Opinion
NO. 2012-CA-001212-ME
07-12-2013
ERICA GAYE FORD APPELLANT v. JADE ALQUIZAR, AND C.R.F. APPELLEES
BRIEF FOR APPELLANT: John Austin Owensboro, Kentucky BRIEF FOR APPELLEE, C.R.F.: Stephen C. Pace Owensboro, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 11-CI-00187
OPINION
AFFIRMING
BEFORE: CAPERTON, CLAYTON, AND TAYLOR, JUDGES. CAPERTON, JUDGE: The Appellant, Erica Gaye Ford, appeals the June 11, 2012, order of the Daviess Circuit Court awarding custody of the child, C.R.F., to her biological mother, Appellee Jade Alquizar. On appeal, Ford argues that the child's best interest would be served by awarding permanent custody to Ford. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
In 2010, Ford and her paramour, Danielle Filip, became aware that Alquizar was pregnant. On November 23, 2010, Ford and Filip petitioned the Daviess District Court to be appointed as guardians for C.R.F., who was not yet born. At that time, Alquizar agreed to the proposed guardianship. On November 24, 2010, the Daviess District Court granted guardianship to Ford and Filip. C.R.F. was born on December 9, 2010, after which time she left the hospital and went to the home of Ford and Filip, where she has resided continuously throughout her life. Alquizar resided in the home with Ford, Filip, and C.R.F. for several weeks, after which time she left, and went to a mental health facility in Indiana. Alquizar later relocated to Ohio County, where she remained throughout 2011.
On January 27, 2011, Alquizar filed a motion in the Daviess District Court seeking the removal of Ford and Filip as co-guardians of C.R.F. While that motion was pending, Ford filed a verified petition for custody on February 4, 2011, in the Daviess Circuit Court. The Daviess District Court entered a stay of its proceedings in light of the pending custody litigation. In April of 2011, the Domestic Relations Commissioner entered a recommendation granting temporary custody of C.R.F. to Ford. On December 1, 2011, a final hearing was held before the Domestic Relations Commissioner.
During the course of the final hearing, the court heard testimony from Ford, Filip, Alquizar, two social workers, and multiple individuals acquainted with the parties. Testimony indicated that Alquizar grew up in Puerto Rico and South Florida, where she had a rather tumultuous childhood. Alquizar did not complete high school, and testimony indicated that as a teenager, she began to use illegal substances and had suicidal ideations. Alquizar had a son while still a teenager; that child was placed for adoption with Filip's father in Florida.
As noted, when Alquizar became pregnant with C.R.F. she contacted Ford and Filip and there was a discussion among the three about the possibility of Ford and Filip adopting C.R.F. Alquizar came to Kentucky while pregnant in July of 2010, and moved in with Ford and Filip. Alquizar suggested that Ford and Filip obtain guardianship of C.R.F., which was accomplished while C.R.F. was in utero. When C.R.F. was born in December of 2010, Alquizar told the hospital staff that Ford and Filip would be the caregivers and decision-makers for C.R.F. She also gave C.R.F. Ford's surname.
After leaving the hospital, Alquizar and C.R.F. returned to the home shared by Ford and Filip. During that time, Ford and Filip were the individuals involved in the daily caretaking of C.R.F. Ford asserts that in the weeks that followed their return home, Alquizar had a disagreement with Ford and Filip, and was considering leaving with C.R.F. unannounced and returning to Florida. Ford and Filip became aware of Alquizar's possible departure and became concerned for the safety of C.R.F. Ford and Filip told Alquizar that she was no longer welcome to stay at their home. Alquizar then checked into the Wellstone psychiatric hospital in Indiana. While at the hospital, Alquizar maintained phone contact with Ford and Filip.
Subsequently, in mid-January 2011, Alquizar checked out of Wellstone and traveled with Ford and Filip to Louisville to meet with an attorney about the possibility of Ford adopting C.R.F. Alquizar filled out all of the necessary paperwork to accomplish the adoption before moving to Ohio County to stay with relatives of Ford. However, Alquizar subsequently revoked her consent to the adoption and sought to terminate the guardianship.
