W. (L.) VS. P. (M.), ET AL.
Annotate this Case
Download PDF
RENDERED: FEBRUARY 27, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000760-ME
L.W., MOTHER
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 08-CI-00032
M.P., FATHER, AND
L.L., GRANDMOTHER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND STUMBO, JUDGES.
STUMBO, JUDGE: This is an appeal from an order granting a paternal
grandmother custody of her granddaughter, K.W.1 The trial court found that
K.W.’s parents voluntarily waived their superior right to custody and that it would
be in the best interest of the child for L.L., (hereinafter Grandmother), to have
custody. L.W., (hereinafter Mother), argues that the trial court erred in finding that
she waived her superior right to custody and asks us to return custody of K.W.
1
Since the child in this case is a minor, all the parties will be identified by their initials.
to her. We find that Mother did not voluntarily waive her superior right to custody,
but we will affirm the trial court on other grounds.2
This matter began when the Cabinet for Families and Children,
(hereinafter the Cabinet), received a report that K.W. was being neglected. At the
time, K.W. was in the sole custody of her parents. In July of 2006, instead of
removing the child to a foster home, the Cabinet and parents decided to place K.W.
with Grandmother until such time that the Cabinet felt Mother and M.P.,
(hereinafter Father), could regain custody.
K.W. remained with Grandmother for close to a year. During that
year, Mother and Father separated and Mother moved to Ohio to live with her
mother. In June of 2007, Mother tried to take K.W. with her to Ohio. The Cabinet
then filed a Dependency, Neglect and Abuse Petition, which resulted in an
Emergency Custody Order granting Grandmother custody.3
A hearing was held on October 8, 2007, in which the lower court
placed K.W. in the temporary custody of the Cabinet. The Cabinet then placed the
child back with Grandmother. During this hearing, the Cabinet worker testified
that Mother was progressing nicely. The only concern the Cabinet had was that
Mother continue to not use drugs and complete some random drug testing. The
2
See O’Neal v. O’Neal, 122 S.W.3d 588 (Ky. App 2002); Commonwealth Natural Resources
and Environment Protection Cabinet v. Neace, 14 S.W.3d 15 (Ky. 2000), for case law allowing
an appellate court to affirm on an alternate theory not relied upon by the trial court.
3
Up until this time, all action between the Cabinet and parents had been done by agreement and
no action had been taken via the court system.
2
Cabinet worker believed if this would happen, Mother could regain custody in
December.
A review hearing was held in December. The Cabinet worker again
testified that things were going well. There had been supervised visits twice a
week which went well. Also, unsupervised visits had begun which were also going
well. However, at the time of this hearing, Mother, had not completed the required
number of drug tests. The court decided to split custody time between
Grandmother and Mother. Each was to have the child for half the week. This
arrangement would remain in effect until Mother completed the drug testing.
On January 14, 2008, Grandmother filed a petition seeking custody of
K.W. alleging that she had become the de facto custodian. In order for a nonparent
to have standing to try and gain custody of a child, one of three factors must be
met: the nonparent must be deemed a “de facto custodian” as defined in Kentucky
Revised Statute (KRS) 403.270; the nonparent must prove the parent is unfit; or
the nonparent must prove the parent has waived his or her right to superior
custody. Moore v. Asente, 110 S.W.3d 336, 359-360 (Ky. 2003). Then the court
considers which parent or nonparent with standing should get custody in
accordance with the child’s best interest. Id. at 360.
KRS 403.270 states:
(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
3
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 this section and KRS 403.280, 403.340, 403.350,
403.822, and 405.020.
The case of Moore v. Asente, supra, discusses the other two options for standing:
“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.”
Under the first exception, the nonparent must first show
by clear and convincing evidence that the parent has
engaged in conduct similar to activity that could result in
the termination of parental rights by the state. Only after
making such a threshold showing would the court
determine custody in accordance with the child’s best
interest. Under the second exception, however, if a
waiver has been shown by clear and convincing
evidence, the trial court shall determine custody between
the parent and nonparent based on the best interest of the
child. “Waiver requires proof of a ‘knowing and
4
voluntary surrender or relinquishment of a known right.’”
However, waiver may be implied “by a party’s decisive,
unequivocal conduct reasonably inferring the intent to
waive,” as long as “statements and supporting
circumstances [are] equivalent to an express waiver.”
(Citations omitted).
Id. at 359-360.
In the case at bar, the lower court found that K.W.’s parents waived
their right to superior custody. It based the finding on the fact Mother and Father
placed K.W. with Grandmother for close to a year. As to Mother specifically, the
lower court found Mother’s history of drug use and her inability to complete drug
testing support this finding. It also held that K.W. is flourishing where she is, is
involved in many extracurricular activities, loves the school she is attending, and
has a stable home with Grandmother. Accordingly, the lower court found
Grandmother had standing to seek custody and that in the best interests of the
child, Grandmother was to have custody. Mother and Father were allowed
supervised visitation after they completed drug testing. This appeal followed.
Mother argues that there was no evidence that she waived her right to
superior custody. We agree. “A waiver of the parent’s superior right to custody
requires statements and circumstances equivalent to an express waiver . . . . Waiver
requires that there must be some statement or action that unequivocally waives the
right to superior custody.” Diaz v. Morales, 51 S.W.3d 451, 454 (Ky. App. 2001).
