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Hoskins v. Elliott

Court of Appeals of Kentucky

November 15, 2019

MICHAEL WAYNE HOSKINS APPELLANT
v.
CHRISTY M. ELLIOTT AND BRITTANY SMITH APPELLEES

          APPEAL FROM BELL CIRCUIT COURT HONORABLE ROBERT COSTANZO, JUDGE ACTION NO. 17-CI-00343.

          BRIEF FOR APPELLANT: Levi Z. Turner Middlesboro, Kentucky.

          BRIEF FOR APPELLEE: Bill Hayes Middlesboro, Kentucky.

          BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

          OPINION

          ACREE, JUDGE.

         Michael 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 KRS[1]403.270'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.

         BACKGROUND

         The 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 that plan.

         Father later showed up at Elliott's home believing he would find both Child and Mother.[2] 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 became involved.[3]

         The 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 (R.) 4).

         Father 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.

         Throughout 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.

         Eight 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 supervised visitation.

         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 ...


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