Royalty v. Turner
| Decision Date | 08 June 2018 |
| Docket Number | NO. 2017-CA-000814-ME,2017-CA-000814-ME |
| Parties | JERRY ROYALTY AND VICTORIA ROYALTY APPELLANTS v. SCOTT TURNER AND TENDER TURNER APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM BOURBON CIRCUIT COURT
This case followed a long and torturous path to reach this Court, spanning four years, multiple courts and multiple counties. The Appellees eventually adopted the child, but the proceedings giving rise to this appeal continued even after that event. The adoption presented a fundamental shift in the proceedings, and this Court's summary of the case's history will reflect that.
This case began in mid-January of 2012, when the child at issue was born, addicted to opiates. Three days later, the Scott Family Court placed the child with maternal cousins, the Appellees, Scott and Tender Turner, in dependency, abuse, or neglect proceedings. Following the temporary placement with the Turners, venue was transferred to Bourbon County, where it was assigned case number 12-J-00038-001. After testing established paternity, the biological father filed a pro se petition for custody in Bourbon County (12-CI-00103). The Appellants, biological father's parents, intervened in both actions, seeking visitation pursuant to Kentucky Revised Statutes ("KRS") 405.021.
In April of 2012, the trial court ordered in 12-CI-00103 that the parties abide by the plan developed by the Department for Community-BasedServices ("DCBS") in 12-J-00038-001. The trial court granted permanent custody of the child to the Appellees in July of 2012 in 12-J-00038-001. The disposition also permitted grandparent visitation at the Turners' discretion, though testimony in later proceedings indicated that the Turners never permitted the grandparents to visit the child during the time this order was in effect.
The Appellants filed a petition for visitation in Fayette Family Court the next month. Though the Turners lived with the child in Lexington at the time, the Fayette County judge presiding ordered the matter transferred to Bourbon County, where it was designated Civil Action No. 13-CI-00005. The instant appeal originated in that civil action.
The Turners filed a petition to adopt the child in Bourbon County on January 17, 2013 (13-AD-00002). At the time of that filing, no court order mandating grandparent visitation was in effect, but the order permitting visitation at the Turners' discretion remained binding. The biological father filed a timely response and moved for visitation in the adoption action, which trial court denied.
Following a hearing in 12-CI-00103, the trial court ordered the Turners to permit the grandparents to visit the child pending the final hearing in that action.
The final hearing in 12-CI-00103 occurred on June 6, 2013. During that hearing, both sides presented evidence that would become a recurring theme in the proceedings. The grandparents offered evidence that visitation had generally gone well, that the child seemed happy during the visits, and that they werebonding with the child. The Turners, in contrast, offered testimony that the visits were harmful to the child. The Turners testified that the child, who has special needs due to pre-natal exposure to opioids, had regressed in development since visitation had resumed. Specifically, they alleged that the child had stopped toilet training and exhibited self-harming behaviors. The Turners also noted that during the child's sole overnight visit with the grandparents, the biological father had contact with the child while under the influence.2
Other evidence bolstered the Turners' position. Over the grandparents' objection, the child's guardian ad litem filed a report opposing grandparent visitation. The grandparents based their objections on the fact that the guardian ad litem had been appointed in 12-J-00038-001 and the adoption action, but not in 12-CI-00103 or 13-CI-00005. The report noted that the biological father lived with the grandparents and concluded that the grandparents were essentially acting as proxies to allow the biological father indirect contact with the child. The Turners' counsel averred that pictures and videos taken by the Appellants during visits had found their way to the biological father's social media profiles but did not introduce any such evidence.
Initially, the trial court overruled the grandparents' motion for visitation at the hearing but permitted the parties to file post-hearing memoranda. After considering the post-hearing memoranda, the trial court reversed itself and reinstated the grandparents' supervised visitation on December 5, 2013.
The Turners filed their first motion to terminate the grandparents' visits on April 4, 2014. Stressing the child's special needs, they again alleged the visits harmed the child. The grandparents countered with a motion to change the visitation from supervised to unsupervised, citing the Turners' consistent interference with their court-ordered visitation. They also blamed the child's regression on the Turners' unabashed resentment toward the grandparents and the obligation to allow visitation.
On May 27, 2014, the trial court conducted a hearing at which all parties testified and granted unsupervised visits. The order required visits to occur in a public location, with the exchanges to take place at Whitehall Park in Richmond (because the Turners and the child resided in Madison County by that time). The order also prohibited posting any pictures on social media of any kind and directed that neither biological parent be present, as both had been forbidden to have contact with the child.
On August 26, 2014, the grandparents moved to clarify the May 2014 order. The Turners responded with a second motion to terminate the grandparents' visitation. The trial court heard the motions on October 14, 2014, where testimony focused primarily on two recent incidents where visits were aborted.
At one visit at Whitehall Park, the grandparents had brought the child's seven-year old half-brother to meet the child without having cleared the meeting with the Turners in advance. The Turners refused to allow the visit. The parties' testimony conflicted as to which side escalated the tension, but the partiesagreed that the visit never occurred. The Turners refused to permit the child to get out of their vehicle, and the grandparents called the police. The incident did not result in criminal charges.
At another visit, occurring at a Richmond fast food restaurant, Scott lingered after making the exchange, apparently to observe the visit. He confronted Jerry Royalty when Jerry began using his phone to capture video or photographs of the child while playing with Vicky. Jerry, who is bound to a wheelchair, testified that he felt threatened during this conversation with Scott, a large man and retired firefighter. Scott testified that Jerry made a remark—within earshot of the child—that Scott is not the child's father. At some point, Jerry called the police, who questioned Scott about the confrontation and departed without charging him. Scott later offered testimony that after this event, the child began to question the nature of the relationship between them.
The trial court admonished both sides for these incidents and denied the Turners' motion to terminate visitation. The trial court clarified that no third parties are permitted at visits. The trial court also clarified that the prior order did not limit the visits to the places where the exchanges occurred but did require the grandparents to notify the Turners ahead of time if they intended to take the child elsewhere. The trial court also awarded the grandparents "make-up time" to compensate for prior missed visits. Finally, the court ordered that all visits occur within Madison County.
The trial court entered a Judgment of Adoption on November 7, 2014, which the biological father then appealed.
The Turners moved to terminate the grandparents' visitation a third time on February 18, 2015, parroting their prior arguments regarding the facts and circumstances. Only this time they claimed entitlement to the same legal rights and standing afforded to natural parents per KRS 199.520(2). The grandparents defended that the Turners had unilaterally moved the visits from 10:00 A.M. to 8:00 A.M. in a blatant attempt to force the grandparents into abandoning their right to visitation by making it too difficult to exercise.3
A new judge began presiding over the trial court and read the pleadings, then ordered a full evidentiary hearing. On March 24, 2015, the court ordered visitation to continue until that hearing could be held on August 31, 2015. The trial court reversed course four months later, however, and in an order entered on July 14, 2015, granted the Turners' motion to suspend visitation until the hearing. This order further directed that the child's guardian ad litem "continue as GAL and work with grandparents as well."
Both sides presented testimony at the August hearing. Tender outlined the child's history and status, adding her observations that the...
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