Mother and Father were never married but shared one (1) child in common. Pursuant to the Parties’ mediated Agreement (“the Agreement”), the Parties were to share joint custody of their minor child and jointly make all decisions related to their child’s education, medical, and religious upbringing. The Agreement also granted Mother final decision-making authority in the event the Parties could not agree after consulting with one another as to certain parenting decisions.

Prior to mediation and immediately following, Father objected to Mother’s insistence that the child be enrolled at a Louisville elementary school, Whitney Young, despite the Parties living in Fayette County (Lexington). Father contended that enrolling the child in Whitney Young would require significant travel time that would affect his parenting time and his ability to participate in the child’s school activities. Father also raised concerns over Whitney Young’s low test scores.

Against Father’s objections, Mother enrolled the child at Whitney Young for the 2021-2022 academic year. Father filed an Emergency Motion to Enforce and Amend the Mediation Agreement, arguing that Mother’s choice was unreasonable and should be considered a de facto relocation, thus directly violating Father’s joint custody rights. Father’s motion sought an award of attorney fees associated with having to litigate the issue created by Mother’s unilateral decision making. A hearing on Father’s motions was scheduled for December of 2021.

At the hearing, the Whitney Young Assistant Principal testified that the school was no longer offering its French Immersion Program and was unlikely to resume the program during the 2021-2022 school year. Mother testified that her primary reason for enrolling the child in Whitney Young was for the child to participate in the French Immersion Program, as the child was fluent in French. Mother also mentioned the school’s International Baccalaureate program.

Additionally, the Assistant Principal testified that all students attending Jefferson County Public Schools must register under a Jefferson County address. Mother acknowledged that she had rented an apartment in Jefferson County to enroll the child at Whitney Young and planned on living in the apartment with the child during the school year.

Father testified as to his concerns for the child attending Whitney Young. First, Father expressed concern over the effect the enrollment in a Jefferson County school may have on his parenting time. Second, Father mentioned that after examining the most recently published data from the 2019-2020 school year, Whitney Young had test scores in the bottom 20% of the state and had an alarming number of behavioral events.

The Fayette County Family Court issued oral findings following the December 2021 hearing. The Family Court granted Father’s Motion to enforce the Agreement but declined to modify the Agreement. The Court found that although the Parties’ Agreement granted Mother final-decision making authority over educational matters, the Agreement did not permit Mother to make unreasonable educational decisions or unilaterally make decisions that may significantly alter Father’s relationship with the child. The Court found Mother’s decision to send the child to Whitney Young to be unreasonable due to the unavailability of the French Immersion Program that drew her to the school and the school’s low test scores. The Court also found that the travel time between Jefferson County and Fayette County would affect Father’s parenting time. The Court predicted that this enrollment would later become Mother’s basis for a Motion to relocate and admonished such behavior.

The Family Court ordered Mother to immediately enroll the child in school in Fayette County and took the Parties’ cross-motions for attorney fees under submission. The Court subsequently entered an Order awarding Father $8,000 in attorney fees due to the litigation being a direct result of Mother’s unilateral decision making in violation of joint custody.

The Court of Appeals also denied Mother’s motion to strike Father’s responsive brief for failure to include ample supportive references to the record in his Argument section of the brief, in violation of RAP 32(B)(4).

The Court declined to dismiss the appeal as moot, despite Father’s contention that there was no longer a matter in controversy because the French Immersion Program was never reinstated at Whitney Young. The appeal was deemed not moot for Mother’s additional argument that her decisions were not subject to judicial review under the language of the Agreement granting her final decision-making authority.

The Court of Appeals reviewed the family court’s interpretation of the Agreement de novo and concluded that the language in the Agreement indicated that Mother’s educational decisions would be final only after a good-faith effort to come to an agreement. Additionally, the Court of Appeals agreed with the family court’s determination that Mother renting a home in the Jefferson County school district amounted to a de facto relocation.

