Opinion
NO. 2015-CA-001348-ME NO. 2015-CA-001349-ME NO. 2015-CA-001359-ME
02-10-2017
KIMBERLY DAWN FELLER APPELLANT v. JENNEDA MARIE KIMBLE; AND KELLY LEE KIMBLE APPELLEES and KIMBERLY DAWN FELLER APPELLANT v. JASON SCOTT THOMAS APPELLEE and KIMBERLY DAWN FELLER APPELLANT v. KENNETH WAYNE ELLINGTON APPELLEE
BRIEFS FOR APPELLANT: Kelly Kirby Ridings London, Kentucky BRIEFS FOR APPELLEES JENNEDA MARIE KIMBLE, KELLY LEE KIMBLE, AND JASON SCOTT THOMAS: Douglas G. Benge London, Kentucky BRIEF FOR KENNETH WAYNE ELLINGTON: James D. Hodge London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RALPH MCCLANAHAN, JUDGE
ACTION NO. 13-CI-00787 APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RALPH MCCLANAHAN, JUDGE
ACTION NO. 13-CI-00662 APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RALPH MCCLANAHAN, JUDGE
ACTION NO. 14-CI-00245 OPINION
AFFIRMING
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BEFORE: CLAYTON, JONES, AND NICKELL, JUDGES. JONES, JUDGE: This is a combined action wherein the Appellant, Kimberly Feller, ("Mother"), appeals the orders of the Laurel Family Court regarding custody and visitation of her five minor children. After extensive review of the record, we cannot conclude that the trial court abused its discretion. Therefore, for the reasons more fully explained below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother has five biological children.
The oldest child, Child 1, was born in March of 2004. The next child, Child 2, was born in September of 2005. Lloyd Davis is the biological father of Child 1 and Child 2. While Mr. Davis was served with process, he has not participated in this case in any form.
The middle child, Child 3, was born in June of 2008. Child 3's biological father, Frank Coulter, is deceased.
Jenneda Kimble and Kelly Kimble ("the Kimbles") have had custody of Child 1, Child 2, and Child 3 since November of 2012. The Kimbles are not blood relatives of these children. They are the mother and the step-father of Jason Thomas, the biological father of Mother's youngest child. Mr. Thomas was previously married to Mother.
The fourth child, Child 4, was born in November of 2009. Child 4's biological father is Kenneth Ellington. Mr. Ellington obtained temporary custody of Child 4 in April of 2013 and permanent custody in March of 2014.
The fifth child, Child 5, was born in August of 2013. Jason Thomas is Child 5's biological father. Mr. Thomas obtained physical custody of Child 5 through a relative placement by the Cabinet for Health and Family Services, Department for Community Based Services ("the Cabinet") in September of 2013; he was awarded temporary custody by the Laurel Family Court in March of 2014.
In July of 2012, the Cabinet opened a case against Mother after it received a report that Mother had abused the four oldest children (the youngest child had not been born at this time). A juvenile dependency, neglect and abuse ("DNA") petition was subsequently filed. At this time, the four minor children were removed from Mother's custody.
The children were initially placed with Mother's family members, but those family members returned custody of the children to the Cabinet. The four children were then placed with the Kimbles in November of 2012. The three older children have remained with the Kimbles since that time. Child 4's biological father, Mr. Ellington, obtained temporary custody of Child 4 in April of 2013 and permanent custody in March of 2014.
Mother was indicted on September 21, 2012, by the Laurel County Grand Jury, on four counts of Abuse 1st Degree (KRS 508.100) and two counts of Assault 4th Degree (KRS 508.030). On January 28, 2013, Mother pleaded guilty to the amended charges of Criminal Abuse 2nd Degree (KRS 508.110), was sentenced to five (5) years and granted a pre-trial diversion, diverted for ten (10) years with supervised probation. She was also ordered not to have contact with Child 1, Child 2, or Child 3. On a plea of guilty to Assault 4th Degree (KRS 508.030), Mother was sentenced to twelve (12) months in jail, which was probated for twenty-four (24) months.
Kentucky Revised Statutes
The indictment names Child 1, Child 2, Child 3, and Child 4 as victims.
The no contact order was later lifted.
