A.R.J. VS. DONALD H.; LINDA H.; AND LISA P.
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RENDERED: SEPTEMBER 18, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002373-ME
A.R.J.
v.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CI-00162
DONALD H.; LINDA H.;
AND LISA D.
APPELLEES
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
JUDGE.
GUIDUGLI, SENIOR JUDGE: A.R.J. (Appellant) appeals from orders of the
Graves Circuit Court which found Donald H, Linda H., and Lisa D. de facto
custodians of his minor son, granted custody of the child to Donald H. and Linda
1
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
H., and ordered Appellant to pay child support. Having thoroughly reviewed this
matter, we affirm.
D.J. was born on April 12, 2006. At the time of his birth, his mother,
A.D. (Mother), was married to Joe D. However, Joe D. was not the father of the
child. Following court action concerning the child’s paternity, testing established
that Appellant was D.J.’s father. D.J. lived with Mother, Appellant, and
Appellant’s mother, Irell A. (Grandmother), for approximately five months
following his birth. Thereafter, both Mother and Appellant were incarcerated.
Prior to incarceration, Mother contacted a friend, Lisa D., to take care of D.J. if she
went to jail. Lisa D. then contacted Donald H. and Linda H. for help in caring for
D.J.
On September 13, 2006, Lisa D. filed a juvenile petition in Graves
District Court alleging that D.J. was dependent, neglected or abused, and asking
that D.J. be placed in the custody of Linda H. and herself. On that same day, the
Graves District Court entered an order granting emergency custody of D.J. to Lisa
D. and Linda H. Following a hearing in the district court, Appellant admitted the
child was dependent, Mother admitted to neglect, and the court continued custody
to Lisa D. and Linda H. on October 17, 2006. At that time, the court also
determined that Appellant had no standing as his paternity had not been
established. Finally, on January 6, 2007, DNA testing determined that Appellant
was D.J.’s father (99.99%), and thereafter the court granted Appellant visitation
with D.J.
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On March 15, 2007, Donald H., Linda H., and Lisa D. filed their
petition for de facto custody in the Graves Circuit Court. The petition alleged that
Appellant is the father of D.J., Mother is the mother, and Grandmother the paternal
grandmother.2 The petition alleged that D.J. had lived with Mother from birth until
September 7, 2006, and then with the petitioners from that date to the present
(March 15, 2007) and therefore they were his de facto custodians. The petitioners
sought to be awarded sole custody and control of D.J. and that Mother and
Appellant be ordered to pay child support, provide health insurance, and to allocate
the costs of uninsured medical expenses. Mother was incarcerated and, as such,
appointed a guardian ad litem. Mother filed an answer on April 9, 2007.
Appellant filed his response and counter-petition on April 18, 2007. He sought to
have the de facto custody petition dismissed and requested custody of his son.
Grandmother filed a response and counter-petition for custody, as well as a petition
for immediate entitlement to custody pursuant to KRS 620.100.
The parties each filed prehearing memoranda with the court as to the
issues to be addressed at the hearing on the petitions/cross-petitions and their
respective positions as to why or why not the petitioners were de facto custodians
and who should be awarded custody of D.J. On June 21, 2007, the court entered
an order which, in part, stated that:
It was stipulated that there exist[] the requisite
elements for the Petitioners to be de facto custodians
2
Grandmother was named solely because she had filed a motion in the juvenile case (06-J00220-1) seeking a modification of the temporary custody order to name herself as custodian.
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within the meaning of KRS 403.270(1)(a), excepting that
the Respondents, [Appellant and Grandmother], argue
that the request for a return of custody in the District
Court proceeding constitutes a commencement of an
action by a parent which would prohibit the running of
the period necessary for de facto custodianship.
The parties were ordered to brief this issue, and the matter was set for a final
hearing on August 21, 2007. The parties briefed this issue, and the court entered
its order on July 6, 2007. In its order, the court held that Sherfey v. Sherfey, 74
S.W.3d 777 (Ky. App. 2002) (overruled on other grounds by Benet v.
Commonwealth, 253 S.W.3d 528 (Ky. 2008)), was controlling and the petitioners
“have the standing as de facto custodians of [D.J.] within the meaning of KRS
403.270(1)(a).” The court rejected the respondents’ argument that Stiffey v. Curtis,
2004 WL 2486243 (Ky. App. Nov. 5, 2004), an unpublished opinion of this Court,
would toll the period necessary to determine de facto custodianship. In Stiffey, this
Court held that a “proceeding” is “more comprehensive than the word ‘action,’ but
it may include in its general sense all the steps taken or measures adopted in the
prosecution or defense of an action, including . . . all motions made in the action.”
Id. at *1. Based on Stiffey, the respondents had argued that their opposition to the
district court’s custody order tolled the ruling of the petitioners’ time period (6
months) before they could be declared de facto custodians. The trial court held
that Grandmother’s written motion, since she is a grandparent, “would not stop the
running of the requisite time period.” And it ruled that Appellant failed to file a
written motion, which is necessary “to toll the limitations period contained in the
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relevant statute.” Appellant filed a motion to alter, amend or vacate the court’s
order, which was denied on July 23, 2007.
