U.S. District Court for the Eastern District of Kentucky

Appeal filed on February 23, 2023

Family Court issued a Domestic Violence Order (“DVO”) against Combs after “a hearing of which he received actual notice” and “an opportunity to participate.” The DVO prohibited Combs from “harassing, stalking, or threatening an intimate partner,” and explicitly prohibited “the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury.” A few days after issuance of the DVO, Combs purchased a firearm, indicating on the purchase application he was not subjected to a DVO.

A federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which prohibits a person who is subject to a domestic violence order from receiving or possessing a firearm. Combs filed a motion to dismiss the indictment arguing that 18 U.S.C. § 922(g)(8) was unconstitutional as it failed to meet the Second Amendment test set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).

The Bruen opinion reinforced a “text and history” approach to the Second Amendment, holding that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “to justify [the second amendment’s] regulation, the government…must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

First, the United States argued that the Supreme Court has limited the Second Amendment to law-abiding, responsible citizens. The District Court noted, however, that other courts have declined to read into the amendment a qualification that its rights only belong to law-aiding citizens, finding that a plain reading of the amendment covers all persons under the constitution. Thus, the District Court held that a plain reading of the Constitution protected Combs’ right to possess a firearm, even assuming that he was not a law-abiding, responsible citizen.

Second, the United States argued that surety statutes, which required certain individuals to post bond before carrying weapons in public, and historical laws disarming “dangerous people” provide a sufficient historical analogue to satisfy Bruen’s second amendment test. The United States argued that both surety laws and U.S.C. § 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime, and, therefore, have a similar social purpose. Combs argued that surety laws were insufficiently analogous the federal law, and the District Court agreed. The District Court held that U.S.C. § 922(g)(8)’s complete deprivation of an individual’s ability to possess a firearm was materially different than a sureties’ possible disarmament, if violated, and was therefore unconstitutional.

Digested by: Emily T. Cecconi

The post Federal Law Prohibiting Individuals Subject to Domestic Violence Order from Receiving or Possessing Firearms Held Unconstitutional by U.S. District Court appeared first on Goldberg Simpson - Family Law Group.

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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After a child abuse investigation and a no-discipline order was entered by a juvenile court, Parents brought official capacity claims against several Cabinet for Health and Family Services (“Cabinet”) employees, seeking declaratory and injunctive relief from 922 KAR 1:330 § 2(5)(f), which provides guidance to Cabinet social workers such that reports of abuse, neglect, or dependency that are without an injury, mark, bruise, or substantial risk of harm do not require investigation or assessment, asserting that the regulation chilled the exercise of their constitutional right to dictate how to raise their children, and they fear future false prosecution for child abuse if they use corporal punishment. The district court dismissed the claims for lack of Article III standing. The Sixth Circuit affirmed, holding that the claims were too speculative to satisfy Article III standing requirements. To have Article III standing, the plaintiff must satisfy three elements: (1) the plaintiff must have suffered an “injury in fact”; (2) that injury must have been “caused” by the defendant’s conduct; and (3) the injury must be “redressable” by a favorable decision. The issue in this case was the “injury in fact” element, which in cases dealing with declaratory and injunctive relief, must show actual present harm or a significant possibility of future harm in order to demonstrate the need for pre-enforcement review—it must be certain impending and not speculative future injury. Parents failed to demonstrate that their rights will be violated in the future as a result of the regulation, and the mere subjective fear that they will be subjected against to an allegedly illegal action is not sufficient to confer standing.

Parents argued that the Cabinet employees violated their due process rights under the Fourteenth Amendment by depriving them of their parental liberty interest in disciplining their children, asserting that the no-discipline order interfered with their right to use reasonable corporal punishment. The Cabinet employees argued they are entitled to absolute immunity because the juvenile court entered the order, and qualified immunity because there is no clearly established right to use corporal punishment. The district court found the Cabinet employees were entitled to absolute and qualified immunity and dismissed the claim. The Sixth Circuit held that the district court did not err in dismissing the claim. When examining a substantive due process claim the Court applies a two-part test: (1) whether the plaintiff has shown a deprivation of a constitutionally protected liberty interest, then (2) whether the government’s discretionary conduct that deprived that interest was constitutionally repugnant. At issue here is the first prong. Parents pointed to no case law from either the Supreme Court or the Sixth Circuit that indicates there is a clearly established right to use corporal punishment that leaves marks. Case law allows the use of reasonable corporal punishment, and nothing in Kentucky law conflicts with that premise. KRS 503.110 specifically allows parents to use physical force for discipline. But this is not an unlimited right. Parents offered no authority that corporal punishment leaving marks is reasonable and thus a protected right.

