Opinion
NO. 2017-CA-000814-ME
06-08-2018
JERRY ROYALTY AND VICTORIA ROYALTY APPELLANTS v. SCOTT TURNER AND TENDER TURNER APPELLEES
BRIEF FOR APPELLANTS: Ethyle Noel Georgetown, Kentucky BRIEF FOR APPELLEES: Jennifer McVay Martin Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE LISA HART MORGAN, JUDGE
ACTION NO. 13-CI-00005 OPINION
VACATING AND REMANDING
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BEFORE: DIXON, D. LAMBERT, AND SMALLWOOD, JUDGES. LAMBERT, D., JUDGE: Jerry and Victoria "Vicky" Royalty bring this appeal from an order by the Bourbon Family Court that terminated their right to visitation with their biological grandson, who had been formally adopted by Scott and Tender Turner. In this appeal they argue that the trial court failed to consider all relevant factors in its best interest analysis and improperly permitted the guardian ad litem to participate in the case. The Appellants further argue that these errors were palpable, necessitating reversal. After careful review of the record, we find the trial court committed palpable error. Accordingly, we vacate the order and remand.
The Court's use of the phrase "trial court" in the opinion refers to the Bourbon Family Court, which issued the order subject to this appeal.
I. FACTUAL AND PROCEDURAL HISTORY
This case followed a long and torturous path to reach this Court, spanning four years, multiple courts and multiple counties. The Appellees eventually adopted the child, but the proceedings giving rise to this appeal continued even after that event. The adoption presented a fundamental shift in the proceedings, and this Court's summary of the case's history will reflect that.
A. PROCEEDINGS PRIOR TO THE JUDGMENT OF ADOPTION
This case began in mid-January of 2012, when the child at issue was born, addicted to opiates. Three days later, the Scott Family Court placed the child with maternal cousins, the Appellees, Scott and Tender Turner, in dependency, abuse, or neglect proceedings. Following the temporary placement with the Turners, venue was transferred to Bourbon County, where it was assigned case number 12-J-00038-001. After testing established paternity, the biological father filed a pro se petition for custody in Bourbon County (12-CI-00103). The Appellants, biological father's parents, intervened in both actions, seeking visitation pursuant to Kentucky Revised Statutes ("KRS") 405.021.
In April of 2012, the trial court ordered in 12-CI-00103 that the parties abide by the plan developed by the Department for Community-Based Services ("DCBS") in 12-J-00038-001. The trial court granted permanent custody of the child to the Appellees in July of 2012 in 12-J-00038-001. The disposition also permitted grandparent visitation at the Turners' discretion, though testimony in later proceedings indicated that the Turners never permitted the grandparents to visit the child during the time this order was in effect.
The Appellants filed a petition for visitation in Fayette Family Court the next month. Though the Turners lived with the child in Lexington at the time, the Fayette County judge presiding ordered the matter transferred to Bourbon County, where it was designated Civil Action No. 13-CI-00005. The instant appeal originated in that civil action.
The Turners filed a petition to adopt the child in Bourbon County on January 17, 2013 (13-AD-00002). At the time of that filing, no court order mandating grandparent visitation was in effect, but the order permitting visitation at the Turners' discretion remained binding. The biological father filed a timely response and moved for visitation in the adoption action, which trial court denied.
Following a hearing in 12-CI-00103, the trial court ordered the Turners to permit the grandparents to visit the child pending the final hearing in that action.
The final hearing in 12-CI-00103 occurred on June 6, 2013. During that hearing, both sides presented evidence that would become a recurring theme in the proceedings. The grandparents offered evidence that visitation had generally gone well, that the child seemed happy during the visits, and that they were bonding with the child. The Turners, in contrast, offered testimony that the visits were harmful to the child. The Turners testified that the child, who has special needs due to pre-natal exposure to opioids, had regressed in development since visitation had resumed. Specifically, they alleged that the child had stopped toilet training and exhibited self-harming behaviors. The Turners also noted that during the child's sole overnight visit with the grandparents, the biological father had contact with the child while under the influence.
