Guillermo Gonzales v. Maria Rebecca Murillo

• Court: Court of Appeals of Kentucky
• Decided: August 31, 2023
• Docket: 2021 CA 001371
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2021-CA-1371-MR

GUILLERMO GONZALES APPELLANT

APPEAL FROM MONTGOMERY CIRCUIT COURT v. HONORABLE WILLIAM E. LANE, JUDGE ACTION NO. 19-CI-00062

MARIA REBECCA MURILLO; PETRA AZUCENA LOZANO- RODRIGUEZ; JAVIER AGUIRRE; KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; E.G.-L., A MINOR; N.L., A MINOR; AND S.L., A MINOR APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ECKERLE, LAMBERT, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Guillermo Gonzales brings this appeal from findings of fact,

conclusions of law, and judgment entered in the Montgomery Circuit Court on

October 27, 2021, determining that Guillermo had waived his superior right to

custody as to his biological children, E.G.-L. and S.L., awarding Maria Rebecca Murillo and Guillermo joint custody of E.G.-L. and S.L., designating Maria as the

primary residential custodian, and awarding Guillermo timesharing. We affirm.

Petra Azucena Lozano-Rodriguez is the biological mother of three

children – N.L., who was born on November 30, 2011; E.G.-L., who was born on

May 9, 2015; and S.L., who was born on January 13, 2017. N.L.’s putative father

is Javier Aguirre.1 Guillermo is the biological father of E.G.-L. and S.L. Maria is

Petra’s sister; thus, Maria is the maternal aunt of N.L., E.G.-L., and S.L.

Maria’s direct involvement with Petra’s children began in 2015 when

Guillermo, Petra, N.L., and E.G.-L. came to live with Maria and her family in

Montgomery County, Kentucky. It is undisputed that Petra was struggling with

serious substance abuse, and shortly after their arrival at Maria’s home, Petra went

into a drug rehabilitation treatment facility. Although Guillermo worked, Maria

became the primary caregiver and financial provider for N.L. and E.G.-L. Several

months later, Guillermo, Petra, N.L., and E.G.-L. left Maria’s home and moved to

Virginia.

In late 2016, Petra and Guillermo’s relationship ended, and Petra

returned to Kentucky to live with Maria. Petra, who was pregnant with S.L.,

brought N.L. with her to Maria’s home, but E.G.-L. remained in Virginia with

1 Javier Aguirre is the putative father of N.L. In the action below, service upon Javier was accomplished by warning order attorney; however, Javier did not appear before the circuit court. And, Javier did not pursue an appeal of the custody determination as it relates to N.L.

-2- Guillermo. Shortly after Petra arrived at Maria’s home and upon Maria’s urging,

Petra went back to Virginia to retrieve E.G.-L.; Guillermo acquiesced. After

returning to Maria’s home with E.G.-L., Petra traveled to Tennessee leaving N.L.

and E.G.-L. in Maria’s care. On January 13, 2017, Petra gave birth to her third

child, S.L. Shortly after S.L. was born, Petra again returned to Maria’s home with

S.L. Even though Petra was in and out of Maria’s home from November 2016

until February 2017, it is undisputed that Maria was the primary caregiver and

financial provider for Petra’s children. And, Guillermo knew the children were

living in Maria’s home in Kentucky, but he continued to live out of state and did

not visit the children.

In February of 2017, while in Kentucky, Petra was again struggling

with substance abuse and decided to relinquish custody of her three children to the

Cabinet. The Cabinet contacted Guillermo and told him that if he wanted the

children, he needed to come to Kentucky and retrieve them. Guillermo, who was

living in Virginia and working in New York, was unable to arrange immediate

transportation to Kentucky. So, the Cabinet filed dependency, abuse, and neglect

petitions (17-J-00032, 17-J-000333, and 17-J-00034) in the Montgomery Circuit

Court on February 14, 2017, as to N.L., E.G.-L., and S.L. The Cabinet

subsequently placed N.L., E.G.-L., and S.L. with Maria. The three children

remained with Maria from April 2017 until August 2018.

-3- In August of 2018, Maria was dealing with some family issues and

asked the Cabinet to place Petra’s three children in foster care. Shortly after the

Cabinet’s placement, Maria regretted the decision and filed motions to intervene in

the dependency, neglect, and abuse (DNA) actions that the Cabinet had filed

against Petra. Since the filing of the motion to intervene, the record reflects that

Maria has diligently pursued having the children returned to her.

On April 23, 2019, Maria initiated the underlying custody action by

filing a petition for custody of N.L., E.G.-L., and S.L. in Montgomery Circuit

Court. During the pendency of the underlying custody action, all three children

were again placed with Maria in August of 2020. Guillermo, who was living out

of state, was denied placement of the children on two occasions pursuant to the

Interstate Compact for the Placement of Children (ICPC). N.L., E.G.-L., and S.L.

have remained solely in Maria’s custody since August of 2020.

