B.C. v. B.T.

• Decision Date: 29 December 2005
• Docket Number: No. 2005-CA-000045-ME.,2005-CA-000045-ME.
• Citation: 182 S.W.3d 213
• Parties: B.C., Appellant v. B.T. and K.F., Joint Custodians of N.C.<SMALL><SUP>1</SUP></SMALL>, Appellees.
• Court: United States State Supreme Court — District of Kentucky

182 S.W.3d 213

B.C., Appellant v. B.T. and K.F., Joint Custodians of N.C.¹, Appellees.

No. 2005-CA-000045-ME.

Court of Appeals of Kentucky.

December 29, 2005.

Delbert K. Pruitt, Paducah, KY, for appellant.

Vicki R. Holloway, Paducah, KY, for appellees.

Before BARBER, BUCKINGHAM, and JOHNSON, Judges.

OPINION

JOHNSON, Judge.

B.C. has appealed from the November 3, 2004, order of the McCracken Family Court which granted custody of his minor child, N.C., to B.T., the paternal grandmother of the child, and K.F., the paternal aunt of the child. Having concluded that the family court's factual findings were not clearly erroneous, that it correctly applied the law, and that it did not abuse its discretion in making its custody award, we affirm.

B.C. and his wife, R.C., are the natural and biological parents of N.C., whose date of birth is June 17, 2002. On July 18, 2003, a juvenile dependency, neglect, and abuse petition was filed in the McCracken Family Court on behalf of N.C. by Alexia J. Pritchett, a social worker with the Cabinet for Families and Children. The petition stated that the mother had "verbally and physically assault[ed]" N.C.'s older sibling and the Cabinet feared that since the older sibling had been removed from the home that the mother's anger would turn to N.C. The petition further stated:

The home is unsafe for a thirteen-month old child. The home is cluttered with piles of clothes and other items several feet high. [The mother] stores her medications on the couch. [The mother] stated the couch was her medicine cabinet and refused to move the medication stating [the child] does not climb on the couch. [The mother] makes baby rattles out of medication bottles and black-eyed peas. [The father] works six days a week driving a truck out of town.

An emergency custody order was entered the same date, temporarily placing N.C. in the custody of the Cabinet.² On July 22, 2003, a temporary removal hearing was held and the family court entered an order placing N.C. in the temporary custody of B.T., the paternal grandmother.

On September 18, 2003, the family court held an adjudication hearing. The family court found that N.C. was a neglected child and allowed temporary custody to remain with the paternal grandmother. At a disposition hearing held on October 16, 2003, the family court found that because the mother neglected the minor child,³ and even though reasonable efforts had been made to prevent the child's removal from the home, it was in the best interests of the minor child to grant his temporary custody to the paternal grandmother. Pursuant to an amended disposition order entered on October 27, 2003, C.C., the mother's sister, N.C.'s maternal aunt, was granted one overnight visitation per week with N.C., with the stipulation that if the mother was present for the visitation that her visitation must be supervised or the visitations at the maternal aunt's home would terminate.⁴

On December 18, 2003, B.T., the paternal grandmother, and K.F., the paternal aunt, filed a verified motion for permanent custody of N.C. During this time, the father filed a motion for a rule on September 27, 2004, stating that the paternal grandmother was denying him visitation with N.C. However, neither the father nor the mother filed a response to the paternal grandmother's and the paternal aunt's motion for custody. The father's motion for a rule was renoticed on March 3, 2005. There is no order of record as to the father's motion for a rule. N.C.'s guardian ad litem filed her report on November 10, 2004, recommending that the motion for permanent custody be granted. Following several delays, a hearing was held in the family court on November 8, 2004. The family court, in an order entered on December 3, 2004, found as follows:

1. The natural parents had inadequate housing for the minor child at the time of his removal from the home. The home continues to be inadequate as of the date of the hearing. In fact, [the mother] testified that the home is uninsurable due to structural problems. One room has no floor whatsoever, only open floor joists. This condition allows snakes, mice and insects to come into the home. One of the bathrooms is completely unusable.

