be dismissed or transferred to Estill County where he and the child were residing.
In an order entered August 30, 2011, the family court granted the grandparents' motion to intervene and denied Father's motion to dismiss. The court ordered Father to return the child to the grandparents' physical custody in Madison County; appointed a guardian ad litem for the child; and appointed a warning order attorney for Mother. Father was permitted overnight visitation with the child each weekend.
Following her investigation, the guardian ad litem filed an extensive report with the family court. She concluded, in part, as follows:
It is my recommendation that [the child] remain in the permanent care and custody of [the grandparents]. From my investigation, I have determined that [the child] has been raised by [the grandparents] and should continue to be raised in the environment where he thrives. [The child] prefers to live with [the grandparents]; he also prefers to attend school in Madison County. . . . I feel that it is in [the child's] best educational interest to remain in the Madison County school system.In her report, the guardian ad litem expressly noted her "concern about [the child's] physical safety when in [Father's] care."
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[The child] has a stable and caring environment in [the grandparents'] home. He does well in school and is involved in extracurricular activities. I do not believe [the grandparents] have ever kept [the child] from other family members, as even [the grandmother's] ex-husband, [T.A.] has had ample visitation with [the child] and admits being invited to birthday parties and other events held by the [grandparents]. Further, if [the grandparents] failed to keep [Father] apprised of [the child's] school or other events, as the parent, [Father] had the right and ability to contact the school for information regarding [the child's] grades, activities, parent conferences, or other area of concern, which he failed to do.
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[The child] should remain in the permanent custody and control of [the grandparents] where he is happy, cared
for, and there are no concerns for his emotional, mental, or physical health.
Shortly after the report of the guardian ad litem was filed, the grandparents filed a motion for an immediate modification of the family court's timesharing arrangement. After a hearing, the family court granted the motion and ordered that Father could have no further overnight visitation with the child. He was to exercise visitation from 1:00 p.m. till 6:00 p.m. each Sunday. The matter was set for an evidentiary hearing to be conducted on December 15, 2011.
After the hearing, the family court found that the child's grandparents had proven by clear and convincing evidence that they were indeed his de facto custodians. "They have been his primary caregivers and financial supporters for most of his life and beginning when [the child], who is now 8, was approximately 5 months old." Findings of Fact, Conclusions of Law, and Custody Decree at 2. The family court specifically rejected Father's testimony.
With respect to the child's custody, the family court found as follows:
[R.M.F.], the mother, has been absent from [the child's] life since only a few months after his birth and, therefore, is not an interested party regarding [the child's] custody.Findings of Fact, Conclusions of Law and Custody Decree at 5- 11.
[Father] has had sporadic contact with [the child], and he has never been [the child's] primary caregiver.
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The Guardian Ad Litem's (sic) written report and her verbal supplement made on the record at the hearings of this matter indicate [the child] is afraid of [Father] and does not want to visit or live with [Father].
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[The child] is completely adjusted to his school, his social activities, and his home life with [the grandparents]. [The child] does not have a close relationship either with [Father] or anyone in [Father's] home.
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[Father] is completely disabled. He has a long history of depression and, according to his treatment records from Comprehensive Care, a long history of suicidal thoughts. Many of the counseling entries noted that, at times, he was a risk to himself or others. On some occasions he was upgraded to a moderate risk to himself. Over the course of the counseling records, his risk assessment generally remained unchanged. [Father] also suffers from hemochromatosis, a disease that affects his liver and causes him to have to undergo treatments on a regular basis. [Father's] social security disability award stated, "[h]e has a marked diminished interest in people and things . . . a simple change in routine would be overwhelming or debilitating to [Father]. He rarely socializes, he has problems getting along with others. He has a hard time talking to and understanding other people." These recurrent themes concern the Court as to [Father's] ability to care for and parent [the child] and his ability to understand, for example, that it is inappropriate to punish [the child] by placing him in a closet or a clothes' dryer, or by making him dress as a girl.
The Court believes by clear and convincing evidence that [the grandparents] have raised [the child] from the approximate age of five (5) months. [The grandparents'] home is the only home [the child] has ever known. All of [the child's] developmental milestones occurred while
[the child] lived with [the grandparents]. There is a clear history of family events in [the grandparents'] home. [The grandparents], alone, enrolled [the child] in his current school, and both assist and participate in his academics. [The grandparents], alone, have enrolled [the child] in karate for several years, and they participate and support him in his activity. It is [the grandparents] who have provided every meal and all of [the child's] clothing and school supplies. It is [the grandparents] who have supported [the child's] mental and psychological growth, and his excellent performance, both academically and behaviorally at school attest to this fact. In short, [the grandparents] became [the child's] "parent's" long ago, far exceeding the one-year requirement necessary for them to be considered de facto (sic) custodians.
