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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2007-CA-001287-ME JULIE LOWERY APPELLANT

v.

APPEAL FROM FLEMING CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE ACTION NO. 06-CI-00213

CRYSTAL WHEELER; LARRY EMORY SALYERS, JR.; AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES

APPELLEES

OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.

1

Senior Judge Daniel T. Guidugli 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.

GUIDUGLI, SENIOR JUDGE: Julie Lowery appeals the judgment of the Fleming Circuit Court entered May 24, 2007, dismissing her petition for permanent custody of her grandson, M.A.G. Having thoroughly reviewed this matter, we reverse and remand. On September 1, 2006, Lowery filed a petition for de facto custody of M.A.G., whose date of birth is October 3, 1997. She named the mother, the father, and the Cabinet for Health and Family Services as respondents. The Cabinet had been awarded temporary custody of the child by the Fleming District Court in Case No. 03-J-00003-001, on January 29, 2004. She also acknowledged that a pending termination of parental rights action was currently pending before the Fleming Circuit Court (Case No. 05-AD-00007) filed by the Cabinet against both natural parents. In her petition, she alleged that she was a de facto custodian based upon the fact that she had been the primary caregiver for, and financial supporter of, M.A.G. for a period in excess of 3

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