There are two issues addressed in the present appeal: (1) whether counsel e-filing the notice of appeal for the TPR (termination of parental rights) case in a related DNA (dependency, neglect, abuse) case was sufficient to meet procedural rules; and (2) whether substantial evidence existed in the family court case to support the court’s termination of D.W.’s parental rights of N.W. as being in N.W.’s best interest.

First, D.W.’s counsel for this appeal filed a notice of appeal in a related DNA case for the child, rather than in the TPR case.  TPR cases are sealed cases following entry of an order; therefore, e-filing is not available for completed TPR cases per Kentucky Supreme Court Amended Administrative Order 2018-11 Section 9(3) and said filings much be conventionally filed.  D.W.’s counsel attempted to make this filing within ten (10) minutes of the filing deadline, only to encounter this procedural trap.  D.W.’s counsel then filed the notice of appeal in a related DNA case.  The Court of Appeals determined there are ambiguities in the e-filing rules, and therefore determined to proceed with the merits of the appeal.

Second, the Court analyzed the extent of substantial evidence the family court utilized in making its decision to terminate D.W.’s parental rights for N.W.  There is a three-part test that must be satisfied by clear and convincing evidence: (1) the child must be adjudged neglected or abused; (2) termination of the parent’s rights must be in the child’s best interest; and (3) one of the conditions outlined in the statute regarding grounds for involuntary termination of parental rights must be met.

D.W. does not disagree that (1) and (3) above were properly established at the family court level.  However, D.W. argues the Cabinet “did not show – by clear and convincing evidence – that termination of his parental rights is in N.W.’s best interest pursuant to KRS 625.090(1)(c).”  The Court agreed with this argument, finding there is insufficient evidence in the family court case to show “that D.W.’s convictions are directly related to the 2018 adjudication of educational neglect; and furthermore, the court specifically found that it could not conclude that D.W. had abandoned the child.”  Moreover, the Court discussed the extent of D.W.’s incarceration as it relates to abandonment, compelling termination of his parental rights.  Ultimately, the Court held there was not a basis to show that termination of D.W.’s parental rights was in N.W.’s best interest.

Judge Goodwine dissented on both issues.  First, Judge Goodwine noted the e-filing rules are not ambiguous and the majority’s opinion invites other counsel to rely on the case as precedent in not following the bright line rules for e-filing.  Second, Judge Goodwine opined the family court “painstakingly went through the evidence presented at trial and the statutory requirements of KRS Chapter 625 and methodically detailed her findings and conclusions. . .,” thereby concluding the family court met the necessary standard to terminate D.W.’s parental rights.

Caitlin P. Kidd, Esq.

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The Daviess Family Court entered a divorce decree for the parties in 2020.  Following entry of the decree, both parties filed a motion to alter, amend, or vacate the divorce decree.  An amended final divorce decree was entered and neither party filed a notice of appeal nor a motion to alter, amend, or vacate the amended decree.  Although this appeal followed, the Court of Appeals takes aim at the procedural compliance of the parties’ briefs in its opinion dismissing the case.

First, the Court noted the legal issues are not readily identifiable in the parties’ briefs; the Court simply recognized the evident discord among the parties reflecting in the drafting.

Second, the Court went into detail regarding the parties’ failure to follow Kentucky appellate procedural rules.  The Court provides examples such as a lack of citations to the record, citations to legal authority, appropriate appendices, and a host of drafting and referencing failures (i.e., margins, page number references, extruding tabs in appendix, and exclusion of proper cover page).

Due to these procedural shortcomings, the Court does not address the substantive arguments in the parties’ briefs.  The Court noted that substantial compliance to the procedural rules, which would presumably urge the Court to consider the merits of the parties’ briefs as argued in the dissent, was not applicable in the present case.  The Court concluded that it could not infer counsel “seriously reviewed CR 76.12 before briefing . . .,” and therefore, it would not consider any potential issues the briefs attempted to argue.

Judge Thompson dissented, arguing that lesser and limited sanctions should be implemented instead of outright dismissal of the appeal and striking of the parties’ briefs.  Judge Thompson further argues that dismissal of an appeal “should always be a remedy of last resort.”  

Caitlin P. Kidd, Esq.