The biological father stipulated in a proceeding in an unrelated other matter that he would have tested positive on a drug screen had he been tested on the day of that visit.
Other evidence bolstered the Turners' position. Over the grandparents' objection, the child's guardian ad litem filed a report opposing grandparent visitation. The grandparents based their objections on the fact that the guardian ad litem had been appointed in 12-J-00038-001 and the adoption action, but not in 12-CI-00103 or 13-CI-00005. The report noted that the biological father lived with the grandparents and concluded that the grandparents were essentially acting as proxies to allow the biological father indirect contact with the child. The Turners' counsel averred that pictures and videos taken by the Appellants during visits had found their way to the biological father's social media profiles but did not introduce any such evidence.
Initially, the trial court overruled the grandparents' motion for visitation at the hearing but permitted the parties to file post-hearing memoranda. After considering the post-hearing memoranda, the trial court reversed itself and reinstated the grandparents' supervised visitation on December 5, 2013.
The Turners filed their first motion to terminate the grandparents' visits on April 4, 2014. Stressing the child's special needs, they again alleged the visits harmed the child. The grandparents countered with a motion to change the visitation from supervised to unsupervised, citing the Turners' consistent interference with their court-ordered visitation. They also blamed the child's regression on the Turners' unabashed resentment toward the grandparents and the obligation to allow visitation.
On May 27, 2014, the trial court conducted a hearing at which all parties testified and granted unsupervised visits. The order required visits to occur in a public location, with the exchanges to take place at Whitehall Park in Richmond (because the Turners and the child resided in Madison County by that time). The order also prohibited posting any pictures on social media of any kind and directed that neither biological parent be present, as both had been forbidden to have contact with the child.
On August 26, 2014, the grandparents moved to clarify the May 2014 order. The Turners responded with a second motion to terminate the grandparents' visitation. The trial court heard the motions on October 14, 2014, where testimony focused primarily on two recent incidents where visits were aborted.
At one visit at Whitehall Park, the grandparents had brought the child's seven-year old half-brother to meet the child without having cleared the meeting with the Turners in advance. The Turners refused to allow the visit. The parties' testimony conflicted as to which side escalated the tension, but the parties agreed that the visit never occurred. The Turners refused to permit the child to get out of their vehicle, and the grandparents called the police. The incident did not result in criminal charges.
At another visit, occurring at a Richmond fast food restaurant, Scott lingered after making the exchange, apparently to observe the visit. He confronted Jerry Royalty when Jerry began using his phone to capture video or photographs of the child while playing with Vicky. Jerry, who is bound to a wheelchair, testified that he felt threatened during this conversation with Scott, a large man and retired firefighter. Scott testified that Jerry made a remark—within earshot of the child—that Scott is not the child's father. At some point, Jerry called the police, who questioned Scott about the confrontation and departed without charging him. Scott later offered testimony that after this event, the child began to question the nature of the relationship between them.
The trial court admonished both sides for these incidents and denied the Turners' motion to terminate visitation. The trial court clarified that no third parties are permitted at visits. The trial court also clarified that the prior order did not limit the visits to the places where the exchanges occurred but did require the grandparents to notify the Turners ahead of time if they intended to take the child elsewhere. The trial court also awarded the grandparents "make-up time" to compensate for prior missed visits. Finally, the court ordered that all visits occur within Madison County.
The trial court entered a Judgment of Adoption on November 7, 2014, which the biological father then appealed.
B. PROCEEDINGS AFTER THE JUDGMENT OF ADOPTION
The Turners moved to terminate the grandparents' visitation a third time on February 18, 2015, parroting their prior arguments regarding the facts and circumstances. Only this time they claimed entitlement to the same legal rights and standing afforded to natural parents per KRS 199.520(2). The grandparents defended that the Turners had unilaterally moved the visits from 10:00 A.M. to 8:00 A.M. in a blatant attempt to force the grandparents into abandoning their right to visitation by making it too difficult to exercise.
