Family Law

Miller v. Harris, 2009-CA-002330-ME & 2009-CA-002415-ME

Published: Affirming

County:  Marion

    Maternal grandmother of two minor children appealed circuit court?s award of custody of the children to great uncle and aunt, and from order denying her motion for a new trial but modifying the custody order to incorporate requested findings of fact.

    At the time of her death in an automobile accident in 2006, Phyllis Coffee had two minor children, a daughter, S.R.S. born in 2003, and a son, T.P.S. born in 2001.  The father of the children is an Indiana resident and has not asserted parental rights.

    S.R.S. was a ?crack baby,? removed from her mother shortly after birth and spent her first year with relatives including Appellees.  Miller was not involved in child?s life.  S.R.S. was returned to her mother, but was removed again in September, 2005.  The Harrises were awarded temporary custody for about 8 months, during which time Miller did not attempt to contact the child.

    When the mother was killed, the Harrises petitioned Marion Circuit Court for custody of S.R.S.  T.P.S. was in someone else?s care.  In February, 2007, however, temporary custody of both children was awarded to the mother?s twin sister, Debra Penick, and 2 months later, she was awarded permanent custody.

    Penick, a single mother with two children of her own, was unable to care for the children.  Without court approval, she took the children to Indiana in July, 2008 and gave physical custody of them to her mother, the children?s maternal grandmother, Shelby Miller.  A court in Jennings, Indiana named Miller the children?s guardian.

    In August, 2008 the Harrises moved Marion Circuit Court to modify custody and set a visitation schedule.  The Marion Court ordered Penick to return the children to Campbellsville, Kentucky, enroll them in local schools, and make them available for visitation with the Harrises.  Another order was entered four days later stating Miller had refused to release the children and requesting assistance from Indiana law enforcement to return the children to Kentucky.  The Order stated that if Miller refused to cooperate, she would be arrested for custodial interference.

    On September 23, 2008, an Indiana court issued an Order on Miller?s motion to terminate the Harrises? visitation.  The court acknowledged giving Miller guardianship of the children in July, 2008 but declined to exercise further jurisdiction.

    In November, 2008 Miller filed an intervening petition in Marion Circuit Court seeking custody.  In February, 2009 the Marion Court ordered weekly telephone contact with the Harrises and visitation one weekend each month.  In May, 2009, Miller was held in contempt for willfully violating this Order and an arrest warrant was issued.  The Harrises sought enforcement of their visitation rights in Marion Circuit Court and Miller sought termination of their visitation in Indiana.  The Indiana court denied Miller?s petition to terminate the Harrises visitation because of her failure to appear in Marion Circuit Court on May 4, 2009.

    On July 30, 2009 there was a custody hearing in Marion Circuit Court and on October 22, 2009 the court entered findings of fact, conclusions of law and judgment.  On Miller?s motion, the judgment was amended to incorporate additional findings of fact, but her motion for a new trial was denied.  Her appeal followed.

    When the choice of custodian is between non-parents, Kentucky courts seek the result that is in the child?s best interests.  The trial court considered all relevant factors, not just those enumerated in KRS 403.270(2), and concluded it was in the best interest of S.R.S. and T.P.S. to be in sole custody of Harrises with Miller having reasonable visitation.

    Miller was a 60 year old resident of public housing who has not held a job in two decades and relies on SSI, Medicaid and food stamps.  She is single, but has been married and divorced four times.  When she divorced the father of her four children, he received custody of all four.  She has a long history of substance abuse convictions, as well as a trafficking conviction and theft by deception.  She is in poor health and suffers from numerous ailments, including hypertension, diabetes and arthritis.  She repeatedly violated court orders with respect to the Harrises? contact with the children and refused to return them to Kentucky when ordered to do so.

    The Harrises have been married over 50 years and own the home they have lived in 38 years.  They are both retired and draw about $2700 Social Security and pension benefits.  Neither has any criminal record and no history of illegal drug or alcohol use.

    The Court of Appeals found the trial court?s award of custody to the Harrises was fully supported by the record and there was no abuse of discretion.  Miller argued on appeal that the trial court should have interviewed the children, but the Court of appeals said such an interview was discretionary and found no abuse of discretion.  Miller asserted that the court gave insufficient weight to her testimony about the period the children lived with her in Indiana, but the Court of Appeals noted that the trial court is in the best position to weigh the credibility of witnesses.  Miller complained that the trial court considered her history of drug abuse.  The Court of Appeals noted that substance abuse was particularly relevant in this case because S.R.S. was born a crack baby, her mother had substance abuse issues and Miller had a record of criminal drug convictions.  The trial court did not err in considering her criminal record.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates