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RENDERED: JULY 18, 2008; 2:00 P.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2006-CA-001763-MR KENNETH HORN AND DEBRA HORN APPELLANTS

v.

APPEAL FROM HANCOCK CIRCUIT COURT HONORABLE RONNIE C. DORTCH, JUDGE ACTION NO. 03-CI-00077 APPELLEES

THOMAS COPPAGE AND CAROL COPPAGE

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE, CAPERTON AND MOORE, JUDGES. CAPERTON, JUDGE: Kenneth and Debra Horn appeal an order of the Hancock Circuit Court that adopted the recommendations of the Domestic Relations Commissioner (DRC). The order denied the Horns custody of their grandchildren and restored custody to the parents, Thomas and Carol Coppage. On appeal the Horns argue that the award of custody back to the parents constitutes clear error based on the preponderance of the evidence. They also argue that the findings of

fact by the DRC, as adopted by the circuit court, were contrary to the evidence and, therefore, clear error. Based upon a review of the record, we find no error and accordingly affirm the Honorable Ronnie C. Dortch, Judge, Hancock Circuit Court. The Coppages have four children. The Cabinet for Families and Children removed the four minors from their parents on April 23, 2003, and April 25, 2003, and placed them with their grandparents, the Horns. The removal occurred after bruises appeared on the eldest child, L.C. The Horns argue that the children were abused and thus custody should be awarded to them. The Coppages argue that the children were not abused and custody was properly returned to them. Both sides argue various parts of the record in support of their claims. The record clearly supports that L.C. suffers from a multitude of behavioral problems and did indeed display bruising prior to the removal. The court was faced with three different explanations for the bruising; one, that the child self inflicted the injury; two, that L.C. suffers from Von Willebrand disease which makes him more susceptible to bruising; three, that the child was abused. Contrary to the Horns beliefs,1 there is not an overwhelming amount of evidence to support their argument that L.C. was abused.

1

The Horns claim that the findings of facts were clearly erroneous because their witnesses were professionals, with "no axe to grind", and they could not all be wrong. However, the record shows that the professionals often based their opinions on what either the Horns or L.C. told them. The trial court was free to believe or disbelieve any portion of their testimony. See Bailey v. Bailey, 231 S.W.3d 793 (Ky. App. 2007).

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In awarding custody back to the parents, the court cited seventeen hours of hearing records, juvenile court records, medical records, and testimony from witnesses. The court found the evidence did not rise to the level of clear and convincing that the Coppages were unfit parents. The court properly concluded that the standard for determining custody of the children as between the grandparents, as a third party, and the parents is the same as the standard for termination of parental rights, i.e., that the parents must be found unfit by clear and convincing evidence. See Davis v. Collingsworth, 771 S.W.2d 329, 330 (Ky. 1989). On appeal, this Court will not disturb the trial court's findings of fact unless clearly erroneous. "Findings of fact are not clearly erroneous if supported by substantial evidence." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky.App.1999). "The test for substantiality of evidence is whether when taken alone, or in the light of all the evidence, it has sufficient probative value to induce conviction in the minds of reasonable men." Id., citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972). The deference given to the trial court as fact finder is merited since the trial court is in the best position to evaluate the weight and credibility of the evidence; consequently, this Court will not substitute its judgment absent clear error. CR 52.01; Bickel v. Bickel, 95 S.W.3d 928 (Ky. 2002); Perrine v. Christine, 833 S.W.2d 825, 827 (Ky. 1992). As stated in Sherfey v. Sherfey, 74 S.W.3d 777 (Ky. App. 2002),

