Opinion
NO. 2016-CA-001132-ME
03-17-2017
WILBUR GROSS; AND JOY ANN GROSS APPELLANTS v. JAMES NICK HERRINGTON; ELIZABETH GROSS; ROGER SLADE; AND SHELLEY SLADE APPELLEES
BRIEF FOR APPELLANTS: James P. Brannon Paris, Kentucky BRIEF FOR APPELLEES: William J. Verax, IV Cynthiana, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON FAMILY COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 15-CI-00224 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. KRAMER, CHIEF JUDGE: Wilbur and Joy Ann Gross, appeal from the July 1, 2016 order of the Harrison Family Court denying their petition to be declared de facto custodians and awarding sole custody of the minor child, A.L.G., to appellees, Roger and Shelley Slade. After careful consideration, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
James Herrington and Elizabeth Gross are the biological parents of A.L.G. The appellants, Wilbur and Joy Ann Gross (hereinafter collectively referred to as "the Grosses") are the maternal great-uncle and great-aunt of A.L.G., respectively. Appellees, Roger and Shelley Slade (hereinafter collectively referred to as "the Slades") are the paternal uncle and aunt of A.L.G., respectively. The minor child at issue has been displaced several times in her short life. A relevant timeline of her custody and living arrangements is below:
• December 28, 2011: A.L.G. was born. Wilbur was Elizabeth's only relative in the delivery room. James was incarcerated at the time.
• April 2012: After a dependency, neglect, and abuse action was filed in the Harrison County Family Court against Elizabeth, the minor child began residing with the Grosses. Elizabeth moved into the Grosses' residence as well.
• May 2012: Elizabeth was forced to leave the Grosses' residence after alleged drug use in the home.
• May 2012 through October 2013: The child continued to live in the Grosses' residence while James (released from incarceration in May 2013) and Elizabeth worked a case plan with the Cabinet for Health and Family Services. During this time, James and Elizabeth provided limited financial support of the child in the form of clothes and diapers, but the majority of
the child's financial needs were provided by the Grosses.
• October 2013: James and Elizabeth became sober, and the family court granted them temporary joint custody along with the Grosses.
• October 2013 through January 2014: The Grosses and James and Elizabeth exercised a roughly equal timesharing arrangement pursuant to the Cabinet's direction.
• January 2014 through July 2015: The family court granted sole custody to James and Elizabeth. At this time, the Slades began regularly visiting the child. They were the primary caretakers of A.L.G. when James and Elizabeth were at work. The Grosses continued to exercise visitation with A.L.G., at the parents' discretion, but the child spent the majority of the time with James and Elizabeth. Also, with the exception of a car seat purchased by the Grosses, James and Elizabeth provided sole and primary financial support for the child during this eighteen-month period.
• July 2015: Another dependency, neglect, and abuse case was opened against James and Elizabeth. The child was placed back with the Grosses pending further hearings.
• August 5, 2015: The child was placed with the Slades by order of the family court.
The Grosses filed a custody action on September 30, 2015, seeking to be declared de facto custodians based on KRS 403.270. After a June 13, 2016 hearing, the family court concluded that the Grosses' standing as de facto custodians "was destroyed by the interruption in their care and financial support of the child when she was returned to her [natural] parents." The family court, in a July 1, 2016 order, provided the Slades with sole custody. The Grosses got timesharing rights with A.L.G. every other weekend. The Grosses timely filed a CR 59.05 motion to alter, amend, or vacate the judgment, which was subsequently denied.
Kentucky Revised Statute.
Kentucky Rule of Civil Procedure.
This appeal followed.
II. STANDARD OF REVIEW
Child custody awards are reviewed for an abuse of discretion. Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008). "Thus, in reviewing the decision of the family court, the test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Id. (Internal citation omitted). Because the family court is in the best position to judge the credibility of the evidence, we will not substitute our opinion for that of the family court with regard to the weight given to certain evidence, including the testimony of witnesses. CR 52.01; B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
III.ANALYSIS
KRS 403.270(1) sets out the requirements for de facto custodian status:
(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 . . . .
