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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Kenton Family Court

This decision focused on D.H. (father) and G.P. (mother), the parents of three children. Dating back to 2008, the Cabinet for Health and Family Services (the “Cabinet”) had been involved in matters relating to both parties based on concerns of substance abuse and domestic violence. Similar incidents continued to arise, with both parents through the years stipulating to substance abuse and neglect of the children. During this time, the children were placed with various relatives, but ultimately entered foster placement in July 2019. In August 2020, the Cabinet filed a petition against both parents to involuntarily terminate their parental rights to each of the children. A bench trial was held on the matter on March 18, 2021, with the family court entering judgments to terminate both parties’ parental rights on June 11, 2021. D.H. appealed the judgements.

The Court of Appeals reviewed the family court’s findings under the lens of “clearly erroneous, “only disturbing said findings if there were “no substantial evidence in the record to support them.” The Court, evaluating KRS 625.090 and the requirements it set for involuntary termination of parental rights, found that the family court entered extensive findings of fact, followed by conclusions of law on each of the mandatory statutory elements. Furthermore, the Court found no error in the family court entering its judgment on the matter nearly two months after the hearing and outside the 30-day time period set out in KRS 625.090(6). The Court found that this time limit did not impose a “jurisdictional barrier for granting termination beyond the time limit” but was merely a means to “expedite permanency for children.” Though the Court did not approve of the delay, it concluded the error was harmless to the family court’s ultimate finding and did not violate D.H.’s substantial rights. Accordingly, the Court affirmed the family court’s decision to terminate the parents’ parental rights.

Digested by K. Spencer Pierson

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Franklin Circuit Court

Questions Presented: Family Law. Abuse or Neglect. Admissibility of Hearsay. Consideration of the admissibility of statements of a child victim to a therapist or physician while in treatment, and whether competency of the child victim is a prerequisite to the admissibility of the hearsay statements.

At issue in this case was (1) whether statements of a child to a treating therapist regarding alleged abuse constitute inadmissible hearsay; (2) whether statements of a child to a treating therapist regarding the alleged perpetrator of abuse constitute admissible hearsay; and (3) whether the trial court erred by failing to give more consideration to “no true bills” rendered by grand juries against Father.

The Supreme Court of Kentucky held that, under KRE 803(4), out-of-court statements detailing abuse, behavior, and feelings to a treating therapist that are essential for diagnosis and treatment are properly admissible. KRE 803(4) provides for the admissibility of “[s]tatements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.” Here, the child and mother described the abuse and behavioral problems which ultimately led to a diagnosis of PTSD for the child and the development of a treatment plan. Under the plain terms of KRE 803(4), the out-of-court statements of the child detailing her abuse, behavior, and feelings were properly admitted.

The Supreme Court held that the identification of an alleged perpetrator of abuse are not properly admissible under KRE 803(4). “[W]e no longer recognize a special exception to the hearsay rule which allows medical providers to testify in court to the hearsay statements of a victim of sexual offenses which identify the alleged perpetrator because that identification is not pertinent to the medical treatment being provided.” Colvard v. Commonwealth, 309 S.W.3d 239, 247 (Ky. 2010) (overruling Edwards v. Commonwealth, 833 S.W.2d 842 (Ky. 1992). Hearsay statements identifying an alleged abuser must meet a two-prong test: (1) the declarant’s motive in making the statement must be consistent with the purpose of promoting treatment; and (2) the content of the statement must be such as is reasonably relied upon by a physician in treatment or diagnosis.

The first prong of this test is premised on the notion that a declarant seeking treatment has a selfish motive to be truthful because the effectiveness of medical treatment depends upon the accuracy of the information provided. Here, the child was only 4 when giving the account of what happened. The record is devoid of any evidence that it was the child who identified the father as her abuser for the selfish motive of giving a truthful account for the purpose of promoting treatment.

Regarding the second prong, Colvard  stated that “[W]e failed to recognize that it is the patient’s desire for treatment, not the doctor’s duty to treat, that gives credibility to the patient’s out-of-court statement.” Identification of the perpetrator is not necessary for treatment.

