RENDERED: DECEMBER 3, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1530-ME
WAYMAN ELLIOTT AND LAUREL ELLIOTT APPELLANTS
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 19-CI-00402
BOBBIE SMITH; BRUCE LUTE, II; AND CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
DIXON, JUDGE: Wayman and Laurel Elliott (the Elliotts) appeal from the
Greenup Circuit Court judgment, entered November 16, 2020, dismissing their
petition for custody of a minor child and instead awarding custody to the child’s
mother, Bobbie Smith (Mother). After careful review of the briefs, record, and law, we affirm the dismissal but reverse the award of custody and remand with
directions.
BACKGROUND AND PROCEDURAL HISTORY
On September 26, 2019, the Elliotts filed a petition seeking permanent
custody of the minor child B.L. Therein, the Elliotts averred that: (1) the Cabinet
for Health and Family Services (CHFS) had legal custody of the child, (2) they
were the child’s de facto custodians, having provided care for the three-year-old
child since she was nine months old, and (3) the biological parents were unfit.
Additionally, the Elliotts moved for temporary custody, which was granted,
pending a hearing on October 2, 2019, before response time on either the petition
or the motion had lapsed.
Thereafter, CHFS moved to dismiss the petition arguing, among other
claims, that the Elliotts lacked standing pursuant to Swiss v. Cabinet for Families
and Children, 43 S.W.3d 796 (Ky. App. 2001). This motion was later withdrawn,
and CHFS then filed an answer denying that the Elliotts qualified as de facto
custodians, but not objecting to their request for custody. On July 6, 2020, Mother
filed a letter, which she requested be treated as a petition for full custody, but
which was docketed as a motion.
After a hearing, the court entered its judgment on November 16, 2020.
Citing Swiss, the court concluded that the Elliotts did not qualify as de facto
-2- custodians due to their former status as foster parents, and that while it was in the
child’s best interest to remain with the Elliotts, the court was required by virtue of
Mother’s superior right to custody, which had not been waived or forfeited due to a
lack of fitness, to grant her custody. The court then dismissed the Elliotts’ petition
and awarded custody to Mother.
The Elliotts moved to alter, amend, or vacate the judgment pursuant to
CR1 59.05, as well as to stay enforcement pending appeal. Said motions were
denied, and this appeal timely followed. Thereafter, this Court granted the Elliotts’
motion for emergency and intermediate relief, pursuant to CR 76.33, and ordered
that the child be returned to their care pending disposition of this appeal.
Prior to briefing, CHFS moved to supplement the record on appeal
with the dependency, neglect, and abuse (DNA) proceedings2 which had resulted
in the child’s commitment to CHFS and her placement with the Elliotts. Our Court
granted the motion, over Mother’s objection, relying on the trial court’s order
approving the supplementation. The DNA record was certified, but not transmitted
to this Court. Mother now moves to exclude the DNA proceedings from the
appellate record. No response has been filed.
1 Kentucky Rules of Civil Procedure. 2 Greenup Circuit Court, Case No. 16-J-00107-001.
-3- Having reviewed the final hearing–wherein the circumstances of the
DNA proceedings were referenced during the testimony of the witnesses but the
record itself was neither introduced nor judicial notice taken–we agree with Mother
that it should be excluded from the appellate record. See Lucas v. Lucas, 720
S.W.2d 352, 353 (Ky. App. 1986) (“A party cannot utilize [the civil rules] to
include evidence in the record on appeal if that evidence was not first placed
before the fact-finder during trial.”). The motion is, therefore, granted by separate
order, and we will refer solely to the record from the custody action.
STANDARD OF REVIEW
We review a court’s findings of fact under the clearly erroneous
standard and will only reverse if the findings are not supported by substantial
evidence. CR 52.01; Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964).
We review the court’s legal conclusions de novo. Nash v. Campbell Cty. Fiscal
Court, 345 S.W.3d 811, 816 (Ky. 2011).
ANALYSIS
The Elliotts argue the court erred in finding they lacked standing to
seek custody where (1) they qualified as de facto custodians, (2) CHFS and Mother
waived their superior rights to custody, and (3) Mother was unfit. We need not
explore the Elliotts’ claims in depth because their position is unfortunately
fundamentally flawed. We find it necessary to emphasize that at the time the
-4- underlying action commenced, custody of the child was committed to CHFS.
Therefore, any attempt to frame the matter as a custody action against Mother is
inaccurate and cannot serve as a basis to establish standing by the Elliotts.
The Elliotts correctly assert, “non-parents may attain standing to seek
custody . . . of a child only if they qualify as de facto custodians, if the parent has
waived her superior right to custody, or if the parent is conclusively determined to
be unfit.” Truman v. Lillard, 404 S.W.3d 863, 868 (Ky. App. 2012) (emphasis
added) (citing Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010)). Plainly, the
latter two grounds for standing necessitate an action against a parent having
custody, not CHFS, and the Elliotts have failed to cite a single source that would
justify application under these facts. Likewise, the Elliotts’ claim of standing by
virtue of de facto custodianship, as defined by KRS3 403.270, also fails.