(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 . . . .
It is undisputed that the Grosses, at one time, met all of the requirements and would have qualified as de facto custodians of A.L.G. In fact, the family court stated it was "clear the Grosses would have been the de facto custodians of A.L.G. had they chosen to assert that status in January of 2014." However, the family court ultimately concluded that the Grosses' standing to assert de facto custodian status was destroyed by the interruption in their care and financial responsibility for A.L.G. in January 2014. Thus, the principal question is whether the de facto custodian status is destroyed or broken by an interruption in physical possession and financial responsibility of the child. Under the facts of this case, we determine that it was.
This Court has consistently held that the status of a de facto custodian is not permanent and must be revisited on a case-by-case basis each time the status is asserted. Sullivan v. Tucker, 29 S.W.3d 805, 808 (Ky. App. 2000). In Sullivan, this Court addressed a situation in which two grandchildren were in their paternal grandmother's court-ordered temporary custody for approximately ten months. After the grandmother petitioned the court for permanent custody, the temporary custody order was rescinded and the children were returned to their parents. The grandmother and her longtime companion thereafter petitioned to be named as the children's de facto custodians. The circuit court rejected the petition, determining that a finding of de facto custodianship requires actual possession of the child and that such status lapsed with the children's return to the parents. On appeal, this Court held that the language of the statute:
suggests that the determination of de facto custodianship is a matter that must be addressed anew whenever the status is asserted. This is not to say that a prior finding of de facto custodianship has no bearing on a subsequent determination. Nor is it to say, as the trial court opined, that possession of the child is a necessary prerequisite to recognition of de facto custodian status. It is only to say that a finding of de facto custodianship does not thereafter have the conclusively presumptive effect [the appellants] assert.Id. This Court affirmed the trial court's refusal to find that the petitioners were the children's de facto custodians. Although Sullivan states that physical possession of the child is not required for de facto custodian status, the holding does imply that the status can be broken by an interruption in care or support, hence the reason to address it "anew whenever the status is asserted." Id.; see also, S.S. v. Commonwealth, 372 S.W.3d 445, 447 n. 2 (Ky. App. 2012). This Court expounded on the effect an interruption in care has on the status of de facto custodian in Sherfey v. Sherfey, 74 S.W.3d 777 (Ky. App. 2002), overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). In Sherfey, a teenage minor child resided with his paternal grandparents for some two years before the teen's father filed a motion which eventually led to the court's examination of the custody situation. The stay with the grandparents was interrupted only by a one-month stay at a camp, which the parents forced the unwilling teen to attend by having him forcibly removed and transported to the camp by a firm "specializing in the transportation of 'difficult' children." Id. at 779. This Court declined to find that the camp visit "disqualif[ied] the grandparents from achieving 'de facto custodian' status[,]" noting:
[The child] never fully left the custody and control of his grandparents. He merely spent an unhappy month at a camp where he continued to maintain contact with his grandparents. Obviously, every parent who sends his or her child to a summer camp has not surrendered custody of the child.Id. at 780-81.
We reiterated that Sullivan does not require physical possession of the child in Jones-Swan v. Luther, 478 S.W.3d 392, 394 (Ky. App. 2015). In Jones, two minor children were placed with the appellants pending the biological parents' dissolution proceedings. The appellants were the primary caretakers of the children for several months. When the biological parents attempted to regain custody, the appellants initially refused. However, they ultimately relinquished custody and moved to be declared de facto custodians a few weeks later. The trial court, relying on Sullivan, denied the status because they did not have physical possession of the child. On appeal, this Court admonished the trial court's rationale, stating again physical possession is not a prerequisite for de facto status, but ultimately affirmed the decision because the appellants were not the primary caregivers for the requisite time period required by KRS 403.270(1)(a). Id. at 395.
