CHFS v. Hon. Garber and Hon. Bowles, Ky COA, Writs of Mandamus and Prohibition

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Eleanore Garber, et al.

and

Commonwealth of Kentucky, Cabinet for Health and Family Services

v.

Hon. Jerry J. Bowles, et al.

No. 2010-CA-0012260OA and

No. 2010-CA-001351-OA

Published:  Petitions granted

County:     Jefferson

 

        The Cabinet for Health and Family Services filed original actions in the Court of Appeals after two divisions of Jefferson Family Court entered orders in domestic violence proceedings directing the Cabinet to investigate certain individuals for the risk of dependency, neglect, or abuse of children.

 

        The Cabinet argued that the Family Court acted outside its jurisdiction and violated the separation of powers doctrine by ordering an investigation instead of reporting suspected child dependency, neglect, or abuse pursuant to KRS 620.030 and KRS 620.040.  By ordering an investigation, the Family Court usurped the executive function of the Cabinet to determine the necessity of an investigation and, if warranted, initiating the investigation.

 

        The Cabinet also asserts that it is entitled to a writ based on the fact that the Family Court was acting within its jurisdiction, but erroneously, and there is no adequate remedy by appeal and great and irreparable injury will result.  Since the Cabinet subjected itself to contempt proceedings, however, it has an adequate remedy by appeal.

 

By ordering the Cabinet to conduct an investigation, the Family Court acted outside its jurisdiction and violated the separation of powers of Section 28 of the Kentucky Constitution.  Division Five of Jefferson Family Court is prohibited from enforcing its Order of June 15, 2010 and Division Six is prohibited from enforcing its July 8, 2010 Order.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.