An evidentiary hearing was conducted on October 7, 2021, on Maria’s

motion to establish custody and timesharing. Petra, who was incarcerated on drug

related charges in Tennessee, appeared and was represented by counsel. Guillermo

also appeared with counsel. By findings of fact, conclusions of law, and judgment

entered October 27, 2021, the circuit court found that Maria was a de facto

custodian of N.L., E.G.-L., and S.L. N.L.’s putative father, Javier, failed to appear

and Maria was awarded sole custody of N.L. No appeal has been taken by Javier

-4- regarding custody of N.L. The circuit court also determined that as to E.G.-L. and

S.L., Guillermo had waived his superior right to custody and was unfit.2 As such,

the circuit court employed a best interests analysis to determine custody as

between Maria and Guillermo. The circuit court ultimately awarded joint custody

of E.G.-L. and S.L. to Maria and Guillermo; Maria was designated the primary

residential custodian, and Guillermo was awarded visitation. Guillermo pursued

this appeal as to the custody determination involving his two biological children,

E.G.-L. and S.L.

It is a deeply entrenched concept of American jurisprudence that a

biological parent has a “superior right to custody” and that such right is paramount

to that of a third party. Diaz v. Morales, 51 S.W.3d 451, 454 (Ky. App. 2001). To

determine custody between a parent and a nonparent, the best interests analysis of

Kentucky Revised Statutes (KRS) 403.270(2) is not utilized unless the third party

can demonstrate by clear and convincing evidence that she qualified as a de facto

custodian or that the biological parent waived his superior right to custody or was

unfit. Id.

Guillermo initially contends that the circuit court erred by determining

that Maria was the de facto custodian of E.G.-L. and S.L. as Maria could not

2 Petra Azucena Lozano-Rodriguez acknowledged she had waived her superior right to custody of her children, N.L., E.G.-L., and S.L., to her sister, Maria Rebecca Murillo.

-5- satisfy the time requirement of KRS 403.270(1). More particularly, Guillermo

maintains that his actions seeking to regain custody of the children tolled the time

under KRS 403.270(1) required to establish de facto custodian status.

KRS 403.270(1) provides, in relevant part:

(a) As used in this chapter and KRS 405.020, unless the context requires otherwise, “de facto custodian” means 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 within the last two (2) years has resided with the person for an aggregate period of six (6) months or more if the child is under three (3) years of age and for an aggregate 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. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.

KRS 403.270(1)(a). Relevant to this appeal, to qualify as a de facto custodian, it

must be demonstrated that during the previous two-year period, a child three years

of age or older must have resided with the person for an aggregate period of one

year or more. And, it is well-settled that “any direct participation in a child

custody proceeding that demonstrates a parent’s desire to regain custody of their

child is sufficient to toll the de facto time requirement under KRS 403.270.”

Meinders v. Middleton, 572 S.W.3d 52, 59 (Ky. 2019).

-6- In the case sub judice, E.G.-L. came to live with Maria in November

of 2016 and S.L. came shortly after his birth on January 13, 2017. Then, on

February 13, 2017, Petra took her children from Maria’s home and relinquished

custody of them to the Cabinet. The Cabinet contacted Guillermo, who was living

in Virginia. Guillermo could not immediately travel to Kentucky, so the Cabinet

filed DNA petitions on February 14, 2017. Guillermo was present for the DNA

hearing on February 15, 2017, and expressed his desire to take the children with

him to Virginia. As Guillermo was living out of state, the court did not permit him

to take the children with him pending a home study in accordance with the ICPC.

However, Guillermo also appeared before the court on other occasions in an effort

to gain custody of the children. Guillermo’s appearance and direct participation in

the DNA action demonstrated his desire to gain custody of the children and was

sufficient to toll the time required under KRS 403.270(1) to qualify as a de facto

custodian. See Meinders, 572 S.W.3d at 59. Therefore, we agree with Guillermo

that Maria did not satisfy the time requirement of KRS 403.270(1)(a). Thus, we

conclude that the circuit court erred by determining that Maria qualified as a de

facto custodian of E.G.-L. and S.L.

However, the de facto custodian ruling alone does not resolve the

custody issue in this case. The circuit court also ruled that Guillermo had waived

his superior right to custody and he now contends on appeal that the circuit court

-7- erred by determining that he had waived his superior right to custody as to E.G.-L.

and S.L.

It is well-established that where a nonparent pursuing custody does

not qualify as a de facto custodian, he or she must prove by clear and convincing

evidence that the parent has either waived his superior right to custody or is unfit.

Mullins v. Picklesimer, 317 S.W.3d 569, 578 (Ky. 2010). Waiver is demonstrated

by a showing that a “voluntary and intentional surrender or relinquishment of a

known right” has occurred or there has been an “election to forego an advantage

which the party at his option might have demanded or insisted upon.” Id. at 578

(quoting Greathouse v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995)). Proof of waiver

must be demonstrated by clear and convincing evidence and if so demonstrated,

the “court shall determine custody between the parent and nonparent based on the

best interest of the child.” Moore v. Asente, 110 S.W.3d 336, 360 (Ky. 2003).

