Opinion
NO. 2017-CA-001096-ME
03-02-2018
DARYL K. MIDDLETON APPELLANT v. DIXIE MEINDERS; RHIANNON SCRONCE; AND JASMINE SHOALES APPELLEES
BRIEF FOR APPELLANT: Andrew K. AsBridge Smithland, Kentucky BRIEF FOR APPELLEE: John T. Reed Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE DEANNA WISE HENSCHEL, JUDGE
ACTION NO. 16-CI-00679 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. CLAYTON, JUDGE: Daryl K. Middleton (hereinafter "Keith") appeals the May 31, 2017, Findings of Fact, Conclusions of Law, and Custody Order of the McCracken Family Court awarding custody of his biological son, C.J.S., to Rhiannon Scronce, a de facto custodian. After careful review, we reverse and remand.
BACKGROUND
This case commenced with the filing of an emergency custody motion on September 25, 2015, by Dixie Meinders and Rhiannon Scronce. The child, C.J.S., a boy, was born on December 19, 2014. His mother was Jasmine Shoales. When the parties filed the emergency custody motion, Dixie believed she was the paternal grandmother, and Rhiannon believed she was the paternal aunt. Their beliefs were based on Jasmine's claim that their son/brother, Caleb Scronce, was the child's father.
At the hearing concerning the emergency custody order, Jasmine testified that Dixie was renting a home for her. Further, she acknowledged that she was in jail from January 22, 2015, through January 30, 2015, and a second time from April 30, 2015, until May 22, 2015. The second incarceration occurred in Illinois. During these incarcerations, Jasmine admitted that Dixie and Rhiannon cared for the child. At no time during this hearing did Jasmine mention that anyone other than Caleb was the father of the child.
The underlying issue in the emergency hearing was medical neglect. When the child became ill, Jasmine took him to the doctor. But she never went back for a follow-up and failed to properly store the antibiotic medication or follow the directions for the medicine. Further, the home was filled with trash, ants, and clutter, with cleansers and cigarette butts left within reach of the child. In addition, the child, even though asthmatic, was exposed to cigarette smoke. The family court granted Dixie temporary custody and set a date for an adjudication hearing.
The adjudication hearing was held on November 5, 2015. Dixie and Rhiannon were present. Rhiannon had joined the petition to be named as a temporary custodian with her mother. Jasmine did not appear at the hearing. The family court found that the child's home was environmentally unsound; the child's medicine had not been properly administered; the child was exposed to cigarette smoke even though he was asthmatic; and, concluded the child was neglected and at risk of abuse. Accordingly, the family court awarded temporary custody to Dixie and Rhiannon.
Following the hearing, Jasmine filed two pro se motions on November 9, 2015, requesting a paternity test for Keith, and the other, requesting a new hearing because she had become confused about the date of the prior adjudication hearing. In the motion for a paternity test, Jasmine also noted that "[h]is father [sic] Keith Middleton who is a pharmacist in Missouri would like if he is placed with his paternal father." Another hearing was set for November 19, 2015. At the hearing, Dixie, Jasmine, and for the first time, Keith appeared at the hearing. In response to Keith's claim that he was the biological father, the family court ordered paternity testing.
At the January 14, 2016, hearing, the paternity test results confirmed that Keith was the biological father, and the case was continued until May 5, 2016. Keith requested visitation; however, because Keith was a Missouri resident, the family court ordered a home study under the Interstate Compact on the Placement of Children "ICPC" in Missouri before allowing visitation. On April 29, 2016, Keith filed a motion to transfer custody of the child to him.
At the May 5, 2016, review, Jasmine did not appear, but Keith again requested visitation. He was granted visitation. As noted, prior to the review, Keith had filed a motion to transfer custody to him, which the family court did not specifically address. However, the family court's docket order, following the hearing, stated in part:
Mr. Middleton has requested custody. The parties have worked out a resolution. Middleton will spend some time with the child today and over the next few weeks so that the father and son can become acquainted with one and another. They will all work toward a transition to Mr. Middleton having custody that is in [C.J.S]'s best interest.
