Dissenting:
With all due respect, I dissent from the majority opinion. Today the majority finds that a mother contesting a dependency, neglect and abuse action involving the custody of her child does not toll the running of the six-month period established in KRS 403.270(1) necessary for establishing a de facto custodian. I dissent because such interpretation promotes unnecessary litigation and is patently unfair.
Sub judice, Spreacker acted responsibly and sought assistance from Vaughn by seeking Vaughn’s assistance in caring for the child for a weekend on or about July 2, 2010. Spreacker requested the return of her child but was arrested before her child could be returned. On July 7, 2010, Vaughn filed for temporary custody of the child. A court action followed in the form of a dependency, neglect and abuse action, wherein Spreacker responded to various allegations and sought return of her child.
A disposition was set on October 12, 2010, with the recommendation of the return of the child to Spreacker. The disposition was continued until November 9, 2010, and, due to Spreacker’s inability to show sufficient progress on her case plan, the recommended disposition was changed to relative placement with a review set for January 4, 2011. On January 8, 2011, Vaughn filed a custody action alleging status as a de facto custodian pursuant to KRS 403.270(1).
KRS 403.270(1) states that, “Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.” At issue is the interpretation of the term “commence”. I would find that the term commence, as used in the statute, means participation in an action litigating the custody of the child.
Certainly the legislature did not intend to impose, on what may well be an impoverished parent, the expense of filing a second legal action at his or her own expense when an action for dependency, neglect or abuse was already pending. In finding that the actions of the mother participating in the dependency, neglect or abuse proceeding involving the custody of her child are encompassed within the meaning of “commence”, then the six-month period required by KRS 403.270(1) necessary for the establishment of a de facto custodian would be tolled.
Secondarily, finding the period of time the mother participated in the proceeding excluded from the six-month period conserves litigation. To conclude as the majority did would have required, sub judice, for Spreacker to initiate a second custody proceeding seeking the return of the child while a parallel custody proceeding was pending for dependency, neglect or abuse. Certainly our legislature did not intend to create such a litigious result. Additionally, had the period of time during which the dependency, neglect or abuse proceeding was ongoing been excluded, then a period of six months post-conclusion of the proceeding would have been necessary. This post six-month period would be consistent with the purpose of the statute in allowing *424the custody of those children, with respect to whom the parents had relinquished efforts for their return, to be placed with a caring and loving family or caregiver. I do not see the actions of a mother contesting a dependency, neglect or abuse action as a relinquishment of efforts for the return of her child.
In conclusion, I dissent, and would find that the mother’s participation in the cus-
tody proceeding fit within the definition of “commence” as that term is used in KRS 403.270(1). Consequently I would reverse and remand for additional proceedings.