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Meinders v. Middleton

Supreme Court of Kentucky

April 18, 2019

DIXIE MEINDERS AND RHIANNON SCRONCE APPELLANTS
v.
DARYL K. MIDDLETON APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NUMBER 2017-CA-001096 MCCRACKEN CIRCUIT COURT NO. 16-CI-00679

          COUNSEL FOR APPELLANTS: JOHN THOMAS REED LAW OFFICE OF JOHN T. REED LORI BETH SHELBURNE GESS, MATTINGLY & ATCHINSON, PSC

          COUNSEL FOR APPELLEE: ANDREW KENNETH ASBRIDGE OAKES LAW FIRM

          OPINION

          LAMBERT JUSTICE.

         This is a case concerning the custody of one child, CJS.[1] Appellant Rhiannon Scronce[2] appeals the Court of Appeals' decision reversing the McCracken Circuit Court's finding that Rhiannon qualified as CJS's de facto custodian under KRS[3] 403.270. The following issues are also presented to us in this appeal: (1) may the time period required to gain de facto custodian status under KRS 403.270 be aggregated, or must it be continuous?; (2) what constitutes the commencement of a legal proceeding to toll the de facto custodian time requirement under KRS 403.270?; and (3) is a putative father who has taken no steps to establish paternity beyond obtaining a DNA test a "parent" for the purposes of KRS 403.270? For the following reasons, we affirm in part and reverse in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The facts surrounding this case are somewhat complicated and tremendously unfortunate. CJS was born in December of 2014. When CJS's mother, Jasmine Shoales, discovered she was pregnant she let Rhiannon and Dixie Meinders believe that Caleb Scronce was the child's father. Caleb is Rhiannon's brother and Dixie's son. Jasmine kept up this ruse throughout her pregnancy and for nearly a year after CJS was born.

         In September of 2015, Dixie, still believing she was CJS's paternal grandmother, filed a dependency, neglect, and abuse petition and requested emergency custody (the "J" case). During the hearing on the petition, the trial court found that Jasmine's home had environmental issues with trash, insects, cleaners, and cigarette butts in reach of CJS. The court also found that Jasmine failed to give CJS an antibiotic that had been prescribed to him, and that the child was asthmatic, who was being exposed to cigarette smoke within the home. At the final adjudication hearing on November 5, 2015, the court granted temporary custody to Rhiannon and Dixie. CJS would reside with Rhiannon in Lexington and visit Dixie in Paducah.[4] Jasmine did not appear at this hearing, and Caleb was incarcerated at that time. For some reason, the court also relieved the Cabinet of involvement at this stage of the proceedings, presumably because the Cabinet did not have custody.[5]

         Four days after Rhiannon and Dixie received temporary custody of CJS through the combined adjudication and disposition hearing, [6] Jasmine filed two motions. One requested that the adjudication hearing be reset because she claimed she got the court date confused with other appointments and missed the hearing. The second motion requested a paternity test for Keith Middleton, the man we now know is CJS's actual biological father. The court ordered DNA testing, to be paid for by the mother, and set the next court date for December 10th. Due to the delay of the DNA results, the review was continued until January.

         During the January hearing, DNA results confirming that Keith is CJS's father were presented and recognized by the court. Keith requested visitation, but the court denied his request citing the fact that he is a Missouri resident and the court "knew nothing about him." Instead, the court ordered a home study on Keith under the Interstate Compact for the Placement of Children.[7] This study never occurred. The final adjudication date was set for May 5, 2016.

         On April 29, 2016, Keith moved to transfer custody. However, it became clear during the May 5th hearing that Dixie and Rhiannon were unwilling to relinquish their custody. Therefore, the parties and the court agreed that Keith would begin visitation with CJS and gradually receive more visitation time to "see how things go."[8] Jasmine did not attend this hearing, and the court suspended her visitation rights.

         In September of 2016, Keith filed a separate civil action in Circuit Court seeking custody of CJS (the "CI" case). Rhiannon and Dixie filed a Response and Counter Petition for custody. As McCracken County has a family court, both cases were assigned to the same judge. On January 3, 2017, an Agreed Order was entered joining the "J" case and the "CI" case, and a final hearing date was set for May of 2017.

         During the May 2017 hearing, the court heard testimony from Keith, Dixie, Rhiannon, and Tony Harris, a licensed counselor who testified on . Keith's behalf. Jasmine was again absent. The court, relying on Spreacker v. Vaughn, 397 S.W.3d 419 (Ky. App. 2012), found:

that as the child was never placed by the Cabinet and as the child is under 3 years of age, the length of time necessary to establish de facto custodianship is six (6) months. The court finds specifically that the child has resided with RHIANNON for more than (6) months prior to the filing of MR. MIDDLETON's petition for custody, as MR. MIDDLETON did not commence a separate action to regain custody of his child as required by KRS 403.270(1)(a) to toll the (6) month period until his filing of September 6, 2016.

