F. (H.) VS. F. (J.), ET AL.
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RENDERED: JANUARY 7, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000630-ME
H.F.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT, FAMILY DIVISION
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NO. 09-CI-502712
J.F. AND K.F.
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
LAMBERT, JUDGE: H.F. (Mother) has appealed from the January 22, 2010,
order of the Jefferson Family Court determining that paternal grandparents J.F. and
K.F. (Grandparents) met the requirements to be the de facto custodians of her
daughter, A.F. (Child). The primary issue raised in this appeal concerns whether
the statutory time period as set forth in KRS 403.270(1) was tolled by Mother’s
1
Senior Judge Sheila R. Isaac 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.
actions in seeking to regain custody. However, because we have determined that
the appeal was taken from an inherently interlocutory order that only addressed
whether Grandparents met the status of de facto custodians, we must dismiss the
above-styled appeal.
Mother and her husband, J.E.F. (Father), are the natural parents of
Child, born in 2008. On August 28, 2008, when Child was close to six months old,
the Cabinet filed a juvenile dependency, neglect, and abuse petition against both
Mother and Father based upon a report that child pornography had been found on
the family’s computer (action No. 08-J-505558-1).2 The juvenile record indicates
that Mother and Father left the state just before the scheduled court hearing date of
September 11, 2008. Prior to leaving, Mother left Child with Grandparents. The
family court then formally placed Child in Grandparents’ temporary custody on the
date of the hearing. Mother returned to Kentucky several months later and began
working on complying with the Cabinet’s recommendations. Several months after
that, Mother moved orally and in writing for a return of custody. Her motions
were denied. On August 13, 2009, the family court dismissed the juvenile petition
as to Mother based on problems with obtaining proof from the seized computer. A
second juvenile petition (action No. 08-J-505558-2) filed by the Cabinet against
Mother on August 28, 2009, was also dismissed in September 2009 on the county’s
recommendation.3
2
Mother attached the record of the juvenile proceeding to her brief, and we shall take judicial
notice of these court records.
3
The record for this proceeding is also attached to Mother’s brief.
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The action presently before this Court addresses de facto custodian
status. On August 6, 2009, Grandparents filed a petition with the family court to
be named Child’s de facto custodians and to continue to exercise care, custody, and
control of Child. In conjunction with the petition, Grandparents also filed a motion
for temporary custody. In their petition and at the later hearing on the petition,
Grandparents stated that Child, who was at that point seventeen months old, had
been voluntarily placed in their care by Mother with Father’s approval on August
14, 2008, and that they were granted temporary custody on September 11, 2008, as
reflected in the first juvenile proceeding. Since that time, they stated that Child
had continuously been in their care, custody, and control, and that they had been
her primary caregivers and primary financial supporters in excess of six months as
required by the statute.
Mother objected to the motion, disputing that she voluntarily handed
Child over to Grandparents, and arguing that she was forced to do so by the
Cabinet. She did admit that Grandparents were granted temporary custody and that
they had been her primary caregivers and financial supporters for more than six
months. Mother affirmatively stated that the tolling provision in KRS 403.270
applied because she had been seeking to regain custody of Child from the time she
was removed from her care. She also asserted that because Child was placed by
the Cabinet, the one-year requirement applied. Therefore, Grandparents could not
meet the time requirement in order to be named de facto custodians. The family
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court agreed with Grandparents that the six-month time period applied in this case
because Child had not been placed by the Cabinet.
On January 22, 2010, the family court entered an order ruling on the
petition to the extent that it granted Grandparents de facto custodian status. The
family court disagreed with Mother’s argument that her cooperation with the
Cabinet was enough to toll the statutory time, stating that “the intent of the statute
is to require the commencement of a legal proceeding by the parent seeking to
regain custody of the child rather than to simply comply as a participant in a
pending matter filed by a separate entity.” (Emphasis in original). Because
Grandparents were granted temporary custody, the family court instructed that the
only method by which Mother could regain custody of Child was to move the court
for modification of the existing custody order. Therefore, the family court found
that Grandparents met the requirements as set forth in KRS 403.270 and declared
them to be Child’s de facto custodians.
Mother filed a motion to alter, amend, or vacate the order, disputing
the family court’s finding that she admitted to voluntarily leaving Child with
Grandparents and again raising her argument from the hearing that the one-year
requirement applied in this case because she claimed Child had been placed by the
Cabinet. The family court denied Mother’s motion on March 11, 2010. We note
that this order as well as the January 22, 2010, order included recitations that they
were final and appealable, and that there was no just cause to delay their entry.
This appeal now follows.
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On appeal, Mother has raised four issues. These are: 1) whether the
family court lost jurisdiction over Child when the first juvenile petition was
dismissed; 2) whether the family court properly applied the six-month statutory
period to this case; 3) whether the family court should have held Mother’s actions
in the juvenile action tolled the statutory period; and 4) whether the family court
erred by failing to follow the two-step process set forth in KRS 403.270 since it did
not address the best interest of the child standard. In their brief, Grandparents
contend that Mother failed to raise the issues of jurisdiction and the best interest
standard before the family court and is, therefore, precluded from raising those
issues for the first time on appeal. Otherwise, they argue that the family court did
not commit any error in its ruling.
