APPELLANT v. DONNA MEREDITH APPELLEE (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

The questions before us are whether the Shelby Family Court correctly found Appellee, Donna Meredith, to be a de facto custodian of Katie Murphy, minor child of the Appellant, Amanda Satterly, and, if so, whether it was in Katie's best interests to award Donna and Amanda joint custody of Katie.   Finding no error, we affirm.

I. Facts and Procedure

In early 2008, Amanda moved in with her mother, Donna, in Bullitt County, Kentucky.   Katie was born on July 9, 2008.   Katie's father is not identified in the record.   Amanda, Katie, and Donna lived together for approximately six months.   In December 2008, Amanda married her current husband, Richard Satterly.   Beyond these facts, the parties agree on little else.

On June 17, 2011, Donna filed a petition seeking custody of Katie.   Donna claimed she was Katie's de facto custodian and it was in Katie's best interest for Donna to be awarded custody.   Amanda opposed the petition, asserting Donna lacked standing to seek custody because she did not qualify as Katie's de facto custodian.

The family court held a hearing on Donna's petition on August 17, 2011.   At the hearing, the family heard testimony and received evidence from Donna and Amanda, as well as other witnesses.

Donna testified Amanda moved out in January 2009, leaving Katie in Donna's care;  Donna cared for Katie the next two and a half years.   During this time, Donna testified she provided for Katie's shelter, utilities, clothing, and food.   On occasion, Donna explained, Amanda bought diapers and formula for Katie;  however, Amanda never gave Donna money to provide for Katie's basic daily needs.   Donna testified she took Katie to the doctor on a regular basis, and Amanda often met them there.   When Katie was eighteen months old, Donna enrolled Katie in daycare in Bullitt County;  Donna paid for the daycare services.   Donna testified Katie lived exclusively with her in Bullitt County from January 2009 through January 2011.

Then, in January 2011, when Donna separated from her husband, she and Katie moved in with Amanda in Shelbyville, Kentucky.   One month later, Donna and Katie moved into a different house directly behind Amanda's house.   On or about June 1, 2011, Amanda removed Katie from Donna's care.   Donna then moved back to Bullitt County.

Mary Potter, Donna's next-door neighbor testified, when Donna and Katie lived in Bullitt County, she saw Katie with Donna every day.   Potter claimed Katie lived with Donna since birth.   Potter also testified she sometimes babysat for Katie and, once in awhile, took Katie to daycare.

Ramona Hoops, the director and owner of Little Sunshine Corner Daycare in Bullitt County, also testified.   Hoops confirmed Donna enrolled Katie in daycare in early 2010 and paid all associated costs.   Hoops testified Katie attended Little Sunshine two to three days per week for approximately one year.   Hoops testified she never saw or met Amanda during this time.   Hoops further testified that Donna told her Amanda had left Katie with Donna.

Jacob Redmon, Amanda's ex-husband and the father of Amanda's oldest child, Heaven, testified that when he went to Amanda's house to pick up Heaven, Katie was not there.   In fact, Redmon claimed he never saw Katie until Donna moved to Shelbyville in January 2011.   But Redmon qualified his testimony, stating that when he picked up Heaven, he went to Amanda's door but did not go in the house.

In direct contrast to Donna's testimony, Amanda testified she has been Katie's primary caretaker Katie's entire life.   Specifically, Amanda testified that, in February 2009, she and Katie moved to Shelbyville, Kentucky.   In support of her testimony, Amanda explained she and Richard claimed Katie as a dependent on both their 2009 and 2010 tax returns.   Additionally, Amanda testified she took Katie to the doctor, and Donna simply met them there.   Amanda adamantly denied knowing Donna enrolled Katie in daycare in Bullitt County and claimed, when she found out, she was very upset.

Amanda admitted Donna was active in Katie's life.   Initially, Amanda testified Donna saw Katie approximately three times a month.   Subsequently, Amanda testified Donna saw Katie two or three times a week.   Amanda also testified Katie stayed with Donna on two occasions – once for two weeks in January 2009 when Richard was preparing for deployment to Iraq, and once when Amanda was sick with the flu.