The Court of Appeals affirmed the Fayette Family Court’s decision determining that Mother’s choice to send the child to a school outside of Fayette County was unreasonable. The Court maintained the family court’s position that while Mother had final decision-making authority over educational decisions, her discretion was not unlimited. Mother’s choice was unreasonable due to the effect it would inevitably have on Father’s parenting time and ability to be involved in the child’s school activities. Additionally, Mother’s choice to rent an apartment in Jefferson County was essentially a relocation, for which she did not seek permission from Father or the family court.

The Court of Appeals found no abuse of discretion in reviewing the family court’s award of attorney’s fees, specifically noting that the family court must have made a finding of reasonableness prior to awarding fees. Both parties having filed affidavits in support of their respective motions for attorney’s fees and submitting evidence of their financial resources at the request of the family court, it was determined that Mother had more financial resources than Father and had been the primary cause of the litigation, making an award of attorney’s fees reasonable.

The Court of Appeals affirmed the Fayette Family Court Orders finding Mother’s choice to send the child to a school in Jefferson County unreasonable and awarding attorney’s fees.

Digested by: Kendall Box, Esq.

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Warren County

Parties were divorced in 2012. The parties shared joint custody of their two (2) minor children with Mother being the primary residential parent and Father exercising prescribed parenting time.  

In 2020, the parties filed cross motions to modify the parenting schedule. Father’s motion requested that the prior parenting schedule be enforced and modified to a 50/50 schedule. Mother’s motion requested a modification of the parenting schedule to reduce Father’s parenting time and requested the entry of co-parenting guidelines and an order for co-parenting counseling. The circuit court ordered the parties to submit to a psychological evaluation. Mother complied but Father did not.

The circuit court held a hearing on both parties’ motions to modify the parenting schedule in February of 2021. The children’s therapist testified at the hearing, but Father was unable to fully cross-examine the therapist due to time constraints. The circuit court entered an order in March of 2021 ordering that upon Father’s agreement to follow the therapist’s recommendations temporarily, pending the conclusive portion of the hearing, Father was to have parenting time with the oldest child in a therapeutic setting only and with the youngest child at the discretion of the therapist, with supervision.

The conclusive portion of the February 2021 hearing was held in February of 2022. Father filed a motion in the interim requesting supervision be lifted due to the length of time between the hearings. Father also filed an emergency motion to dismiss the March 2021 order arguing that the order did not change his joint-custody rights. Father objected to the children seeing the therapist due to concerns for alleged professional and ethical misconduct. The court rejected Father’s arguments and ordered that the children continue therapy with the therapist at issue.

At the February 2022 hearing, the therapist again testified. The therapist specifically expressed concern over the correlation between the older child learning of Father’s request for unsupervised parenting time and the child’s subsequent suicide attempt. The therapist also testified to her concerns with Father’s behavior in therapy sessions.

Following the hearing, the circuit court entered an order suspending Father’s parenting time and all family therapy between the children and Father for a minimum of 3 months to allow Father to participate in individual therapy. The circuit court also entered an order holding Father financially responsible for the therapist’s court appearance at the February of 2022 hearing, due in part to Mother having paid for the therapist’s appearance at the February 2021 hearing. Finally, the circuit court denied Father’s motion for unsupervised visitation/time-sharing for not being in the children’s best interest. Father filed a motion to vacate, which was denied. Father then obtained counsel and appealed.

Father’s appeal contended that the circuit court committed reversible error in (1) not scheduling a hearing on his motion to vacate; (2) suspending his visitation for at least 3 months without finding that visitation would seriously endanger the children; and (3) holding him financially responsible for the therapists February 2022 court appearance.

The Court of Appeals determined that it did not have jurisdiction to remedy the circuit court’s decision to deny Father’s motion to vacate without a hearing due to it being interlocutory in nature.

