FROM MONTGOMERY CIRCUIT COURT HONORABLE WILLIAM E. LANE,
JUDGE ACTION NO. 15-CI-00150
FOR APPELLANT: Dodd Dixon Winchester, Kentucky
FOR APPELLEES: Jason Rapp Lexington, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
Brittney 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
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
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.
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).
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
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.
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).
prepared a "Petition for Custody" naming Mother and
the Hamms as joint petitioners, and naming Father as
respondent. 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.
3.130, RPC Rule 3.130(1.7)(b)(4).
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
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.
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,
had not been appointed a guardian ad litem as required by
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
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).
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
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)).
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).
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.
representations of the Hamms' counsel in open court, the
Cabinet's records showed each of the complaints were
unsubstantiated.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
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
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).
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." (R. 77).
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 ...