Opinion
NO. 2018-CA-000313-ME
12-14-2018
RUSSELL JEFFERSON APPELLANT v. REBECCA PITTMAN, HELEN ROSEANN JEFFERSON, AND THOMAS WOODS APPELLEES
BRIEF FOR APPELLANT: Donald Joe Sharp Greensburg, Kentucky BRIEF FOR APPELLANT: Joseph R. Stewart Lebanon, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 17-CI-00266 OPINION
REVERSING AND REMANDING
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BEFORE: D. LAMBERT, NICKELL, AND TAYLOR, JUDGES. LAMBERT, D., JUDGE: In this case Russell Jefferson ("Jefferson") appeals a custody determination of the Taylor Circuit Court. The circuit court granted Rebecca Pittman ("Pittman") custody of Jefferson's child ("R.J.") after finding Pittman was the child's de facto custodian. After thorough review of the record, we reverse and remand for a new custody hearing in accordance with this opinion.
The child's name is abbreviated to protect his or her privacy.
I. FACTUAL AND PROCEDURAL HISTORY
On May 4, 2017, the Cabinet for Health and Family Services ("CHFS") removed then nine-year-old R.J. from Jefferson's home following an investigation into neglect and abuse charges. The CHFS placed R.J. with Pittman on an emergency basis. Pittman is R.J.'s maternal aunt. The CHFS's investigation found that R.J. and the other child in the household were exposed to repeated instances of drug abuse and domestic violence. Testimony at the subsequent custody hearing revealed that, at the time the children were removed, the house was in total disarray and was infested with roaches, maggots, and lice.
The other child is not Jefferson's biological child. --------
R.J. remained in Pittman's care for the next four months, and on September 5, 2017, Pittman filed a petition for custody of R.J. and requested that the court designate her as R.J.'s de facto custodian as defined in Kentucky Revised Statute ("KRS") 403.270(1)(a). Jefferson filed a response opposing Pittman's petition. Following a hearing on those motions, the circuit court found Pittman met the statutory requirements for de facto custodian status. The court awarded Pittman custody of R.J., and gave Jefferson unsupervised visitation every Saturday from 10 a.m. to 7 p.m. This appeal followed.
II. ANALYSIS
The sole issue presented on appeal is whether the circuit court erred by finding that Pittman met the statutory requirements to be deemed R.J.'s de facto custodian. A trial court's statutory interpretation is a question of law which we review de novo, giving no deference to the lower court's determination. Seeger v. Lanham, 542 S.W.3d 286, 290 (Ky. 2018).
KRS 403.270(1)(a) sets forth the requirements for a non-parent to be designated a de facto custodian:
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.(Emphasis added.) The circuit court interpreted the italicized portion of the statute, supra, to mean that because R.J. was placed in Pittman's care by the CHFS she automatically became R.J.'s de facto custodian. In other words, R.J. did not need to live with Pittman for a year before Pittman could be designated as her de facto custodian. It is this interpretation that Pittman urges us to affirm. Jefferson on the other hand argues this provision means that, if a child is either three years old or older or has been placed by the Department for Community Based Services, that child must live with the non-parent for at least a year before qualifying for de facto status. For the following reasons, we agree with the latter interpretation.
When trying to discern the meaning of a statute, an appellate court's foremost objective is to determine the General Assembly's intent in passing it. Pearce v. Univ. of Louisville, 448 S.W.3d 746, 749 (Ky. 2014). To determine the General Assembly's intent, we first look at the language of the statute itself and give the words their plain and ordinary meaning. Id. We interpret a statute only as written, and the intent of the General Assembly must be construed from the language used, if it is plain and unambiguous. Id. When a statute is unambiguous, we need not consider any extrinsic evidence, such as legislative history, to determine its meaning. Id.
As we have already mentioned, the statute at issue here is KRS 403.270(1)(a). The statute defines a de facto custodian as a person who has been the primary caregiver 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.(Emphasis added.) The language of this statute is clear and unambiguous. If a child is under the age of three, the child must live with a non-parent for six months before the non-parent can qualify for de facto custodian status. On the other hand, if the child is three years old or older, or has been placed with the non-parent by the state, the child must live with the non-parent for at least one year before the non-parent can qualify for de facto custodian status.
