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Lage v. Esterle

Court of Appeals of Kentucky

November 8, 2019

AMY LAGE AND DENNIS LAGE APPELLANTS
v.
BRITNEY ESTERLE APPELLEE

          APPEALS FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION HONORABLE DEANA C. MCDONALD, JUDGE ACTION NOS. 17-CI-501660 & 17-CI-501661

          BRIEF FOR APPELLANTS: Corey Shiffman John H. Helmers, Jr. Louisville, Kentucky

          NO BRIEF FOR APPELLEE.

          BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

          OPINION

          TAYLOR, JUDGE:

         Amy 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.[1] We vacate and remand.

         I. Background

         On July 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.

         By 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.

         On May 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).[2] 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.[3] 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 Dennis.[4]

         Following 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.[5]

         At the 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 [19], 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 ...

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