[Father] admitted he placed [the child] with [the grandparents] at kindergarten age because he physically could not care for [the child] and because he had no funds to provide for [the child]. Both reasons are sound for placing [the child] in the [grandparents'] care. However, [Father] has not shown that his situation has improved or that he is now ready to parent [the child]. [Father] offered no evidence to show his psychological or physical condition has improved. He still suffers from depression, cannot work, and cannot handle any change in his environment. He has chosen not to continue his counseling efforts with Comp Care and has not attended counseling since early 2010, which was shortly after he received his disability award. He still has debilitating headaches and difficulty with physical activity. He still has days when he does not get out of bed. [Father] clearly lacks the physical or mental capacity to parent a young child on a full-time basis. Furthermore, even when [Father] has had the financial means to provide for [the child], he has failed to do so by, for example, keeping for himself all of the disability dependent's benefits payable for [the child], including a $3,000.00 back-pay benefit, and doing so even during times he admits [the child] lived primarily with [the grandparents]. (Emphasis added.)
The family court concluded that awarding permanent custody of the child to his grandparents was "clearly and unequivocally" in the child's best interests. Father was awarded supervised timesharing with the child that included one hour every other weekend and one hour during the week as long as it did not interfere with school or with the child's extracurricular activities. It is from this order entered September 2, 2011, that Father appeals.
Father contends that the family court erred by granting the grandparents' motion to intervene in the custody action. He claims that the motion was untimely, that venue in Madison County was improper, and that the grandparents lacked standing to pursue custody. He also argues that the court erred by ultimately granting custody of the child to the grandparents. We disagree with all of these contentions.
In order to intervene in a legal action, a party must demonstrate his "present substantial interest" in that action. Gainer v. Packaging Service Corp., 636 S.W.2d 658, 659 (Ky. App. 1982). The family court did not err, either as a matter of fact or as a matter of law, by determining that the grandparents had standing to intervene in the underlying custody action as de facto custodians.
The provisions of Kentucky Revised Statute[s] (KRS) 403.270(1) give "de facto custodians" the same standing in custody matters as each of the child's natural parents. A "de facto custodian" is "a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of . . . one (1) year or more. . . ." KRS 403.270(1). Before the family court may find that that a caregiver has become the de facto custodian, the court must determine that the biological parent has abdicated the role of primary caregiver and financial supporter of the child for the statutorily required period of time. Brumfield v. Stinson, 368 S.W.3d 116 (Ky. App. 2012), quoting London v. Collins, 242 S.W.3d 351 (Ky. App. 2007).
We have reviewed the conclusion of the family court that the child's grandparents qualified as his de facto custodians. The court carefully analyzed the facts and entered ample findings to support its conclusion. Findings of fact are not set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Kentucky Rule[s] of Civil Procedure (CR) 52.01. A finding of fact is clearly erroneous if it is not supported by substantial evidence; that is, evidence sufficient to induce conviction in the mind of a reasonable person. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). If the findings of fact are supported by sufficient evidence and if the rule of law is applied correctly, the ultimate decision of a family court regarding custody will not be disturbed absent an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982).
We have reviewed the evidence contained in the record before us. It wholly supports the family court's finding that the child's grandparents were both his primary caregivers and his financial supporters for nearly his entire life. Under the circumstances, the court did not err as a matter of law by permitting the grandparents to intervene in the underlying action and to assert their claim for custody.
Furthermore, we are not persuaded that the family court erred by declining to dismiss the motion of the grandparents or to transfer the action from Madison to Estill County. The custody action underlying this appeal was filed by Father in Madison Family Court. Except for the brief period of time when Father removed the child to Estill County, the child lived his entire life in Madison County. Under the circumstances, that county continued to be the proper venue for custody modification proceedings. The family court did not err by refusing to transfer the action to Estill County.
Finally, we address the family court's ultimate award of custody to the child's grandparents. We have reviewed the factual findings and legal conclusions of the family court on this issue as well.
The provisions of KRS 403.270(2) require the family court to make a custody determination in accordance with the best interests of the child. The statute directs that 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;KRS 403.270(2). The family court appears to have given equal consideration to Father and to the grandparents as custodians before determining that it was in the child's best interests to award custody to the grandparents. The court specifically considered the evidence offered with respect to the relevant statutory factors, and Father has not established that the court abused its discretion by awarding custody to the child's grandparents.
(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 403.270;
(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.
We affirm the Madison Family Court's award of custody to the child's grandparents.
ALL CONCUR. BRIEF FOR APPELLANT: J.L.A., Pro se
Irvine, Kentucky
BRIEF FOR APPELLEES: Lisa L. Johnson
Lexington, Kentucky