Alquizar moved at least three times during the pendency of the custody litigation in the circuit court. At the time of the final hearing, she was living in a one-bedroom apartment in Hartford, Kentucky. She was unemployed and lacked a driver's license. Alquizar also testified that she had been diagnosed with post-traumatic stress disorder, depression, anxiety, and that she had been prescribed Effexor and Abilify, but had discontinued usage of both shortly before the hearing.
Initially, Alquizar was awarded visitation with C.R.F. to be exercised for three hours on Sundays under the supervision of Faye Crowe. Crowe testified that Alquizar had been inattentive to C.R.F. during many of the visits but acknowledged that she had made improvements. Subsequently, Alquizar was awarded four-hour unsupervised visits twice a week at her apartment. The Cabinet for Health and Family Services opened a case for C.R.F. and Carrie White was assigned as Alquizar's social worker. White witnessed some of the visits between Alquizar and C.R.F. and testified at the hearing that Alquizar was cooperating with the Cabinet. She testified that Alquizar had passed several random drug screens and recommended that C.R.F. be returned to Alquizar's custody. White testified that she was unaware of the psychiatric medications that had been prescribed to Alquizar and, likewise, did not know that Alquizar had ceased taking them.
Following the hearing, the Domestic Relations Commissioner entered an order finding that Alquizar did not waive her superior right to custody of C.R.F., and that Ford had failed to prove that she was qualified as defacto custodian. The Commissioner therefore recommended that Alquizar have custody of C.R.F. Ford and the guardian ad litem both filed exceptions, and on June 6, 2012, a hearing was held regarding same. Following the hearing the court entered an order which upheld the recommendations of the Commissioner and adopted them as the order of the court. However, the court did find that while Alquizar had not waived her superior right to custody, she was nevertheless unable to exercise her right to custody at the time of the order. Accordingly, the court ordered that Ford keep temporary custody of the child. The court also found that Ford had failed to prove that she qualifies as a defacto custodian pursuant to Kentucky Revised Statutes (KRS) 403.270, in keeping with the finding of the Commissioner on that issue. C.R.F. continues to reside with Ford at present. It is from this order that Ford now appeals to this Court.
On appeal, Ford asserts that she has standing in this case based upon her status as a "person acting as a parent" under KRS 403.800, and KRS 403.822, and because she asserts that she was a defacto custodian. Ford argues that the Commissioner abused his discretion, and that the court was incorrect in its failure to reverse accordingly. Ford asserts that it was clearly Alquizar's intention that Ford serve as the mother figure for C.R.F., and that she intentionally relinquished her superior right to C.R.F. Ford argues she has been the primary caretaker for C.R.F. throughout her life and that Alquizar has repeatedly demonstrated an unwillingness or inability to provide a stable environment for C.R.F. Ford argues that Alquizar is unfit to serve as the custodian for C.R.F., and that the decision of the court to technically give Alquizar custody of the child and then physically place the child with Ford was evidence of same. Accordingly, Ford argues that the best interest of C.R.F. would unquestionably be served by granting permanent custody to Ford.
KRS 403.800(13) provides that:
"Person acting as a parent" means a person, other than a parent, who:
(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state[.]
KRS 403.822 provides that:
(1) Except as otherwise provided in KRS 403.828, a court of this state shall have jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(b) A court of another state does not have jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836; and
1. The child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and(c) All courts having jurisdiction under paragraph (a) or (b) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under KRS 403.834 or 403.836; or
2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; or
(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b), or (c) of this subsection.
(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
In response, to the brief filed by Ford, Alquizar has not filed a brief with this court. However, a brief on behalf of C.R.F. was filed by her guardian ad litem. Therein, C.R.F. argues that Ford has standing to assert custodial rights to C.R.F. by virtue of her qualification as a person acting as a parent pursuant to KRS 403.270, KRS 403.800, and KRS 403.822. Further, C.R.F. argues that Alquizar has waived her superior parental rights because she endorsed the idea of guardianship being granted to Ford, as evidenced by giving the child Ford's surname, leaving the hospital and returning to Ford's home, allowing Ford to be the primary caretaker for C.R.F. through the present time, calling Ford the child's "mommy," and by preparing, and actually signing adoption papers although she later rescinded the adoption. Thus, C.R.F. argues that Ford clearly qualified as a "person acting as a parent," and that accordingly, she should have been placed on equal footing with Alquizar.
