JANICE FRANKLIN AND GLEN FRANKLIN v. TAMI SEGUIN AND BARRY FRANKLIN
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RENDERED: JULY 6, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001945-MR
JANICE FRANKLIN AND GLEN FRANKLIN
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 96-CI-01295
TAMI SEGUIN AND BARRY FRANKLIN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, SCHRODER, AND TACKETT, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment finding that
the paternal grandparents were not the de facto custodians of the
child pursuant to KRS 403.270, and that because the mother had
not relinquished her parental rights and was not an unfit parent,
she was entitled to custody of the child.
The grandparents argue
that the trial court erred in finding that they were not the de
facto custodians of the child and, thus, the best interest
standard should have been applied in determining custody.
In the
alternative, the grandparents argue that the court erred in
finding that the mother did not relinquish her parental rights
and was fit to have custody.
We adjudge that KRS 403.270(1)
should not have been retroactively applied in this case.
We
further adjudge that the trial court did not err in finding that
the mother did not relinquish her parental rights and was not an
unfit parent.
Hence, we affirm.
Alex Franklin was born out of wedlock to Tami Seguin
and Barry Franklin on September 6, 1993.
After giving birth to
Alex, Tami and Barry moved in with Barry’s parents, Jan and Glen
Franklin (the “Franklins”), who resided in Frankfort.
From the
time of Alex’s birth until October 24, 1995, the evidence is
disputed as how much time Alex spent in the Franklins’ care and
who was the primary caregiver to the child.
The Franklins
maintain that from the time of his birth, Alex had been in their
care for at least six hours a day and that they were always the
child’s primary financial support.
However, the Franklins do
admit that there was a two-month period during this time that
Alex was in Barry’s and Tami’s care.
Conversely, Tami contends
that during this time, although she lived on the Franklins’
property and relied on them to help care for Alex, she was the
primary caregiver to Alex.
Tami claims that she tended to the
child’s daily needs during this time as well as helping to clean
the Franklins’ house and helping with their kennels.
On October 24, 1995, Barry left Tami and Alex and moved
to New Orleans.
The Franklins, however, allowed Tami and Alex to
continue living on their property.
From this date until March of
1999, the Franklins kept a journal regarding Tami’s activities.
The Franklins claim that during the period between October of
1995 and December of 1995, Tami was gone and Alex was left in
their care for a total of 34 days.
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In January of 1996, they
maintain that Tami left and went to New Orleans to work as a
stripper for sixteen days.
After returning to Kentucky, they
assert that Tami went back to New Orleans to work during Mardi
Gras for twenty-six days in February and eight days in March.
From April 12, 1996 until May 11, 1996, Tami admittedly went back
to New Orleans to work during the Jazz Fest while Alex was in the
Franklins’ care.
Even after Tami would return to live with them
in Kentucky, the Franklins contend that Tami would sometimes not
see Alex for days at a time while he was in their care.
They
allege that she would often go out drinking with friends and
entertain boyfriends during this time, leaving Alex with them.
Tami claims that after Barry left, she went through a
difficult period and was uncomfortable living with the Franklins.
She concedes that during this period, she spent a good deal of
time in Louisville.
She also admits periodically going to New
Orleans in 1996 to work as a topless waitress.
She maintains
that when she was living with Barry, they both would periodically
go to New Orleans to work and the Franklins never objected
thereto.
However, Tami contends that whenever she returned to
Kentucky, she would continue to care for Alex.
She also
maintains that although she did not have a steady job while she
resided with the Franklins in Frankfort, she did contribute to
Alex’s expenses by working odd jobs and participating in WIC and
other public support programs.
When Tami left on April 12, 1996, to go to New Orleans,
she claims that she intended to bring Alex with her so that he
could stay with her family in Louisiana while she worked.
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She
maintains that the purpose of this trip to New Orleans was to
earn enough money so that she and Alex could move out of the
Franklins’ home and obtain their own living accommodations.
According to Tami, when she told the Franklins that she intended
to take Alex with her, they expressed concern that her car would
not make it and encouraged her to leave Alex with them, which she
did.
On April 12, 1996, the Franklins filed a motion for
temporary custody, alleging that Tami had a severe alcohol
problem and had abandoned Alex.
Thereafter, on April 24, 1996,
the Franklins obtained an emergency protective order awarding
them temporary custody in the Franklin District Court.