Although Father’s appeal contends that the circuit court erred in ordering him to be financially responsible for the therapist’s court appearance, the Court of Appeals found that Father had not preserved the issue simply by filing a motion to vacate at the circuit court level. Father’s failure to properly preserve the issue limited its ability to review the issue and the standard of review to be employed. Although Father did not request palpable error review, the Court of Appeals found that the circuit court committed no palpable error in ordering Father to pay the therapists costs associated with the hearing and found that Father was not entitled to relief on the unpreserved issue.

The Court of Appeals reviewed the trial court’s suspension of Father’s visitation and order for individual therapy under an abuse of discretion standard.

Modification of parenting time is governed by Kentucky Revised Statute (hereinafter “KRS”) 403.320. It is well settled Kentucky law that visitation should not be entirely denied without a finding that visitation would result in serious endangerment of the child.

In this case, although the circuit court’s order is referred to as a modification of parenting time, the substance of the order must be examined rather than the form. The order functioned as an outright denial of all visitations for 3 months and placed conditions on Father’s ability to regain parenting time, which the Court of Appeals found to be an order denying all visitation, even if only temporarily. Without a finding of serious endangerment, the circuit court improperly denied Father’s visitation. The Court of Appeals found that while the circuit court did make factual findings as to why it reached its conclusion, it did fail to include the required conclusions of law required by KRS 403.320, thus warranting the vacation of such an order. The Court of Appeals noted that on remand the circuit court may properly enter an order with the same restrictions only if it determines that visits would seriously endanger the children.

The Court of Appeals affirmed the circuit court’s order for Father to participate in individual therapy and order denying Father’s request for unsupervised parenting time, while vacating the circuit court’s outright denial of Father’s parenting time and remanding the case for additional findings under KRS 403.320.  

Kendall Box

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Kentucky Court of Appeals

Warren County

Family Court granted sole custody of child to Mother and no contact with Father due to Father’s failure to comply with substance abuse and mental health treatment. Mother remarried and Stepfather filed a petition to adopt child. Father did not consent. Father appeared without counsel and the Family Court did not tell father he had a right to appointed counsel if he could not afford counsel. The Family Court granted Stepfather’s petition to adopt his stepson because it found Father had failed to provide essential parental care and protection for the child for at least six months, and there was no reasonable expectation of improvement, considering the age of the child.

Father appealed.  The Court of Appeals found that the Family Court “failed to state that its conclusions were made pursuant to the clear and convincing evidence standard”. The Family Courts are typically given a wide discretion, however, this was not a normal appeal of an adoption without the consent of the natural parents because the mandatory standard of proof was not applied. The Family Courts must use the clear and convincing evidence as its standard of proof. The failure by the Warren County Family Court to apply this standard was a fundamental error warranting the Court of Appeals to vacate the Court’s decision. This failure to use the correct standard is so fundamentally wrong that it is not enough for the Family Court to issue new findings, but this error requires a new trial to be held.

Father also raised the issue of the Family Court’s failure to appoint counsel for him. The Court of Appeals briefly addresses this issue by providing guidance to Family Courts. The Family Court did not plainly state to Father that he had a right to have counsel appointed for him if he could not afford to retain one himself. The Court of Appeals encouraged all Family Court to ensure that the parties before them understand their right to counsel, and to state it plainly so that a lay person can understand.

The Court of Appeals notes the importance of counsel doing their due diligence in a case, noting what the Court calls a “blatant misstatement” from Father’s counsel. The Court of Appeals chose to be lenient with counsel, however the Court of Appeals stated they “strongly caution counsel to not make a similar mistake again.”