Parents argued that the Cabinet employees violated their Fourth Amendment rights by entering their home without a warrant and without an applicable exception to the warrant requirement. The Cabinet employees argued that they did not violate the Fourth Amendment because they entered the home pursuant to orders from the juvenile court, and even if they did violate the Fourth Amendment, they are entitled to qualified immunity. The district court dismissed the claim. The Sixth Circuit held that the district court did not err in dismissing the claim. The entry into the home did violate the Fourth Amendment because the order of the juvenile court fell below the requirements of a valid warrant. Thus, the question is whether a reasonable social worker would have known based on the particular circumstances that their actions were violating the Clark’s constitutional rights. While it is established that a social worker needs a warrant to search a home, the boundaries of that requirement are not clearly established. Social workers may rely upon the good faith instruction of police officers about the legality of their entry. The juvenile court stated in open court, maybe in error, that the Fourth Amendment did not apply, and it was not unreasonable for the Cabinet employees to reply upon instruction from a judge.

Parents argued that the Cabinet employees violated their First Amendment right to film the home visits and that they were retaliated against for exercising this right. The Cabinet employees argued the right does not exist or is not clearly established and that Parents were unable to demonstrate a causal connection between their request not to be recorded and the alleged retaliatory actions. Parents were able to record the home visit and did not allege a retaliatory action for doing so other than the continuation of the investigation beyond the first visit. The Sixth Circuit held the district court did not err in dismissing this claim. To assert a First Amendment retaliation claim, plaintiffs must establish that: (1) they engaged in constitutionally protected speech, (2) an adverse action taken against them caused an injury that would chill a person of ordinary firmness from continuing the speech, and (3) that action was motivated at least in part by the protected speech. Plaintiffs must “be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. Parents did not cite any cases showing the right to film social workers nor that such right is clearly established. Thus, the Cabinet employees were entitled to qualified immunity. However, even if they were not, Parents’ arguments failed because Parents did not allege facts that would demonstrate that a retaliatory action was taken against them motivated by their demand to record the home visits.

Parents argued that the institution and continuation of the investigation were acts of religious hostility that violated that First Amendment. The Cabinet employees argued that they were not aware of the Parents’ religious beliefs prior to the beginning of the investigation, and that the Free Exercise Clause does not excuse Parents from adhering to otherwise valid child-safety laws. The Sixth Circuit held that the district court did not err in dismissing this claim. The Supreme Court has repeatedly found that although targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld. The challenged regulation would overcome strict scrutiny. The state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored and serves a compelling government interest. Furthermore, Parents did not plausibly allege that the regulation was discriminatorily applied against them because of their religious beliefs.

Digested by Nathan R. Hardymon

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Bourke v. Beshear

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A.C. v. Com., 2009-CA-000714-ME  

Published:   Vacating, Remanding, and Denying Motion to Dismiss

County: JESSAMINE

Child appealed FC’s order finding her in contempt of court for violation of juvenile probation.

FACTS:

Parents filed “beyond control” juvenile complaint against Child in 2007, and Child requested formal hearing.  A proceeding occurred as a result of the Complaint, but evidence was not taken and the record does not reflect that Child admitted to being beyond control.  FC nonetheless found that Child was beyond control of her parents and entered a “Juvenile Status Offender Order” finding Child to be a status offender.  Child was ordered to serve 1 year of probation per the terms of the Order, which would end in June 2008.  During the probationary period, Cabinet filed a DNA petition with regard to Child, alleging physical and emotional abuse and neglect of Child by Mother and Stepfather.  During one of the early proceedings in the DNA case, Stepfather stated that Child needed to leave the home or he would.  In Child’s presence, FC asked Mother who she would choose.  When Mother failed to choose, FC placed Child with Father, ordered no contact with Stepfather, and allowed Mother supervised visitation.  At adjudication hearing, FC found Child to be abused and continued previous visitation orders.  DNA case was closed in September 2008.  Nonetheless, a March 2009 summons was issued to Father, requiring him to bring Child to court, and Cabinet filed a Motion to Review in the DNA action.  A hearing was heard on the Motion to Review, but FC focused on a contempt charge for alleged violations of her probation, despite the fact that the probationary period had expired.  Child had received no notice that the proceeding would address an alleged violation of her probation.  Child was not allowed counsel during this proceeding, despite the presence of all other counsel.  No evidence was introduced at this hearing and Child did not admit to the allegations against her.  FC admonished Child, revoked her probation, and order her placed with DCBS for no more than 30 days. 

