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 24^th, Mother’s appointed counsel filed a motion to hold the Cabinet in contempt for their failure to comply with the January 5^th order, stating that no attempts had been made to comply. At a February 8^th 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 10^th. 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 5^th order and who was responsible for the failure – ordered again that Child be returned to N.D. by February 15^th. 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 5^th order. Child was subsequently returned to Mother in N.D.

On May 8^th, 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 5^th 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 5^th 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 14^th. 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 5^th 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 5^th order prior to the entry of the May 8^th 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

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Jefferson Circuit Court

Parents took infant Child to the hospital after he fell off a couch and hit his head on the floor. The Cabinet was alerted to bruising around Child’s ears and four months later, a DNA petition naming Parents was filed. The petition noted that Cabinet had consulted two physicians who indicated the bruising was indicative of physical abuse. Parents asserted that Child’s bruising stemmed from a medical condition called Von Willebrand Disease, in which blood does not clot properly and bruising occurs easily. Through their privately retained counsel, Parents asked the family court to order that Cabinet provide funds so Parents could retain an expert. The motion did not specify what type of expert they wished to retain and they did not submit affidavits of indigency, but their motions did asserted that Mother was not employed outside the home, Father worked earning $19 per hour, and they owned no assets that they could sell to retain an expert. The family court granted the motion, providing an extremely terse ruling. Cabinet filed a motion to vacate, asserting Parents’ motion was flawed because it did not discuss the type of expert Parents wished to retain and it inadequately showed Parents to be indigent. Cabinet also argued the family court’s findings were inadequate. The family court held a hearing on Cabinet’s motion where counsel for Parents stated they wished to retain an expert who was board certified in hematology but did not give a specific identity of the desired expert. The family court issued another terse order with some additional reasoning, concluding that Parents were entitled to state funds to retain an expert. Though brief, the order found that $10,000 was a reasonable amount for Cabinet to provide to the parents for their expert. Additionally, Parents submitted affidavits of indigency after the hearing. The family court then signed orders finding Parents indigent. Cabinet filed this expedited appeal.

First, the Court of Appeals examined whether an interlocutory appeal was proper in this case. In determining that it was, the Court applied the collateral order doctrine laid out in Childers v. Albright, 636 S.W.3d 523 (Ky. 2021). Then, the Court held that the family court did not abuse its discretion in granting the parent’s motion requiring Cabinet to pay their expert’s fees up to $10,000. The Court relied on Cabinet for Health & Family Services v. K.S., 610 S.W.3d 205 (Ky. 2020) which held that indigent parents in a DNA action have a constitutional right to state funds to retain an expert in cases involving complex issues of medical evidence where such evidence may be vital in understanding the relevant issues. The motion by indigent parents must consider whether the request was pleaded with specificity, whether the funding is reasonably necessary and whether due process weighs in favor of appointing the expert.

The Court found that Parents did not have to specify the identity of the expert that they wished to hire, and that their oral statement of the type of expert (hematologist) at a hearing on Cabinet’s motion to vacate was specifically sufficient. The Court stated that the family court did not abuse its discretion in ruling that the providence of state funds for the expert was reasonably necessary, since Parents maintained the Child’s bruising resulted not from abuse, but from a medical condition. The Court addressed Cabinet’s argument that Parents did not demonstrate their indigency sufficiently, and stated that though Parents had hired private counsel, their proof of their indigency was uncontradicted, so the family court had not abused its discretion in finding them to be so. Finally, the Court found that due process weighed in favor of apportioning state funds for an expert in this case on fundamental fairness considerations, since Cabinet had the opportunity to consult with experts prior to the filing of the DNA petition. The Court concluded that although K.S. requires a trial court to specifically state its reasons for approving or denying a parent’s request, the terse order issued by the Jefferson Family Court after its hearing on Cabinet’s motion to vacate adequately explained the basis for its decision.

Carter Anderson

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JEFFERSON, BRECKINRIDGE

Cousins sought a writ directing Jefferson Family Court to enter an order granting them temporary custody of Child in the Jefferson County action, estop Cabinet from any activities inconsistent with the permanency goal of adoption, and relinquish jurisdiction concerning the custody and adoption of Child in favor of the Breckinridge Circuit Court.

In November 2019, Child was born and subsequently removed from Mother. After her release from the neo-natal intensive care unit, Child was placed with Cousins, who were approved as foster parents in November 2020. A DNA action was filed in January 2020 in the Family Court, wherein Mother later stipulated to neglect. An order entered in January 2021 by the Family Court provided that the permanency goal was to return Child to Mother and that Child was to remain in Cabinet’s custody.

Cabinet filed an involuntary termination of parental rights (TPR) action in the Family Court in August 2021 because of the length of time that Child had been in care, the relative newness of Mother’s compliance with her case plan and a lack of bonding between Mother and Child. No significant litigation occurred in that case until June 2022.