Amanda further testified, since Katie's birth, she has been Katie's primary financial supporter.   Amanda claimed, and Donna did not dispute, that Amanda obtained food stamps, WIC, and Passport benefits for Katie.^Double Similarly, Amanda testified Katie was covered by Richard's TRICARE Benefits.^Double

Allison McDuffus, a social worker with the Cabinet for Health and Family Services (Cabinet), testified the Cabinet had received eight referrals concerning Amanda;  the Cabinet opened three for investigation.   McDuffus explained another social worker, Ms. Chandler, spearheaded one such investigation in early 2011;  McDuffus assisted.   During Ms. Chandler's investigation, Ms. Chandler and McDuffus attempted several unsuccessful home visits and one successful home visit at Amanda's house.   Initially, McDuffus testified she could not recall if Katie was there during the successful home visit;  she then affirmatively stated she saw Katie at Amanda's house during the visit.   McDuffus also testified she initiated another investigation in June 2011.   On June 9, 2011, as part of her investigation, McDuffus conducted a home visit at Amanda's house;  Katie was there during McDuffus's visit.

Finally, Richard Satterly testified Katie had lived with Amanda since February 2009.   Richard testified he was deployed to Iraq from January 2009 through January 2010.   While deployed, Richard spoke daily with Amanda via telephone and/or webcam;  Richard testified Katie was present during these conversations.   After Richard received a “medical discharge” in January 2010, he was on military assignment in Kansas until October 2010.   From October 2010 until present, however, Richard testified he lived in Shelbyville with Amanda and Katie.   Richard also confirmed Katie spent a lot of time with Donna, sometimes staying overnight, but denied Katie lived with Donna.

At the conclusion of the hearing, the family court made an oral finding, on the record, that Donna was Katie's de facto custodian.   On August 31, 2011, the family court issued an order reiterating its conclusion that Donna was a de facto custodian of Katie, awarding Donna and Amanda joint custody, and designating Donna the primary residential parent.

Amanda filed a timely notice to alter, amend, or vacate the August 31st order pursuant to Kentucky Rules of Civil Procedure (CR) 59.05.   The family court denied Amanda's motion.   This appeal followed.

II. Standard of Review

This matter requires us to employ a two-tier standard of review because it presents a mixed question of fact and law.   First, we review the family court's factual findings.   We may not disturb those factual findings unless they are clearly erroneous.   A factual finding is clearly erroneous only when it is not supported by substantial evidence “sufficient to induce conviction in the mind of a reasonable person.”  B.C. v. B.T., 182 S.W.3d 213, 219–20 (Ky.App.2005).   We then examine the family court's application of the law.   Whether a nonparent is properly classified a de facto custodian is a question of law we review de novo.   See Heltsley v. Frogge, 350 S.W.3d 807, 808 (Ky.App.2011).

With respect to the circuit court's custody determination, “[i]f the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision regarding custody will not be disturbed, absent an abuse of discretion.”  Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky.2008).  “Abuse of discretion implies that the family court's decision is unreasonable or unfair.”  Id.

III. Analysis

Amanda contends the family court erred in concluding Donna was Katie's de facto custodian and, in turn, erred in granting Donna joint custody of Katie.   We disagree.

Kentucky Revised Statutes (KRS) 403.270 provides a de facto custodian is:

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.

KRS 403.270(1).   As this Court has consistently explained, to qualify as a de facto custodian under KRS 403.270(1), a nonparent must be the primary caregiver for, and the primary financial supporter of, the child for the statutory period.  Consalvi v. Cawood, 63 S.W.3d 195, 197–98 (Ky.App.2001), overruled on other grounds by Boone v. Ballinger, 228 S.W.3d 1 (Ky.App.2007).

In the case sub judice, Amanda first attacks the family court's factual findings.   Particularly, Amanda points to her testimony and evidence, claiming it negated Donna's self-serving testimony that she was Katie's primary caregiver.   In essence, Amanda claims she had the better evidence and presented the better case.