In reviewing the issues raised by the parties on appeal, we note that while the issue of standing is one which must be decided upon the facts of each case, the question is nevertheless an issue of law. City of Ashland v. Ashland F.O.P. No. 3, 888 S.W.2d 667, 668 (Ky. 1994). Accordingly, we review this issue de novo.
Certainly, in a custody contest between a parent and a non-parent, the non-parent must prove that he or she has standing in the case, either by qualifying as a de facto custodian, or as a "person acting as a parent." Mullins v. Picklesimer, 317 S.W.3d 569, 581 (Ky. 2010); KRS 403.270(1);, KRS 403.800(13); and KRS 403.822. Below, the Commissioner found that Ford did not have standing as a de facto custodian, a finding with which we agree. As set forth in KRS 403.270:
(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 this section and KRS 403.280, 403.340, 403.350, 403.822, and 405.020.
As correctly held by the Commissioner, Ford does not qualify as a de facto custodian pursuant to this definition. As noted by the Commissioner, the Cabinet did not place C.R.F. in Ford's care, and she did not satisfy the requirements of primary caregiver and primary support for a child under age 3 as required by statute, in light of the fact that C.R.F. was not yet six months old when this action was filed. Accordingly, Ford is not a de facto custodian pursuant to statute.
Since C.R.F. was less than two months old when this action was initiated, the six-month requirement set forth in KRS 403.270(1)(a) was tolled.
Having so found, we turn to the Commissioner's finding that Ford did not meet the requirements of a "person acting as a parent." As previously noted herein, pursuant to KRS 403.800(13), a "person acting as a parent" means a person, other than the parent, who:
(a) Has physical custody of the child or has had physical custody for a period of six (6) consecutive months, including any temporary absence, within one (1) year immediately before the commencement of a child custody proceeding; and
(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this state[.]
Having reviewed the record, the arguments of the parties on this issue, and the applicable law, this court is ultimately of the opinion that Ford has failed to establish standing under the provisions of the foregoing statute. Ford argues that this statute intends a distinction between those with current physical custody, and those who may previously have had physical custody, but no longer do. She asserts that the "or has had physical custody" language is intended to be interpreted conjunctively with the six-month requirement, while the "has physical custody" portion in the beginning of the statute is not. We cannot agree.
The most commonly stated rule in statutory interpretation is that the "plain meaning" of the statute controls. Wheeler & Clevinger Oil Co. Inc. v. Washburn, 127 S.W.3d 609, 614 (Ky. 2004). This Court has steadfastly adhered to the plain-meaning rule, unless doing so would constitute an absurd result. Id. The plain-meaning rule is consistent with directions from our legislature concerning how to interpret the statutes which it has enacted. Id. Our interpretation of the statute, utilizing the foregoing "plain meaning" analysis, is that the six-month requirement applies to any party seeking to obtain the status of "person acting as a parent," not just to those who no longer have physical custody.
Sub judice, Ford simply did not have physical custody of C.R.F. for six months prior to the filing of the original action in the Daviess Circuit Court, even though she did have custody at the time that the proceeding was commenced. Accordingly, we cannot find that she qualifies as a "person acting as a parent," pursuant to KRS 403.800(13)(a).
Having so found, we turn to the arguments made by Ford, and by C.R.F. through her guardian ad litem that Ford has standing to pursue this action under the provision of the statute which defines a person acting as a parent as one who, pursuant to KRS 403.800(13)(b), "[h]as been awarded legal custody by a court or claims a right to legal custody under the law of this state." Both Ford and C.R.F. argue that the November 23, 2010, Guardianship Order of the Daviess District Court satisfies the requirements of the statute. We disagree.