Meanwhile, the DNA action was before the Family Court for a second annual permanency review hearing. A report was filed on January 24, 2022, that documented Mother’s progress in completing her case plan and remaining sober. In February 2022, an order of permanency found that Mother was compliant and sober but had no bond with Child whatsoever, and thus, Child was to remain in Cabinet custody and be placed for adoption. Despite the goal change to adoption, Mother’s visitation continued and in April 2022, the Family Court ordered Mother could have increased supervised visitation and that Cabinet may expand to overnight visits which were not to begin prior to August 2022.

In June 2022 Cousins hired an attorney who discussed the Cousins’ desires to intervene in the TPR action with Cabinet. The following Sunday, June 29, 2022, Cabinet’s attorney emailed Cousins’ attorney to inform them that the TPR action had been dismissed. This dismissal was the result of a voluntary notice of dismissal, which Cabinet had efiled that same Sunday. Cousins immediately filed their motion to intervene, but the Family Court entered an order dismissing the TPR on June 29, 2022, without having ruled on the motion to intervene.

Cousins then filed an adoption petition in Breckinridge Circuit Court on June 30, 2022, and a Petition for Custody on July 5, 2022. Cabinet moved to dismiss these petitions on August 1, 2022. The matter was set for hearing on August 17, 2022, during which the Breckinridge Circuit Court declined to change custody of Child and scheduled the matter for an evidentiary hearing on November 28, 2022. The motions to dismiss were still pending.

Also in August 2022, a breakdown between the parties occurred when Child was to spend her first overnight with Mother. Prior to the visit’s scheduled start, Cousins contacted Cabinet to report concerns about the visit. Specifically, that Mother’s brother – who had previously been incarcerated in relation to his causing the death of a child and seriously injuring another child – was living in her home. During that phone call, Cabinet informed Cousins that it was concerned about their compliance with their foster care contract and that their adoption worker would be in contact, which Cousins perceived as a threat. Cabinet’s adoption worker subsequently closed Cousins’ home and cited Cousins’ interference of visits between Mother and Child as the reason for the closure. Until August 2022, there was no record of Cousins interfering with the relationship between Child and Mother.

On August 19, 2022, Cousins filed an ex parte motion for sole temporary custody of Child in the Breckinridge Circuit Court custody action. The motion was granted that same day and the matter was set for an evidentiary hearing. After its receipt of the Breckinridge Circuit Court’s order, on August 22, 2022, Cabinet filed its own emergency ex parte motion in the Family Court to return Child to Cabinet custody. The attached certificate of service did not indicate Cousins were notified of this motion despite their having temporary sole custody pursuant to the Breckinridge Circuit Court order. Cabinet’s motion was heard on the Family Court’s emergency docket and was granted that same day and ordered Cousins to turn over Child to Cabinet. Cousins complied and Cabinet ultimately placed Child in Mother’s care.

On August 25, 2022, Cousins filed this original action and motion for immediate relief, which was granted on September 2, 2022. Cousins were also given temporary custody of Child pending disposition of the writ petition. On September 6, 2022, Cabinet filed its own petition for writ of prohibition, initiating Case No. 2022-CA-1059-OA., which was denied by separate opinion and order.

On September 15, 2022 the Jefferson Family Court conducted a hearing on Mother’s motion for return of custody in the DNA action. No testimony or evidence was introduced and there was no consideration as to Child’s best interest aside from recitation by the Cabinet and the Jefferson County GAL that they believed it was in Child’s best interest to be returned to Mother. Cousins attempted to bring up an alleged burn mark that Child received while in the care of Mother in August 2022, but Cabinet asserted that no DNA petition had been filed and that the incident was irrelevant. The Family Court then ordered – in contravention of the Court of Appeals amended order dated September 3, 2022 –that custody of Child be returned to Mother. The orders entered by the Jefferson Family Court on September 15, 2022, contained limited findings of fact and conclusions of law, and there were no written findings of fact regarding the best interests of Child.

Petitioners then filed a second motion for intermediate relief with the Court of Appeals requesting a stay of the Family Court’s September 15, 2022, order. That same day, the Court of Appeals entered an order requiring parties to maintain the status quo as set forth in its amended September 3, 2022, order. The parties responded to the Cousins’ motion to stay: Mother requested the Court deny it; Cabinet had no objection to maintaining the status quo; the Breckinridge County GAL supported the stay in a response that reflected positively on Cousins and detailed Child’s worsened mood, behavior and temperament after having been in Mother’s home for only a few days earlier in the year. Cousins’ motion for a stay was granted on September 20, 2022, and the Court of Appeals addressed the writ of prohibition.