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Natural mother and father went through a divorce proceeding in 2014, and paternal grandmother petitioned for custody of the parties’ two minor children.  The family court granted grandmother’s petition, only to find that grandmother made fraudulent statements at the hearing on her petition (which mother and father were not present for).  Thereafter, a custody battle for the two children ensued, which ultimately resulted in sole custody of the children being awarded to mother. 

The family court also entered an order that grandmother and the minor children were not to have contact.  Grandmother filed numerous complaints against mother to the Cabinet for Health and Family Services (CHFS), causing the family court to be skeptical of both grandmother and father’s motivation in continuously intervening in mother’s parenting and care of the children.  The subject of this action pertained to an incident where father appeared in person at the children’s school and sought information regarding an eye examination of one of the children.  Although the school declined to provide same to father, he claimed one of the nurses told him the results of the test – which he then communicated to paternal grandmother.  Paternal grandmother, on the same day, called the school alleging mother was abusing the children.  The school reported same to CHFS, and paternal grandmother also reported the alleged abuse to CHFS. 

Mother, as a result, filed an emergency motion to cease father’s parenting time with the children, arguing father simply utilized his time with the children to gather information to use against mother in the future.  Following a hearing on mother’s emergency motion, the family court entered an order stating “[father] is not to be involved in decision making regarding the children or to gather information concerning the children,” and father filed a motion to alter, amend, or vacate.  The family court granted his motion, in part, but did not amend its ruling that father could not gather information about the children. 

Shortly after, father demanded extensive information from the children’s school, and Warren County Public Schools (WCPS) filed a motion with the family court as a non-party requesting clarification of the family court’s order prohibiting father from gathering information about the children.  Following a hearing on WCPS’ motion for clarification, the family court entered an order disallowing father from obtaining any school records regarding the children except for school report cards.  Father filed a motion to alter, amend, or vacate the order, or for specific findings of fact be entered to support the order.  The family court denied father’s motion to alter, amend, or vacate; however, it did make additional findings, where it emphasized its concern of father attempting to gather information to give to paternal grandmother for CHFS referrals and ongoing litigation. 

This appeal followed, where father alleged the family court did not properly interpret its earlier order prohibiting him from obtaining school records.  He also alleged the family court erred in finding father continually reported mother to CHFS as a means of harassment.

The Court of Appeals determined the family court’s order appropriately limited father’s ability gather information about the children, and that the order extended to educational records.  Further, the Court found the family court’s order appropriately satisfies the statutory exception for limiting a noncustodial parent’s access to educational records when there is “a court order establishing such ban . . .”[1]  Finally, the Court echoed the frustrations of the family court, noting the record reflected father and paternal grandmother were acting together in making referrals to CHFS.  For those reasons, the Court of Appeals affirmed the Warren County Family Court’s order limiting father’s access to the children’s educational records.

Caitlin P. Kidd, Esq.

[1] Kentucky Revised Statutes (KRS) § 403.330.

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Natural father’s parental rights of a minor child were terminated by the Boyd Circuit Court’s order pursuant to natural mother’s petition.  Mother filed her petition pursuant to Kentucky Revised Statute (KRS) 625.050, requesting the court involuntarily terminate father’s parental rights according to KRS 625.090.  Father had not exercised parenting time of the minor child since 2019; however, he paid child support monthly to mother.  Mother filed an amended petition thereafter to include the Cabinet for Health and Family Services (CHFS) as a party in the action.

CHFS responded with an answer and a motion to dismiss.  In its answer, CHFS noted there had not been an investigation of father, there was not a pending investigation of father, that it did not file the petition for involuntary termination of parental rights, and there was not a pending adoption proceeding for the minor child.  To clarify in its motion to dismiss, CHFS argued that KRS 625.090 (which is the statute regarding grounds for involuntary termination of parental rights) only permitted termination of rights if CHFS files the petition for same.  In other words, CHFS argued mother’s petition did not satisfy the statutory requirements for involuntary termination of parental rights.

Following a hearing in the case, the Boyd Circuit Court terminated father’s parental rights and determined the statutory requirements of KRS 625.090 were met.  This appeal followed.