In Swiss, this Court held that KRS 403.270 does not permit custody
actions to be brought against CHFS, as the plain language of the statute limits its
application to actions arising between parents and one who qualifies as a de facto
custodian. 43 S.W.3d at 798. The Elliotts argue Swiss is distinguishable because
they ceased being foster parents in October 2019 when they were granted
temporary legal custody of the child. However, such a distinction is fallacious
where the Elliotts only gained temporary legal custody of the child through the
3 Kentucky Revised Statutes.
-5- very action which they had no standing to bring. To allow such a distinction
would serve no purpose than to circumvent both precedent and the plain language
of the statute. Accordingly, the trial court did not err in holding that the Elliotts
lacked standing and dismissing the action.
Our analysis does not end here, however, as the trial court
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RENDERED: DECEMBER 3, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1530-ME
WAYMAN ELLIOTT AND LAUREL ELLIOTT APPELLANTS
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 19-CI-00402
BOBBIE SMITH; BRUCE LUTE, II; AND CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
DIXON, JUDGE: Wayman and Laurel Elliott (the Elliotts) appeal from the
Greenup Circuit Court judgment, entered November 16, 2020, dismissing their
petition for custody of a minor child and instead awarding custody to the child’s
mother, Bobbie Smith (Mother). After careful review of the briefs, record, and law, we affirm the dismissal but reverse the award of custody and remand with
directions.
BACKGROUND AND PROCEDURAL HISTORY
On September 26, 2019, the Elliotts filed a petition seeking permanent
custody of the minor child B.L. Therein, the Elliotts averred that: (1) the Cabinet
for Health and Family Services (CHFS) had legal custody of the child, (2) they
were the child’s de facto custodians, having provided care for the three-year-old
child since she was nine months old, and (3) the biological parents were unfit.
Additionally, the Elliotts moved for temporary custody, which was granted,
pending a hearing on October 2, 2019, before response time on either the petition
or the motion had lapsed.
Thereafter, CHFS moved to dismiss the petition arguing, among other
claims, that the Elliotts lacked standing pursuant to Swiss v. Cabinet for Families
and Children, 43 S.W.3d 796 (Ky. App. 2001). This motion was later withdrawn,
and CHFS then filed an answer denying that the Elliotts qualified as de facto
custodians, but not objecting to their request for custody. On July 6, 2020, Mother
filed a letter, which she requested be treated as a petition for full custody, but
which was docketed as a motion.
After a hearing, the court entered its judgment on November 16, 2020.
Citing Swiss, the court concluded that the Elliotts did not qualify as de facto
-2- custodians due to their former status as foster parents, and that while it was in the
child’s best interest to remain with the Elliotts, the court was required by virtue of
Mother’s superior right to custody, which had not been waived or forfeited due to a
lack of fitness, to grant her custody. The court then dismissed the Elliotts’ petition
and awarded custody to Mother.
The Elliotts moved to alter, amend, or vacate the judgment pursuant to
CR1 59.05, as well as to stay enforcement pending appeal. Said motions were
denied, and this appeal timely followed. Thereafter, this Court granted the Elliotts’
motion for emergency and intermediate relief, pursuant to CR 76.33, and ordered
that the child be returned to their care pending disposition of this appeal.
Prior to briefing, CHFS moved to supplement the record on appeal
with the dependency, neglect, and abuse (DNA) proceedings2 which had resulted
in the child’s commitment to CHFS and her placement with the Elliotts. Our Court
granted the motion, over Mother’s objection, relying on the trial court’s order
approving the supplementation. The DNA record was certified, but not transmitted
to this Court. Mother now moves to exclude the DNA proceedings from the
appellate record. No response has been filed.
1 Kentucky Rules of Civil Procedure. 2 Greenup Circuit Court, Case No. 16-J-00107-001.
-3- Having reviewed the final hearing–wherein the circumstances of the
DNA proceedings were referenced during the testimony of the witnesses but the
record itself was neither introduced nor judicial notice taken–we agree with Mother
that it should be excluded from the appellate record. See Lucas v. Lucas, 720
S.W.2d 352, 353 (Ky. App. 1986) (“A party cannot utilize [the civil rules] to
include evidence in the record on appeal if that evidence was not first placed
before the fact-finder during trial.”). The motion is, therefore, granted by separate
order, and we will refer solely to the record from the custody action.
STANDARD OF REVIEW
We review a court’s findings of fact under the clearly erroneous
standard and will only reverse if the findings are not supported by substantial
evidence. CR 52.01; Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964).
