Teisha McKenzie v. Helen Donathon

RENDERED: AUGUST 12, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1188-MR
TEISHA MCKENZIE AND
JOHNATHON HUTSON APPELLANTS
APPEAL FROM CARTER FAMILY COURT
v. HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 20-CI-00064
HELEN DONATHON AND JAMES
DONATHON APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Teisha McKenzie and Johnathon Hutson (collectively
parents) appeal from the order and judgment entered by the Carter Family Court on
August 24, 2020 (the order), awarding joint custody of their minor child, K.H.
(child), to parents and Helen Donathon and James Donathon (collectively the
Donathons). We conclude that because the family court ruled that the Donathons
lacked standing to pursue custody of child as de facto custodians under Kentucky
Revised Statutes (KRS) 403.270(1)(a), it erred in proceeding to consider whether
parents waived their superior right to custody and granting the Donathons joint
custody with parents on that basis. Therefore, we reverse and remand with
instructions to dismiss the Donathons’ petition without prejudice.
On February 26, 2020, the Donathons, who are child’s maternal great-
grandparents, filed a petition for custody in the family court. Their petition alleged
they were child’s de facto custodians and, in that capacity, sought custody of him.
They alleged child had lived with them since he was approximately eight months
old and that parents, who were never married, failed to provide for him and were
incapable of caring for him. On March 2, 2020, parents filed a motion to dismiss.
They argued the Donathons lacked standing to seek custody of child. In support of
their motion, parents filed an affidavit in which they disputed the allegations in the
Donathons’ petition. They stated, among other things, that they have cared for
child the majority of the time and simply used the Donathons as babysitters.
The family court scheduled an evidentiary hearing for March 11,
2020. At the beginning of the hearing, the judge stated the purpose of the hearing
was to determine if the Donathons qualified as de facto custodians. Helen and
Teisha testified. In addition, the judge interviewed child in his chambers. During
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Teisha’s testimony, the Donathons objected to parents’ use of certain documents
that had not been previously produced, so the family court continued the hearing.
On July 31, 2020, the hearing resumed; however, there is no recording
of the hearing.1 The only recording from that day consists of the family court’s
oral findings. The family court found that the Donathons did not prove they were
child’s de facto custodians, and then found “it has been established through the
testimony that the natural parents have waived the superior right to custody by
ceding the majority of the parental care of the child to the Petitioners for an
extended period of time.”
The written order, which was only three pages long, devoted one
paragraph to its conclusion that the Donathons were not child’s de facto custodians
and one paragraph to its conclusion that parents had waived their rights, which we
provide in full:
1. The Court concludes that Petitioners have not
established the requisite factual elements to be
1
Parents argue that Johnathan, and other witnesses parents called, testified during this time and
that “[t]his testimony was a crucial part of [parents’] case[.]” However, as the Donathons have
pointed out, parents failed to take any steps to preserve and present this testimony through other
means, such as pursuant to Kentucky Rules of Civil Procedure (CR) 75.13. CR 75.13 provides
for the preparation of a narrative statement “[i]n the event no . . . electronic record of the
evidence or proceedings at a hearing . . . was made[.]” If parents had followed the process set
out in the Rule, the narrative statement as approved by the family court would have been
included in the record on appeal. We urge parties to take appropriate steps to present a complete
record on appeal. While the matter was already pending on appeal at the time that it was
discovered this portion of the hearing was not recorded, parents could have appropriately
requested that the pending appeal be put in abeyance and the case remanded back to the family
court so that parents could proceed with submitting a narrative statement in accordance with the
CR 75.13 process.
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adjudicated as de facto custodians of the minor child,
K.H., since they, while having provided support for
him in a significant way, have not been the sole
providers of the support and care of the minor child,
K.H.
2. The Court does conclude, however, that the
Respondents, the natural biological parents of the
minor child, K.H., have waived any superior right to
custody, by having ceded responsibility to the
Petitioners, great-grandparents of K.H., for the bulk of
his care and support including making decisions for
his schooling and medical needs and who have
provided significant living arrangements for K.H. and
provided financial support for him.
Thereafter, the court considered the best interest factors and determined pursuant
to KRS 403.270(2) it was in child’s best interest for there to be joint custody
between Teisha, Johnathon, and the Donathons, and established a timesharing
schedule in which child would spend time with all of them.