The Court of Appeals reflected on the statutory conflict between KRS 625.090 and KRS 625.050, which it visited in a prior 2021 case.  Prior to the 2022 legislative session, KRS 625.090 only specified involuntary termination of parental rights taking place following CHFS filing a petition for same.  Conversely, KRS 625.050 allowed for proceedings for involuntary termination of parental rights to be initiated by “petition by the cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth’s attorney or parent.” See KRS 625.050(3) (emphasis added).  The General Assembly revised KRS 625.090 in its 2022 regular session to include parallel language to KRS 625.050, allowing a parent to initiate these proceedings and file a petition for involuntary termination.

The Court of Appeals, therefore, affirmed the Boyd Circuit Court’s order terminating father’s parental rights based on the amended KRS 625.090, which allowed mother to petition for involuntary termination of parental rights.

Caitlin P. Kidd, Esq.

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The Lewis County Family Court found that a mother of four abused or neglected her children as a result of lack of parental care or risk of abuse or neglect.  The family court relied on Mother’s alleged false allegations regarding sexual abuse, consumption of alcohol, or alleged mental health issues in making its determination.

Mother reported to law enforcement that one of her children, namely K.L., was sexually abused by her ex-partner.  Following said report, Mother had several interactions with law enforcement, Cabinet for Health and Family Services professionals, and a children’s advocacy center, where individuals assigned to the case were concerned about Mother’s alcohol use and potential mental health issues. 

The Cabinet filed a dependency, neglect, and abuse (DNA) action alleging the children were abused or neglected and emergency custody was granted to the children’s maternal grandmother.  Numerous professionals testified at the subsequent adjudication hearing in the case regarding their interactions and concerns relating to Mother’s ability to care for the children; however, Mother moved to dismiss the Cabinet’s petition on the ground that the Cabinet did not meet its burden in showing the children were at risk or abuse or neglect.  Mother also moved the children be interviewed in camera.  Both motions were denied.

The Lewis County Family Court specifically found that “Mother makes false allegations as to sexual abuse of one child (3 times in 14 months) – Also, mother drinks + children are afraid when this happens with [Mother’s boyfriend].  Mother[’]s actions demonstrate mental health issues.  Risk of harm for children.”[1]  Further, the family court determined abuse or neglect was proven by a preponderance of the evidence supporting removal of the children from Mother’s care and supervision.  Mother filed a motion to reconsider/alter, amend, or vacate, which was denied.  Subsequently, at the dispositional hearing, the family court determined removal and continued placement with maternal grandmother was in the best interest of the children.  This appeal followed.

The Court of Appeals considered several issues: (1) whether Mother’s lack of parenting care was supported by the evidence presented; (2) whether risk of harm to the children remaining in Mother’s care was supported by the evidence presented (relying on the allegations of false reports, alcohol use, and mental health issues); and (3) whether the family court erred in refusing to interview the children in chambers.

The Court of Appeals found insufficient evidence to support the family court’s determination that Mother physically or emotionally abused the children, and that she failed to attend to physical needs.  Further, the Court of Appeals found insufficient evidence to support the family court’s reliance that Mother allegedly made false reports regarding sexual abuse of one of her children, that she consumed alcohol, and that she struggled with mental health issues, to the extent that said allegations caused her children to be at risk of abuse or neglect.  The Court noted “the risk of harm must be more than a mere theoretical possibility,’ it must be ‘an actual and reasonable potential for harm,’”[2]  determining the allegations were speculative and the family court inappropriately relied on same in concluding the children were at risk of abuse or neglect.

As to Mother’s request for an in camera interview of the children, the Court found that Mother did not adequately preserve her argument as she did not offer proof about the children’s anticipated testimony as required by Kentucky Rules of Evidence 103(a)(2).

Ultimately, the Court held that due to insufficient substantial evidence to support the family court’s findings of abuse or neglect, the family court’s adjudication and disposition orders were vacated and remanded for dismissal. 

Caitlin P. Kidd, Esq.

[1] See Lewis County Family Court’s Order dated July 15, 2021, following the adjudication hearing in this matter.

[2] M.C. v. Cabinet for Health and Family Services, 614 S.W.3d 915, 923 (Ky. 2021) (quoting K.H. v. Cabinet for Health and Family Services, 358 S.W.3d 29, 32 (Ky. App. 2011)).

