Miller v. Harris

• Decision Date: 27 August 2010
• Docket Number: 2009-CA-002415-ME.,No. 2009-CA-002330-ME,2009-CA-002330-ME
• Citation: 320 S.W.3d 138
• Parties: Shelby MILLER, Appellant/Cross-Appelleev.Robert HARRIS and Opal Harris, Appellees/Cross-Appellants.
• Court: Kentucky Court of Appeals

320 S.W.3d 138

Shelby MILLER, Appellant/Cross-Appelleev.Robert HARRIS and Opal Harris, Appellees/Cross-Appellants.

No. 2009-CA-002330-ME, 2009-CA-002415-ME.

Court of Appeals of Kentucky.

Aug. 27, 2010.

Rodger G. Cox, Campbellsville, KY, for appellant/cross-appellee.

James L. Avritt, Jr., Lebanon, KY, for appellees/cross-appellants.

Before ACREE and NICKELL, Judges; HARRIS,¹ Senior Judge.

OPINION

NICKELL, Judge:

Shelby Miller, the maternal grandmother of two minor children, appeals from a judgment of the Marion Circuit Court awarding custody of the children to their great uncle and aunt, Robert and Opal Harris.² Miller also appeals from an order denying her motion for a new trial but modifying the custody order to incorporate requested findings of fact. After thorough review of the briefs, the record and the law, we affirm.

We begin with a brief statement of the facts and procedural history of these two consolidated cases. Phyllis Coffey gave birth to four children before her death in a car accident in December of 2006. This appeal concerns custody of her two youngest children, a daughter (S.R.S.) born on May 31, 2003, and a son (T.P.S.) born on February 8, 2001. The children's father lives in Indiana and has not asserted parental rights.

S.R.S. was born a “crack baby.” Within days of her birth, she was removed from her mother and placed with relatives where she lived the first year of her life. During this time, the Harrises spent considerable time with S.R.S. and provided for her. In contrast, Miller was not involved in the child's life. S.R.S. was returned to Coffey's care, but was removed again in September of 2004. At that time the Harrises were awarded temporary custody for about eight months. Miller did not attempt to contact or see the child during this time.

Within days of Coffey's death, the Harrises petitioned the Marion Circuit Court to grant them custody of S.R.S. T.P.S. was in someone else's care. Contrary to the Harrises' request, in February of 2007, temporary custody of both S.R.S. and T.P.S. was awarded to Debra Penick, Coffey's twin sister. Two months later, Penick was awarded permanent custody of both children. T.P.S. began living with Penick immediately. S.R.S. joined Penick's household at the end of the 2006-2007 school year. Until school ended, S.R.S. continued living with the Harrises. In June of 2007, the Harrises began weekend visitation with the children.

Penick tried to rear S.R.S. and T.P.S., but being a single mother who was working full-time and struggling to raise her own two children, she soon realized she could not care for her niece and nephew. Without court approval or knowledge, Penick took the children to Indiana on July 6, 2008, and gave physical custody of them to her mother, the children's maternal grandmother, Shelby Miller. On July 15, 2008, a court in Jennings County, Indiana, named Miller the children's guardian.

Things quickly went awry. On August 27, 2008, the Harrises moved the Marion Circuit Court to modify custody and set a visitation schedule. On September 12, 2008, the Marion Circuit Court ordered Penick to immediately return the children to Campbellsville, Kentucky, enroll them in local schools and make them available for weekend visitation with the Harrises. Four days later another order was entered stating that Miller had refused to release the children and asking Indiana law enforcement to assist in returning the children to Kentucky. The order went on to state that if Miller refused to cooperate, a warrant would issue and she would be arrested for custodial interference.

On September 23, 2008, an Indiana court issued an order on Miller's petition to terminate the Harrises' visitation. Following an emergency hearing, the court acknowledged having given Miller guardianship of the children in July of 2008, but declined to exercise further jurisdiction.

In November of 2008, Miller was allowed to file an intervening petition in the Marion Circuit Court to seek custody of the children. In February of 2009, the Marion Circuit Court entered an order permitting the Harrises to have telephone contact with the children for one hour every Tuesday night and visitation with them one weekend of every month. In May of 2009, Miller was found to be in contempt of court for willfully violating the February 2009 order regarding visitation and telephone access. As a result, an arrest warrant was issued.

While the Harrises sought to enforce their visitation rights in the Marion Circuit Court, Miller sought to terminate the award of visitation in the Indiana courts. On May 11, 2009, the Indiana court entered an order denying Miller's petition to terminate visitation due to her “unclean hands by failing to appear in the Marion Circuit Court (Kentucky) on May 4, 2009.”

On July 30, 2009, the Marion Circuit Court convened a custody hearing at which the Harrises and Miller testified along with other witnesses. Miller brought T.P.S. to the courthouse that day and asked the court to interview him, however, she did not bring S.R.S. with her. Counsel for the Harrises had previously asked that both children be made available to speak with the court. After confirming the age and whereabouts of both children, the court decided it would not interview either child.

The court entered twelve pages of findings of fact, conclusions of law and judgment on October 22, 2009. Thereafter, Miller moved the court to order a new trial or alternatively, amend the judgment and add new findings of fact. The court denied the motion for a new trial, but did amend the judgment to incorporate additional findings of fact. This appeal followed. We affirm.

Kentucky Rules of Civil Procedure (CR) 52.01 directs that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” A judgment “supported by substantial evidence” is not “clearly erroneous.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). Substantial evidence is defined as “evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.” Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972).

In reviewing the trial court's decision, we must determine whether it abused its discretion by awarding custody of the children to their great uncle and aunt. An abuse of discretion occurs when a trial court enters a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). We will not substitute our own findings of fact unless those of the trial court are “clearly erroneous.” Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986). Further, with regard to custody matters, “the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion.” Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky.1974); see also Cherry v. Cherry, 634 S.W.2d 423 (Ky.1982).

When the choice of custodian ³ is between non-parents, as in this case, Kentucky courts seek the result that is in the best interests of the child. Kentucky courts have not expressed a preference for relatives in non-parent custody cases. Williams v. Phelps, 961 S.W.2d 40 (1998). Therefore, Miller does not have an automatic advantage by being the children's maternal grandmother. Additionally, Robert, by being the maternal great uncle of the children is also a blood relative. Further, KRS 403.270 provides, in relevant part:

(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall 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;

....

(3) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.

Close reading of the statute reveals the trial court must consider ALL relevant factors, not just those listed in KRS 403.270(2). After considering the factors enumerated in the statute, the trial court concluded it was in the best interests of S.R.S. and T.P.S. to be in the sole custody of the Harrises with Miller having reasonable visitation. Our task is to determine whether that conclusion is supported by substantial evidence.

We focus first on Miller. She is a sixty-year-old woman who has lived in public housing in Indiana for the last eight years. She has not held a paying job in the last two decades and relies upon $676.00 in monthly supplemental security income benefits plus Medicaid and food stamps. She does not have reliable transportation. She is currently single but has been married and divorced four times and is the mother of four children, one of them deceased. When she divorced the father of her children in 1985, he received custody of all four children. Miller has resided in Indiana for all but one year of the children's lives. She testified T.P.S. had lived with her for four years while Coffey was dealing with substance abuse issues but she offered no corroborating evidence or dates.

Miller has a long history of substance abuse convictions including: driving under the influence (DUI), third offense, in December of 1997; DUI, second offense, in June of 1994; DUI, first offense, in March of 1994; alcohol intoxication in a public place in November of 1994;...