No. 2011-CA-002011-ME
Published: Opinion Affirming
County: Greenup
Sandra Spreacker appeals from an
order of Greenup Family Court which determined that Denise Vaughn, the paternal
Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.
No. 2011-CA-002011-ME
Published: Opinion Affirming
County: Greenup
Sandra Spreacker appeals from an
order of Greenup Family Court which determined that Denise Vaughn, the paternal
Great-Aunt of the minor child (B.C.), to be the de facto custodian of that child.
In July, 2010 while baby-sitting
B.C., Vaughn noticed severe diaper rash.
She contacted Spreacker who requested that B.C. be returned home the next
day. The next day, however, Spreacker
was arrested. The child’s father was
already incarcerated. Although Vaughn
had physical custody, she did not have legal custody, so she filed a petition
for juvenile dependency, neglect, and abuse in Boyd County.
On July 7, 2010, Boyd District Court
granted emergency custody to Vaughn and granted her custody after a temporary
removal hearing on July 12. On July 27,
Vaughn amended her petition to allege B.C. was medically neglected. After an adjudication hearing on September 14
during which B.C.’s parents admitted to neglect, the court ordered B.C. to
remain in Vaughn’s custody.
On January 3, 2011, Vaughn filed a
petition for custody in Greenup, her home county. At a hearing on May 3, 2011, the Greenup
Family Court found that Vaughn was a de
facto custodian and awarded her custody of B.C. This appeal followed.
The Greenup Family Court found that
B.C. continuously resided with Vaughn who made sure the child received all
necessary medical procedures and Vaughn was the primary financial
supporter. B.C. had a Kentucky medical
card before custody was awarded to Vaughn and received money from Kinship Care which
merely covered daycare expenses.
Spreacker argues that Vaughn was not the primary financial support because
of these benefits. The Court of Appeals
disagreed and said the government benefits only supplemented what Vaughn
provided and the benefits did not supplant the primary support of the child.
The Court of Appeals distinguished
this case from those involving foster parents, who receive support from the
Cabinet. B.C. was never in the custody
of the Cabinet and Vaughn is not a foster parent. KRS 403.270 requires a de facto custodian to serve as the “primary” – not the “sole”
caregiver and financial supporter.
The Court of Appeals found that
because the child is under the age of three and was never “placed” by the
Cabinet, the statutory criteria was satisfied.
Moreover, the CA held that because Spreacker did not commence a separate
action to regain custody, she did not toll the calculation of the statutory
time for establishing a de facto
custodian.
Digested by
Sandra G. Ragland, Diana L. Skaggs + Associates.