Jerry's physical condition as well as his need for certain equipment limit the grandparents' ability to travel and lengthen the time required to reach destinations when they do travel.
A new judge began presiding over the trial court and read the pleadings, then ordered a full evidentiary hearing. On March 24, 2015, the court ordered visitation to continue until that hearing could be held on August 31, 2015. The trial court reversed course four months later, however, and in an order entered on July 14, 2015, granted the Turners' motion to suspend visitation until the hearing. This order further directed that the child's guardian ad litem "continue as GAL and work with grandparents as well."
Both sides presented testimony at the August hearing. Tender outlined the child's history and status, adding her observations that the child's issues worsen after visits with the grandparents. Scott's testimony focused on the two incidents at which the police were called. Scott also testified that he believed the child does not know the grandparents as relatives.
Vicky also gave her account of the incidents, confirming that Jerry had called the police on the Turners in front of the child. She justified those calls by explaining that Scott threatened Jerry.
Vicky's testimony also addressed other issues. She testified that after the child started pre-school, the schedule change (from visits beginning at 10:00 A.M. to 8:00 A.M.) effectively discontinued the visits because they could simply not travel from their home in Bourbon County to Richmond in time. She also confirmed that their son does live at their home, and that the court had terminated his parental rights and forbade contact between the child and their son. She further testified that her son would have no contact with the child if the court permitted visitation. She questioned the veracity of the notation in the disposition report from 12-J-00038-001 that during the overnight visit, a DCBS worker observed the child alone with the biological father. She denied the father was ever alone with the child and she had sought and obtained prior approval for one hour of contact from a different DCBS case worker. However, she also denied her son's history of drug use. She testified that she believed continued visits with his grandparents were in the child's best interest and she did not "see how it could hurt to have us in his life."
The remaining testimony came from the grandparents' character witnesses, who extolled the grandparents' virtues and testified that they never had cause for concern regarding the grandparents being around their children or around themselves when they had been children. It was also revealed at the hearing that the child's guardian ad litem had not contacted the grandparents, despite the trial court's explicit instructions to do so in the previous order.
The trial court issued an order, finding that continued visitation pending the appeal of the adoption was in the child's best interest. On the other hand, the trial court ordered these visits to be supervised by a neutral third party, out of concern for the ongoing emotionally-charged conflict between the parties.
Approximately six weeks later, on October 20, 2015, the grandparents moved the court to compel visitation and for contempt. The Turners had not permitted the grandparents to visit the child at all since the August order, citing the lack of a satisfactory third party to supervise. The grandparents complained that the Turners demanded a paid counselor, whom they could not afford, to supervise. The Turners moved, for a fourth time, to terminate the grandparents' visitation. After a hearing, the trial court ordered that the visits take place at Bluegrass Family Consultants (the paid third party the Turners had demanded) and directed the parties to "work toward something less restrictive."
The Turners filed their fifth and final motion to terminate the grandparents' visitation rights on March 17, 2016. The motion is again based on the effects the Turners alleged that the visits have on the child. The legal landscape of the matter had also changed since the prior hearing in that this Court affirmed the Judgment of Adoption in an opinion which became final on February 24, 2016. The grandparents disputed the allegations of detrimental effects on the child and moved for increased visitation.
J.R. v. P.T. and T.T., 2015-CA-000200-ME, 2016 WL 97774 (Ky. App. January 8, 2016) (unpub.).
The trial court conducted a hearing on June 14, 2016. The trial court heard testimony from the Turners, Kay Hubbard (the social worker who supervised the visits at Bluegrass Family Consultants), and Vicky Royalty.
Tender testified that the child appears agitated, stressed, and tired before the visits. After the visits, she further testified, the child appears irritable and becomes non-communicative. She also testified that while in transit to the visits, the child often asks why the visits are necessary. However, Tender also admitted that she rarely transports the child to visits and her knowledge of this behavior in transit is not based on her own observation. She also testified that the child's pediatrician records contain similar notations but admitted on cross-examination that those notations come directly from things she told the pediatrician.
