Penticuff v. Miller, 2015-CA-001101-ME

• Decision Date: 04 November 2016
• Docket Number: NO. 2015-CA-001129-ME,NO. 2015-CA-001101-ME,2015-CA-001101-ME
• Citation: 503 S.W.3d 198
• Parties: Carson PENTICUFF, Appellant v. Mark Dwayne MILLER and Erin Marie Miller (Now O'Reilly), Appellees and Mark Dwayne Miller, Appellant v. Erin Marie Miller (Now O'Reilly), and Carson Penticuff, Appellees
• Court: Kentucky Court of Appeals

503 S.W.3d 198

Carson PENTICUFF, Appellant
v.
Mark Dwayne MILLER and Erin Marie Miller (Now O'Reilly), Appellees
and
Mark Dwayne Miller, Appellant
v.
Erin Marie Miller (Now O'Reilly), and Carson Penticuff, Appellees

NO. 2015-CA-001101-ME
NO. 2015-CA-001129-ME

Court of Appeals of Kentucky.

NOVEMBER 4, 2016; 10:00 A.M.

BRIEF FOR APPELLANT, MARK DWAYNE MILLER: Joseph E. Lambert, Mt. Vernon, Kentucky

BRIEF FOR APPELLANT, CARSON PENTICUFF: Jennifer S. Nicholson, London, Kentucky

BRIEF FOR APPELLEE, ERIN MARIE MILLER (now O'REILLY): Brittany N. Riley, London, Kentucky

BRIEF FOR APPELLEE, CARSON PENTICUFF: Jennifer S. Nicholson, London, Kentucky

BRIEF FOR APPELLEE, MARK DWAYNE MILLER: Joseph E. Lambert, Mt. Vernon, Kentucky

BEFORE: CLAYTON, JONES, AND NICKELL, JUDGES.

OPINION

CLAYTON, JUDGE:

In these consolidated appeals, a young boy (hereinafter "Child") ostensibly has two fathers—Mark Dwayne Miller (hereinafter "Miller"), who was married to Child's mother when Child was born, and Carson Penticuff (hereinafter "Penticuff"), who is the natural father. During the pregnancy and after Child's birth, Child's mother, Erin Marie Miller, now O'Reilly (hereinafter "Mother"), misled Penticuff into believing Child was not his. Miller and Mother divorced shortly after Child was born. During Child's first few years, Miller held joint custody of Child with Mother, with Mother being the primary custodian.

Almost five years after Child was born, Mother contacted Penticuff via telephone and told Penticuff he was Child's father. Once the truth of Penticuff's fatherhood was revealed, DNA testing was conducted, which determined to a 99.99% probability that Penticuff was the father. Armed with this knowledge, Penticuff sought a paternity determination along with custody, support, and visitation. In response, Miller claimed Mother and Penticuff waived their superior custody rights. A hearing was held at which the following evidence was adduced.

Mother and Miller were married in 2007. Their relationship was rocky, and in October of 2007 Mother obtained a Domestic Violence Order ("DVO") against Miller. It also came to be known that Miller committed a third-degree rape of his 14-year-old cousin. As a result of the sexual offense, Miller went to prison in February of 2008.

During this tumultuous time, Penticuff and Mother, who worked together, had a sexual relationship in January and February

503 S.W.3d 202

of 2008. Shortly after the relationship ended between Penticuff and Mother, Penticuff learned that Mother was pregnant. Following Mother's first doctor's visit, Mother informed Penticuff the child was not his. A co-worker confirmed that she overheard Mother tell Penticuff that Penticuff was not Child's father. Mother then informed Miller's mother that she was going to be a grandmother, and Miller's mother accompanied Mother to the ultrasounds and Child's birth. Miller also was granted a furlough from prison to attend Child's birth.

Mother claimed she was scared of Miller due to the domestic violence. In spite of the fact that Mother held Miller out as Child's father, Mother eventually testified that she did not have sex with Miller between the issuance of the DVO in October, 2007, and Miller going to prison in February, 2008. Miller, on the other hand, claimed he violated the DVO and had sex with Mother multiple times a day in the days leading up to him going to prison. Miller claimed he did not know about Mother's relationship with Penticuff, and he never doubted he was Child's father.

Child was born on November 11, 2008 while Miller was still in prison and many months after Mother and Penticuff's relationship ended. Mother listed Miller as Child's father on the birth certificate. Mother took Child to visit Miller in prison until Miller was released in early 2009.