         Rhiannon was therefore granted custody. Keith received two daytime visitations per month, and a minimum of four hours of visitation anytime Rhiannon was in Paducah with the child.

         Keith appealed the custody order, and the Court of Appeals reversed. The Court of Appeals, relying on Heltsley v. Frogge, 350 S.W.3d 807 (Ky. App. 2011), found that Keith's April 29, 2016, motion to transfer custody was sufficient to toll the time required for Rhiannon to gain de facto custodian status. It therefore found that Rhiannon did not qualify for de facto custodian status and reversed the circuit court. This appeal followed.

         Additional facts are discussed below as necessary.

         II. ANALYSIS

         Addressing the primary issue in this case, i.e. whether Rhiannon qualified as a de facto custodian, allows us to clear up some confusion surrounding KRS 403.207 and its corresponding case law. Namely: (1) whether the time period required for de facto status must be continuous; and (2) what constitutes the commencement of a legal proceeding sufficient to toll the time required for de facto status. These are questions of law and are therefore subject to de novo review. Cherry v. Carroll, 507 S.W.3d 23, 26 (Ky. App. 2016).

         A. THE TIME PERIOD REQUIRED FOR DE FACTO CUSTODIAN STATUS MUST BE CONTINUOUS

         The portion of the statute at issue here is KRS 403.270(1)(a), which states:

(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.

(emphasis added).

         Rhiannon and Dixie assert that the period of time required for de facto status may be aggregated because the statute does not say "a continuous period of six months or more." They argue that a two-week period in the spring of 2015, when Jasmine was in jail and they took care of CJS, should be added to the period between November 5, 2015 and April 29, 2016; the period between Rhiannon getting custody and Keith filing his motion to transfer custody, respectively. They reason that if those two weeks were added to this five month and twenty-four-day period, the time period would total the requisite six months. We disagree.

         "The cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect...[t]hus, we first look at the language employed by the legislature itself, relying generally on the common meaning of the particular words chosen." Jefferson County Bd. Of Educ. v. Fell, 391 S.W.3d 713, 718-19 (Ky. 2012). In this situation, ascertaining the intention of the legislature is fairly simple. Within the phrase "a period of six months," the operative word is "a." The word "a" when used in this context means one single thing. Therefore, the statute could be reworded to say, "one single period of six months" and still retain its original meaning. Obviously, if one were to aggregate two or more periods of time it would not be one single time period. Therefore, we cannot hold that the legislature intended to allow the aggregation of different time periods when it passed the de facto custodian statute.

         Further, to allow a claimant to aggregate periods of time would undermine the purpose of the statute. Granting someone de facto custodian status gives that person "the same standing in custody matters that is given to each parent." KRS 403.270(1)(b). "(T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000). Therefore, a process that puts a third party on equal footing with a parent is not one to be taken lightly. It is a high burden, and rightfully so. To allow a third party to aggregate periods of time to add up to six months-or a year, depending on the child's age-would drastically lower the burden of proof in comparison to proving the child lived with them continuously for the requisite time.

         We therefore hold that the period of time required to qualify for de facto custodian status under KRS 403.270 must be one continuous period of time. Thus, neither Rhiannon nor Dixie qualify as de facto custodians.

         B. FILING A SEPARATE CUSTODY ACTION IS NOT NECESSARY TO TOLL THE TIME PERIOD REQUIRED FOR DE FACTO CUSTODIAN STATUS

         The procedural history of this case demonstrates the existence of inconsistent case law from the Court of Appeals regarding what constitutes the commencement of a legal proceeding under the de facto custodian statute. The pertinent portion of that statute reads: "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). Here, the trial court applied Spreacker v. Vaughn, 397 S.W.3d 419 (Ky. App. 2012), and found that the time period had not been tolled prior to Rhiannon gaining de facto status. The Court of Appeals applied Heltsley v. Frogge, 350 S.W.3d 807 (Ky. App. 2011), and found the time period was tolled prior to Rhiannon gaining de facto status.

         In Spreacker, the child's paternal Great-Aunt was babysitting the child for the weekend. Spreaker, 397 S.W.3d at 420. The child's mother was arrested that weekend, and the child's father was already incarcerated. Id. The Great-Aunt therefore filed a dependency, neglect, and abuse petition in Boyd County where the child resided and requested custody. Id. The court granted emergency custody to her on July 7, 2010. Id. During the adjudication hearing on the matter, the child's parents admitted to neglect, and the court ordered that the Great-Aunt retain custody. Id. at 421. In January of 2011, the Great-Aunt filed a petition for custody in Greenup County, her county of residence. Id. The child's mother filed a response and motion to dismiss, which was denied. Id. At a hearing held in May of 2011, the court found that the Great-Aunt was a de facto custodian and awarded her custody. Id.

         The Court of Appeals declined to address the issue of whether the time required for de facto status had been tolled because "[mother] admitted in a pleading that she 'did not commence a separate action to regain custody of her child, as required by KRS 403.270(1)(a) to toll the six-month period[.]"' Id. at 422. It therefore, albeit indirectly, held that an ...


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