Sub judice, the guardianship order was entered by the court before C.R.F. was born. Upon review of KRS 387.025, which set forth the requirements to apply for appointment as a guardian, we note that it reads as follows:
(1) Any interested person or entity may petition the District Court for the appointment of a guardian or limited guardian for an unmarried minor.
(2) Any interested person or entity may petition the District Court for appointment of a conservator for a minor who owns real or personal property, or both, requiring management or protection or who has or may have business interests that may be jeopardized or prevented by minority, or who needs a conservator to settle or compromise claims.
(3) The petition for appointment shall set forth the following:
(a) The name and address of the minor;
(b) The date of birth of the minor;
(c) The name and address of the minor's spouse, if any;
(d) The names and addresses of the minor's parents, or if the minor has no living parent, the names and addresses of the minor's adult next of kin;
(e) The name and address of the individual or facility having custody of the minor;
(f) The facts and reasons supporting the need for a guardianship, limited guardianship, or conservatorship for the minor;
(g) A description and approximation of the value of the minor's real and personal property and other
financial resources, including government benefits, insurance entitlements, and anticipated yearly income;(4) The petition shall be accompanied by a verified application of the person or entity desiring appointment as guardian, limited guardian, or conservator. The application shall set forth the following:
(h) The name and address of the petitioner;
(i) The name and address of the petitioner's attorney, if any; and
(j) The name and address of the person or entity desiring appointment as guardian, limited guardian, or conservator.
(a) Name, address, and age of the applicant;(5) The District Court shall appoint a time for hearing the petition and application. Notice of the time and place of the hearing shall be given not less than five (5) days prior to the hearing to the minor, if the minor is more than fourteen (14) years of age, and to each of the persons or entities required to be named in the petition. Proof of notice shall be made in accordance with the provisions of KRS 395.016. Notice may be waived as provided in KRS 395.016.
(b) The applicant's relationship to the minor, if any;
(c) Whether or not the applicant has ever been convicted of a crime; and
(d) The applicant's qualifications to serve as guardian, limited guardian, or conservator.
Review of this statute clearly indicates that it contemplates guardianship over a child who has already been born. This is most clear in the fact that it requires the minor's name, address, and date of birth. Moreover, the statute requires the name and address of the facility or individual having custody of the minor. In the opinion of this court, this clearly indicates an assumption that the child has been born, and is residing in a physical location outside of the mother's womb. A mother would certainly have no need to file an application for guardianship of her own child prior to its birth, and if the application were filed by one other than the mother, one who presumably would want to obtain physical custody of the child, there would obviously be no manner in which such custody could be obtained prior to the child's birth. Accordingly, this Court is of the opinion that entry of the order of guardianship was erroneous and that, accordingly, Ford lacked standing to pursue permanent custody of C.R.F. pursuant to 403.800(13).
In affirming, we note that we reached this result on grounds and through reasoning which was different than that relied upon by the trial court, although we believe the result which was attained was ultimately correct. See, e.g., Vega v. Kosair Charities Committee, Inc., 832 S.W.2d 895 (Ky. App. 1992).
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Certainly, even after a petitioner establishes that they are a "person acting as a parent," the biological parent is still considered to have a superior right of custody. Moore v. Asente, 110 S.W.3d 336, 359 (Ky. 2003). However, as we have found that Ford lacked standing to pursue permanent custody for the foregoing reasons, we decline to address the remainder of the arguments made by the parties concerning Alquizar's fitness to parent C.R.F., or whether she waived her superior right to custody.
Accordingly, we hereby affirm the June 8, 2012, order of the Daviess Circuit Court. In so finding, we also affirm the court's decision to continue Ford's temporary custody of C.R.F., with timesharing to be exercised by Alquizar in accordance with the terms set forth by the court below.
TAYLOR, JUDGE, CONCURS.
CLAYTON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: John Austin
Owensboro, Kentucky
BRIEF FOR APPELLEE, C.R.F.: Stephen C. Pace
Owensboro, Kentucky