The following factors have been identified for consideration when

determining whether a parent has waived his superior right to custody:

length of time the child has been away from the parent, circumstances of separation, age of the child when care was assumed by the non-parent, time elapsed before the parent sought to claim the child, and frequency and nature of contact, if any, between the parent and the child during the non-parent’s custody.

Picklesimer, 317 S.W.3d at 579 (citation omitted). However, these enumerated

factors are not an exhaustive list and waiver should be viewed on a case-by-case

-8- basis. Id. It should also be noted that a doctrine of “partial waiver” has been

recognized. J.S.B. v. S.R.V., 630 S.W.3d 693, 703 (Ky. 2021). The doctrine of

partial waiver is particularly grounded upon what is best for the child to avoid the

harm that inevitably results from destroying the bond that develops between a child

and a nonparent that has raised the child as her own. Id. at 703.

In the case sub judice, the record reflects that Guillermo made no

attempt to assert his superior right to custody when E.G.-L. and the S.L. were

living with Maria from November of 2016 to February of 2017. Guillermo knew

the children were with Maria, yet he made no attempt to exercise custodial control

over the children. Rather, Guillermo acquiesced in allowing Maria to provide the

primary care for his very young children, to make the parental decisions for the

children, and to financially support the children. In fact, Guillermo sent only $100

to Maria for the purchase of Christmas presents for the children. And, during the

period between November 2016 until August 2018, and from August 2020 until

October 2021, Guillermo acknowledged he only sent a total of $1,000 to Maria for

the care of the children. So, during this approximate thirty-six-month period when

Maria was financially providing for Guillermo’s children, he provided an average

of $28 per month for the care of his children.

Also, during this same period of time, Guillermo continued to live out

of state, chose not to move back to Kentucky, and usually only saw the children

-9- when he came to Kentucky for court appearances. Meanwhile, the children

bonded with Maria and even referred to her as their mother. The children,

likewise, viewed Maria’s children as their siblings. These facts taken together

demonstrate by clear and convincing evidence that Guillermo waived his superior

right to custody. And, as a result of the waiver, Maria was on equal footing with

Guillermo in the custody proceeding. Thus, we view Guillermo’s contention that

the circuit court erred by determining that he had waived his superior right to

custody of E.G.-L. and S.L. to be without merit. As we have concluded that

Guillermo waived his superior right to custody, it is unnecessary to address

Guillermo’s contention of error as to the circuit court’s determination that he was

also unfit. The waiver of Guillermo’s superior right to custody placed Maria on

equal footing with Guillermo for the purpose of determining custody, and the

circuit court properly applied the best interests of the child standard in awarding

joint custody to Maria and Guillermo.

Guillermo also maintains that the circuit court erred by abdicating its

responsibility under Kentucky Rules of Civil Procedure (CR) 52.01 to make

findings of fact and conclusions of law. In particular, Guillermo asserts that the

circuit court improperly adopted the proposed findings of fact and conclusions of

law tendered by Maria.

-10- It is well-established that CR 52.01 applies to an action heard by the

court without a jury. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). CR

52.01 provides, in relevant part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; . . . . Requests for findings are not necessary for purposes of review except as provided in Rule 52.04. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . . If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02.

A circuit court is not generally prohibited from delegating “the clerical task of

drafting proposed findings of fact and conclusions of law[.]” Bingham v. Bingham,

628 S.W.2d 628, 629 (Ky. 1982). And, the circuit court is to exercise caution in its

delegation to ensure that it “does not abdicate its fact-finding and decision-making

responsibility under CR 52.01.” Id. at 629. However, unless it is demonstrated

that the findings of fact and conclusions of law are not the product of the circuit

court’s deliberation, such findings of fact and conclusions of law are sufficient to

satisfy CR 52.01 and will not be disturbed on appeal. Id. at 629.

-11- In the case sub judice, the circuit court instructed both parties to

tender proposed findings of fact, conclusions of law, and judgment. Both parties

complied and the court adopted those submitted by Maria. Guillermo does not

explain how the circuit court abdicated its duties in this case given the evidence

supports the court’s findings as concerns waiver. Rather, Guillermo simply

disagrees with the circuit court’s findings of fact and conclusions of law. This

alone is insufficient. Therefore, we conclude that Guillermo has failed to

demonstrate that the circuit court improperly abdicated its fact-finding and

decision-making responsibility in rendering its decision. See Bingham, 628

S.W.2d 628.

We view any remaining contentions of error to be moot or without

merit.3

For the foregoing reasons, the judgment of the Montgomery Circuit

Court is affirmed.

ALL CONCUR.

3 Guillermo Gonzales also asserts that the Interstate Compact for the Placement of Children was improperly applied which resulted in preventing the children from being placed with him in February of 2017. This occurred in the dependency, abuse, and neglect proceedings in district court and is not a proper issue to be addressed in this appeal.

-12- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE MARIA REBECCA MURILLO: Kaye L. Leighton Mt. Sterling, Kentucky Jason Rapp Lexington, Kentucky

BRIEF FOR APPELLEE PETRA AZUCENA LOZANO-RODRIGUEZ:

Marsha Megan Hughes Richmond Mt. Sterling, Kentucky

-13-