Sharon Kingcade v. Shelbie Sherwood ( 2020 )

RENDERED: NOVEMBER 20, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1711-MR
SHARON KINGCADE APPELLANT
APPEAL FROM MCCRACKEN FAMILY COURT
v. HONORABLE DEANNA WISE HENSCHEL, JUDGE
ACTION NO. 19-CI-00757
SHELBIE SHERWOOD APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Sharon Kingcade appeals from an order of the McCracken
Family Court denying her motion to be declared the de facto custodian of Shelbie
Sherwood’s child. We affirm.
FACTS
Kingcade is the mother of Shelbie Sherwood and the grandmother of
Sherwood’s child, born in February 2018. Both Sherwood and the child lived in
Kingcade’s home until January 2019, when Sherwood moved out. From January
to August 2019, the child remained in Kingcade’s home while Sherwood moved
her residence several times and went through some short-lasting relationships with
various men. Sherwood visited her child with some frequency, provided some
clothing and other items for the child, and scheduled and attended some medical
and therapy appointments for the child. Sherwood allegedly has a mental illness.
In August 2019, Kingcade filed a petition for custody of the child in
which she asserted she was the child’s de facto custodian and that since the child’s
birth, the child had resided with her and she had been the child’s sole caregiver and
financial supporter. She also filed a motion for a temporary injunction to prevent
Sherwood from taking the child from Kingcade’s home when Sherwood moved in
with a boyfriend. Kingcade alleged that Sherwood was not taking medication for
mental illness, and that Sherwood had been involved with men who used illegal
drugs and who were physically abusive. The trial court denied the request for a
temporary injunction, finding no emergency warranting such relief in the absence
of allegations that the child’s needs were not being met.
The order denying injunctive relief also stated that the court would
entertain motions to be declared de facto custodian and for temporary custody after
Sherwood was served with the petition. Kingcade then filed these specified
motions, which were set for a hearing on October 3rd. Next, Kingcade filed a
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motion for immediate visitation pending the hearing. According to docket notes,
the motion for immediate visitation was passed from an earlier date until October
3rd, and the trial court planned to address issues of standing before addressing
issues of visitation.
The trial court began the October 3rd hearing by clarifying the
purpose of the hearing: to determine whether Kingcade qualified as a de facto
custodian. If Kingcade was found to be a de facto custodian, the trial court would
then enter a temporary custody order. But if not, the trial court would not need to
do anything further at that point.
After hearing evidence, the trial court took the matter under
advisement to consider the evidence in this case and in an associated dependency,
neglect, and abuse (DNA) case regarding the child.1 A few weeks later, it issued a
written order denying Kingcade’s motion to be declared the child’s de facto
custodian and stating that “[a]ll terms of previous Orders shall remain in full force
and effect unless modified herein.”
1
The record from the dependency, neglect, and abuse (DNA) case was not provided to us.
According to the trial court’s findings in the instant case, “the Court found that the child was at
risk of harm [in the DNA case] but left the child in [Sherwood’s] care as a least restrictive
alternative to removal. DCBS [Department of Child Based Services] has been involved and
currently does not believe child is at risk of harm in [Sherwood’s] care.” (Record (R.) p. 28, p. 2
of trial court Order Regarding De Facto Status in appendix of Appellant’s brief.) According to
the parties’ briefs, a temporary removal hearing and an adjudication in the DNA case occurred
on separate dates in September 2019.
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A few days after the trial court issued its order denying Kingcade de
facto custodian status, Kingcade filed a motion for grandparent visitation under the
same case number as her petition for custody. And then Kingcade filed a timely
notice of her appeal of the order denying her de facto custodian status.
The record provided to us ends with the notice of appeal. But we take
judicial notice that CourtNet indicates additional filings in the same trial court case
following the notice of appeal—including an agreed order entered regarding
custody and an order regarding grandparent visitation, although the documents are
not accessible for our review.
ANALYSIS
Before addressing the merits of this appeal, we note Sherwood’s
argument that the appeal should be dismissed as being from an interlocutory order.