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Simpson County Circuit Court

Husband and Wife married in 2011 and three children were born during their marriage. The youngest was S.W. Wife was having an affair with Boyfriend when she became pregnant with S.W. and told Boyfriend that he could be the father of the child. No DNA testing was done prior to S.W.’s birth in November 2015. In 2017, Husband discovered through an over-the-counter DNA test that he was not S.W.’s biological father. Boyfriend subsequently took a DNA test that confirmed his paternity and expressed that he wanted to be involved with S.W. Wife quit communicating with Boyfriend. In 2019, Husband filed a petition for dissolution which stated the three children were born of the marriage and requested the parties share custody and timesharing. Wife admitted to the allegations in the petition and filed her response and the parties’ settlement agreement simultaneously. No issues of S.W.’s paternity were raised in the dissolution proceedings. A decree was entered in September 2019, adopting the parties’ settlement agreement. Boyfriend later learned that paternity of S.W. had been adjudicated pursuant to Husband and Wife’s decree. In October 2020, Boyfriend filed simultaneous motions to intervene and amend the final judgment in the dissolution action pursuant to CR 60.02, arguing that he was the biological father of S.W. and sought a finding to that effect so that he could pursue custody and timesharing. Husband opposed those motions and Wife took no position. The family court summarily granted Boyfriend’s motion to intervene and continued his motion to amend, scheduling it for a hearing. Husband filed a motion to alter, amend or vacate that order.

In July 2021, two orders were entered in the dissolution proceeding: an order denying Husband’s motion and an order sustaining Boyfriend’s motion to amend the final judgment pursuant to CR 60.02. The family court considered the factors enumerated in Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004) regarding whether intervention was warranted post-decree, and the history as to what had transpired in the dissolution and paternity cases. The family court concluded that Boyfriend’s special burden for post-judgment intervention was met, and granted Boyfriend’s motion to amend the final judgment. Husband appealed from the order allowing Boyfriend to intervene and the order granting Boyfriend’s motion to amend the final judgment, arguing that the family court abused its discretion in allowing his intervention because his motion to intervene was untimely filed under CR 24.01 and CR 24.02. Specifically, he argued that Boyfriend was aware he could have been S.W.’s father during Wife’s pregnancy, actually was aware of that fact prior to Husband and Wife’s divorce, waited too long to attempt to intervene and had no meaningful relationship with the child.

The Court used the Carter five factor test to determine the timeliness of Boyfriend’s motion to intervene and concluded that the family court adequately addressed the Carter factors and acted appropriately in determining that Boyfriend’s intervention was timely. The Court held that although Boyfriend was aware he could be S.W.’s father before S.W. was born, his intervention was not precluded under these circumstances as untimely due to the constitutional dimension of his interest, his lack of knowledge that paternity could be and was in fact resolved in the dissolution without any notice, and the fact that Husband and Wife knew of the question as to S.W.’s paternity but did not make the family court aware of that.

The Court of Appeals also affirmed Boyfriend’s intervention in the dissolution proceeding. It was clear to the Court that Boyfriend had an interest in the divorce proceeding which none of the existing parties could or did adequately protect. The Court found that relief was appropriate pursuant to CR 60.02(f) based on Boyfriend’s constitutional rights as S.W.’s biological parent and that he had not had an opportunity to present his claim that he should be determined as S.W.’s father on the merits. The Court determined that fraud had occurred against Boyfriend as he was never joined as a party or informed that he needed to intervene during the dissolution proceeding or else Husband would become S.W.’s father, and thus he was prevented from appearing and asserting his rights. Further, a fraud had occurred against the family court, as it was prevented from knowing the facts, which would have required it to join Boyfriend as a party or delay entry of the judgment pending a separate paternity action.

Carter Anderson

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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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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

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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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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

The post Kentucky Court of Appeals affirms finding that Warren County Family Court properly found that a Power of Attorney for Temporary Delegation of Parental or Legal Custody and Care Pursuant to KRS 403.352 and KRS 403.353 does not require a family court to grant custody of a minor child to the parent’s named power of attorney when there is a finding of neglect of the parent – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

No. 2021-CA-0580-ME

Boyd County Circuit Court

The Cabinet for Health and Family Services (“CHFS”) appealed an order granting custody of a minor child to Grandmother and Uncle of the minor child due to the family members lacking standing to pursue such custody order.  The Kentucky Court of Appeals reversed and remanded the matter with instructions that the custody order issued by the circuit court is voidable, suggesting the family members’ petition for custody be dismissed.

