D.J.D., the mother of M.G.P., an infant, appealed from Order of Jefferson Family Court terminating her parental rights.
M.G.P. was born July 5, 2008. On July 10, 2008 the Cabinet for Families and Children filed a petition alleging abuse or neglect of the child by the mother because the use of drugs resulted in positive tests for cocaine and heroin for both mother and child. Mother had a six-year history of substance abuse and there were three criminal charges pending against her. The petition stated that the putative father was incarcerated in Ohio for violation of a previous deportation order.
On July 17, 2008, the Family Court awarded temporary custody to the Cabinet and ordered mother to complete a drug assessment and follow any recommendations. In August, 2008, the Family Court suspended visitation with the child because of her noncompliance with treatment, and thereafter she repeatedly failed to appear for intake appointments at Jefferson Alcohol and Drug Abuse Center. In February, 2009, the Family Court permitted the Cabinet to waive further efforts to reunite the family due to mother’s significant drug history.
In September, 2009, mother finally reported to JADAC for treatment. In November, 2009 and January, 2010, Family Court conducted a hearing on the Cabinet’s motion to terminate the parental rights of mother and putative father. A Cabinet employee who was the mother and child’s case worker testified that mother had seven different residences in one year, was unemployed, and was dependent on her boyfriend for financial needs. Mother failed to provide information for investigation of boyfriend to determine suitability of the home for return of the child. Worker believed boyfriend was in the U.S. illegally. The worker testified about the mother’s history of drug abuse, her failure to obtain stable housing, and contribute to the child’s support. She testified that the child had suffered drug withdrawal, developmental delays and vision problems, and had bonded with foster family.
Mother testified that she had used drugs from 2003 until July 2009 and had previously worked as a strip club dancer and in a restaurant and grocery store. She was unemployed, but her boyfriend had a steady job and she had been in JADAC program since September, 2009.
Family Court terminated mother’s parental rights finding that mother had abused the child, that termination was in child’s best interest, and that mother had failed to provide parental care for more than six months. Mother contended on appeal that her conduct did not meet the standard of the involuntary termination statute and that there was no clear and convincing evidence that her conduct could not improve.
The Court of Appeals cited KRS 625.090 and its tests for termination, noting the broad discretion of family courts in making these determinations. Decisions are reviewed for clear and convincing evidence under the clearly erroneous standard of CR 52.01, which does not require uncontradicted proof, but only proof of a probative nature sufficient to convince ordinarily prudent people. Upon review of the record, the Court of Appeals found Family Court’s findings supported by substantial evidence.
Family Court found that the foster family was meeting the needs of the child and intended to adopt him upon termination of parental rights. The court found that termination was in child’s best interests. The court of Appeals applied the abuse of discretion standard which is that unless a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, it will be sustained. Here, the Court of Appeals held that the Family court was presented with substantial evidence to sustain its termination order.
Gary Lee Corns appealed from an Order of Family Court, Lewis Circuit Court modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratliff). The Court of Appeals reversed for lack of subject matter jurisdiction and denial of due process and remanded for further proceedings consistent with this Opinion.
The parties entered into a Separation Agreement on August 30, 2007 and their Divorce Decree was entered that day incorporating the Agreement. They agreed to share joint legal custody of their daughter, Allison, and did not designate a primary residential custodian.
In 2008, the parties could not agree about where to send Allison to school and Taffy asked the court to decide what was in the child’s best interest. The court treated the motion as a request to modify custody and permitted Taffy to file an amended motion and two affidavits. In August, 2008 the court denied Taffy’s request to allow the child to attend school in Carter County rather than in Lewis County where she had attended preschool. The court did not specifically rule on Taffy’s motion to modify custody and designate a primary residential custodian.
In 2009, the parties disagreed about Allison’s need for a tonsillectomy. The court authorized Taffy to schedule the procedure, but allowed Gary to seek a second opinion. If the independent exam produced a contrary medical indication, a hearing could be scheduled. In November, 2009, the second medical examiner concluded the tonsillectomy was unnecessary so in July, 2010 Gary filed a motion requesting a hearing on the tonsillectomy issue and “shared parenting decision making.” Taffy filed a verified response which, in part, agreed that she and Gary could no longer share joint custody. Taffy also filed a motion for the court to hold Gary in contempt for failure to pay his share of medical expenses.
