Debbie Appleman; Nick Appleman; and Ryan Roberts v. Briana Gebell, No. 2024-SC-0137-DGE
Bracken Circuit Court 2024-SC-0137-DGE.pdf
KENTUCKY SUPREME COURT CONSIDERS WHETHER PERMANENT CUSTODY ORDER AMOUNTED TO CUSTODY DECREE
Child was born in 2016. In his first two years of life, he was removed from Mother and Father by the Cabinet and placed in the temporary custody of Father’s cousins (Cousins) three times through a dependency, neglect and abuse (DNA) case heard by the district court. The initial removal was from both parents. After the first removal, the child was only returned to – and subsequently removed from – Father’s custody. Upon the third removal, the district court entered a permanent custody order (PCO) granting sole custody of Child to Cousins.
In 2021, Mother filed a motion for sole custody, which the circuit court denied following a hearing, finding that Mother had waived her superior right to custody in being absent from Child’s life, and remaining with Cousins was in his best interest. The Court of Appeals reversed, and ordered the circuit court to award custody to Mother upon conclusion that the record did not support the finding of waiver. The Supreme Court granted discretionary review.
The Supreme Court denied Cousins’ argument that the PCO entered in the DNA case granted them equal standing as Mother in any subsequent custody dispute, and reiterated the holding of London v. Collins: a PCO under KRS 620.027 will generally be treated as a custody decree such that the modification standard under KRS 403.340 controls when a parent seeks to regain custody, but only if the PCO complies with the requirements of KRS 403.270. 242 S.W.3d 351 (Ky. App. 2007).
In this case, Cousins were never declared Child’s de facto custodians. Rather, their legal status stemmed from KRS 403.800(13)’s definition of a “person acting as a parent”. Importantly, the Court held in Mullins v. Picklesimer that a non-parent qualifying as a person acting as a parent has standing to seek custody under KRS 403.822. 317 S.W.3d 569 (Ky. 2010). But, a person acting as a parent does not receive equal standing to a parent in the way that a de facto custodian would. Thus, a court must first determine whether a parent is unfit or has waived their superior right, before it can determine custody in accordance with the child’s best interests. Moore v. Asente, 11 S.W.3d 336 (Ky. 2003).
In its PCO, the district court made no specific findings as to Mother’s unfitness, waiver of superior rights, or consent to permanent placement. Further, the PCO did not qualify as a custody decree under KRS 403. Thus, the Appellate Court properly determined Cousins were required to demonstrate waiver or unfitness to defeat Mother’s superior right to custody.
However, the Appellate Court was incorrect that the above conclusion entitled Mother to immediate custody. In custody matters, the Court held, the Appellate Court should focus both on
whether a trial court’s findings of fact are supported by substantial evidence and whether the findings of fact were sufficient under the applicable legal standard. In this case, the circuit court’s finding of waiver was insufficient as a matter of law because it did not address the voluntariness of Mother’s separation from Child. In addition, there were no findings at all related to Mother’s fitness because the trial court applied the incorrect standard. Without such findings, meaningful appellate review is impossible, thus requiring remand to the circuit court for additional proceedings.
Ultimately, the Court affirmed the Appellate Court’s determination that Cousins were required to demonstrate Mother’s unfitness or waiver because the PCO did not constitute a custody decree, reversed its holding that Mother was entitled to immediate custody, and remanded for further proceedings.
Carter Anderson
