Opinion
NO. 2014-CA-000586-ME
12-12-2014
MARY WHITLOCK (NOW TERRY) APPELLANT v. BILL WHITLOCK; SHARON SUE WHITLOCK; AND WILLIAM A. (TONY) WHITLOCK APPELLEES
BRIEF FOR APPELLANT: Theodore H. Lavit Lebanon, Kentucky BRIEF FOR APPELLEE: William M. Hall, Jr. Campbellsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE ARTHUR D. KELLY, JUDGE
ACTION NO. 08-CI-00150
OPINION
AFFIRMING
BEFORE: CAPERTON, KRAMER AND STUMBO, JUDGES. STUMBO, JUDGE: Mary Whitlock (now Terry, and hereinafter "Mother") appeals from Findings of Facts, Conclusions of Law and Order of the Taylor Circuit Court awarding sole custody of her minor child ("Child") to Mother's former in-laws Bill and Sharon Whitlock ("Grandparents"). Mother contends that the circuit court abused its discretion in awarding sole custody to Grandparents without any meaningful evidence to support the award, and that a joint custodial arrangement would have better served Child's best interests. For the reasons stated below, we AFFIRM the Order on appeal.
Judge Joy A. Kramer, formerly Joy A. Moore.
Child was born to Mother and Tony Whitlock ("Father") on July 19, 2007, who wed the following year. Within two weeks of the birth, Mother placed Child in the physical custody of Grandparents due to Mother's depression and other emotional problems adversely affecting Mother's ability to care for Child. According to the record, Father had recurrent drug and alcohol problems. Child was given the surname of John Gilbert, with whom Mother apparently was living at the time of the birth.
In April 2008, the Grandparents filed a petition in Taylor Circuit Court seeking permanent custody of Child as de facto custodians. The petition asserted that Child had continuously been in the care of the Grandparents since August 2, 2007. The court granted Grandparents temporary emergency custody of Child and set a date for an evidentiary hearing. At the hearing, Mother stipulated the Grandparents qualified as de facto custodians. The parties agreed the Grandparents would retain temporary custody and that Mother would have supervised visitation with Child.
Thereafter, the parties engaged in discovery and six witnesses were deposed relating to Mother's emotional health and parenting ability. In October of 2008, the court heard testimony from Father and Grandmother, while Mother testified at a subsequent hearing in March of 2009. A final custody Order was entered on April 5, 2011, which granted sole custody to Grandparents. In its Findings of Fact the court stated that all of the parties were in good health, Mother and Father were unemployed, Grandparents had previously been named de facto custodians, and Grandparents had supported Child since August of 2007. Without elaborating, the court stated Grandparents were the "fit and proper" persons to have sole custody of Child and that joint custody was not appropriate. In its conclusions of law, the court stated the best interests of Child were served by awarding custody to Grandparents.
Mother, through counsel, prosecuted an appeal to a panel of this Court, arguing that the trial court's Findings of Fact were insufficient to support its conclusion that granting sole custody to Grandparents was in Child's best interest. On March 16, 2012, the panel rendered an unpublished Opinion reversing the Taylor Circuit Court's award of custody upon determining that the court's findings were not sufficient to support the award. It remanded the matter to the Taylor Circuit Court for additional findings.
On remand, an additional evidentiary hearing was conducted on September 23, 2013, which included the testimony of Child's maternal grandmother Pam Terry as well as Grandparents. After reviewing the depositions and the testimony from the multiple hearings, the Taylor Circuit Court rendered Findings of Fact, Conclusions of Law and Order on March 19, 2014. It determined in relevant part that Mother's emotional issues and mental health problems, her inability to maintain a stable home and sporadic work history contributed to her inability to provide and care for Child. The court reiterated its prior finding - to which Mother had stipulated - that Grandparents were the de facto custodians of Child. After applying the foregoing to KRS Chapter 403, the court awarded sole custody of Child to Grandparents, and awarded visitation to Mother. Father, who did not seek custody, was awarded supervised visitation. Mother and Father were also ordered to procure medical insurance for Child at such time they become able to do so. This appeal followed.
