HUDSON (LIZZIE KAY) VS. NOT BE PUBLISHED HUDSON (CLARINDA)
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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NOT TO BE PUBLISHED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-002150-ME
LIZZIE KAY HUDSON
v.
APPELLANT
APPEAL FROM BREATHITT FAMILY COURT
HONORABLE LARRY W. MILLER, JUDGE
ACTION NO. 04-J-00129
CLARINDA HUDSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND KELLER, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
KELLER, JUDGE: Lizzie Kay Hudson (Lizzie) appeals from the family court’s
finding that she was not a de facto custodian of her niece, T.L.H. On appeal,
Lizzie argues that the family court erred when it considered Social Security
benefits paid on behalf of T.L.H. in determining that Lizzie had not been the
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
primary financial supporter of T.L.H. Having reviewed the record and the
arguments of counsel, we affirm.
FACTS
T.L.H. was born November 1, 2003. In November 2004 T.L.H.’s
mother placed T.L.H. with Lizzie, T.L.H.’s paternal aunt by marriage, and Lizzie’s
husband, Reed. In February 2005, Lizzie was granted permanent custody of
T.L.H. In 2005, T.L.H.’s father, who was also Reed’s brother, died. Thereafter,
T.L.H. began receiving Social Security benefits in the amount of $1,208.00 per
month from her father’s account. In 2008, Reed died.
On July 13, 2009, the Cabinet for Health and Family Services (the
Cabinet) received allegations that a man living with Lizzie and T.L.H., Russell
Perry (Perry), had inappropriately touched T.L.H. During her investigation of
those allegations, Cabinet worker Lisa White (White) discovered that another
Cabinet worker and the Kentucky State Police were investigating other unrelated
allegations of sexual abuse against Perry. White contacted Lizzie about the
allegations involving T.L.H. and Perry and interviewed her on September 11,
2009. Lizzie stated that Perry was moving from the home and that she would not
permit Perry to have any further contact with T.L.H. Less than two weeks later,
White received information from several sources that Perry continued to live in the
home. White, on behalf of the Cabinet, filed a petition asking the family court to
determine that T.L.H. was dependent and neglected because Lizzie had put her at
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risk for sexual abuse.2 The family court entered an emergency custody order
placing T.L.H. with her paternal grandmother, Clarinda Hudson (Clarinda), and
granting Lizzie supervised visitation. Lizzie then filed a motion seeking a
determination that she was a de facto custodian of T.L.H.
The family court held a hearing on Lizzie’s motion on October 28,
2009. During that hearing, Lizzie testified that, if she had to, she could provide for
T.L.H.’s shelter, clothing, and food with $200.00 per month. However, she
actually spends $500.00 to $600.00 per month. In the event T.L.H.’s Social
Security benefits do not cover her expenses, Lizzie pays the additional amount.
Following the hearing, the family court found that Lizzie spent
$500.00 to $600.00 per month to care for T.L.H.; that T.L.H.’s mother paid $96.00
a month in child support; and that T.L.H. receives $1,208.00 per month in Social
Security benefits. Based on these findings, the family court determined that Lizzie
was not T.L.H.’s primary financial supporter and therefore, could not be T.L.H.’s
de facto custodian. It is from this order that Lizzie appeals.
STANDARD OF REVIEW
This appeal presents mixed issues of fact and law. We may not
disturb the family court’s factual findings unless those findings are clearly
erroneous. A finding of fact is only clearly erroneous if it is not supported by
2
We note that, because she failed to follow the plan implemented by the Cabinet, Lizzie
ultimately made an admission that T.L.H. was a dependent child under Kentucky Revised Statute
(KRS) 600.020(19). The family court entered an order consistent with this admission and T.L.H.
was removed from Lizzie’s home.
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“evidence sufficient to induce conviction in the mind of a reasonable person.”
B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005). However, we review the
family court’s interpretation of the law de novo. Smith v. Smith, 235 S.W.3d 1, 6-7
(Ky. App. 2006). With these standards in mind, we address the issue raised by
Lizzie on appeal.
ANALYSIS
KRS 403.270 provides that a de facto custodian is:
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 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.
