Ball v. Tatum

• Decision Date: 20 July 2012
• Docket Number: No. 2011–CA–001716–ME.,2011–CA–001716–ME.
• Citation: 373 S.W.3d 458
• Parties: Jessica BALL, Appellant v. Henrietta and Fred TATUM, Appellees.
• Court: Kentucky Court of Appeals

373 S.W.3d 458

Jessica BALL, Appellant
v.
Henrietta and Fred TATUM, Appellees.

No. 2011–CA–001716–ME.

Court of Appeals of Kentucky.

July 20, 2012.

[373 S.W.3d 459]

Susan Montalvo–Gesser, Owensboro, KY, for appellant.

Albert W. Barber, III, Owensboro, KY, for appellee.

[373 S.W.3d 460]

Before LAMBERT, NICKELL, and TAYLOR, Judges.

OPINION
NICKELL, Judge:

Jessica Ball appeals from an order entered by the Daviess Circuit Court designating her adoptive parents, Henrietta and Fred Tatum, de facto custodians of E.N.K.,¹ her special needs ² daughter. The court awarded Ball and the Tatums joint custody of the four-year-old child, who neither walks nor talks, and named the Tatums primary residential custodians. Ball maintains the Tatums did not qualify as de facto custodians because they had not been the child's exclusive caregivers and financial supporters for one year as required by KRS ³ 403.270. Having reviewed the record, the law and the briefs, we affirm.

Ball is the adopted adult daughter of the Tatums. The Tatums are also Ball's biological grandparents. Ball has two daughters, E.N.K., born June 12, 2006, and L.B., born two years later. This appeal concerns only the custody of E.N.K. There is no allegation that Ball is an unfit mother,⁴ nor that she waived her superior right to her daughter's custody.

In November 2010, E.N.K. suffered a seizure while with Ball. Fearing the seizure was caused by Ball not administering E.N.K.'s medication as prescribed, the Tatums petitioned the court to name them de facto custodians of their granddaughter and place the child in their care. After holding a hearing on the Tatum's motion for temporary custody, the trial court granted the motion and entered an order stating in part:

[t]he child has cerebral palsy and requires medication to control epileptic seizures as well as special attention on virtually everything. This child has extraordinary needs and the court is concerned that they are not currently being met while the child is in the custody of [Ball]. The court bases this conclusion on the testimony of Dr. Conrad [de Jesus], of several missed doctor appointments when the child is in the mother's custody. The court believes that everything possible is not being done to appropriately care for the child's needs.

The court reserved ruling on the issue of whether the Tatums qualified as de facto custodians and directed the commissioner to fully review the case, hold a hearing, and make a recommendation. From the bench, the court stated Ball would have unlimited visitation with the child; noted that Ball could not possibly raise the child alone; encouraged both parties to cooperate; and directed the Tatums to administer the child's medication.

Hearings held by the court and the commissioner showed that Ball's life has been marked by instability. Since E.N.K.'s birth, she has lived in ten locations, including with the Tatums multiple times. Once, in 2008, Ball left E.N.K. with the Tatums for a couple of months and moved in with her new husband—Ball visited with E.N.K. on the weekends.

[373 S.W.3d 461]

Ball's two children have different fathers and she is currently expecting her third child by yet another man. She has worked off and on, but at nothing well-paying or long-term. She yells and curses at E.N.K. She smokes in the child's presence even though doctors have warned her that smoke aggravates her daughter's medical condition. She has missed many of the child's thrice weekly physical therapy appointments even though she has been advised that consistent therapy is essential to the child's progress and ability to walk. Some of those appointments were missed because Ball had stayed up late watching movies and did not feel like getting up. On other occasions, Ball would say she drank too much the night before and still exhibited slurred speech at 3:00 in the afternoon.

Though investigated for dependency, neglect or abuse three times, no reports against Ball were ever substantiated. Ball admitted she had received financial assistance from the Tatums in the preceding four years, and had occasionally lived in their home, but claimed she had continuously lived with her child, had held several jobs since the child's birth, had received monthly child support from the child's father,⁵ and had arranged for E.N.K. to receive supplemental social security income and a state medical card—all of which contributed significantly to the child's financial support. Ball also testified that she had provided the bulk of her daughter's care by clothing and feeding her, waking her each morning and putting her to bed each evening; tending to her hygiene; and taking her to weekly therapy sessions. It was established that Ball squandered $6,000.00 in back social security benefits that had been paid to the child. At the time of the hearings, E.N.K. was receiving $570.00 in monthly social security benefits, but Fred testified that Ball did not share any of that money with the Tatums to provide for E.N.K.'s needs.

In contrast, the Tatums are retired, have been married 46 years, have lived in Kentucky since 1982, and have lived in their current home for eleven years. In addition to providing cars to Ball and a rent-free place for her and her children to live for long stretches, the Tatums have also provided food (including Thick–It ⁶ formula), clothing and diapers to E.N.K.; taken E.N.K. to 95% of her physical therapy appointments; and administered E.N.K.'s anti-seizure medication 95% of the time. Fred testified that Ball and E.N.K. had lived in the Tatum's home from late July/early August 2007 until July/early August 2008; from late January 2009 until late April/early May 2009; and again, from late 2009 until April/May 2010, for a total of sixteen months—a fact with which Ball agreed. Fred also explained that in the summer of 2010, Henrietta was substituted as the payee of E.N.K.'s social security benefits, with Ball's consent, due to a second misappropriation of funds. According to Fred, from E.N.K.'s birth in 2006 until the summer of 2010, the Tatums were their granddaughter's primary caregivers and financial supporters.

On May 26, 2011, the commissioner entered his recommendation. In determining the Tatums qualified as de facto custodians under KRS 403.270, the commissioner

[373 S.W.3d 462]

noted that Ball and E.N.K. had lived with the Tatums from late July, 2007 until late July/early August, 2008, and during that year, the Tatums had:

provided ninety-five (95%) percent of the child's financial needs by providing shelter, food and clothing for the child. [Ball] contributed very little, if anything, toward those needs. During that period, [Ball] worked for a short period of time at a couple of jobs, but managed to get fired for various reasons. After this period of time, the child was awarded some form of Social Security Disability that amounted to $500.00 a month. She also received approximately $6,000.00 in back benefits. This amount was paid to [Ball], as mother of the child. [Ball], at that point, moved out of the [Tatum's home] and in to (sic) a residence with Robert Ball. Thereafter, she married Mr. Ball and had a second child, [L.B.]. That relationship was off and on for a period and while the relationship was on, the two of them managed to exhaust the $6,000.00 back benefits that belonged to the child. During the first one year period that [Ball] and the child resided with the [Tatums], the evidence supports a finding that the [Tatums] were the primary caregivers of the child. They made sure the child received her daily medications; they took the child to her therapy sessions and primarily provided the daily care that the child requires because of her special needs. Based on the foregoing findings, the [Tatums] have met the criteria of de facto custodians.

The commissioner then recommended naming the Tatums as E.N.K.'s primary residential custodians and allowing Ball to have parenting time.

On July 12, 2011, the circuit court held a hearing on Ball's exceptions to the commissioner's report and recommendation. Ball argued E.N.K. had not lived with the Tatums for a year. The Tatums argued the proof showed the child had lived with them for sixteen months.⁷ The court ruled from the bench that it was adopting the commissioner's recommendation in full; denying Ball's exceptions; and finding that Ball had failed to provide E.N.K.'s essential needs for reasons other than poverty. The court made it clear that E.N.K. needs assistance from all parties and applauded the commissioner for recommending joint custody. The court stated he was not finding Ball to be unfit, but rather that she was...