Mother gave birth to twins born addicted to drugs.  Father only visited the twins once in the hospital, where he had an individual take a photo of him with the twins.  Notably, Father did not share this photo with his own mother for more than half a year later.  His mother (Grandmother of twins) shared the photo with Father’s half-brother (Uncle of twins).  CHFS inevitably became involved in the case very early due to the twins’ addiction to drugs and their subsequent month-long stay in the neonatal intensive care unit.  After CHFS quickly transferred the case from Lawrence County to Boyd County, Kentucky, CHFS petitioned the Boyd County District Court for a dependency, neglect, and abuse (“DNA”) action and was awarded emergency custody of the twins.  Both twins were placed with a foster family. 

At the adjudication hearing, the district court found neglect against the parents due to abandonment.  CHFS prepared a dispositional report that the permanency goal was reunification with the biological parents, if feasible.  However, the district court disposition order recommended termination of parental rights and adoption for the twins due to the parents’ abandonment. Importantly, neither Mother nor Father made recommendations to CHFS for suitable family members that may be willing to take temporary custody of the twins during the pendency of these proceedings. 

CHFS was notified by an Ohio child protective services worker that their organization was working with Mother and Father to place another one of their children with Grandmother and Uncle in Michigan.  CHFS was not provided with any contact information for Grandmother and Uncle.  At that time, CHFS conducted a search for relatives of the twins, which was supposed to have been completed at the outset of the case.  This search did not identify Grandmother and Uncle, so they were not contacted regarding the twins.

Shortly thereafter, CHFS initiated a termination of parental rights action against Mother and Father due to their arrests for trafficking fentanyl in Ohio.  Following the parents’ arrests, Grandmother and Uncle began contacting CHFS to pursue custody of the twins. The DNA matter continued as usual with the permanency goal of termination of parental rights, ultimately leading to adoption for the twins by, presumably, the foster family. 

Grandmother and Uncle retained counsel and petitioned the Boyd County Circuit Court for custody of the twins.  The guardian ad litem (“GAL”) for the twins and the parents recommended placement of the twins with Grandmother and Uncle; however, CHFS challenged standing for the custody petition.  The circuit court recommended Grandmother and Uncle’s petition for custody of the twins be granted.  CHFS filed exceptions following this decision.  The circuit court issued written findings imposing its decision that Grandmother and Uncle had standing due to CHFS’ failure to follow protocol, citing sua sponte that there was an equitable estoppel argument that defeats CHFS’ lack-of-standing defense.  Following, the district court, by the circuit court issuing a custody order, struck the DNA cases from the docket.

CHFS appealed the circuit court’s order that Grandmother and Uncle have standing to petition for custody of the twins.

The circuit court primarily utilized a Kentucky Supreme Court case, Baker v. Webb, to support its decision.  The Court of Appeals determined the circuit court incorrectly applied the case to the present facts, noting that “because standing and intervention are two distinct concepts, Baker is distinguishable on its face.”  The Court explained the facts presented in Baker differ from the facts presented in this case due to the timing of the family members’ involvement (i.e., whether there was a present or a past interest).  The Court clarified that Grandmother and Uncle’s “interest under KRS 620.090(2), if it ever existed, lapsed before they filed their petition in circuit court,” and that the parties “were not known to the Cabinet until long after the order of temporary custody was replaced by the order of commitment entered at the dispositional hearing.”  As a result, the Court held that there was not a present interest at hand when Grandmother and Uncle filed their petition for custody of the twins as the twins were not subject to an order of temporary custody under KRS 620.090(1).

As a side, the Court found the circuit court’s sua sponte use of equitable estoppel as a defense to CHFS’ lack-of-standing argument had no basis.  The parties never asserted an equitable estoppel defense, and even if they would have, the Court predicted the parties would not have been successful in their defense.  In support, the Court noted there was not conduct that lends to “misrepresentation or concealment of material facts upon which [Grandmother and Uncle] relied.”  

