Opinion
NO. 2016-CA-001449-ME
04-28-2017
G.D. APPELLANT v. BARREN COUNTY ATTORNEY'S OFFICE, COMMONWEALTH OF KENTUCKY, AND D.S., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Traci Peppers Glasgow, Kentucky BRIEF FOR APPELLEES: Dennis Wilcutt Glasgow, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE W. MITCHELL NANCE, JUDGE
ACTION NO. 13-J-00188-002 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, DIXON, AND J. LAMBERT, JUDGES. CLAYTON, JUDGE: A father appeals a disposition hearing order and permanent custody order where a trial court granted permanent custody pursuant to Kentucky Revised Statutes ("KRS") 620.070 of one of father's minor children to a non-relative. Father claims on appeal: (1) that the trial court erred by using the best interests of the child standard when awarding permanent custody; and, (2) that the trial court did not have sufficient proof that reasonable efforts were made to prevent removal of the child from the father's home. Having reviewed the record and the applicable law, we reverse and remand the permanent custody order because the trial court failed to make the requisite factual findings regarding how the non-parent custodian has standing to seek custody. We further reverse and remand the dispositional order because it closes the case due to the entry of the permanent custody order, and on remand the trial court may reconsider whether reasonable efforts were made to prevent removal of the child from the father's home.
We first recite the relevant history. In August of 2015, it came to appellant's attention that a young male child may be his biological son. Previously, the mother held out that the child belonged to another man. Genetic testing was performed, and on July 11, 2016, it was confirmed that the now seven-year-old child was appellant's son. By this point in time, appellant was incarcerated for failing to pay child support on his other children.
On August 16, 2016, a juvenile summons was filed for a dependency, neglect or abuse ("DNA") proceeding. It was alleged that the appellant has failed to provide adequate care, supervision, food, clothing, shelter, and medical and educational care necessary for the child's well-being. It was further alleged that even when he is released from the detention center that he will be unlikely to provide support for the child, as he is unemployed and does not have suitable housing. Furthermore, the appellant has never had any contact with his son.
On August 23, 2016, the trial court entered an order following a temporary removal hearing and placed the child in the custody of Elizabeth Lindner, the aunt of the child's mother's husband.
On August 30, 2016, another hearing was held at which the appellant stipulated that the child was dependent due to the following facts:
[The child] is under improper care that is not due to an intentional act of [appellant.] [Appellant] was confirmed to be [the child's] father pursuant to genetic testing entered on July 11, 2016. [Appellant] was alleged to be [the child's] father since August of 2015. [Appellant] is currently incarcerated in the Barren County Detention Center for failure to pay child support in the amount of $22,638.13 (for other children) pursuant to judgment entered on 3-28-16 in Barren 09-CI-121.
Finally, on September 20, 2016, a combined disposition hearing and a hearing on the Commonwealth's motion for permanent custody was held. Prior to the hearing, the Commonwealth filed a dispositional report dated September 14, 2016. The report noted that the child had been with Lindner since October of 2014. The child was in elementary school and receiving counseling services. The child has no bond with the appellant. The appellant was scheduled to be released from incarceration in October of 2016. The report recommended the child be placed in Lindner's permanent custody, and that "Lindner and [appellant] cooperate with one another and work together regarding visitations in order for [the child] to begin to build rapport with his father." The report also recommended appellant "work toward progress of the case plan."
Also present was the child's mother, who was the subject of a separate DNA proceeding. The mother indicated that if the trial court could resolve the father's DNA proceeding by granting permanent custody to Lindner, the mother's case could resolve similarly.
At the hearing, the Commonwealth called one witness, the Cabinet for Health and Family Services' case worker who had been assigned to appellant's case. She testified that the child had been in Lindner's custody since October 31, 2014. The child had not met nor did he know the appellant. Lindner was open to scheduling visitation time for the child with both parents.
At the hearing's conclusion, the trial court entered two written orders in addition to its oral rulings. The written orders were an AOC-DNA-5 form "Order Disposition Hearing", and an AOC-DNA-9 form "Order Permanent Custody Pursuant to KRS 620.027". The AOC-DNA-5 form incorporated the dispositional report into the court's orders, found that the child's best interests required the court to take custody of the child, and found that continuation in the home was contrary to the child's welfare. The court further found reasonable efforts were made to prevent the child's removal from the home, and there were no less restrictive alternatives to removal of the child from the home. The Court concluded that the case would be closed due to the issuance of the DNA-9 form.