Child 5 was born in August of 2013. Thereafter, on September 23, 2013, a DNA petition was filed in the Laure1 Family Court, on behalf and in the interest of Child 5. Therein, it was alleged that Child 5 was at risk of harm due to the fact that Mother's other children had been removed from her care for physical abuse. As part of the DNA proceeding, Mr. Thomas, Child 5's father, was granted emergency custody. Following a hearing, Mr. Thomas was awarded temporary custody with Mother to have visitation with Child 5 at least six (6) hours, two (2) times a week, with Mother's sister, April Downy, to supervise the visitation. Mother was eventually allowed to have some unsupervised visitation with Child 5.
In June of 2014, almost two years after the abuse investigation originated, the Family Court allowed Mother to also have supervised visits with the four older children.
On March 18, 2015, the family court held a final adjudication hearing to address custody and visitation for all five children. This hearing and the court's subsequent orders are the subject of this appeal.
Prior to the start of the hearing, the court met with all counsel in chambers and advised that the court had reviewed the entirety of the sealed juvenile actions as well as Mother's criminal file. The court informed counsel that it would take judicial notice of the juvenile and criminal matters pursuant to KRE 201(b).
Kentucky Rules of Evidence.
At the hearing several witnesses were called including seven social workers, four counselors, and a psychologist. Social worker Tammy Grimes testified that the children should not be reunited with Mother. She explained that Mother had not completed the recommended treatment plan developed to address various concerns with Mother's mental health. Social worker Melanie Daniels testified that the four oldest children's behaviors are consistent with traumatic events they have experienced while in Mother's care.
Ms. Daniels did not offer any testimony related to the youngest child.
School counselor Virginia Wade is an employee of Comprehensive Care. She holds a Master's Degree in psychology. Ms. Wade testified that she diagnosed the older four children with severe Post-Traumatic Stress Disorder ("PTSD") as a result of Mother's abusive conduct. She recommended that the children should not visit with Mother and that they should have no contact with her due to their anxiety returning and reminders of what they have been through.
She also did not offer any opinion as to the youngest child.
Charlie Yonts, a twenty-year employee of Comprehensive Care who holds a Master's Degree in clinical psychology, testified on behalf of Mother. He testified that the Cabinet requested an evaluation and treatment plan for Mother, as related to Child 5. Mr. Yonts testified that he met with Mother eight times, which covered thirteen and a half hours. Mr. Yonts testified that he was not aware of Mother's criminal abuse regarding her other children. However, he stated if that information was in his notes he would have reviewed it. Mr. Yonts opined that Mother had completed enough training to re-obtain custody of Child 5. Although Mr. Yonts testified positively in favor of Mother, he could not give any guarantee that abuse by Mother would not re-occur.
Mother also testified at the hearing. When she was asked about the incident with the four older children that led to her criminal conviction, her response was that, "She had no memory of the abuse," with her explanation being that she may have "blocked the memory of it because of guilt." When asked, "Do you think your children suffer from PTSD?", Mother's response was, "Not as much as they are claiming." Mother further testified that if she was not awarded custody of the children, she wanted them to be placed in foster care. Mother also testified that she was suffering from depression, which was diagnosed in 2012. She testified that she had received two years of counseling for that condition, but is no longer taking any medication or receiving any services for it.
At the conclusion of the hearing, the trial court directed the guardian ad litem ("GAL") for the children, Eric Edwards, to file a written report detailing his recommendations. Mr. Edwards filed his written report on March 30, 2015. Following the consolidated hearing and Mr. Edwards' submission of his report, the trial court entered a separate order for each of the three actions. The trial court's orders denied Mother's request for custody of the five children.
Mother then filed a Motion to Alter, Amend or Vacate and a Motion for More Specific Findings for each action, alleging, among other things, that the trial court should not have relied on the GAL's report. The trial court denied Mother's requests for a new hearing but sustained her motions under CR 59.01 and 59.05 and entered an amended order in each action. The trial court's amended orders reached the same outcome, but did so without reference to the GAL's report.
Kentucky Rules of Civil Procedure.
The order involving the Kimbles' custody of Child 1, Child 2, and Child 3 was entered on August 11, 2015; the order involving Mr. Ellington's custody of Child 4 and Mr. Thomas's custody of Child 5 were each entered on August 21, 2015.
The trial court determined that the Kimbles qualified as de facto custodians of Child 1, Child 2, and Child 3 because they had been the primary caregivers and financial supporters of these children since November 2012 when the children were placed in their care. Based on the testimony presented, the trial court found that all three children suffered from PTSD as a result of Mother's criminal actions toward them. It then concluded the awarding the Kimbles permanent custody would be in the children's best interests. The trial court denied Mother's request for visitation with the children on the ground that visitation with Mother would seriously endanger the children's physical, mental and emotional health.