The Court ultimately held that the Boyd Circuit Court’s order awarding custody of the twins to Grandmother and Uncle be reversed and remanded with instructions to the lower court to dismiss their petition for custody.

Caitlin P. Kidd

The post Kentucky Court of Appeals reverses and remands finding by Boyd County Circuit Court that a Grandmother and Uncle of a minor child lacked standing to pursue custody – Published Opinion from Kentucky Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

No. 20-5283

Mother removed the Children from Venezuela to the United States. Father petitioned to have the Children returned to Venezuela under the Hague Convention. Prior to the petition, Mother and the Children were granted asylum in the United States. In the District Court, the parties entered stipulations that Venezuela was the Children’s habitual residence and Mother wrongfully removed the Children from Venezuela. The issue in the District Court was whether Mother could establish an affirmative defense under Article 13(b) of the Hague Convention, such that returning the Children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. The District Court concluded that mother failed to establish the affirmative defense, granted Father’s petition, and ordered that the Children be returned to Venezuela. Mother appealed.

Mother argued that returning the Children to Venezuela would expose them to a grave risk of harm due to Father’s history of domestic violence. The District Court found one credible instance of abuse upon Mother, and found that Father never abused the Children. It concluded that the incident of abuse fell into the “relatively minor” category of abuse, which would likely not pose a grave risk to the Children nor place them in an intolerable situation. In the “relatively minor” category, the Court has no discretion and must return the Children. The Court of Appeals found the District Court’s finding not clearly erroneous and affirmed that the District Court was required to return the Children under that analysis.

Mother argued that the District Court erred in finding that the Children do not face a grave risk of physical or psychological harm from a return to Venezuela and puts her in an intolerable situation because Venezuela is a zone of war and famine. Father presented evidence that protests are avoidable by not traveling on certain streets, the grocery near Father’s home has food and water, Father’s home has a generator, the family would have access to medical card and medication, and the Children would return to their school and soccer teams. The District Court found that Father could provide the Children with shelter, food, and water, which the Court of Appeals found not to be clearly erroneous. It noted that although the conditions in Venezuela are less stable than in the United States, that does not mean the Children would face an intolerable situation or grave risk of harm.

Mother argued that the District Court erred by concluding that the Venezuela court system can adjudicate the parties’ custody dispute because she cannot travel to Venezuela to participate in custody proceedings. However, the Circuit Court noted that she never raised this argument in the District Court, and it refused to address the issue for that reason.

Mother argued that the District Court erred by concluding that the Venezuela court system can adjudicate the parties’ custody dispute because of corruption in the Venezuelan courts and the undue influence of Father. There was evidence that Mother’s attorney was able to file documents, review case files, and secured a new judge to hear the custody dispute after asking the former judge to recuse. The District Court found that the purported corruption was not so severe that the Venezuelan courts could not property adjudicate the custody dispute. The Circuit Court found the finding not clearly erroneous and found that any defects in the Venezuelan court system fall short of what is required for an intolerable situation.

Mother argued that the District Court failed to properly consider her grant of asylum, thereby threatening the sovereignty of the executive branch. Once a person is granted asylum, the Attorney General is not permitted to return the person to the person’s country of nationality. It does not forbid the judiciary from finding that the Children may be returned to their country of habitual residence under the Hague Convention, and it does not require the Attorney General to go against the finding of asylum. Thus, it does not threaten the sovereignty of the executive branch. The Circuit Court affirmed the District Court’s grant of Father’s petition.

Digested by Nathan R. Hardymon

The post There Was Not Sufficient Evidence that Returning Children to Venezuela Would Subject Them to a Grave Risk of Physical or Psychological Harm or Otherwise Place Them in an Intolerable Situation under the Hague Convention – Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.