Mother now argues that the Taylor Circuit Court erred in awarding sole custody of Child to Grandparents. The focus of her claim of error is her contention that there is no meaningful evidence in the record to support the award. After directing our attention to KRS 403.270 and the supportive case law, Mother maintains that the "sole reasoning for granting custody to the Whitlocks appears to be the court's finding that the parties have been unable to reach mutual agreements on such issues as" the nature and scope of Mother's visitation with Child and the exchange of medical and school information. She contends that these issues can easily be resolved by the court without granting sole custody to Grandparents. Mother goes on to argue that joint custody would have better served Child's best interests with Mother being designated as the sole custodian. In sum, Mother maintains that the Order on appeal was not supported by the record and she seeks an Opinion reversing and remanding the matter to the Taylor Circuit Court.
As the parties are well aware, and as the previous panel of this Court noted in its March 16, 2012 Opinion, in making a custody determination a trial court must make specific Findings of Fact to determine what arrangement is in the "best interests of the child." McFarland v. McFarland, 804 S.W.2d 17, 18 (Ky. App. 1991). Grandparents, as de facto custodians, are entitled to the same consideration as the biological parents in the court's analysis. KRS 403.270(2). To determine what is in a child's best interests, KRS 403.270(2) requires the court to consider all relevant factors, including:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de facto custodian; and
(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian[.]
In examining these factors, the Taylor Circuit Court rendered comprehensive and specific Findings of Fact in support of its conclusion that Child's best interests were served by an award of sole custody in favor of Grandparents. The court noted Mother's ongoing depression and emotional problems which adversely affected her ability to care for Child since her birth. These problems contributed to Mother being unable to hold a job or to maintain her own residence. The court detailed the history of Mother's interaction with social service agencies, including the Cabinet for Health and Family Services and the "HANDS" program (Health Access Nurturing Development Services). The court also considered the testimony of various social services workers, including investigative social worker Tammy Cowheard with the Division of Protection and Permanency, who became involved after receiving a report that Child was in danger due to Mother's mental health issues. The court's findings detail Mother's difficulty parenting, her avoidance of feeding and bathing Child, and that there were occasions when Mother would visit Child and not hold her or pick her up. The court did acknowledge that Mother had made some slight improvement and attributed this in part to the reduced stress of living with Child's maternal Grandmother and not having to earn an income or maintain a household.
In accordance with KRS 403.270, the trial court considered the wishes of Child's parents, as well as those of the de facto custodians when making a decision as to Child's custody. The court recognized that Grandparents have provided a stable environment in which Child is thriving. It noted that Grandparents to not want to deprive Child of contact with Mother, but rather that they encourage liberal visitation. The record revealed that Child has lived with Grandparents almost since birth, is doing well in her current environment and is well integrated at Taylor County Elementary School. Grandparents have been the sole care providers for Child since birth, who, in addition to providing for her basic needs such as school and medical care, have taken her to the zoo and other activities, and have otherwise acted in loco parentis.
A trial court's Findings of Fact shall not be set aside unless they are clearly erroneous. CR 52.01. In awarding child custody, "[a] trial judge has broad discretion in determining what is in the best interests of children[.]" Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). The Taylor Circuit Court's Findings of Fact are supported by the record and the court properly applied those findings to KRS 403.270(2). We cannot conclude that the trial court abused its discretion in awarding sole custody to Grandparents without any meaningful evidence as argued by Mother, nor that joint custody would have better served Child's best interests. Accordingly, we find no error.
For the foregoing reasons, we AFFIRM the Findings of Fact, Conclusion of Law and Order of the Taylor Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Theodore H. Lavit
Lebanon, Kentucky
BRIEF FOR APPELLEE: William M. Hall, Jr.
Campbellsville, Kentucky