Neither Sovereign Nor Governmental Immunity Preclude a DNA Petition Against the Cabinet – Published Opinion from Ky. Court of Appeals

Com., Cabinet for Health & Fam. Servs. v. K.T.

Bullitt Family Court

After the Cabinet for Health and Family Services (“the Cabinet”) was granted temporary custody of the Children in a dependency, neglect, and abuse (“DNA”) action, the Cabinet placed the Children with their paternal aunt. The aunt later notified the Cabinet that the Children were with Father, and the next day, that Father and Mother had taken the Children to Florida. The Cabinet contacted Florida Child Protective Services to begin an investigation, but it did not inform Family Court until 6 days later. The guardian ad litem (“GAL”) filed a motion for an emergency hearing at which Family Court ordered the Cabinet to return the Children to Kentucky within 24 hours. After the hearing, the GAL filed DNA petitions against the Cabinet alleging it neglected the Children. The Cabinet moved to dismiss the petitions on the basis of sovereign and governmental immunity, which Family Court denied. The Cabinet appealed.

The Cabinet argued that it was immune from DNA petitions. The Court of Appeals held that the doctrine of sovereign immunity does not apply to the Cabinet. It applies only to the Commonwealth itself and counties and governments formed according to statutes.

The Court of Appeals also held that governmental immunity does not preclude the filing of a DNA petition against the Cabinet. Governmental immunity limits imposition of tort liability on a government agency. It does not limit an action against an agency when the remedy sought does not involve the use of public funds. A DNA petition’s remedy does not invoke the use of public funds. A DNA petition may be brought against a “person exercising custodial control or supervision,” which means “a person or agency that has assumed the role and responsibility of a parent or guardian of the child . . . .” The Cabinet is such an agency and was granted custody of the Children by Family Court.

Digested by Nathan R. Hardymon

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