BRANDON COLLINS v. TANGENA MARIE BLEVINS
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RENDERED:
SEPTEMBER 23, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
2004-CA-001341-ME
AND
2004-CA-001474-ME
BRANDON COLLINS
v.
APPELLANT/CROSS-APPELLEE
APPEAL FROM MARTIN FAMILY COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 04-CI-00047
TANGENA MARIE BLEVINS
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE. 1
EMBERTON, SENIOR JUDGE:
This is an appeal from an order of the
Martin Family Court dismissing a motion filed by Brandon Collins
seeking custody of E.C., born on February 14, 2002.
We agree
with the court that Brandon failed to establish his status as a
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
de facto custodian and lacks standing to bring the custody
action. 2
Tangena Blevins is E.C.’s natural mother.
After
numerous acts of physical and emotional violence by her former
husband, Ray Collins, E.C. was removed from the home by the
Department for Community Based Services.
A juvenile dependency,
abuse and neglect action was initiated, and on June 25, 2003,
E.C. was placed with Brandon who is also the son of Ray Collins.
Tangena attended all required parenting classes,
obtained a domestic violence awareness certificate, and
completed counseling and supportive services with the University
of Kentucky’s Targeted Assessment Program, Mountain
Comprehensive Care, and the Layne House.
As a result of her
progress, the department recommended that E.C. be returned to
Tangena at a review hearing scheduled for February 9, 2004.
On
February 16, 2004, less than eight months after receiving
placement of E.C., Brandon filed a petition for custody.
The de facto custodian statute states in relevant part
as follows:
(1)(a) As used in this chapter and KRS
405.020, unless the context requires
otherwise, “de facto custodian” means a
person who has been shown by clear and
convincing evidence to have been the primary
caregiver for, and financial supporter of, a
child who has resided with the person for a
2
Tangena filed a cross-appeal but has not raised any issue on appeal
requesting reversal of the court’s order.
-2-
period of six (6) months or more if the
child is under three (3) years of age and
for a period of one(1) year or more if the
child is three (3) years of age or older or
has been placed by the Department for
Community Based Services. Any period of
time after a legal proceeding has been
commenced by a parent seeking to regain
custody of the child shall not be included
in determining whether the child has resided
with the person for the required minimum
period. 3
At the time the petition for custody was filed, E.C. resided
with Brandon for less than one year; Brandon contends, however,
that there is no required time the child must reside with a nonparent asserting de facto custodian status if the child is
placed by the department.
When construing any statute, the court is bound to use
several rules of construction as a guide to ascertain the
legislature’s intent.
The best way in most cases to ascertain
such intent or to determine the meaning of a
statute is to look to the language used, but
no intention must be read into the statute
not justified by the language. The primary
rule is to ascertain the intention from the
words employed in enacting the statute and
not to guess what the Legislature may have
intended but did not express. Resort must
be had first to the words, which are
decisive if they are clear. The words of
the statute are to be given their usual,
ordinary, and everyday meaning. 4
3
KRS 403.270(1)(a).
4
Gateway Construction Company v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)
(citations omitted).
-3-
The plain language of the de facto custodian statute is contrary
to the position taken by Brandon.
It requires that if the child
has been placed by the department, the person seeking de facto
custodian status must be the primary caregiver and the primary
financial supporter of the child for a period of more than one
year. 5
It was the obvious intent of the legislature to allow the
department time to resolve the family issues with the ultimate
goal of reunification before permitting a non-parent to seek
custody of a placed child.
The order dismissing the petition for custody is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Cumbo
Inez, Kentucky
Sherry Bruckner
Lana Gresham
Appalachian Research & Defense
Fund of Kentucky, Inc.
Prestonsburg, Kentucky
5
See Swiss v. Cabinet for Families and Children, 43 S.W.3d 796 (Ky.App.
2001).
-4-
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