However,
the District Court did not find the allegations regarding Tami
sufficient to apply the provisions of KRS 620 or KRS 635.
Although we do not have the full record of the district court
proceedings, it appears to be undisputed that sometime after
finding out about the emergency protective order, Tami filed a
motion to dissolve the temporary custody order.
motion, a hearing was held on August 7, 1996.
Pursuant to this
The district court
apparently continued the temporary custody order for thirty days
and ordered that the case be transferred to circuit court.
On September 4, 1996, the Franklins filed a petition
for custody of Alex in the circuit court.
In this petition, the
Franklins alleged that they were the paternal grandparents of
Alex and that he had resided with them since birth.
(On
August 19, 1996, a paternity order was entered pursuant to an
uncontested affidavit establishing that Barry Franklin was the
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father of Alex.)
On September 19, 1996, Tami filed a response to
the Franklins’ petition for custody.
An amended petition for
custody was subsequently filed by the Franklins on March 19,
1997, in which they alleged specific incidents of abuse and
neglect by Tami.
During the pendency of the case, KRS 403.270 was
amended effective July 14, 1998, to allow for a de facto
custodian of a child to be given the same standing as a parent in
a custody proceeding.
KRS 403.270(1).
In November of 1998, both
parties submitted memoranda as to whether the Franklins were de
facto custodians of Alex under said statute.
On July 7, 1999,
the domestic relations commissioner filed his report and
recommendations regarding the applicability of the de facto
provisions of the amended KRS 403.270.
As to the issue of
whether KRS 403.270(1) could be applied retroactively, the
domestic relations commissioner determined that it could be
applied retroactively because there was no substantive change in
the law, since KRS 620.027 already allowed for grandparents to
have the same consideration as the parents in custody matters if
the child was residing with the grandparents.
The Commissioner
then found that since Alex was residing with the Franklins, the
best interest standard should apply in determining custody.
On January 31, 2000, the circuit court entered an order
adjudging that the Commissioner erred in determining that the
best interest standard should apply.
The court held that because
KRS 620.027 applies solely to dependency cases (which this case
was not), the Commissioner improperly relied upon said statute to
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extend the de facto provisions of KRS 403.270(1) to the
Franklins.
The court then proceeded to nevertheless apply KRS
403.270(1) in finding that the Franklins did not meet the
statutory criteria for de facto custodianship.
On August 9,
2000, the circuit court entered its findings of fact, conclusions
of law, and order in which it again found that the Franklins were
not de facto custodians of Alex because they were not his primary
caregiver from November of 1995 through April 1996.
The court
additionally found that “[a]lthough Ms. Seguin acted
irresponsibly with regard to her own life after Alexandre was
born and owes a large debt of gratitude to the Franklins for
helping with Alexandre,” Tami did not relinquish her parental
rights such that she was estopped from obtaining custody.
Finally, the court found that there was not clear and convincing
evidence that Tami was unfit to have custody of Alex.
From this
order, the Franklins now appeal.
The Franklins first argue that the trial court
erroneously failed to properly consider their claim of de facto
custodianship.
Specifically, the Franklins maintain that they
were not afforded a separate hearing on the issue as required by
KRS 403.270.
KRS 403.270(1) provides as follows:
(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
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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, 403.420, and
405.020.
KRS 403.270(2) provides in pertinent part that:
The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be given
to each parent and to any de facto custodian.
From our reading of the above statute, we do not see
that a separate hearing on the issue of de facto custodianship is
required so long as the party alleging said status is given the
opportunity to present evidence on the issue.
More
significantly, however, we agree with Tami’s position that KRS
403.270 cannot be retroactively applied.
The child in this case was born in 1993 and the major
time period during which the Franklins claim they assumed de
facto custodianship was in 1995 and 1996.
As noted earlier, the
amended version of KRS 403.270(1) was not effective until
July 14, 1998.
KRS 446.080(3) prohibits retroactive application
of a statute unless the statute expressly states that it is to be
applied retroactively.
KRS 403.270 makes no mention of
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retroactive application.
Nor do we believe that KRS 403.270(1)
as amended is a remedial statute pursuant to Peabody Coal Co. v.
Gossett, Ky., 819 S.W.2d 33 (1991).
Contrary to the Franklins’
position, application of KRS 403.270(1) to the present case would
create new rights on the part of the Franklins which did not
previously exist.