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The underlying facts involve multiple Cabinet investigations and DVO/EPO allegations involving alleged sexual abuse by father, J.M., filed and reported by mother, L.G.  During investigation into a fourth Cabinet report made against J.M., the Cabinet initiated an investigation into mother, L.G., based on concerns that L.G. was manipulating the child to make false accusations regarding abuse to retaliate against J.M. following arguments between the two parents. 

Due to the timing of the accusations occurring close to disagreements among the parents, and lack of consistencies from the child about the alleged incidents during its investigation, the Cabinet did not substantiate the first three reports of sexual abuse by J.M.  At this time, however, of the fourth investigation into J.M., and the first into L.G., Jefferson Family Court ordered a psychological assessment of the child.  Following interviews of the child, and extensive review of his medical history, the licensed psychologist opined that L.G. emotionally abused the child.  The Cabinet substantiated the fourth sexual abuse allegation as well as the allegation that L.G. emotionally abused the child. 

The Jefferson Family Court addressed both issues presented by the Cabinet and ultimately found that L.G. did emotionally abuse the child, but that J.M. did not sexually abuse the child.  Thereafter, the child was removed from L.G.’s custody and her visits were limited to therapeutic visits.  L.G. appealed, and the Kentucky Court of Appeals reversed the family court and remanded.  The Cabinet and J.M. moved for discretionary review by the Supreme Court, which the Court granted, and considered both appeals concurrently.

Both appeals purported the Court of Appeals erred in reversing the Jefferson Family Court’s decision that L.G. emotionally abused the child.  L.G. argued, in response, that the family court failed to exclude the licensed psychologist’s opinions, that J.M. did not have standing to prosecute the Cabinet’s Dependency, Neglect, or Abuse (DNA) petition against her, and that the Jefferson Family Court abused its discretion when removing the child from her custody.

The Court found that the Court of Appeals made factual findings rather than deferring to the trial court on those issues (i.e., weighing evidence contained in medical reports and evaluations).  The Court noted that, given the evidence presented at the trial court level, there was “some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people,” to support the finding of emotional abuse by L.G.  Ultimately, the Court held that the Jefferson Family Court’s findings were not clearly erroneous, and therefore, reversed and affirmed the finding of the family court that L.G. emotionally abused the child.

The Court further found that the family court did not abuse its discretion in denying L.G.’s motion to exclude the licensed psychologist’s opinions, that the family court did not abuse its discretion in allowing J.M.’s counsel question the licensed psychologist to expedite the hearing progress (and therefore causing the issue raised by L.G. to be moot because J.M.’s counsel did not prosecute the DNA matter), nor did the family court abuse its discretion in removing the child from L.G.’s custody.

As a result, the Court found the Jefferson Family Court was not clearly erroneous nor did it abuse its discretion in finding L.G. emotionally abused the child and removing him from her custody, and reversed the Court of Appeals decision, reinstating the family court orders.

Caitlin P. Kidd, Esq.

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T.C. and J.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney’s Office; W.P.; L.P.; and L.C., a Minor Child, No. 2021-CA-0445-ME; and 

T.C. and J.C. v. Cabinet for Health and Family Services, Commonwealth of Kentucky; the Hardin County Attorney’s Office; D.P.; T.P.; and R.C., a Minor Child, No. 2021-CA-0446-ME

Hardin Family Court

The Cabinet for Health and Family Services was granted emergency and temporary custody of the children following 2017 dependency, neglect, or abuse (“DNA”) cases based on reports of domestic violence and drug use of the parents.  The Cabinet placed the children with foster parents, noting the children would “be committed or remain committed” to the Cabinet.  Mother and father were to adhere to instructions from the Cabinet, such as mental health and drug and alcohol assessments, and remaining drug free.  Mother and father did not make substantial progress on their case plans in 2017; nevertheless, the permanency goal was maintained as the children returning to their parents.  

Thereafter in 2018, mother and father made significant progress on their case plans, and in 2019, the goal was still that the children return to their parents.  This goal continued into 2020 until W.P. and L.P. (foster parents) filed a custody case for two of the minor children, namely K.C. and L.C.  The family court awarded temporary custody to the foster parents over the parents’ and the Cabinet’s objections.  D.P. and T.P. (foster parents) filed a similar case for the remaining child, R.C., in 2021.  Temporary custody was awarded to the foster parents in that case as well.  