The DNA-9 form ordered that the child be placed in Lindner's permanent custody. The court based this order on its conclusion that Lindner was the child's non-parent custodian; the order made no factual findings regarding how Lindner was a non-parent custodian. Furthermore, pursuant to KRS 620.027, custody was being determined in accordance with the best interests of the child standard after the trial court considered the following factors:
The wishes of child's parent or parents, and any de facto custodian, as to his/her custody;
The interaction and interrelationship of child with parent(s), siblings, and anyone else who may significantly affect the child's best interests;
The child's adjustment to his/her home, school and community;
The mental and physical health of all individuals involved[.]
The court's written order did not elaborate on these factors, it simply checked off the form's boxes. The court orally explained its order to the parties. The court noted that in addition to the DNA case, the appellant also had an ongoing paternity case relating to the instant child. Though it believed its decision was correct and in the best interests of the child, the court admitted its decision was also made for "expediency" purposes and to clear off the docket. It found Lindner was a non-parent custodian, though its written order made no factual findings or legal conclusions regarding how Lindner was a non-parent custodian. And in spite of the fact that the order was granting Lindner permanent custody, the trial court warned Lindner and the other parties that the order was not "eternal" and could be attacked in another case, including the paternity action. Notably, the court's written order concludes that, "Pursuant to London v. Collins, 242 S.W.3d 351 (Ky. App. 2007), this is not a 'custody decree' & the procedural requirements of KRS 403.340 for modification are inapplicable."
A permanent custody order in a DNA case may constitute a custody decree in some situations. N.L. v. W.F., 368 S.W.3d 136, 147 (Ky. App. 2012). As we are reversing and remanding, we do not need to decide whether the current order constitutes a custody decree subject to modification pursuant to KRS 403.340. --------
The father appealed and now raises two allegations of error. First, the father claims the trial court erred by using the best interests of the child standard when it did not make a finding that Lindner was a de facto custodian. Second, the father claims the trial court erred when it concluded that reasonable efforts were made to prevent removal of the child from the father's home. Because we find error with the first claim, we are reversing and remanding both orders for additional proceedings.
We first address the best interests of the child issue. We hold that the trial court erred by not making the requisite finding that Lindner either had standing to pursue custody or was a de facto custodian prior to utilizing the best interest of the child standard for permanent custody. KRS 620.027 permits the court to determine custody in DNA cases "where the need for a permanent placement and custody order is established as set forth in this chapter." To determine the permanent placement and custody order under this section, the trial court "shall utilize the provisions of KRS Chapter 403 relating to child custody and visitation."
KRS Chapter 403 is governed by the bedrock principle in Kentucky that "a parent's superior right to custody, as opposed to a non-parent, is paramount[.]" Diaz v. Morales, 51 S.W.3d 451, 454 (Ky. App. 2001). Accordingly, non-parents must have standing in order for a trial court to usurp the parent's superior rights because "we necessarily abrogate those [superior] rights if we were to resolve custody disputes on a 'best interest of the child' standard after allowing a nonparent to obtain standing by mere possession of the child[.]" Moore v. Asente, 110 S.W.3d 336, 358 (Ky. 2003) (alterations added). In KRS 620.027 cases, a non-parent obtains standing by either being a de facto custodian, a grandparent in limited circumstances, or by being a person acting as a parent and the parent is either unfit or has waived his or her superior right to custody.
The first of those exceptions - the de facto custodian - exists by virtue of KRS 403.270(2). Under that statute, a de facto custodian is one who has 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.KRS 403.270(1)(a). "[T]he standard of proof required to establish a de facto custodial relationship is high - to wit - it must be demonstrated by clear and convincing evidence that the third party is the primary care giver and financial supporter for the stated time period." Diaz, 51 S.W.3d at 455 (footnote omitted). Once the trial court finds clear and convincing evidence that the person seeking custody is a de facto custodian, the trial court may utilize the best interest of the child standard to determine custody. Baker v. Combs, 248 S.W.3d 581 (Ky. App. 2008).
The second type of person to have standing in KRS 620.027 permanent custody cases is the grandparent (in limited circumstances). Though not relevant here, KRS 620.027 permits the court to recognize as an exception to KRS Chapter 403 that a grandparent has standing as a parent when the child has been residing with a grandparent in a stable relationship. When this exception is met, the trial court may utilize the best interests of the child standard to determine custody.