She asserts that orders determining whether a person qualifies as a de facto
custodian are interlocutory and non-appealable, citing Kentucky Rules of Civil
Procedure (CR) 54.01, Druen v. Miller, 357 S.W.3d 547 (Ky. App. 2011) and
Cherry v. Carroll, 507 S.W.3d 23 (Ky. App. 2016).
Sherwood also notes the different motions filed, the trial court’s not
dismissing the action altogether, and the trial court’s continuing to address other
matters after its order denying Kingcade de facto custodian status. So, she argues
that the order denying Kingcade de facto custodian status did not adjudicate all the
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parties’ rights in the action. And she notes that the trial court’s order did not
contain the sort of language that would make it final under CR 54.02. For
example, the order does not state that it was final or that there was no just reason
for delay.
Sherwood makes good arguments that the trial court’s order does not
appear final on its face or in light of events occurring after the order’s entry. She
also aptly cites precedent which might appear to indicate that any order resolving
whether a nonparent has de facto custodian status is interlocutory. See Cherry, 507
S.W.3d at 27 (concluding that “determination of a request for de facto custodian
status” is interlocutory and stating that an immediate appeal of an order granting a
nonparent de facto custodian status would have been dismissed for lack of
appellate jurisdiction—instead, grant of de facto custodian status should be
reviewed on appeal after entry of a final custody judgment). But we must note an
important distinction between this case and those cited by Sherwood—the
nonparent party in both Druen and Cherry was found to have standing to seek
custody so that the custody proceeding could proceed to a final judgment. See
generally Druen, 357 S.W.3d at 548; Cherry, 507 S.W.3d at 25.2
2
The trial court in Druen found the nonparent party to have standing based on allegations of
waiver of parental rights in the amended petition and, therefore, denied a motion to dismiss for
lack of standing. The nonparent party had also alleged she was a de facto custodian in her
original custody petition, but our appellate Opinion does not discuss whether the trial court found
the nonparent party to be a de facto custodian. See Druen, 357 S.W.3d at 548. We dismissed the
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Unlike the nonparent parties in Druen and Cherry, however, Kingcade
did not prevail on the only basis for standing stated in her custody petition—her
allegations of being the child’s de facto custodian. See generally Kentucky
Revised Statutes (KRS) 403.270(1). Thus, the trial court’s determination that she
was not the de facto custodian (and therefore lacked standing) meant that she could
not prevail on the only claim for relief stated in her petition—her request to obtain
custody of the child. Since it meant she could not prevail on the sole claim in her
action, the trial court’s order denying her de facto custodian status effectively
adjudicated all the parties’ rights in the custody proceeding. Thus, under these
facts and for purposes of this appeal only, we will assume arguendo that the trial
court’s order was final and appealable under CR 54.01 and reach the merits of the
trial court’s determination that Sherwood did not qualify as a de facto custodian.
STANDARD OF REVIEW
We review a trial court’s factual findings in a custody proceeding for
clear error (meaning they shall not be set aside if supported by substantial
evidence); however, we review the trial court’s application of the law de novo.
Ball v. Tatum, 373 S.W.3d 458, 463-64 (Ky. App. 2012).
appeal from the order denying the motion to dismiss, concluding the order was interlocutory and
non-appealable. Id. at 548-49.
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 KRS 403.270(1)(b) provides that a person whom a trial court has
found by clear and convincing evidence to be a de facto custodian has the same
standing as a parent in custody matters under that statute and specified others.3
And KRS 403.270(1)(a) provides in pertinent part that a de facto custodian is one
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 . . . .”
But even where a nonparent provides extensive caregiving and
financial support to a child, one does not become a de facto custodian under
Kentucky case law when co-parenting with the parent and not acting in the parent’s
place. See, e.g., Mullins v. Picklesimer, 317 S.W.3d 569, 574 (Ky. 2010);
Brumfield v. Stinson, 368 S.W.3d 116, 118 (Ky. App. 2012).
The trial court ultimately denied Kingcade’s request to be declared de
facto custodian based on evidence showing that she co-parented along with
Sherwood rather than standing in Sherwood’s place, citing precedent including
Mullins v. Picklesimer. But before ultimately concluding that Kingcade was not
the child’s de facto custodian the trial court referred to Kingcade as “the primary
caretaker and provider of the child” (R. p. 29)—thus using some of the same
3
KRS 403.270(1)(b) also provides that a de facto custodian has the same standing as a parent in
child custody matters under KRS 403.280, 403.340, 403.350, 403.822, and 405.020.