In its written findings, the family court emphasized that it lost faith in the Cabinet to determine the best interest of the children at issue, and as a result, that the Cabinet should not have the exclusive right to determine placement of the minor children.  Mother and father argued on appeal that (1) the foster parents did not have standing to petition for custody; (2) the family court infringed on the Cabinet’s executive powers; and (3) the family court improperly allowed the foster parents to access the parents’ mental health evaluations that resulted in a Health Insurance Portability and Accountability Act of 1996 (HIPAA) violation.

The Court noted first and foremost, the foster parents did not have standing to petition for custody because they did not qualify as de facto custodians, and there had not been a determination that the parents were unfit. The parents also had not waived their right to custody of the children.  The family court also failed to apply relevant factors in Kentucky statutes to assist in making a custody and best interest of the child determination, which includes consideration of the parents’ and children’s wishes.

Second, by ordering the DNA cases closed following the temporary custody determinations, the family court overstepped on the Cabinet’s executive power, resulting in the family court exceeding its authority.  Third and finally, the Court did not agree with the parents’ argument that the family court infringed on their HIPAA rights by allowing the foster parents access to their mental health evaluations due to the disclosure coming from the court rather than a covered entity.

As a result, the Court found the family court abused its discretion in awarding temporary custody to the foster parents because it lacked statutory authority to do so, it failed to consider relevant factors in the statute pertaining to custody determinations and additional factors relating to the best interest of the children, and it improperly deciding the foster parents had standing to petition for custody.  Further, the Court held that the family court exceeded its authority in ordering the DNA cases be closed and future filings be addressed in the custody cases only.  The Court reversed and remanded to the family court with instructions. 

Caitlin P. Kidd, Esq.

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Estill Circuit Court

Mother gave birth to child and little over a year later, aunt and uncle filed their adoption petition for the minor child without mother’s consent pursuant to KRS 199.502.  At the time of the filing, the child’s natural father was deceased.  The adoption was granted, and mother appealed on four grounds—one procedural challenge and three evidentiary challenges.  The Court of Appeals found the procedural challenge persuasive and ultimately vacated the adoption judgment and remanded to Estill Circuit Court.

Mother claimed the adoption statutes were not properly followed in seeking the Cabinet for Health and Family Services’ (“Cabinet”) participation pursuant to KRS 199.510(1) or (2); therefore, mother argued the adoption was defective.  The Cabinet is required to do one of two things in every adoption case: (1) complete an investigation or make a report to the court prior to the adoption going through, or (2) notify the court within ten days of receipt of the adoption paperwork that it would not investigate the case.  Here, the Cabinet did not complete either of these actions, and presumably, this would be due to the Cabinet not receiving the adoption paperwork from the court’s clerk. 

The Court noted that silence from the Cabinet does not equate to the Cabinet satisfying its requirement that it does not plan to investigate.  Further, the Court emphasizes that if the Cabinet fails to participate in the process, the circuit court should order the Cabinet’s participation to ensure the statutory requirements are met.  As a result of the circuit court proceeding to judgment in this case absent any Cabinet participation, the Court found the circuit court committed a reversible error.  Therefore, the Court vacated the adoption judgment and remanded to the circuit court.  In finding mother’s procedural challenge persuasive, the Court determined her evidentiary challenges were moot.

Caitlin P. Kidd, Esq.

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No. 2021-CA-0667-MR

Jefferson Circuit Court

Leslie and Janice Geralds negotiated a property settlement agreement through a collaborative divorce process.  The property settlement agreement awarded Mrs. Geralds 40.62% of Mr. Geralds’ retirement plan.  Several years following the entry of the decree and property settlement agreement, Mr. Geralds retired and signed a noncompete agreement.  As a result, he received additional funds from his company that were not previously addressed in the divorce proceedings.  Thereafter, Mrs. Geralds moved to reopen their case as she believed the additional funds were part of the retirement plan and that she was entitled to receive a portion of those funds pursuant to the parties’ property settlement agreement. Mr. Geralds disagreed, claiming the additional funds were not part of the retirement plan, but rather, new income from him signing the noncompete agreement.