Mother and Miller's relationship would not last, however. Mother and Miller filed for divorce shortly after Miller was released from prison. Miller paid child support and visited with Child after Miller was released from prison. He and Mother shared joint custody of Child. Around the same time period in early 2009, Mother and Penticuff's relationship restarted, and Mother, Penticuff, and Child lived together for approximately six months before the relationship ended.

Years went by and Mother sought to move to California. Miller, who had joint custody of Child, blocked the move. Mother then telephoned Penticuff, in late 2013, and informed him that he was Child's father. Penticuff privately obtained a paternity test in December, 2013. The results showed a 99.99% probability that Penticuff is Child's father. Penticuff then sought to establish custody, support, and visitation with Child.

At the conclusion of the hearing, and after the trial judge who presided over the hearing recused himself, an order was entered finding and concluding that Penticuff was Child's natural father, but Penticuff had waived his superior right to custody of Child. It further concluded that Mother had not waived her superior right to custody, as she was afraid of Miller. Finally, the trial court concluded that Miller, who was neither a de facto custodian nor Child's biological father, did not step into Penticuff's shoes as father and thus had no legal claim to custody or visitation with Child.

The order concluded that Miller was "barred from custody or visitation with [Child] since [Mother] did not waive her superior custody rights and she does not want Mark Miller to have custody or visitation with [Child.]" It further allowed that Penticuff could "by motion schedule hearings to determine custody, visitation, and child support." Both Penticuff and Miller appeal. Their appeals have been consolidated to the same panel of this Court. We address their issues below.

ANALYSIS

APPEAL 2015-CA-001101-ME

Penticuff raises three issues in his appeal: (1) the trial court erred by finding Penticuff waived his superior rights of

503 S.W.3d 203

Child's custody; (2) the trial court erroneously admitted a prior statement in violation of Kentucky Rules of Evidence (KRE) 613 ; and (3) Judge Vanover erroneously recused himself from the case.

I. Did the trial court err by finding Penticuff waived his superior rights of Child's custody?

Penticuff first claims the trial court erred by finding he waived his superior rights of Child's custody. As the trial court initially found that Penticuff is Child's biological father, Penticuff "ha[s] a fundamental, basic, and constitutional right to raise, care for, and control [his] own child [ ]." Mullins v. Picklesimer , 317 S.W.3d 569, 578 (Ky. 2010) (citing Davis v. Collinsworth , 771 S.W.2d 329, 330 (Ky. 1989) ). Mother, likewise, has the same fundamental, basic, and constitutional right to raise, care for, and control Child.

Though fundamental, basic, and constitutional, this right may be waived by a parent either being an unfit custodian, or by a non-parent presenting clear and convincing evidence demonstrating that the biological parent has waived his or her superior right to custody. Vinson v. Sorrell , 136 S.W.3d 465, 468 (Ky. 2004). See also Mullins , supra . There are no allegations that Penticuff is an unfit custodian, Vinson , 136 S.W.3d at 470–71 ; thus, the analysis turns on whether Miller presented clear and convincing evidence that Penticuff waived his superior right to custody.

Because a bond develops between a child and a nonparent who raises the child as his or her own, a parent through his or her actions can waive in whole or in part his or her superior right to custody. Mullins , 317 S.W.3d at 579. The waiver must be a "voluntary and intentional surrender or relinquishment of a known right or an election to forego an advantage which the party at his option might have demanded or insisted upon." Id. at 578 (quoting Greathouse v. Shreve , 891 S.W.2d 387, 390 (Ky. 1995) ). A written, formal waiver is not required; nonetheless, "statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof." Id. at 578 (quoting Vinson , 136 S.W.3d at 469 ).

Accordingly, a parent who knows a child is his or hers may demonstrate the voluntary and intentional nature of the waiver by: entering into a joint custody arrangement with the nonparent; intentionally identifying the nonparent as a parent; having the nonparent participate in the child's birth; identifying the nonparent as a parent on school forms; functioning as a family unit for years; allowing the nonparent to be a medical power of attorney; and other such factors. Id. at 579–80 (citing Heatzig v. MacLean , 191 N.C.App. 451, 664 S.E.2d 347, 353–54 (2008) ).

On the other hand, when the parent has been absent from the child's life for a period of time, other factors become relevant: (1) the length of time the child has been away from the parent; (2) the circumstances of separation; (3) the child's age when care was assumed by the nonparent; (4) the time that elapsed before the parent sought to claim the child; and (5) the frequency and nature of the contact between the parent and the child during the nonparent's custody. Vinson v. Sorrell...