LOWERY (JULIE) VS. WHEELER (CRYSTAL), ET AL.
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001287-ME
JULIE LOWERY
v.
APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 06-CI-00213
CRYSTAL WHEELER; LARRY
EMORY SALYERS, JR.; AND
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
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.
GUIDUGLI, SENIOR JUDGE: Julie Lowery appeals the judgment of the Fleming
Circuit Court entered May 24, 2007, dismissing her petition for permanent custody
of her grandson, M.A.G. Having thoroughly reviewed this matter, we reverse and
remand.
On September 1, 2006, Lowery filed a petition for de facto custody of
M.A.G., whose date of birth is October 3, 1997. She named the mother, the father,
and the Cabinet for Health and Family Services as respondents. The Cabinet had
been awarded temporary custody of the child by the Fleming District Court in Case
No. 03-J-00003-001, on January 29, 2004. She also acknowledged that a pending
termination of parental rights action was currently pending before the Fleming
Circuit Court (Case No. 05-AD-00007) filed by the Cabinet against both natural
parents. In her petition, she alleged that she was a de facto custodian based upon
the fact that she had been the primary caregiver for, and financial supporter of,
M.A.G. for a period in excess of 3½ years during the time period of October 1997
through April 2001. Thereafter, she stated that M.A.G. had lived with his mother
occasionally and in the custody of the Cabinet until finally being placed in the
custody of the Cabinet from January 29, 2004, until she filed her petition.
The Cabinet responded to the petition on September 15, 2006. The
response referenced the other pending actions (03-J-00003-002 and 05-AD-00007)
and prayed “that the best interest of the subject child be protected and that the
Court consider the referenced Fleming District Court and Fleming Circuit Court
proceedings in any determination which it may make in this matter.” Neither the
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mother nor the father filed a response to the petition. It should also be noted that
there is no order appointing a guardian ad litem (GAL) for the child in the record;
however, a GAL for the child was involved and actively represented M.A.G.’s
interests.2
The matter was scheduled for a hearing on the issue of de facto
custodian for March 13, 2007. The GAL filed a trial brief on March 22, 2007,
summarizing the evidence presented and arguing that Lowery had not proven by
clear and convincing evidence that she was a de facto custodian or in the
alternative that the lapse in time indicated a waiver or abandonment of her status as
de facto custodian. On the following day, March 23, 2007, the Cabinet entered a
stipulation of fact which stated:
Comes the Respondent, Cabinet for Health and
Family Services, by counsel, and stipulates that the
evidence offered and admitted into record at the hearing
of the matter held on March 13, 2007 is clear and
convincing that for a period of not less than six months,
prior to the subject child, [M.A.G.], becoming three years
of age, the subject child resided with the Petitioner, Julie
Lowery, and during such time the Petitioner was the
primary caregiver and primary financial supporter for the
subject child, all before any proceeding was commenced
by a parent seeking to regain custody of the subject child.
Thereafter, on March 26, 2007, the mother, through her attorney, filed her response
to the petition requesting that Lowery be determined to be a de facto custodian of
M.A.G.
2
We assume that the GAL had been appointed in either or both of the other pending cases.
However, the record on appeal does not contain those cases.
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On March 27, 2007, the circuit court entered its findings of fact and
conclusions of law as to Lowery’s petition to be declared a de facto custodian.
Based upon its findings, that court concluded that “Julie Lowery has shown by
clear and convincing evidence that prior to approximately June of 2001, she
qualified under Kentucky law (KRS 403.270) to be considered the de facto
custodian for said child [M.A.G.].” Also on March 27, 2007, the trial court entered
a separate order setting the termination of parental rights case (05-AD-00007) for a
hearing on April 11, 2007. In this order, the court stated, “the Court shall make
decisions regarding who shall have custody of [M.A.G.] if the parental rights of the
mother, [C.W.] are terminated and whether the Petitioner Julie Lowery shall have
visitation if she is not granted custody as either a de facto custodian or as an
appropriate placement if the mother’s parental rights are terminated.” While the
Cabinet objected to this combined hearing (termination of parental rights, Case No.