Because waiver of a parent’s superior right to custody is a right with “both
constitutional and statutory underpinnings, proof of waiver must be clear and
5
convincing. As such, while no formal or written waiver is required, statements and
supporting circumstances must be equivalent to an express waiver to meet the
burden of proof.” Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky. 2004).
“[A] reviewing court is entitled to set aside the trial court’s findings
when those findings are clearly erroneous. To determine whether findings are
clearly erroneous, reviewing courts must focus on whether those findings are
supported by substantial evidence.” Id. at 470. (Citations omitted).
“[S]ubstantial evidence” is “[e]vidence that a reasonable
mind would accept as adequate to support a conclusion”
and evidence that, when “taken alone or in the light of all
the evidence . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Regardless
of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a
contrary finding, “due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses” because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court. Thus, “[m]ere doubt
as to the correctness of [a] finding [will] not justify [its]
reversal,” and appellate courts should not disturb trial
court findings that are supported by substantial evidence.
(Citations omitted).
Moore at 354.
In Moore v. Asente, supra, the Kentucky Supreme Court set forth
factors for courts to consider when determining whether parents have relinquished
custody in such a manner as to give a nonparent standing:
In determining whether parents have relinquished
“physical custody” in a manner that confers standing
upon a nonparent, Kentucky trial courts - like other
courts that have addressed this issue - should consider,
6
among other factors: (1) how possession of the child was
acquired by the nonparent, especially the intent of the
parents at the time of their relinquishment of the child to
the nonparent; (2) the nature and duration of the
possession by the nonparent; (3) the age of the child
when possession was acquired by the nonparent and the
child’s age when the parents sought the child’s return; (4)
any visits by the parents during the nonparent’s
possession of the child; (5) any financial support by the
parents during the child’s stay with the nonparent; (6) the
length of time between the relinquishment and the
parent’s efforts to secure the child’s return; and (7) what
efforts the parents made to secure the child’s return.
Although we recognize that these factors cannot be
applied mechanically as a formula to generate a
conclusive answer as to the nonparent’s standing, we
believe these factors are useful analytical tools. We
further recognize that although factors (1) and (2) will
usually have the most importance, the other factors may
also impact upon the determination.
Id. at 358-359.
When we look at these factors, it is clear that there was no substantial
evidence in the record to support a finding that Mother had given up her right to
superior custody. K.W. was placed with Grandmother by agreement between the
Cabinet and the parents. At all times, it was the intent of Mother to regain custody
of K.W. As testified to in the numerous hearings, Mother had completed most of
the Cabinet’s reunification plan and the only thing holding up reunification was the
lack of sufficient drug testing. Also, Mother constantly visited K.W., albeit under
the supervision of the Cabinet. From the time that K.W. went to live with
Grandmother until the filing of this action seeking custody, Mother actively tried to
7
regain custody. The Cabinet workers who testified were adamant that the return of
K.W. to Mother was possible.
We do not believe that an express waiver of parental rights was
evidenced here. While K.W. may have resided with Grandmother for close to a
year, Mother was never absent from her daughter’s life and visited her every
chance she got. In the case of Diaz v. Morales, supra, Rosa Morales gave birth to
her daughter while in prison. The father’s name was Santiago Romero. At Rosa’s
request, the daughter was placed with Cathy Diaz, who was the live-in girlfriend of
Lazaro Romero, Santiago’s brother. After Rosa’s release from prison, Social
Services discussed what needed to be done for her to regain custody. Rosa did
little to complete these requirements. However, Rosa did visit the child two times
a month and even gave Cathy child support. Six years later, Rosa and Santiago
sought custody of the child. The trial court and a previous panel of this Court
found Rosa did not waive her right to superior custody because there was no
statement or action that unequivocally waived the right.
As evidenced from the Diaz case, the right to superior custody is a
hard one to waive. As such, we find that there was not substantial evidence that
Mother waived her right to superior custody and the trial court was clearly
erroneous in finding such. However, we do find that the trial court correctly
granted custody to Grandmother but for a different reason.
We find that Grandmother was a de facto custodian pursuant to KRS
403.270. Since July, 2006, Grandmother has been the primary caregiver for, and
8
financial supporter of, K.W. During this time period, Mother only had limited
supervised visitation with K.W. and did not provide any financial support. In fact,
Grandmother’s petition for custody asserted that she should be deemed the de facto
custodian. It is unclear why the lower court did not use de facto custodianship as
the basis for Grandmother’s standing. There is clear and convincing evidence in
the record to find Grandmother to be the de facto custodian of K.W. The time
requirement of KRS 403.270 that the child reside with the de facto custodian is met
here.
Further, the lower court’s granting of custody to Grandmother because
it would be in the best interest of the child was proper. KRS 403.270(2) states:
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;
9
(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
parent now seeking custody to seek employment,
work, or attend school.
Here, K.W. has been flourishing with Grandmother. Further, the lower court found
that because of Mother’s history of drug use, lack of compliance regarding drug
testing, and her propensity to run around “with men of savory [sic] character and
known drug users,” K.W.’s interests would best be served by Grandmother
continuing as the child’s custodian. We agree. There is substantial evidence that it
is in K.W.’s best interest to remain with Grandmother.
Accordingly, we affirm the granting of custody to Grandmother
because she was the de facto custodian of K.W. and it would be in the best interest
of K.W. to currently remain with Grandmother.
ALL CONCUR.
10
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Charles L. Douglas, Jr.
Greenup, Kentucky
No Brief for Appellees
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
