Kentucky Court of Appeals Affirms Barren Family Court Order Holding Cabinet in Contempt After it Fails to Return Child to North Dakota

Commonwealth of Kentucky, Cabinet for Health and Family Services; Angela Lane; Jessica Humphrey; and Jennifer Clay v. R.C., a Child; and M.C., No. 2022-CA-0921-ME

Barren Circuit Court

After the Cabinet filed a dependency, neglect, and abuse Petition on behalf of Child who was transported to Kentucky from North Dakota (N.D.) by people other than her parents, the Family Court ordered the child be returned to N.D. for a trial home visit with her mother (Mother), who was also working a case plan supervised by the N.D. child-welfare agency. Specifically, the Family Court’s January 5, 2022, order directed that the Cabinet was to facilitate the child’s return to N.D. immediately and that Cabinet worker Muse was to arrange the return travel. On January 24th, Mother’s appointed counsel filed a motion to hold the Cabinet in contempt for their failure to comply with the January 5th order, stating that no attempts had been made to comply. At a February 8th hearing on the motion, local Cabinet worker Muse testified about emails she had received from Frankfort Cabinet workers that the child was not to be returned to N.D. despite the Family Court’s order. Counsel for the Cabinet, Locke, identified those Frankfort Cabinet workers as Khoury, Lane, and Humphrey. The Family Court found the Frankfort Cabinet workers to be necessary witnesses and continued the hearing to February 10th. At this hearing, Cabinet counsel Clay appeared as counsel in place of Locke and the aforementioned Frankfort Cabinet workers testified as to why Child had not been returned to N.D. At the close of the hearing, the Family Court – still unclear as to why the Cabinet had not complied with its January 5th order and who was responsible for the failure – ordered again that Child be returned to N.D. by February 15th. The Family Court took the contempt motion under submission, directed the Cabinet to produce all emails in its possession related to Child’s case (except for those that included Counsel in the email), and directed Mother’s Counsel and Child’s Guardian ad Litem (GAL) to file affidavits detailing the additional work each had to complete to enforce the January 5th order. Child was subsequently returned to Mother in N.D.

On May 8th, the Family Court entered its order on the contempt motion, finding inconsistencies between Frankfort Cabinet workers Khoury, Lane, and Humphrey’s testimonies and their statements in the produced emails. The Family Court found that Frankfort Cabinet workers Humphrey and Lane had made the decision not to return Child despite the January 5th order and that they failed to assist local Cabinet worker Muse in carrying out the order. The Family Court further found that Cabinet Counsel Clay had misled the court by placing blame at the Cabinet’s local level and presenting false testimony of Cabinet workers Humphrey and Lane. The Family Court subsequently found the Cabinet in contempt for its willful failure to abide by the January 5th order and it ordered the fees of Child’s GAL and Mother’s Counsel to be paid by the Cabinet. While the Family Court did not impose sanctions against workers Humphrey and Lane or counsel Clay, it did refer Humphrey and Lane to the Commonwealth Attorney for possible perjury prosecutions, and Clay to the Kentucky Bar Association (KBA) for investigation of potential misconduct.

The Cabinet filed a motion to alter, amend or vacate, which was heard on June 14th. The Family Court clarified its holding that workers Lane and Humphrey had not been found individually in contempt, clarified its holding that Counsel Clay had been referred to the KBA only for investigation as to whether Clay committed malpractice by indicating that additional Cabinet representatives were in contempt of Court without consulting with them first or calling them to testify, and reaffirmed its finding of contempt against the Cabinet based on the emails produced by the Cabinet which indicated the Cabinet – despite its awareness of the January 5th order – refused to comply.

The Cabinet appealed, and the Appeals Court affirmed. The Appeals Court held that neither the Cabinet’s compliance with the January 5th order prior to the entry of the May 8th order of contempt, nor its argument that the Family Court imposed criminal contempt sanctions because they were not subject to purgation, barred the contempt finding. The compensatory penalty – that the Cabinet pay the attorney fees for Mother’s counsel and Child’s GAL – was appropriately within the scope of civil contempt, and the payment of the compensatory damages itself purged the contempt. Further, the Family Court’s referral of the individual cabinet workers and the cabinet counsel to the Commonwealth Attorney and the KBA, respectively, was neither a sanction for contempt nor improper. Thus, those individuals were not aggrieved by the Family Court’s orders. The Appeals Court ultimately found that the Family Court did not abuse its discretion in finding the Cabinet in contempt.

Carter Anderson

Recent Posts

Watch Partner Elizabeth Howell go Over the Edge for Gilda’s Club Kentuckiana!
July 10, 2023
Kentucky Court of Appeals Affirms Fayette Family Court Orders Finding Mother’s Choice in Schools Outside the Residential County to be Unreasonable and Awarding Attorney’s Fees
June 20, 2023
Kentucky Supreme Court Reverses and Remands Order Holding Non-Party Responsible for Attorney’s Fees Due to Non-Compliance with Subpoena
June 20, 2023