05-AD-00007, and custody petition of Lowery, Case No. 06-CI-00213), Lowery
did not object but rather argued that the cases should be joined. Following the
two-day hearing, the GAL filed a report requesting that the parental rights be
terminated, that M.A.G. be placed with the Cabinet so that he could be adopted by
the current foster parents, and that Lowery be granted visitation with her grandson.
On May 24, 2007, the Fleming Circuit Court entered its findings of
fact, conclusions of law and judgment as set forth below:
[FINDINGS OF FACT]
1) [M.A.G.] was born on October 3, 1997.
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2) At the time of [M.A.G.’s] birth, his mother, [C.W.]
was fourteen years of age. During much of [M.A.G.’s]
first several years of life, he lived with his mother, and
both [M.A.G.] and [his mother] lived with [her] mother,
Julie Gilbert (now Lowery), and Julie’s husband. During
the time [M.A.G., his mother] and Julie lived in the same
house, Julie was the primary caregiver for both her
daughter [] and her grandson []. During at least twelve
months during the same time period and prior to
[M.A.G.] turning four years of age, Julie was the primary
financial provider for [M.A.G.]. Even though the
Commonwealth of Kentucky provided money, food
stamps and medical care for [M.A.G.], Julie Lowery was
the primary caregiver and financial supporter for at least
twelve months of said period. [C.W.] married Junior
Wheeler on June 16, 2001 and within a month or so of
said date brought [M.A.G.] to live with her and her new
husband. Subsequently to approximately June, 2001, and
until she filed this action on September 1, 2006 to be
declared de facto custodian for [M.A.G.], Julie Lowery
was not custodian for [M.A.G.]
3) Prior to approximately June of 2001, Julie Lowery
qualified under Kentucky law (KRS 403.270) to be
considered the de facto custodian for [M.A.G.]. Julie
Lowery was adjudged to qualify as having been a de
facto custodian for [M.A.G.] by judgment of Fleming
Circuit Court entered herein on March 27, 2007, even
though she was not de facto custodian in recent years.
4) [M.A.G.] has been in foster care under the
responsibility of the Cabinet for Health and Family
Services since January 29, 2004 and previously in foster
care under the responsibility of the Cabinet for Health
and Family Services from January 10, 2003 until
December 11, 2003 pursuant to proceedings in Fleming
District Court. The child was adjudged therein to be an
abused or neglected child pursuant to KRS 600.020; after
efforts were undertaken by the Cabinet for Health and
Family Services to reunify the child with his biological
parents, the Fleming District Court determined that no
further efforts to reunify [M.A.G.] with his parents were
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required and the permanency plan for the child was
established by the court to be adoption. The Fleming
District Court determined that it was not in the best
interest of [M.A.G.] to be placed in the custody of his
grandmother, Julie Lowery. [M.A.G.] is presently placed
by the Cabinet for Health and Family Services in a stateapproved foster home and the foster parents have
expressed their desire to adopt the child if the parental
rights of his parents are terminated.
5) Julie Lowery has expressed what the Court believes to
be a sincere desire to care for [M.A.G.]. However, Julie
Lowery’s daughter [C.W.] the mother of [M.A.G.], has
been shown to live an extraordinarily unstable life. The
Court finds that it would be virtually impossible for Julie
Lowery to be caretaker for [M.A.G.] without allowing
[C.W.] to be in frequent contact with [M.A.G.]. This
contact between [C.W.] and [M.A.G.], in the opinion of
the Court, would prevent [M.A.G.] from even
approaching a relatively normal childhood.
6) The child, [M.A.G.], has a close bond and attachment
to the foster parents and has expressed to the Court his
desire to be adopted by the foster parents.