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language used to define the term de facto custodian in KRS 403.270(1)(a).
Nonetheless, the trial court did not make a finding that Kingcade showed by clear
and convincing evidence that she was the primary caregiver and financial supporter
of the less-than-three-year-old child for six months or more. See KRS
403.270(1)(a)-(b).
Kingcade argues that the trial court erred in finding that she parented
the child alongside Sherwood rather than standing in Sherwood’s place as parent.
She points to Sherwood’s admitting that the child lived with Kingcade from
January to August 2019 while Sherwood lived in several different places and to
evidence of GPS records showing that Sherwood was present at Kingcade’s home
during this period less than 20 percent of the time. She also emphasizes her own
testimony that Sherwood’s visits were often less than an hour long and involved
just “hanging out” while Kingcade provided all care such as feeding and bathing.
While there seems to be no dispute that Kingcade provided the lion’s
share of care and financial support for a substantial time, we nonetheless conclude
that there was substantial evidence to support the trial court’s finding of “co-
parenting” rather than Kingcade standing in Sherwood’s place as parent. For
example, some evidence shows Sherwood providing some food and clothing for
the child, scheduling and attending medical and therapy appointments, and
frequently checking in on the child for much of the January to August 2019 period.
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We cannot say that the trial court’s factual finding of co-parenting was not
supported by any substantial evidence and, thus, clearly erroneous.
Without getting into a belabored discussion of the individual facts of
each case, there are certainly distinctions between this case and cases discussed by
the trial court, particularly Kruger v. Hamm, No. 2018-CA-000553-ME, 2019 WL
2063922 (Ky. App. May 10, 2019) (unpublished).4 The trial court cited our
Opinion in Kruger, in which we reversed the trial court’s determination that the
nonparent Hamms qualified as de facto custodians despite their providing child
care and financial support. The trial court quoted our statement in Kruger that the
mother at least co-parented based on evidence of her seeing the child every other
day, providing baby formula and clothing, and going to the child’s medical
appointments. See id. at *9. Although Sherwood similarly saw her child
frequently (often daily), attended medical appointments, and provided some food
and clothes, in many respects the cases differed—including Kruger’s working full-
time to support her children, and her entering into legally dubious agreements with
the Hamms (non-relatives) by which the Hamms purported to obtain joint custody
of her children. See generally id. at *1-4.
4
When the trial court herein rendered its order, our Opinion in Kruger v. Hamm had been
designated for publication and was not yet final. But on December 13, 2019, the Kentucky
Supreme Court ordered the Opinion de-published while denying discretionary review. We do
not rely on this unpublished Opinion as precedent, but simply discuss it because the trial court
relied on it and Kingcade alleges error in this regard.
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More similar to the instant case are published cases in which
grandparents provided a great deal of child care and financial support, but the
grandparents were held not to qualify as de facto custodians because of the parent’s
continuing involvement and not allowing the grandparents to stand in the parent’s
place. See Chadwick v. Flora, 488 S.W.3d 640, 644-45 (Ky. App. 2016) (trial
court properly found grandmother not to be a de facto custodian despite previously
helping her then-teenage daughter with child care and financial support, including
a time when daughter and grandchild lived with her); Brumfield, 368 S.W.3d at
119 (trial court erred in finding grandparents of child’s half-sibling to be child’s de
facto custodians considering trial court’s findings of a co-parenting arrangement
between them and mother). But see Ball, 373 S.W.3d at 464-65 (no reversible
error in trial court determining grandparents had de facto custodian status
considering conflicting evidence, including some indicating mother played no
more than a minimal role in caring for child and thus allowed grandparents to act
in her stead by providing most child care and financial support). In short, our
published cases recognize that even generous contributions of child care and
financial support from a grandparent do not always mean that a grandparent has de
facto custodian status—especially where a parent remains substantially involved
and does not cede his/her unique parental decision-making authority.
