APPEALS FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE DEANA C. MCDONALD, JUDGE ACTION NOS. 17-CI-501660
FOR APPELLANTS: Corey Shiffman John H. Helmers, Jr.
BRIEF FOR APPELLEE.
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
Lage and Dennis Lage bring these appeals from January 23,
2018, orders of the Jefferson Circuit Court, Family Court
Division, denying their motions to be declared de
facto custodians of K.S.H. and T.L.H., the biological
children of Britney Esterle. We vacate and remand.
28, 2015, Britney Esterle was admitted to Lifehouse Maternity
Home in Louisville, Kentucky. Britney, who was pregnant with
her fifth child, brought her two-year-old twins, K.S.H. and
T.L.H., with her to Lifehouse. The Lifehouse director then
contacted a program volunteer, Amy Lage, to inquire whether
she could care for the twins while Britney delivered and
recovered from childbirth.
agreement of the parties on August 3, 2015, K.S.H. and T.L.H.
began living with Amy and her husband, Dennis Lage. The
parties originally agreed the twins would stay with Amy and
Dennis for four months. Thereafter, the parties agreed to
extend the time into January 2016. In March 2016, Britney
left Lifehouse, but the twins remained with Amy and Dennis.
15, 2017, Amy and Dennis filed Petitions for Adoption of
K.S.H. and T.L.H. (Action Nos. 17-AD-500274 and 17-AD-500275)
and filed Motions for Emergency Custody (Action Nos.
17-J-502073 and 17-J-502074). In their Motions for Emergency
Custody, Amy and Dennis sought an order permitting the twins
to remain with them pending outcome of the adoption
proceedings. On May 16, 2017, an order was entered granting
emergency custody to Amy and Dennis until a temporary removal
hearing could be held. A temporary removal hearing was
conducted on May 19, 2017. And, by order entered May 24, 2017,
K.S.H. and T.L.H. were returned to Britney's custody
after spending almost two years with Amy and
the May 19, 2017, ECO hearing, Amy and Dennis filed Motions
for De Facto Status and Petitions for Custody
(Action Nos. 17-CI-501660 and 17-CI-501661). An evidentiary
hearing was originally scheduled for September 27, 2017. The
hearing was rescheduled to January 19, 2018. Amy and Dennis,
along with their counsel, were present for the hearing.
Britney was not present at the hearing nor was counsel
present on her behalf.
hearing, several witnesses testified on behalf of the Lages
including Amy, Dennis, the twins' therapist, the
twins' guidance counselor, and a close family friend.
Although Britney did not testify at the hearing on the
Motions for De Facto Status, the family court
utilized Britney's testimony from the May 19, 2017, ECO
hearing by taking judicial notice thereof. And, the family
court then based its findings of fact upon said testimony:
[Amy] stated that she and her husband were the primary
caregivers and financial supporters for the children.
However, she offered testimony and information which spurred
the Court to review and take judicial notice of the sworn
testimony elicited in the May , 2017[, ] Emergency
Custody Hearing (herein after [sic] ECO) in which Hon.
Deborah Deweese ordered that the children be returned to the
care, custody and control of [Britney].
In the current hearing, [Amy] had referenced an agreement
between herself, Lifehouse and [Britney] whereby three (3%)
of [Britney's] check was to be provided to [Amy] to
assist in providing for the children. [Amy] testified that
she received approximately $100.00 in total while [Britney]
was residing in Lifehouse. However, a review of the ECO
hearing provides very different information regarding the
financial support for the children by the parties. [Britney]
testified during the hearing that, while at Lifehouse, twenty
(20%) percent of her check was taken and provided to [Amy]
for the benefit of the children. She testified that after
leaving Lifehouse she was paying ...