TEMPLE (KAREN) VS. TEMPLE (PHILIP), ET AL.
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RENDERED: NOVEMBER 13, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000044-ME
KAREN TEMPLE
v.
APPELLANT
APPEAL FROM OWSLEY CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 07-CI-00160
PHILLIP TEMPLE, CHERYL MCCAULEY,
AND N.T. 1
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND WINE, JUDGES; HARRIS,2 SENIOR JUDGE.
NICKELL, JUDGE: This appeal flows from the filing of a custody petition by
N.T.’s maternal grandmother, Cheryl McCauley. Karen Temple, the natural
mother of N.T., appeals from an order entered by the Owsley Circuit Court on
1
2
Pursuant to Court policy, children in custody cases are referred to by initials only.
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
November 18, 2008, adopting the findings of fact, conclusions of law and decree
proposed by a special domestic relations commissioner (DRC) who found Karen
had waived her superior right to her son’s custody by not seeking custody for
herself; awarded custody of N.T. to Cheryl; allowed Karen and her father, Phillip
Temple, to share visitation with N.T. at least one weekend of each month; and
directed Karen to pay $60.00 to Cheryl each month in child support. After
reviewing the record and the law, we affirm.
We begin with a brief description of the parties and the events
spawning this appeal. As a child, Karen was placed through foster care in the
home of Cheryl and Phillip and was ultimately adopted by them at the age of six.
At the time of adoption, Karen was classified as being severely emotionally
disturbed. A 1997 psychoeducational evaluation showed Karen to be in the
moderate to mild range of mental retardation. When Cheryl and Phillip divorced
in 1993, Karen chose to remain with Cheryl in Booneville, Kentucky. Phillip
remarried and relocated about six hours away to Cadiz, Kentucky.
Cheryl is the full-time coordinator of a therapeutic rehabilitation
program operated by Kentucky River Community Care. She is in reasonably good
health and plans to retire soon. Phillip is retired from the military. He receives
disability benefits and takes twenty-six different medications for diabetes, sleep
apnea, high blood pressure, thyroid problems, a heart disorder, cholesterol
problems, allergies, and stomach problems. He also takes medication prescribed
by a psychiatrist.
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Karen was seventeen and living with a boyfriend when she became
pregnant in 2003. Five months into the pregnancy, after having a row with the
boyfriend and his grandmother, Karen called Cheryl and asked if she could return
home. Cheryl agreed and on February 14, 2004, a son, N.T., was born out of
wedlock to Karen. About eight months later, it was established that Charles Hays
was the child’s father, and he began paying Karen $60.00 in monthly child support.
Charles3 is a convicted sex offender and is prohibited from having any contact with
juveniles, including N.T. For the first twenty months of N.T.’s life, N.T. and
Karen lived in Cheryl’s home. During this time, Karen relied heavily upon Cheryl
to feed, clothe, transport, and care for N.T. Both women agree the
mother/daughter relationship was severely strained. According to Cheryl, Karen
perceives any disagreement as abuse. Cheryl admitted that she and Karen had
some physical altercations. During one of these occurrences, then two-year-old
N.T. told the women to stop fighting.
In October 2005, with Cheryl’s assistance, Karen moved to an
apartment with N.T. but still relied heavily on Cheryl. Karen was investigated
twice for neglect4 but neither allegation was substantiated. Social workers testified
N.T. did not obey Karen whereas he interacted positively with Cheryl. An
3
A warning order attorney was unable to locate Charles to apprise him of the custody petition
filed by Cheryl. Charles did not attend or participate in any proceedings in this case. He has not
requested custody for himself. However, by both telephone and in a notarized statement, he
expressed his desire that Cheryl have custody of his son.
4
The record does not reveal the origin of the neglect allegations.
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assistant head start teacher testified N.T. was calmer with Cheryl and was
physically aggressive toward Karen.
In April of 2007, Karen signed a note giving Cheryl permission to
take N.T. for medical treatment when necessary. When the second neglect referral
was made in the fall of 2007, Karen and Cheryl agreed that N.T. would live with
Cheryl. At the hearing before the DRC, Karen begrudgingly admitted Cheryl
“probably has” taken good care of N.T.