On appeal, parents argue the family court erred in finding they waived
their superior rights to custody of child. Specifically, they argue that the
Donathons never pled waiver and that the family court’s finding of waiver is
clearly erroneous. The Donathons argue that the family court’s finding of waiver
is supported by the evidence and that if evidence is missing from the record, it is
presumed the family court’s decision is supported by the evidence. The Donathons
also argue that parents failed to properly preserve the issues they now raise on
appeal.
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Before discussing the parties’ arguments, we must first address the
deficiencies in their briefs. As the Donathons argue, parents failed to include a
statement in their argument showing where and in what manner each issue was
preserved for review. CR 76.12(4)(c)(v). “It goes without saying that errors to be
considered for appellate review must be precisely preserved and identified in the
lower court.” Skaggs v. Assad, ex rel. Assad, 712 S.W.2d 947, 950 (Ky. 1986).
The Donathons’ brief, however, is also deficient. Specifically, the Donathons
violated CR 76.12 because their counterstatement of the case is devoid of citations
to the record and impermissibly includes argument. CR 76.12(4)(d)(iii). Also, in
violation of CR 76.12(4)(d)(iv), the Donathons’ argument contains no citations to
the record or to applicable authority. See Koester v. Koester, 569 S.W.3d 412, 414
(Ky.App. 2019) (explaining “[a]ssertions of error devoid of any controlling
authority do not merit relief.”).
“The decision as to how to proceed in imposing such penalties is a
matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396
(Ky.App. 2007). While the Court could impose sanctions for the parties’ failures
to comply with CR 76.12, because this case involves the custody of a minor child
we elect to look past these failures and to proceed without sanction against either
party. K.M.J. v. Cabinet for Health and Family Services, 503 S.W.3d 193, 196
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(Ky.App. 2016). We do so trusting that counsel will comply with the mandates of
CR 76.12 in future appeals.
In child custody cases, we review a trial court’s findings of fact for
clear error and its application of law de novo. Burgess v. Chase, 629 S.W.3d 826,
831 (Ky.App. 2021); CR 52.01.
We first address the Donathons’ argument that parents failed to
preserve their argument that the family court erred by awarding custody based
upon a ground, waiver, that was not pled by the Donathons. Even if we were to
accept their argument as true, unpreserved error may still be reviewed for manifest
injustice. CR 61.02 provides:
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
As explained below, we determine under these circumstances that even when
reviewing for manifest injustice, the family court’s order must be reversed.
Next, we address parents’ argument that the family court erred by
finding they waived their superior parental right to custody of child. “Parents of a
child have a fundamental, basic, and constitutional right to raise, care for, and
control their own children.” Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky.
2010). It is “perhaps the oldest of the fundamental liberty interests recognized by
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[the United States Supreme Court].” J.S.B. v. S.R.V., 630 S.W.3d 693, 701 (Ky.
2021) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147
L.Ed.2d 49 (2000)).
When a non-parent does not meet the statutory standard
of de facto custodian in KRS 403.270, the non-parent
pursuing custody must prove either of the following two
exceptions to a parent’s superior right or entitlement to
custody: (1) that the parent is shown by clear and
convincing evidence to be an unfit custodian, or (2) that
the parent has waived his or her superior right to custody
by clear and convincing evidence.
Picklesimer, 317 S.W.3d at 578 (footnote omitted). See Truman v. Lillard, 404
S.W.3d 863, 868 (Ky.App. 2012). As explained in J.S.B., 630 S.W.3d at 703, the
Picklesimer Court “unequivocally relaxed the previously stringent standard
regarding what may constitute parental waiver. It held, as a matter of first
impression, that waiver can and should apply in certain situations where a child has
not been ‘fully surrendered’ to a nonparent[.]”
Here, the Donathons claimed they were child’s de facto custodians,
and they sought custody of child only in that capacity. They did not plead that
child’s parents waived their rights to custody of child in whole or in part.
Compare with J.S.B., 630 S.W.3d at 700 (explaining stepfather pled alternative
grounds for custody).
