SMITH (AMANDA), ET AL. VS. YOUNGER (THERESA), ET AL.
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RENDERED: JULY 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001581-ME
AMANDA SMITH AND
MICHAEL SMITH
v.
APPELLANTS
APPEAL FROM CAMPBELL FAMILY COURT
HONORABLE D. MICHAEL FOELLGER, JUDGE
ACTION NO. 05-J-00013
THERESA YOUNGER AND
D.B., A JUVENILE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND STUMBO, JUDGES; WHITE,1 SENIOR JUDGE.
WHITE, SENIOR JUDGE: This appeal concerns the custody of a minor child,
Son. Father and paternal Grandmother appeal from a Campbell Family Court
order, entered on July 20, 2009, designating maternal Grandmother as the de facto
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Senior Judge Edwin M. White 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.
custodian of Son. Father and paternal Grandmother claim that on appeal that
maternal Grandmother was not the sole “primary caregiver” and was, thus,
erroneously designated as a de facto custodian. After a careful review of the briefs
and record, we conclude that sufficient evidence existed to support the trial court’s
conclusion. Therefore, we affirm the Campbell Family Court order.
Father and Mother are the natural parents of Son. On January 11,
2005, Son was removed from his parents’ custody based upon their individual drug
addictions and inability to care for him. On January 25, 2005, the Campbell
Family Court awarded temporary joint custody of Son to paternal Grandmother
and maternal Grandmother. In June 2006, paternal Grandmother suffered serious
health problems which rendered her unable to care for Son. Thereafter, Son began
residing primarily with his maternal Grandmother.
In March 2009, Father and paternal Grandmother petitioned the court
to reinstate Father’s custody rights. On April 22, 2009, maternal Grandmother
moved to be designated as Son’s de facto custodian. On May 15, 2009, Mother
moved the court to grant her joint custody of Son to be shared with maternal
Grandmother.
On April 24, 2009, the court heard Father and Mother’s motions but
did not rule on the motions immediately. On May 29, 2009, the court heard
maternal Grandmother’s motion to be designated as Son’s de facto custodian.
During the hearing, maternal Grandmother testified that she was the
primary custodian of Son. She testified that she bought his clothes, assured that he
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went to school, oversaw his medical treatment, and provided him with a place to
live. Maternal Grandmother admitted that Mother provides substantial child care
for Son. However, she claimed that Mother did not live in her home and only
acted as an assistant in Son’s care.
In her testimony, Mother also claimed that she did not live with
maternal Grandmother and Son. Instead, Mother claimed that she went to maternal
Grandmother’s house to get Son ready for school and would stay there for the
entire day. Mother testified that she helped Son with his homework, bathed him,
read to him, and dressed him for bed each night. Mother also testified that she
cared for Son on the weekends and took him to his basketball games. She claimed
that she performed these tasks every day for a period of three years and claimed to
be Son’s primary caregiver. Maternal Grandmother denied that Mother cared for
Son daily.
On July 20, 2009, the Campbell Family Court issued a handwritten
note on a docket sheet designating maternal Grandmother as Son’s de facto
custodian. The order provided:
Court finds that [maternal Grandmother] qualifies as “de
facto” custodian pursuant to KRS 403.270. Continue
joint custody with [maternal Grandmother] and [paternal
Grandmother], with [maternal Grandmother] as primary
residential custodian.
This appeal follows from that designation and does not involve the court’s ruling
on any other motions filed by the parties.
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KRS 403.270 provides a basis for de facto custodianship in Kentucky.
The statute provides in pertinent part:
(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 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
Social 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 matter that is given to each parent
under this section and KRS 403.280, KRS 403.340,
403.350, 403.420, and 405.020.
Acting within its vast discretion to weigh the evidence, the court
found that maternal Grandmother met the de facto custodial requirements.
A family court operating as finder of fact has extremely
broad discretion with respect to testimony presented, and
may choose to believe or disbelieve any part of it. A
family court is entitled to make its own decision
regarding the demeanor and truthfulness of witnesses,
and a reviewing court is not permitted to substitute its
judgment for that of the family court, unless its findings
are clearly erroneous.
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Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007). Although the court’s
findings are sparse at best, no party moved for more specific findings pursuant to
Kentucky Rules of Civil Procedure (CR) 52.04. Therefore, we shall review the
order despite its lack of findings.
A family court’s decision must remain intact absent an abuse of
discretion. Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). “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.” Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky. App. 2002) (overruled on
other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008)) (internal
quotations omitted).
While we recognize that KRS 403.270 requires that a nonparent be the
primary caregiver and not simply a primary caregiver, we conclude that sufficient
evidence existed that indicates that maternal Grandmother was the primary
caregiver. See Boone v. Ballinger, 228 S.W.3d 1, 8 (Ky. App. 2007). Maternal
Grandmother bought Son’s necessities, assured that Son went to school, oversaw
his medical needs, and provided him with care. Admittedly, Mother often cared
for Son. However, testimony indicated that she did not live in the home and any
care that she gave was subject to the approval and delegation of maternal
Grandmother. Mother could be most adequately described as an assistant or
secondary caregiver. The family court was in the best position to observe and
draw conclusions from the evidence presented. Our review indicates that ample
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evidence existed in the record to support the family court’s determination that
maternal Grandmother was the primary caregiver. We conclude that the decision
was reasonable and sound.
Further, we must note that maternal Grandmother is not required to
prove that she is a de facto custodian in order to have standing in custody
proceedings, under Williams v. Bittel, 299 S.W.3d 284 (Ky. App. 2009). In
Williams, our Court concluded that a custodian must not continuously maintain the
threshold required to be designated as a de facto custodian in order to maintain
standing in custody proceedings. Id. at 288. The fact cannot be ignored that the
maternal Grandmother had custody of the child pursuant to a valid court order.
Maternal Grandmother and paternal Grandmother rescued this child.
The Cabinet for Families and Children approved the placement. The biological
parents acknowledged that could not they care for the child. To jerk the rug from
under this child now could be devastating. Finding sufficient evidence in the
record to support the trial court’s conclusion, we affirm the Campbell Family Court
order allowing the maternal Grandmother standing in custody matters as a de facto
custodian.
STUMBO, JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS.
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BRIEF FOR APPELLANT,
MICHAEL SMITH:
BRIEF FOR APPELLEE, THERESA
YOUNGER:
Derek R. Durbin
Newport, Kentucky
William H. Van Herp
Villa Hills, Kentucky
BRIEF FOR APPELLANT,
AMANDA SMITH:
Rene Heinrich
Newport, Kentucky
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