The trial court denied Mother's request for custody of Child 4 on the basis that she had not presented any evidence that the child's father, Mr. Ellington, was a physical or emotional danger to the child. As such, the trial court concluded that Mother failed to meet her burden of proof in regards to changing custody within the two (2) year time period since Mr. Ellington received permanent custody in March of 2014. The trial court further found that Child 4 suffered from PTSD and visitation with Mother would seriously endanger the child's physical, mental and emotional health.
Lastly, the trial court considered the youngest child. The trial court noted that there was no evidence presented that Child 5 suffers from PTSD. Nevertheless, the court determined that it was in Child 5's best interest to remain in the custody of his father, Mr. Thomas. In so concluding, the trial court considered that Mr. Thomas' mother and step-father, the Kimbles, have custody of Child 1, Child 2, and Child 3, and live in close proximity to Mr. Thomas. While the trial court refused to grant custody of Child 5 to Mother, it did conclude that there was no evidence to support that visitation with Mother would be harmful to Child 5, and therefore, ordered that Mother was entitled to reasonable supervised visitation in accordance with the court's standard parenting time guidelines.
This appeal by Mother followed.
II. STANDARD OF REVIEW
The standard of review for any custody determination is well-established:
Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court's decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate
court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005)).
III. ANALYSIS
A. Guardian Ad Litem
Mother's first assignment of error concerns the role the GAL played at the hearing. Mother contends that the trial court erred because it allowed Mr. Edwards to function as both counsel and a friend of the court.
The role of a GAL and a friend of the court are quite different. A GAL functions as an attorney advocating for a party and a friend of the court advises the court. See Morgan v. Getter, 441 S.W.3d 94, 119 (Ky. 2014). In Morgan, the Kentucky Supreme Court clarified the roles of each in relation to custody proceedings:
[T]he guardian ad litem should not be confused with the de facto friend of the court. Whereas the friend of the court investigates, reports, and makes custodial recommendations on behalf of the court, and is subject to cross-examination, the guardian ad litem is a lawyer for the child, counseling the child and representing him or her in the course of proceedings by, among other things, engaging in discovery, in motion practice, and in presentation of the case at the final hearing. The guardian ad litem neither testifies (by filing a report or otherwise) nor is subject to cross-examination.Morgan, 441 S.W.3d at 119. Additionally, the Court concluded, however, that if a trial court relies on a GAL report, due process demands that the other parties must be afforded an opportunity to question/cross-examine the GAL. Id.
Mr. Edwards actively participated in the hearing as counsel for the children - he met with other counsel and the judge in chambers prior to the hearing, he approached the bench during bench conferences, and he cross-examined witnesses, including Mother. At the conclusion of the hearing, the court issued a written bench order directing Mr. Edwards to file a written report detailing his observations and recommendations by March 30, 2015. At the direction of the trial court, he submitted a written report. The report contained specific findings and recommendations regarding custody and visitation of the minor children. The written report indicates that Mr. Edwards interviewed witnesses, including the custodians and children as well as the social workers.
The trial court's original orders explicitly relied on the report Mr. Edwards filed after the hearing. In response to Mother's CR 59.01/CR 59.05 motion, the trial court issued amended orders removing any reference to the GAL report filed by Mr. Edwards. Mother argues that although the trial court re-worded its orders as to not specifically cite the GAL report, it is clear from the prior orders that the trial court did, in fact, rely on the GAL as a fact and/or expert witness.
As a procedural matter, Mother should have objected when the trial court ordered the GAL to file a report. This would have allowed the trial court to clarify whether it was seeking to have the GAL file an argumentative brief based on the evidence presented at the hearing (which is permissible) or was seeking to have the GAL to include evidence or offer opinions outside the confines of the adversarial hearing. At the very least, Mother should have objected when the GAL filed the report containing what she believed to be objectionable material. Therefore, as a practical matter, we do not believe Mother properly preserved this argument.
Even so, the trial court corrected any error by issuing new orders that omitted any reference to the GAL's report. The trial court's amended orders are supported by the testimony of the witnesses at the hearing as well as the material of which the court took judicial notice. Therefore, any error with respect to the GAL report was harmless. See CR 61.01.
