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Kruger v. Hamm

Court of Appeals of Kentucky

May 10, 2019



          BRIEFS FOR APPELLANT: Dodd Dixon Winchester, Kentucky

          BRIEF FOR APPELLEES: Jason Rapp Lexington, Kentucky



          ACREE, JUDGE:

         Brittney[1] Kruger (Mother) appeals the Montgomery Circuit Court's Findings of Fact, Conclusions of Law and Judgment of December 12, 2017, as amended by Order entered March 23, 2018, granting joint custody to Mother and Jim and Jeanette Hamm (the Hamms). She argues the circuit court's judgment is erroneous because: (1) the Hamms were not de facto custodians; (2) Mother did not waive her parental rights; (3) Mother is not, and the circuit court did not find her to be, unfit; and (4) when nothing in the record supported these findings, the court misapplied judicial estoppel as a substitute. We agree and vacate the judgment, as amended, that granted the Hamms custodial rights.


         Mother gave birth to S.K. (Daughter) on October 14, 2014. At the time of Daughter's birth, Mother was twenty-one years old, already the mother of a two-year-old son (Son) and living with her mother and stepfather. She has been consistently employed during all relevant times, but her employers and schedules varied. She struggled as a young, single mother and did not have the help of Daughter's father, William Hawkins (Father), who was incarcerated. Consequently, Mother had difficulty paying bills, caring for her children, and arranging child care to suit her work schedule.

         Before Daughter was born, Mother developed a friendship with her mother's neighbors, the Hamms. Early into the pregnancy, Mother's stepfather asked Mother and Son to leave his home; they moved in with the Hamms for about a week. (Jeanette Hamm testimony, Video Transcript (VT) 09/06/2017; 11:41:00 - 11:41:30). The Hamms were empty-nesters and discussed the possibility of adopting Daughter. They even met with an attorney about adoption. But, as Mr. Hamm was about to write a check to secure the attorney's services, "Jim said, 'Instead of us adopting [Daughter], why don't we help, help you take care of [Daughter] and be a better mother?'" (Id. at 11:43:45 - 11:45:00). Mother apparently agreed to the Hamms' proposal. Even so, before the child was born, Mother moved back in with her mother and stepfather.

         When Daughter was born, Mother took the child home to her mother and stepfather's house. That lasted about a week and a half before Mother's stepfather again kicked Mother, Son, and Daughter out of his house "because he couldn't stand the crying, could not stand [Son] touching his stuff . . . and she come to live with us [the Hamms]." (Id. at 11:51:04 - 11:51:54). Thereafter, Mother did secure an apartment. However, by Jeanette's testimony, Mother was at the Hamms' residence "every other day," i.e., every second day, at least until the filing of the petition in this case. (Id. at 11:53:45 - 11:54:20).

         Mother returned to work soon after Daughter's birth. The parties' friendship continued to blossom for a time. Mother considered the Hamms babysitters or caregivers - a view she maintained throughout these proceedings. The relationship between the Hamms and the single Mother seemed symbiotic.

         Daughter began spending more and more time with the Hamms and spending the nights. Concern arose that circumstances might necessitate documentation giving some authority to the Hamms to have Daughter with them when Mother was not there. Jim Hamm paid attorney Richard Kenniston $1, 000 to assist them with this simple legal task.

         At the evidentiary hearing finally conducted, the Hamms asked attorney Kenniston, "Was it your recollection that the Mother wanted to give them [the Hamms] legal status so that they could, could take the child to the doctor and do these other things that they would need to do since the child was living with them?"; he responded, "That was my understanding, yes." (Richard Kenniston testimony, VT 05/10/2017; 2:47:22 - 2:47:39). That is what Mother also testified was her conversation with Kenniston - that she needed something that would authorize the Hamms to take Daughter to the emergency room or pick her up at school. (Mother's testimony, VT 09/07/2017; 11:24:18 - 11:25:15). Kenniston did not tell her a power of attorney would satisfy that need, but he said joint custody would. (Id. at 11:25:10 - 11:25:50).

         Kenniston prepared a "Petition for Custody" naming Mother and the Hamms as joint petitioners, and naming Father as respondent.[2] The attorney apparently failed to see any potential for conflict between a young biological mother and the older couple who paid him as there is no evidence of a conflict letter or written consent by anyone. SCR[3] 3.130, RPC[4] Rule 3.130(1.7)(b)(4).

         Kenniston filed the petition on August 17, 2015. Daughter was 22-months old. The petition begins traditionally enough with "Comes now the Petitioner, BRITTANY KRUGER, by and through counsel," but then says "for his cause of action, states the following: . . ." (R. 1 (emphasis added)). Then, it again identifies Mother as "Petitioner" (singular) and Father as "Respondent." It states Daughter is Mother's biological child, an averment establishing Mother's standing to claim custody, and that Daughter lives with Mother. (Id.).