Scott testified that he took the child to all but one of the visits. He echoed Tender's testimony that the child questions the necessity of the visits. Scott speculated that, to the child, the grandparents are simply people to go and see, and that the child never asks to go and see them of his own volition. He testified that he remains in the front lobby of Bluegrass Family Consultants during the visits and does not enter the visitation room. However, he also testified that the child often feigns a need to use the restroom during visits, so Scott will have to take the child to the restroom. He described the visits as the grandparents simply watching the child play. He testified that after the visits, the child "shuts down," and has been admonished at pre-school for not communicating on days that visits have occurred, though he also admitted that it was he, and not the child's teacher, who determined that these issues arose on the same day as the grandparent visits. Scott denied ever threatening Jerry or obstructing the grandparents' visitation.
Kay Hubbard offered insight into the child's behavior during the visits. She stays in the room as a monitor but tries to be "part of the furniture" and allow the child to interact with the grandparents. She testified that during the visits she had never heard the child call the grandparents by any terms of endearment, such as "Granny" or "Papaw," but also noted that the child's speech is delayed and difficult to understand. She testified that the child smiles at and engages with the grandparents, as well as laughs and giggles throughout the sessions. She directly contradicted Scott's testimony that the grandparents do nothing more than watch the child play, remarking that Vicky always brings a craft-like activity for the child to do together with her and that sometimes the child rides with Jerry on his motorized wheelchair. Hubbard testified, however, that without formal evaluation she could not render a professional opinion as to the existence or the absence of a familial bond between the child and the Appellants. She acknowledged Tender's reports that the child becomes "emotionally labile" following visits but had never observed that behavior. When asked about the bathroom breaks Scott referenced in his testimony, Hubbard stated that it was common and emphasized that it did not indicate distress.
Vicky expressed in her testimony that their fight for visitation was intended solely to have a role in the child's life and not to seek custody. Her testimony mirrored Hubbard's regarding the visits, noting she always brings an activity for the child to do with her, such as playing with ink pads, rubber stamps, and construction paper. When asked on cross-examination, Vicky admitted that DCBS considered their home as a possible placement for the child, but determined the home was unsuitable because the biological father lived there. She also testified on redirect that the child referred to herself and Jerry as "Granny and Papaw" when they had unsupervised visits in 2014, but not since then.
The trial court took the matter under submission and entered its order on April 11, 2017. The trial court opined the ongoing conflict stemmed from the same core issues that led social workers and the guardian ad litem in the original case to advocate against placing the child with the grandparents, their emotional attachment to their son and the refusal to accept that the Turners were given custody. The trial court found that the ongoing visits presented a "source of confusion" for the child (which was the language the guardian ad litem used), and the testimony indicated the grandparents had never established a bond with the child, due to the "stinted and sporadic" nature of their visitation. The trial court noted that the grandparents love the child, but also clearly resent the Turners and "the process in general" leading to the adoption. The trial court also found that the biological father's presence in the grandparents' home would likely hinder them from respecting boundaries if visitation continued. The tension between the parties also concerned the court. The court found the child had achieved permanency through adoption and was well-adjusted with all needs met. Ultimately, the trial court concluded that perpetuating a forced relationship would foment confusion adverse to the child's mental well-being and increase tension between the grandparents and adoptive parents. For those reasons it was not in the child's best interest for grandparent visitation to continue.
This appeal followed. The Turners filed a motion to dismiss the appeal as moot, arguing that their status as adoptive parents render their decisions dispositive as to all issues relating to the child's best interests. That motion was passed to this merits panel.