Karen’s parental rights to her son have not been terminated, nor has a
court found her to be an unfit parent. Since August of 2007, N.T. has lived fulltime with Cheryl. In November of 2007, when Phillip took N.T. for a
Thanksgiving visit and did not return him after the holiday weekend as he had
promised he would, Cheryl petitioned the court to declare her a de facto custodian
and award her permanent custody. Alternatively, if the court did not find she
qualified as a de facto custodian, Cheryl asked that she be granted joint custody
with substantial visitation rights. Cheryl was granted temporary custody until a
hearing could be held and the matter resolved.
Karen filed a written response to the petition but she did not seek
custody of N.T. for herself. Instead, she argued her father was the proper person to
have custody because he would “prevent [Cheryl] from disrupting [N.T.’s] life
with fighting and arguing” and would “allow [Karen] to maintain a close and
peaceful relationship with [N.T.].” In her prayer for relief, Karen asked the court
to “[a]ward custody of [N.T.] to Phillip Temple.” Karen does not get along with
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Cheryl whom she claims has been “abusive and combative” towards her
throughout her life. She is afraid Cheryl will not allow her to see her son and
asked that Cheryl’s petition be dismissed with prejudice and that Cheryl be denied
all custody and visitation rights.
Following the hearing on June 26, 2008,5 the DRC submitted
proposed findings of fact and conclusions of law stating: even though N.T. had
lived much of his life in Cheryl’s home, she did not qualify as a de facto custodian
because she was not his primary caregiver for a year as required by KRS
403.270(1)(a); nothing within their backgrounds prevented Cheryl or Phillip from
caring for N.T.; the child’s father, Charles, a convicted sex offender, was unfit due
to the statutory prohibition on him having contact with juveniles; and there was no
evidence in the record to suggest Karen was an unfit parent. Additionally, and of
specific relevance to this appeal, the DRC wrote:
46. That leaves the question of whether Respondent
Karen Temple has waived her superior right to custody.
A waiver requires a “voluntary and intentional surrender
of a known right, or an election to forego an advantage
. . .” Vinson v. Sorrell, 136 S.W.3d 465, at 469 (Ky.
1995). In this case, the Petitioner claims that Respondent
Karen Temple waived her superior right when she did not
indicate in her pleadings that she is seeking custody.
Respondent Karen Temple replied that her prayer for
relief sought dismissal of the petition, which would
return custody to her.
5
The hearing began on June 26, 2008, and concluded on July 2, 2008. The record on appeal
contains a transcript of the testimony elicited on June 26. There is no transcript of the events that
transpired on July 2. A letter from the reporting service to one of the attorneys in the case
indicates problems with the speed of the audio recording prevented transcription of the entire
hearing. We have attempted to listen to the cassette tape of the July 2 testimony without success.
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47. During her testimony, Respondent Karen Temple
was asked repeatedly if she would keep [N.T.] if the
court awarded her custody. Her response was always in
the negative and that she would place the child with her
father, Respondent Phillip Temple. The Court cannot
and should not overlook the fact that Respondent Karen
Temple is in reality not seeking custody. If she is not
truly seeking custody, then she has waived her superior
right to custody. All of the testimony about placement of
the child following the court’s decision dealt with the
home of Petitioner Cheryl McCauley and Respondent
Phillip Temple. For the Court to believe that Respondent
Karen Temple is seeking custody would be to ignore the
obvious.
48. Since Respondent Karen Temple has waived her
superior right to custody, the custody decision is now
between two non-parents, and the best interest of the
child standard controls.
49. The testimony is clear [N.T.] has spent all of his
life living in Owsley County, a larger portion of that time
living with Petitioner Cheryl McCauley. Even when
[N.T.] was living with his mother alone, Ms. McCauley
was heavily involved in his life, providing financial
support, emotional support and cared for [N.T.] many
weekends, and saw him almost daily.
50. The testimony is also clear that [N.T.] thrives and
does well educationally with Petitioner McCauley.
51. It is in the child’s best interest to remain in the
custody of Petitioner Cheryl McCauley.
52. It is clear that Respondent Phillip Temple loves his
grandchild and is very capable of caring for [N.T.] as
well, however, for whatever reason, he has not been a
regular part of [N.T.’s] life and lives in an area [N.T.] is
not familiar with. It would not be in [N.T.’s] best interest
to uproot him and move him to a new town, a new home
and new environment.
