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Garvin v. Krieger

Court of Appeals of Kentucky

February 23, 2018

TAMARA D. GARVIN APPELLANT
v.
DONNA KRIEGER; TERRY GARVIN; ASHLEY GARVIN; AND KURT KNIFKE APPELLEES AND ASHLEY GARVIN APPELLANT
v.
DONNA KRIEGER; TERRY GARVIN; TAMARA GARVIN; AND KURT KNIFKE APPELLEES

         APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION THREE HONORABLE DEBORAH DEWEESE, JUDGE ACTION NO. 14-CI-503666

          BRIEFS FOR APPELLANT, TAMARA D. GARVIN: Ray H. Stoess, Jr. Louisville, Kentucky

          BRIEFS FOR APPELLANT, ASHLEY GARVIN: Ashley Garvin, Pro Se Louisville, Kentucky

          BRIEFS FOR APPELLEES, TERRY GARVIN AND DONNA KRIEGER: Jacqueline M. Caldwell Louisville, Kentucky

          BEFORE: JONES, D. LAMBERT, AND TAYLOR, JUDGES.

          OPINION

          TAYLOR, JUDGE.

         Tamara D. Garvin brings Appeal No. 2015-CA-001819-ME from Findings of Fact, Conclusions of Law and Order of the Jefferson Circuit Court, Family Court Division, (family court) entered September 10, 2015, declaring Terry Garvin and Donna Krieger de facto custodians of K.R.K. and awarding them sole permanent custody of the minor child. Ashley Garvin brings Appeal No. 2015-CA-001820-ME from the same order. We reverse and remand Appeal No. 2015-CA-001819-ME and Appeal No. 2015-CA-001820-ME.

         Ashley Garvin is the adult daughter of Terry Garvin and Tamara D. Garvin. Terry and Tamara are divorced. Ashley had two sons with Joseph Miller; the first son was born in 2008, and the second son was born in 2010. Joseph had custody of the two boys, and Ashley exercised visitation/time-sharing. In March of 2013, the Cabinet for Health and Family Services (Cabinet) received a referral alleging that Ashley was abusing substances while her two sons were in her care. Dependency, abuse and neglect petitions (Action Nos. 13-J-502383-001 and 13-J-502384-001) were filed in the family court on May 9, 2013. It was alleged that Ashley's eldest son reported to a Cabinet worker that Ashley and her boyfriend argued over selling pills, there was very little food in the house, and that he would have bug bites on him when he visited. Ashley's visitation with her sons was subsequently suspended by the family court. In an attempt to regain visitation, Ashley was working with the Cabinet on a case plan that included drug and alcohol screens.

         On August 29, 2013, Ashley gave birth to a third child, a daughter, K.R.K. The putative father of K.R.K. was Ashley's boyfriend, Kurt Knifke. On April 30, 2014, a dependency, neglect and abuse petition (Action No. 14-J-502179-1) was filed in the Jefferson Family Court as to K.R.K. In the petition, it was alleged that Ashley had a positive alcohol screen, a positive drug screen, and was not compliant with the Cabinet's previous case plan or the family court orders emanating from the actions involving her two sons. A temporary removal hearing was conducted. By order entered May 8, 2014, temporary custody of K.R.K. was granted to Terry Garvin, K.R.K.'s maternal grandfather, and Donna Krieger, Terry's girlfriend. On June 19, 2014, Ashley stipulated that K.R.K. was at risk of abuse or neglect, and temporary custody was ordered to remain with Terry and Donna.

         On November 26, 2014, Tamara Garvin, the maternal grandmother of K.R.K., filed an action (Action No. 14-CI-503666) in the Jefferson Family Court seeking custody of K.R.K. or in the alternative, grandparent visitation. Tamara named as respondents Ashley Garvin (mother of K.R.K.), Kurt Knifke (putative father of K.R.K.), Terry Wayne Garvin (maternal grandfather of K.R.K.), and Donna Krieger (Terry's girlfriend).[1] Tamara alleged that Terry and Donna had initially agreed to allow K.R.K. to visit with Tamara but were no longer cooperating. Tamara explained that she exercised grandparent visitation with Ashley's two sons through an agreement with their father and wanted K.R.K. to visit on the same weekends. As Terry and Donna did not have contact with Ashley's two sons, Tamara wanted to ensure that the three siblings could maintain contact by visiting at her home.

         On December 17, 2014, Terry and Donna responded to Tamara's petition and also filed a cross-petition seeking a declaration that they were de facto custodians of K.R.K. Ashley also responded to Tamara's petition. In her response, Ashley stated that until she could regain custody of K.R.K. she believed it was in K.R.K.'s best interest that temporary custody be granted to Tamara.

         On June 23, 2015, the family court conducted a trial on the pending issues relating to the custody of K.R.K. as well as Tamara's petition for grandparent visitation. Several witnesses testified at trial, in addition to the parties.

         By Findings of Fact, Conclusions of Law, and Order entered September 10, 2015, Terry and Donna were adjudged de facto custodians of K.R.K. and were awarded sole permanent custody. Tamara was awarded grandparent visitation with K.R.K. pursuant to Kentucky Revised Statutes (KRS) 405.021. The order was amended by the family court on October 27, 2015.[2]These appeals follow. Tamara brings Appeal No. 2015-CA-001819-ME and Ashley brings Appeal No. 2015-CA-001820-ME.

         STANDARD ...


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