C. (J.) VS. M. (K.)
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RENDERED: OCTOBER 30, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000333-ME
J. C., Mother
v.
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY JR., JUDGE
ACTION NO. 08-CI-00451
K. M., Father
AND
APPELLEE
NO. 2009-CA-000373-ME
J. C., Mother
v.
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE ROBERT DAN MATTINGLY JR., JUDGE
ACTION NO. 08-J-00124
K. M., Father; AND
J. R. S., A Child
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND VANMETER, JUDGES; HENRY,1 SENIOR
JUDGE.
VANMETER, JUDGE: These advanced, consolidated appeals stem from orders
entered by the Marshall Circuit Court, Family Division, in related child custody
and neglect proceedings. For the reasons stated hereafter, we affirm as to each
appeal.
J.C. (the mother) and K.M. (the father) are the parents of J.R.S. (the
toddler), who was born in February 2007. In December 2007 the mother married
T.C. (the mother’s husband), and in July 2008 she gave birth to J.R.C. (the infant).
In August 2008 the father filed a dependency petition in the Lyon
District Court seeking emergency custody of the toddler, who had been left in the
care of the mother’s husband when the mother entered a drug treatment program
after the infant’s birth. At the request of the mother, who resided in Marshall
County, the matter was transferred to the Marshall Circuit Court, Family Division.
See Case No. 08-J-00124-001. During a September 5 pretrial conference, the
charge of dependency was amended to a charge of neglect, and the parties were
directed temporarily to share joint custody of the toddler pending a formal custody
determination. In November the father moved to modify the timesharing
arrangements, alleging that the mother had used alcohol to excess while caring for
the toddler, and that she had left the toddler unattended in a vehicle while
shopping. The mother evidently entered a thirty-day rehabilitation program, and
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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the court awarded temporary sole custody to the father with supervised visitation
for the mother.
Meanwhile, the custody action was instigated in September 2008 by
the mother’s filing of a custody petition in the Marshall Circuit Court, Family
Division. See Case No. 08-CI-00451. The mother requested the court to award
joint custody and name her as the toddler’s primary residential custodian.
The family court subsequently determined that the toddler was a
neglected child.2 On January 21, 2009, the court entered substantially identical
orders in the neglect and custody proceedings, finding that it was in the toddler’s
best interest to award the parties joint custody and designate the father as the
primary physical custodian.
Additionally, the January 21 order described the circumstances
relating to the mother’s 2006 loss of custody of an older child, as well as issues
pertaining to the mother’s care of the infant. More specifically, after the infant
tested positive for opiates at birth, the mother and her husband agreed to receive
long term services from the Cabinet for Health and Family Services, Department
for Community Based Services (DCBS). DCBS subsequently sought emergency
custody of the infant because of concerns about the adequacy of parental
supervision and the willingness of the mother’s husband to adequately protect a
child who might not be his.3 Evidently the mother and her husband later stipulated
2
The dispositional hearing subsequently was waived, the case was closed, and a notation was
made that the matter thereafter would be addressed in the custody case.
3
Allegations were made that the infant is biracial although the mother and her husband are
Caucasian. The toddler’s father is African-American, and the mother admitted the infant could
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in writing to the mother’s drug abuse issues and the inadequate supervision of the
infant.
The court noted in the January 21 order that a fact finder must weigh a
witness’s credibility, and that “if the fact finder believes the witness is not being
truthful, even on small issues, then the credibility of the witness is damaged,
thereby damaging the whole case.” The court addressed the mother’s credibility,
stating that it was
further tainted by the facts surrounding the conception,
birth and paternity of [the infant]. Witnesses have
testified that [the infant] clearly appears to be biracial.
[The mother] admitted at the January 15, 2009 hearing
that [the father] could possibly be the biological father of
[the infant]. At the time she conceived the child, she was
dating and possibly living with [her husband], but she
was not married to [him]. She told [her husband] he was
the father of [the infant] and did not tell [her husband]
that he might not be [the infant’s] father until after the
dependency, neglect and abuse action on [the infant] was
opened. In Court, she testified that [the infant] had blond
hair even though the Court had the opportunity to
observe the [infant] when brought into the Courtroom by
one of her witnesses.
The trial judge initially stated that he had seen the infant in person and in a
photograph, but he later amended his statement to say that the photograph in fact
was a picture of the toddler rather than the infant.
The court addressed the confidentiality of the custody proceeding, as
it related to both the infant and the toddler, before sealing its order in that
proceeding. The court explained that after considering all the circumstances, it
be his child.
