Opinion
NO. 2013-CA-001876-ME
06-27-2014
JENNIFER G. MULLINS APPELLANT v. JODI A. NEELEY AND RITCHE NEELEY APPELLEES
BRIEF FOR APPELLANT: Stella B. House None Manchester, Kentucky BRIEF FOR APPELLEES: None
NOT TO BE PUBLISHED APPEAL FROM JACKSON CIRCUIT COURT
HONORABLE GENE CLARK, JUDGE
ACTION NO. 12-CI-00233
OPINION
VACATING AND REMANDING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. COMBS, JUDGE: Jennifer Mullins appeals an order of the Jackson Circuit Court that dismissed her petition for custody. After our review, we vacate and remand.
Jodi Neeley had married her husband several years prior to her pregnancy with the child whose custody is at issue in this case. While pregnant, she returned home to Kentucky from Michigan in 2002 and moved into the home of Jennifer Mullins.
Mullins and Jodi Neeley were living together in June 2003 when Neeley gave birth to her son. The three of them lived together for several years. In June 2007, Mullins and the child moved to Florida, where she was his sole caregiver until Neeley joined them in early 2008. Mullins remained primary caregiver for the following two years because Neeley was in and out of the hospital for extended periods of time.
In January 2011, Mullins, Neeley, and the child moved to Ohio. On August 22, 2011, the Ohio court issued a civil protective order against Neeley. It named both Mullins and the child as protected parties. Once again, Mullins became the child's sole caregiver. She filed a complaint for custody on February 9, 2012. However, the next day, the court released the child from the protection of its previous order and returned him to the custody of Neeley. At that time, Neeley relocated with the child to Jackson County, Kentucky.
On February 28, 2012, the Jackson Circuit Court entered an EPO between the parties after Neeley filed a petition in which she indicated that she and Mullins had been involved in a relationship that ended in July of 2011. The Jackson Circuit Court followed up with entry of a Domestic Violence Order on March 12, 2012.
On November 21, 2012, Mullins filed a petition for custody in Jackson Circuit Court. She amended the petition twice. The court held a hearing on her third amended petition on July 16, 2013. On September 30, 2013, the court entered its order dismissing the petition due to a lack of standing. This appeal follows.
Mullins's sole argument is that the trial court failed to apply the proper law. Since we are addressing an issue of law rather than fact, our review is de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).
At the threshold, we note that Neeley has not submitted a brief. According to Kentucky Rule[s] of Civil Procedure (CR) 76.12(8)(c), we may:
(i) accept [Mullins's] statement of the facts and issues as correct; (ii) reverse the judgment if [Mullins's] brief reasonably appears to sustain such action; or (iii) regard [Neeley's] failure as a confession of error and reverse the judgment without considering the merits of the case.We are persuaded that Mullins's brief reasonably appears to support our reversal of the underlying judgment.
The trial court found that Mullins did not have standing under Kentucky Revised Statute[s] (KRS) 403.270 or 403.800(13). Courts rely on both statutes to establish standing of a non-parent who seeks custody of a child. Mullins v. Picklesimer, 317 S.W.3d 569, 574-76 (Ky. 2010). KRS 403.270 sets forth the determination of whether a non-parent is a de facto custodian; KRS 403.800(13) describes the factors that must be met in order for a person to be deemed to be acting as a parent. Although Mullins does not claim that she satisfies the requirements of either statute, it is unnecessary for us to analyze the statutory elements. Instead, Mullins argues that the court erred in failing to address whether Neeley was unfit or whether she had waived her superior parental rights. We agree.
We first note that as authority for her argument, Mullins has cited us to Mullins, supra. It is not on-point for the factual issues before us because it established standing by statute. However, Mullins also points us to Truman v. Lillard, 404 S.W.3d 863 (Ky. App. 2012), which provides guidance for her situation. The Truman court does not linger on the issue, but it mentions that standing is conferred if the court finds that a parent has waived her superior right of custody or has been determined to be unfit. Id. at 868.
Our court has expanded its reasoning in another decision, Brumfield v. Stinson, 368 S.W.3d 116, 119 (Ky. App. 2012). In Brumfield, we held that the trial court had improperly found that the non-parents were de facto custodians. We remanded and advised the lower court that:
[w]hen a non-parent does not meet the statutory standard of de facto [sic] custodian in KRS 403.270, the non-parent pursuing custody must prove either of the following two exceptions to a parent's superior right or entitlement to custody: (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.Id. (Internal citations omitted). In this case, after finding that Mullins did not meet the qualifications of a de facto custodian, the court did not address either of her claims that Neeley was an unfit parent or that she had waived her superior parental rights. Thus, because the court did not conduct sufficient analysis, we are compelled to remand for proceedings consistent with this opinion.
We vacate the order of the Jackson Circuit Court and remand for additional proceedings.
ALL CONCUR. BRIEF FOR APPELLANT: Stella B. House None
Manchester, Kentucky
BRIEF FOR APPELLEES: None