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After a trial court makes the required findings of fact, it must then apply the law to those facts. The resulting custody award as determined by the trial court will not be disturbed unless it constitutes an abuse of discretion. Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision. The exercise of discretion must be legally sound. Id. at 783 (internal citations omitted). The Horns first claim error by arguing that the findings of fact, when read in the light of all the evidence, are so lacking that they amount to clear error and, therefore, awarding custody back to the Coppages amounted to an abuse of discretion. We disagree. There was substantial evidence in the record upon which the trial court could base its decision. In fact, the trial record was replete with controverted facts and testimony on the issues. Thus, the findings of the trial court were not clearly erroneous. Therefore, the trial court's award of custody to the Coppages, as parents, was not an abuse of discretion. The Horns next claim as error that the court substantially misstated the evidence in its findings of fact. The Horns argue that the trial court erroneously found that "[a]t the grandmother's insistence, the Ohio Cabinet for Families and Children removed the children...". The Horns argue that since the Cabinet, on its own initiative, removed the children,2 the children were abused. We disagree.

2

There is no citation to the record to the exact statement given by the social worker that the Cabinet, without any insistence from the grandmother, removed the children.

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There is substantial evidence in the record to support a finding that the grandmother had called social services numerous occasions leading to investigations which resulted in unsubstantiated claims. This likely led the trial court to find that the grandmother insisted on the removal of the children in the current case. Appellants use the removal of the children by social services as a spring board to conclude that the children were abused. We hasten to opine that mere removal of children by social workers does not establish abuse; if it did, then a subsequent trial before a court would be superfluous and a waste of time for all concerned. "Abuse" is a legal term, defined in KRS 600.020, and a determination for our courts to make at trial based upon the evidence. Seldom does it matter who prompted social services to appear at the door. We find that, in this case, the trial court addressing the issue of who might have prompted the removal of the children, if error, is collateral to the issue of abuse and harmless. The Horns also argue that the trial court erred in the finding that L.C.'s bruising was the result of Von Willebrand disease because such finding was unsupported by the record. While the Horns did present testimony that L.C. was taken to the emergency room to be tested for the disease, there is controverted evidence as to whether L.C. was diagnosed with the disease or, for that matter, even tested for it. Further, there was testimony that L.C. did have Von Willebrand's disease. The trial court is free to choose the facts which it believes and will not be overturned unless clearly erroneous. CR 52.01 and Bailey v.

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Bailey, 231 S.W.3d 793 (Ky.App.2007). Based on the record, this finding of fact by the trial court is not clearly erroneous. Lastly, the Horns argue that the trial court failed to make a finding when the Coppages moved for a directed verdict. The court found evidence of physical injury based on the photographs of L.C. and that a witness, Paul Owens, expressed an opinion that emotional abuse was inflicted on L.C. The Horns argue that the trial court erred by not making a finding, when overruling the Coppages motion for directed verdict, that L.C. was abused. We disagree. In ruling on a motion for a directed verdict, "the trial court must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable [inference] that the evidence can justify." Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991). A directed verdict must not be entered "unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985). "On appeal, the appellate court considers the evidence in the same light." Lovins at 922. But, "[o]nce the issue is squarely presented to the trial judge, who heard and considered the evidence, a reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous." Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998). Further, to be successful on appeal, the party claiming an omission of an essential finding of fact

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must have brought the omission to the attention of the trial court. See Vinson v. Sorrell, 136 S.W.3d 465(Ky. 2004). There are many findings a court can make when ruling on any motion. The motion for directed verdict merely requires a court to review the case pursuant to the standards set forth above. If the Horns felt aggrieved by a failure of the court to make a necessary finding, they should have moved the trial court to make such a finding. Appellants' failure to so move is not the error of the trial court. We disagree with the Horns that the failure of the trial court to make a finding in favor of the Horns when denying the Coppages motion for a directed verdict amounted to clear error. Finding no error, we affirm the Hon. Ronnie C. Dortch, Judge, Hancock Circuit Court. ALL CONCUR.

BRIEF FOR APPELLANT: Carol Y. Boling Lewisport, Kentucky

BRIEF FOR APPELLEE: Cher R. Eaves Hartford, Kentucky

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