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disclosed portions of the infant’s case to the toddler’s father and counsel in keeping
with its
discretion to allow the disclosure of otherwise
confidential facts for good cause. The Court has taken
judicial notice of the pleadings, findings, stipulations and
Orders entered in both [the toddler’s and the infant’s]
dependency, neglect and abuse cases before the Marshall
Family Court. Family Court was commenced under the
premise of one family, one Court and one Judge and it
would be an injustice to families and the protection and
best interest of children if Family Court did not make its
decisions based on all the facts presented to it during all
judicial proceedings.
Subsequently, the court denied the mother’s motions to alter, amend
or vacate the January 21 order but made additional findings of fact. The court
agreed with the mother that it lacked jurisdiction to determine the infant’s paternity
in this proceeding, but it held that it was authorized to address paternity insofar as
it related to the mother’s credibility as a witness. Further, the court held that it had
“every right, if not duty, to make advisory opinions on the record involving the
family to help preserve the integrity of the family and to avoid further costly
disputes[,]” and that its comments regarding paternity were not improper. The
court clarified that in light of the “abundance” of other available evidence, it had
given little weight to evidence regarding the mother’s oldest child, and it
differentiated between the standards applicable to determining a child’s best
interest in a parental custody dispute, and those applicable to determining whether
a child is dependent or neglected. Finally, the court rejected any claim that DCBS
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had not substantiated allegations of neglect, noting that DCBS in fact had filed the
dependency petition. These consolidated appeals followed.
First, the mother raises several issues relating to the court’s finding
that the toddler was a neglected child. We affirm as to each.
The record shows that three weeks after the newborn infant tested
positive for drugs, the father filed a dependency petition expressing concern about
the toddler’s safety as the mother had entered a drug treatment program. Several
days later, the mother moved to transfer venue to the Marshall Circuit Court, as
DCBS already was overseeing an active case which the mother had initiated
regarding the infant. Adjudication of the matter was postponed for 45 days, and
the charge was amended to neglect. Subsequently, the father alleged that the
mother left the toddler unattended in a car, and that she consumed excessive
alcohol while caring for the toddler. During the hearing the mother’s aunt testified
regarding the mother’s allegedly negligent care of the toddler after his birth.
KRS 600.020(1)(c) defines an abused or neglected child as including
one whose health or welfare is threatened with harm when the child’s parent
“[e]ngages in a pattern of conduct that renders the parent incapable of caring for
the immediate and ongoing needs of the child including . . . parental incapacity due
to alcohol and other drug abuse[.]” A dependent child is “any child, other than an
abused or neglected child, who is under improper care, custody, control, or
guardianship that is not due to an intentional act of the parent, guardian, or person
exercising custodial control or supervision of the child[.]” KRS 600.020(19).
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Here, an argument could be made that the mother did not neglect the
toddler when she left him in her husband’s care to enter a treatment program after
the infant’s birth. However, the aunt’s testimony and other evidence supported a
finding that the mother engaged in an ongoing pattern of providing negligent care
for the toddler’s “immediate and ongoing needs . . . due to alcohol and other drug
abuse[.]” KRS 600.020(1)(c). While we recognize that the credibility of the
aunt’s testimony was challenged by the mother’s witnesses, the trial court as the
trier of fact determines issues of credibility. CR4 52.01. Reichle v. Reichle, 719
S.W.2d 442, 444 (Ky. 1986). Given the substantial evidence adduced, the trial
court did not err by permitting the dependency charge to be amended to conform to
the evidence presented, or by finding that the toddler was neglected. See CR
15.02.
Next, we are not persuaded by the mother’s contention that the trial
court erred by considering evidence of her prior admission of neglecting her
firstborn child. The record shows that before the toddler’s birth, the mother’s
oldest child was placed in his father’s primary physical custody after the mother
exhibited “mental and emotional instability” related to substance abuse. Evidently
the mother’s substance abuse issues continued, as she participated in additional
treatment programs between the time of the toddler’s birth and the hearing. The
trial court specifically stated that it did not need to “give a great deal of weight” to
evidence regarding the mother’s past history of providing care to a child, given the
4
Kentucky Rules of Civil Procedure.
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“abundance of other evidence” to support the court’s determination of the toddler’s
best interest. The trial court did not rely on improper evidence when finding that
the toddler was neglected.