See Peabody Coal Co., 819 S.W.2d at 36.
Instead of applying the stricter unfitness standard reserved for
parent versus nonparent situations, see Jones v. Jones, Ky. App.,
577 S.W.2d 43 (1979), the best interest standard would apply,
thereby impairing the rights of the parents.
The earlier version
of KRS 403.270 did not speak to the issue of de facto custody and
there was no other statutory or case law provision for its
allowance under the facts of this case.
The Franklins cite to
KRS 620.027 which provides:
The District Court has jurisdiction,
concurrent with that of the Circuit Court, to
determine matters of child custody and
visitation in cases that come before the
District Court where the need for a permanent
placement and custody order is established as
set forth in this chapter. The District
Court, in making these determinations, shall
utilize the provisions of KRS Chapter 403
relating to child custody and visitation. In
any case where the child is actually residing
with a grandparent in a stable relationship,
the court may recognize the grandparent as
having the same standing as a parent for
evaluating what custody arrangements are in
the best interest of the child.
Although the above statute allows a grandparent to have the same
standing as a parent in determining custody where the child is
residing with the grandparent, this allowance is limited to the
situation where the District Court has jurisdiction in a
dependency, neglect or abuse proceeding pursuant to KRS Chapter
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620.
Such is not the case here and, thus, we need not reach the
issue of whether the Franklins were the de facto custodians of
Alex.
Accordingly, the trial court properly applied the
unfitness standard.
The Franklins next argue that the trial court erred in
finding that Tami did not waive her superior right to custody
pursuant to Greathouse v. Shreve, Ky., 891 S.W.2d 387 (1995) and
Shifflet v. Shifflet, Ky., 891 S.W.2d 392 (1995).
In those
cases, it was held that in order for a parent to waive his or her
superior right to custody, there must be clear and convincing
evidence that the parent knowingly, intentionally, and
voluntarily surrendered that right.
Id.
Where the trial court’s
decision in a child custody case is based on a finding of fact,
that finding will not be disturbed unless it is clearly
erroneous.
Barnes v. Barnes, Ky., 458 S.W.2d 772 (1970).
While it is true that Tami left Alex in the custody of
the Franklins for extended periods in 1995 and 1996, it is
undisputed that she always returned to her son in Kentucky.
There was some evidence that even when Tami would return to
Kentucky, she at times still left Alex in the care of the
Franklins.
However, Tami maintains that she always resumed being
the primary caregiver to Alex whenever she returned to Kentucky,
and there was no evidence that Tami terminated her relationship
with Alex.
After temporary custody was awarded to the Franklins,
it is undisputed that Tami regularly exercised her visitation
with Alex and repeatedly sought additional visits in court.
our review of the record, we cannot say the court was clearly
From
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erroneous in finding there was not clear and convincing evidence
that Tami intended, by her leaving Alex with the Franklins, to
permanently relinquish custody to them.
The Franklins’ final argument is that the court erred
in finding that Tami was fit to have custody of Alex.
The
unfitness of a natural parent for custody must be shown by clear
and convincing evidence.
329 (1989).
Davis v. Collinsworth, Ky., 771 S.W.2d
This requires the party with the burden of proof to
produce evidence of unfitness more persuasive than a mere
preponderance, but less than beyond a reasonable doubt.
Burns, Ky., 782 S.W.2d 618 (1989).
Fitch v.
Our Supreme Court has listed
the following examples of what constitutes unfitness for purposes
of child custody:
(1) evidence of inflicting or allowing to be
inflicted physical injury, emotional harm or
sexual abuse; (2) moral delinquency; (3)
abandonment; (4) emotional or mental illness;
and (5) failure, for reasons other than
poverty alone, to provide essential care for
the children.
Davis, 771 S.W.2d at 330.
As to inflicting physical and emotional harm, the
Franklins cite to an incident in which Tami was bathing Alex and
they heard Alex screaming for nearly thirty minutes.
When the
Franklins went to check to see what was wrong, Tami was carrying
Alex out of the bathroom as his head was flopping, he was
trembling, his veins were protruding, and his eyes were rolled
back in his head.
Tami’s explanation of the incident was that
when she was finished bathing Alex that evening and told him it
was time to get out of the bathtub, he had a temper tantrum
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because he did not want to get out.