The family court assigned little, if any, weight to Amanda's version of events.   Notably, at the conclusion of the hearing, the family court acknowledged it was faced with an archetypal “he said, she said” scenario and was forced to determine which version of the events it found most credible.   The family court explained:

Given the diametrically opposed versions of the facts presented, the Court must make a determination of the witnesses' credibility.   Of the witnesses presented on this issue, only Ms. Hoops and Ms. McDuffus can be considered disinterested and Ms. McDuffus's testimony was not determinative.   However, Ms. Hoops was a credible witness with no other involvement with any of the parties.   She testified that Katie attended her daycare in Bullitt County for one year and the Court finds as a fact that Katie did so.   That fact places Amanda's credibility in serious issue.   It is incomprehensible that Katie could have attended daycare in Bullitt County for one year without her mother knowing about it if the child were living with the mother in Shelbyville at that time as Amanda testified.   The Court therefore finds the testimony of Donna on this issue to be more credible and concludes that she is a de facto custodian of Katie.

(R. at 26–27).

It is well settled that, on appellate review, “due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses.”  CR 52.01;  Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky.App.2007).

A family court operating as finder of fact has extremely broad discretion with respect to testimony presented, and may choose to believe or disbelieve any part of it.   A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous.

Bailey, 231 S.W.3d at 796.   Here, it was well within the family court's prerogative to reject Amanda's testimony and, as we perceive no clear error, we are bound by that determination.  Id.

Next, Amanda takes issue with the family court's conclusion that Donna established by clear and convincing evidence that she was the primary caregiver and financial supporter of Katie for a period of six months.  “Clear and convincing proof does not necessarily mean uncontradicted proof.”   Commonwealth, Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky.2010) (citation omitted).  “It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people.”  Id.;  see also Black's Law Dictionary (9th ed.2009) (defining “clear and convincing” evidence as “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain”).

We find sufficient evidence establishing Donna was Katie's primary caretaker and financial supporter for the majority of Katie's life.   Donna testified she cared exclusively for Katie from January 2009 through June 2011.   Particularly, Donna testified, during this period, she housed, fed, and clothed Katie with minimal, if any, assistance from Amanda.   Donna also arranged and paid for Katie's care at Little Sunshine Corner Daycare.   The testimony proffered by Potter and Hoops bolstered Donna's claim.

To negate Donna's testimony that she was Katie's sole financial supporter during the de facto custodianship period, Amanda points to the undisputed evidence that Amanda obtained for Katie WIC, food stamps, and Passport benefits, and Richard provided Katie with TRICARE benefits.   By providing these benefits, Amanda asserts she financially supported Katie alongside Donna, thereby prohibiting Donna from achieving de facto custodian status.

Contrary to Amanda's claim, by obtaining government services for Katie, Amanda did not provide Katie with financial support;  the taxpayers provided the support.   Amanda was simply the conduit through which the financial support passed.   See Swiss v. Cabinet for Family and Children, 43 S.W.3d 796, 798 (Ky.App.2001).   Moreover, there is little evidence, beyond Donna's testimony that Amanda “occasionally” provided diapers and formula, that Amanda passed these benefits onto Katie.   Merely listing Katie as a recipient of state and federal benefits does not conclusively establish Katie actually received the fruit of those benefits.   Furthermore, any benefits Katie may have received through these services only supplemented, not supplanted, Donna's primary financial support of Katie.   See id. (explaining the Cabinet, not the purported de facto custodians, provided the primary financial support of the child).

Amanda also contends that when Donna filed her petition for custody in June 2011, Katie had not resided with Donna for six continuous months, as required by KRS 403.270(1), because in January 2011, Donna and Katie resided with Amanda for approximately one month.   As a result, Amanda asserts, Donna failed to meet the six-month residency requirement.   We do not think the one-month temporary stay at Amanda's residence in January 2011 severed the period of residency that commenced in January 2009.

In Sherfey v. Sherfey, 74 S.W.3d 777 (Ky.App.2002), the parents of a minor child, who had lived with his grandparents for one year, forcibly removed the child from his grandparents' home and sent him to summer camp in Florida for one month.   This Court concluded the child's time at summer camp did not prohibit the grandparents from attaining de facto custodian status, explaining:

The nonconsensual transporting of T.S. to Florida was adjudged by the courts of Kentucky to be an act of domestic violence-not an abandonment of support by the grandparents.   Further, T.S. never fully left the custody and control of his grandparents.   He merely spent an unhappy month at a camp where he continued to maintain contact with his grandparents.   Obviously, every parent who sends his or her child to a summer camp has not surrendered custody of the child.