The mother next asserts that the trial court erred by stating that DCBS
did not testify that neglect was unsubstantiated. More specifically, the mother
alleged below that DCBS investigated “all incidents” regarding the toddler and
“did NOT substantiate any neglect or abuse by” the mother. She further argued
that the court “impermissibly substituted its judgment for that of social services
even though Social Services was in a better position to evaluate the situations
brought to its attention[.]” However, regardless of whether DCBS substantiated
specific instances of alleged neglect, the trial court was not foreclosed from
judicially determining that the mother’s ongoing care of the toddler was neglectful
as a result of substance abuse and a related “pattern of conduct.” KRS
600.020(1)(c). Further, when addressing custodial rights between parents, the trial
court was not obligated to find the existence of dependency, neglect or abuse
before making a determination of the child’s best interest.
Next, the mother contends that the trial court erred by relying on the
unfavorable testimony of her aunt rather than on the testimony of the witnesses
who discredited the aunt. However, a finder of fact may “choose to believe or
disbelieve any part of the evidence presented to it[,]” and the findings of fact will
not be set aside on appeal unless clearly erroneous. K.R.L. v. P.A.C., 210 S.W.3d
-8-
183, 187 (Ky.App. 2006). See Caudill v. Maloney’s Discount Stores, 560 S.W.2d
15, 16 (Ky. 1977). The court did not err in this regard.
The mother next asserts that the trial court erred by allegedly failing to
consider a social worker’s recommendation that the toddler should live with the
mother, and that it abused its discretion by failing to name her as the toddler’s
primary physical custodian. However, a social worker’s recommendation as to
whether a parent is capable of providing adequate care for a child differs from a
trial court’s determination of which one of two capable parents should be named as
a child’s primary physical custodian in furtherance of a child’s best interest. In
light of the evidence adduced below regarding both parents, the trial court did not
abuse its discretion by naming the father as the primary residential custodian.
Next, the mother asserts that the record does not show whether the
father complied with a court directive to complete a program of parenting classes.
In response, the father admits his noncompliance but asserts that his attorney was
not provided with a copy of the court order, that he and his counsel did not timely
realize his need to complete the program, and that he understood that the trial court
ultimately waived the requirement in order to proceed with the hearing below. The
record shows that the underlying order permitted but did not require the trial court
to impose any one of several possible sanctions upon a party who failed or refused
to attend the parenting program. The trial court did not abuse its discretion by
failing to impose such sanctions.
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Finally, the mother raises several issues relating to the infant. She
alleges that the court made legal determinations and issued an advisory opinion
regarding the infant’s paternity even though the infant was not the subject of the
underlying action, and that the court improperly breached the confidentiality which
should be afforded to the infant’s juvenile case. We disagree.
As noted above, the mother admitted to the trial court that although
she had advised her husband that the infant was his child, the infant’s biological
father in fact could be the toddler’s father, who was a party to the proceedings.
Certainly, evidence regarding the mother’s neglect of the infant was relevant to the
issue of whether the toddler also was neglected while in the mother’s care and to
the determination of the toddler’s best interests. Although the trial court
commented on the father’s right to choose to pursue a paternity action regarding
the infant, nothing in the record suggests that the trial court made any finding of
paternity. Indeed, neither the infant nor the infant’s legal father, i.e., the mother’s
husband, was a party to the proceedings below. Moreover, nothing in the record
contradicts the trial court’s statement that it considered the issue of paternity only
insofar as it related to the issue of the mother’s credibility. The mother’s
contention that the trial court erroneously determined paternity simply lacks merit.
The mother also alleges that a social worker engaged in improper ex
parte communication with the trial court by showing a picture of the infant to the
court. However, she provided no proof that such improper communication
occurred. Further, as noted above, the court stated in its February 17 order that it
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in fact had viewed only the photograph of the toddler which was included in the
record. Absent any showing of ex parte communication, the mother is not entitled
to relief.
Next, we are not persuaded by the mother’s claims that the trial court
erred by relying on, or allowing the father and his attorney access to details of, the
infant’s confidential juvenile court records. KRS 610.070(3) provides for the
confidentiality of such proceedings as follows:
The general public shall be excluded and only the
immediate families or guardians of the parties before the
court, witnesses necessary for the prosecution and
defense of the case, . . . [and] such persons admitted as
the judge shall find have a direct interest in the case . . .
may be admitted to the hearing.
Here, the facts involved in the infant’s case were intertwined with the issues
presented to the court in the instant proceeding. Moreover, the toddler’s father and
his attorney had “a direct interest in the case,” as information relating to the
mother’s neglect of the infant was clearly relevant to whether the mother also
displayed the same neglectful conduct toward the toddler whose custody was in
dispute. The trial court did not abuse its discretion by relying on, or permitting the
father and his attorney access to the details of, such records.
The orders of the Marshall Circuit Court, Family Division, are
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEFS FOR K. M.:
Dianna Riddick
Benton, Kentucky
Natalie M. White
Eddyville, Kentucky
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