A final hearing was held on August 21, 2007. Following the hearing,
the court entered its Findings of Fact, Conclusions of Law and Judgment on
August 24, 2007. The court made 27 specific findings of fact, the more relevant to
this Court’s review being the following:
20. When the child came into [Donald H. and
Linda H.’s] home, all he had was a diaper bag full of
clothes, most of which did not fit. He was in the fifth
percentile as to his body weight, and was undernourished. Presently he is just under the fiftieth
percentile.
21. [Donald H. and Linda H.’s] testimony is that
the visits have gone poorly, [D.J.] is upset, he comes
home crying, and wakes up crying after the visits. He
acts aggressive. His clothes smell of cigarette smoke.
[Donald H. and Linda H.] state that they have bagged the
clothes to preserve the smell, called the social workers,
but the social workers have not investigated further. The
Court notes that one of the conditions of the District
Court Order was that the child not be around cigarette
smoke. It is noted, however, that [Appellant] states that
no one smokes around the child, except outside the home.
22. [Donald H. and Linda H.’s] testimony was
further that [D.J.] was integrated into their family, and
related well to their children, as well as the extended
family and church. Lisa [D.] lives next door to [Donald
H. and Linda H.], and the daycare that the child attends is
attended by other relatives of the child.
23. The house where [Donald H. and Linda H.]
live appears to be adequate to house the child, as well as
the rest of the family.
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24. The social workers testified that they believe
the child should be returned to the home of the father.
However, that is the ultimate decision for the Court to
make, pursuant to KRS 403.270, and the Court believes
that the standards that the social workers were applying
related to a return of custody to a parent in dependency
proceedings.
25. In reviewing the evidence presented, it appears
that the wish of the natural mother, the crowding of the
residence where [Appellant] lives, the child’s health
issues, including the possibility of smoking around the
child (and the Court cannot say definitively that smoking
takes place around the child), the improvement in his
weight, the allegation of domestic violence by the natural
mother, the connection to the use of illicit substances by
residents of the home where [Appellant] lives, and the
recommendation of the Guardian Ad Litem, favor
[Donald H. and Linda H.] being granted custody.
26. Further, the Court considers the fact that the
child is well cared for in [Donald H. and Linda H.’s]
home. It appears to be an appropriate home. The child is
receiving care, nurture and support in a stable
environment, and appears to be adjusted to his present
home.
27. The Court has considered those applicable
factors contained in KRS 403.270(2), and it appears that
the best interest of the child would be served by granting
custody to [Donald H. and Linda H.].
Based upon its findings of fact, the court concluded that the best
interest of the child would be served by granting custody to Donald H. and Linda
H. The court then entered judgment granting Donald H. and Linda H. the care,
custody and control of D.J., setting visitation times for Appellant, and reserving on
the issues of child support and grandparent visitation. Appellant filed a motion to
alter, amend or vacate, and Donald H. and Linda H. filed motions to address child
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support and visitation. Following a hearing, the court denied Appellant’s motion
and ordered him to pay child support in the sum of $537.95 per month effective
August 24, 2007. The court also ordered specific times and imposed certain
conditions on Appellant’s visitation with D.J. On November 7, 2007, the court
entered an order amending the October 15, 2007, order to include final and
appealable language. This appeal followed.
During the pendency of this appeal, Donald H. and Linda H. filed a
motion to dismiss the appeal for failure to name indispensible parties and for being
untimely filed. Appellant filed a response, and the motion was submitted to a
motion panel of this Court. On February 11, 2008, the motion panel entered an
order on the matter. The order denied Donald H. and Linda H.’s motion to dismiss
for failing to file a timely appeal and granted Donald H. and Linda H.’s motion to
strike a portion of Appellant’s designation of record. This Court then ordered that
the Graves District Court juvenile proceedings designated by Appellant shall not
be made part of the record on appeal. And this Court determined that it was not
sufficiently advised as to the argument that Appellant had failed to name
indispensible parties to the appeal and therefore passed that portion of the motion
to the three-judge panel assigned to review the merits of the case. This panel has
reviewed Donald H. and Linda H.’s motion to dismiss for failure to name
indispensible parties and being sufficiently advised hereby denies said motion. We
will thus address the merits of the appeal.
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On appeal, Appellant sets forth three arguments but essentially argues
only one – that the trial court erred in determining that Donald H. and Linda H.
should be classified as de facto custodians. Appellant also states that the trial court
erred in granting custody to Donald H. and Linda H. and by ordering child support
and specific visitation, but these arguments related back to the court’s decision to
find Donald H. and Linda H. de facto custodians as argued in his first claim of
error.
KRS 403.270(1) addresses the de facto custodian requirements in the
following manner:
(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 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.
(b) A person shall not be a de facto custodian until a
court determines by clear and convincing evidence that
the person meets the definition of de facto custodian
established in paragraph (a) of this subsection. Once a
court determines that a person meets the definition of de
facto custodian, the court shall give the person the same
standing in custody matters that is given to each parent
under this section and KRS 403.280, 403.340, 403.350,
403.822, and 405.020.