There is no dispute that Lizzie was T.L.H.’s primary caregiver for
more than one year. Thus, Lizzie met the first requirement to be declared T.L.H.’s
de facto custodian. However, the parties dispute whether Lizzie was the primary
financial supporter of T.L.H. As noted above, the family court found that the
combined child support and Social Security benefits of $1,306.00 Lizzie received
on behalf of T.L.H. were more than sufficient to meet T.L.H.’s monthly expenses
of $500.00 to $600.00 per month. Lizzie argues that she spent $500.00 to $600.00
per month of her own money to care for T.L.H. However, that was not Lizzie’s
testimony, and after reviewing the record, we conclude that the family court’s
findings of fact regarding T.L.H.’s income and needs and Lizzie’s expenditures are
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supported by substantial evidence and are not clearly erroneous. Therefore, we
affirm the family court’s findings regarding those facts.
Having accepted those facts as true, we must determine if the family
court correctly determined that Lizzie was not T.L.H.’s primary financial
supporter. As noted by the parties, the published case most nearly on point is
Swiss v. Cabinet for Families and Children, 43 S.W.3d 796 (Ky. App. 2001).3 In
Swiss, the child’s foster parents, the Swisses, sought to adopt the child. However,
when the child made an allegation of sexual abuse, the Cabinet removed the child
from the Swisses’ home. The Swisses then filed a petition seeking custody and
alleging that they were de facto custodians of the child. The trial court dismissed
the Swisses’ petition, finding that the Swisses lacked standing to bring the petition
and that they did not qualify as de facto custodians under KRS 403.270. As to
standing, this Court affirmed the trial court’s holding that KRS 403.270 applies
only to disputes between a parent or parents and the putative de facto custodian. It
does not apply to foster parents who have custody of the child by virtue of
placement by the Cabinet.
This Court also affirmed the trial court’s finding that the Swisses did
not qualify to be de facto custodians under the statute. In doing so, this Court first
held that the word “primary” in KRS 403.270 modifies both caregiver and
3
We note that the parties also cite to Consalvi v. Cawood, 63 S.W.3d 195 (Ky. App. 2001);
however, that case dealt with the issue of whether a step-parent could be a primary caregiver.
There is no dispute that Lizzie was the primary caregiver for T.L.H.; therefore, Consalvi is of
limited application.
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financial supporter. Therefore, a person seeking the status of de facto custodian
must establish that she was the primary financial supporter of the child. This Court
held that, because the Swisses acknowledged that the Cabinet was the primary
financial supporter of the child, the trial court correctly determined that the Swisses
could not qualify to be de facto custodians.
The Court did not address the situation herein, where the majority of
the funds to support the child come not from the Cabinet but from the Social
Security Administration. However, we believe that is a distinction without a
difference. In this case, as in Swiss, Lizzie was not the primary financial supporter
of T.L.H. T.L.H.’s primary financial supporter was, and is, the Social Security
Administration. Lizzie, like the Swisses, was merely the conduit through which
the financial support passed. Therefore, we agree with the family court’s finding
that Lizzie was not the primary financial supporter of T.L.H. and therefore not her
de facto custodian.
As to Lizzie’s argument that this holding means that no one can be
T.L.H.’s de facto custodian, we agree that may be the case. However, we note that
a different panel of this Court held in an unpublished opinion that if food stamps
and federal supplemental security income benefits are not the primary source of
support, the custodian may qualify for de facto status. See Shelton v. Shelton, 2008
WL 2696902 (Ky. App. 2008)( 2007-CA-001369-ME), which is cited for its
reasoning, not for its precedential value. Therefore, if T.L.H.’s custodian, whoever
that may be, can prove that the primary source of support is not from her Social
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Security benefits and/or child support, that custodian could qualify for de facto
status.
CONCLUSION
Because Lizzie failed to prove that she was the primary financial
supporter of T.L.H., we affirm the family court’s finding that she was not T.L.H.’s
de facto custodian.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charnel M. Burton
Booneville, Kentucky
Clyde L. Simmons
Jackson, Kentucky
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