The family court stated at the beginning of the hearing that the
hearing’s purpose was to determine if the Donathons were de facto custodians of
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child. Despite this, the family court, sua sponte, found on July 31, 2020, that
parents had waived their superior parental rights to custody of child. Nothing in
the record indicates that parents expressly or impliedly consented to trying the
issue of waiver. See generally CR 15.02; Traylor Bros., Inc. v. Pound, 338 S.W.2d
687, 688-89 (Ky. 1960). There is also no evidence in the record that the
Donathons moved to amend their petition to include a claim of waiver. While we
may assume evidence in the unrecorded portion of the hearing supports the family
court’s ruling that the facts established that waiver occurred, we will not assume
that during that time the Donathons requested and were granted the opportunity to
orally amend their pleadings to include waiver as a ground for custody or that
parents consented to this untimely amendment. Indeed, the Donathons do not
contend that anything of this nature took place.
It is fundamental that a judgment cannot properly adjudicate an issue
that was not pled. See Buskirk v. Joseph, 313 Ky. 773, 779, 233 S.W.2d 524, 527
(1950) (“As there was no issue in the pleadings as to this item, it is manifest the
judgment must be reversed on the cross-appeal. It is elementary that a judgment
cannot properly adjudicate a matter not within the pleadings.”); see also Transit
Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992)
(“the judge should leave to the lawyers the development of the case and be
cautious and circumspect in his participation and conduct”). The family court’s
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finding that the Donathons failed to prove they were de facto custodians meant
they could not prevail on the only claim for relief stated in their petition – their
request to obtain custody of child. The family court should have dismissed the
Donathons’ petition because they lacked standing. See Cherry v. Carroll, 507
S.W.3d 23, 28 (Ky.App. 2016) (holding petitioner who sought custody as a de
facto custodian had no standing to seek custody upon determination he did not
meet requirements for de facto custodian status).
We conclude the family court committed palpable error in raising, sua
sponte, the issue of waiver to cure the Donathons’ lack of standing to contest
custody and then basing its award of custody on that ground. We further conclude
that such error resulted in manifest injustice because it affected parents’ rights to
custody of their minor child.
Furthermore, even had the issue of waiver been appropriately before
the family court, we have serious concerns as to whether it received all due
consideration from the family court. It concerns us that the family court failed to
mention the relevant standard required for it to conclude that parents had waived
their rights (in either its oral pronouncement or written order), and instead largely
focused on child’s best interests.
As explained in Picklesimer, 317 S.W.3d at 578:
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“The common definition of a legal waiver is that it is a
voluntary and intentional surrender or relinquishment of
a known right, or an election to forego an advantage
which the party at his option might have demanded or
insisted upon.” Greathouse v. Shreve, 891 S.W.2d 387,
390 (Ky. 1995) (quoting Barker v. Stearns Coal &
Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)).
“Because this is a right with both constitutional and
statutory underpinnings, proof of waiver must be clear
and convincing. As such, while no formal or written
waiver is required, statements and supporting
circumstances must be equivalent to an express waiver to
meet the burden of proof.” Vinson v. Sorrell, 136 S.W.3d
465, 469 (Ky. 2004) (quoting Greathouse, 891 S.W.2d at
390-91).
In order to find waiver, our Courts have provided relevant but non-exhaustive
factors to be considered. See Penticuff v. Miller, 503 S.W.3d 198, 203 (Ky.App.
2016). Thereafter, elements of waiver require findings that such waiver was
“knowing, voluntary, and intentional” and these elements “must be established by
clear and convincing evidence.” Id. at 205. Only after it is determined that parents
have waived their superior right to custody, should the best interests of the child
standard be applied in determining custody. Greathouse, 891 S.W.2d at 390.
As was the case in Vinson, 136 S.W.3d at 469, “the best interest of the
child test appears to have been the decisional basis rather than the clear and
convincing evidence standard required in custody disputes between parents and
non-parents.” See Fitch v. Burns, 782 S.W.2d 618, 622 (Ky. 1989) (raising
concerns although the decision was reversed on other grounds that the wrong
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standard may have been applied as the family court failed to specify the standard it
was applying).
A family court should not blithely undertake to grant custody based
on waiver without a full and complete consideration of the facts under the clear
and convincing standard. As noted in Truman, 404 S.W.3d at 870, “[n]ot every
person who genuinely loves and cares for a child gains custodial rights; waiver
requires significantly more.”
For the foregoing reasons we reverse the family court’s order and
remand the case with instructions for the family court to dismiss the Donathons’
petition, without prejudice, for lack of standing.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Ira Scott Kilburn W. Jeffrey Scott
Salt Lick, Kentucky Grayson, Kentucky
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