Charges of rape and abuse were brought on three occasions against the father. Each time, the grand jury returned a no true bill. Although admitted, the trial court gave very little weight to the no true bills. The father contended that they should have been given more weight by the trial court. The Supreme Court held that the determination of the weight and credibility of the evidence is within the trial court’s discretion, reviewed for an abuse of discretion. The trial court gave the weight it saw fit because the trial court could not be made aware of what had transpired at the grand jury proceedings. The trial court did not abuse its discretion.

Digested by Nathan R. Hardymon

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Ohio Family Court

After giving birth to Child, Mother suffered many medical issues, which prevented her from providing the level of care she wanted to give Child, leaving the care mostly to Father. Child was suffering from diarrhea and vomiting, prompting Mother to call the pediatrician. She asked Father to take Child to the doctor, which he did. The doctor instructed Father to return only if Child’s symptoms worsened. Mother later noticed Child showing signs of seizures and asked Father to take Child to the emergency room. The doctors found Child was suffering from spina bifida, a lump on his back, seizures, problems with his eyes and right leg, and strokes. Child also had fractures on seven ribs, the left wrist, and the right tibia. The hospital notified the Cabinet for Health and Family Services (“the Cabinet”), which opened a case. The Cabinet took the position that some or all of Child’s medical problems were caused intentionally, and it sought emergency custody of Child while pursuing a dependency, neglect, and abuse (“DNA”) action. Family Court granted the Cabinet emergency custody, and Child was in foster care from then on.

Given Child’s age and the seriousness of his injuries, the Cabinet involved the police. The parents were ultimately charged with first-, second-, and third-degree criminal abuse. The bond restrictions during the criminal proceedings would allow only limited contact with Child. Throughout the DNA case, Mother successfully worked her case plan, which did not require her to end her contact with Father, with a goal of reunification. Mother participated in weekly visits with Child. Mother did everything the Cabinet asked her to do.

When Child was three years old, the criminal trial concluded; Mother was acquitted, but Father was found guilty of second-degree criminal abuse, requiring proof that Father’s conduct was wanton. The Cabinet encouraged Mother to pursue sole custody and petitioned to terminate Mother’s parental rights, which Family Court granted. The court found Mother failed to demonstrate an ability or desire to protect Child because she continued to believe Father did not intentionally harm Child and because she failed to end her relationship with Father. It found termination was in Child’s best interest, that Child had been in the Cabinet’s control for 15 of the most recent 48 months, and that Mother’s continued relationship with Father did not demonstrate that she made reasonable efforts or adjustments in her circumstances, conduct, or conditions to justify returning the child to her. Mother appealed.

The Kentucky Court of Appeals held that Family Court did not err by finding that Child was in foster care under the responsibility of the Cabinet for 15 months out of 48 months preceding the filing of the petition to terminate parental rights. The Cabinet’s custody lasted for several years during the pendency of the criminal proceedings.

The Court of Appeals held that Family Court erred by finding clear and convincing evidence that Mother neglected or abused Child. Family Court found that Child was adjudicated neglected or abused in the DNA action. However, DNA actions only require a preponderance of the evidence to find neglect or abuse. Termination of parental rights actions require clear and convincing evidence. Family Court focused on Father’s conviction and ignored Mother’s medical conditions hindering her ability to care for Child or oversee Father’s care of Child to which no weight was given. Further, no weight was given to the facts that Mother instructed Father to take Child to the doctor, that the doctor did not report any suspicion of abuse, or that Mother, being dissatisfied with the doctor’s diagnosis, instructed Father to take Child to the emergency room. Those are not actions of a parent who neglected or abused Child, and there was no evidence that clearly and convincingly supported a finding of neglect or abuse.

