Sharon Cooper v. Michael Alan Ivey ( 2021 )

RENDERED: MAY 28, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0353-MR
SHARON COOPER APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JOHN M. MCCARTY, JUDGE
ACTION NO. 18-CI-00994
MICHAEL ALAN IVEY, ALICIA
IVEY PAYNE, JASON AARON
HARRINGTON, AND LINDA
DARLENE IVEY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Sharon Cooper appeals the order of the Daviess Circuit Court
granting the petition of Michael Alan Ivey and Linda Darlene Ivey for grandparent
visitation with R.H. (“Child”) entered on January 14, 2020. After careful review of
the briefs, record, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The Iveys are Child’s maternal grandparents who, on October 2, 2018,
filed a petition seeking grandparent visitation rights. At the time of the petition,
Cooper, Child’s paternal grandmother, had temporary custody as a result of on-
going dependency, neglect, and abuse (DNA) proceedings. On November 28,
2018, the court held a hearing on the Iveys’ motion for visitation pendente lite and
ultimately granted visitation every other weekend.
On April 16, 2019, the DNA court entered orders finding that Cooper
qualified as a de facto custodian1 and granting her permanent custody of Child.
Cooper then moved the Daviess Circuit Court to modify the Iveys’ visitation,
arguing that her status as a de facto custodian required heightened deference to her
wishes on the matter. The Iveys objected, and Child’s parents, Jason Aaron
Harrington and Alicia Ivey Payne, both of whom are incarcerated, filed responses
in support of the Iveys having visitation. A hearing on the petition and motion was
held on January 6, 2020.
Thereafter, the court entered the order currently on appeal granting the
Iveys’ petition and continuing the pendente lite visitation schedule of every other
1
“‘[D]e 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 has resided with
the person for a [set period of time] or has been placed by the Department for Community Based
Services.” Kentucky Revised Statutes (KRS) 403.270(1)(a). This statute has since been
amended by 2021 Ky. Laws ch. 132 (SB 32) (eff. Apr. 12, 2021). The current version of the
statute is not applicable herein.
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weekend. Cooper timely moved, pursuant to CR2 59.05, to alter, amend, or vacate
the order arguing that the court utilized the incorrect evidentiary standard and
failed to fully review the applicable factors. The motion was denied, and this
appeal timely followed. We will introduce additional facts as they become
relevant.
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 County Fiscal
Court, 345 S.W.3d 811, 816 (Ky. 2011).
ANALYSIS
“The Circuit Court may grant reasonable visitation rights to [] the . . .
grandparents of a child . . . if it determines that it is in the best interest of the child
to do so.” KRS 405.021(1)(a). In Troxel v. Granville, 530 U.S. 57, 120 S. Ct.
2054, 147 L. Ed. 2d. 49 (2000), the United States Supreme Court held due process
requires that courts give appropriate weight in non-parent visitation proceedings to
protect the parents’ fundamental rights to manage their child’s care, custody, and
2
Kentucky Rules of Civil Procedure.
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control. Consequently, the Kentucky Supreme Court held in Walker v. Blair, 382
S.W.3d 862, 869 (Ky. 2012), that a heightened standard of evidence—clear and
convincing versus the customary preponderance of the evidence standard—shall be
utilized in grandparent visitation actions against custodial parents. The Walker
court also adopted eight factors3 which it identified as being potentially relevant to
the resolution of grandparent visitation actions. Id. at 871.
Recently, in Morton v. Tipton, 569 S.W.3d 388 (Ky. 2019), the
Kentucky Supreme Court addressed whether the heightened evidentiary standard
3
The factors, which are not exhaustive, are:
1) the nature and stability of the relationship between the child
and the grandparent seeking visitation;
2) the amount of time the grandparent and child spent together;
3) the potential detriments and benefits to the child from granting
visitation;
4) the effect granting visitation would have on the child’s
relationship with the parents;
5) the physical and emotional health of all the adults involved,
parents and grandparents alike;
6) the stability of the child’s living and schooling arrangements;
[…]
7) the wishes and preferences of the child[; and]
8) the motivation of the adults participating in the grandparent
visitation proceedings.
Walker, 382 S.W.3d at 871.