Next, on September 6, 2016, Keith filed a separate civil action for custody of the child. Dixie and Rhiannon filed a response and a counter-petition seeking custody of the child. Keith also filed a motion to join the dependency and child custody matters. Dixie and Rhiannon had no objection to the motion for joinder, and thereafter, the original dependency action was joined with the custody action.
The final hearing occurred on May 5, 2017. The parties were represented by counsel and a guardian ad litem appeared on the child's behalf. Jasmine, again, did not appear. Keith, Dixie, and Rhiannon testified. In addition, Tony Harris, a licensed counselor, testified on Keith's behalf.
After the hearing, on May 31, 2017, the family court issued its findings. The family court explained at length its understanding of the witnesses' testimony. To begin, the family court was not swayed by Tony's statements regarding Keith. Tony testified that he had seen Keith for eight one-hour sessions with Jasmine attending four sessions. The family court noted that Tony had never met with the child, and the only information he had about the custodial situation was gleaned from Keith and Jasmine. Further, on cross-examination, Tony revealed that he knew nothing about Keith's drinking, a DUI charge from the last three years, and the current probation of his pharmacy license. Ultimately, the family court concluded that it could give no credence to Tony's testimony.
Next, Keith testified. He admitted that he had been charged with DUI and that his pharmacy license had been revoked. Keith also testified that he did not have other children, had diabetes, and was hard of hearing. He claimed that the child had lived with Jasmine and him exclusively from March 2015 until September 29, 2015, when the child was removed from Jasmine's custody. The family court observed that based on this testimony, Keith would have been living with Jasmine when she was charged with medical neglect of her child. Moreover, the family court commented in the findings that it was troubled that when Keith learned about the child's removal from his mother, he did nothing for six weeks to obtain custody of the child.
Keith was also aware of Jasmine's incarcerations, but rather than care for the child during those times, the child stayed with Dixie. His statements contradicted Dixie's statement that she went to Jasmine's house in Paducah to retrieve the child on the day Jasmine went to jail. Additionally, the trial court remarked that Keith has never provided any child support to Dixie and Rhiannon, even though he testified that he earns $130,000 annually. Additionally, he never attempted to provide the child with health insurance.
Rhiannon testified and said that C.J.S. has lived with her continuously since he was 11 months old (November 5, 2015). At the time of the hearing, the child was 2 ½ years old. She described C.J.S.'s life with her and provided photos. He has his own bedroom and she has taken him to the zoo, the science center, and the beach. She takes care of his medical needs.
Rhiannon provided testimony about the child's visitation with Keith. The family court expressed concern in its order regarding Keith's visitation with C.J.S. The visitation was usually Saturday afternoon and part of Sunday. Keith stated that during visitation with C.J.S., he kept the child in the hotel room and brought toys. Keith maintained that the child did not want to do anything else.
Rhiannon claimed that when Keith had visitation with the child, he had alcohol in his hotel room; and, on one occasion, she smelled it on his breath; and, on another occasion, he reeked of alcohol. Keith did not dispute this testimony. Once, when Rhiannon arrived to bring C.J.S. for visitation, Keith was apparently sleeping because he did not answer the hotel door or his phone. Later that morning, Keith called Rhiannon and said he had not heard her.
The family court stated that Keith appeared to have significant hearing loss and wore a hearing aid. Finally, the family court articulated its concern that although Keith stated he had significant family support in Cape Girardeau, Missouri, no one showed up at the hearing to support him.
On May 31, 2017, the family court's findings, conclusions and an order were entered. The family court, relying on Spreacker v. Vaughn, 397 S.W.3d 419 (Ky. App. 2012), held that Rhiannon was a de facto custodian and that it was in the child's best interests that Rhiannon be awarded legal custody of the child with Keith having four-hour daytime visitation with the child two times per month in Lexington.
Keith now appeals this decision. On appeal, Keith argues that he was deprived his constitutional right to rear his child because he did not receive proper notice of the temporary custody case; that Rhiannon should not have been designated de facto custodian since she did not meet the required time under the statute; that the family court abused it discretion by awarding sole custody to Rhiannon; and finally, that the family court's findings were clearly erroneous.