II. ANALYSIS
A. STANDARD OF REVIEW
The argument advanced by the grandparents implicitly admits that the issues were not preserved for appeal. They invoke Kentucky Rules of Civil Procedure ("CR") 61.02 and the doctrine of palpable error to stand for the proposition that this Court may reverse and remand this matter, because the trial court committed errors substantially affecting their rights. A palpable error is "easily perceptible, plain, obvious, and readily noticeable." Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997). If such an error presents manifest injustice, it is reviewable even if not properly preserved. Deemer v. Finger, 817 S.W.2d 435 (Ky. 1990), see also Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990). When an error is so serious that it impaired the fairness, integrity, or public perception of a legal proceeding, that error amounts to manifest injustice. McGuire v. Commonwealth, 368 S.W.3d 100 (Ky. 2012).
Indeed, even if preserved this Court must apply a high standard when examining alleged errors by a trial court in deciding custody and visitation issues. "Trial courts are given broad discretion in child custody and visitation matters. Absent an abuse of discretion, we will not disturb the court's judgment." Nein v. Columbia, 517 S.W.3d 492, 496 (Ky. App. 2017) (internal citations omitted).
B. THE TRIAL COURT IMPROPERLY APPLIED THE BEST INTEREST
OF THE CHILD ANALYSIS
The right of grandparents to visitation with their grandchildren is a statutory creation granted by the language of KRS 405.021. Once established by a circuit court's order, grandparent visitation rights exist independently of the rights of the parents, even surviving the termination of the biological parents' rights to the child. "Once a grandparent has been granted visitation rights under this subsection, those rights shall not be adversely affected by the termination of parental rights . . . unless . . . it is in the best interests of the child to do so." KRS 405.021(1). Grandparent visitation does not exist solely for the benefit of the grandparent, rather it "is aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child's emotional well-being[.]" K.C.O. v. Cabinet for Health and Family Serv., 518 S.W.3d 778, 780 (Ky. App. 2017) (quoting Looper v. McManus, 581 P.2d 487 (Okla. App. 1978)).
The Supreme Court of the United States held in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that due process demands courts presume fit parents to act in their child's best interest, and only permit grandparent visitation over a parent's objections upon a showing by the grandparents that a lack of visitation harms the child.
With Troxel in mind, Kentucky appellate courts adjusted our own interpretations of due process as it relates to grandparent visitation. This Court established a list of factors for determining whether grandparent visitation conforms with the child's best interest in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004), which the Supreme Court of Kentucky approved and modified in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012):
The Vibbert court laid out many of these factors, including:
1) the nature and stability of the relationship between the child and the grandparent seeking visitation;
2) the amount of time the grandparent and child spent together;
3) the potential detriments and benefits to the child from granting visitation;
4) the effect granting visitation would have on the child's relationship with the parents;
5) the physical and emotional health of all the adults involved, parents and grandparents alike;
6) the stability of the child's living and schooling arrangements; andWalker at 871.
7) the wishes and preferences of the child.
To this list, we add:
8) the motivation of the adults participating in the grandparent visitation proceedings.
The motivation of the parent in prohibiting visitation and the motivation of the grandparent in pursuing visitation are factors that can be used to determine the child's best interest.
Each case is different, however, and Walker recognizes the fact-intensive nature of ruling on requests for grandparent visitation. The Supreme Court later clarified that because "the facts of each case dictate which Walker factors are most relevant and possibly dispositive[,] all eight Walker factors need not be considered[.]" Massie v. Navy, 487 S.W.3d 443, 447 (Ky. 2016).
The Walker Court also recognized that granting grandparent visitation over the objection of the parents can be especially burdensome to the parent-child relationship when "animosity exists between the parent and grandparent[,]" and concluded that such visitation "should not be granted if it is clearly detrimental to the parent-child relationship." Id. at 872.
The grandparents criticize the trial court's ruling as relying almost entirely on the Turners' newly-minted status as adoptive parents and ignoring the Walker factors, particularly, the eighth factor. They argue that the Turners repeatedly demonstrated their desire to prevent grandparent visitation: by their refusal to comply with orders granting visitation, by Scott Turner's alleged threatening behavior toward Jerry Royalty, and by their refusal to leave unsupervised visitation sessions after delivering the child. The grandparents also accuse the Turners of using their adoption petition to deprive them of a substantive right through subterfuge. The grandparents argue the trial court palpably erred in its failure to consider this evidence of ill intent.