7) It is not in the best interest of [M.A.G.] that his
grandmother, Julie Lowery, be awarded permanent
custody of [M.A.G.]. It was not until May of 2004 that
Julie Lowery initiated any proceedings in the Fleming
District Court proceeding seeking custody of [M.A.G.]
and after the Fleming District Court determined in
November of 2004 that it was not in the best interest of
[M.A.G.] [to] be placed with his grandmother, there was
no appeal of that judicial determination. In fact, Julie
Lowery did not file this action for permanent custody
herein until September 2006, a year after the Cabinet for
Health and Family Services filed with the Fleming
Circuit Court a petition seeking an involuntary
termination of the parental rights of the biological parents
of [M.A.G.] and requesting that [M.A.G.] be made a
ward of the Commonwealth of Kentucky with his full
care, custody and control vested in the Cabinet for Health
and Family Services.
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8) It is in the best interest of [M.A.G.] that he remain in
the care, custody and control of the Cabinet for Health
and Family Services.
CONCLUSIONS OF LAW
1. It is not in the best interest of [M.A.G.] that his
grandmother, Julie Lowery be awarded permanent
custody of [M.A.G.].
2. It is in the best interest of [M.A.G.] that he remains in
the care, custody and control of the Cabinet for Health
and Family Services.
JUDGMENT
It is the judgment of the Court that the petition by
Julie Lowery for permanent custody of [M.A.G.] be
dismissed and that [M.A.G.] remain in the care, custody
and control of the Cabinet for Health and Family
Services.
This is a final judgment.
Lowery filed a motion to reconsider on June 6, 2007, and a notice of appeal on
June 19, 2007. The GAL filed a response to Lowery’s motion to reconsider on
June 18, 2007, and the Cabinet filed a response on July 5, 2007. There is no order
of the circuit court ruling on this motion in the file.
On appeal, Lowery argues that the Fleming Circuit Court erred when
it dismissed her petition for custody after it had declared her to be a de facto
custodian of M.A.G. by a prior court order. She also contends that the court erred
by failing to treat her as equal to a parent in determining custody, by failing to
grant her custody of M.A.G., by conducting the termination and custody hearings
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simultaneously, and by considering the child’s interview used in the termination
case as evidence in the custody case. We believe the first issue is dispositive of
this matter and thus only address that issue.
On March 27, 2007, the court entered its order that Lowery qualified
under KRS 403.270 as a de facto custodian of M.A.G. This was based upon
testimony given at a hearing on March 13, 2007, and following the Cabinet’s
stipulation that Lowery was a de facto custodian and the mother’s written request
that Lowery be so found. KRS 403.270(1) and (2), the statute dealing with
custody, states as follows:
(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
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
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this section and KRS 403.280, 403.340, 403.350,
403.822, and 405.020.
(2) 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. The court shall consider all relevant factors
including:
(a) The wishes of the child’s parent or parents, and
any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the
child with his parent or parents, his siblings, and
any other person who may significantly affect the
child’s best interests;
(d) The child’s adjustment to his home, school, and
community;
(e) The mental and physical health of all
individuals involved;
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720;
(g) The extent to which the child has been cared
for, nurtured, and supported by any de facto
custodian;
(h) The intent of the parent or parents in placing
the child with a de facto custodian; and
(i) The circumstances under which the child was
placed or allowed to remain in the custody of a de
facto custodian, including whether the parent now
seeking custody was previously prevented from
doing so as a result of domestic violence as
defined in KRS 403.720 and whether the child was
placed with a de facto custodian to allow the
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parent now seeking custody to seek employment,
work, or attend school.
Once the court determined that Lowery was a de facto custodian of M.A.G., she
had the same standing in custody matters as a parent. The Fleming Circuit Court
erred by then dismissing her petition for custody of M.A.G. Therefore, the matter
must be reversed and remanded for further proceedings. It should, however, be
noted that this Court makes no comment on the court’s original determination that
Lowery was a de facto custodian of M.A.G. based upon the facts herein. And this
Court is somewhat baffled by the Cabinet’s stipulation to that finding based upon
the facts herein. However, that issue is not before this Court and at this point is the
law of the case, which the court and parties must now address upon remand.
For the foregoing reasons, the judgment of the Fleming Circuit Court
entered May 24, 2007, is reversed and this matter is remanded for further action
not inconsistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Tasha K. Scott
Florence, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE, CABINET FOR
HEALTH AND FAMILY
SERVICES:
Kirk Patton Woosley
Paris, Kentucky
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