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As a result, the DRC recommended that Cheryl be awarded sole custody with
Karen and Phillip sharing visitation with N.T. at least one weekend a month and
that Karen pay Cheryl $60.00 each month in child support. Both Phillip and Karen
filed exceptions to the DRC’s recommendations arguing that Karen had not waived
her superior right to custody of N.T. Cheryl’s response to the exceptions
maintained she qualified as a de facto custodian but agreed with the DRC’s
conclusion that Karen had waived her superior right to custody and that it was in
N.T.’s best interest that the child be placed in Cheryl’s custody. In adopting the
DRC’s findings and conclusions in an order entered on November 18, 2008, the
court stated in pertinent part:
When asked at the hearing if she wanted to keep [N.T.]
or would rather Phillip keep him, Karen stated, “No, I’d
rather my dad keep him,” and she listed several reasons
that Phillip and his wife are in a better position to parent
[N.T.] than she is. When asked by Phillip’s counsel if
she wanted [N.T.] to live with Phillip, Karen stated,
“Yes, I do. It would make me happy.” When asked on
cross examination if she was seeking custody herself,
Karen answered, “No.” In fact, it was not until she filed
her exceptions that she asked for custody. From the time
[N.T.] went to live with Cheryl in August 2007, Karen
has visited with [N.T.] as she and Cheryl could agree.
By Karen’s own admission, she is giving up her superior
right to custody to her father, who takes as many as 26
different medications (many on a daily basis) and lives in
a community far away from the child and has not been
the primary caretaker of the child since August 2007 as
the Petitioner has been.
Therefore, the Court confirms the Commissioner’s
report, and although it may appear that there is a
restriction on visitation, especially considering Karen’s
clear expression of her wish that Phillip have custody of
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[N.T.], considering [N.T.’s] age, Karen’s admitted
disability, and Phillip’s use of medications, as well as the
fact that Phillip lives in Cadiz, Kentucky, which the
Court takes judicial notice is located in Trigg County in
far-western Kentucky and necessitates a round trip from
Owsley County of approximately 600 miles, and other
factors set out in KRS 403.270, the Court is of the
opinion that visitation as recommended by the
Commissioner is reasonable.
It is from this order that Karen appeals. The sole question before us is whether the
record supports the trial court’s decision that Karen’s failure to seek custody for
herself constituted an express waiver of her superior right to custody. We are
convinced it does.
As a reviewing court, we may set aside findings of fact only if they
are clearly erroneous. CR6 52.01. Whether findings are clearly erroneous depends
upon whether they are supported by substantial evidence in the record. CR 52.01;
Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). When findings are supported
by substantial evidence, appellate review is limited to whether the facts support the
legal conclusions drawn by the fact finder. We review legal conclusions de novo.
Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky. App. 2003). Finally, if the factual
findings are not clearly erroneous and the legal conclusions are correct, the only
remaining question on appeal is whether the trial court abused its discretion in
applying the law to the facts. B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
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Kentucky Rules of Civil Procedure.
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Biological parents have a superior right to the custody of their
children. KRS 405.020(1). However, there are circumstances under which that
right may be waived. As stated in London v. Collins, 242 S.W.3d 351, 357-58
(Ky. App. 2007),
The Courts of the Commonwealth have consistently
recognized a parent's superior right to the care and
custody of his biological children and that he has a
fundamental, basic and constitutionally protected right to
raise his own children. Moore v. Asente, 110 S.W.3d 336
(Ky. 2003). Clearly, it is possible for a biological parent
to relinquish or waive that superior right to custody. But
it should not happen by accident, without the parent
understanding or being advised what he is giving up, or
without a specific finding by the court that such a waiver
has occurred. In Moore, the Kentucky Supreme Court
established the factors to be considered in determining
whether such a waiver has occurred:
In determining whether parents have
relinquished “physical custody” in a manner
that confers standing upon a nonparent,
Kentucky trial courts-like other courts that
have addressed this issue-should consider,
among other factors: (1) how possession of
the child was acquired by the nonparent,
especially the intent of the parents at the
time of their relinquishment of the child to
the nonparent; (2) the nature and duration of
the possession by the nonparent; (3) the age
of the child when possession was acquired
by the nonparent and the child's age when
the parents sought the child's return; (4) any
visits by the parents during the nonparent's
possession of the child; (5) any financial
support by the parents during the child's stay
with the nonparent; (6) the length of time
between the relinquishment and the parent's
efforts to secure the child's return; and (7)
what efforts the parents made to secure the
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child's return. Although we recognize that
these factors cannot be applied mechanically
as a formula to generate a conclusive answer
as to the nonparent's standing, we believe
these factors are useful analytical tools. We
further recognize that although factors (1)
and (2) will usually have the most
importance, the other factors may also
impact upon the determination.