The Court of Appeals held that the evidence did not clearly and convincingly support a conclusion that termination of Mother’s parental rights was in Child’s best interest. There was no evidence that Mother suffered from any mental condition impacting her ability to parent. There was not clear and convincing evidence that Mother abused or neglected Child. Mother did all she could to maintain her bond with Child. However, the Cabinet did not make reasonable efforts to reunite Mother and Child. The evidence suggested that Child’s welfare would be harmed if termination were ordered, because it would cause Child to lose one of the maternal figures in his life. Mother paid a reasonable portion of substitute physical care and maintenance while Child was in foster care. Furthermore, Mother presented proof that Child would not continue to be abused or neglected, as she began living with her mother and stepfather, limiting her contact with Father.

The Court of Appeals then discussed the meaning of clear and convincing evidence. The state should not interfere with a parent’s constitutional right to parent his or her child as s/he sees fit unless a judge concludes that there is clear and convincing evidence that interference is the right thing to do. The Supreme Court of the United States has stated that clear and convincing evidence is “necessary to preserve fundamental fairness in . . . proceedings that threaten the individual involved with a significant deprivation of liberty or stigma.” This sounds like the beyond-a-reasonable-doubt standard, applied in the civil context. The Supreme Court of Kentucky has defined clear and convincing evidence as something that “is incapable of a definition any more detailed or precise than the words involved.” When anything more than a preponderance is required, Kentucky jurisprudence often equites the standard with the dispelling of reasonable doubt. That is, except when the matter has involved custody between a parent and grandparents—in that instance, the Supreme Court of Kentucky has held that clear and convincing evidence was “substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt.” Thus, it appears that clear and convincing evidence is a higher standard in cases not involving constitutional protections afforded to parents. The Supreme Court of Kentucky will have to clarify whether there is a distinction.

Digested by Nathan R. Hardymon

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Trial court committed a minor to the Cabinet for Health and Family Services for habitual truancy at a dispositional hearing. The minor argued that his due process rights were violated when the Trial Court failed to take any sworn testimony and the parties were not given the opportunity to present any evidence or cross-examine witnesses during the proceedings.

The Court of Appeals held that due process requires that each party at a status offender dispositional hearing have the opportunity to present and controvert evidence. The Court reversed and remanded the Trial Court’s decision for a new dispositional hearing.

Digested by Emily T. Cecconi

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Father filed a DVO action against step-father on behalf of his minor children. Father was the only witness and testified as to statements made to him by his then six-year-old child. The court also considered a police report and district court domestic violence charges. The trial court issued the DVO and stepfather appealed. The Court of Appeals remanded the case for a hearing holding that the trial court failed to conduct a hearing as required by KRS 403.730 and improperly considered hearsay and extraneous evidence.

Digested by Elizabeth M. Howell

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Both Husband and Wife appealed Court Order entered after a trial on all issues. Wife argued that the family court erred in finding that all of the proceeds from the sale of Husband’s businesses were his nonmarital property. Husband argued the family court erred in determining the character of Wife’s Trust corpus was nonmarital property. Lastly, Wife argued the family court erred in not awarding child support and splitting the children’s expenses equally.

The Court of Appeals first turns to Husband’s business, holding that the family court properly found businesses were Husband’s nonmarital property as they were owned prior to the marriage and any increase in value was not related to joint efforts of the parties. Wife’s contributions as a homemaker, limited to a few months after the children were born, was not enough to demonstrate joint effort.

The Court of Appeals then turns to Husband’s argument that the family court erred by excluding trust attorney’s testimony at trial which resulted in the family court concluding Husband made an inter vivos gift of 1.7 million dollar trust to wife. The Court of Appeals agrees holding that husband met his burden to prove “1) the substance of the excluded evidence; (2) that the family court abused its discretion by excluding it; and (3) that there was a substantial possibility the court would have reached a different verdict if the evidence had not been excluded.” Husband made it clear he was calling attorney to testify as to the creation of the trust for estate planning purposes; the family court abused its discretion by failing to recognize the joint-client exception to attorney-client privilege (KRE 503(d)(5))which would have allowed attorney to testify, and; a third fact witness could have changed the outcome.