B. Custody and Visitation as Related to Child 5
Mother argues that the trial court erred in awarding sole custody of Child 5 to his father, Mr. Thomas, because the evidence did not support the conclusion that this arrangement was in Child 5's best interest. KRS 403.270(1) requires a trial court to "determine custody in accordance with the best interests of the child" and to give "equal consideration" to each parent. In making this determination, the court shall consider all relevant factors, including: (a) the wishes of the child's parents; (b) the wishes of the child; (c) the interaction and interrelationship of the child with his parents, siblings, and any other persons 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; and (f) information, records, and evidence of domestic violence.
Mother does not offer any arguments as to the best interest determinations of custody with respect to the other children. --------
A review of the trial court's order convinces us that the trial court properly considered the enumerated factors. The trial court specifically considered that Child 5 had been in his Father's custody for a substantial period of his life with only visitation with Mother. Additionally, the trial court took into account Mother's unresolved mental health issues, current criminal status, past conduct, and the various other individuals that would be impacted by this decision. Since Mother was not allowed visitation with the older children, allowing Child 5 to remain in Father's custody would provide Child 5 with the opportunity for greater familial relations with his half-siblings, three of whom live in close proximity to Child 5's father. Under these circumstances, we cannot conclude that the trial court erred in granting sole custody of Child 5 to Mr. Thomas.
Next, Mother argues that the trial court erred by allowing her to have only supervised visitation with Child 5 because no evidence was presented that Mother had ever abused him. However, there was ample evidence that Mother had failed to properly address the circumstances that led her to abuse the four older children. There was certainly a risk that these factors might result in harm to Child 5 if Mother was allowed unsupervised visitation with him. "A judge is not required to wait until the children have already been harmed before he can give consideration to the conduct causing the harm." Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). Additionally, Mr. Thomas testified that on several occasion when Mother was allowed unsupervised visitation, she refused to return the child. On one occasion, Mr. Thomas testified that Mother was to have a weekend visit with Child 5, but refused to return him for over two weeks. In light of the circumstances of this case, we cannot say that the trial court acted unreasonably in awarding only supervised visitation.
C. Visitation with Older Children
Mother's next assignment of error relates to the trial court's decision to refuse her request for visitation with the four older children.
"A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health." KRS 403.320(1). What constitutes "reasonable visitation" is a matter which must be decided based upon the circumstances of each parent and the children. Drury v. Drury, 32 S.W.3d 521, 524 (Ky. 2000). An appellate court will only reverse a trial court's decision regarding visitation if it constitutes a manifest abuse of discretion or was clearly erroneous in light of the facts and circumstances of the case. Id.
The trial court's decision to deny Mother's request for visitation with the four older children was based primarily on its findings that these children suffered from PTSD as a result of Mother's past acts of abuse. Mother argues that the trial court based its findings of PTSD on the unqualified, improper opinion testimony of the numerous social workers who testified at the final hearing.
At the hearing Ms. Grimes and Ms. Daniels both gave opinion testimony that the children would suffer emotionally if they were to see their mother. Mother argues that these opinions and recommendations dealt with mental and emotional health issues, which Mother argues the social workers are not qualified to offer.
At the hearing, Ms. Grimes testified that she believed the children would be in danger if returned to Mother or if Mother was given unsupervised contact with the children. Similarly, Ms. Daniels was asked if she believed having visitation with Mother would have an impact on the children. Ms. Daniels offered that the children's behaviors were consistent with traumatic events that they had experienced.
Mother argues that, as social workers, Ms. Grimes' and Ms. Daniels' opinions cannot relate to the psychological analysis of the Mother or the children. Mother argues their opinions should have been limited by KRE 702 because mental health is a specialized field requiring particular training and education - all of which Mother argues Ms. Grimes and Ms. Daniels lacked.
We agree that Ms. Grimes, in her capacity as a social worker, does not have the proper credentials to provide a mental health diagnosis. However, Ms. Grimes' testimony was not offered as expert testimony to establish that Mother suffers from a mental health disorder. Rather, Ms. Grimes testified that Mother had not followed through with the steps requested by the Cabinet to receive proper diagnosis and treatment.
Additionally, opinions and conclusions of social workers are admissible insofar as their opinions are based upon their training and regularly relied upon in furtherance of their statutory duty in carrying out the position of a social worker for children. The testimony relied on by the trial court was confined to areas within the province of these witnesses as social workers. While at times, their testimony may have strayed, we are not convinced that the trial court actually relied on any improper evidence in reaching its ultimate decision.
Mother also asserts that substantial evidence does not support the trial court's decision because it is based on hearsay testimony from various social workers who worked with the children. While some matters the social workers testified about may have constituted impermissible hearsay, such as diary entries by one of the children, we are confident that the findings made by the trial court with respect to the children's fear of Mother are supported by proper testimony based on the social worker's actual observations of the children during supervised visits.