The Court of appeals determined that this case sub judice qualified for a writ under the special cases exception which recognizes a subcategory of writs in cases where “a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and a correction of the record is necessary and appropriate in the interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). The Court of Appeals held that the Family Court acted erroneously in dismissing the TPR action without having ruled on Cousins’ motion to intervene in June 2022, despite them having a right to intervene. Without such a ruling, Cousins had no way in which to appeal. The Court disagreed with Cabinet’s argument that its voluntary dismissal of the TPR meant the permanency goal automatically reverted to reunification. The Court of Appeals concluded that a decision as to permanency must be documented according to the Adoption and Family Safety Act of 1997 (ASFA) which requires Cabinet to file a TPR action if a child has been in foster care for 15 out of the most recent 22 months unless – among other reasons –  a state agency has documented in the case plan a compelling reason for determining that filing such a petition would not be in the best interest of the child. 42 U.S.C. 675(5)(E)(ii). Cabinet’s own administrative guidelines reiterates in 922 KAR 1:140, Section6(2) that Cabinet must document why termination is no longer in the child’s best interest and request an exception. The Court of Appeals admonished the Family Court for allowing Cabinet to act inconsistently with the law.

The Court of Appeals acknowledged that without a mechanism to appeal, Cousins felt their only choice was to move for ex parte emergency custody in the custody action, prompting Cabinet to file their own ex parte emergency motion to return Child to cabinet custody. However, Cabinet did not elaborate on what the substantial risk to Child was, and thus, the Family Court did not appropriately utilize KRS 620.060, which authorizes the use of emergency custody orders when the custodian is unwilling or unable to protect the child, it is in the child’s best interest and if the child is in serious danger of physical or sexual abuse or imminent death, the parent has repeatedly inflicted or allow to be inflicted physical or emotional injury, or the child is in immediate danger due to the parent’s refusal or failure to provide for the safety or needs of the child. None of the grounds listed by Cabinet in its motion warranted the relief it sought.

Finally, the Court of Appeals held that the Family Court’s final error was in awarding full custody of Child to Mother in the DNA action with no findings of fact or conclusions of law that doing so was in Child’s best interest, choosing instead to focus heavily on Mother’s improvement on her case plan and the court’s frustrations with Cousins. Worse, the Family Court awarded custody of Child to Mother will full knowledge of this pending original action and in contravention of the Court of Appeals order temporarily awarding custody to Cousins while the action was pending, despite acknowledging that the ruling would cause a bigger mess still, believing that it had original and continuous jurisdiction in the DNA action to make such an order.

The Court of Appeals stated that the erroneous actions of parties, counsel, and the Family Court illustrated why correction was necessary and appropriate for the orderly administration of justice. The Family Court believed that it was the only court that could make custody determinations regarding Child. However, pursuant to KRS 199.470(1), adoption petitions must be filed in the county where the petitioner resides; in this case, in Breckinridge County where Cousins reside. Ideally, only one county will hear all matters regarding one child, but in this case, transferring the DNA and TPR cases to Breckenridge would make little sense since Breckinridge County lacks a family court. Thus, though the separate actions in separate counties are proper, the parties have shown that when one court makes a decision it disagrees with, the other court may make an alternate decision. This is not beneficial for the administration of justice and more importantly, such action is not in line with Child’s best interests.

Finally, the Court of Appeals held that a writ is appropriate because Cousins have no adequate remedy by appeal: no appeal was possible on their behalf in the TPR action because the Family Court never ruled on their motions to intervene; Cousins are not parties to the DNA action and thus cannot appeal from orders entered therein by the Family Court; Cousins were not aggrieved by the Breckenridge Circuit Court’s orders and thus cannot appeal because they are temporary custody orders and are as such, unappealable.

The Court denied Cousins’ request as to the adoption issue as moot because the Family Court never had jurisdiction over the adoption. However, Cousins’ request was granted to the extent that the Breckinridge Circuit Court shall make all further determinations regarding custody of Child in the civil custody action, unless it determines Cousins lacked standing to bring that action and it is dismissed. If the custody action is dismissed, then all custody decisions shall be made by the Breckinridge Circuit Court in the adoption action. If the adoption action is dismissed, then the Family Court may resume making custody determinations.

The Court further ordered that the Family Court DNA action was stayed pending a ruling by the Breckinridge Circuit Court on whether Cousins have standing to bring the custody and adoption actions. Cousins’ request for an order granting them temporary custody Child was granted, but their request to estop Cabinet from any activities inconsistent with the permanency goal of adoption was denied.