         Then the petition becomes more unconventional. The third paragraph lists nonparents Jim and Jeanette Hamm as "Petitioners" (plural) without any explanation why they have standing to be petitioners or why they have any legal right to claim custody. The petition states simply that the Hamms "are the fit and proper persons to have joint care, custody and control of the child . . . ." (R. 1-2).

         A few days after this petition initiated the action, attorney Kenniston filed a motion for temporary custody in favor of Mother and the Hamms and against Father. (R. 4). Father, who was still incarcerated, had not yet been served properly, had not been established in this action as the father, [5] and had not been appointed a guardian ad litem as required by CR[6] 17.04.

         The affidavit supporting that motion is more than unconventional. After identifying a single "Petitioner" as not just Mother, but also Jim and Jeanette Hamm, the affidavit becomes illogical. This affidavit had all three swear to the truth of the following statement: "We am the Petitioner in the above-styled action and the father of one minor child born to the parties, [Daughter], age 1 years. . . . It is in the best interest of the minor child that we have sole custody." (R. 6). We call this affidavit illogical because, grammar aside, we are confident that none of the three affiants is the father, that a child was not born to the three parties, and we are at a loss as to how sole custody can be granted to three people.

         When the motion for temporary custody was heard, Father did not appear, nor was he otherwise properly before the court. On the strength of the unusual affidavit, the circuit court ordered that "Petitioners Brittney Kruger and the Hamms are awarded temporary custody of the minor child . . . ." (R. 13).

         A few months later, Kenniston moved for a default judgment against Father and for another custody order in favor of the Hamms and Mother. (R. 16). A few months after that, the circuit court entertained the motion. In a January 2016 "Order for Temporary Custody," the circuit court ordered only that "petitioners Brittney Kruger and Jim and Jeanette Hamm are awarded joint custody of [Daughter because] this is in the best interest of [Daughter]." (R. 19). The order does not include a default judgment, per se, against Father.

         Before Kenniston was indefinitely suspended from the practice of law on unrelated matters, Kentucky Bar Association v. Kenniston, 547 S.W.3d 520, 522 (Ky. 2018), his joint representation of Mother and the Hamms came to an end. The Hamms were exercising increased control over Daughter. In June 2016, Mother used a form she acquired from the court clerk's office to file a pro se "Motion for Review of Child Custody." Her motion identified Jim and Jeanette Hamm as "the opposing party[.]" (R. 23). The handwritten motion gave the following account of the reasons Mother asked for the circuit court's review of the custody arrangement (conventional capitalization was added in transcribing):

I have temporary custody of minor child with the opposing party, [Daughter], Age 2, [address same as Kruger]. I need the court to review the custody arrangements for the following reasons: [Daughter]'s biological father has been absent from her life. I asked Jim and Jeanette to watch my children while I worked long hours, and they wanted to help me. And being a single mother with no help of family members or child support, I was very appreciative. Not only have they helped me with my daughter but they have helped me before as well. I provided for my kids well and they always had what they needed I thought. I trusted these people. I remember the day I asked them about doing this whole joint custody, because I was so excited how close we were and how happy me, [Son], and [Daughter] were. I wanted them to be able to help me take [Daughter] to the doctor and help me in general, and watch her grow up. Because yes I do work a lot and I just wanted to make sure my little girl is taken care of. On June 16th 2016, I didn't know that would be the last day of seeing my daughter. The story behind this, I had a cook-out the same day, same evening, my friend Kory was over to see me. He messaged me on Facebook weeks ago asking about [Daughter] and informed me he may be the father. I didn't agree with him and said her father is in jail. Kory asked me to do a home DNA test. I knew he wasn't the father but to assure him I agreed to take it anyway. So I had this cook out, Jeanette and all the girls she had with her, me and Kory, and my kids were there. After we ate Jim showed up and left with Jeanette and [Daughter] to the park down the road. They came back but remained outside, I came out and seen Jim taking [Daughter] to his truck, I asked Jeanette to tell him to bring her back. I told Jim she would be part of this DNA test and he was fine with that. I also mentioned she was staying the night with me. He was okay with that and left. He came back and knocked on the door and said "Don't you think we should transition this slowly[?]" I was upset about the way he said that and I said "you babysit her while I work night shift, I shouldn't have to do anything because she is my daughter and you're her babysitter!!" He took [Daughter] from where she was in my living room, and walked off really fast to his truck, he didn't even have a carseat so I called the police but they took off. The police showed up and said there was nothing they could do because it was a temp custody Agreement. They left and came back and said there was a report of Alcohol use and hurting my child. They investigated and it was all unfounded. I've had social workers in my home and it was the same report but again I've done nothing wrong. The people I thought I trusted have not only made false accusations about me but today its June 22 2016, a week I haven't seen my daughter the most miserable days of my life. I have begged Jim and Jeanette via phone call, text, facebook everyday to just let me know how shes doing at least and they ignore/block me. I seen my daughter everyday my son has been asking about her and its really tore this family apart. I have begged to work things out with them just so I could see my daughter, they won't talk to me at all and right now I'm concerned for the safety of my child, I can't sleep at night and I feel like I made a mistake doing this. I ask the judge to please look into my case and I would like to terminate this order. I have tried to work things out with the Hamm's, they won't respond. They are not thinking about [Daughter], they are trying to take her away from her mother.