Further, while we agree that under Prater v. Cabinet for Human Res., Com. of Ky., 954 S.W.2d 954, 958 (Ky. 1997), there is no recognized exception to the hearsay rule for social workers or the results of their investigations, we find that Prater is not controlling of the facts herein. In R.C. v. Commonwealth, 101 S.W.3d 897 (Ky. 2002), this Court held that the child's out-of-court statements to a social worker were clearly hearsay when offered to prove allegations of abuse raised in an abuse/neglect/dependency petition under KRS 620.070. Here, however, the controlling issue is custody of the minor children under KRS 403.270(2), and whether visitation would endanger seriously the children's physical, mental, moral, or emotional health under KRS 403.320(1). The trial court correctly concluded that the statements at issue were not being offered to prove the truth of past abuse, but rather to explain why the social workers concluded that visitation with Mother was negatively impacting children.
Additionally, Mother objects to testimony offered by Virginia Wade. Ms. Wade testified as to comments made by the children during their counseling with her. The trial court found that the testimony was not hearsay as Ms. Wade had been treating the children. KRE 803(4) permits the admission of "[s]tatements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis."
Ms. Wade testified that the children made statements to her about the situation that caused their removal from Mother and testified about their nightmares and behavior outbursts. Ms. Wade is a behavioral specialist who develops coping mechanisms for children. Statements made to a therapist in the course of treatment, and used by the therapist to determine what happened to the child and what treatment is appropriate, are admissible pursuant to KRE 803(4). Cabinet for Health and Family Servs. v. A.G.G., 190 S.W.3d 338, 343 (Ky.2006). The children were taken to Ms. Wade to develop coping mechanisms for them. Ms. Wade had to receive a history from the children regarding what happened before providing them treatment. Therefore, the trial court did not commit reversible error in admitting this evidence.
Finally, Mother argues that there was evidence that the Kimbles committed abuse that could have caused the children in their care to suffer PTSD. However, this evidence was far from compelling. Ms. Kimble testified that on one occasion out of frustration she spanked one of the children with a belt. There was no further evidence offered by Mother that this incident caused the children to fear Ms. Kimble or react negatively to being in her home. The evidence did not compel a finding that Ms. Kimble's actions caused the children's PTSD.
Paramount to the trial court's decision is that the four older children were victims of a crime of which Mother was the perpetrator. Substantial evidence supported the trial court's conclusion that visitation would seriously endanger the children's mental, physical, and emotional health. Testimony revealed that the children experience severe stress because of Mother's actions and fear what she would do to them if they returned to her care. Mother's own testimony revealed that she believes the children are overplaying their condition. Substantial evidence supports the trial court's conclusion that further visitation with Mother would cause substantial harm to the older four children.
IV. CONCLUSION
Mother remains in the same household where the abuse of the four older children occurred. She is still working the same job as she was at that time. Mother failed to offer any real evidence as to how she would prevent reoccurrence of her previous abusive behavior if any or all of these children were returned to her care. Mother testified herself that she was diagnosed with depression in 2012 and received two years of counseling but is no longer taking medication or receiving treatment for such issues. Additionally, Mother's own testimony reflected her inability to fully accept responsibility for her actions. She also downplayed the severity of the children's stress, refusing to fully acknowledge the impact of her past behavior.
While we agree that the limitations on Mother's visitation with her children are severe, we cannot disagree with them. The trial court's custody and visitation rulings are based on the court's judicial notice of Mother's prior criminal and civil actions regarding her children and the testimony of several witnesses, including Mother, at the adjudication hearing. The trial court noted that Mother's criminal abuse of her minor children was paramount to its decision. Although Mother makes several claims of error, we cannot find that any of them amount to an abuse of discretion by the court. To the contrary, a review of the trial court's amended orders reveals that the findings and conclusions made by the trial court are properly supported by competent, admissible, and substantial evidence. Mother has not presented us with any valid basis for reversal. For these reasons, we affirm the Laurel Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Kelly Kirby Ridings
London, Kentucky BRIEFS FOR APPELLEES
JENNEDA MARIE KIMBLE,
KELLY LEE KIMBLE, AND JASON
SCOTT THOMAS: Douglas G. Benge
London, Kentucky BRIEF FOR KENNETH WAYNE
ELLINGTON: James D. Hodge
London, Kentucky