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articulated in Walker applied when the child was in the permanent custody of
grandparents. The Court answered in the negative and expressly held that “trial
courts must use the preponderance of the evidence standard when considering
grandparent visitation if someone other than a parent, including another
grandparent, is the grandchild’s custodian.” Id. at 399.
Cooper’s first argument, which was preserved, is that the court erred
as a matter of law by applying the preponderance of the evidence standard. Cooper
acknowledges the apparent relevance of Morton but asserts that this action is
distinguishable. In furtherance of this claim, Cooper contends that Morton
involved a custody and visitation order pursuant to KRS Chapter 620,4 whereas her
custody right derives from KRS Chapter 4035 because she was determined to be a
de facto custodian. Additionally, drawing a parallel from KRS 403.270(1)(b),
which states that de facto custodians have the same standing as parents in custody
matters. Cooper argues that her status requires that she be treated as a parent for
the purposes of the visitation action—a deviation from Morton.
The history of Morton is similar to the case at hand. The Mortons
received permanent custody of their grandchild as a result of separate DNA
4
Titled: Dependency, Neglect, and Abuse.
5
Titled: Dissolution of Marriage; Child Custody.
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proceedings, and a petition for visitation was subsequently filed by Tipton, who
was also the child’s grandparent. While Cooper notes that the DNA court in
Morton entered a grandparent visitation order simultaneously with the permanent
custody order, we find this to be a distinction without a difference where the appeal
arose from the grandparent visitation petition, not the DNA orders, and was
resolved under KRS 405.021. Morton, 569 S.W.3d. at 391, 394. Further, any
attempt by Cooper to claim that the custody order in Morton did not satisfy KRS
Chapter 403 is pure conjecture. This is especially true given that KRS 620.027
dictates that permanent placement and custody orders made during DNA
proceedings “shall utilize the provisions of KRS Chapter 403.” Consequently, we
reject Cooper’s attempt to distinguish Morton.
Cooper further argues that her status as a de facto custodian imbues in
her the same rights and standing as a parent in all matters and the court erred in not
applying the heightened evidentiary standard. Cooper has provided no authority in
support of her proposition, beyond citing KRS 403.270(1)(b) and cases thereon.
We disagree with Cooper’s contention.
It is a long-held rule of statutory construction that courts are
constrained by the language of a statute where, as in KRS 403.270, it is clear and
unambiguous on its face. Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky. 1995).
The dictate of KRS 403.270(1)(b) to afford de facto custodians the same standing
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as parents is expressly limited to custody proceedings under certain enumerated
statutory provisions. As such, the statute has no application to the visitation action
at issue. Moreover, Morton expressly rejected the contention that a de facto
custodian can be bestowed a parent’s superior rights. 569 S.W.3d at 397.
Accordingly, we find that the court did not err in applying the preponderance of the
evidence standard.
Cooper next argues that the court erred as a matter of law and
rendered a clearly erroneous finding when it determined that the fourth Walker
factor, the effect granting visitation would have on the child’s relationship with the
parents, was inapplicable. In Morton, the Court reaffirmed the utility of the
Walker factors in non-parent custodian cases and advised courts to replace the
references to “parents” therein with “non-parent custodian.” Id. at 399. Therefore,
we agree with Cooper that the court erred in stating the factor was not relevant
instead of modifying it to suit the facts at hand.
However, while it is best practice to list and consider all the
enumerated Walker factors, what is pivotal is that the court’s order reflects actual
consideration of the factors, not the format of the order. Indeed, in Morton the
Kentucky Supreme Court deemed the trial court’s findings sufficient despite their
failure to even cite the Walker factors where the order nevertheless demonstrated
consideration consistent therewith. Id. at 399. Herein, Cooper did not identify in
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her brief what evidence the court failed to consider. Further, the evidence Cooper
identified in her CR 59.05 motion as relevant to the omitted Walker factor, i.e.,
alleged behavioral problems and the general desire to raise Child as she sees fit,
was identified and weighed by the court in its order. As the order on appeal
demonstrates a thorough consideration of the relevant factors and evidence, we
find no reversible error, and Cooper’s claim fails.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Daviess
Circuit Court is hereby AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES MICHAEL
ALAN IVEY AND LINDA
William D. Tingley DARLENE IVEY:
Louisville, Kentucky
Angela L. Thompson
Owensboro, Kentucky
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