The third type of person to have standing is the non-parent custodian who is a "person acting as a parent[.]" KRS 403.822; Mullins v. Picklesimer, 317 S.W.3d 569, 574-575 (Ky. 2010). A person acting as a parent is one who has or has had physical custody of the child for six consecutive months within one year immediately before the child custody proceeding's commencement, and who has been awarded legal custody by a court or claims a right to legal custody under Kentucky's laws. KRS 403.800(13). See also Mullins, supra. When the non-parent has standing as a person acting as a parent, but nonetheless does not qualify as a de facto custodian, then to be entitled to custody the non-parent must prove either: "(1) that the parent is shown by clear and convincing evidence to be an unfit custodian[;] or (2) that the parent has waived his or her superior right to custody by clear and convincing evidence." Mullins, 317 S.W.3d at 578 (footnote and citation omitted). See also Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Once either waiver or unfitness is proven by clear and convincing evidence, the trial court may determine custody in accordance with the child's best interest. Moore, 110 S.W.3d at 360.
In the instant case, the trial court utilized an AOC-DNA-9 form titled, "Order Permanent Custody Pursuant to KRS 620.027". This form has four fact-finding options for the court to determine who should be given custody, and, if necessary, to detail the court's factual findings regarding how that person has standing: parent; non-parent custodian (with space to explain how the person has standing to pursue custody); grandparent (pursuant to the KRS 620.027 exception); and de facto custodian (with three options for the trial court to decide how the person is a de facto custodian under KRS 403.270(1)(a)). The trial court here checked the "non-parent custodian" box but made no factual findings regarding how Lindner had standing to pursue custody as a non-parent custodian. As a non-parent custodian only has standing if he or she is a person acting as a parent, the trial court's order is factually deficient regarding how Lindner has standing as a non-parent. Furthermore, even if the trial court found Lindner did have standing as a person acting as a parent, it also failed to make the requisite finding that the father waived his superior right to custody or that the father was unfit. Without the waiver or unfitness findings, the trial court was not at liberty to utilize the best interests of the child standard. See Moore, 110 S.W.3d at 360.
The Commonwealth responds by asserting that the father should have made a request to the trial court for specific findings pursuant to Kentucky Rules of Civil Procedure (CR) 52.04 if he found the permanent custody order factually deficient. We find that the father properly complied with the Rules. The trial court only checked off the "non-parent custodian" box and made no factual findings on the blank lines of the AOC-DNA-9 form explaining how Lindner had standing to pursue custody. This failure to make any kind of factual findings does not prohibit the father from raising this issue on appeal. Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011) (". . . as a matter of policy, when a court fails to make any kind of factual findings as required, the litigant should not be prohibited from asking an appellate court to require the lower court to make such findings.") (emphasis in original). See also Keifer v. Keifer, 354 S.W.3d 123, 125 (Ky. 2011) (admonishing trial courts "that it is their duty to comply with the directive of this Court to include in all orders affecting child custody the requisite findings of fact and conclusions of law supporting its decisions.").
Accordingly, we reverse and remand the permanent custody order for the trial court to hold a hearing and determine whether Lindner is a non-parent custodian (and, if so, how she has standing), or to determine whether Lindner is a de facto custodian. As Lindner is not the child's grandparent, the KRS 620.027 grandparent exception does not apply.
Finally, we address the father's second issue, namely that the trial court erred by concluding that reasonable efforts were made to prevent the child's removal from the father's home. From the record it appears very little was done to prevent removal from the father's home, as the case plan that was filed on September 6, 2016, requested that the father complete several tasks beginning on August 23, 2016. Furthermore, the father was incarcerated at the time and was to be released in October 2016, thus he would have been unlikely that he could complete the tasks prior to October of 2016.
We need not determine whether the trial court's finding regarding reasonable efforts constituted error, however, as our reversal and remand of the permanent custody order necessitates that we reverse and remand the dispositional hearing order. The dispositional order is based on the conclusion that the case is being closed by entry of the permanent custody order. As the permanent custody order is being reversed and remanded, we must also reverse and remand the dispositional hearing order so the trial court may properly reconsider all options, including permanent custody, on remand.
WHEREFORE, because the permanent custody order fails to make the requisite factual findings and legal conclusions, and because the dispositional order closes the case due to the permanent custody order, we reverse and remand both orders for further consideration, including additional factual findings and conclusions of law.
ALL CONCUR. BRIEF FOR APPELLANT: Traci Peppers
Glasgow, Kentucky BRIEF FOR APPELLEES: Dennis Wilcutt
Glasgow, Kentucky