DON DANIEL AND LOUISE DANIEL, HIS WIFE; AND JOSHUA DANIEL v. JAMIE JONES, N/K/A JAMIE GREGORY
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RENDERED: November 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001616-MR
DON DANIEL AND
LOUISE DANIEL, HIS WIFE;
AND JOSHUA DANIEL
v.
APPELLANTS
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 02-CI-00076
JAMIE JONES, N/K/A
JAMIE GREGORY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BAKER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Don Daniel and his wife, Louise Daniel, and
their son, Joshua Daniel, have appealed from a judgment of the
Muhlenberg Circuit Court entered on May 15, 2002, which awarded
Jamie Gregory (formerly Jones), the appellee herein, sole
custody of her daughter, Jasmine.
Having concluded that all of
the Daniels’s claims of error are without merit, we affirm.
The parties have vastly differing accounts with
respect to the factual history of this case; however, our review
of the record reveals the following.
Joshua Daniel and Jamie
Gregory are the biological parents of Jasmine, who was born on
May 13, 1999.1
Don and Louise Daniel are Joshua’s parents and
the paternal grandparents of Jasmine.
Shortly after Jasmine was
born, Don and Louise began to periodically care for her at their
home in Belton, Muhlenberg County, Kentucky.
From around the
middle of May 1999, until April 2001, Jasmine would spend
approximately two to three days per week at Don and Louise’s
home.
In addition, Jamie’s mother, Debbie Jones, would
sometimes keep Jasmine for two to three days at a time.
Jamie
kept and cared for Jasmine when she was not staying with either
Debbie or Don and Louise.
After Jasmine’s birth, Joshua had very little contact
with her for the first three years of her life.2
According to
Joshua, he did not want to get “involved” with Jasmine until
paternity could be established.3
On February 6, 2002, an agreed
judgment of paternity was entered by the Muhlenberg District
Court establishing Joshua as the biological father of Jasmine.4
1
Joshua and Jamie were never married.
to Jasmine’s birth.
Jamie married Jim Gregory subsequent
2
Joshua lives in Paducah, McCracken County, Kentucky, where he has resided
for most of the time he has known Jamie.
3
Joshua testified that shortly after Jasmine was born, Jamie told him that
Jasmine was not his child. Jamie denies ever making such a statement.
4
Jamie did not try to collect child support from Joshua. According to
Joshua, he first began attempting to establish paternity in early-to-mid
2000. Jamie explained her failure to bring Jasmine in for DNA testing in a
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Joshua testified that after paternity was established, he
traveled approximately 90 miles to Muhlenberg County every
weekend to see Jasmine.
At some point around April 2000, Jamie began seeing
her current husband, Jim Gregory.5
Prior to the entry of the
agreed judgment of paternity by the Muhlenberg District Court,
Jim, Jamie, and Jasmine moved to California.
According to
Jamie, Jim wanted to move to California in order to be closer to
his children from a prior marriage.
On February 13, 2002, Don,
Louise, and Joshua filed a petition in Muhlenberg Circuit Court
seeking emergency, temporary custody of Jasmine.
As the basis
for their petition, the Daniels asserted that Jamie had
neglected Jasmine by not seeking the appropriate medical care
for a leg injury that Jasmine sustained in an automobile
accident on November 30, 2001.6
In addition, Don and Louise
claimed that they were de facto custodians as defined by KRS7
403.270(1).
On February 18, 2002, after an emergency hearing
was held, the trial court entered an order granting the
timely manner by stating that her mail was not being delivered to her place
of residence.
5
Jim and Jamie were married on March 1, 2002.
6
Jasmine suffered a fractured leg in the accident. The accident occurred
when a vehicle driven by Jim slid into a tree that had fallen across the
road. There have been no allegations that Jim was in any way at fault for
the accident.
7
Kentucky Revised Statutes.
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Daniels’s petition for temporary custody.
Thereafter, Don
traveled to California and returned to Kentucky with Jasmine.
On March 12, 2002, Jamie filed a motion seeking an
evidentiary hearing on the issue of permanent custody of
Jasmine.
After a hearing was held on April 23, 2002, the trial
court entered a judgment on May 14, 2002, awarding Jamie sole
custody of Jasmine.