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“[P]arents have a basic human right to direct the upbringing of their
children, which is so fundamental that it warrants constitutional protection.” Jones
v. Jones, 510 S.W.3d 845, 849 (Ky. App. 2017) (citing Santosky v. Kramer, 455
U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). Thus, our precedent
somewhat narrowly construes the language of KRS 403.270(1) and only allows for
a nonparent to be recognized as a de facto custodian and accorded the same
standing as a parent in limited circumstances:
A de facto custodian is a person who proves by clear and
convincing evidence to have been a child’s primary
caregiver and financial supporter, for a period of six
months (if the child is under three years old) or one year
(for older children). KRS 403.270(1). This language has
been interpreted to mean that in order to be a de facto
custodian, the nonparent must not simply be a primary
caregiver, but must, in fact, be the primary caregiver.
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).
Kentucky Courts have also repeatedly held that
when a nonparent shares the parenting responsibilities
with a natural parent, the nonparent cannot, as a matter of
law, acquire de facto custodian status. Mullins v.
Picklesimer, 317 S.W.3d 569, 574 (Ky. 2010)
(“[P]arenting the child alongside the natural parent does
not meet the de facto custodian standard.”); Brumfield v.
Stinson, 368 S.W.3d 116, 118 (Ky. App. 2012) (“[O]ur
law is clear that even if a nonparent provides care and/or
financial support for a child, if such is in conjunction
with a natural parent, the nonparent will not qualify as a
de facto custodian.”); Boone[,] 228 S.W.3d at 8 (KRS
403.270 was “unavailable” to non-parent caretaker
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because care was provided “alongside the natural
parent”).
Jones, 510 S.W.3d at 849.
Here, while the trial court referred to Kingcade as being “the primary
caregiver and provider” for the child instead of just “a primary caregiver,” the trial
court also clearly found that Sherwood shared somewhat in parental
responsibilities. Specifically, the trial court found that Sherwood had frequent
contact with the child, participated in the child’s medical appointments and
therapy, and at times worked in a family member’s consignment store where she
could pick out and provide clothes for the child. The trial court also found that
Sherwood provided some financial support, “albeit through state benefits and
learned benefits programs” including WIC food and food stamps, and “took the
baby to work with her sometimes while [Kingcade] worked.” The trial court also
noted both Sherwood’s testimony that she provided diapers earned through a
community program and Kingcade’s denial that Sherwood did so.
While the trial court found that Sherwood relied heavily on others for
support and “her ability to make good decisions for herself and her child is in
question,” it also noted that Sherwood “had the wisdom to leave the baby in her
mother’s stable home” while Sherwood underwent rough times in which she
moved frequently. Thus, the trial court recognized that Sherwood did not totally
abdicate her parental responsibilities even though she previously accepted
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Kingcade’s providing much of the day-to-day caretaking and financial support for
the child. See Mullins, 317 S.W.3d at 577 (distinguishing between nonparents
clearly held out to be parents and to provide parental care from grandparents,
babysitters, and others who provide child care but are not intended by the parents
to do so “in the capacity of another parent”). Like the young mother in another
case, Sherwood at least occasionally cared for the child herself when the
grandmother could not, and she sought out and received government benefits for
her child. See Chadwick, 488 S.W.3d at 645. Thus, there was at least some
evidence of Sherwood taking action to make sure her child received proper care
and support.
Perhaps there was some confusing language in the trial court’s
decision. Perhaps some published cases were more factually similar than the later
de-published one it quoted. Yet the trial court’s decision was consistent with our
precedent not recognizing nonparents as de facto custodians for sharing parenting
with parents rather than acting in their stead. Thus, we find no reversible error
upon a de novo review of its application of the law.
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As its application of the law was consistent with precedent and its
findings of fact were not clearly erroneous, we cannot disturb the trial court’s order
denying Kingcade de facto custodian status.5
CONCLUSION
For the foregoing reasons, the judgment of the McCracken Family
Court is hereby AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Heather L. Jones Angela Troutman
Paducah, Kentucky Paducah, Kentucky
5
As the trial court here only considered whether Kingcade qualified as a de facto custodian, we
express no opinion on whether Kingcade could establish alternative grounds for standing. See,
e.g., Mullins, 317 S.W.3d at 578-79 (although nonparent did not qualify as de facto custodian,
trial court properly determined that nonparent had standing based on other grounds).
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