Id. at 780–81, overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky.2008).   While not directly on point, Sherfey teaches us that brief interruptions in a nonparent's exclusive care of a child must be carefully scrutinized to ascertain whether the person seeking de facto custodian status intended to “surrender[ ] custody of the child”;  that is, relinquish his or her role as the primary caretaker and financial supporter of the child.   Here, we find Donna did not.   While Donna and Katie voluntarily moved in with Amanda for a brief period of time, the record is void of any evidence that Donna abrogated her role as Katie's primary caretaker and financial supporter during this one-month period.   This interpretation is supported by the fact that, at the end of the one-month period, Donna and Katie moved out of Amanda's house and into their house, thereby indicating Donna retained sole decision-making authority over Katie during the period she resided with Amanda.

As explained in Consalvi, “it is clear that [KRS 403.270] is intended to protect someone who is the primary provider for a minor child in the stead of a natural parent;  if the parent is not the primary caregiver, then someone else must be.”  63 S.W.3d at 197.   Stated differently, the policy underlying KRS 403.270(1) is to recognize as such a nonparent who has assumed the role of a parent.   Donna has presented substantial evidence that, when Katie was six months old, Amanda abdicated her role as Katie's parent to Donna.   Since then, Donna has stood in Amanda's place as Katie's primary caretaker and financial supporter.   The family court's conclusion that Donna was a de facto custodian of Katie was without error.

Because we have found the family court did not erroneously designate Donna as Katie's de facto custodian, we turn to Amanda's next argument:  “the family court erred in awarding primary custody of Katie Murphy to Donna Meredith.”   (Brief for Appellant at 14).   With respect to the custody determination, the family court found as follows:

The Court must determine custody of Katie pursuant to KRS 403.270.   Donna having been found to be a de facto custodian she and Amanda are to be given equal consideration and both wish to have custody.   Katie is too young to express an opinion on the subject.   Katie has spent most of her life in her grandmother's care and there is no indication that she is not well adjusted to that home and community․  As noted above, it appears from the credible testimony at [the] hearing that Donna has been Katie's primary caretaker and financial supporter for the vast majority of her life and it would appear that Amanda placed Katie with Donna for that purpose.   Based on the factors set forth above, it is in Katie's best interest that Donna and Amanda share joint custody of Katie and that Katie reside primarily with Donna.   Amanda should have such time sharing as may be agreeable to the parties but no less than that provided by the guidelines of the Court.

(R. at 27–28).

“[T]he purpose of de facto custodianship is to provide standing in custody matters to nonparents who have taken on a parental role in the life of a child whose custody is in dispute.”  Williams v. Bittel, 299 S.W.3d 284, 289 (Ky.App.2009) (citation omitted).   Once the family court has concluded a nonparent is a de facto custodian, the family court shall give the de facto custodian “the same standing in custody matters that is given to each parent under this section[.]”  KRS 403.270(1)(b).  That is, a parent and the de facto custodian are on equal footing.  Boone, 228 S.W.3d at 7;  KRS 405.020(3) (explaining the family court may “grant legal custody” to a de facto custodian in lieu of natural parents if in “the best interests of the child”);  KRS 405.020(5) (“The court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interests of the child.”).

The sole basis for Amanda's claim that the family court erred in making its custody determination is that the family court erroneously designated Donna a de facto custodian.   Because we have already concluded the family court did not err in this regard, we decline to address it again cloaked in this second argument.   Moreover, we think the family court's custody determination complies with KRS 403.270 and cannot say the award of joint custody is not in Katie's best interests.   Accordingly, we cannot say the family court abused its discretion in awarding Donna and Amanda joint custody.

IV. Conclusion

The Shelby Family Court's August 31, 2011 order is affirmed.

ALL CONCUR.

ACREE, JUDGE: