Cherry v. Carroll

507 S.W.3d 23, 2016 Ky. App. LEXIS 209, 2016 WL 7405771
CourtCourt of Appeals of Kentucky
DecidedDecember 22, 2016
DocketNO. 2016-CA-000291-ME
StatusPublished
Cited by7 cases

This text of 507 S.W.3d 23 (Cherry v. Carroll) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherry v. Carroll, 507 S.W.3d 23, 2016 Ky. App. LEXIS 209, 2016 WL 7405771 (Ky. Ct. App. 2016).

Opinion

OPINION

NICKELL, JUDGE:

Charles Cherry, the biological father of three minor boys, appeals the Wayne Circuit Court’s designation of Stacy Randall Carroll, the children’s maternal grandfather, as de facto custodian and the award of joint custody to him and Carroll. This appeal presents two questions. Whether an award of de facto custodian status is interlocutory and whether a court may designate a person a de facto custodian solely because the Cabinet for Health and Family Services (CHFS) placed a child with him. For reasons expressed below, we deem this appeal properly before us and hold the trial court erroneously designated Carroll a defacto custodian when the three children, all over the age of three—had lived with him less than seven months rather than the year required by KRS2 403.270(l)(a). Reversal and remand for an appropriate order are necessary.

FACTS

Three sons were born to Cherry and Taylor—in 2004, 2005 and 2007. In 2007, Taylor left the children with her aunt, Angie Miller. Later that year, Miller, living in Goshen, Indiana, petitioned the Indiana courts and received custody of all three children.

From October 2007 until July 2012 the boys lived with Miller. Cherry was incarcerated during a portion of this time, falling $10,000 behind on his child support obligation; Taylor had her own legal woes; drugs were a problem for both.

In July 2012, Miller’s husband developed significant health problems making it impossible for her to continue looking after the three boys as temporary custodian. A Dependency,. Neglect and Abuse petition was filed for each child on July 23, 2012. The boys were removed from Miller and temporarily placed with Carroll on July 31, 2012, where the boys remained nearly seven months.

On February 19, 2013, the boys were returned to Cherry. That same day, Carroll petitioned the Wayne Circuit Court to designate him a de facto custodian and award him custody of all three boys. Carroll claimed permanent placement with him was in the children’s best interests as he had been their sole caregiver and financial supporter since July 2012.

Cherry moved to dismiss the petition on March 12, 2013, claiming Carroll could not satisfy the statutory requirements to be named a defacto custodian because he had not been the children’s primary caregiver and financial supporter and they had not resided with him for one year or more as required by KRS 403.270(1) since each child was more than three years of age. Cherry argued, since Carroll failed to qualify as a defacto custodian, and was not the children’s parent, Carroll lacked standing to seek custody and asked for dismissal of the petition. Carroll filed a written response arguing he qualified as a defacto custodian “because he has been the pri[25]*25mary caregiver for, and the sole financial supporter of the children involved in this matter since having the children placed with him by DOBS and the Court.”

The motions were originally heard April 9, 2013. Carroll argued he qualified as a de facto custodian by tacking the nearly seven months he had the boys onto the nearly five years Miller—his sister—had the boys. Cherry argued tacking was permitted by neither statute nor case law.

Carroll then argued inclusion of the phrase, “or has been placed by the Department for Community Based Services,” in KRS 403.270(l)(a) meant anyone with whom CHFS had temporarily placed a child—without anything more—qualified as a de facto custodian. While Carroll’s counsel did not argue he could have moved for de facto status immediately upon accepting placement of the boys in his home, it was certainly implied, and that would be the result if his position is correct. The court overruled Cherry’s motion to dismiss for the time being and scheduled a hearing on Carroll’s request for de facto custodian status.

The matter was next heard June 17, 2013. Carroll argued Miller had the boys for the five years preceding their temporary placement in his home and Cherry never had physical possession of the boys during that time. Carroll argued this was probably a matter of first impression because he had found no cases consistent with his reading of the statute—that no time element applies when a child is placed with a prospective de facto custodian by CHFS. Cherry disagreed, referencing 16 Louise E. Graham & James E. Keller, Kentucky Practice—Domestic Relations § 21:29, Methods of Practice § 73.10 (3rd ed. 2008) and quoted the following passage:

The amount of time necessary to become a de facto custodian depends on the child’s age or the source of the de facto custodian’s custody. If the child is under the age of three, a party can become the de facto custodian by providing primary care and support for six months. However, if the child is over age three or has been placed in the de facto custodian’s home by the Department for Social Services, a party becomes a de facto custodian only after one year or more.

(Emphasis added; footnotes omitted). In Cherry’s view, because the children were all age three or older when CHFS temporarily placed them in Carroll’s home, for Carroll to qualify and have standing to seek custody, the children had to live with him one year or more—a fact not even alleged in Carroll’s petition. The court stated it had not found any law on the matter, but tended to agree with Carroll’s interpretation of the statute. Thereafter, the court called for proof showing CHFS placed the boys with Carroll and they had been placed by CHFS for several years.

At that point, Miller testified she had custody of the boys from October 2007 until October 2012. With slight contradiction, she then stated she had requested relief due to her husband’s illness on July 23, 2012, and CHFS had placed the boys with Carroll shortly thereafter. Thus, Miller did not have the boys a full five years. Carroll testified next, confirming CHFS had temporarily placed the boys with him on July 23, 2012, and they remained with him until February 19, 2013, when they returned to their father, Cherry. The court found the statutory requirements had been satisfied, designated Carroll a defacto custodian, and said a date would be set for the custody trial when the court’s calendar became available.

On August 13, 2013, the court entered Findings of Fact, Conclusions of Law, Order Overruling [Cherry’s] Motion to Dismiss, and Order Sustaining, in part, [Car[26]*26roll’s] Verified Motion for Determination of De Facto Custodian and Custody. The order said an evidentiary hearing would be scheduled “on a date mutually convenient to the parties.” The order did not contain finality language. No appeal was taken.

Until 2015, little movement occurred. Carroll and Cherry requested each other submit to drug testing (hair follicle tests), an attempted mediation yielded no resolution, and Cherry switched attorneys. At some point, Cherry was arrested for being a convicted felon in possession of a handgun prompting removal of the children from his home. In the wake of Cherry’s arrest, CHFS did not place the children with Carroll which rankled Carroll.

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Cite This Page — Counsel Stack

Bluebook (online)
507 S.W.3d 23, 2016 Ky. App. LEXIS 209, 2016 WL 7405771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-carroll-kyctapp-2016.