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,
COUNSEL FOR APPELLEE: ANDREW KENNETH ASBRIDGE OAKES LAW FIRM
a case concerning the custody of one child,
Appellant Rhiannon Scronce appeals the Court of Appeals'
decision reversing the McCracken Circuit Court's finding
that Rhiannon qualified as CJS's de facto
custodian under KRS 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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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. 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.
days after Rhiannon and Dixie received temporary custody of
CJS through the combined adjudication and disposition
hearing,  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.
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. This study never occurred. The
final adjudication date was set for May 5, 2016.
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." Jasmine did not attend this hearing, and
the court suspended her visitation rights.
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.
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.
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.
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.
facts are discussed below as necessary.
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).
THE TIME PERIOD REQUIRED FOR DE FACTO CUSTODIAN
STATUS MUST BE CONTINUOUS
portion of the statute at issue here is KRS 403.270(1)(a),
(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.
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.
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.
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
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.
FILING A SEPARATE CUSTODY ACTION IS NOT NECESSARY TO TOLL THE
TIME PERIOD REQUIRED FOR DE FACTO CUSTODIAN STATUS
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
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.
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 ...