Opinion
NO. 2013-CA-001684-ME
05-09-2014
R.W. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES; T.R.; O.W.; T.W.; AND L.W. APPELLEES
BRIEFS FOR APPELLANT: R.W., pro se Louisville, Kentucky BRIEF FOR APPELLEE: Nicholas J. Lococo Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NOS. 12-J-500183-001, 12-J-500184-001, 12-J-500185-001,
AND 13-J-504495-001
OPINION AND ORDER
AFFIRMING AND DISMISSING IN PART
BEFORE: LAMBERT, JONES AND STUMBO, JUDGES. STUMBO, JUDGE: R.W. (hereinafter referred to as Mother) appeals from an order awarding permanent custody of Mother's three children to B.S., the maternal great-grandmother (hereinafter referred to as Grandmother). Mother also argues that her fourth child, L.W. (hereinafter referred to as Child 4), was also wrongly put into the custody of the Cabinet. That case, however, was not final at the time she brought this appeal. We find no error and affirm as to cases 12-J-500183-001, 12-J-500184-001, and 12-J-500185-001. We also dismiss the appeal as it pertains to 13-J-504495-001 because that case was not final at the time Mother brought this appeal.
This case concerns allegations of child neglect; therefore, in accordance with Court policy, we will not use the names of the parties.
A dependency, neglect, and abuse petition was filed in the Jefferson Family Court on January 31, 2012, concerning the interests of T.R. (hereinafter referred to as Child 1), O.W. (hereinafter referred to as Child 2), and T.W. (hereinafter referred to as Child 3). The petitions stem from information received by the Child Protection Services (CPS) that Child 3 had a severe cold with breathing problems and that Mother failed to fill his prescription medication. In addition, the petition alleged that Mother left Child 3 home alone while she went to the store and had left Child 3 in the home of the child's father. Mother signed a safety agreement in 2010 agreeing not to allow Child 3 to be left alone with the father because the father suffers from mental illness and has an extensive criminal history.
Following the allegations, Mother agreed to give temporary custody of the children to Grandmother. Grandmother had already been caring for Child 1 since birth. Grandmother was interviewed by a CPS worker. Grandmother informed CPS that Mother had learning disabilities and received Supplemental Security Income (SSI) for these disabilities. Grandmother also stated that she was the payee for Mother's SSI benefits. Finally, Grandmother stated that Mother had been living with her, but was recently kicked out and homeless.
After Grandmother was given temporary custody of the children, but before a trial determining final custody, Mother gave birth to Child 4. Due to Mother's learning disabilities and the open neglect petition, CPS filed another neglect petition for Child 4. Temporary custody of Child 4 was given to the Cabinet.
On August 29, 2013, a pre-trial conference was set in the case of Child 4. On the same day, a trial was held to determine permanent custody of the other three children. There is no video or audio recording of the trial in the record before us, but it appears as though Mother, Grandmother, a guardian ad litem for the three children, and the ongoing social worker testified at the trial. The court then awarded permanent custody of the three children to Grandmother. This appeal followed.
The relevant evidence presented at the trial and as found by the trial court will be set forth later in this opinion.
Mother's claim on appeal is that she does not agree with the evidence presented at the trial and that there was no evidence to support her loss of custody. Kentucky Rules of Civil Procedure (CR) 52.01 directs that "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A judgment "supported by substantial evidence" is not "clearly erroneous." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is defined as "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
In reviewing the trial court's decision, we must determine whether it abused its discretion by awarding custody of the children to [the parent at issue]. An abuse of discretion occurs when a trial court enters a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We will not substitute our own findings of fact unless those of the trial court are "clearly erroneous." Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Further, with regard to custody matters, "the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion." Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974); see also Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982).Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010).
Here, the trial court found the following facts: that Grandmother provided a stable home for the children and has the necessary parenting skills, time, and money to provide for the children; Grandmother has tended to all the children's medical, psychological, and educational needs; that according to the guardian ad litem, Grandmother's home was very appropriate for the well-being of the children; that Grandmother already has a relationship with Child 1 due to that child living with her since birth; that Grandmother takes Child 1 to her weekly counseling sessions; that Grandmother has a husband and other relatives who have bonded with the children and can provide care if Grandmother needs help; that Mother suffers from a psychological disease, has low cognitive functioning, and will require specialized parenting classes; that Mother cannot manage money well and was unemployed; that Mother does not have a high school degree; and that Mother cannot keep a continuous residence, having lived in four different places in 18 months.
The disease was not specified in the court's order.
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Based on these facts, we do not believe that the trial court abused its discretion in giving Grandmother permanent custody of the children. We therefore affirm the trial court's order. Furthermore, as mentioned previously, we must dismiss this appeal as it pertains to Child 4 because no custody hearing had been held prior to the filing of this appeal. The case concerning Child 4 is not final and therefore not appealable at this time. CR 54.01; CR 54.02; Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326 (Ky. 1993).
ALL CONCUR.
Janet L. Stumbo
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: R.W., pro se
Louisville, Kentucky
BRIEF FOR APPELLEE: Nicholas J. Lococo
Louisville, Kentucky