ANALYSIS:

CA found that FC, amongst many other procedural irregularities, failed to hold a hearing on the original “beyond control” complaint as required for FC to find Child to be a Status Offender.  However, since no appeal was taken from that Order, CA was without jurisdiction to reverse the Order. 

CA further found that Child was not provided written notice of the specific grounds constituting her alleged probation violation prior to appearing in court. Furthermore, pursuant to KRS 610.265(3)(d) and KRS 610.060(2)(a), FC erred when it heard arguments from the Cabinet, the County Attorney, the GAL, and the attorneys for Child’s parents for more than five minutes during the hearing without Child’s counsel being present to represent her. However, Child was given the opportunity to speak with her attorney prior to FC finding her in contempt for violating the terms of her probation. Nonetheless, no evidence was taken on the alleged violations, and Child did not admit to them. FC also failed to provide a written statement as to the “evidence” it relied upon in support of its finding of contempt and its decision to revoke her probation.  Accordingly, the proceeding which led to Child’s detention was replete with due process violations. The order of March 12, 2009, must be vacated because FC had no jurisdiction to hold her in contempt once the 2007 status offense action expired pursuant to the terms of Child’s probation. 

FC’s Order vacated.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

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Young v. Holmes, __ S.W.3d __ (Ky. App. 2009)

           The parties share joint custody of their minor child and could not agree as to where the child should attend kindergarten.  The trial court held a hearing and found that it was in the best interests of the child to attend St. Athanasius School.  Young appealed.  Young argued that the order violates her First Amendment right to religious freedom and that the court could only appropriately order the child to attend St.Athanasius if it found that he had special needs that would require him to attend a private school. 

COA affirmed.  The trial court used the correct standard of best interests of the child and did not base its decision on religious interests.  Young had the burden to prove that “the decision of the trial court was based upon religious interests and such impropriety would not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.”  Therefore, the order did not violate the First Amendment.  Further, the trial court was not required to find that the child had special needs prior to ordering that he attend a private school, since Holmes voluntarily undertook the additional cost of the child’s private education.  Miller v. Miller and Smith v. Smith, cited by Young for that proposition, addressed situations where the trial court had imposed upon a party the additional cost of private education, and thus were not controlling authority in the instant case.    

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

The post Young v. Holmes, Joint Custody, Ky COA Affirmed Order Of Religious School appeared first on Goldberg Simpson - Family Law Group.

P.C.C. v. C.M.C., __ S.W.3d __ (Ky. App. 2009)

           P.C.C. appealed the judgment of adoption which effectively terminated his parental rights and allowed the child’s stepfather to adopt him.  P.C.C. and K.R.C. were married and had a son.  The parties divorced and agreed that K would have sole custody and P would have a set visitation schedule with the child.  K then married C.M.C., who filed a Petition for Adoption and Termination of Parental Rights.  P objected, arguing that C lacked standing to initiate termination proceedings, and he filed a motion to enforce his visitation rights in the divorce matter.  The trial court refused to hear P’s visitation motion unless the adoption petition was ultimately denied.  Pursuant to KRS 199.502, the court granted the adoption petition and terminated P’s parental rights on the theory that P had abandoned the child for more than 90 days by failing to exercise his visitation rights.

            COA reversed and remanded.  P was not afforded fundamental due process throughout the litigation.  C also failed to meet his burden of proof that P abandoned the child.  The evidence indicated that throughout the child’s life his father’s attempts to visit with him had been “systematically thwarted” by the child’s mother.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

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Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME

Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer’s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard for granting such extensions. The trial court granted the extension and this appeal followed.

The COA affirmed. The statute does not require that a hearing be held or that evidence of additional acts of domestic violence be presented in order for the court to grant an extension of a DVO. The trial court properly considered the facts and circumstances of the case. COA also found that Kessler waived his constitutional claims since he failed to follow the proper procedure pursuant to KRS 418.075.

Judge Caperton’s dissent: The trial court should not have accepted the allegations made in Switzer’s affidavit without the test of cross-examination.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

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Ruby v. Ruby
DOMESTIC VIOLENCE HEARINGS AND VOLUNTARY DISMISSAL
2008-CA-000122
PUBLISHED: REVERSING AND REMANDING
PANEL: THOMPSON PRESIDING; MOORE CONCURS; HENRY CONCURS IN PART AND DISSENTS IN PART
COUNTY: JEFFERSON
DATE RENDERED: 1/23/2009

Husband appealed from TC’s entry of DVO, asserting that TC judge should have recused; that it should have granted his request for continuance and his request to obtain Wife’s mental health and prescription records; that his constitutional rights were violated because he was denied assistance of counsel, the right to confront witnesses against him, and to present his own witnesses; and that TC should have vacated DVO pursuant to an agreed order entered by the parties.