In the case sub judice, although the parties provided somewhat conflicting evidence regarding their respective roles in caring for and supporting the child after January 2014, they do not dispute that the Grosses have not been the primary caregiver, or custodians, for A.L.G. since that time. Further, we do not disagree with the family court's determination that until January 2014, the Grosses were the child's primary caregivers and financial supporters, and that they met the criteria to be the child's de facto custodians. Nevertheless, as noted in Sullivan, "the determination of de facto custodianship is a matter that must be addressed anew whenever the status is asserted." 29 S.W.3d at 808. Thus, regardless of whether the Grosses were A.L.G's de facto custodians prior to January 2014, the family court's determination below was necessarily based on the circumstances which existed when the Grosses filed their petition approximately eighteen months later. Unlike the interruption of care situations in Sherfey and Jones-Swan, the child was removed from their care and support for approximately eighteen months.
Indeed, in its well-reasoned order, the family court addressed the distinction between this case and cases like Sherfey and Jones-Swan:
Given the statements in Sullivan, this Court is bound by the conclusion that the de facto standing can be broken. The question then becomes how much of an interruption is required before the status is destroyed. There are no published cases that address this question. However, in reviewing unpublished cases this Court must conclude that one year is a sufficient interruption to destroy de facto custodian standing. In D.D. v. A.S., No. 2008-CA-001129-ME,[] the Court of Appeals suggested that the interruption must be one that is contemplated as permanent in nature . . . . [T]he Grosses agree that they were giving the natural parents the chance to raise their own child. There was no contemplated end to this trial period. There were also no limits imposed on the rights that were returned to the natural parents by the first juvenile court.
In Allen v. Allen, 2003-CA-002386-MR,[] the Court of Appeals stated that the payment of child support for one year was sufficient to interrupt de facto custodianship. Here, the natural parents assumed both primary physical care and financial responsibility for well over one year. It was nearly eighteen months from the time that the child was returned to the natural parents' custody until the date of the second removal in July 2015.
. . .
When the dispute is between two sets of non-parents (and
neither set qualifies as a de facto custodian), then the best interest of the child standard applies. KRS 403.270 requires that the wishes of the [natural] parents as to custody must be considered as part of this determination. This factor must be given great weight in this case, where both homes are appropriate and the child has a loving relationship with each set of relatives. In fact, both sets of relatives agree that the other is an appropriate situation for A.L.G. They agree that A.L.G. should maintain her relationship with both families. Therefore, they entered into the mediation agreement filed in this matter. Because the Court agrees that the mediation agreement is in the child's best interest, this Court will honor its terms.
D.D. v. A.S., No. 2008-CA-001129-ME, 2009 WL 485095 (Ky. App. Feb. 27, 2009).
Allen v. Allen, 2003-CA-002386-MR, 2004 WL 1948741 (Ky. App. Nov. 30, 2012). --------
Fortunately, this is a situation where two couples have loving relationships with the child. Considering the family court's position to judge the credibility of the evidence, and keeping in mind that these determinations are to be made on a case-by-case basis, we cannot conclude that it abused its discretion when it determined that the Grosses' standing to assert de facto custodian status was broken by the eighteen-month interruption in care of A.L.G.
The Grosses also argue the case should be remanded for express findings as to whether they are unfit or whether they relinquished their superior right to custody. Citing Allen v. Devine, 178 S.W.3d 517 (Ky. App. 2005), they argue if the family court finds that a party is a de facto custodian, even in the past, Allen requires the court to make a finding regarding the unfitness or relinquishment of the former de facto custodian. This argument lacks merit. Allen states that once a party is expressly found to be a de facto custodian they get "'equal consideration' as required under KRS 403.270(2)." Id. at 523. In the case at hand, the Grosses were never adjudged to be de facto custodians as a matter of law. The family court stated that the Grosses "would have been de facto custodians" had they filed in January 2014. That statement is not an express finding of de facto custodianship.
IV.CONCLUSION
In light of the foregoing, the order of the Harrison Family Court denying the Grosses' Petition for De facto Custodian Status and awarding sole custody to the Slades is affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: James P. Brannon
Paris, Kentucky BRIEF FOR APPELLEES: William J. Verax, IV
Cynthiana, Kentucky