When she made him get out of
the tub, he began violently struggling with her.
Tami cites the
Franklins’ reaction to the incident as an example of how the
Franklins’ parenting style differs from her own in that she does
not always give in to what Alex wants.
As to moral delinquency, the Franklins argue that
Tami’s drinking and the fact that she has worked as a stripper
render her unfit to be a parent.
While Tami admits that she
drank alcohol when she was with Barry, she claims she no longer
drinks because she is too busy.
While there is evidence that
Tami drank socially, the Franklins cite to no evidence that Tami
has a problem with alcohol or that Alex’s safety or welfare has
been threatened by her drinking.
Further, the results of Tami’s
Substance Abuse Subtle Screening Inventory test reveal that she
has a low probability of having a substance dependance disorder.
Regarding her working as a stripper, the fact that Tami
has in the past worked as a stripper does not alone render her
unfit to be a parent.
Tami testified that she was uncomfortable
with the job and would never do it again.
There was also no
evidence that Alex ever witnessed any behavior associated with
her work as a stripper.
Moreover, Tami currently rents a house
in Louisville, where she has been for two years, and works as a
waitress at a Cracker Barrel restaurant.
In addition, she
attends Jefferson Community College where she is to obtain a
degree in commercial art in May of 2001.
Tami testified that she
intends to remain in Louisville after she graduates and get a job
in the field of commercial art.
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Relative to the Franklins’ allegation that Tami
abandoned Alex by leaving him in their care, we have already
addressed this contention in the context of their claim that she
relinquished custody to them.
Hence, the issue merits no further
discussion.
There are no claims as to any emotional or mental
illness on the part of Tami.
Dr. James Shields, a psychologist
Tami went to see for counseling regarding the custody
proceedings, testified that the results of her MMPI-2 reveal that
Tami is well-adjusted and in control of her life.
He further
testified that she did not have any tendency toward physical or
emotional abuse.
It was Dr. Shields’s opinion that Tami was not
an unfit mother and that there was no reason that she could not
be Alex’s custodial parent.
The Franklins claim that Tami has consistently failed
to provide for Alex’s essential needs.
They assert that they
have been responsible for his food, clothing, shelter, medical
care, and schooling.
They also maintain that they have been
responsible for bathing him, arranging for his speech therapy,
obtaining alternative daycare, and putting him to bed.
While it
is true that the Franklins provided for all of the above needs
after they got temporary custody of Alex, Tami disputes that the
Franklins were responsible for all of these needs when Alex was
in her possession.
She claims that when Alex was with her, she
contributed financially what she could to his needs and that she
provided his daily care such as feeding, bathing, and putting him
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to bed.
It should also be noted that Tami has had a steady job
with benefits such as health insurance and retirement since 1996.
The Franklins point to the testimony of Dr. John
Kravic, a psychologist they were referred to by social workers on
the temporary custody case.
The Franklins took Alex to Dr.
Kravic for counseling and a psychological evaluation because of
some developmental concerns they had.
Dr. Kravic reported in
1996 that Alex suffered from an adjustment disorder and a general
anxiety disorder.
He attributed these disorders to the changes
in his custody and visitation.
He testified that Alex saw the
Franklins as his primary caretakers and that he seemed to be more
attached to the Franklins.
It was Dr. Kravic’s recommendation
that the Franklins be awarded custody of Alex with structured
supervised visitation by Tami.
Tami also saw Dr. Kravic two or three times in early
1997, but discontinued seeing him when she became suspicious of
his loyalties because the Franklins had always compensated him.
Dr. Kravic admitted that Alex loves his mother and acknowledged
that Alex’s problems and his attachment to the Franklins could be
the result of the restricted visitation Tami has had with Alex.
Dr. Kravic stated that if that was the case, Alex needed to see
more of his mother.
Most importantly, Dr. Kravic testified that
he was aware of nothing which would indicate that Tami was an
unfit parent.
In sum, we would agree with the trial court that Tami
has acted irresponsibly in the past, and that, fortunately for
Alex and Tami, the Franklins have been there to love and care for
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Alex during Tami’s absences.
However, we cannot say that the
trial court erred in finding that Tami was not unfit to be a
parent as there was not clear and convincing evidence of that
fact.
For the reasons stated above, the judgment of the
Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Judy
Frankfort, Kentucky
Marie Alagia Cull
Frankfort, Kentucky
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