FACTS:
EPO was issued against Husband after Petition for DVO filed by Wife. DVO hearing was scheduled to occur 11 days later, but Husband requested and was granted over Wife’s objection a continuance and the hearing was rescheduled to occur 15 days later. At the rescheduled hearing, Wife and her attorney appeared but Husband did not. Substitute counsel appeared on Husband’s attorney’s behalf and stated that Husband’s attorney was ill and that court staff informed Husband’s attorney that the hearing was continued. TC learned from staff that they did not inform Husband’s attorney that hearing was continued. TC contacted Husband’s attorney at home and informed him that the hearing would proceed. Substitute counsel moved for TC judge to recuse himself as Husband was an attorney that had practiced in his court. TC judge refused.

Wife testified as to extensive injury inflicted by Husband, and Husband’s substitute counsel was given the opportunity to cross-examine Wife. TC then ordered that it would hear testimony from Husband one week later, but that no other testimony would be heard. At that hearing, Husband testified that argument between Husband and Wife occurred because of Wife’s irrational behavior and that her injuries resulted from her tripping over an open dishwasher door.

One week after Husband’s testimony, TC found that Husband abused Wife and that abuse may occur in future and therefore entered DVO prohibiting contact between parties. Two days later, Husband filed motion to vacate DVO, stating that parties were attempting reconciliation and included Agreed Order in which Husband and Wife requested DVO dismissal. TC denied motion but amended DVO from “no contact” order to “no unlawful contact” order.

Judge Recusal:
CA held that recusal is not necessary merely because an attorney has practiced before a judge. Only when a judge would be biased against one party is recusal required.

Continuance of Hearing and Constitutional Issues:
KRS 403.740 requires that a DVO hearing be conducted within a limited time. Husband had already been granted one continuance, thus it was not an abuse of discretion for TC to deny second continuance. Regarding Husband’s contention that he was not allowed to present witnesses on his behalf, CA held that TC could have entered its decision based only on evidence presented at initial hearing date, which would not have included Husband’s testimony, and that TC gave Husband more than he was entitled to by granting the additional date for Husband to testify. Regarding his claim that he could not confront witnesses, substitute counsel for Husband did cross-examine Wife though Husband was not present.

Husband also contended that he should have been able to call Witnesses to testify on his behalf and specifically complained that though he subpoenaed Wife’s brother and sister-in-law to appear at the second hearing date, TC judge refused to hold those witnesses in contempt. CA held that language of Kentucky statutes regarding disobedience of a subpoena is permissive and does not require the court to issue contempt citation or warrant to bring witnesses before court. The effect of issuing the citation or warrant would be to grant Husband’s second continuance, and weighing this against the possible relevancy of the testimony in question, TC’s refusal to hold witnesses in contempt was justified. The same reasoning applied to Husband’s complaint that TC should have granted his motion to compel Wife’s medical and psychiatric records; not only was the motion improperly noticed, but granting the motion would have given Husband his second continuance.

Joint Motion to Vacate DVO:
Though TC found that domestic violence had occurred and would probably re-occur, parties requested just two days later to have DVO vacated. CA held that while a domestic violence petition is pending, victim can seek dismissal under CR 41. Where DVO has been entered, however, TC has discretion to deny parties’ requests to vacate, after inquiring into the voluntariness of victim’s participation in the request. TC here only asked Wife if she agreed to vacating DVO, to which she responded only “yes.” CA held that TC should have inquired further into circumstances that caused her to enter the agreement and could deny the motion only after making specific findings supporting its denial.

Reversed and remanded.

DISSENT:

TC is in best position to determine whether hearing should be required on Joint Motion to Dismiss. Given that Motion was filed such a short time after DVO entered, there was no abuse of discretion.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

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A digest of Hines v. Carpenter will be posted shortly. It affirms the denial of motion to compel lump sum payment for damages where father posted supersedeas bond on judgment for back child support.

The post One To Be Published Ky COA Family Law Decision Released 2/6/09; None Released 1/30/09 Due To Weather appeared first on Goldberg Simpson - Family Law Group.