We review the court’s legal conclusions de novo. Nash v. Campbell Cty. Fiscal
Court, 345 S.W.3d 811, 816 (Ky. 2011).
ANALYSIS
The Elliotts argue the court erred in finding they lacked standing to
seek custody where (1) they qualified as de facto custodians, (2) CHFS and Mother
waived their superior rights to custody, and (3) Mother was unfit. We need not
explore the Elliotts’ claims in depth because their position is unfortunately
fundamentally flawed. We find it necessary to emphasize that at the time the
-4- underlying action commenced, custody of the child was committed to CHFS.
Therefore, any attempt to frame the matter as a custody action against Mother is
inaccurate and cannot serve as a basis to establish standing by the Elliotts.
The Elliotts correctly assert, “non-parents may attain standing to seek
custody . . . of a child only if they qualify as de facto custodians, if the parent has
waived her superior right to custody, or if the parent is conclusively determined to
be unfit.” Truman v. Lillard, 404 S.W.3d 863, 868 (Ky. App. 2012) (emphasis
added) (citing Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010)). Plainly, the
latter two grounds for standing necessitate an action against a parent having
custody, not CHFS, and the Elliotts have failed to cite a single source that would
justify application under these facts. Likewise, the Elliotts’ claim of standing by
virtue of de facto custodianship, as defined by KRS3 403.270, also fails.
In Swiss, this Court held that KRS 403.270 does not permit custody
actions to be brought against CHFS, as the plain language of the statute limits its
application to actions arising between parents and one who qualifies as a de facto
custodian. 43 S.W.3d at 798. The Elliotts argue Swiss is distinguishable because
they ceased being foster parents in October 2019 when they were granted
temporary legal custody of the child. However, such a distinction is fallacious
where the Elliotts only gained temporary legal custody of the child through the
3 Kentucky Revised Statutes.
-5- very action which they had no standing to bring. To allow such a distinction
would serve no purpose than to circumvent both precedent and the plain language
of the statute. Accordingly, the trial court did not err in holding that the Elliotts
lacked standing and dismissing the action.
Our analysis does not end here, however, as the trial court
simultaneously awarded custody to Mother. CHFS argues the court erred by not
returning the child to its custody, and we agree. As an initial point, it is axiomatic
that the dismissal of the underlying action would vacate temporary custody orders
and, by effect, custody would revert to the prior order of custody. See KRS
403.280(8). Accordingly, CHFS had legal custody of the child unless the prior
order was superseded by a new, valid custody determination. We conclude it was
not.
“As a general rule, ‘a judgment cannot properly adjudicate a matter
not within the pleadings.’” Kentucky Ret. Sys. v. Foster, 338 S.W.3d 788, 798-99
(Ky. App. 2010) (quoting Buskirk v. Joseph, 313 Ky. 773, 233 S.W.2d 524, 527
(1950)). Relevantly, a pleading is a complaint or answer. CR 7.01. Herein, the
only pleading docketed was the Elliotts’ petition, which was properly dismissed for
lack of standing. As such, the trial court erred in ruling on Mother’s request for
custody as its judgment exceeded the pleadings.
-6- Even were we to conclude that Mother’s letter qualified as a
pleading,4 the trial court’s award of custody is erroneous. The child was removed
from Mother’s custody as a result of DNA proceedings and committed to the
custody of CHFS. Consequently, KRS 610.120 governs, and there is an
expectation that the court, with CHFS involvement, will determine whether the
commitment should be terminated.5 Herein, the court failed to apply the correct
law and awarded Mother custody seemingly by default of finding that the Elliotts
did not have standing. Such a result is untenable.
CONCLUSION
Therefore, and for the foregoing reasons, we AFFIRM the dismissal
of the Elliotts’ custody petition and REVERSE the award of custody and
REMAND the matter to the Greenup Family Court for proceedings consistent with
this Opinion. Nothing in this Opinion precludes CHFS from exercising its
authority to continue the placement with the Elliotts, should the agency so choose.
4 While the record conclusively forecloses finding that Mother’s filing satisfies the requirements of CR 3 to be considered a complaint, where summons was not issued, it is unclear whether it could be construed as an answer and counterclaim. We note the record does not demonstrate that Mother was served, much less when. 5 KRS 610.120(1)-(2) provides that “an order of commitment . . . made by the court in the case of a child may be terminated at any time[.] Grounds for such an action may include . . . that there has been a substantial change of material circumstances, there exists new evidence affecting the disposition of the child, [or] the child is no longer in need of commitment[.] [CHFS] shall divulge and communicate such information regarding the child as the court may require.”
-7- ALL CONCUR.
BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY Tracy D. Frye SERVICES: Marie E. Troxler Russell, Kentucky Matthew Perdue Ashland, Kentucky
BRIEF FOR APPELLEE BOBBIE SMITH:
Robert T. Renfroe Greenup, Kentucky
-8-