Further, if the General Assembly did not want a residency time requirement for children placed in the care of non-parents by the state, it could have easily included language to that effect. For example, the statute could have said, "a person will automatically be deemed a child's de facto custodian if the child is placed in their care by the Department for Community Based Services." Instead, the General Assembly included the possibility of placement by the state in the clause that requires a one-year residency period. We therefore find that the General Assembly's intent to require a one-year residency period for children placed by the state with a non-parent before that person can qualify for de facto custodian status is plain from the language of KRS 403.270(1)(a).
Pittman disagrees with this interpretation and relies primarily on B.C. v. B.T., 182 S.W.3d 213 (Ky. App. 2005) to support the trial court's alternative interpretation of KRS 403.270(1)(a) in this case. In B.C., a child was placed with her paternal grandmother by the CHFS, and the child's paternal aunt was given one overnight visitation per week. Id. at 214-15. Less than five months later the child's grandmother and aunt moved the court to grant them permanent custody. Id. The trial court gave them joint custody of the child, and the child's father appealed. Id. at 215-16.
On appeal there was "no dispute between the parties that the paternal grandmother and the paternal aunt were de facto custodians as defined by KRS 430.270(1)(a)" and the court's analysis instead focused on "whether the family court erred in its analysis of KRS 403.270(2) and whether the father was given equal consideration with the de facto custodians." Id. at 219. This court ultimately affirmed the trial court's ruling. Id. at 221.
Pittman argues that B.C. requires us to affirm the trial court's interpretation of KRS 403.270(1)(a) because in B.C. this court affirmed the trial court's finding that a non-parent qualified as a de facto custodian even though the child had only lived with that person for about five months. But the court in B.C. made it clear that whether the child's grandmother and aunt qualified as de facto custodians was not at issue on appeal. We acknowledge it was error for the court to affirm the trial court's finding that the child's aunt and grandmother qualified as de facto custodians. However, we assume it was an oversight due to its focus on the trial court's application of KRS 403.270(2). At any rate, we decline to follow that finding of the appeals court, as it was clearly inconsistent with KRS 403.270(1)(a).
Further, this case is nearly identical to Cherry v. Carroll, 507 S.W.3d 23 (Ky. App. 2016). In Cherry, three children were placed in their maternal grandfather's care by social services. Id. at 24. The children had been living with their grandfather for almost seven months when social services returned them to their father. Id. On the same day, their grandfather asked the court to designate him as the children's de facto custodian. Id. Even though the children had only lived with their grandfather for seven months, the trial court found that he qualified for de facto status. Id. at 26. The children's father appealed. Id.
On appeal, one of the questions presented to this court was "whether a court may designate a person a de facto custodian solely because the Cabinet for Health and Family Services (CHFS) placed a child with him." Id. at 24. This court found that "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." Id. at 27. Therefore, because the children had lived with their grandfather for only seven months when he requested de facto status, this court reversed the trial court's ruling and remanded the case for an appropriate order. Id. at 28. Given the substantial factual similarities between Cherry and this case, and its correct application of KRS 403.270(1)(a), we find it to be controlling.
Finally, we note that, while secondary sources are not binding, our interpretation is consistent with the Kentucky Practice Series on the matter. In the Kentucky Practice Series on Domestic Relations Law, §21:29 discusses the statutory requirements for de facto custodian status:
A de facto custodian is a person shown by clear and convincing evidence to have been both the primary caregiver and the financial supporter of a child for an extended period of time. The amount of time necessary to become a de facto custodian depends on the child's age or the source of the de facto custodian's custody. If the child is under the age of three, a party can become the de facto custodian by providing primary care and support for six months. However, if the child is over age three or has been placed in the de facto custodian's home by the Department for Social Services, a party becomes a de facto custodian only after one year or more.16 Ky. Prac. Domestic Relations L. § 21:29 (emphasis added).
For all the foregoing reasons, we find that the trial court erred in its interpretation of KRS 403.270(1)(a).
III. CONCLUSION
After thorough review, we find that the trial court erred by finding that KRS 403.270(1)(a) did not require R.J. to live with his or her maternal aunt for one year before she could qualify for de facto custodian status. We therefore reverse and remand for a new custody hearing consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Donald Joe Sharp
Greensburg, Kentucky BRIEF FOR APPELLANT: Joseph R. Stewart
Lebanon, Kentucky