2. The house was unsafe for a crawling infant. At the time of the removal, the house was littered with piles of clothing and other items. Medicines were kept within easy reach of the child. A loaded gun was left on a nightstand, within easy reach of the child. The baby's older brother (age 9) took and shot the gun in the house on one occasion. A whiskey bottle was "stored" on the floor by the father's chair, within easy reach of the child. Though these issues were addressed to the parents by Social Services prior to the removal, the conditions still existed at the time of removal. Neither [the father] nor [the mother] recognized the seriousness of these issues.

3. [The mother] is an unfit parent. She yelled, cursed and screamed at the children unnecessarily and inappropriately. She has also bit and choked her older child. Her older son was removed from her home due to her neglect and abuse. . . .

4. [The father] failed to provide adequate shelter for his child prior to the removal. [The father] has made no significant effort over the fifteen month period [the child] has been gone to make the needed improvements to the house.

5. Neither parent has provided any financial support for the minor child since June, 2003.

6. The parents had supervised visitation throughout this proceeding. The parents have not fully exercised said visitation. They did not visit with him except a few hours during the week preceding the hearing, though the child was available. [The father] has had the opportunity to visit with his child, but chose not to for a period of two months (January and February 2004).

The trial court also found both parents to be unfit, awarded the paternal grandmother and the paternal aunt joint custody of N.C., and ordered that the father and the mother be required to pay child support.⁵ From that order, the father filed this appeal.⁶

This proceeding was initially brought by the Cabinet based on a petition alleging that N.C. was an abused and neglected child as described in KRS⁷ 620.070. McCracken County has a family court system in place, thus the actions of the family court in this case are viewed differently than a district court carrying out the same functions. The implementation of the Family Court System has made the analysis of these type of cases somewhat confusing. Before we begin our analysis of the issues at hand, we will outline the procedures, as set forth by statute.

First, we will address the jurisdiction of the family court. It is a misnomer to say that a family court serves the role of a district court and a circuit court. KRS 23A.100 specifically states that the family court is "a division of Circuit Court with general jurisdiction pursuant to Section 112(6) of the Constitution of Kentucky." As a division of the circuit court, the family court has jurisdiction of cases, including child custody and visitation.⁸ Further, while still acting as a division of the circuit court, the family court has "additional jurisdiction" over "[d]ependency, neglect, and abuse proceedings under KRS Chapter 620,"⁹ such cases which are usually under the jurisdiction of the district courts in Kentucky.¹⁰ Thus, the family court when hearing cases normally within the district court's jurisdiction, is not sitting as a district court, but rather as a circuit court given special jurisdiction to hear cases normally under the district court's charge.

This distinction is critical as it justifies this Court's authority to hear the case before us. Appeals from district court orders are appealed to the circuit court, not to this Court.¹¹ However, regardless of the type of case before a family court, it is still acting as a circuit court and thus an appeal to this Court is proper. Therefore, it is irrelevant whether the current action is one that would have been handled by a district court or a circuit court, as long as it is within the jurisdiction given to the family court under KRS 23A.100, our review is proper.

Second, we will analyze the procedure used by either a district court or a family court under KRS Chapter 610 and KRS Chapter 620 to determine whether temporary removal of a child is necessary based on his status as a dependant, neglected, or abused child. KRS 600.020(1) defines an abused or neglected child as follows:

[A] child whose health or welfare is harmed or threatened with harm when his parent, guardian, or other person exercising custodial control or supervision of the child:

(a) Inflicts or allows to be inflicted upon the child physical or emotional injury as defined in this section by other than accidental means;

(b) Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;

(c) Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child . . .;

(d) Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;

. . .

(h) Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being. . . .

The formalities of filing a dependency, neglect, or abuse action are outlined in KRS 620.070. All juvenile proceedings "shall consist of two (2) distinct hearings, an adjudication and a disposition[.]"¹² In a dependency, neglect, or abuse case, "[t]he adjudication shall determine the truth or falsity of the allegations in the petition and shall be made on the basis of an admission or confession of the child to the court or by the taking of evidence."¹³ "The burden of proof shall be upon the complainant, and a determination of dependency,...