FROM BELL CIRCUIT COURT HONORABLE ROBERT COSTANZO, JUDGE
ACTION NO. 17-CI-00343.
FOR APPELLANT: Levi Z. Turner Middlesboro, Kentucky.
FOR APPELLEE: Bill Hayes Middlesboro, Kentucky.
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
Hoskins (Father) appeals the Bell Circuit Court's January
30, 2018, order granting Christy Elliott status as a de
facto custodian of his biological child (Child),
awarding sole custody to Elliott, and ordering supervised
visitation for Father. Father alleges the circuit court
erroneously used KRS403.270's timeframe requirements in
determining whether Elliott qualified as a de facto
custodian. He also argues the circuit court erred by ordering
him supervised visitation without a finding consistent with
KRS 403.320(3). We reverse and remand for findings consistent
with this opinion.
Child's mother (Mother) is not a party to this appeal.
However, her actions are at its core. On February 11, 2017,
when Child was nine months old, Mother left Child with her
friend, Elliott. She would testify eventually that she wanted
Elliott to babysit Child for the weekend, and until she had
made scheduled court appearances. (Video Record (VR)
6/11/2018 00:23:21-00:23:57). Intervening events thwarted
later showed up at Elliott's home believing he would find
both Child and Mother. Because Father seemed to be under the
influence of methamphetamines, Elliott would not relinquish
Child to his care. Three days later, Mother still had not
returned. Child became sick and Elliott had no authority to
arrange medical care. She was unable to locate Mother and did
not have legal custody enabling her to take Child to the
doctor. The Cabinet for Health and Family Services then
Cabinet's investigation led to a dependency, neglect, or
abuse (DNA) petition, naming Mother as the person believed to
be responsible for the abuse or neglect. The Cabinet's
petition for temporary removal of the Child from Mother's
custody was filed on February 15, 2017, in Bell District
Court, No. 17-J-00020-001 (the "Juvenile Case").
The petition states that DCBS, the Cabinet's Department
for Community Based Services, allowed Elliott "to keep
children at this time . . . ." (Juvenile Case, Record
was not implicated by any claim of abuse or neglect of Child.
Nevertheless, DCBS and the Cabinet did not consider him for
placement because he had drug addiction and domestic violence
issues. After an adjudication hearing on March 2, 2017, the
circuit court found Child neglected or abused by Mother and
ordered Child to remain with Elliott. The dispositional
hearing on April 20, 2017, concluded similarly that Child was
to remain with Elliott.
the entire DNA action, the Cabinet never indicated that
Father violated the DNA statutes. Still, Father: (1) appeared
at every hearing; (2) was appointed counsel to represent him;
and (3) worked the case plan the Cabinet provided to him. The
case plan required Father to attend drug screens, anger
management, and parenting classes. Eventually, Father
completed his case plan despite, technically, not being
before the circuit court in the DNA action.
months after Mother abandoned Child, Elliott filed a petition
in circuit court for custody claiming de facto
custodian status. The circuit court found Elliott qualified
as a de facto custodian and held a hearing on
December 4, 2017, to determine custody. The court did not
enter its findings until January 30, 2018, when it granted
Elliott permanent custody of Child and awarded Father
challenged the circuit court's findings and filed a
motion to alter, amend, or vacate. He maintained that Mother
only allowed Elliott to care for Child as a babysitter, and
that DCBS and the Cabinet placed Child in Elliott's care.
He argued, pursuant to KRS 403.270(1)(a), that the
appropriate length of time required to establish de
facto custodian status is one (1) year or more and not
the six (6)-month period applied ...