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RENDERED: AUGUST 3, 2012; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-001789-ME BRIAN ALAN KROPP APPELLANT

v.

APPEAL FROM FLEMING CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NO. 04-CI-00015

JUANNA K. KROPP

APPELLEE

OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. MOORE, JUDGE: Brian Kropp appeals the order of the Fleming Family Court denying his motion to be appointed primary residential parent of the parties' two minor children. After reviewing the record, we reverse and remand.

At the outset, we note that Juanna has not filed a brief with this Court. Thus, pursuant to CR1 76.12(8)(c)(i), we will accept Brian's statement of the facts and issues as correct. Brian and Juanna have joint custody with Juanna designated as primary residential parent. Thus, the children reside with Juanna in Kentucky during the school year and with Brian in Florida during holidays and summers. Brian sought to modify the parties' visitation schedule after learning that the children had been removed from Juanna's custody because Juanna had given birth to a severely chemically-dependent child. Brian was not notified that the children had been removed for some time because the children were mistakenly thought to be the biological children of Patrick Church, Juanna's current husband. Brian ultimately learned of the children's removal from the children's school principal. Consequently, Juanna's parents, David and Jo Ellen Clark, were granted temporary custody of the children by the Bath District Court. At the time of the hearing, it appears that the temporary custody order in favor of the Clarks had been rescinded, subject to "restrictions on contact," although the substance of those restrictions is not discernable from the record before us. The testimony elicited at the August 10, 2011 hearing on Brian's motion reflected that, although at that time Juanna appeared to be in compliance with the plan set forth by the Cabinet, Juanna was addicted to prescription painkillers and that she and her husband Patrick Church traveled to Florida to
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Kentucky Rule of Civil Procedure.

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obtain these medications. There were also allegations of drug use made against Brian. However, the caseworker conducted a background check regarding those allegations and, with the exception of one drug test that revealed marijuana use, found no record of criminal history. The caseworker also noted that a complaint had been filed against Brian with Florida child welfare authorities, but was found to be unsubstantiated. It was also elicited at the hearing that Juanna had previously been charged with disorderly conduct, unlawful transaction with a minor,2 failure of non-owner/operator to maintain insurance, failure to license/register her vehicle, and had a history of domestic violence with Patrick. Juanna's history of substance abuse issues spans a period of several years and continued until at least a few months prior to this matter being heard by the family court when she gave birth to a severely chemically-dependent baby. Both of the children presently at issue were well aware of their mother's substance abuse issues. During an in-chambers interview with the Judge conducted as part of the hearing, they gave details about either seeing their mother crushing pills and snorting them through a "broken" ink pen or describing how she stored her drugs in her pillowcase. And, in addition to Juanna, the Clarks have allowed other family members with substance abuse issues to reside in their home. Additionally, Patrick, the children's step-father, also has an extensive criminal record, which, in addition to the aforementioned domestic violence issues,
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This charge was ultimately dismissed.

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includes careless driving, multiple counts of driving on a suspended license, disorderly conduct, multiple DUI's, operating on a DUI suspended license, possession of an open container, multiple counts of possession of a controlled substance, endangerment of the welfare of a minor, wanton endangerment II, theft by unlawful taking, alcohol intoxication, and violations of an EPO/DVO on behalf of Juanna and the children. He had also been charged with giving false information to a police officer, which coincidentally involved informing police officers that his name was Brian Kropp. Juanna indicated that she now has very limited contact with Patrick. However, the children indicated that they had been to visit Patrick just a few weeks prior to the hearing.3 The children's school principal testified that the children had poor attendance when they were in the care of their mother and that they had each missed nineteen to twenty days of class during the 2009 school year. The children had attended four different elementary schools in the past three years and often moved in the middle of the school year. The principal also indicated that the children were often hungry at school and had at times requested to take leftover snacks home with them. The children were placed on a program that allowed them to take home non-perishable foods over the weekend. She described the children as being "sluggish" and "sad," and noted that she never observed them smile except when they saw Brian. The principal indicated that Brian was very involved with the children, despite the fact that he lived in Florida. There was also
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At the time of the hearing, Patrick was incarcerated.

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testimony elicited at the hearing that Brian's other children who currently reside with him in Florida have good attendance records and grades and are involved in extra-curricular activities. The children's school counselor indicated in her deposition that Juanna did not always transport the children to school. The children would regularly stay with babysitters and relatives for extended periods of time, during which time Juanna would sometimes travel to Florida for "work." Multiple parties, whose relationship to the children is unknown, were permitted to pick up the children from school. However, despite the parties' joint custody arrangement, Juanna indicated that Brian was not permitted to pick the children up from school. The children expressed concerns regarding Patrick and Brian's wife Patsy. They indicated that Juanna was much better when Patrick was not around. When asked if they felt safe with their mother, the children indicated that they felt safe with her when one of their grandparents was present. However, the children indicated that they felt safe with their father without qualification. Both expressed a preference to spend time with each of their parents. There was also a great deal of testimony regarding telephonic visitation with the children. Juanna expressed that she had extreme difficulty contacting the children while they were in Florida with Brian. The children also indicated that they did not speak with Juanna often while in Florida. The parties strongly disagree as to the reason that telephonic visitation was limited. The family court noted that it was "not confident that telephone contact with [Juanna] -5-

would be allowed if the children were relocated to Florida" and that it did not find "this conduct to be appropriate given that dual parental involvement in the upbringing of a child is an important fact as well as a significant and unique aspect of the joint custody designation." The family court concluded that because of the lack of telephonic visitation with the children while in Florida, the wishes of the children, and the children's ties to school, family, and friends, it was in the children's best interest to remain in Kentucky and for Juanna to remain primary residential parent. However, the family court "recognize[d] that [Juanna] has a significant drug problem, which she is addressing through treatment" and determined that Juanna must continue to reside with the Clarks in order to remain primary residential custodian. The court further ordered that "[a] responsible adult besides [Juanna] shall be with the children at all times." Brian contends that the family court's decision was erroneous. We agree. Modification of visitation, such as the designation of a primary residential parent, is governed by the children's best interest. Pennington v. Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008); KRS 403.320(3). The best interest of the children may be different in each case; therefore, that determination is left within the sound discretion of the family court. See id. Thus, we review the family court's decision for clear error and an abuse of discretion. Id.; CR 52.01.

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And, as an aside, we note that "Kentucky's appellate courts have recognized not only that the parents of a child have a statutorily granted superior right to its care and custody, but also that parents have fundamental, basic and constitutionally protected rights to raise their own children." Moore v. Asente, 110 S.W.3d 336, 358 (Ky. 2003) (internal citations and quotations marks omitted). The Kentucky Supreme Court has unequivocally stated that, absent additional factors, a parent's right to the care and control of his children is superior to that of a grandparent: "the `best interests of the child' standard does not apply in deciding custody between a parent and a non-parent, albeit a grandparent; [and] KRS 405.020(1) and a trilogy of cases from the Court recognize a parent's superior right to obtain custody of the child vis-

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