The Court of Appeals then turns to Wife’s argument that she should receive child support and the children’s expenses should be split. The family court’s child support decision was based on Wife’s receipt of the 1.7 million dollar trust, so the Court of Appeals orders the Court to revisit this issue on remand, as they vacated and remanded on the trust issue.

Digested by Elizabeth M. Howell

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“Questions Presented: Family Law. Domestic Violence Orders. Extrajudicial Information. Respondent in a domestic violence case was denied a fair hearing when the family court considered extrajudicial information in support of its decision to enter a DVO.”

Aebersold filed for a Domestic Violence Order against Marchese alleging stalking. The parties appeared at the hearing pro se and testified, along with Aebersold’s mother and Marchese’s brother. After the testimony concluded, the trial court Judge asked for Marchese’s social security number and took a recess. Upon returning from the recess, the Judge announced Marchese had an assault and battery record from Virginia Beach. The Judge did not allow Marchese any response or explanation and entered the DVO.

Marchese appealed to the Court of Appeals which “concluded that the trial court’s extrajudicial research concerning Appellant’s criminal record was error, but it nevertheless affirmed the entry of the DVO on the basis of harmless error.” The Kentucky Supreme Court granted discretionary review.

The Supreme Court first conducts a structural error analysis although it was not raised by either Marchese or the Court of Appeals. The Supreme Court reverses the Court of Appeals and vacates the domestic violence order holding that “the trial judge’s undertaking to obtain and use as evidence extrajudicial information relating to a party in the case caused her to be disqualified from proceeding further as the presiding judge in this matter.” Pursuant to KRS .26A.O 15(2) a judge must disqualify himself “(a) Where he has … personal knowledge of disputed evidentiary facts concerning the proceedings … [and] (e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.” The Judge clearly had extrajudicial knowledge of the case, obtained during the recess, which biased her against Marchese. Structural errors render a hearing or trial “fundamentally unfair” and therefore necessitate automatic reversal so the Supreme Court does not conduct a harmless error analysis.

The Supreme Court goes on to elaborate on the judicial notice argument to provide guidance, although its decision does not rest on this analysis. The Supreme Court concludes that the Court of Appeals used the correct analysis holding that “treating the existence of an out-of-state conviction gleaned from an undisclosed source as a proven fact under the guide of judicial notice ignores the clear language of KRE 201, and is an abuse of discretion.” The Supreme Court also notes that the evidence was hearsay and impermissible under KRE 801 as well and violated Marchese’s due process rights as the Court failed to allow him an opportunity to respond.

Digested by Elizabeth M. Howell

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Due to Father’s history of sexual abuse, he was denied visitation with his minor children. After three years without contact, he filed a motion asking for visitation. After the court interviewed the children and reviewed their counseling records, pursuant to agreement of the parties, it entered an order denying Father’s motion. Father appealed.

Father argues that court erred in not releasing the children’s counseling records to counsel and the parties. “Prohibiting a parent from asserting his child’s privilege is not equivalent to automatically waiving the child’s privilege.” The trial court, using the holding in Barroso, a criminal case, found that neither the exceptions set forth in KRS 421.215 nor KRE 507 applied and therefore the children’s counseling records were privileged. The Court of Appeals agrees looking to past precedent comparing the cases of Bond, Atwood, and Barroso holding the trial court did not err in applying Barroso. In a lengthy discussion clarifying past precedent the Court of Appeals notes that “the patient’s right to rely on the promise of confidentiality remains intact despite the patient – the child – being made a pawn in the courtroom” and clarifying that there is no “automatic waiver” as to any claim of privilege by the children in a custody dispute.

Father also argues that the court erred in interviewing the children. The Court of Appeals, noting an agreed order giving the Judge substantial discretion in how to conduct the interviews, held that the court did not err in the manner in which it interviewed the children. Therefore, the order of the trial court denying Father’s motion to modify visitation was affirmed.

Digested by Elizabeth M Howell

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