-8-
The facts presented in this case establish that D.J. was placed with
Donald H. and Linda H. on September 7, 2006, and they filed a dependency,
neglect and abuse petition in Graves District Court on September 13, 2006.3 At
that time, emergency custody of D.J. was given to Donald H. and Linda H. The
district court found D.J. to be a dependent and neglected child on October 17,
2006. Thereafter, Appellant established his paternity of the child and entered into
an Agreed Visitation Order. On March 15, 2007, Donald H. and Linda H. filed
their petition for de facto custody. On July 6, 2007, following briefs being filed by
the parties on the issue, the court entered an order determining and ordering that
Donald H. and Linda H. “have the standing as de facto custodians of [D.J.] within
the meaning of KRS 403.270(1)(a).” According to the order, “the parties
stipulated that all elements for the existence of de facto custodianship on the part
of [Donald H. and Linda H.] existed. The time period was agreed to have been six
(6) months.”
The only issue raised before the circuit court and on appeal is whether
or not Appellant’s participation and actions in the district court case tolled the
running of the six-month period necessary for de facto custodianship. The court
relied on Sherfey v. Sherfey, supra, while Appellant argues that the unpublished
case of Stiffey v. Curtis, supra, applies. We agree with the trial court that Sherfey
is controlling on this issue.
3
As previously stated, a motion panel of this Court ruled on several motions on February 11,
2008. Specifically, the motion panel ordered that the Graves District Court juvenile proceedings
designated by Appellant shall not be a part of the record of this appeal.
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In Sherfey, the parents made a similar argument as that advanced by
Appellant – that their defense of a juvenile petition constituted a suspension of the
running of the time period necessary to become a de facto custodian. Interpreting
the language of KRS 403.270(1)(a), the Sherfey court held:
The pertinent provision of KRS 403.270(1)(a) specifies
that “[a]ny 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” [emphasis added]. We believe that this
language is clearly stated and specific in its terms. In
order to suspend a period of residency with a “de facto
custodian,” the statute sets forth two requirements. First,
the statute requires that the action be “commenced” by
the parent-not merely defended. Second, the statute
requires the court appearance to be an action in which the
parents seek to “regain custody.” From the plain
language of the statute, it is clear that Mark and Laurie
satisfied neither of these requirements. Not once during
the two years T.S. spent with his grandparents did Mark
and Laurie initiate a legal action to regain custody of T.S.
Sherfey, 74 S.W.3d at 781. This case is on point and controls the outcome of this
case. Appellant’s reliance on Stiffey is misplaced. In Stiffey, this Court stated:
Because [the natural mother] had three times (twice prior
to the Stiffeys’ petition and once while the petition was
pending) moved the family court in her dependency
action to terminate the temporary custody order and
return [her child] to her care, the trial court ruled that she
had, for the purposes of KRS 403.270, commenced legal
proceedings seeking to regain custody, and thus had
tolled the period of the Stiffeys’ care.
Id. at *1. The Court went on to confirm that Sherfey was not contrary to its
holding but “clearly distinguishable.”
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Whether we agree or not with the rationale set forth in Stiffey is not
important because we find the facts before us in this case are distinguishable from
those in Stiffey, but essentially the same as in Sherfey. Appellant took no
affirmative action to contest Donald H. and Linda H.’s custody of D.J. until after
they had filed their petition in March 2007. He had commenced no legal
proceeding as required by KRS 403.270(1)(a), which would toll the required
minimum period for a de facto custodian determination. Despite his arguments to
the contrary, the trial court did not err in relying upon Sherfey and finding that
Donald H. and Linda H. met the statutory requirements to be de facto custodians.
Appellant next argues that the court erred in determining that Donald
H. and Linda H. should be awarded the care, custody and control of D.J. His
argument basically contends that the trial court erred by determining Donald H.
and Linda H. to be de facto custodians and thus placing them on the same level as
natural parents. He contends that if the court had not made the de facto finding,
then Donald H. and Linda H. would have to prove he was either unfit or had
waived his superior right of custody of the child. We have already determined that
the trial court did not err in the de facto custodian determination and need not
address it again. Further, this Court believes that the findings of fact, conclusions
of law and judgment entered August 24, 2007, clearly complies with KRS
403.270(2). The Court’s finding that the best interest of the child would be served
by granting custody to Donald H. and Linda H. is not clearly erroneous or an abuse
of its discretion.
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Similarly, Appellant’s last argument as to child support and visitation
does not address those issues but rather continues to argue the de facto custodian
issue. Since Appellant puts forth no relevant argument as to the alleged issue,
there is nothing for this Court to address.
For the foregoing reasons, the findings of fact, conclusions of law and
judgment entered by the Graves Circuit Court on August 24, 2007, and the orders
entered October 22, 2007, and November 8, 2007, are affirmed.
ALL CONCUR.
ENTERED: September 18, 2009
/s/ Daniel T. Guidugli
SENIOR JUDGE,
COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Bethany A. Leonard
Mayfield, Kentucky
Tom Blankenship
Benton, Kentucky
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