Opinion
NO. 2017-CA-000452-ME
01-19-2018
BRITTANY CRAWFORD; AND JASON CRAWFORD APPELLANTS v. JEFFREY LEE WILKERSON; AND TERESA ANN WILKERSON APPELLEES
BRIEF FOR APPELLANTS: Evan Taylor Owensboro, Kentucky BRIEF FOR APPELLEES: Cheryl N. Cureton Owensboro, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JULIA H. GORDON, JUDGE
ACTION NO. 16-CI-01030 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Brittany and Jason Crawford appeal from an order of the Daviess Circuit Court designating Jeffrey and Teresa Wilkerson as de facto custodians of the Crawfords' son, G.C. Finding no error, we affirm.
At the time of G.C.'s birth in July 2015, Brittany and Jason had serious addiction issues and a history of domestic violence. On August 4, 2015, the Cabinet for Health and Family Services filed a dependency, neglect, and abuse petition against Brittany and Jason, and the district court subsequently entered an order awarding temporary custody of G.C. to Jason's mother, Valerie Crawford. A few weeks later, Valerie's family contacted her cousin, Jeffrey Wilkerson, to inquire whether he and Teresa could care for G.C. The Wilkersons agreed, and by October 16, 2015, G.C. was residing with them full-time. The district court later held a disposition hearing and awarded custody of G.C. to the Wilkersons.
G.C. tested positive for amphetamines at birth. The record indicates the Cabinet was also involved in cases regarding Brittany's three older children.
The record reflects Brittany and Jason had permitted G.C. to reside with Valerie since the end of July.
On October 21, 2016, the Wilkersons filed a petition in Daviess Circuit Court seeking de facto custodian status and joint custody of G.C. The court held an evidentiary hearing and heard testimony from each of the parties, as well as social workers and drug rehabilitation counselors who had assisted Brittany and Jason. It was undisputed that G.C. had resided with the Wilkersons since October 16, 2015. Jeffrey testified his family members initiated contact with him about taking over G.C.'s care from Valerie. Jeffrey also testified regarding G.C.'s medical appointments and acknowledged G.C.'s health insurance was through a government issued medical card. Testimony further established the Wilkersons provided for all of G.C.'s needs, including groceries, clothes, toys, and paying for private child care.
In its written order, the court determined the evidence clearly established the Wilkersons had been the primary caregivers and financial supporters for G.C. for more than six months; accordingly, the court found them to be de facto custodians. The court further concluded joint custody with Appellants was in G.C.'s best interest, with Jeffrey and Teresa designated as primary residential custodians.
On appeal, we will not disturb the trial court's findings of fact unless they are clearly erroneous, bearing in mind that the lower court was in the best position to weigh the evidence and assess witness credibility. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). We review de novo the court's application of the law to the facts. Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky. App. 2011).
To qualify as de facto custodians of G.C., the Wilkersons had to establish by clear and convincing evidence they had 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.KRS 403.270(1)(a).
On appeal, Brittany and Jason contend the court erred by applying the six-month residency period because the Cabinet "placed" G.C. with the Wilkersons; accordingly, the one-year residency period applied. They point out the Wilkersons contacted the Cabinet's social worker before taking physical custody of G.C. from Valerie and subsequently cooperated with the social worker's instructions regarding visitation with Brittany and Jason.
Brittany and Jason also opine, if the one-year residency requirement applied, the Wilkersons could not rely on the period after September 20, 2016, because Brittany filed a "Motion to Amend Disposition Orders" with the district court. --------
In Cherry v. Carroll, 507 S.W.3d 23, 27 (Ky. App. 2016), this Court explained, "a plain reading of KRS 403.270(1)(a) requires that the child, regardless of age, who is placed by CHFS reside with the custodian for a period of a year or more before de facto custodian status may be sought." In the case at bar, however, the court applied the six-month period because it concluded Brittany and Jason voluntarily placed G.C. with relatives. The court explained its reasoning, in relevant part:
Petitioners presented testimony as to how [G.C.] came to be placed in their home - by his paternal grandparents, great-aunt, and Jason's ex-wife, NOT by the Cabinet. Petitioners' position that the six (6) month period should apply is compelling given the sequence of events described in the pleadings in the "CI" case as well as the "J" case. In the Dispositional Report (AOC-DNA-12 form) filed in Case No. 15-J-00285-002 on October 26, 2015, the Cabinet stated, 'Parents placed child with
paternal grandmother. Grandparents have determined they are not able to care for [G.C.] long-term and have found other relatives that are willing to care for [G.C.]'
After reviewing the record, we conclude substantial evidence supported the court's finding the Cabinet did not place G.C. in the Wilkersons' home; accordingly, the court properly applied the six-month residency requirement.
Brittany and Jason next argue the court erred by concluding the Wilkersons were the primary financial supporters of G.C. because he received the benefit of a government medical card. We disagree.
This Court has previously explained, "The language of KRS 403.270 requires that a de facto custodian serves as the 'primary'- not the 'sole' - caregiver and financial supporter." Spreacker v. Vaughn, 397 S.W.3d 419, 422 (Ky. App. 2012). The Spreacker Court found, although the child received state medical benefits, the custodian remained the primary financial supporter because the government benefits supplemented, rather than supplanted, the custodian's primary support of the child. Id.
In this case, there was ample testimony that, other than medical insurance, the Wilkersons provided a home, food, clothing, daycare, and necessities for G.C. We conclude substantial evidence supported the court's finding the Wilkersons were the primary financial supporters of G.C. The trial court did not err in designating Jeffrey and Teresa as de facto custodians.
For the reasons stated herein, the order of the Daviess Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: Evan Taylor
Owensboro, Kentucky BRIEF FOR APPELLEES: Cheryl N. Cureton
Owensboro, Kentucky