(R. 22-29 (some pages are out of sequence in the record)).

         Mother asked that her motion be heard on July 6, 2016. In response, the Hamms hired new counsel who entered an appearance and moved to continue the hearing until July 29. Simultaneously, counsel filed a "Verified Response; Motion to Enter Permanent Custody Order" in favor of the Hamms, but with only supervised visitation for Mother. (R. 35-43).

         The hearing on Mother's motion was postponed until September 2, 2016. By then, there were anonymous complaints to the Cabinet for Health and Family Services about Mother and her care of her children. The circuit court ordered the Cabinet for Families and Children "to provide all records concerning [Mother] . . . ." (R. 65). The Cabinet was never a party to this action.

         Despite representations of the Hamms' counsel in open court, the Cabinet's records showed each of the complaints were unsubstantiated.[7]Furthermore, medical records provided to the circuit court contradicted the Hamms' representations that Mother did not accompany Daughter to the doctor. Those records show Mother was present at most, if not all, doctor visits; none show her absent. (Mother's Exhibit 6 (filed under seal)).

         Prior to the hearing on her pro se motion, Mother was able to secure her own counsel who responded to the Hamms' motion for permanent custody stating, in pertinent part:

Jim Hamm and Jeanette Hamm have no biological relationship with [Mother or Daughter]
. . . .
The Hamms paid for and employed attorney Kenniston to file the Petition for Custody. [Mother] was not advised of the legal ramification of doing so.
. . . .
At no time did this Court make a specific finding by clear and convincing evidence that Jim Hamm and Jeanette Hamm were de facto custodians of [Daughter] . . .
The Hamms were not standing in the place of the biological parent . . . [and] the Hamms acknowledge that [Daughter] resided with [Mother] . . . .
Due to her age and pressure and influence exerted by the Hamms, [Mother] commenced this action without the full understanding of the ramifications of the legal consequences for doing so.
[Mother] . . . believed that this action would facilitate the providing of child care services by the Hamms while she was at work and allow the Hamms to obtain medical treatment for the child in the event of an emergency.
The Hamms have engaged in a pattern of conduct to deprive [Mother] of her fundamental constitutional right to parent her child.
The Hamms have engaged in a pattern of conduct to deprive [Mother] from exercising custody [and have] unilaterally taken custody of [Daughter] . . . .
The Hamms are not de facto custodians . . . .
[Mother] has not waived her superior right to custody.

(R. 67-69). Mother then demanded the Hamms' motion for permanent custody be denied, that the petition be dismissed for lack of standing, and that Mother be awarded "the immediate and sole care, custody and control of the minor child[.]" (R. 70).

         The Hamms responded by claiming Mother "waived any right she may have had to object to the HAMMS [capitalization in original] as joint custodians. . . . It is clear on the face of the pleadings that the Court should enter a joint custody Decree and enter appropriate timesharing for the minor child for the mother." (R. 73). They also claimed they were "in fact de facto custodians" and claimed the right to custody "under the doctrine of waiver." (R. 74). The Hamms' demand for relief sought "an Order, consistent with the mother's initial request, that they be made joint custodian of said minor child, and that visits with the mother should be limited to supervised contact for two nights a week for no more than an hour per time." (R. 77). They also "believe that the mother should subject herself to a psychological evaluation and a parenting assessment to determine what level of contact she should have with this child, and to determine whether she should have possession of her old child."[8] (R. 77).

         When these arguments of counsel were heard, there was some question regarding the need to take proof. During that discussion, the following conversation occurred, revealing the general legal beliefs of counsel and the court:

Counsel for Mother: If we need to schedule a hearing that's fine but I would petition the court: (1) to entertain my motion to dismiss them [the Hamms] as parties; (2) that they [the Hamms] need to prove themselves by clear and convincing evidence that they are "de facto custodians" before they even can petition the court.
Court: Well, they're original parties to this action.
Counsel for Hamms: That's right, Your Honor. They did a joint petition with the Mother.
Court: Which is the origination of this action so that seems to take it out of the de facto - that was kind of, I guess - whether there's an agreement or whatever. . . .
Counsel for Hamms: . . . If you place a child with somebody and act as if they're the parent, caselaw in Kentucky says you are then estopped from ...

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