No. 2009-CA-000622-ME on remand from Supreme Court of KY.
Published: Opinion Affirming
Father appealed order of trial court granting permanent sole custody of his three children to their maternal grandparents, the Appellees. He argued that the Trial Court erred in finding him to be an unfit parent and by finding it was in the best interests of the children to be placed with the maternal grandparents.
The only question on appeal is father’s fitness to have sole custody of the children, because the mother stipulated to neglect in Madison Circuit Court and does not appeal.
As a result of more than eight investigations by the Department for Community Based Services related to the mother’s abuse and neglect of the children, the children were removed from the home. The father was implicated for his failure to prevent the mother’s abuse and neglect.
In August, 2006 one child was placed with the maternal grandparents and one child was staying with the paternal grandparents. After gaining temporary custody of these two children, the maternal grandparents filed petitions for permanent sole custody of both. On the recommendation of the Domestic Relations Commissioner, the children were returned to the parents with orders prohibiting corporal punishment. The maternal grandparents were awarded weekly visitation, but the parents failed to produce the children for 23 regularly scheduled visitations.
In August, 2007 the mother violated the court’s order and corporally punished one of the children and father failed to prevent it. The two older children were placed with the maternal grandparents and the infant was placed with them in December. Abuse allegations were substantiated against the mother and both parents were found to have neglected all three children. Mother stipulated to neglect in Madison Family Court, and the court found that father also had neglected them.
After venue was transferred to Estill Circuit Court, the Domestic Relations Commissioner recommended awarding custody to father, visitation rights to maternal grandparents and eventual visitation rights to mother. The grandparents filed exceptions. The trial court subsequently rejected the DRC’s recommendation noting that the court feared “three potential homicides” if the children were returned to Dad because he seemed incapable of protecting them from their mother.
The father appealed and the CA determined that maternal grandparents lacked standing and the TC lacked subject matter jurisdiction due to repeal of KRS 403.420. The Supreme Court accepted the case for discretionary review and held that standing can be waived in Kentucky and circuit courts have SJM over all child custody matters regardless of whether there is a statute specifically allowing such suit. The Supreme Court remanded to Court of Appeals for a determination on the merits.
Father’s only argument on appeal is that TC’s finding that he was an unfit parent was unsupported by substantial evidence. CA noted that since repeal of KRS 403.420, there is no longer a statute directing the standards to be applied by the TC, and consequently the court used the standards previously employed in cases of nonparents seeking custody. Two ways for a nonparent having physical custody of a child to challenge a biological parent’s superior right is 1) a showing of unfitness sufficient to support involuntary termination or 2) parent’s voluntary waiver of their superior right to custody.
If nonparent shows by clear and convincing evidence that parent’s behavior could result in termination of parental rights, the TC may determine custody under a “best interest of the child” standard, with the nonparent on equal footing with parent. The CA held that the TC made a finding that father was unfit and properly used the best interest standard in making its custody determination. The CA found ample evidence presented at the hearing that father either allowed or failed to prevent mother’s abuse, as well as the adjudication of neglect by the Madison Family Court.