The trial court found that Mrs. Geralds was rightfully entitled to reopen the case because Mr. Geralds did not inform her of the additional funds he was receiving.  Further, the trial court determined the additional funds were in fact part of the retirement plan and that Mrs. Geralds was entitled to a portion of said funds.  Attorney’s fees were also awarded to Mrs. Geralds.  A timely appeal followed.

The Court of Appeals affirmed the trial court, in part, that CR 60.02(d) applied to this case and that Mr. Geralds intentionally did not disclose the additional funds.  By not doing so, the Court emphasized “[f]ailing to disclose assets to the court and [Mrs. Geralds] can be considered fraud affecting the proceedings,” thereby meeting a situation justifying reopening the case.  However, the Court disagreed with the trial court in that the additional funds were not part of Mr. Geralds’ retirement plan, but rather, funds he received after executing the noncompete agreement.  Therefore, the Court did not agree Mrs. Geralds was entitled to a portion of these funds because the funds were not marital property.  Finally, the Court reversed and remanded the case to address the attorney’s fee issue to determine if Mrs. Geralds was entitled to attorney’s fees in reopening the case due to Mr. Geralds failing to disclose an asset during the collaborative divorce proceeding and an unrelated hearing following his retirement.

Caitlin P. Kidd, Esq.

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No. 2021-CA-0510-ME

Warren County Family Court

The Cabinet for Health and Family Services (“CHFS”) removed a minor child from Mother’s care when a finding of neglect was determined in a dependency, neglect, and abuse (“DNA”) action.  CHFS placed the child with a foster family rather than the minor child’s Grandfather, who was appointed by Mother as her temporary Power of Attorney (“POA”) two days following the child’s birth.  Mother executed the Power of Attorney with the intention Grandfather act in a custodial and supervisory role for the minor child. 

Nonetheless, the same day Mother executed the POA, CHFS filed the DNA case, concerning Mother’s drug use during pregnancy and at birth of the child.  Additionally, CHFS noted Mother’s involvement with CHFS and her lack of progress on her case plans for three older children (who were also removed from the home and placed with foster families).  Shortly following the DNA filing, the family court entered an order granting emergency custody of the child to CHFS.  In support of its decision, the family court deemed the child in “immediate danger due to his parent’s failure or refusal to provide for his safety and needs.”  The child went home from the hospital with a foster family instead of Mother or Grandfather.

Mother filed a motion to dismiss the emergency custody order, claiming “she did not have custody of [c]hild when the DNA petition was filed because of the POA she executed,” and asserted it was effective when signed and notarized prior to the DNA case filing.  At the removal hearing, the family court focused on Mother’s option of potentially revoking the POA, and ultimately the expiration of the POA one year after signing, and those concerns led the family court to deciding the POA did not impact Mother’s custodial rights. 

Mother filed a second motion to dismiss prior to adjudication of the case, and the family court reiterated the same concerns of revocability and the ultimate expiration of the document after one year.  The family court adjudicated a finding of neglect based on the risk Mother created for the child and Mother being unable to meet the child’s care needs.  The child was committed to CHFS following the neglect determination.  Evidence was presented that Mother resided with Grandfather and was known to be present with him for hearings and visitations.  Mother nor Grandfather presented evidence or testimony to the contrary.  Mother appealed the family court’s order committing the child to CHFS. 

The Court of Appeals paralleled the family court’s logic in its decision, noting “the mere existence of the document [POA] did not prove whether Grandfather had an enforceable right to custody of Child.”  As support, the Court recognized Mother’s ability to revoke the POA at any time, and furthermore, the events that could lead to Grandfather otherwise not being able to serve (i.e., incapacity).  And the Court explicitly highlighted “any temporary delegation of rights and responsibilities shall not deprive a parent or legal custodian of any parental or legal rights, obligations or authority regarding the custody, visitation, or support of the child.”  This includes the notion that a temporary delegation of rights and responsibilities does not disqualify a finding of neglect against a parent. 

The Court of Appeals concisely held that a parent’s execution of a temporary POA does not require a default placement of the child with the designated individual in the POA role, especially when the family court has found neglect against the parent.  The Court directs factual consideration when determining the best interest for the child’s care and custody.  In the present case, the Court found the family court properly considered the unique facts available in making its determination and affirmed the family court’s decision of placing the child with CHFS.

Caitlin P. Kidd

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