Kingcade v. Sherwood

• Decision Date: 20 November 2020
• Docket Number: NO. 2019-CA-1711-MR,2019-CA-1711-MR
• Parties: SHARON KINGCADE APPELLANT v. SHELBIE SHERWOOD APPELLEE
• Court: Kentucky Court of Appeals

SHARON KINGCADE APPELLANT v. SHELBIE SHERWOOD APPELLEE

NO. 2019-CA-1711-MR

Commonwealth of Kentucky Court of Appeals

NOVEMBER 20, 2020

NOT TO BE PUBLISHED

APPEAL FROM MCCRACKEN FAMILY COURT

HONORABLE DEANNA WISE HENSCHEL, JUDGE

ACTION NO. 19-CI-00757

OPINION

AFFIRMING

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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 amotion 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."

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 theparties' 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

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).

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 samelanguage 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...