Carter Anderson

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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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Relatives filed custody and adoption actions related to their 3-year-old cousin, S.M.H., in Breckinridge Circuit Court. S.M.H. had been in the custody of the Cabinet nearly all her life, after she was born and tested positive for illicit substances and Hepatitis C in November 2019. One year after her birth, the Cabinet filed a DNA petition in Jefferson Family Court, which remains active and pending. In June 2022, Relatives filed a petition for adoption in Breckinridge Circuit Court, and in July 2022, Relatives filed a petition for custody in Breckinridge Circuit Court. The Cabinet filed motions to dismiss arguing Breckinridge Circuit Court lacked particular case jurisdiction and that Relatives lacked standing to bring the lawsuits. The motions were scheduled for hearing on November 28, 2022.

The Cabinet filed for a writ of prohibition and a motion for immediate relief on September 6, 2022. Immediate relief was denied for lack of irreparable injury warranting extraordinary relief resulting from the Circuit Court’s conducting a hearing, and a three-judge panel was appointed for consideration on the merits.

The Cabinet argued that it was entitled to a writ because the Circuit Court was acting or about to act erroneously, there was no adequate remedy by appeal, and the Cabinet would suffer irreparable harm if the hearing was held in the Circuit Court.

The Court of Appeals denied the Cabinet’s writ of prohibition because the Cabinet had an adequate remedy by appeal. A hearing would be conducted in the Circuit Court to determine the merit of the Cabinet’s motions to dismiss the custody and adoption actions. The Court of Appeals stated that such a hearing is itself a forum in which the Cabinet could prove to the Circuit Court that the underlying actions should be dismissed. After the entry of a final order in the case, the Cabinet could then file a direct appeal.

Carter Anderson

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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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U.S. Court of Appeals for the Sixth Circuit

A group of foster caregivers brought a class action lawsuit on behalf of themselves and foster care children against the Cabinet for Health and Family Services and Department for Community Based Services for denying foster care maintenance payments to children in the caregivers’ care. The issue was whether children ordered removed to the custody of an adult relative or fictive kin were eligible for foster care maintenance payments under Title IV-E of the Social Security Act. The United States Court of Appeals for the Sixth Circuit held that these children were not eligible for foster care maintenance payments under the Act because the Cabinet does not have placement and care responsibility over children placed into the custody of a relative.

Pursuant to a Title IV-E program of the Social Security Act, states provide Foster Care Maintenance Payments (“FCMPs”) to children removed from their homes and placed in the temporary care of a foster family home. To be eligible for FCMPs, the removed child’s “placement and care” must be the responsibility of… the State agency administering the State plan approved [by the HHS Secretary].” In a dependency, neglect, or abuse proceeding in Kentucky a Court order may remove a child “to the custody of an adult relative, fictive kin,” or other person or facility, or a Court can commit the child to the custody of the Cabinet.

The Cabinet argued that only when a court commits a child to the custody of the cabinet is a “real foster care relationship with a child and the Cabinet” created, and therefore the Cabinet does not provide FCMPs to children placed by the courts into the care of a relative or fictive kin. The plaintiffs argued that placing a child in the care of a relative or fictive kin is the preferred outcome for this child, and that by denying those children FCMPs the Cabinet discriminated against relative caregivers and denied FCMPs to eligible children without notice or a fair hearing. The Plaintiff’s further argued that “placement responsibility” was not simply the discretion to control a removed child’s temporary placement, but instead involves the Cabinet’s duty and ongoing responsibility to ensure the child is placed in a safe living situation.

The district court held that under Kentucky law, the Cabinet did not have placement and care responsibility over children not in their custody because the Cabinet had no ability to change a child’s placement without a court order. Therefore, only children placed in the Cabinet’s custody were eligible to FCMPs. Representatives for the losing classes appealed.

On appeal, the Court relied upon the Health and Human Services Secretary’s briefing in which he stated that, under Kentucky law, “the Cabinet does not have placement and care responsibility for children removed from their homes and placed by court order into the custody of a relative or fictive kin” as the Cabinet “does not assume legal responsibility for the children’s day-to-day care, and it had no authority to change their placements.”

The Appeals Court also relied upon the plain language of Title IV-E, which states that States with an approved plan “shall make [FCMPs] on behalf of each child who has been removed from the home…into foster care if…the child’s placement and care are the responsibility of—the State agency administering the State plan.” The Court found that the Cabinet does not have “placement responsibility” of children not placed into Cabinet custody as indicated by Kentucky law, which provides that the Cabinet cannot change a child’s placement without custody. The Court did not address the Plaintiff’s constitutional due process and equal protection claims because the Plaintiff’s did not make these arguments in their initial briefs.

Digested by Emily T. Cecconi

The post Foster Care Children Ordered Removed to the Custody of an Adult Relative or Fictive Kin Are Not Eligible for Foster Care Maintenance Payments under Title IV-E of the Social Security Act – Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.

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.

The post Hardin County Circuit Could erred in finding standing of foster parents to petition for custody, in closing the DNA cases after only temporary custody was decided, and the issue of statutory authority being exceeded – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.