Regarding the eighth factor, the Walker court opined:
If the parent is motivated purely by spite or vindictiveness, this can be proof that the parent is acting out of self-interest rather than a concern for the child's best interest. It may also be the case that a parent is acting out of spite, but the best interest of the child truly is not served by granting grandparent visitation. So proof of vindictiveness on the parent's part does not automatically rebut the parental presumption. It is likewise true that grandparents may also act out of spite or vindictiveness in seeking visitation.Id. at 872-73.
The Turners made no effort to conceal their desire to terminate the grandparents' visitation. They made this desire evident from their filing multiple motions to obtain such result, and when the trial court did not reach a satisfactory ruling, they attempted to extrajudicially cut off visitation by manipulating the child's schedule, and later placing financial barriers for the grandparents to overcome to allow visitation. Instead, the Turners offered testimony reflecting their own belief that the visits were harmful to the child.
That belief however, did not explain the curious timing of their petition to adopt the child. KRS 199.470 permits parties seeking to adopt a child to file a petition to adopt at any time after the child has resided with the petitioner for ninety days. KRS 199.470(3). The Turners could have filed their petition significantly sooner than January 17, 2013. Yet, they waited to file their petition until the grandparents did not have an order mandating visitation. The effect of such maneuvering is that the Turners did not have to include the grandparents in the adoption proceedings as parties, anticipating the confidentiality of the proceedings would hinder the grandparents' ability to participate. This Court found such manipulation intolerable in Zoeller v. Gutterman, 2006-CA-002141-ME, 2007 WL 3121590 (Ky. App. October 26, 2007) (unpub.), and we continue to view it in such light, as a surreptitious attempt to deprive the grandparents of any opportunity to litigate their "sufficient, cognizable legal interest [as blood relatives] in the adoption proceeding of this child." Baker v. Webb, 127 S.W.3d 622, 625 (Ky. App. 2004).
We cite this unpublished opinion pursuant to CR 76.28(4)(c) as illustrative on the issue before us and not as binding authority. --------
Additionally, other factors also weigh against the Turners. Regarding the third Walker factor, a review of the record reveals that all evidence regarding the deleterious effect of the visits on the child originates with the word of the Turners. The pediatrician records attributing the cause of the child's regression to the visits were, by the Turners' own admission, the product of their reporting such to the pediatrician. The Turners offered no records from the school aside from their own testimony as to hearsay statements from the child's teacher—which Scott Turner coupled with his own investigation—to reach a tenuous causative link between the visits and the child's behavior. The guardian ad litem's contributions to the evidence reflected the same repeated conclusions from the dependency, abuse, or neglect proceedings and conversations with the Turners, but never included input from the grandparents at any point, even though directly ordered to do so. No disinterested witness testified as to having seen the child in a distressed state around the grandparents. In fact, Hubbard's testimony revealed quite the opposite.
The trial court's conclusion that the grandparents and the child have no familial relationship represents an over-simplification of the facts presented. The trial court's judgment cited the "stinted and sporadic" nature of the visitation as the reason why the relationship between the grandparents and the child was distant, without noting the inextricably intertwined reason for that distance, that the Turners had consistently obstructed the visits. It also ignores the significant burdens borne by the grandparents and the time, effort, and resources, expended in pursuit of visiting their only grandchild, only to be thwarted by the Turners' efforts. For example, the Turners also did not deny unilaterally and extrajudicially moving the time of visitation to an intentionally unworkable time during the between the October 14, 2014 hearing and the February 18, 2015, motion to terminate visitation. Nor did the Turners deny the allegations set forth in the grandparents' October 20, 2015 motion to compel, that the Turners had not permitted any visits for a period of six weeks.