The trial court found that Don and Louise
had failed to establish that they were de facto custodians under
KRS 403.270(1).
The trial court further found that there had
been no neglect by Jamie in her care for Jasmine.
Finally, the
trial court found that “Jamie is a fit and proper person to have
the care of Jasmine,” and that “it is in the best interests of
Jasmine” to award custody to Jamie.
On June 25, 2002, the trial
court entered an order denying the Daniels’s motion to alter,
amend, or vacate its judgment awarding Jamie sole custody of
Jasmine.
This appeal followed.
Don and Louise first argue that the trial court erred
by finding that they had failed to establish that they were de
facto custodians of Jasmine.
In support of this argument, Don
and Louise point to numerous occasions in which they provided
for Jasmine’s various needs.
However, while Don and Louise did
play a significant role in caring for Jasmine during the first
two years of her life, their relationship with Jasmine did not
rise to the level of de facto custodians.
-4-
Under KRS 403.270(1), 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 six (6)
months or more if the child is under three (3) years of age.
. . .”8
In Consalvi v. Cawood,9 this Court discussed what must
be shown in order to establish de facto custodian status under
KRS 403.270(1):
The de facto custodian statute does not,
contrary to Cawood’s position at oral
argument, intend that multiple persons be
primary caregivers. The court’s finding that
he was "a primary caregiver" and "a
financial supporter" is not sufficient to
establish that he was indeed "the primary
caregiver" within the meaning of the
statute. It is not enough that a person
provide for a child alongside the natural
parent; the statute is clear that one must
literally stand in the place of the natural
parent to qualify as a de facto custodian.
To hold otherwise would serve to expand a
narrowly drawn statute intended to protect
grandparents and other persons who take care
of a child in the absence of a parent into a
broad sweeping statute placing all
stepparents on an equal footing with natural
parents. In light of both the legislative
history and the common sense interpretation
of the language of the statute, we do not
believe that this result was contemplated by
the General Assembly [emphases original].
8
Under KRS 403.270, if an individual can establish that he or she is a de
facto custodian, that person is given equal consideration along with the
child’s parent(s) in determining custody issues pursuant to the “best
interests of the child” standard.
9
Ky.App., 63 S.W.3d 195, 198 (2001).
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In the case sub judice, Don and Louise have stated in
their brief that Jasmine “lived with the Daniels two to three
days per week over a one and one-half year period.”
Other than
one occasion in which Jasmine purportedly stayed with Don and
Louise for three straight weeks,10 Jasmine spent the rest of her
time primarily in the care of Jamie and/or Jamie’s mother,
Debbie.
Therefore, at most, Don and Louise provided for
Jasmine’s needs alongside Jamie.
As Consalvi makes clear, this
is not enough to establish a de facto custodian relationship.
Accordingly, the trial court did not err by finding that Don and
Louise failed to establish de facto custodian status as defined
under KRS 403.270(1).
Don and Louise next argue that even if they are not
found to be de facto custodians, they are nonetheless entitled
to custody of Jasmine on the grounds that Jamie is “an unfit
mother.”
In support of this allegation, Don and Louise point to
several instances in which they claim Jamie neglected Jasmine.
In particular, they allege (1) that Jamie continuously failed to
seek medical treatment for the leg injury Jasmine sustained in
an automobile accident on November 30, 2001; (2) that Jasmine
has had recurring problems with hygiene, including head lice;
(3) that Jamie purportedly admitted to using illegal drugs; (4)
that Jim had been physically abusive toward Jamie and had thrown
10
Jamie testified that Jasmine was never left with Don and Louise for three
straight weeks.
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her and Jasmine out of their home in extremely cold weather
conditions; and (5) that Jamie and her mother Debbie were
involved in a dispute which culminated in Jamie throwing a plate
of food on Debbie.
Unless a parent has waived his or her superior right
to custody, a nonparent, who is not a de facto custodian, cannot
prevail over a parent in a custody dispute, unless the nonparent
can show by clear and convincing evidence that the parent is
unfit.11
Where there is conflicting evidence in the record
regarding a parent’s fitness as a parent, and the trial court
resolves the issue in favor of the parent, this Court will not
disturb the trial court’s findings unless they are clearly
erroneous.12
In the case at bar, we conclude that the trial
court’s finding that Jamie is a fit parent was not clearly
erroneous.