STANDARD OF REVIEW
When reviewing child custody determination, we set aside findings of fact only when clearly erroneous. Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986); Kentucky Rule of Civil Procedure (CR) 52.01. We examine a family court's findings of fact for clear error and the findings are only set aside when there is not substantial evidence to support them. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
If an appellate court determines the factual findings do not present clear error, the analysis shifts to an examination of the trial court's legal conclusions, which are reviewed under a de novo standard. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). Finally, an abuse of discretion occurs when a ruling is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
With these standards in mind, we turn to the case at bar.
ANALYSIS
Due process
Keith maintains that he was not given notice until much later that temporary custody of his son was given to Dixie and Rhiannon, and therefore, he had been deprived of due process. This argument is meritless for several reasons. First, according to Keith's testimony, Jasmine and Keith were living together at the time of the child's removal, so he knew about the child's removal when it occurred. Second, Jasmine led the trial court, Dixie, and Rhiannon to believe that Caleb Scronce was the father of the child. And the family court was only made aware of Keith's status when Jasmine, on November 9, 2015, six weeks after the child was placed with Dixie, made a motion naming Keith as the father and requesting paternity testing.
Keith's status as the biological father was not established until the paternity testing was completed in January 2016. At that point, the family court had a responsibility to determine whether placing the child with Keith was proper. A child's safety is paramount, and the biological relationship with the child is not the only factor. It was the family court's duty to determine whether placing C.J.S. with Keith was proper and in the child's best interest. Once the family court was made aware of Keith, he was included in all matters. Thus, his due process rights were not violated.
De Facto Custodian
Whether a party is a de facto custodian is controlled by Kentucky Revised Statute(s)(KRS) 403.270(1). Under that statute, the party claiming de facto custodian status must show the family court "by clear and convincing evidence" that the party was "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 . . ." as is the case here. KRS 403.270(1)(a).
To qualify as a de facto custodian, Rhiannon must prove that she provided substantial financial support for the child and was the child's primary caregiver. Boone v. Ballinger, 228 S.W.3d 1 (Ky. App. 2007). Keith does not dispute that Rhiannon primarily cared for and provided all financial support for the child.
But to be a de facto custodian, the party so claiming must establish, for a child under the age of three, that the child has resided with that person for a period of six months or more. Here, the family court found that C.J.S. had continuously resided with Rhiannon since November 5, 2015, which was ten months prior to Keith's filing the September 6, 2016, petition for custody. Based on these dates, the family court held that when Keith commenced the separate action to gain custody in September 2016, Rhiannon had custody of the child for ten months, and thus met the statutory time requirement for the designation of de facto custodian.
On appeal, Keith argues that Rhiannon did not meet the statutory time because it was tolled several times. First, he proffers that the time was tolled when Jasmine filed the motion for a paternity test and to transfer custody to him on November 9, 2015. This argument is a bit ingenuous since Keith could not have custody until it was determined that he, indeed, was the father, which did not occur until January 15, 2016. Nevertheless, the family court never ruled on Jasmine's motion to transfer custody to Keith, but instead, after Keith was determined the biological father, it ordered an ICPC study in Missouri. The record shows that this study was never conducted.
Yet, the statute specifically addresses the tolling of the time when it provides that "[a]ny 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). The statute references a "legal proceeding" and does not limit the type of proceeding; thus, nothing mandates that the legal proceeding must be a petition for custody. See J.G. v. J.C., 285 S.W.3d 766 (Ky. App. 2009).
On April 29, 2016, Keith filed his own motion to transfer custody. This motion was filed five and three-quarters months after Rhiannon had had custody of C.J.S. If this motion meets the criteria for a separate legal proceeding under KRS 403.270(1)(a), C.J.S. would not have resided with Rhiannon for the necessary six months. The six-month anniversary would have occurred on May 5, 2016. Accordingly, Keith's motion to transfer custody was filed before the six-month period necessary to be declared a de facto custodian elapsed. Thus, the question is whether the six-month time was tolled by the motion to transfer custody or by the petition for custody.