At the hearing on September 9, 2010, Gary appeared without counsel, and requested a continuance because he was not aware that custody was at issue. His request was denied and the hearing was conducted, after which the court sustained Taffy’s motion for a directed verdict on the tonsillectomy issue. On the custody matter, Taffy elicited testimony from Gary regarding his filing a grievance against one of the child’s physicians and contacting the FBI. Witnesses from the Cabinet for Health & Family Services testified about Gary’s claims of fraud against Taffy and eleven reports about Taffy’s family, none of which were substantiated. The child’s teacher testified about Gary’s conduct when the child was mildly disciplined. Taffy told the court that Allison had 14 throat infections between 2008 and 2010
The trial court’s order entered September 14, 2010 granted custody and decision-making authority to Taffy and set out the parenting schedule. Gary’s motion to alter, amend or vacate the order argued that Gary did not receive notice of the hearing for custody modification and objecting to the tonsillectomy procedure. Gary’s motion was denied and the appeal followed.
The Court of Appeals found no abuse of discretion in the trial court going forward and found Gary’s claim of lack of notice “disingenuous.” There were procedural errors, however, which resulted in the trial court’s lack of subject matter jurisdiction. Gary failed to file an affidavit, his motion was not verified, and Taffy’s attempt to join Gary’s motion was ineffectual because Gary’s motion was statutorily inadequate to raise the issue of custody modification. It was error for the court to hear Taffy’s motion to change custody because it had not been scheduled for hearing and Gary had no notice of a hearing.
The orders of Lewis Circuit Court were reversed and remanded for proceedings consistent with this Opinion.
After Child was removed from Mom’s custody by Cabinet because of environmental neglect and the fact that Mom’s husband was registered sex offender, Child was ultimately placed with paternal Grandparents. One year later, Grandparents file motion for designation as de facto custodians and for permanent custody. FC granted permanent custody to Grandparents. Mom appealed.
Mom first argued that Grandparents lacked standing to commence custody action because they did not qualify as de facto custodians. In order to qualify for de facto custodian status, one must provide primary care for a child for a requisite amount of time; but the time after a parent seeks custody of the child is not included. Mom claimed that because she always wished to have Child in her care and because Cabinet’s permanency plan had a goal of returning Child to her care, that qualified as “commencing a legal proceeding,” sufficient to interrupt the one-year primary caregiver requirement of KRS 403.270. CA disagreed that Mom’s wishes or the Cabinet’s permanency goal qualified as “commencing a legal proceeding.” However, CA further found that Grandparents’ standing was conferred by KRS 620.027, which specifically confers to Grandparents the same standing given to parents, provided the child is residing with the Grandparents in a stable relationship. CA held that substantial evidence supported FC’s finding that Grandparents provided a stable environment for Child and therefore had standing.
Mom next argued that because Grandparents agreed to Cabinet’s permanency plan with a stated goal of returning Child to Mom, Grandparents waived their right to seek permanent custody of Child. CA found no precedent or authority for this claim, and further found that to so penalize Grandparents for cooperating with Cabinet would be detrimental to the Cabinet’s purpose.
Next, Mom argued that FC did not give equal consideration to both parties in determining custody, and that FC refused to hear evidence about her fitness to have Child returned to her. CA found that since Mom did not file a motion to regain custody of Child, the proceeding was rightfully limited to Grandparents’ motion for permanent custody, and that FC considered all relevant factors in its determination.
Lastly, Mom argued that FC should have granted her request to speak to Child in chambers. CA found that FC properly quashed subpoena based upon improper service (service upon Child instead of Guardian Ad Litem) as well as the Child’s therapist’s recommendations.
Husband and Wife were married for twenty-one years, during which Husband earned his degree, teaching certificate, and Rank 1 teacher status, earning $44,000 annually at the time of divorce. Husband and Wife married when Wife was pregnant at age 16 with their first child. Wife never obtained finished high school and worked only six years at the beginning of the marriage as a nursing assistant; she was a homemaker and raised the parties’ children for the remainder of the marriage. Husband’s retirement account with Kentucky Teachers’ Retirement Services (KTRS) was the only substantial assets of the parties. FC awarded joint custody to the parties but named Husband as Primary Residential Custodian and ordered Wife to pay Husband child support until children graduated from high school (a total of nine months). FC ordered Husband to pay Wife maintenance of$360 per month for two and a half years on the basis that this duration would provide Wife time to obtain her GED and job training. FC gave one car to Wife and two cars to Husband, reasoning that Children needed the second car for transportation to and from school. Lastly, FC held that KTRS account was exempt from division.
CA held that, per KRS 161.700, KTRS accounts are nonmarital property unless the other spouse has a retirement account of her own, which would then trigger the provisions of KRS 403.190(4) allowing the retirement accounts to be equally offset from division. Without the other retirement account, CA held that KRS 161.700 requires KTRS accounts to be classified as nonmarital property that cannot be divided, nor can such classification be treated as an “economic circumstance” to considered in division of marital property. Thus, FC did not err in setting the KTRS account aside to Husband or in providing a disproportionate amount of marital estate to Wife.
CA found no abuse of discretion in maintenance award nor did FC err in providing additional car to Husband for children’s use.