We agree with the grandparents that the trial court allowed the conflict between themselves and the Turners to overshadow the Walker factors in its best interest analysis. Reviewing the record as a whole guides this Court to the conclusion that the trial court's decision stemmed more from the parties' conflict than the child's best interests. The trial court entirely neglected to address the eighth Walker factor, which should have merited significant consideration, and entered dubious findings regarding other factors. Because the trial court's analysis omitted one of the most relevant circumstances in its ruling which effected a substantial right of the grandparents, we must conclude this error rises to the level of palpable. For this reason, we must vacate the trial court's order terminating the grandparents' visitation.
C. THE TRIAL COURT ERRED BY ACCEPTING THE EVIDENCE
GENERATED BY THE GUARDIAN AD LITEM
The Supreme Court examined the role of the guardian ad litem in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), noting the distinctions between the roles of guardian ad litem and of "friend of the court." A guardian ad litem acts as the advocate for the child, "to participate actively as legal counsel for the child, to make opening and closing statements, to call and to cross-examine witnesses, to make evidentiary objections and other motions, and to further the child's interest[.]" Id. at 111. A friend of the court is an individual appointed by the court to "to investigate the child's and the parents' situations, to file a report summarizing his or her findings, and to make recommendations as to the outcome of the proceeding[.]" Id.
The Supreme Court further delineated between the two roles. In the role of friend of the court, the appointee's investigation and conclusions are subject to challenge. "The investigator's file must be made available to the parties, and the investigator himself or herself must be available for cross-examination." Id. at 113 (citing KRS 403.300(3)). In the role of guardian ad litem, the appointee "should not file reports, testify, make recommendations, or otherwise put his own or her own credibility at issue." Id. (emphasis in original).
Here, the guardian ad litem had been formally appointed in the dependency, abuse, or neglect case, and in the adoption case, as a guardian ad litem. The Appellants contend that the guardian ad litem was never appointed in the custody/visitation cases. However, the trial court issued an order in 13-CI-00005 on July 14, 2015, consisting of a docket sheet with a handwritten order directing that the guardian ad litem appointed in the prior cases "will continue as GAL and work with the grandparents as well." Though certainly not as formal an appointment as the orders in the other proceedings, the intent is clear, and this order operated as an appointment of the guardian ad litem in this case.
The question thus becomes not whether the guardian ad litem was properly permitted to participate, but whether the mode of participation was proper. In Morgan, the nominal guardian ad litem conducted an investigation and the trial court permitted the guardian ad litem file a report, but later shielded the guardian ad litem from cross-examination. The Supreme Court vacated the order of the trial court granting the father's petition to modify custody and this Court's opinion holding that any error that may have occurred was harmless. The Supreme Court held that "the comingling of the two distinct roles was erroneous and infringed upon [the mother]'s right to due process" and emphasized that "[t]he guardian ad litem neither testifies (by filing a report or otherwise) nor is subject to cross-examination." Id. at 119.
Here, the guardian ad litem comingled the same roles, investigated the matter at the behest of the court, filed reports detailing the results of the investigation, and made recommendations considered by the trial court in making its decision. No party called the guardian ad litem as a witness, presumably under the assumption that no testimony would be permitted. The effect of the mixing of the roles nonetheless mirrors that of Morgan, as should the result. We must conclude that the trial court erred in permitting the guardian ad litem to offer testimony, in the form of a report opposing the visitation, which the grandparents had no opportunity to challenge, and that error amounted to both a deprivation of due process and palpable error.
III. CONCLUSION
After careful review of the record, we conclude that the trial court committed two errors which impacted the fundamental fairness of the proceedings. For the reason set forth herein, we vacate the trial court's order terminating the Appellants' rights to grandparent visitation and remand for further proceedings consistent with this ruling.
SMALLWOOD, JUDGE, CONCURS.
DIXON, JUDGE, DISSENTS. BRIEF FOR APPELLANTS: Ethyle Noel
Georgetown, Kentucky BRIEF FOR APPELLEES: Jennifer McVay Martin
Lexington, Kentucky