With respect to Don and Louise’s allegations of
inadequate medical care, Jamie testified that Jasmine’s cast
11
Moore v. Asente, Ky., 110 S.W.3d 336, 359 (2003) (quoting 16 Graham &
Keller, Kentucky Practice, Domestic Relations Law 21.26 (2d ed. 1997 & 2003
Supp.)(stating that:
Custody contests between a parent and a nonparent who
does not fall within the statutory rule on “de facto”
custodians are determined under a standard requiring
the nonparent to prove that the case falls within one
of two exceptions to parental entitlement to custody.
One exception to the parent’s superior right to
custody arises if the parent is shown to be “unfit”
by clear and convincing evidence. A second exception
arises if the parent has waived his or her superior
right to custody).
12
Bickel v. Bickel, Ky., 442 S.W.2d 575, 576 (1969).
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came off after it got wet in the bathtub, and that she took
Jasmine to the doctor two days later where it was discovered
that the fracture had healed and that at that time only a
bandage wrap was required.
Medical records admitted into
evidence support Jamie’s testimony.
Accordingly, the trial
court’s finding that Jamie did not neglect Jasmine’s medical
needs was not clearly erroneous.
As for Jasmine’s alleged problems with hygiene, Jamie
testified that social workers in both Kentucky and California
visited Jamie’s residences and that neither found deficiencies
which would have warranted Jasmine’s removal from the home.
Therefore, the trial court’s finding that Jamie did not neglect
Jasmine in this manner was not clearly erroneous.
As to allegations of drug use, Jamie admitted in her
testimony that she had used drugs prior to becoming pregnant
with Jasmine, but she claimed that she ceased using drugs when
she learned of her pregnancy.
In addition, Jamie testified that
the results of a voluntary drug test taken after Jasmine’s birth
were negative.
Don and Louise did not introduce any evidence of
drug use by Jamie after Jasmine’s birth.
Hence, although the
trial court did not make specific factual findings with respect
to Jamie’s drug use, there was not “clear and convincing”
evidence before the trial court which would have supported a
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finding that any alleged drug use had rendered Jamie unfit as a
parent.
Finally, with respect to the allegations of domestic
violence, although there was evidence suggesting that Jim had
physically abused Jamie,13 Jamie testified that she made Jasmine
leave the room when she and Jim were engaged in arguments and
that Jim had never forced her and Jasmine to stand outside in
poor weather conditions.
Further, Jamie stated that Jasmine was
not in the home when she and Debbie had an altercation which
resulted in the throwing of food.
Although Louise did testify
that Jasmine seemed to get nervous when around men and when she
was told “no,” the trial court found that there was “not
sufficient proof” to indicate that any domestic violence had
adversely affected Jasmine.14
Based on our review of the
evidence presented by both parties, we cannot conclude that the
trial court’s finding was clearly erroneous.
Accordingly, the
trial court did not err by finding that Don and Louise had
failed to show by clear and convincing evidence that Jamie was
an unfit parent.
13
Jamie denies that Jim ever physically abused her. However, records from
the Muhlenberg District Court indicate that Jamie filed a complaint against
Jim for allegedly slapping her in the face and pulling her hair.
14
See KRS 403.270(3)(stating that “[t]he court shall not consider conduct of
a proposed custodian that does not affect his relationship to the child. If
domestic violence and abuse is alleged, the court shall determine the extent
to which the domestic violence and abuse has affected the child and the
child's relationship to both parents”).
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Finally, Joshua argues that the trial court erred by
not granting him joint custody of Jasmine with Jamie.
However,
our review of the record shows that Joshua failed to request
that he be granted joint custody of Jasmine with Jamie until the
motion to alter, amend, or vacate was filed on May 23, 2002.
Throughout the proceedings, Joshua and his parents requested
that they be granted joint custody of Jasmine.
The purpose of a
motion to alter, amend, or vacate is to bring to the trial
court’s attention an error in a prior order or judgment.
The
trial court did not err by not granting Joshua relief that he
failed to timely request.
Based on the foregoing, the judgment of the Muhlenberg
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Julie Shadoan
Bowling Green, Kentucky
Mike McCauley
Madisonville, Kentucky
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