Removal Order Dismissed – Published Opinion from Kentucky Court of Appeals

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T.C. v. M.E., et al.


Mother and Father had joint custody of Child following divorce. Mother was designated the primary residential parent. During a period of Father’s parenting time, Child injured his arm at Father’s mother’s home when Child and Father were playing. While running and jumping together, Child lost his balance, and Father grabbed Child’s arm to prevent a fall. When Father did so, he heard a little pop, and Child began to cry. Father looked over Child’s arm and had a nurse who was present and visiting look at Child’s arm. They saw no visible trauma. Father then prepared to return Child to Mother. Father put Child’s jacket on him carefully, put Child in the vehicle, and let Child play on his cellphone. Father gave Child Children’s Tylenol and a drink. After arriving at the exchange point, Father noticed Child favoring his arm. He told Mother what happened and asked her whether they should take Child to the hospital. Mother declined and said she would give Child ibuprofen and try to schedule a doctor’s appointment.


A week and a day later, Mother petitioned for an emergency protective order (“EPO”) against Father. She alleged that Father was angry with Son about putting on his jacket; that Mother arranged a doctor’s appointment; that the initial diagnosis was a dislocated elbow; and that a radiologist later called her to tell her it was actually a fracture, recommending a specialist. The district court denied the petition, finding it failed to state an immediate and present danger of domestic violence and abuse. However, the district court also wrote, “Refer to DCBS – set for Juv Ct 12-18-17 1 pm.”


The clerk’s office created a new district court file, creating a new action against Father—a “J” case. The initiating document was the order denying the EPO. The clerk faxed the order denying the EPO to the Department of Community Based Services (“DCBS”) and scheduled a temporary removal hearing. Father was never served with a summons and did not appear for the temporary removal hearing. As a result of the temporary removal hearing, the district court ordered Mother to cooperate with the Cabinet for Health and Family Services, including prohibiting contact between Father and Child. Father was not sent a copy of the order.


Some time around the Christmas holidays, Father attempted to speak with Child by calling Mother’s cellphone. As a result, Mother petitioned for an EPO, wherein she alleged:


[Mother] was issued a no contact order between [Son] and [Father] due to [Father] breaking and dislocating [Son’s] arm during [Father’s] 4-day visit with [Son]. DCBS investigated and cleared [Mother] of any fault and placed fault on [Father] and issued a no contact order between [Son] and [Father]. There was a court hearing on 18 December in which [Mother] was cleared of any wrongdoing by Judge Cathy Prewitt and issued a no contact order between [Son] and [Father] and case is set for review for 5 Mar 2018. [Father] has continued to text and call to harass [Mother] demanding contact with Son or else a “ruckus” would be raised to [Mother] until [Father] is allowed access to his Son. [Mother] has ignored all contact for fears for her safety.


The district court granted the petition, entered the EPO, and set the case for a hearing. A copy of the EPO and a notice of the hearing were sent to Father. At the hearing, the district court told Father to get his own attorney, ordered the no-contact order remain in place, and continued the case to the next scheduled hearing on the “J” case.


At the hearing, the district court stated it was set for a review. DCBS informed the district court it could not substantiate the allegations of abuse and would not be opening a case. The district court stated the case was on for a temporary removal hearing, dismissed DCBS’ work, ordered DCBS to open a case, ordered Child removed from Father, granted sole custody to Mother, and made the following findings of fact:


A referral was made to DCBS due to a petition for order of Protection filed by the mother on behalf of the child. The child had been with the father.  The father became angry with the child because he would not put on his jacket.  The father then pulled the child’s arm and the child fell.  The father then dragged him across the carpet by his arm.  The mother sought medical treatment and the child was diagnosed with a broken arm. 


On April 2, 2018, DCBS worker Robbie Gambrel stated that central intake said the case did not meet criteria.  DCBS was ordered to case plan with the parents because the court found that the child was at risk of abuse due to the above allegations.


A month and a half later, an adjudication hearing was held, wherein Father gave the first and only testimony in the case, denying the findings that Father pulled Child’s arm, Child fell, and Father dragged Child across the carpet, because Father was angry with Child. The district court dismissed the EPO action and entered an adjudication order, awarding sole custody to Mother, prohibiting contact between Father and Child, and found that other options short of removal were pursued, but nothing short of removal was appropriate.


Father appealed to the circuit court. Notwithstanding the appeal, the district court entered a disposition order with the same findings as the adjudication order. The circuit court affirmed the district court. Father sought discretionary review, which the Court of Appeals granted and dismissed the case.


The Court of Appeals held that the juvenile case was improperly initiated. It reasoned as follows: Such a juvenile case can be initiated by an interested person. Interested persons are parents, guardians, family members, and DCBS. The district court erred by making itself an interested person and initiating a DNA case with an order denying an EPO.


The Court of Appeals held that the district court violated the separation of powers doctrine by ordering the Cabinet to open a case. It reasoned as follows: The Cabinet has the executive function of determining whether a report merits an investigation or an assessment of family needs after receiving a report of dependency, neglect, or abuse. Section 28 of the Kentucky Constitution precludes a court from exercising the Cabinet’s executive powers. The district court usurped the Cabinet’s authority, violating the separating of powers doctrine.


The Court of Appeals held that the district court acted outside its particular case jurisdiction. It reasoned as follows: specific case jurisdiction relies on facts that must exist for a court to property exercise its jurisdiction over a case, party, or thing. This case required a statutorily authorized complainant, as the district court initiated the action—not an interested person.


The Court of Appeals held that Father was deprived of the due process protections mandated by KRS 620.100. It reasoned as follows: The temporary removal order stated Father was afforded the protections in KRS 620.100. KRS 620.100, among other thing, requires that the burden of proof be upon the complainant. Nobody carried the burden of proof, because the district court initiated the case. Even if Mother or DCBS carried the burden of proof, they failed to meet it, because they offered no proof. Only after the district court had decided for Mother and ruled in her favor did it allow Father to present evidence. This placed the burden of proof on Father.


Finally, the Court of Appeals held that none of the specific findings were sustained by substantial evidence. It reasoned that the only evidence in the case—Father’s testimony—refuted the findings of fact made by the district court.


Digested by Nathan R. Hardymon

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