The family court cited Spreacker v. Vaughn, supra, in its findings as the case similar to this one in all respects. With regarding to the timing for a de facto custodian status, the family court relied on Spreacker for the proposition that Keith's September 6, 2016, petition for custody was the first separate legal proceeding, and hence, the relevant date for tolling the de facto time. It reasoned that Keith did not initiate a separate action for custody until the petition, and therefore, did not toll the statute prior to Rhiannon meeting the criteria for de facto custodian under KRS 403.270(1). Using the September 2016 date, the family court found that more than six months had passed since Rhiannon was the primary caretaker and financial support for the child.
Keith countered with Heltsley v. Frogge, 350 S.W.3d 807 (Ky. App. 2011), wherein our Court held that a custody dispute in a divorce proceeding is sufficient to toll the calculation of time regarding de facto custodianship since the demand for custody in an answer to a petition is equivalent of filing a counterclaim for custody. We agree with Heltsley since KRS 403.270(1)(a) states that "[a]ny 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." Thus, the Court indicated any legal proceeding initiated by a parent, including a response to a petition, is sufficient to toll the de facto custodian time requirement.
Nonetheless, in the case at bar, neither Spreacker and Heltsley are exactly on point. Spreacker emanated from a dependency, neglect, and abuse matter. And the mother in Spreaker admitted in the pleadings that she never commenced a separate action to regain custody of her child. However, like the matter in Heltsley, she did file a response to the other party's custody petition to dispute the awarding of custody to that party. A dissolution action was implicated in Heltsley.
In the matter at hand, like Spreacker, we have a custody dispute arising out of a dependency, neglect, and abuse matter. The child's custody was contested beginning in November 2015 when the mother moved for a paternity test and for custody to be provided to Keith, the biological father. Given that it was not yet clear whether Keith was the biological father and that Keith did not initiate a legal proceeding himself, the time was not tolled.
But Keith filed his own motion to transfer custody in April 2016, which was prior to the six-month time for Rhiannon to have the custody and support of C.J.S. In fact, the family court in its May 9, 2016 docket order acknowledged that "Mr. Middleton has requested custody," and that the parties "will all work toward a transition to Mr. Middleton having custody that is slow and in [C.J.S.]'s best interest." The family court's order lends credibility to Keith's initiating a legal proceeding, which under the statute, tolls the time for de facto status.
While the family court explained that the docket order does not reflect the discussions at the hearing, the order was never rescinded, and consequently, it is a valid order. Further, our Court has stated that the tolling of the time under the de facto custodian statute continues until the motion is ruled upon. J.G., 285 S.W.3d at 768. Technically, this motion has not been ruled upon.
But the most cogent language to ascertain whether Rhiannon was a de facto custodian is the plain meaning of the statute. The statute says that after a legal proceeding has been commenced any period of time that the child resides with another party shall not be included in the determination of the required minimum period. KRS 403.270(1)(a). Keith moved to transfer custody on April 29, 2016, which, under the statute, tolled the time for Rhiannon to be declared a de facto custodian. Thus, the family court erred in finding that Rhiannon met the six-month time requirement.
Since we have determined that Rhiannon did not meet the requirements for de facto custodian status, it is not necessary for us to address Keith's claims that the family court's findings of fact were clearly erroneous and an abuse of discretion. Rather, we remand this matter for further consideration of custody based on the standard used between a biological parent and a third party. For custody to be awarded to Rhiannon, she must establish that this case "falls within one of two exceptions to parental entitlement to custody. One exception to the parent's superior right to custody arises if the parent is shown to be unfit by clear and convincing evidence. A second exception arises if the parent has waived his or her superior right to custody." Moore, 110 S.W.3d at 359 (internal quotation marks and citation omitted).
CONCLUSION
For the aforementioned reasons, we reverse and remand the May 31, 2017 McCracken Family Court's Findings of Fact, Conclusion of Law, and Custody Order.
ALL CONCUR. BRIEF FOR APPELLANT: Andrew K. AsBridge
Smithland, Kentucky BRIEF FOR APPELLEE: John T. Reed
Paducah, Kentucky