Id. 110 S.W.3d at 358-59. A mother’s waiver of her superior right to custody
must be shown by clear and convincing evidence. It may be shown by “proof of a
‘knowing and voluntary surrender or relinquishment of a known right.’” Moore,
110 S.W.3d at 360 (internal citation omitted). It may also “be implied ‘by a party's
decisive, unequivocal conduct reasonably inferring the intent to waive,’ as long as
‘statements and supporting circumstances [are] equivalent to an express waiver.’”
Id. (internal citation omitted). Although “no formal or written waiver is required,
statements and supporting circumstances must be equivalent to an express waiver
to meet the burden of proof.” Vinson v. Sorrell, 136 S.W.3d 465, 469 (Ky. 2004)
(footnote omitted).
In response to Cheryl’s petition, Karen did not request custody for
herself. Despite her argument to the contrary, asking the court to dismiss Cheryl’s
petition was not enough to defeat the petition and exert her superior right to
custody. Moreover, Karen did not want custody of her son and admitted that if she
were awarded custody she would give N.T. to her father. We deem this scenario to
be factually distinct from Diaz v. Morales, 51 S.W.3d 451 (Ky. App. 2001), relied
upon by Phillip, wherein a biological mother did not immediately seek to regain
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custody of her minor daughter following her release from prison because of her
financial situation. The case sub judice is not one in which a mother acquiesced in
another person exercising custody of her son. This is a case of Karen openly and
unequivocally declaring her desire that the court award custody of her son to her
father as evidenced by her testimony during the hearing before the special DRC.
When asked, “just so the record is clear on the situation, you are not seeking
custody yourself, are you?” Karen responded, “No.” Later in the proceeding when
asked, “You’ve indicated in your response and you’ve testified here today . . . you
want custody awarded to your father[,]” Karen responded, “Uh-huh.” Under these
circumstances, we must conclude her failure to seek custody for herself is fatal to
her appeal.
Furthermore, once the issue of custody was placed in the court’s
hands for resolution, Karen’s wishes, as a biological parent, were not a controlling
factor, but merely a factor for the court to consider in making its decision. In
applying the Moore factors, N.T. began living in Cheryl’s home full-time in
August of 2007 while he was five years old. This arrangement resulted from an
agreement reached by Karen and Cheryl following investigation of the second
allegation of neglect, ultimately unsubstantiated, against Karen. While Karen
visited with N.T. during this time and may have contributed to his care, it does not
appear she sought to change this arrangement until Thanksgiving of 2007, when
Phillip picked up N.T. for a holiday visit without any intention of returning the
child to Cheryl, and Karen visited with the child in Phillip’s home during the
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holiday. Even then Karen did not seek custody for herself; she simply preferred
that Phillip have custody of the child.
Following review of the record and the law, we agree with the trial
court and hold Karen’s testimony that she would give custody of N.T. to her father
to be the “equivalent of an express waiver” of her superior right of custody under
Vinson. The trial court’s findings of fact are supported by the record, the court
correctly applied the law to the facts, there has been no clear error and no abuse of
discretion. Therefore, there is no basis for reversal on the issue of whether Karen
expressly waived her superior right of custody to her son.
For the foregoing reasons, the order of the Owsley Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
John R. Milton
Booneville, Kentucky
BRIEF FOR APPELLEE,
PHILLIP TEMPLE:
Melissa C. Howard
Jackson, Kentucky
BRIEF FOR APPELLEE,
CHERYL MCCAULEY:
Kendall Robinson
Booneville, Kentucky
BRIEF FOR APPELLEE, N.T.:
No brief filed.
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