Before we are permitted to reach the merits, we must address what we
consider to be a fatal problem with the appeal in that it was taken from an
interlocutory, nonappealable order that only addressed the de facto custodian
status, but did not address the actual issue of Child’s custody. Although this
particular jurisdictional issue was not raised by either party, “the appellate court
should determine for itself whether it is authorized to review the order appealed
from.” Hook v. Hook, 563 S.W.2d 716 (Ky. 1978).
The Kentucky Rules of Civil Procedure (CR) address what orders are
subject to review on appeal. CR 54.01 defines a judgment as follows:
A judgment is a written order of a court adjudicating a
claim or claims in an action or proceeding. A final or
appealable judgment is a final order adjudicating all the
rights of all the parties in an action or proceeding, or a
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judgment made final under Rule 54.02. Where the
context requires, the term “judgment” as used in these
rules shall be construed “final judgment” or “final order.”
CR 54.02, in turn, addresses situations where multiple claims or parties are present:
(1) When more than one claim for relief is presented in
an action, whether as a claim, counterclaim, cross-claim,
or third-party claim, or when multiple parties are
involved, the court may grant a final judgment upon one
or more but less than all of the claims or parties only
upon a determination that there is no just reason for
delay. The judgment shall recite such determination and
shall recite that the judgment is final. In the absence of
such recital, any order or other form of decision, however
designated, which adjudicates less than all the claims or
the rights and liabilities of less than all the parties shall
not terminate the action as to any of the claims or parties,
and the order or other form of decision is interlocutory
and subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
In the present case, the family court attempted to invoke CR 54.02 by
including the required recitals at the conclusion of each order. However, “CR
54.02 is confined to actions involving multiple claims or multiple parties.” Hook,
563 S.W.2d at 717. The present matter concerns one claim, that of custody, and
involves one set of parties. While Grandparents are two individuals, “a married
couple is considered a single unit for the purposes of de facto custodianship.” J.G.
v. J.C., 285 S.W.3d 766, 768 (Ky. App. 2009). Therefore, the family court could
not invoke CR 54.02 to make its orders final and appealable, and the orders had to
be final pursuant to CR 54.01 in order to be reviewable by this Court.
Even had this been a case involving multiple parties or multiple claims, the
law is clear that before CR 54.02 may be applied, “there must be a final
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adjudication upon one or more of the claims in the litigation. The judgment must
conclusively determine the rights of the parties in regard to that particular phase of
the proceeding.” Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975). “Where an
order is by its very nature interlocutory, even the inclusion of the recitals provided
for in CR 54.02 will not make it appealable.” Hook, 563 S.W.2d at 717.
The factual situation addressed in Hook is analogous to the situation
presently before the Court. Hook involved the modification of a foreign custody
order. When the mother brought the child to Kentucky where the father lived, the
father filed suit against the mother in Jefferson Circuit Court to modify the original
order. The mother contested jurisdiction of the court, and she appealed from the
court’s order in which it determined that it had jurisdiction. On appeal to the Court
of Appeals, the panel affirmed the jurisdiction order and remanded for disposition
of the modification question. The Supreme Court accepted discretionary review
and ultimately vacated the opinion of the Court of Appeals for dismissal of the
appeal, holding that the jurisdictional order was interlocutory and, therefore, not
reviewable on direct appeal. Hook, 563 S.W.2d at 716-17.
Likewise, the present case addresses child custody, albeit under KRS
403.270. That statute provides for the grant of custody and provides, in part, 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
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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.
(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;
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(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.
Based on the statute, a family court must first decide whether an applicant, if there
is one, meets the standard to be afforded de facto custodian status. Once that has
been determined, then the family court must consider the statutory factors listed
above to determine the best interest of the child in deciding to whom custody
should be awarded as between the parent or parents and the de facto custodian.
Therefore, the de facto custodian issue is merely a subpart of the ultimate custody
decision.
Turning to this case, the family court had to first determine whether
Grandparents met the statutory requirements to be afforded the status of de facto
custodians. The determination that Grandparents met these requirements is the
basis for the orders on appeal. Next, the family court had to decide the question of
permanent custody, giving both Mother and Grandparents equal consideration.
This issue the family court has not yet decided. The January 22, 2010, order only
states that “they are granted de facto custodian status.” The order does not reflect
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that the family court went on to consider any of the factors as set forth in KRS
403.270(2) or even mention the best interest of the child standard. Until the matter
of permanent custody is finally decided, the issue of whether the family court
properly assigned Grandparents the status as de facto custodians is interlocutory.
Accordingly, Mother’s appeal from the finding of de facto custodian status is
premature and will not be ripe for appeal until an actual custody order is entered.
For the foregoing reasons, the above-styled is ORDERED
DISMISSED as interlocutory.
ALL CONCUR.
ENTERED: January 7, 2011
/s/ James H. Lambert
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Susan M. Meschler
Shelbyville, Kentucky
Sammy Deeb
Louisville, Kentucky
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